In re R.D.



















Filed 4/26/13 In re R.D. CA2/5

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
FIVE




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In re R.D., a Person Coming Under the Juvenile Court Law.	B244541 (Los Angeles County Super. Ct. No. CK93836)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.L., Defendant and Appellant.

APPEAL from
orders of the Superior Court of the County
of Los Angeles, Marguerite Downing, Judge.
Affirmed.

Kate M.
Chandler, under appointment by the Court of Appeal, for Defendant and
Appellant.

John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Melinda
A. Green, Senior Associate County Counsel for Plaintiff and Respondent.

>INTRODUCTION



C.L. (mother), the nonoffending parent of minor, R.D.,
appeals from the juvenile court’s orders denying her request to terminate
jurisdiction and requiring individual counseling for R.D. and href="http://www.mcmillanlaw.us/">conjoint counseling for R.D. and mother,
if appropriate. According to mother,
because she is a nonoffending parent, and because the offending parent, R.D.’s
father, M.D. (father), waived reunification
services and any further contact with R.D., there was no factual basis to
support the disposition order requiring counseling and, therefore, the juvenile
court erred in denying her request to terminate jurisdiction.

We hold
that there was sufficient evidence in the record to support the juvenile
court’s orders denying mother’s request to terminate jurisdiction and requiring
R.D. and mother to attend counseling.
Therefore, the juvenile court
did not abuse its discretion in retaining jurisdiction and entering the
disposition order requiring counseling.



FACTUAL AND PROCEDURAL BACKGROUND



This case
came to the attention of the Department of Children and Family Services (DCFS)
based on a report that father had physically abused R.D. A children’s social worker (CSW) interviewed
mother who provided the following information.
On June 2, 2012, R.D.
was visiting his paternal grandmother with whom he stayed periodically because
her house was close to his school.
During R.D.’s visit that day, father hit him in the eye. Mother took R.D. to the href="http://www.mcmillanlaw.us/">emergency room after the incident. Mother did not have a family custody order
for R.D. and did not believe such an order was necessary. Father was not “very involved” in R.D.’s
life, and R.D. did not want anything “more to do with father.” Following the incident, mother intended to
obtain a protective order against father, but at the time of the detention
hearing, she had not done so.

The CSW
also interviewed R.D. who appeared to be a victim of physical abuse. His left eye was swollen and bloody. According to R.D., prior to the incident,
father repeatedly asked R.D. when he was going to leave his paternal
grandmother’s home. When R.D. told father
that he planned on leaving soon, father “swung at him,” and R.D. swung back at
father. Father had not hit R.D. like
that before. After the “brawl,” R.D.
went to mother’s house. But when the CSW
interviewed father, he denied punching R.D. in the eye.

Based on
the foregoing information, DCFS filed a petition pursuant to Welfare and
Institutions Code section 300.href="#_ftn1"
name="_ftnref1" title="">[1] In paragraphs a-1 and b-1, DCFS alleged: “On 06/02/2012, the child, [R.D.]’s father,
[M.D.], physically abused the child by repeatedly striking the child’s face
with the father’s fists, inflicting bruising and swelling to the child’s left
eye. Such physical abuse was excessive
and caused the child unreasonable pain and suffering. The child does not want to have contact with
the father due to the father’s physical abuse of the child. Such physical abuse of the child by the
father endangers the child’s physical health and safety and places the child at
risk of physical harm, damage, danger, and physical abuse.”

At the
detention hearing, the juvenile court found that DCFS had made a prima facie
case for detaining R.D. and showing that he was a person described in section
300. The juvenile court further found
that a substantial danger existed to the physical or emotional health of R.D.,
that there were no reasonable means to protect R.D. without removal, and that
reasonable efforts had been made to prevent or eliminate the need for R.D.’s
removal from father. The juvenile court
detained R.D. from father’s custody and released him to mother pending the next
hearing. The juvenile court also ruled
that mother was a nonoffending parent and ordered family maintenance services
and a multidisciplinary assessment of R.D. and his family. Father was granted monitored visitation with
R.D., and mother was allowed to monitor those visits.

