In re W.C. CA2/3 ( 2021 )

Filed 5/26/21 In re W.C. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re W.C. et al., Persons Coming B309129
Under the Juvenile Court Law.
_____________________________________
DEPARTMENT OF CHILDREN AND (Los Angeles County
FAMILY SERVICES, Super. Ct. No.
20CCJP05003A,B,C)
Plaintiff and Respondent,
v.
FRANCISCO C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Julie Fox Blackshaw, Judge. Reversed in part
with directions.
Gina Zaragoza, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, Acting County Counsel, Kim
Nemoy, Assistant County Counsel, and Kimberly Roura, Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
Francisco C. (father) appeals from a dispositional order of
the juvenile court that requires him to participate in an anger
management program as a condition of reunifying with his three
children. Father contends that there was no evidence before the
juvenile court that he had difficulty controlling his anger, and
thus the requirement to complete an anger management program
was an abuse of the juvenile court’s discretion. We agree with
father that the order to complete an anger management program
is not supported by the evidence, and thus we will strike that
portion of the dispositional order.
FACTUAL AND PROCEDURAL BACKGROUND
Father and Rosario L. (mother) have three children
together: Wilmer C. (born in May 2014), Luisa C. (born in
July 2018), and Yareli C. (born in October 2019). The parents
met and married in Guatemala. In 2019, the family attempted to
enter the United States; mother and the children were able to
enter, but father was deported. Father has been living in
Guatemala since his deportation.
A. Detention
In September 2020, the Los Angeles County Department of
Children and Family Services (DCFS) received a report that
mother had hit six-year-old Wilmer on the face with a hanger,
causing linear marks on the side of his face and a lump on the
side of his head. According to the caller, mother hit Wilmer every
two or three days, causing him to sustain marks and bruises.
Police officers went to the family’s home on September 18,
2020 and arrested mother for corporal injury to a child. A social
worker who accompanied the officers observed that Wilmer had
what appeared to be two separate injuries—a welt and bruising
on his face, and a scratch and welt on his forearm and bicep. No
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injuries were apparent on two-year-old Luisa or 10-month-old
Yareli. The children were removed from mother and placed in
foster care.
The family lived in a one-bedroom residence, which they
shared with the maternal aunt, uncle, and cousins. The maternal
aunt said mother had struck Wilmer on the face with a hanger
after learning he had taken $250 from her wallet and then
misplaced the money. Mother grabbed a plastic hanger and
attempted to hit Wilmer on the back, but ended up striking his
face when he moved. The aunt described mother as very loving
with the children, and said she had never before observed mother
hit any of the children with an object. The aunt reported mother
had been overwhelmed since father was deported to Guatemala
about a year earlier.
In September 2020, DCFS filed a petition alleging that the
children were juvenile court dependents pursuant to Welfare and
Institutions Code1 section 300, subdivisions (a), (b), and (j)
because mother physically abused six-year-old Wilmer “by
grabbing the child’s arm and striking the child’s face with a
hanger[,] inflicting multiple marks and bruises to the right side
of the child’s face [and] scratch and welt mark to the child’s
forearm and right bicep area.” Mother’s physical abuse of Wilmer
was alleged to place all three children at risk of physical harm.
At the September 25, 2020 detention hearing, the juvenile
court ordered the children detained from mother, finding that
their safety could not be ensured in her custody. Father was
found to be the children’s presumed father.
1 All subsequent undesignated statutory references are to
the Welfare and Institutions Code.
3
B. Jurisdiction and Disposition
In October 2020, Wilmer told the social worker that his
mother would hit him with clothes hangers if he did not pay
attention or was not obedient. She would also hit him with an
open hand on his buttocks and would pinch him on his arm.
Mother hit his little sisters when they would not let her change
their diapers.
Two-year-old Luisa said mother hit all three children. She
could not say where mother hit them or if mother hit them with
objects.
The maternal aunt said she was aware that mother hit
Wilmer with a hanger; she did not see it happen, but Wilmer told
her about it. The aunt said mother also physically disciplined
Luisa and Yareli.
Mother admitted hitting Wilmer only once, when he took
money from her wallet that she needed to buy food and to pay the
babysitter. Mother said she got so angry that she grabbed the
first thing she saw, which was a clothes hanger. She intended to
hit Wilmer on the arm, not the face. She felt remorse as soon as
she realized what she had done. She began to cry and asked for
Wilmer’s forgiveness. Mother said she had never hit either of her
daughters, and she did not know why Wilmer would say
otherwise.
The social worker spoke to father by telephone in
late October 2020. Father said he never saw mother hit the
children, and he was surprised by the allegations. Father said he
spoke to the children daily, and although Wilmer sometimes
reported that mother got mad at him, he never said mother hit
him.
4
At the November 18, 2020 jurisdiction and disposition
hearing, the juvenile court sustained the petition as pled and
ordered the children removed from both mother and father. As to
father, the court said he had not sought custody of the children
and, in any event, placing the children in father’s care would not
be appropriate “as the Department said he has alcohol issues.”
