Filed 9/12/17 In re D.W. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

J.W. (Mother) and A.W. (Father) are parents of A.W. and D.W. At the outset of this dependency proceeding, Mother and Father were living apart, involved in a highly contentious family custody dispute, and had joint physical and legal custody of their children. Upon a referral that Mother had placed the children in danger by driving over 90 miles per hour while intoxicated, the children were immediately removed from her custody and placed with Father. Following a contested hearing, the juvenile court sustained allegations of failure to protect and neglect by Mother. Following a contested dispositional hearing, the court returned partial custody to Mother and required both parents to avail themselves of services. By the time of the first family maintenance review hearing, Mother was not in compliance with the case plan, but Father was. Both the Yurok Indian Tribe and the Humboldt County Department of Health and Human Social Services (Department) recommended that full custody be given to Father and dependency jurisdiction be terminated. Following a contested hearing, the court continued its jurisdiction, but limited Mother to supervised visitation and required her to engage in services. By the time of the third review hearing, Mother was not only not in compliance with the case plan, but had been arrested again for conduct related to alcohol consumption. Father remained in compliance. At this point, the children’s counsel had no objection to termination of the dependency and full physical custody with Father. Following another contested hearing, the juvenile court terminated reunification services for Mother, terminated the dependency and ordered full physical custody to Father, with Mother having supervised visitation.

Mother raises a single issue on appeal—that the juvenile court employed the wrong standard in determining that she failed to rebut the statutory presumption favoring termination set forth in Welfare and Institutions Code section 364, subdivision (c).[1] We affirm.

Background

In July 2015, the Department received a referral of neglect by Mother of then eight-year-old D.W. and seven-year-old A.W. The Department filed a section 300 juvenile dependency petition in August, alleging failure to protect and substantial risk the children would suffer serious physical harm if left in Mother’s care. (§ 300, subds. (a)–(b).) The allegations referenced Mother’s February 2015 arrest for driving under the influence of alcohol and speeding at 96 miles per hour with the children in the car. They also referenced multiple incidents of domestic violence in the presence of the children involving Mother and the children’s grandfather, and Mother’s fiancé, and grandfather. The children were immediately removed from Mother’s custody and placed with Father. Until this point, the parents had maintained a 50/50 custody arrangement. They were also embroiled in a contentious custody dispute.

In its detention report, the Department discussed two incidents of physical violence reported by D.W. In the first, his grandfather went into the backyard where Mother and her boyfriend had been living in a tent and began cutting holes in the tent with a knife. Mother grabbed hedge clippers and began yelling at grandfather. A physical altercation ensued, and grandfather “had gotten [Mother] on the ground and started hitting her in the face.” D.W. stated “he was used to these kinds of things,” so he had not been frightened. However, A.W. “had been scared.” In the second incident, his grandfather got into a fight with Mother’s boyfriend, where the “boyfriend had ended up on top of his grandfather and had been hitting him in the face.”

Father reported the children had told him Mother was also involved in a car accident in June in which she rear-ended the car in front of her.

For her part, Mother claimed her February 2015 DUI arrest was “ ‘not a big deal,’ ” because no one had been hurt and “ ‘it was only a .08.’ ” She did not address the incidents of domestic violence reported by her son.

The Department recommended continued detention from Mother and stated she needed, among other things, to obtain an alcohol and other drug assessment (AOD) and a mental health assessment, participate in recommended services, submit to random drug testing, obtain stable housing, and participate in domestic violence counseling. The court agreed, found continued detention was necessary and that placement with Father was suitable, and ordered the Department to provide supervised visitation and the recommended services for Mother.[2]

In its September jurisdiction report, the Department noted Mother continued to struggle with alcohol abuse and domestic violence and that the children appeared to have “normalized being in dangerous situations by repeated exposure.” The Department stated Father had been “appropriate and protective of his children and has fully cooperated with the Department in addressing the safety concerns that brought the family to the attention of Child Welfare Services and the Court.” The Department recommended the court continue all previous orders.

After a contested hearing, at which the social worker, Father, Mother, Mother’s fiancé, and the children’s grandfather all testified, the juvenile court sustained the allegations, adopted the Department’s recommendations, and set the matter for a dispositional hearing.

In a November 2015 addendum report for the dispositional hearing, the Department changed its recommendation for Mother from family reunification to family maintenance. The Department was of the opinion return of the children to Mother would not cause a substantial risk to them and recommended return of joint physical custody to both parents, with Mother having custody on the weekends and Father during the week.

