In re Matthew C.

Filed 8/7/07 In re Matthew C. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Lisa C., mother of the minor, appeals from orders of the juvenile court continuing the minor in out-of-home placement. (Welf. & Inst. Code, 366.21, subd. (e), 395.)^[1] Appellant contends the Sacramento County Department of Health and Human Services (DHHS) failed to show it would be detrimental to the minor to place him in her care. We affirm.

Facts

DHHS removed the 16-year-old seriously emotionally disturbed minor from the fathers custody in March 2006 as a result of verbal abuse, threats, and use of excessive force when physically punishing the minor. The father had not followed through with a service plan designed to address the minors behavioral problems. Appellant, who was separated from the father, had custody of the minors two siblings but was unable to handle the minor.

Not long after removal, the minor was placed in a group home due to his extreme behavioral problems. By the time of the dispositional hearing in July 2006, the court found there was partial compliance with the case plan but little progress by the father in addressing the problems which led to the minors removal. The court ordered the parents to comply with a reunification plan which was focused on counseling for domestic violence, parenting, and anger issues. The minors plan contained similar requirements.

According to the six-month review report, the father was refusing services. The minor, who remained placed in a group home, had run away several times; expressed a desire to live with the father, not appellant; and was refusing to take his prescribed medication. After a team meeting that recommended a higher level of placement and during which the father became so angry he had to be excluded, the minor agreed to do his best to modify his behavior without medication. Following the meeting, the minor did well with new guidelines, making progress in school and in counseling, although he lacked the developing independence expected from one his age and remained very impulsive. The minor had, however, improved his scholastic performance and was gaining increased privileges at the group home. The fathers behavior became more angry and aggressive after the team meeting, leading to termination of telephone contact and suspension of visits to prevent him from having a negative effect on the minors progress. The minor called the father, discovered contact had been suspended and again ran away from the group home. At the time of the report, the minor was still out of custody and had missed a week of school and therapy. Appellant began therapy in August 2006 but the social worker did not have any reports on her progress. Appellant had also completed the drop-ins at WEAVE, a program for victims of domestic violence, and was scheduled to begin group therapy. There had been no interactive parenting instruction because the minor refused to participate in the program. However, appellants unsupervised visits with the minor were positive. The social worker assessed that the risk of placing the minor with appellant was moderate, acknowledging the minor did not want to live there, and recommended placement with appellant under supervision.

The review hearing was continued and the court issued an order restraining the father from contact with the minor other than during supervised visitation.

At the continued hearing, the minors counsel expressed concerns about appellants ability to protect the minor and objected to the recommended placement because appellant had not yet begun group therapy for domestic violence. Further, the minors counsel noted there were no reports on appellants progress in therapy. On questioning by the court, the minor stated he was now taking his medication and he wanted visits with his father. Appellant said she had seen amazing progress by the minor in interacting with the family but told the court: [M]y only concern truly in bringing him back into the home right now would be his strong desire to see his father and just a fear of him having a -- basically the drama or the issues that would happen in terms of the father wanting to see [the minor], [the minor] wanting to see his father, and my inability to control that. Appellant then told the court about her positive experiences in unsupervised visits with the minor and his compliance with limits she set. The father discounted the evidence in the social workers report as hearsay and hog wash and insisted he had done what he had been asked to do. The court did not follow the DHHS recommendation for placement, instead continuing services and denying placement with appellant.

Discussion

Appellant contends substantial evidence does not support the courts order denying placement of the minor with her.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence--that is, evidence which is reasonable, credible and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Appellant argues the controlling statute is section 361.2 because she was the nonoffending parent who wanted to have the minor placed with her.^[2] By the terms of the statute, the placement preference of section 361.2 for a noncustodial, nonoffending parent applies only when the child is being removed from an offending parents custody. Such was not the case at the hearing from which the appeal was taken; therefore, section 361.2 does not apply. The appropriate statute to apply is section 366.21, subdivision (e), which sets forth the procedure for six-month review hearings.

At the review hearing held six months after the initial dispositional hearing, the court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.

( 366.21, subd. (e).)

Here, appellant had begun, but had not completed, services designed to assist her in dealing with the minor and the father. The minor was doing well in the highly structured group home setting, but it was apparent from his latest incident of running away that it still did not take much to trigger his impulsive and self-destructive behavior. Given the minors difficult problems and fragile stability, the unresolved domestic violence issues present between the parents, the fathers aggressive insistence on his own agenda regarding the minor, and his lack of acceptance of responsibility for his own contribution to the minors mental and emotional state, the court could conclude that returning the minor to parental custody was premature.^[3] Substantial evidence supported that conclusion.

Disposition

The orders of the juvenile court are affirmed.

DAVIS, Acting P.J.

We concur:

RAYE , J.

MORRISON , J.

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^[1] Hereafter, undesignated section references are to the Welfare and Institutions Code.

^[2] Section 361.2, subdivision (a), states, in relevant part: When 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.

^[3] Appellant notes that even DHHS recommended placing the minor in her care. However, the court is not bound by an agencys recommendation but must independently assess the evidence and the best interest of the minor when making placement and other orders.