In re K.A.L. CA2/1 ( 2021 )

Filed 5/25/21 In re K.A.L. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
In re K.A.L., a Person Coming B308436
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP00514)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
L.A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephen C. Marpet, Temporary Judge.
Affirmed.
Jamie A. Moran, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane Kwon, Principal Deputy
County Counsel, for Plaintiff and Respondent.
____________________
The Los Angeles County Department of Children and
Family Services (DCFS) asserted dependency jurisdiction
pursuant to Welfare and Institutions Code section 300,
subdivisions (a), (b)(1), and (j)1 over 13-day old K.A.L. because
K.A.L.’s mother (mother) had abused narcotics, K.A.L.’s father
(father) allowed mother to have unlimited access to the child, and
mother and father had a history of violent altercations. The
juvenile court sustained the petition in its entirety, declared
K.A.L. a dependent of the court, removed K.A.L. from parental
custody, ordered DCFS to provide family reunification services to
K.A.L.’s parents, and required mother and father to complete
their respective case plans. Regarding father’s case plan, the
juvenile court ordered father to attend a 26-week domestic
violence course, take a parenting class, participate in conjoint
counseling with mother and in individual counseling, and
complete 24 anger management classes.
Later during the dependency proceedings, mother accused
father of striking her repeatedly, causing her to suffer a broken
nose and fractured jaw and multiple bruises on her body. Father
denied the allegations, claimed mother assaulted him, and
asserted mother sustained her injuries when he pushed her off
him. Mother obtained a restraining order against father. At a
1 Undesignated statutory citations are to the Welfare and
Institutions Code.
2
status review hearing held nearly a year after the juvenile court
issued its dispositional rulings, the court found that the parents
had not made substantial progress in their case plans, and
terminated father’s family reunification services, but continued to
offer reunification services to mother and to allow father
monitored visits with K.A.L.
On appeal, father argues the juvenile court abused its
discretion in terminating his reunification services because he
will continue to have contact with K.A.L. and he completed part
of his case plan. We disagree.
The fact that father can visit K.A.L., by itself, does not
establish the juvenile court erred. Furthermore, the juvenile
court reasonably could have concluded father’s assault on mother
demonstrated that his continued participation in domestic
violence and anger management courses would have been futile.
The court also rationally could have found that because father
perpetrated this act of violence against mother, he could no
longer satisfy the conjoint counseling requirement of his case
plan. Although father completed a parenting course, the record
supports the juvenile court’s finding that father did not make
substantial progress on other aspects of his case plan.
Additionally, in the months preceding the status review hearing,
father barely visited K.A.L., suggesting he no longer had a
genuine interest in taking the steps necessary to reunite safely
with K.A.L. Finding no abuse of discretion, we affirm the
juvenile court’s order terminating father’s reunification services.
3
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts relevant to this appeal.
On September 12, 2019, DCFS filed a juvenile dependency
petition alleging jurisdiction under section 300, subdivisions (a),
(b)(1), and (j) over K.A.L., who was then 13 days old and was
being detained in foster care. The petition contained four counts:
counts a-1, b-1, b-2, and j-1.
Counts a-1 and b-2 of the petition alleged the following:
“[K.A.L.’s] mother . . . and father . . . have a history of engaging in
violent altercations. In 2019, the father grabbed the mother’s
hair and pulled the mother’s body from a vehicle when the
mother was pregnant with the child. On prior occasions, the
father struck the mother in the presence of the child’s sibling,
[R.K.L.] . . . . The father demonstrates agitated and erratic
behaviors. The child’s mother . . . failed to protect the child and
the mother allowed the father to have unlimited access to the
child’s sibling, [R.K.L.] Such violent conduct on the part of the
father against the mother and the mother’s failure to protect the
child’s sibling, [R.K.L.,] endangers the child’s physical health and
safety and places the child at risk of serious physical harm,
damage, danger and failure to protect.”
