Filed 12/20/18 In re T.B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed.

Karen J. Dodd, under appointment by the Court of Appeal, for Appellant.

Elena S. Min, under appointment by the Court of Appeal, for Defendant and Respondent.

Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Special Counsel for Plaintiff and Respondent.

I.

INTRODUCTION

Appellant, T.B., a minor, age 14, appeals from the judgment entered after the dependency court ordered reunification services for defendant and respondent, V.B. (Father). At the jurisdictional and dispositional hearing, the court found that Father had physically abused T.B., and found true the allegations of risk of serious physical harm under Welfare and Institutions Code section 300, subdivisions (a) and (b).^[1]

T.B. argues that the court failed to apply the correct standard of review in denying his request to bypass reunification services. Additionally, T.B. argues that the court abused its discretion by relying on only one factor to order reunification services for Father. We find that T.B. forfeited his argument to the court using the incorrect standard of review regarding bypass and reunification services by not raising it in the lower court. We further conclude that even reaching the merits of T.B.’s claim, the court did not abuse its discretion. We therefore affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

1. Circumstances Leading to Minor’s Detention

T.B. was born in 2004 and is now 14 years old. When T.B. was four years old, his mother, F.B. (Mother), who had heart problems, passed away from an unknown cause. Neither T.B. nor Father received counseling to address their grief. After losing Mother, T.B. continued to live with Father, whom he has lived with his entire life.

In 2013 or 2014, Father began an on-and-off relationship with his girlfriend, A.C., who has two children, E.C. and H.C., from a previous relationship. At some point, A.C. and her children moved in with T.B. and Father. The family lived together in Los Angeles until about 2014. They then moved to Las Vegas for a few years before moving to Barstow. T.B. was sad about losing Mother. Around the time Father began his relationship with A.C., T.B. started exhibiting behavioral problems, such as stealing, destroying property and getting in trouble at school.

2. Plaintiff and Respondent, San Bernardino County Children and Family Services (CFS), CFS Referrals

On September 20, 2017, the family resided in Barstow. CFS received a referral from school personnel who observed A.C. yelling and cursing at T.B. A.C. was also seen punching T.B. in his head with her fist when she learned that he was failing a class at school. CFS interviewed T.B. as a result of the incident. T.B. did not report that any abuse was occurring at his home. T.B. later told a social worker that he had lied.

On October 2, 2017, CFS responded to an immediate response referral. Father and A.C. reported that T.B. had run away to his friend’s home after the school suspended him for breaking a sink in the boy’s bathroom. T.B. had been suspended from school but ran away because he was afraid to go home. When police detained and questioned T.B., he reported that Father drank vodka and Father’s girlfriend, A.C., smoked marijuana. He further told police that both Father and A.C. had previously abused him.

According to T.B., Father had hit him with a wire extension cord on his arms and legs and had punched him in the face to punish him. T.B. also claimed that A.C. would punish him by hitting him with a red rubber sandal. T.B. stated Father had also bent his middle finger back. A social worker inspected T.B.’s finger and it appeared to be swollen. T.B. claimed Father and A.C. had scratches on their faces, arms and necks after they argued. However, T.B. did not observe any actual domestic violence at their home. T.B. told the social worker that he had to wear dirty clothes and was forced to wash his own clothing in a bathtub. He also complained that he was only allowed to eat snacks when he finished his chores.

3. The Petition and Detention Hearing

On October 5, 2017, CFS filed a petition under section 300, subdivisions (a), (b) and (g) alleging: (1) T.B. suffered, or was at substantial risk of suffering, serious physical harm due to the parents’ history of excessive punishment on T.B.; (2) T.B. suffered, or was at substantial risk of suffering, serious physical harm because he was hit by A.C., and Father failed to protect him; (3) T.B. suffered, or was at substantial risk of suffering, serious physical harm because Father had an untreated alcohol abuse problem; (4) T.B. suffered, or was at substantial risk of suffering, serious physical harm because on October 2, 2017, and on prior occasions, T.B. was exposed to domestic violence; and (5) T.B. was left without any provision for support because Father was incarcerated and had not made any arrangements for T.B.’s care while he was incarcerated.

On October 6, 2017, at the detention hearing, the court found there was prima facie evidence establishing the section 300, subdivisions (a), (b) and (g) allegations. The court ordered T.B. placed in foster care but allowed Father limited monitored visitation.

4. The Police and CSF Interviews

During A.C.’s interview, she told the social worker that T.B. was a liar, disrespectful and routinely acted out. A.C. denied physically abusing T.B., withholding food from him, or engaging in domestic violence with Father. A.C. said that she thought Father was too strict with him but he had the best interest of his son at heart. Her children, E.C. and H.C., were also interviewed. They confirmed that Father hit T.B.

