In re X.C.

Filed 4/5/07 In re X.C. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant Rodney R. appeals from the juvenile courts rulings on a supplemental petition brought pursuant to Welfare and Institutions Code section 387[1] by the San Francisco Department of Human Services (Department). Rodney R. contends reversal is necessary because of the courts failure to consider placing the subject minor, X.C., with him, a noncustodial parent, pursuant to section 361.2, subdivision (a) before removing X.C. from his mothers physical custody and placing him in foster care. We affirm.

BACKGROUND

Section 300 Petition Proceedings

In January 2005, the Department filed a petition pursuant to section 300, alleging that then five-year-old X.C. came within section 300, including because he was at significant risk of serious harm from his mothers boyfriend, and that the mother suffered from depression, other mental health problems, and a substance abuse problem. The Department alleged that the fathers whereabouts were unknown, and placed X.C. with his maternal grandmother. The court held a detention hearing later that month, Rodney R. failing to appear, and ordered X.C. placed with his maternal grandmother.

In February 2005, the Department filed an amended petition, alleging that Rodney R. failed to protect X.C. in certain ways, had a significant criminal arrest history, which included arrests for domestic violence, sodomy and oral copulation with a minor and sexual battery, and had unknown ability to care for X.C.

The Departments February 2005 jurisdiction and disposition report stated that X.C.s mother and Rodney R. were married before his birth and remained legally married. They lived together for about the first two years of X.C.s life, but later had financial problems, and eventually separated, X.C. staying with the mother. Rodney R., who still had not come forward, had seen X.C. twice in the past three years; on one of those visits X.C. suffered a stomach injury and three linear scars. The report expanded on Rodney R.s criminal arrest history, stating he had been charged with sodomy of a 14-year-old girl, but was not prosecuted because the girl had developmental disabilities that made it difficult for her to adequately testify. Also, Rodney R. was involved with a girlfriend who had her children removed in August 2004 after her 10-year-old daughter reported that she was being left with men for days at a time who were touching her in the wrong places, at a time when she was being left with Rodney R. and another man. The report also indicated that X.C. was showing signs of post-traumatic stress. He was frequently aggressive toward other children, but was attending school and happy to be living with his grandmother.

In April 2005, the Department filed a second amended petition which added allegations about Rodney R. The Department also filed an addendum report which indicated that Rodney R. had come forward and expressed an interest in X.C. The report stated that X.C.s behavior had improved, but regressed after visits with Rodney R. Visiting staff complained that Rodney R. was hostile and angry during supervised visits. In May 2005, the court ordered X.C. to be placed with his mother in a residential treatment facility.

In June 2005, Rodney R. requested reunification services as a noncustodial parent. He contended that since X.C. had been removed previously from his mother, both parents were noncustodial parents. Accordingly, although X.C. could not be placed with Rodney R. because he was homeless (having been forced to leave his girlfriends residence in the face of, among other things, a temporary restraining order), he was entitled to reunification services as a noncustodial parent, citing sections 361.2 and 361.5.

The court conducted a combined jurisdiction and disposition hearing in June 2005, to which Rodney R. submitted. The court found true the Departments allegations that Rodney R. was aware of the mothers mental health issues, as well as her history of violence and X.C.s exposure to risk in the home, but failed to intervene to protect X.C., providing a basis for jurisdiction under section 300, subdivision (b). The court also found true that the father was unable to care for X.C. at that time, a basis for jurisdiction under section 300, subdivision (g). The court ordered that X.C. be with his mother as long as she remained in a residential treatment facility. The court ordered reunification services for Rodney R., including that he participate in parenting classes that addressed anger management issues, participate in individual therapy and follow through with treatment recommendations, visit X.C. on a regular basis prior to reunification, and obtain suitable housing for himself and the child for a reasonable period of time prior to reunification. A six-month review hearing was set for December 2005.

Rodney R.s Section 388 Petition

In September 2005, Rodney R. filed a section 388 petition to modify the courts order so as to place X.C. with him in his home. The court denied his petition, finding that he had failed to make a prima facie showing that there was a change in circumstances or that his proposed change was in X.C.s best interests.

Section 387 Petition Proceedings

On January 4, 2006, the Department filed a section 387 petition to remove X.C. from his mothers custody, alleging that she continued to have a problem with alcohol and crack cocaine, had indicated that she no longer wanted X.C., had left him and the residential treatment facility, and had reported later that she had attempted suicide. The petition alleged that Rodney R. had not visited the child since August 2005, and failed to follow up to arrange offsite visits with the child despite the social workers numerous efforts. The petition alleged as a basis for the petition that Rodney R. may have mental health problems and substance abuse problems, but has refused to be evaluated, and sought to have X.C. placed in foster care.