Counts b-1 and j-1 averred: “[K.A.L.’s] mother . . . has a
history of substance abuse including methamphetamine and
marijuana and is a current abuser of methamphetamine which
renders the mother incapable of providing regular care of the
child. The child’s father . . . failed to take action to protect the
child when the father knew of the mother’s substance abuse. The
child is of such a young age as to require constant care and
supervision, the mother’s substance abuse interferes with
providing regular care and supervision of the child. The child’s
4
sibling[s], [K.A.B.C.] . . . and [M.P.M.L.,] . . . are former
dependents of the Juvenile Court and received Permanent
Placement services due to the mother’s substance abuse. The
child’s sibling, [R.K.L.,] . . . is a current dependent of the Juvenile
Court due to the mother’s substance abuse. Such substance
abuse by the mother and the father’s failure to protect the child
endangers the child’s physical health and safety and places the
child at risk of serious physical harm, damage and failure to
protect.”
The juvenile court held a detention hearing on
September 13, 2019. The court declared father to be K.A.L.’s
presumed father, found a prima facie case that K.A.L. is a person
described by section 300, detained K.A.L. from mother and
father, and ordered DCFS to provide family reunification services
to mother and father.
On November 18, 2019, the juvenile court held an
adjudication and disposition hearing. The court sustained the
entirety of the petition, declared K.A.L. a dependent of the court,
removed her from mother’s and father’s custody, and ordered
DCFS to provide family reunification services to K.A.L.’s
parents.2 Father’s case plan obligated him to complete a 26-week
2 The reporter’s transcript shows the court ruled that “the
entire petition [was] sustained as pled,” whereas one passage of
the minute order for the hearing suggests the court sustained
only the counts alleged under section 300, subdivisions (a) and
(b)(1). Conversely, another portion of the minute order provides
that “[t]he court . . . will sustain the 300 Petition as pled.” To the
extent there is any inconsistency between the reporter’s
transcript and the minute order, we assume the reporter’s
transcript is accurate. (See In re Hannah D. (2017) 9 Cal.App.5th
662, 680 & fn. 14.)
5
domestic violence class and a parenting class, participate in
conjoint counseling with mother and in individual counseling,
and comply with any criminal court orders and conditions of
probation.3 The court authorized mother and father to have
monitored visits with K.A.L.
On May 5, 2020, DCFS filed a status review report. In the
report, DCFS stated that father had completed a 12-hour
parenting course.
On June 11, 2020, DCFS filed an interim review report.4
Father’s anger management program informed DCFS that it had
dismissed father from the program on January 15, 2020 because
father failed to attend classes for more than 30 days. An
employee of the anger management program stated that because
it is “a referral-based program, . . . father would need to go back
to Criminal Court and request a reenrollment form in order to
reenroll into [the] Anger Management classes.” Father had
participated in at least some of mother’s weekly videocalls with
K.A.L., although DCFS did not specify in its June 11, 2020
interim review report the precise frequency of father’s virtual
visits with the child. In addition, the parents’ therapist reported
3 The jurisdiction/disposition report indicates that father
was convicted of battery on August 19, 2019 and was placed on
summary probation for 36 months. According to the report,
father disclosed that the battery conviction arose out of an
altercation father had with another man, and that the criminal
court had ordered him to complete 24 anger management classes
and nine days of community labor.
4 The remainder of this paragraph summarizes relevant
aspects of the June 11, 2020 interim review report.
6
on June 4, 2020 that mother and father had completed
five conjoint counseling sessions.
On August 20, 2020, DCFS filed a last minute information
report.5 Mother told DCFS that on August 15, 2020, while she
and father were visiting a place at which they had lived when
they were homeless, mother grabbed father’s arm and asked to
leave the area, and father responded by striking mother several
times. Mother claimed that as she ran away from father, mother
saw that father was pointing a gun at her. Mother asserted that
when she later arrived at her apartment, father was waiting
outside, and he subsequently followed her into the apartment and
“started hitting her and arguing with her.” Mother maintained
that father fled the scene, and she sustained “a broken nose and
fractures on her jaw and multiple bruises all over her body.”
Mother claimed that she changed the lock to the front door of the
apartment where she resided at that time, was “taking father’s
name out of her leasing contract,” and had obtained a restraining
order against father that was scheduled to expire on
August 21, 2020.
On August 27, 2020, mother filed a request for a temporary
restraining order protecting her from father because of the
August 15, 2020 incident. Later that day, a temporary
restraining order was issued that expired on September 2, 2020.