Father was also interviewed. Father said that he and T.B. went to theme parks and played basketball and football together. Father believed that he had a good relationship with T.B. Father also stated T.B. had a history of lying and misbehaving at school. Father reported T.B. called himself a “‘gangbanger’” on Instagram and talked to young girls that he would meet online. In Father’s opinion, T.B. was acting out because of the loss of his Mother. Father denied physically abusing T.B., forcing T.B. to wash his own clothes in a bathtub, or exposing T.B. to domestic violence. Father also submitted to an on-demand drug test, which showed negative test results for all substances.

Additionally, T.B. was interviewed. T.B. reported Father would physically punish him by hitting him with a wire extension cord. T.B. further claimed Father punched him in his chest with his fists. T.B. told the social worker that he did not want to return home. Instead, T.B. wanted to live with his friend’s mother. T.B. became tearful when explaining to the social worker that the last time Father had told him that he loved him was when he was eight years old.

5. T.B. Struggled in Out-of-home Placements

Throughout the dependency proceedings, there were no known relatives with whom T.B. could be placed. T.B.’s friend’s mother declined to care for him due to the size of her home.

On October 30, 2017, T.B. underwent a forensic physical examination. The evaluating physician concluded that T.B.’s physical findings and history were consistent with physical abuse. On November 20, 2017, T.B. repeated his allegations of physical abuse during an evidentiary interview with children’s assessment center. He again insisted that he did not want to go back to live with Father.

T.B. struggled in foster care. In December 2017, T.B. was transported to Loma Linda University Behavioral Center and placed on a psychiatric hold because he was having suicidal and homicidal ideations. He was diagnosed with major depressive disorder. T.B. was released two days later and placed at the East Valley Charlee Group Home. On his way back to the group home, T.B. told the social worker that he was “‘homesick.’” While the social worker transported T.B. to the new placement, T.B. was allowed to use the social worker’s cell phone to call Father.

For a while, T.B. was able to remain trouble free in the group home. However, he left his classroom without permission because he felt misunderstood. On January 27, 2018, Father participated in a telephone visit with T.B. The social worker reported that T.B.’s in-person visit with Father went well, but Father had encouraged T.B. to lie to the social worker so that T.B. could return back home sooner. During the visit, T.B. became upset. T.B.’s visits with Father were suspended for 30 days and his telephone contacts with Father were suspended indefinitely until the staff could stabilize him and determine what was triggering T.B.’s anger.

Shortly thereafter, T.B.’s behavioral problems escalated. On February 5, 2018, T.B. was suspended from school for injuring another student who had to be hospitalized for his injuries. T.B. also attempted to steal clippers and e-cigarettes and repeatedly threatened others. He hit a female staff member in the face with a basketball. He also tried to assault peers and staff. After barricading himself in a room in the group home, T.B. damaged property by putting holes in walls and destroying doors and dressers. Given T.B.’s bad behavior and threats, the group home requested that T.B. be removed from the home the following day.

T.B. was removed and given a new placement. In mid-February 2018, he again expressed suicidal ideations while at the new group home. T.B. then climbed to the top of the home and staff was unable to talk him down. After police were called in, T.B. came down from the roof on his own volition. He was then placed on an involuntary psychiatric 14-day hold.

6. The Jurisdictional and Dispositional Hearing

On February 26, 2018, the court held a contested jurisdictional and dispositional hearing. The court admitted into evidence, the detention report, the jurisdictional and dispositional report, the addendum reports, an additional information report, a declaration of due diligence, and the Children’s Assessment Center report. The court found that V.B. was T.B.’s presumed Father. The court further found true the allegations of risk of serious physical harm to T.B. under section 300, subdivisions (a) and (b), but dismissed the subdivision (g) allegation.

As to the disposition, CFS recommended that Father receive reunification services because Mother was deceased, there were no other relatives identified for possible placement, and reunification with Father was T.B.’s only chance to maintain a familial bond. However, T.B.’s counsel requested the court bypass reunification services under section 361.5, subdivision (b)(6), contending T.B. did not want to live with Father and had been subjected to severe abuse.

The court found that Father had not complied with initial reunification services ordered and had not made progress in alleviating the underlying reasons for removal. However, the court concluded that additional reunification services for Father was in T.B.’s best interest. The court also stated that T.B.’s visits with Father were to take place in a therapeutic setting and were contingent upon Father’s compliance with his reunification plan and upon T.B.’s progress in therapy.

T.B. filed a notice of appeal challenging the court’s order granting Father reunification services.

III.

DISCUSSION

1. Forfeiture

T.B. argues that the dependency court should have applied the factors articulated in In re Ethan N. (2004) 122 Cal.App.4th 55 in evaluating his bypass request under section 361.5, subdivision (b)(6). The factors are: (1) a parent’s current efforts and fitness as well as the parent’s history; (2) the gravity of the problem that led to the dependency; (3) the strength of the bonds between the child and the parent; and (4) the child’s need for stability and continuity. (In re Ethan N., supra, at pp. 66-67; see also In re William B. (2008) 163 Cal.App.4th 1220, 1228.)