The court found by clear and convincing evidence that reasonable services had been provided to the parents and Mother had made adequate progress in alleviating or mitigating the causes necessitating placement, and ordered the children placed with both parents, with Mother having custody the first, second and third weekends of each month. The court also ordered Mother to obtain a domestic violence assessment and participate in domestic violence counseling as recommended, as well as participate in individual and co-parenting counseling. The court then set the matter for a six-month review hearing.

By the time of the review hearing, the Yurok Tribe expressed a different view as to disposition and urged the court to rule that placement with Mother was not an option “at this time” because of noncompliance with her case plan. At an April 2016 family team meeting, in which Father, the tribe, the Department and extended family members had participated, there were “[m]ultiple worries” expressed regarding Mother taking the children to her father’s house because there had been “violent conflicts at this house in the past,” including an incident which was one of the initial reasons the court became involved in this case. The tribe requested counseling for both children, continued family maintenance services for Mother and that she provide an alcohol and drug assessment and comply with treatment and counseling requirements. The tribe recommended terminating family maintenance services for Father “due to him meeting all goals at this time.”

The Department recommended dependency be terminated and that Father receive full physical custody of the children. It noted the children were bonded with both parents, and neither felt anxious or worried in the care of either parent. However, the social worker had received a report of emotional abuse of the children, when a friend of Mother’s fiancé came to the house where Mother was visiting and threatened her fiancé with a firearm. Mother took the boys to another room until the man left. The Department, after investigating the incident, felt Mother had acted appropriately and protectively, and determined the report was “unfounded.”

The Department also had received reports from both Mother and Father, each raising complaints about the other. Mother claimed that in December 2015, Father had been homeless and had used inappropriate discipline, requiring the children to eat until A.W. vomited. A social worker interviewed Father, who stated he had received notice he would need to find alternative housing due to his unit being renovated and a subsequent rent increase, so he had temporarily moved the family into his partner’s grandparent’s house. However, he had since found stable housing and had been in his current home since March 2016. The social worker also spoke with D.W. He maintained Father “did not force [A.W.] to eat until he vomits”; rather, his Father’s rule was to “ ‘finish what is in front of you.’ ” “Neither child reported having any other worries about being in the father’s care.”

For his part, Father raised concern that Mother’s fiancé had been arrested and that he “did not feel that his children were safe around a man who is engaged in criminal activity.” He also reported that the children told him Mother did not have running water at her home and that they instead got their water from a “nearby creek.” He was concerned Mother was not providing adequate supervision for the children, especially as A.W. had a “tendency to wander if not attended.”

The Department felt Father had “made adequate progress with his case plan and . . . demonstrated that the children are safe in his care.” The only thing Father had not completed was co-parenting counseling, but he was waiting on Mother to contact the counselor to set dates. Mother, in contrast, was noncompliant with her case plan. Although she informed the social worker that she “had nearly completed her parenting education program” and was simply waiting for the center to resume classes, the center told the social worker Mother had not attended any sessions. Mother then stated she meant she had “ ‘nearly complete[d] an online parenting class.’ ” When the social worker asked Mother to provide documentation of her AOD assessment, certificate of completion of an alcohol recovery treatment program, Mother “offered no evidence that she has been working on or completed any of the service[s] listed in the case plan.”

In a June 2016 addendum report, the Department expressed “serious concerns about the state of [M]other’s mental health and ask[ed] that unsupervised contact be suspended” after Mother sent the children home with a “package” containing the “severed head of a chipmunk,” for Father’s Day. D.W. explained, Mother had “cut the head off the chipmunk and told [A.W.] to give it to Father.”

The court found by a preponderance of the evidence that return of the children to Mother would create a substantial risk of detriment, ordered the Department to continue to provide her with reunification services, and set the matter for a 12-month review hearing. The court left the decision as to unsupervised visitation up to the discretion of the Department.