In the
jurisdiction/disposition report, DCFS reported that a CSW had conducted a
follow-up interview with R.D. during which R.D. provided the following
information. The allegations in the
petition were true. Father “did bruise
[R.D.’s] eye. They did get into a
fight.” Father was angry with R.D.
because he did not “go to court for [R.D.’s] grandma’s nephew.” Father told R.D. he wanted him to “see how
the system [was].” R.D. had been
suspended from school and father wanted him “to see what would happen because
[R.D.’s] cousin was in jail and scheduled to be in court on that day.” When the CSW told R.D. that father was
concerned because R.D. “had been smoking weed on the porch,” R.D. explained
that he and his brother engaged in an argument because his brother mistakenly
believed R.D. had been smoking weed.
When the CSW told R.D. that father was also concerned because R.D. had
been gambling, R.D. admitted to gambling.
R.D. explained that he gambled “to have more money in his pocket” to buy
a shirt. The school caught R.D. gambling
and reported it, so R.D. stopped gambling.
R.D. denied father’s assertion that R.D. did not follow rules. R.D. had a good relationship with mother, but
was living with his paternal grandmother because her house was closer to the
night school he was attending. When
asked if he and father could ever have a relationship, R.D. replied “no” and
explained that his father had little involvement in his life.

Mother
provided the CSW with the following information during a follow-up
interview. The allegations in the petition
were true. One of R.D’s eyes was swollen
and almost closed. The next day, both of
R.D.’s eyes were black and the left eye had “a busted blood vessel.” Mother reported that father had “whooped”
R.D. in the past, but this was the first time “that something like this took
place.” In response to father’s
assertions that R.D. smoked weed, gambled, and disobeyed rules, mother said she
had never seen R.D. smoke weed or gamble.
When the CSW told mother R.D. had admitted to gambling, mother explained
that he “got into trouble at school by hanging with the wrong crowd,” but he
had not been throwing dice. Mother did
not know if R.D. and father could “mend” their relationship. Mother had seen father be violent in the
past, but she did not “deal with him.” Although
father had not been physically violent with mother, he “had a nasty mouth” and
was verbally abusive toward her. Mother
would choose “not to deal with him when he act[ed] that way.”

The CSW
conducted a further interview with father who provided the following
information. Father denied the
allegations in the petition. The
incident occurred because R.D.’s paternal grandmother wanted to speak with R.D.
about “the house rules.” R.D. had moved
in to live with the paternal grandmother because he and his brother had a
physical altercation. R.D. was on the
porch “rolling weed” when his brother approached him and told him mother would
be arriving soon. Father usually assisted
in managing R.D.’s behavior when R.D. would get into trouble. R.D. was a compulsive liar and gambler who
was transferred to continuation school because “he wanted to do what he wanted
to do.” R.D.’s cousin was incarcerated
and scheduled to appear in court on a charge of murder. Father wanted R.D. to go to court to learn
from the cousin’s mistakes. When the
paternal grandmother told father that R.D. had not gone to court,

father confronted him.
It was possible that R.D.’s eye and his lips were injured during the
“tussling,” but father did not intentionally hit him. Instead, father was trying to stop R.D. from
hitting him. Father and R.D. had never
fought like that before. Father said he
did not discipline R.D. because he had no control over him and what he said
would “not be enforced anyway.” R.D. was
a year behind in school due to his behavior.

A CSW
interviewed the paternal grandmother who provided the following
information. The paternal grandmother
did not know anything about the allegations in the petition and did not believe
that father was “capable of doing something like that.” R.D. was disrespectful toward father. At a family meeting, the paternal grandmother
and father encouraged R.D. to finish school and told him that they loved him. But what they were saying to R.D. during the
meeting “seemed to go through one ear and out the other.” R.D.’s attitude toward father during the
meeting was bad. R.D. did not “look at
father with respect” and displayed a bad attitude that suggested that “he was
going to do what he wanted to do and that’s it.” The paternal grandmother asked R.D. to stop
gambling, but he lied about the money he received from his mother.

According
to the paternal grandmother, although father was an excellent father to all of
his children, mother “put[] a whole bunch of hatred toward father in [R.D.’s]
mind.” Mother told R.D. that he was
considered a “blacksheep” by father’s family who did not like R.D. Mother “[fed] a whole bunch of bad stuff
about [father’s] family to [R.D.]”
Nevertheless, father was the first person mother would call when she could
not control R.D.’s behavior. But when
father would “step[] in mother [would] intervene[].” She would be loud and
disrespectful to father in front of R.D.