With regard to disposition, father’s counsel objected to
DCFS’s recommendation that father be required to participate in
parenting and anger management classes, asserting that father
was nonoffending and that there was no way for father to
complete these programs in Guatemala. The court said it would
sign the case plan, but would eliminate the parenting class
requirement. The court said: “The children are not living with
[father,] and given that he lives in Guatemala, it’s not likely that
they will be living with him any time soon. So I do not believe
that there is much point in that program, but I will require the
anger management program.”
Father timely appealed from the dispositional order.
DISCUSSION
Father makes a single contention on appeal—that the
juvenile court abused its discretion by requiring him to complete
an anger management program because there is no evidence that
he has an anger management problem. For the reasons that
follow, we agree.
Section 362 provides that if a child is adjudged a dependent
child, the court “may direct any reasonable orders to the parents
or guardians of the child who is the subject of any proceedings
under this chapter as the court deems necessary and proper to
carry out this section.” (§ 362, subd. (d).) Consistent with this
section, the juvenile court may require a nonoffending parent to
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comply with dispositional orders, and may “address parental
deficiencies when necessary to protect and promote the child’s
welfare, even when that parental conduct did not give rise to the
dependency proceedings.” (In re K.T. (2020) 49 Cal.App.5th 20,
24–25.)
“ ‘The juvenile court has broad discretion to determine
what would best serve and protect the child’s interests and to
fashion a dispositional order accordingly.’ ” (In re Natalie A.
(2015) 243 Cal.App.4th 178, 186.) On appeal, “[w]e review the
juvenile court’s disposition orders for an abuse of discretion (In re
Gabriel L. (2009) 172 Cal.App.4th 644, 652), and review for
substantial evidence the findings of fact on which dispositional
orders are based. (In re Francisco D. (2014) 230 Cal.App.4th 73,
80.)” (In re K.T., supra, 49 Cal.App.5th at p. 25.)
Father contends that there is no evidence that he has a
problem with anger, and we agree. Having reviewed the
appellate record, we do not find a single reference to father
displaying anger. Accordingly, the juvenile court’s order that
father participate in anger management classes was an abuse of
discretion.
In its respondent’s brief, DCFS contends that the juvenile
court’s order was supported by Wilmer’s statement that father
once disciplined him by hitting him with a belt. Although it
unquestionably is true that hitting a four-year-old child with a
belt is not an appropriate form of discipline, we do not agree with
DCFS that use of a belt necessarily evidences “a parent’s inability
to restrain [himself] and choose age-appropriate and non-abusive
discipline in moments of anger and frustration.” To the contrary,
it seems to us entirely conceivable that a parent might use a belt
on a child not out of anger, but instead in the misguided, but
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honestly-held, belief that corporal punishment is appropriate in
some circumstances. Wilmer’s statement that father once hit
him with a belt, therefore, does not support the trial court’s order
that father participate in an anger management program.
We note, finally, that there was no evidence before the
court that father would be able to access an anger management
program in Guatemala, where he now lives. As another Court of
Appeal has noted in an analogous context, “it is an abuse of
discretion to make a dispositional order with the knowledge that
a parent cannot participate in the ordered services. No parent
should be placed in this trap.” (In re J.P. (2017) 14 Cal.App.5th
616, 626.) In the absence of evidence that father could
participate in an anger management program in Guatemala, it
was an abuse of discretion to order father to complete such a
program.
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DISPOSITION
The dispositional order is reversed in part with directions
to strike the requirement that father participate in an anger
management program, and is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
LAVIN, J.
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Egerton, J., Concurring and Dissenting.
I agree we must reverse the order that Francisco C. (father)
participate in anger management. I would remand for further
proceedings for this reason: DCFS did not demonstrate that
the parenting and anger management programs it was asking
the court to order were available to father in Guatemala.
Wilmer told a social worker, “My dad would also hit me,
but he would hit me with a belt. He only hit me once.” Wilmer
also said, “My dad would drink a lot.”
DCFS asked the court to order both parents to participate
in anger management and parenting programs. At the
adjudication hearing, father’s counsel objected, stating, “Father
is non-offending. This is not part of a narrowly tailored case plan
given no allegations were sustained against the father.” Counsel
also argued, “There’s no way for father to complete any of the
recommended programs from Guatemala.” Father’s counsel
never contended that father hit Wilmer with a belt not in anger,
but in a calm, deliberate manner, believing that conduct to be
appropriate parental discipline.
Are there parents, in this day and age, who “honestly”
and sincerely believe beating a four-year-old child with a belt
is “appropriate in some circumstances?” (Maj. opn. at 6-7.)
Perhaps. But those parents sorely need parenting classes. Here,
if father hit four-year-old Wilmer with a belt believing it to be
acceptable punishment, then parenting classes are an absolutely
appropriate order. If, instead, he beat Wilmer in anger, then an
anger management program is the appropriate order. Requiring
both classes would not be an abuse of discretion in my view.
The problem, obviously, is that father lives in Guatemala.
The record reflects he never has lived in the United States.
1
DCFS gave the court no information about whether parenting
and anger management programs are available to father in
Guatemala. I would remand the case for DCFS to make such
a showing, if it can.
EGERTON, J.
2