In its 12-month report, the Department discussed two reports of abuse in Father’s household. The first occurred in October 2016, when A.W. told his teacher that Father had hit him and D.W. on the head with a “ ‘backscratcher,’ ” resulting in an “open wound” on D.W.’s head. A social worker interviewed Father, A.W. and D.W. and “[a]ll have stated that this incident was the exception and not the norm in the household.” The social worker reported Father was truthful and his account of events was similar to the children’s. Father stated he had told the boys to clean their room and they were not listening and he reported hitting them “once on the head with the backscratcher to ‘get their attention.’ ” He stated he was “ ‘horrified’ ” he had injured D.W. and had not used the backscratcher again. The Department closed its investigation “as inconclusive,” after determining the injury was “unintentional and not serious.” The second occurred in November 2016, when Father made A.W. do “ ‘wall sits’ for twenty minutes.” Father was again forthright about the incident and stated he “had tried utilizing wall sits as disciplinary action in the past, but found that this type of discipline did not work,” that he had not tried it again, and that the length of time was less than five minutes. The Department closed its investigation as “evaluated out.”

The Department also reported Mother had finally completed a psychological evaluation and a doctor had diagnosed her with adjustment disorder with mixed anxiety and depressed mood and alcohol use disorder. The provider recommended alcohol and drug treatment and/or mental health services, as well as an outpatient program. Mother refused to follow these recommendations. In fact, when the center recommended Mother engage in some services, including outpatient treatment, Mother “became angry and ‘cussed her out.’ ” Mother, also had completed two drug tests; one was positive for THC and Methadone, the other for THC. In October 2016, police had again arrested Mother for alcohol-related conduct after officers arrived on the scene of a traffic collision and Mother became “ ‘aggressive and combative’ and was interfering with the investigation.” Mother told the investigating social worker she and her fiancé were out “drinking ‘for fun,’ ” when her fiancé, while walking across a street, “was involved in a collision with a vehicle.” Mother stated she was “extremely distraught,” and “very upset with the arresting officer.” She also claimed she had attended an AOD assessment, and dismissed the recommendation for outpatient treatment as a response to the arrest because she felt she was “being judged prematurely as she ha[d] not been convicted of that charge.”

The Department reported the children were healthy overall, although D.W. had started displaying some “concerning sexualized behaviors at school and at home, and sometimes defecate[d] in his pants.” The Department referred D.W. to counseling offered through the Yurok Tribe, and both children received weekly counseling at United Indian Health Services.

The Department recommended that the dependency be terminated, and that Father be given full physical custody, with both parents sharing legal custody. It further recommended supervised visitation for Mother until such time as she demonstrated her “use of alcohol and/or other drugs does not affect the safety” of the children. The Department stated Father had completed all the services listed in his case plan except for the co-parenting component, which required Mother’s participation. Father also had demonstrated “his ability to provide care consistent with the needs of both children,” and that he has a “sufficient social support network that can assist him in crises.”

At this point, the children’s counsel had no objection to the Department’s recommendation that the dependency be terminated and full physical custody be given to Father.

The court found that Mother was not in compliance with the case plan and had made only minimal progress toward alleviating the causes necessitating placement out of the home. It further found, by a preponderance of the evidence, that return of the children to Mother would create a substantial risk of detriment and terminated family reunification services as to Mother, ordered that Father have full physical custody of the children, with supervised visitation for Mother.

Discussion

Mother contends that the juvenile court used the “wrong” standard in heeding the presumption set forth in Welfare and Institutions Code section 364, subdivision (c), that a dependency proceeding “shall” be terminated at the review stage, unless the social worker, the parents, or the dependent child “establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn.” (§ 364, subd. (c); see generally In re Aurora P. (2015) 241 Cal.App.4th 1142, 1154–1156 (Aurora P.).) As the court in Aurora P. explained, termination of the dependency is, at this point in the proceedings, the “ ‘default’ ” outcome unless the party who opposes termination proves, “by a preponderance of the evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn.” (Aurora P., at pp. 1158, 1163.)

Specifically, Mother maintains the juvenile court erroneously found only that the specific conditions that gave rise to the court’s initial jurisdictional determination no longer existed, and that the court should have taken a broader view and considered whether any condition existed at the time of the review hearing that would justify jurisdiction under section 300. In other words, Mother claims the court should have looked more broadly at the circumstances than it did.[3]

Mother bases her assertion of “legal error” on slightly differing statements in In re D.B. (2015) 239 Cal.App.4th 1073, 1085, and In re J.F. (2014) 228 Cal.App.4th 202, 210.