The
paternal grandmother loved R.D. and wanted him to succeed, but R.D. associated
with “gang bangers” at school and liked to gamble. Mother was not training R.D. correctly, and
as a result he did not obey the paternal grandmother’s rules. The paternal grandmother “could not take the
gambling [or the fact] that [R.D.] wanted to hang around with [C]rips and other
gangbangers.” When the paternal
grandmother told R.D. that she had heard he was smoking weed, he denied it, but
days later R.D. was “kicked out of school for smoking and gambling.”

The CSW
reported that R.D. was in the 10th grade and that his last report card showed
that he “failed World History, Geometry, Contemporary Comp, Math Tutoring Lab,
and ICS, 1-a,” “but achieved an ‘A’ in English and C’s in Art and Physical
education.” According to one of R.D.’s
teachers, he needed tutoring and did not participate in class. R.D. had been suspended from school three
times between February and June 2012.
The first suspension was for committing an obscene act or engaging in
habitual profanity or vulgarity; the second and third suspensions were for
disrupting school activities or defying the authority of school personnel. The third suspension resulted from R.D.’s
“yelling” a gang number and gang name in front of the class.

The
jurisdiction/disposition report informed the juvenile court that father was
unwilling to reunify with R.D. and wanted no further contact with him. As for mother, she wanted the case closed
because she was a nonoffending parent.
R.D. did not want any further contact with father.

In the last
minute information for the court, a CSW advised that DCFS had decided that
voluntary services might be appropriate for this case. When the CSW informed mother about the
voluntary services proposal, mother stated that she was not interested and that
she would not be attending the jurisdiction/disposition hearing.

At the
jurisdiction/disposition hearing, father executed a written waiver of
reunification services. After hearing
argument, the juvenile court sustained the petition stating: “The court makes the following findings: The court is going to sustain B1 and B2. [T]he PRC report indicates that although this
incident has happened once, that inappropriate behavior, inappropriate
discussions, this isn’t a—isn’t a one-time incident. [¶]
[Mother] indicates that [father] has not been physically violent towards
her, but he has a nasty mouth. [She had]
seen him violent. [She doesn’t] deal
with him. [She doesn’t] know if some of
the acting out that [R.D.] is doing is a result of his father’s inability to
safely communicate, but the court does believe that the department needs to
step in. [¶] And I’m not clear that this is a one-time
incident. I just think that this is
one-time it’s gotten as bad as it’s gotten.
So the court is going to sustain the petition as alleged. [¶] .
. . I think there are issues. And, with
all due respect to [mother], her attitude is it’s [father’s]. I’m not dealing with [father]. And I don’t know how she’s dealing with what
her son is dealing with. I can’t see
that she’s got him in counseling. I’ don’t
see what’s going on with respect to school.
[¶] Now, [father] may be
addressing it inappropriately, but he has some valid concerns. He’s concerned [R.D.] is gambling, and it
appears that he is. And I don’t see
[mother] doing anything about the things that are going on with their son. . . . I’m inclined to provide services. I may not keep the case open that long, but
I’m not [willing to terminate jurisdiction] at this point without services in
place and an indication from [mother] that she is going to take this
seriously.”

The
juvenile court next considered disposition and mother’s testimony, during which
she provided the following information:
On direct examination, mother denied that she was aware that R.D. was
gambling, although she knew he was in a crowd of people who were gambling. As far as she knew, it was a one-time
incident for which R.D. was not suspended.
Last school year, R.D. had been suspended from Crenshaw
High School, but this year he was
attending Whitney Young
Continuation School. Mother could not remember the reason for
R.D.’s suspension from Crenshaw. He had
not been suspended at Whitney Young.
Mother recalled that R.D. had to stay after school on a detention, but
she had not been advised of any other behavioral problems. She did not experience any behavioral problems
at home. Mother was not aware that R.D.
was using any drugs and she had spoken to him about drug usage. R.D. was in 12th grade, but mother did not
believe he was on track for graduation.
R.D. did not have excessive absences from school and mother did not have
any difficulty parenting him. She
communicated well with R.D.