On September 2, 2020, the juvenile court issued a
temporary restraining order to protect mother, which was
scheduled to expire on October 23, 2020.
5 The remainder of this paragraph summarizes relevant
aspects of the August 20, 2020 last minute information report.
7
On October 13, 2020, DCFS filed an interim review report.6
Father’s domestic violence program reported that as of
September 24, 2020, he had completed 10 out of 26 weekly
classes. “Due to Domestic Violence between the parents and a
[then-]current restraining order, they [were] not going to attend
any Conjoint counseling.” Father’s individual therapist reported
father had enrolled in mental health services on July 14, 2020,
and, as of September 29, 2020, father had completed nine
individual therapy sessions. On September 28, 2020, father told
DCFS that he had not yet been able to reenroll in anger
management courses because the next criminal court hearing at
which he could request reinstatement in the program had been
continued. From July 2020 to September 2020, father had only
four visits with K.A.L.: a 31-minute videocall on July 17, 2020;
an 8-minute videocall on July 26, 2020; a 26-minute video call on
August 3, 2020; and a 4-minute videocall on August 26, 2020.
Father told the agency that during the August 15, 2020
incident, mother repeatedly hit father on the back of his head
with her fist and a shovel.7 Father further claimed that when he
pushed mother off of him, she tripped on a pile of clothes and hit
her face on a crib.
6 The remainder of this paragraph and the following
paragraph summarize relevant aspects of the October 13, 2020
interim review report.
7 Although the October 13, 2020 interim review report
stated that father claimed this incident occurred on
August 14, 2020, the parties tacitly agree father had intended to
refer to the August 15, 2020 incident.
8
On October 23, 2020, the juvenile court held a status
review hearing pursuant to section 366.21, subdivision (e).8 The
juvenile court found by clear and convincing evidence that
returning K.A.L. to the physical custody of her parents would
create a substantial risk of detriment to the child, and ordered
that K.A.L. remain in foster care. The court also found that the
extent of the parents’ progress towards alleviating or mitigating
the causes necessitating out-of-home placement had not been
substantial. The court terminated father’s family reunification
services,9 but ordered DCFS to continue to offer reunification
services to mother until the hearing scheduled for
April 23, 2021.10 The court also extended the expiration of the
restraining order protecting mother to October 23, 2022.
On October 26, 2020, father timely appealed the juvenile
court’s October 23, 2020 findings and orders.
8 Although the juvenile court initially scheduled this
hearing for May 18, 2020, the court continued the hearing to
October 23, 2020 in part because of the COVID-19 pandemic.
9 The juvenile court did not make an explicit finding that
continuing to provide father with reunification services was not
in K.A.L.’s best interest.
10 The juvenile court clarified that even after it terminated
father’s reunification services, he was still entitled to monitored
visits with K.A.L.
Additionally, we sua sponte take judicial notice of the
lower court’s April 23, 2021 order that terminated mother’s
reunification services and scheduled a section 366.26 hearing.
(See Evid. Code §§ 452, subd. (d), 459.) That order is not before
us in this appeal.
9
DISCUSSION
“[S]ection 366.21, subdivision (e) provides no express
limitation on the court’s authority to terminate reunification
services to a parent at a six-month review hearing where the
minor is under the age of three and the parent has received or
been offered six months of services, regardless of whether the
court sets a section 366.26 hearing or offers further services for
the other parent. Under these circumstances, the juvenile court
retains the discretion to terminate the offer of services to one
parent.” (In re Jesse W. (2007) 157 Cal.App.4th 49, 65 (Jesse W.);
see also id. at p. 58 [“[A]t a six-month review hearing, the
juvenile court retains the discretion to terminate the offer of
services to one parent even if the other parent is receiving
services and no section 366.26 hearing is set.”]; § 366.21,
subd. (e)(8) [“If the child is not returned to his or her parent or
legal guardian, . . . . [t]he court shall order that [the] services
[offered to the parent] be initiated, continued, or terminated.”];
In re D.N. (2020) 56 Cal.App.5th 741, 758–759 [noting that at a
section 366.26 hearing, the juvenile court decides whether to
terminate parental rights].)