We conclude T.B. forfeited review by not raising this claim directly in the court during the dependency proceedings. An appellate court ordinarily does not consider an erroneous ruling in connection with relief sought unless it was asserted first in the trial court. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339; In re Jaime R. (2001) 90 Cal.App.4th 766, 772.) Nonetheless, we will address T.B.’s claim on the merits.

2. Abuse of Discretion

A dependency court has broad discretion to determine whether reunification services would be in a child’s best interest and abuses its discretion only when its decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. (In re G.L. (2014) 222 Cal.App.4th 1153, 1164-1165; In re Molly T. (2018) 27 Cal.App.5th 538, 547-548.) “[A] court’s exercise of discretion will not be disturbed on appeal, unless we find that no judge could have reasonably made its decision, given all of the evidence, viewed most favorably in support of the dependency court’s action.” (In re Molly T., supra, at pp. 547-548.)

T.B. argues that the dependency court abused its discretion in ordering additional reunification services for Father. We disagree. As a general rule, when a child is removed from parental custody under the dependency laws, the dependency court is required to provide reunification services to “the child and the child’s mother and statutorily presumed father. . . .” (§ 361.5, subd. (a); In re Ethan C. (2012) 54 Cal.4th 610, 626.) However, subdivision (b) of section 361.5 exempts from ordering reunification services to those parents who are unlikely to benefit from such services or for whom reunification efforts are likely to be fruitless. (In re Joshua M. (1998) 66 Cal.App.4th 458, 470, 474; see In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478; In re G.L., supra, 222 Cal.App.4th at pp. 1163-1164.)

Subdivision (b) of section 361.5 authorizes denial of reunification services under several specific circumstances, referred to as “‘bypass’” exceptions. (Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 821.) The policy, however, when dependency proceedings are commenced, is to preserve family relationships, if possible. Generally, the dependency court is required to order reunification services unless a statutory exception applies. (In re K.C. (2011) 52 Cal.4th 231, 236-237.)

T.B.’s counsel invoked the provisions of section 361.5, subdivision (b)(6) and argued that reunification services should be denied under the bypass provision based on Father’s severe physical abuse of T.B. Under section 361.5, subdivision (b)(6), the court can bypass reunification services when the minor has suffered “infliction of severe physical harm” and the court makes a factual finding that “it would not benefit the child to pursue reunification services with the offending parent or guardian.”

Section 361.5, subdivision (b)(6)(C) defines infliction of severe physical harm as including, but not limited to, “deliberate and serious injury inflicted to or on a child’s body . . . by an act or omission of the parent or guardian, or of another individual or animal with the consent of the parent or guardian . . . .”

When section 361.5, subdivision (b)(6) applies, the court lacks the authority to order services unless it expressly makes a best interests finding by the requisite standard of proof. (In re A.M. (2013) 217 Cal.App.4th 1067, 1075.) Here, the dependency court found that it would be in T.B.’s best interest for Father to receive reunification services. An appellate court “cannot reverse the juvenile court’s determination, reflected in the dispositional order, of what would best serve the child’s interest, absent an abuse of discretion.” (In re Ethan N., supra,122 Cal.App.4th at pp. 64-65, citing In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)

The evidence was insufficient to support a finding of severe physical abuse under section 361.5, subdivision (b)(6). Unless a statutory exception applies, the court must order reunification services.

T.B. nonetheless argues that the court abused its discretion in ordering reunification services for Father because it improperly focused on T.B. not having a mother. But this was not the sole factor the court relied upon in determining that ordering reunification services for Father was in T.B.’s best interest. The court acknowledged that Mother was deceased, that there were other family members noted to live in the household, and there were no relatives eligible for T.B.’s placement. The court also acknowledged that Father was in denial of T.B.’s physical abuse. Weighing these factors, the court found that it was in T.B.’s best interest to see if Father and T.B. could reunify.

“The concept of a child’s best interest ‘is an elusive guideline that belies rigid definition. Its purpose is to maximize a child’s opportunity to develop into a stable, well-adjusted adult.’” (In re Ethan N., supra, 122 Cal.App.4th at p. 66.) “If the evidence suggests that despite a parent’s substantial history of misconduct . . . there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so.” (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.)

We conclude the court did not abuse its discretion in ordering reunification services for Father. T.B. was a teenager who had spent his entire life with Father. This is T.B.’s first detention and T.B. and Father have a long-standing relationship and familial bond. Indeed, T.B. reached out to Father when he called him using the social worker’s cell phone and said he was homesick after removal. The strength of the bonds between a dependent child and parent and caretakers is a relevant factor in determining whether reunification is in the child’s best interest. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) Furthermore, T.B. had not bonded with his other caregivers. T.B. was removed from foster home placements after having conflicts with other males in the homes, and after T.B. expressed suicidal and homicidal ideations.

Because the record demonstrates that T.B. had a long-standing bond with Father, and reunification with Father was T.B.’s only real opportunity for stability and continuity, the dependency court did not abuse its discretion in ordering reunification services for Father.

IV.

DISPOSTION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

RAPHAEL

J.