Under
questioning from the juvenile court, mother stated that she did not know if
R.D. was on track to graduate and she was unsure whether he was a year behind
in school. Mother had not spoken to
anyone about R.D.’s school attendance since the beginning of school in
August. But after further questioning,
mother admitted that she “spoke to a teacher a couple of weeks ago and the
principal, [she] talked to him often.”
When the juvenile court advised mother that R.D. admitted gambling and
that the school caught him gambling, mother explained that the dean did advise
her that R.D. “was with a group of kids that were gambling.”

On
cross-examination by R.D.’s attorney, mother explained that R.D. had been
gambling at Crenshaw, but that she had not been advised he was gambling at
Whitney Young. According to mother, the
gambling incident at Crenshaw occurred over a year prior and R.D. did not gamble
any more.

Following
argument, the juvenile court ruled on disposition as follows: “[R.D.] is hereby declared a dependent of the
court under Welfare and Institutions Code section 300, subsections (A) and (B). And the court makes the following findings: [Mother] may retain physical custody of her
son, but he is placed under the supervision of [DCFS]. Parents continue to hold educational rights
on behalf of [R.D.] [¶] Here’s the court’s rationale: I found the [mother’s] testimony to be less
than credible. I think that there is
some other—not excusing in any way [father’s] behavior, but I’m not sure that
there aren’t some issues and some services needed for [R.D.] [¶]
[R.D.] is supposed to be in 12th grade, and he is going to night school,
day school, and he still may not graduate because of his behavior in
school. And if this was a case where
there was going to be voluntary services—I note that [mother] was unwilling to
sign a 301 contract. I am concerned that
this young man does not necessarily have the support to be on the right
road. I don’t know what his grand—I
mean, it’s not a matter of what his grandmother is saying, but what’s
interesting is [R.D.’s attorney] is telling me that he was only at his
grandmother’s so that he [could] get up and go to school on time. I note that school seems to be a large vacuum
here. I think there are services and
[father] may not want reunification services, but he is still this child’s
father, and I think counseling is more than appropriate. So the court is going to order services. [¶] . . . [¶]
All right. The DCFS is asking me
to refer this case to . . . [wrap around services]. . . .
I refer [R.D.] for individual counseling to address case issues, and he
is to be referred for conjoint counseling with his parents if his therapist
believes it to be appropriate.”



DISCUSSION



A. Legal
Principles

The
juvenile court removed R.D. from father’s custody and placed him with mother pursuant to section 361, subdivision
(c)(1) which provides as follows: (c) “A dependent child may not be taken from the
physical custody of his or her parents or guardian or guardians with whom the
child resides at the time the petition was initiated, unless the juvenile court
finds clear and convincing evidence of any of the following circumstances
listed in paragraphs (1) to (5), inclusive, and, in an Indian child custody
proceeding, paragraph (6): [¶] (1) There
is or would be a substantial danger to the physical health, safety, protection,
or physical or emotional well-being of the minor if the minor were returned
home, and there are no reasonable means by which the minor’s physical health
can be protected without removing the minor from the minor’s parent’s or
guardian’s physical custody. The fact
that a minor has been adjudicated a dependent child of the court pursuant to
subdivision (e) of Section 300 shall constitute prima facie evidence that the
minor cannot be safely left in the physical custody of the parent or guardian
with whom the minor resided at the time of injury. The court shall consider, as
a reasonable means to protect the minor, the option of removing an offending
parent or guardian from the home. The
court shall also consider, as a reasonable means to protect the minor, allowing
a nonoffending parent or guardian to retain physical custody as long as that
parent or guardian presents a plan acceptable to the court demonstrating that
he or she will be able to protect the child from future harm.”

If a child
is removed from a parent’s custody, child welfare services are mandatory. “[W]henever a child is removed from a
parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child welfare services to
the child and the child’s mother and statutorily presumed father or guardians.” (§ 361.5, subd. (a) (italics added).) “If a child is adjudged a dependent child of
the court, on the ground that the child is a person described by Section 300,
and the court orders that a parent or guardian shall retain custody of the
child subject to the supervision of the social worker, the parents or guardians
shall be required to participate in
child welfare services or services provided by an appropriate agency designated
by the court.” (§ 362, subd. (c)
(italics added).)