In In re J.F., the mother appealed from an order continuing jurisdiction, despite the department’s recommendation that jurisdiction be terminated. She claimed that since the department had not shown that “ ‘the conditions still exist which would justify initial assumption of jurisdiction under Section 300,’ ” the court was required to heed the department’s recommendation and terminate jurisdiction. (In re J.F., supra, 228 Cal.App.4th at pp. 209–210.) In addressing the mother’s argument, the Court of Appeal first stated “[t]he language of section 364 does not literally require that the precise conditions for assuming jurisdiction under section 300 in the first place still exist—rather that conditions exist that ‘would justify initial assumption of jurisdiction.’ ” (Id., at p. 210.) The court next concluded juvenile courts are empowered to retain jurisdiction notwithstanding a department’s recommendation to terminate jurisdiction “if there is a preponderance of evidence that the conditions are such to justify that retention.” (Ibid.) Otherwise, explained the court, the social welfare department, rather than the juvenile court, would effectively be making the final decision on continued jurisdiction, a result plainly contrary to the language and intent of the statute. (Id. at pp. 211–212.) Turning to the record, the appellate court pointed out that the department’s own report discussed the numerous challenges the mother continued to face and concluded the “ ‘parenting and mental health concerns that brought her to the attention of [the department] and children’s court remain a work in progress.’ ” (Id. at p. 212.) Given this, the court concluded there was “evidence sufficient” to support the juvenile court’s retention of jurisdiction. (Id. at pp. 212–213.)

In In re D.B., the mother also appealed from an order continuing jurisdiction despite the department’s recommendation that jurisdiction be terminated. (In re D.B., supra, 239 Cal.App.4th at pp. 1075–1084.) The Court of Appeal reversed on the ground substantial evidence did not support “the juvenile court’s finding that the conditions justifying initial assumption of jurisdiction still existed.” (Id. at p. 1075.) After noting In re J.F., the court observed that section 364, subdivision (c) “does not simply refer to ‘conditions’ or ‘any conditions’ but states the court shall terminate jurisdiction unless the social worker proves that ‘the conditions still exist which would justify initial assumption of jurisdiction under Section 300.’ ” (In re D.B., at p. 1085.) “By using the phrase ‘the conditions still exist,’ ” said the court, “the Legislature meant the conditions existing at the time of initial assumption of jurisdiction continued to exist at the time of the hearing, not that new conditions have arisen.” “Thus,” the court “believe[d], the better interpretation of section 364(c) is that the court must terminate jurisdiction if the conditions that justified taking jurisdiction in the first place no longer exist.” (In re D.B., at p. 1085.) But, said the court, it did not need to resolve the issue because under either standard, the juvenile court should have terminated dependency jurisdiction. (Ibid.) In fact, it was apparent the juvenile court had been of the view that the conditions underlying the dependency no longer existed, and the only reason the court continued jurisdiction was because, at the review hearing, the father refused to agree to a stay away order. (Ibid.) Pointing out the juvenile court was empowered to issue such an order even if dependency jurisdiction was terminated, the appellate court concluded, the court had plainly erred in continuing jurisdiction. (Id. at pp. 1085–1087.)

Reading In re J.F. and In re D.B. in their entirety, we do not believe there is as profound a difference in their approach as Mother maintains. Section 300 petitions often identify fundamental shortcomings in, or impediments to, parenting skills, such as domestic violence, alcohol or drug abuse, and undiagnosed and/or untreated mental health issues. Petitions also generally allege specific acts manifesting these basic problems. In our view, the showing contemplated by section 364 goes to whether the fundamental problems identified in the petition, such as domestic violence or alcohol or drug abuse, “still exist” or whether “those conditions” are “likely to exist if supervision is withdrawn.” (§ 364, subd. (c).) In In re J.F., for example, there was ample evidence based on the department’s own report, that the mother was still struggling with the same “ ‘parenting and mental health’ ” issues that had “ ‘brought her to the attention of’ ” the department in the first place. (In re J.F., supra, 228 Cal.App.4th at p. 212.) In In re D.B., in contrast, the only reason the juvenile court continued jurisdiction was that at the final review hearing the father had objected to a restraining order, a single act long after the assumption of jurisdiction; in fact, the juvenile court otherwise agreed there was no basis for continued jurisdiction. (In re D.B., supra, 239 Cal.App.4th at pp. 1085–1086.)

In any case, we need not resolve any distinction between In re J.F. and In re D.B. as to the scope of the inquiry under section 364. Even had the juvenile court taken a “broader” view, as Mother claims it should have, it is clear from the record, the court would have reached the same result and terminated dependency jurisdiction.[4] As the Department points out, Mother is rearguing matters that were squarely addressed during the dependency proceeding, and the juvenile court plainly rejected her claim that the evidence indicated the children would not be safe with Father. On appeal, she has not come close to showing, as Aurora P. sets forth, that the evidence “ ‘compels’ ” a finding in her favor as a matter of law. (Aurora P., supra, 241 Cal.App.4th at p. 1163.)