In January 2006, the Department reported that in late December the mother had disappeared from the treatment facility with X.C., only to be found later in a car with her boyfriend, against whom a restraining order remained in force; both were in a very inebriated state and X.C. was in the car. The mother then told treatment facility staff that she did not want to keep X.C., told X.C. that he would never see her again, and left the program. Rodney R. had not visited X.C. since August 2005, and was not responding to the many attempts made by the social worker to contact him. X.C. was placed in a shelter. Even if Rodney R. did suddenly engage in services and begin seeing his son, asked the social worker writing the report, what would prevent him from suddenly abandoning the child and cutting off contact from him again? Should this child be continually toyed with while both his parents fail at providing a stable home for him?

A detention hearing was held, with Rodney R. present and denying the petition allegations. However, there is no indication in the record that he sought custody of X.C. at this time. The court found that there was a substantial danger to the physical and emotional health of X.C. that could only be protected by removing him from the parents physical custody, and ordered X.C. detained and temporarily placed in foster care.

In February 2006, the Department filed an addendum report indicating that X.C. remained in foster care, continued to have problems with aggression with other children, and wet his bed every night. Rodney R. had visited X.C. once with X.C.s therapist supervising the visit. The therapist reported that Rodney R. was very gentle and sweet with his son, held X.C. in his lap for almost the entire session, and that he had never seen X.C. as relaxed as when he was with his father. The therapist recommended consistent supervised visits so that Rodney R. could work on a relationship with X.C. before unsupervised contact was allowed. The social worker also reported that X.C. told her he wanted to get used to seeing Rodney R. before he lived with him or spent the night in his home.

The social worker also reported that X.C.s mother had told her that Rodney R. was a daily user of marijuana when he lived with her, appeared disheveled and continually rocked himself on a bench during court matters in this case, was angry and might suffer from mental illness, a drug problem, or both, and had refused to undergo a drug evaluation. The social worker recommended as reunification requirements for Rodney R. that he undergo a psychological evaluation, a substance abuse evaluation, an anger management class, a parenting class, family therapy, suitable housing, and that Rodney R. maintain a visitation schedule with X.C. Rodney R. contested these recommendations.

In April 2006, the Department filed a second addendum report. The social worker reported that Rodney R. was always hostile and antagonistic with her, was enraged when he discovered that the maternal grandmother had visited X.C., and had been having a negative impact on X.C.s foster care experience. He made false claims, such as that X.C. was being starved in the foster home, had been physically beaten, and threatened with a hammer. In phone calls, he asked X.C. about possible mistreatment in foster care, as opposed to about the boys day in school. According to his foster parents, X.C. became very agitated after these calls. When the social worker reported these problems to Rodney R., he responded with the suggestion that his son be moved to a foster mother who he knows who lives near his home, but the foster mother did not have a foster home license. X.C. was removed from the foster family at their request after a foster parent heard Rodney R. tell X.C. that he was sending Black Muslims to the home to take X.C. away. The social worker also reported that Rodney R. failed to comply with any services under his case plan.

The social worker also expressed grave concerns about X.C. Since his move to his second foster home, his behavior was escalating beyond control. Among other things, he wet his bed every night and was urinating in his bed when awake. The social worker asked the court to place X.C. in foster care and again order reunification services for his parents.

In May 2006, the court held the section 387 contested hearing. The court admitted into evidence the reports reviewed herein. The social worker testified, almost entirely regarding Rodney R. She strongly suspected Rodney R. was high when she arrived for a scheduled home visit, and he failed to return her calls to discuss the issue. He had refused to work on a visitation schedule with her, did not contact her for at least four months, and had failed to visit X.C. for about six months. Although he was now visiting and X.C. wanted to see him, X.C. did not want to spend the night with him. The social worker recommended Rodney R. be allowed supervised visits only until his possible substance abuse was assessed. She stated that from the beginning [Rodney R.s] behavior has been very inappropriate, very hostile . . . making working with him in any kind of cooperative manner . . . impossible. She thought that something is going on here, whether it be a possible psychiatric or substance abuse problem, and stated, I only know that the behavior I see is not acceptable behavior and does not allow me to work with this person in any kind of productive way to better his life so that he could regain custody of his child. She believed neither parent demonstrated the ability to maintain regular contact and connection with X.C., who was already very damaged from everything hes been through. However, she supported X.C. maintaining some kind of relationship with Rodney R. because Rodney R. was going to X.C.s therapy every week.