B. Standard
of Review

“The court
has broad discretion to determine what would best serve and protect the child’s
interest and to fashion a dispositional order in accord with this
discretion. (In re Jose M. (1988)
206 Cal.App.3d 1098, 1103-1104 [254 Cal.Rptr. 364]; In re Eric B. (1987)
189 Cal.App.3d 996, 1005 [235 Cal.Rptr. 22].)
We cannot reverse the court’s determination in this regard absent a
clear abuse of discretion. (Ibid.) [¶]
The reunification plan ‘“must be appropriate for each family and be
based on the unique facts relating to that family.”’ (In re Michael S. (1987) 188
Cal.App.3d 1448, 1458 [234 Cal.Rptr. 84].) Section 362, subdivision (c) states in
pertinent part: ‘The program in which a
parent or guardian is required to participate shall be designed to eliminate
those conditions that led to the court’s finding that the minor is a person
described by Section 300.’ (In re
Basilio T. (1992) 4 Cal.App.4th 155, 172 [5 Cal.Rptr.2d 450].) name=clsccl5> The department must
offer services designed to remedy the problems leading to the loss of
custody. (Robin V. v. Superior Court
(1995) 33 Cal.App.4th 1158, 1165 [39 Cal.Rptr.2d 743].)” (In re
Christopher H. (1996) 50 Cal.App.4th 1001, 1006-1007.)

The juvenile court may make “any
and all reasonable orders” to ameliorate the conditions that made the child
subject to the court’s jurisdiction. (§
362, subd. (a).) This provision and
others in the Welfare and Institutions Code “have been broadly interpreted to
authorize a wide variety of remedial orders intended to protect the safety and
well-being of dependent children [citation].”
(In re Carmen M. (2006) 141 Cal.App.4th 478, 486.) The juvenile court must keep in mind the
purpose of juvenile dependency law, which is “the preservation of the family as
well as the safety, protection, and physical and emotional well-being of the
child.” (§ 300.2.)

“‘“name=clsccl6>[A] reunification plan formulated to correct certain parental
deficiencies need not necessarily address other types of conduct,
equally deleterious to the well-being of a child, but which had not arisen at
the time the original plan was formulated.”’
(In re Precious J. (1996) 42 Cal.App.4th 1463, 1475 [50
Cal.Rptr.2d 385].) However, when the
court is aware of other deficiencies that impede the parent’s ability to
reunify with his child, the court may address them in the reunification
plan.” (In re Christopher H., supra, 50 Cal.App.4th at p. 1008.)



B. Analysis

Contrary to
mother’s assertion, there was sufficient evidence to support the juvenile
court’s decision to retain jurisdiction and require counseling for R.D. and, if
appropriate, for mother. There was
evidence that R.D. was smoking marijuana, gambling, and associating with gang
members. R.D. had been expelled from his
prior high school and had been suspended from his current school on three
separate occasions in the four-month period prior to the detention
hearing. In addition, R.D. was failing
most of his classes, did not follow rules at his paternal grandmother’s house,
and displayed a disrespectful and
obstinate attitude toward his father’s family.


Based on
the foregoing evidence, the juvenile court was concerned that at least some of
R.D.’s behavioral issues may have been related to his conflict with his father
and that the conflict between the two went beyond the incident that brought
R.D. to the attention of DCFS. The
juvenile court was also concerned that mother was not dealing appropriately
with such behavior. It was therefore reasonable
for the juvenile court to conclude that R.D. and mother needed and would
benefit from individual and conjoint counseling. Although mother and R.D. did not believe
counseling was necessary, the evidence supported a reasonable inference R.D.’s
best interests would be served by participating in such counseling. Therefore, the juvenile court did not abuse
its discretion in retaining jurisdiction and ordering the counseling services
in question.



DISPOSITION



The
juvenile court’s orders denying mother’s request to terminate jurisdiction and
requiring R.D. and mother to attend counseling are affirmed.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS







MOSK,
J.





We concur:







TURNER,
P. J.







ARMSTRONG,
J.