In re T.D

Filed 5/4/06 In re T.D. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Robert J. Anspach, Judge.

Roshni Mehta, under appointment by the Court of Appeal, for Appellants.

B.C. Barmann, Sr., County Counsel, and Jennifer E. Zahry, Deputy County Counsel, for Plaintiff and Respondent.

Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Respondent.

-ooOoo-

In a variation from the typical appeal, three minor children, T.D., T.O., and A.O., appeal from orders made by the juvenile court placing them with their parents, Benita and Dervin. The children argue the juvenile court abused its discretion by denying their petition pursuant to Welfare and Institutions Code section 388,^[1] and there was insufficient evidence to support the conclusion that return of the children to the custody of Benita and Dervin would not create a substantial risk of detriment to their safety, protection, or physical or emotional well-being of the children. (§ 366.22, subd. (a).) We find no error and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Because the outcome of this appeal depends on the information before the juvenile court, we begin with a thorough review of the facts. The Kern County Department of Human Services (the agency) caused a petition to be filed alleging that Benita's four children, A.R., Jr., T.D., T.O., and A.O., came within the provisions of section 300, subdivisions (a) and (b).^[2] Dervin is the father of T.D., T.O., and A.O., although he and Benita never have married. The petition alleged, in essence, that Dervin abused A.R., Jr., by hitting him with a belt leaving bruises, and perhaps lacerations, and Benita had failed to prevent the injuries. The other children were felt to be at risk because of Dervin's behavior and Benita's failure to protect the children.

Dervin pled no contest to a felony violation of Penal Code section 273d, subdivision (a), infliction of corporal punishment on a child. He was sentenced to county jail.

The parties submitted the issues of detention, jurisdiction, and disposition on the reports prepared by the agency. The juvenile court determined it had jurisdiction over the children, they were removed from their parent's custody, and reunification services were provided to Benita and Dervin.

The subsequent reports prepared by the agency indicate that Benita complied with her case plan, although not without incident, as will appear. The case worker never doubted that Benita loved her children, although she lacked parenting skills and demonstrated some anger management issues.

Dervin was not able to comply with his case plan until he was released from jail, but he immediately contacted the case worker upon his release and began working on his case plan. Dervin's visits with the children were appropriate, and the case worker never doubted that he loved his children. He gained employment and became self-supporting.

T.D. and T.O. were placed with Benita in May 2005. In September the agency presented to the juvenile court a social study stating Benita had successfully completed (1) a parenting class, (2) an anger management class, (3) and counseling for failing to protect the children, and was providing for the children's basic needs, including providing a safe residence.^[3] The report also stated that Benita made substantial progress in complying with her case plan and alleviating the circumstances that resulted in the children being placed in foster care. The report noted, however, some concerns over Benita's anger management skills.

The social study also stated that Dervin successfully completed his parenting class and was in the process of completing his anger management and physical abuse classes. Dervin visited the children on a regular basis. The report observed, however, that Dervin had not completed the plan within 18 months.

The social study recommended reunification services to Dervin be terminated and A.O. be placed with Benita. Benita was to be provided additional family maintenance services, and the juvenile court would maintain jurisdiction over the children.

A supplemental social study was provided to the juvenile court approximately two weeks later.^[4] This report noted Dervin was scheduled to complete his counseling courses in November and he had reconciled with Benita. The agency believed Dervin would provide great support and stability to the family. Based on the new circumstances, the agency changed its recommendation to placement of all three children with Dervin with continued family maintenance services.

These reports prompted counsel for the children to file a petition pursuant to section 388 seeking a modification of T.D. and T.O.'s placement. The petition alleged Benita had been unable to provide adequate housing for the children and was incapable of supervising them adequately. The petition sought removal of the children from Benita's custody and the scheduling of a permanency planning hearing.

The hearing on the petition began on October 25, 2005.^[5] The first witness called by the children was Carolyn Paschal, the house supervisor for the rehabilitation facility at which Benita stayed for approximately two months. Benita violated the facility rules on several occasions. She was reprimanded for (1) fraternizing with other facility guests, (2) failing to keep her room clean,^[6] and (3) failing to supervise her children. The children and their clothes always were clean. Benita eventually was discharged from the facility because she would not comply with the facility rules and failed to attend required classes.

Paschal also told Dervin he could not visit Benita at the facility because it was against the rules. Dervin responded with profanity, but left the facility. Paschal observed Benita take the children to see Dervin at the facility at which he was obtaining counseling (next door to the facility at which Benita was living). Dervin and Benita would sometimes yell at each other on these occasions. Finally, Paschal observed Benita get angry with a woman in the hall in front of the courtroom prior to the hearing. Dervin attempted to calm Benita.

In Paschal's opinion, Benita did not properly care for the children. Paschal often observed the children telling Benita what to do. Paschal admitted that T.D. was a difficult child, but she (Paschal) was generally able to direct him. Paschal thought T.D. was angry most of the time, although she did not know the reason for his anger.

Dee Ann Wheaton works at another facility at which Benita resided for four to five weeks. She observed daily instances when Benita failed to supervise her children properly, even after being told to do so by the staff. She personally had to bring T.D. back into the facility yard when he let himself out of the gate. Wheaton observed Benita and Dervin having an argument at the facility, even though Dervin was not supposed to come to the facility. Benita also had problems with other women in the facility.

Benita testified she planned to live with Dervin if she were permitted to reunify with her children. She had been living in a small house for the past two months.

Rebecca Quintero is a social worker with the agency. Dervin initially was incarcerated but contacted Quintero the day following his release and began receiving services within three weeks of his release. He maintained employment once he completed his work experience program, lived in his own residence, bonded with the children, and had regular visits with them. He appeared to use appropriate parenting techniques when visiting with T.D., who was a difficult child. He was very gentle with the children and appeared to incorporate the parenting techniques he learned in his classes. Dervin responded every time Quintero requested he do something for the family. The family maintenance services recommended by the agency consisted of at least monthly visits by the social worker and providing services such as psychological counseling and tutoring.

Quintero was aware of at least one occasion when there was inappropriate interaction between Dervin and the children. At that visit the children appeared to be out of control and Dervin did not respond well to the situation.

Quintero visited T.D. and T.O. at Benita's house on several occasions. On each occasion they were well groomed and appropriately dressed. Quintero did not observe any hazards in the home. Quintero described Benita as very resourceful when it came to meeting the children's needs. She was present on occasion when T.D. failed to obey Benita's directions.

Quintero agreed that Dervin and Benita had a â€