Mother focuses on three incidents of claimed abuse of the children by Father—forcing the children to eat until one of them threw up, hitting them with a “backscratcher,” and requiring one of the children to do “ ‘wall sits.’ ” While she insists this compels the conclusion the children are at risk and supports section 300 jurisdiction, these incidents were each investigated by the Department and found to be either unfounded or not of sufficient consequence to warrant concern.

The Department investigated the accusation that Father made A.W. eat until he vomited. However, after speaking with both the children and Father, the social worker determined that Father had not forced A.W. to eat until getting sick. Rather, Father simply had a rule to “ ‘finish what is in front of you.’ ”

The Department also investigated the incident involving the backscratcher. Father acknowledged he had used the backscratcher as a means to get the boys’ attention, after they refused to listen to him when he told them to clean their room. He was “ ‘horrified’ ” when he injured D.W. and had not since used the backscratcher. After interviewing Father and the two boys, the Department concluded the injury was “unintentional and not serious,” “was the exception and not the norm in the household,” and closed the investigation as “inconclusive.”

The Department also looked into the incident involving the use of “ ‘wall sits’ ” as a disciplinary measure. Father acknowledged he had tried utilizing wall sits. But he concluded “this type of discipline did not work.” He also said the wall sit discipline had lasted less than five minutes and he had not tried it again. After speaking with Father and the boys, the Department closed the investigation as “evaluated out.”

That Mother continues to dispute the adequacy of the Department’s investigations and its conclusions, is not tantamount to an evidentiary showing that “compels” contrary conclusions.

In addition to continuing to argue over the significance of the Father’s interaction with the children, Mother also points to evidence of domestic violence between Mother and Father in 2011. Again, the history of this couple was known to the Department. And, while Father admitted these incidents, the salient point was that there was no evidence he continued to engage in any such conduct.

Mother also points to Dr. Renouf’s psychological evaluation of her, following her gruesome Father’s Day “gift” to Father of the severed chipmunk head (which she told A.W. to give to Father), as indicating Father was violent and thus a risk to the children. However, Mother never raised any concerns during the dependency proceedings about disclosures she made during her psychological evaluation. She therefore cannot now claim for the first time on appeal that the juvenile court erred in failing to consider these disclosures in granting physical custody to Father. In any case, Dr. Renouf’s evaluation was before the juvenile court. There also is no indication in his evaluation of any continued domestic violence by Father.

Mother additionally claims the “ ‘sexualized’ ” behavior and continence problems of D.W. must be some indication that Father cannot provide a safe environment. Again, Mother never raised any concern about these behaviors during the dependency proceedings, let alone as an indicator of risk posed by Father. She therefore cannot now claim for the first time on appeal that the juvenile court erred in failing to consider it in granting physical custody to Father. Moreover, this evidence was also before the juvenile court. In addition, it was Father, not Mother, who brought these problems to the attention of the Department and the court, stating they had started before the dependency commenced, at about the time Mother broke up with her then-boyfriend and began her relationship with her fiancé. The Department, in turn, reported that D.W. was receiving counseling through the Yurok Tribe. In short, the evidence of D.W.’s unfortunate behavior does not besmirch Father and certainly does not compel a determination the dependency should have been continued.

Finally, Mother maintains the evidence was overwhelming that if she did not continue to receive services, she was likely to expose the children to harm. She cites no authority, however, that a court must continue dependency jurisdiction where one parent has complied with his or her case plan and can provide a safe environment for the children, but the other parent has not done so and therefore cannot be awarded physical custody. The dependency law imposes no such limitation on the ability of the court to close a dependency case. Rather, the purpose of the law is to ensure that children, are placed in a safe environment, and the juvenile court determined that has been accomplished here by awarding full physical custody to Father, with supervised visitation for Mother. (See In re Pedro Z. (2010) 190 Cal.App.4th 12, 20 [“[t]he goal of dependency proceedings” is “to reunify a child with at least one parent”].)

Disposition

The orders terminating reunification services and terminating dependency jurisdiction are affirmed.

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Banke, J.

We concur:

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Humes, P.J.

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Dondero, J.