After the social workers testimony, counsel presented argument. Rodney R.s counsel stated that his client did not dispute his failure to visit his son from August 2005 until January 2006, contending that he was unable to visit because of a conflict he had with the visiting room supervisors. She also argued that there was insufficient evidence to show that he had a substance abuse or mental health problem, and that the childs problems were the mothers responsibility. Counsel then stated: He very much wants his son with him. He wants to have visits. He would like to have unsupervised visits but wants to have more time with his son than he has right now.

Counsel indicated that Rodney R. did not trust the Department, which explained what appeared to be his uncooperative behavior and his he unwillingness to just agree to all of the recommendations.

The court sustained most of the allegations in the section 387 petition, including that Rodney R. may have mental health problems and substance abuse problems, but has refused to be evaluated. The court then addressed Rodney R. directly, telling him in effect that if he could learn to work with the social worker, I think that you would have a good shot at this. And I dont mean just visitation, but you are going to have to bring yourself to a different place in your mind about it. The court indicated that it would order the reunification services and the visitation plan that the social worker recommended for Rodney R., and urged him to participate in the assessments, and work with X.C., as well as the social worker. The court then found by clear and convincing evidence that there was a substantial danger to the physical health and safety, protection, physical or emotional well-being of the child, and there are no reasonable means which the childs physical or emotional health can be protected without removing the child from the parents physical custody. The court continued:

The facts upon which the decision to remove the child include but are not limited to the following: the mother was the custodial parent and reached a place where she was unable to have the child in her custody.

The court finds by clear and convincing evidencebecause of mental health concerns. The court finds by clear and convincing evidence that reasonable efforts were made to prevent or eliminate the need for removal of the child from the home. This finding is based on the evidence put before the court today.

The childs placement is necessary and appropriate. The agency has complied with the case plan by making reasonable efforts to make it possible for the child to safely return to the home and to complete whatever steps are necessary to finalize the permanent placement of the child.

The extent of progress which has been made for alleviating or mitigating the causes necessitating placement have been none by the mother, minimal by the father.

Rodney R. subsequently filed a timely notice of appeal on the ground that the court granted additional services to him, but did not place X.C. with him.

On January 5, 2007, during the pendency of this appeal, the Department filed a motion to dismiss this appeal, which is discussed further below. The Department accompanied this motion with a request for judicial notice of certain juvenile court documents indicating that in December 2006 the court ordered X.C. to be placed with his maternal grandparents, which request for judicial notice we hereby grant.

DISCUSSION

Rodney R. argues that the juvenile court erred by moving X.C. from his mothers physical custody to foster care without first considering his placement with Rodney R. His argument lacks merit because he did not make a request for custody that required findings of detriment under section 361.2, subdivision (a) and because the juvenile courts findings satisfy the requirements of section 361.2 in any event.

I. Legal Standards

Section 387 provides in relevant part for an order changing or modifying a previous order by removing a child from the physical custody of a parent and directing placement in a foster home. Section 361 provides in relevant part that a dependent child may not be taken from the physical custody of parents with whom the child resides at the time the petition was initiated unless the juvenile court finds by clear and convincing evidence any one of certain circumstances, including that 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 minors physical health can be protected without removing the minor from the physical custody of a parent. ( 361, subd. (c)(1).)

Section 361.2, subdivision (a) provides that [w]hen a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. Section 361.2, subdivision (c) provides that the court shall make a finding either in writing or on the record for the basis for its determination under subdivision (a) and (b). Once removal from the custodial parent under section 361 has occurred, section 361.2 requires the court to evaluate placement with the noncustodial parent based on detriment. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1423.) A courts ruling under section 361.2, subdivision (a) that a child should not be placed with a noncustodial, nonoffending parents requires a finding of detriment by clear and convincing evidence. (Id. at p. 1426; accord In re Isayah C. (2004) 118 Cal.App.4th 684, 700.)

The parties do not dispute the application of sections 361 and 361.2 to the present case, but debate certain other issues. Rodney R. contends that the court applied section 361 to him, rather than section 361.2, and, [b]ecause the trial court did not consider section 361.2, the court did not make any finding whether it would have been detrimental, by clear and convincing evidence, to place [X.C.] with his father. The Department contends that the court was not required to make this section 361.2 finding, in part because it is not clear from the record that Rodney R. sought custody of X.C. or merely an increase in visitation. It appears to concede that the court did not make section 361.2 findings, but nonetheless urges this court, among other things, to imply such findings from the courts rulings.