“Where, as here, the court continues one parent’s services
and does not set a section 366.26 hearing, . . . . [t]he [other]
parent seeking additional services has the burden of showing
such an order would serve the child’s best interests. [Citations.]
In exercising its discretion, the court has ‘the ability to evaluate
whether the parent will utilize additional services and whether
those services would ultimately inure to the benefit of the minor.’
[Citation.]” (See In re Katelynn Y. (2012) 209 Cal.App.4th 871,
881 (Katelynn Y.), quoting Jesse W., supra, 157 Cal.App.4th at
p. 66.) In conducting this analysis, the lower court may consider
10
the extent to which the parent visited the minor and “avail[ed
himself or] herself of services offered and thus made . . . progress
toward alleviating or mitigating the causes for . . . removal . . . .”
(See Katelynn Y., at p. 881; accord, Jesse W., at p. 66; In re
Alanna A. (2005) 135 Cal.App.4th 555, 565–566 (Alanna A.).)
“We will not disturb the court’s determination [to terminate
reunification services] unless the court has exceeded the limits of
legal discretion by making an arbitrary, capricious or patently
absurd determination. When two or more inferences reasonably
can be deduced from the facts, we have no authority to reweigh
the evidence or substitute our judgment for that of the juvenile
court.”11 (See Katelynn Y., supra, 209 Cal.App.4th at p. 881.)
11 DCFS argues we should review whether the record
contains substantial evidence that there was no substantial
probability K.A.L. could have been returned to father’s custody
if he had continued to receive reunification services. DCFS relies
on J.H. v. Superior Court (2018) 20 Cal.App.5th 530, 533, 535
[juvenile court set a section 366.26 hearing after terminating a
father’s reunification services at the 12-month review hearing],
and Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018,
1022, 1028, 1031–1032 (Fabian L.) [substantial evidence
supported terminating the incarcerated father’s services at the
six-month hearing], for this proposition. We need not decide
whether DCFS has identified the correct standard of review.
First, regardless of whether we review the juvenile court’s
decision for abuse of discretion or substantial evidence, “ ‘we
review the record in the light most favorable to the court’s
determinations[,] . . . draw all reasonable inferences from the
evidence to support the findings and orders[,] [citation] . . . . [and]
“do not reweigh the evidence or exercise independent
judgment . . . .” ’ ” (See Fabian L., supra, 214 Cal.App.4th at
p. 1028; accord, Katelynn Y., supra, 209 Cal.App.4th at p. 881.)
Second, father acknowledges “that he has not argued the juvenile
11
We conclude that father failed to establish the juvenile court
abused its discretion.
Father contends that “providing father with additional
services aimed at addressing the protective issues . . . is in
[K.A.L.’s] best interests” because “[father] is likely to have
continued contact with [her]” and he “has completed some
portions of his case plan, and wishes to continue to participate.”
(Citing, inter alia, Alanna A., supra, 135 Cal.App.4th at p. 565
[“As a practical matter, . . . where a nonreunifying parent is
likely to have some continued contact with his or her child,
further services to that parent may be in the child’s best
interests,” fn. omitted].) With regard to father’s progress on
his case plan, father points out that he completed 10 of his
26 domestic violence courses and his parenting education
requirement, and that he participated in nine individual
counseling sessions. Father also claims “[h]e was no longer
participating in conjoint counseling with mother, due to her
allegations of recent domestic violence, and the issuance of the
TRO.” He also blames “repeated continuances of his criminal
court matter” for his failure to obtain “a new referral for [an]
anger management” program.
The mere fact that father may have monitored visits with
K.A.L. does not establish the juvenile court erred in terminating
court erred in failing to find there was a substantial probability of
return to his custody if reunification services were continued
beyond the first six[-]month review period.” Thus, even under
DCFS’s proposed standard of review, we would reject father’s
claim of error. (See In re J.F. (2019) 39 Cal.App.5th 70, 79 (J.F.)
[“The juvenile court’s orders are ‘presumed to be correct, and it is
appellant’s burden to affirmatively show error.’ [Citations.]”].)