II. Request for Custody

We agree that, based on the record before us, Rodney R. did not request custody of X.C. such that the court was required to make findings regarding detriment under section 361.2, subdivision (a). Rodney R. was ordered reunification services in mid-2005 and moved shortly thereafter for placement of X.C. into his custody. However, this was before the filing of the section 387 petition, and almost a year before the section 387 hearing. It is undisputed that Rodney R. stopped visiting X.C. for a period that lasted from August 2005 to January 2006 and stopped communicating with the Departments social worker altogether despite her many attempts to contact him. He was nowhere to be found when X.C.s mother left X.C., and did not come forward at that time despite the social workers efforts to contact him again. It was also undisputed that, as stated in the Departments April 2006 report filed just prior to the section 387 hearing, after he reemerged and complained about X.C.s foster care, Rodney R. was asked what should be done with X.C. Rather than suggest he, Rodney R., should be given custody of X.C., he recommended that X.C. be placed in another foster home closer to Rodney R.s residence. Thus, the record indicates that Rodney R. did not desire custody of X.C. while the section 387 petition was pending.

Furthermore, in marked contrast to Rodney R.s submission of a pre-hearing brief before the section 300 hearing in 2005 in which he invoked section 361.2,[2] the record does not contain any brief submitted on his behalf before the section 387 hearing in May 2006. At the hearing itself, which Rodney R. attended, he also made no such request.

On appeal, Rodney R. contends that he did make a request for custody at the section 387 hearing, pointing to his counsels statement in closing argument that [Rodney R.] very much wants his son with him. He wants to have visits. He would like to have unsupervised visits but wants to have more time with his son than he has right now. Rodney R. contends that the first sentence of this statement constitutes a custody request, while the reference to visitations is a request in the alternative. We do not agree with this construction. A father can want a child with him in visitations without desiring custody himself. Counsels reference was too vague and insubstantial to constitute a request for custody. Furthermore, nothing supports the argument that counsels visitations reference was an alternative argument; to the contrary, the failure to denote it as such and its placement immediately after the first sentence support only one conclusion: that counsel was addressing visitations alone. In the absence of Rodney R. requesting custody at any time during the section 387 proceedings, and in light of indications in the record that he did not desire custody, the court was not required to make the section 361.2 detriment findings, which purported absence Rodney R. contends is a basis for reversal.

III. The Courts Findings

Assuming for the sake of argument that Rodney R. did request custody, we do not agree that the record shows that the trial court applied section 361 to Rodney R., but not section 361.2. A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; accord In re Sade C. (1996) 13 Cal.4th 952, 974.) Rodney R. does not point out, and we have not found, any party or the court referring expressly to either section 361 or section 361.2 during the section 387 proceedings. Rodney R. does not cite any authority, nor are we aware of any, that requires a court to do so in the course of making findings pursuant to these statutes. Instead, Rodney R. seems to discern from the courts findings certain terms that are consistent with section 361s language for his contention that the court applied that code section. We similarly find from such an examination of the record that the court applied section 361.2 as well. Certainly, Rodney R. fails to establish that the court did not consider the statute.

Specifically, section 361.2, subdivision (a) provides that custody shall not be given to a noncustodial parent when, by clear and convincing evidence, it would be detrimental to the safety, protection, or physical or emotional well-being of the child. (Italics added.) The courts written order from the section 387 hearing states specifically that [t]he return of the child to the parent(s) . . . would create a substantial risk of detriment to the safety, protection, emotional or physical well-being of the child for reasons stated on the record. (Italics added.) The courts language closely tracks that contained in section 361.2; conversely, the word detriment is not contained at all in section 361. Accordingly, we conclude the courts reference to detriment indicates this finding was made taking into account the standards of section 361.2.[3]

Although the courts written order does not specifically refer to a clear and convincing evidentiary standard, its reliance on the courts statements on the record indicates that the courts hearing findings were incorporated into its section 361.2 finding. At the hearing. the court found by clear and convincing evidence that there was a substantial danger to X.C.s physical health and safety, protection, physical or emotional well-being and no reasonable means by which his physical or emotional health can be protected without removing him from the parents [plural] physical custody.[4] Furthermore, one of the grounds stated by the court for removing X.C. was its finding by clear and convincing evidence of mental health concerns. This is consistent with the social workers testimony and reports that Rodney R. continually engaged in inappropriate behavior that suggested mental health problems, as well as the courts own finding at the conclusion of the section 387 hearing that the Departments allegation that the presumed father may have mental health problems and substance abuse problems, but has refused to be evaluated was true. Considering these findings together, we conclude that the courts section 361.2 finding was made pursuant to the requisite clear and convincing evidentiary standard.