12
his reunification services. The juvenile court was tasked with
exercising its discretion to determine “ ‘whether the parent will
utilize additional services’ ” that “ ‘would ultimately inure to the
benefit of the minor[,]’ ” (see Katelynn Y., 209 Cal.App.4th at
p. 881), or whether the further services would instead be
“fruitless” or “futile” (see Alanna A., supra, 135 Cal.App.4th at
p. 566; Jesse W., supra, 157 Cal.App.4th at p. 66). Although the
juvenile court did not make an express finding of futility, the
record supports such an implied finding, and that the finding
would not have been “arbitrary, capricious or patently absurd.”
(Katelynn Y., at p. 881.)
The juvenile court was entitled to credit mother’s claim
that on August 15, 2020, father threatened mother with a gun
and struck her several times, causing her to sustain a broken
nose, a jaw fracture, and multiple bruises all over her body. (See
Katelynn Y., supra, 209 Cal.App.4th at p. 881.) This evidence
supports the inference that father’s prior participation in
domestic violence and anger management courses had been
fruitless, and that allowing him to continue to attend such classes
would not eliminate the risk that he would commit future acts of
violence against mother. (See In re R.C. (2012) 210 Cal.App.4th
930, 942 [“ ‘ “[P]ast violent behavior in a relationship is ‘the best
predictor of future violence.’ ” ’ ”].)
Furthermore, father admits that he was unable to
participate in conjoint counseling sessions with mother because of
this claim of domestic violence and the resulting temporary
restraining order. The juvenile court reasonably could have
concluded that it was father’s own violent behavior that
prevented, and would prevent, him from making progress on
these counseling sessions before expiration of the operative
13
restraining order on October 23, 2022.12 Put differently, the
restraining order resulting from father’s misconduct would have
prevented him from participating in conjoint counseling with
mother during the extended reunification period, which was
scheduled to end on April 23, 2021.13 Thus, continuing to offer
conjoint counseling to father would have been a pointless
endeavor.
Notwithstanding father’s completion of his parenting
program, the juvenile court reasonably could have found that
father had not been diligent in other aspects of his case plan.
Father did not enroll in individual counseling until nearly eight
months after the court approved his case plan at the disposition
hearing, thereby considerably shortening the time available for
him to derive therapeutic benefit from those counseling sessions.
Further, on September 24, 2020—approximately 44 weeks after
the juvenile court ordered father to complete a 26-week domestic
violence course—father had completed only 10 weekly sessions.14
12 The currently operative two-year restraining order was
issued on October 23, 2020 and expires on October 23, 2022. As
noted in the Factual and Procedural Background, even before the
juvenile court issued this two-year restraining order, a series of
temporary restraining orders issued in August and
September 2020 prevented father from participating in conjoint
counseling sessions with mother.
13 As set forth in our Factual and Procedural Background,
the juvenile court extended mother’s reunification services to the
next hearing that was scheduled for April 23, 2021.
14 In the May 5, 2020 status review report, DCFS
indicated it needed to submit a “request[ ] for special payment for
financial assistance for . . . father” before he could begin his
domestic violence courses, and that the request was approved on
14
Although father informed DCFS on September 28, 2020 that he
was unable to obtain a referral from the criminal court to reenroll
in the anger management program because the criminal court
had continued the next hearing in that matter several times,
father would not have needed to reenroll in the program if the
program had not dismissed him in January 2020 for
nonattendance.
Additionally, although the June 11, 2020 interim review
report indicated father had participated in at least some of
mother’s weekly videocalls with K.A.L., father visited K.A.L. via
a videocall on only four occasions between July 2020 and
September 2020, and his most recent call with her lasted only
four minutes. Drawing all reasonable inferences in favor of the
order terminating father’s services, we conclude the juvenile
court could reasonably have found that father had lost interest in
taking the steps necessary to reunify safely with his daughter.
(See Katelynn Y., supra, 209 Cal.App.4th at p. 881.)
For the foregoing reasons, we find the juvenile court did not
err in terminating father’s reunification services.
an unspecified date. Even if that request had not been approved
prior to father’s April 27, 2020 intake appointment for the
program, it would appear he could have completed more than
10 weekly classes had he been diligent, given that there were
21 weeks between April 27, 2020 and September 24, 2020.
15
DISPOSITION
The juvenile court’s October 23, 2020 order terminating
father’s family reunification services is affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
16