Furthermore, to the extent any additional explanatory findings might have been necessary regarding the detriment of placing X.C. in Rodney R.s custody, we agree with the Department that they can be implied in these circumstances because of the overwhelming evidence of detriment, which the court recognized in its hearing statements. (See In re Marquis D. (1995) 38 Cal.App.4th 1813, 1824-1825; In re Isayah C., supra, 118 Cal.App.4th at p. 699 [both indicating that section 361.2, subdivision (a) findings may be implied when supporting evidence is clear].) Among other things, Rodneys R.s willingness to leave X.C. unprotected in his mothers care despite his awareness of her problems; his disappearance from X.C.s life for months at a time; the episodes recounted by the social worker that may have been the result of substance abuse and/or mental health issues; his traumatizing interrogation of his son in phone calls about the sons foster care treatment; his false claims about, and interference in X.C.s foster care treatment; his continually inappropriate and hostile interactions with the social worker and other service providers; and his refusal to participate in his case plan indicated by clear and convincing evidence that it would be very detrimental to X.C.s safety, protection, and physical or emotional well-being to place him in Rodney R.s custody. Furthermore, given that the focus of the hearing and the Departments reports were on Rodney R.s behavior, and the courts statements at the hearing, there is no question that the court considered these matters in finding by clear and convincing evidence that X.C. should be placed in a foster home rather than parental custody. Accordingly, to the extent the courts findings might be argued to be insufficient as stated, we imply that the juvenile court made the findings required by section 361.2.

Rodney R. contends that implied findings would be inappropriate because the allegations of drug use and mental health issues were not sufficiently clear and undisputed, and that there was substantial evidence that it would not be detrimental to place X.C. with him. He points to the social workers testimony at the hearing that he lived in a very well-furnished lovely apartment that seemed like a lovely environment; the mothers opinion that he had been a good parent during their marriage and was not abusive to her or X.C.; his regular visits to X.C. at his therapy sessions since February 2006 without problems; and X.C.s wanting to visit with his father. These contentions do not rebut the overwhelming evidence that Rodney R. by his actions contributed time and again to X.C.s lack of safety, protection, and well-being, including during the period just prior to the section 387 hearing. His contentions boil down to the lack of problems in his visits with X.C. at X.C.s therapy sessions for a few months prior to the section 387 hearing. While a possible start in the rebuilding of an appropriate relationship between father and son, they pale in light of the clear and convincing evidence of detriment in the record.

In light of our findings and conclusions herein, we need not address the remaining arguments by the parties in the appeal, such as whether Rodney R. waived his appeal by failing to object to the juvenile courts ruling, and whether or not Rodney R. was a nonoffending parent able to invoke section 361.2.

The Department has also moved for dismissal of the appeal as moot because of Rodney R.s failure to object to X.C.s subsequent transfer from the foster home to his maternal grandparents home. We agree with Rodney R. that he did not have the right to invoke section 361.2 rights when this transfer was ordered and, therefore, his failure to object to it did not moot his appeal. The Departments motion is denied.

DISPOSITION

The juvenile courts orders are affirmed.

_________________________

Lambden, J.

We concur:

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Kline, P.J.

_________________________

Richman, J.

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[1] All statutory references herein are to the Welfare and Institutions Code unless stated otherwise.

[2] Indeed, the record indicates that Rodney R. obtained reunification services in 2005 at least in part because he invoked section 361.2 as a noncustodial parent (although admitting he was unable to accept placement because of his homelessness), noting that X.C. had been removed from his mothers custody via detention proceedings in January 2005. This potentially raises the question of whether Rodney R. was entitled in 2006 to the protections of the statute. (See, e.g., In re Zacharia D., (1993) 6 Cal.4th 435, 453 [Nothing in this statute suggests that custody must be immediately awarded to a noncustodial parent regardless of when in the dependency process the parent comes forward. Rather, its language suggests that the statute is applicable only at the time the child is first removed from the custodial parent or guardians home].) The Department does not raise the issue, however, and it is unnecessary to address it in order to resolve this matter.

[3] It may be argued that section 361.2 does not refer to a childs return to a parents custody; however, the record indicates that X.C. was at one time in the past in Rodney R.s custody, making the reference appropriate under the circumstances for either parent.

[4] Rodney R. concedes that the court, by this plural reference to parents in this finding, included him, but contends that it shows the court applied only section 361 to him.