In re T.S. CA1/2 ( 2015 )

Filed 4/21/15 In re T.S. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
In re T.S. et al., a Person Coming Under the
Juvenile Court Law.
SAN MATEO COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent, A142503
v.
(San Mateo County
Jose S., Super. Ct. No. 83471)
Defendant and Appellant.
Wendy S. and Jose S. had a relationship that ended acrimoniously in 2010 after
they had two children, T.S. and N.S. The two parents made numerous allegations of
neglect and abuse against each other. Concerned for the children, the San Mateo County
Human Services Agency (agency) entered into a voluntary services case plan with
Wendy, who had physical custody of the children. When Wendy refused to extend the
plan, despite the children witnessing frequent discord between their parents and between
Wendy and her parents, the agency filed a Welfare and Institutions Code section 300,
subdivision (b),1 dependency petition.
1
Unless indicated otherwise, further statutory citations are to the Welfare and
Institutions Code.
1
Although the agency did not recommend removal of the children from Wendy’s
home, the juvenile court detained the children with Wendy’s parents, Diane S. and
Jerry S. (the grandparents). It was six months before a contested disposition hearing
could be held. In the meantime, the court ordered that the children be detained with Jose
rather than with the grandparents, but soon thereafter Jose was detained for deportation
proceedings and the children were returned to the grandparents.
Jose was released on a six-month stay of deportation. At the disposition hearing,
the court ordered placement of the children with Wendy, under continued supervision by
the agency. Jose appeals from that order, contending that there was clear and convincing
evidence the children were at substantial risk of harm in Wendy’s care and that the court
abused its discretion by improperly considering the deportation proceedings against him
in making its order. We disagree and affirm.
BACKGROUND
On December 18, 2013, the agency filed juvenile dependency petitions pursuant to
section 300, subdivision (b), on behalf of T.S. (then nine years old) and N.S. (then three
years old). Under a family court order, Wendy and Jose share legal custody of the
children, Wendy has full physical custody, and Jose has overnight visitation from noon
on Sunday to 4:00 p.m. on Tuesday. Interaction between Jose and Wendy was
contentious and the parents made competing allegations of neglect and abuse.2 When the
agency filed the petitions, Wendy had a restraining order against Jose. Wendy also had a
contentious relationship with her parents, Diane and Jerry, with whom the children
frequently stayed overnight. Diane obtained a restraining order against Wendy after a
physical altercation.
On April 24, 2013, Wendy lost her temper with T.S. and grazed her teeth against
his cheek, leaving red marks. On April 28, 2013, T.S. witnessed the physical altercation
2
Between January 10, 2012, and September 29, 2013, the agency received 11
reports of abuse or neglect by one or the other parent, all of which were “evaluated out”
or determined to be unfounded (or, in two cases, inconclusive). The police were called
many times due to allegations by the parents against each other.
2
between Wendy and Diane. The department devised a safety plan and Wendy agreed to
refrain from physical discipline and to monitor the children more closely. Wendy also
agreed to and signed a voluntary services case plan that included goals of family and
individual therapy, parenting education and regular school attendance by the children.
Nevertheless, the children continued to witness conflict between Wendy and Jose and
between Wendy and her parents.3
The agency became concerned regarding Wendy’s ability to emotionally support
the children. On one occasion, Wendy came to the social worker’s office “stating in front
of the crying children that she was done with the children and no longer wanted to care
for the children as they continue to be disrespectful and that they could go and live with
the father and that she had it with them.”
On November 12, 2013, the social worker met with Wendy to discuss extending
the case plan to address concerns and provide services. Wendy refused. The agency
filed the dependency petitions because, despite six months of voluntary services, “the
same issues with the family remain and only have intensified. The children continue to
be in need of therapy services and the mother’s mental health issues continue to need to
be addressed.”
T.S.’s petition alleged that Wendy had left red marks on his cheek with her teeth,
that Wendy had a fight with Diane in T.S.’s presence, that Wendy continued to expose
him to ongoing conflicts with Jose and Diane, and that the escalating family conflict and
Wendy’s failure to renew a voluntary services plan placed T.S. at risk of harm. N.S.’s
petition alleged that he had been exposed to family conflict and violence, that he had
been engaging in aggressive behavior since May 2013, and that Wendy had refused to
renew the voluntary services plan, interrupting N.S.’s individual therapy.
The agency filed a detention report on December 18, 2013. The report
recommended court intervention “to ensure the children’s safety and well being” and to
3
On June 30, 2013, during an exchange of the children, Wendy and Jose engaged
in a verbal and physical altercation in front of the children and Jose was arrested.
3
ensure “that the needed services are mandated and monitored.” The agency did not
recommend that the children be detained from Wendy’s home. Nevertheless, on
December 26, 2013, the juvenile court ordered the children detained with the
grandparents pending jurisdiction and disposition hearings, with supervised visits for
Wendy and no change to Jose’s Sunday-to-Tuesday visitation schedule. The court
believed that the children were at risk of emotional harm if they remained with Wendy.
The court did not detain the children in Jose’s home because it believed “there might be
some parental alienation going on, if they are only to be in the home of the father.”
The agency filed an initial jurisdiction/disposition report on January 14, 2014.
T.S. told the social worker, David Marquez, that Wendy sometimes hit him and
N.S. with a belt, but not hard enough to hurt. He reported that his parents did not get
along and had fought one another. He had seen Jose spit on Wendy and punch her in the
face, leaving a mark on her mouth.
The grandparents told Marquez that the children were “stuck in the middle of [the
parents’] arguments.” Diane didn’t believe that Wendy had a drug problem, but said that
Wendy had been diagnosed with ADHD and had “changed” after meeting her current
boyfriend. Jerry explained that Wendy could not handle the boys’ aggressive behavior.
As a result, Wendy would often call and ask them to take the boys.
Marquez noted that although Wendy had spoken with numerous service providers,
she failed to follow through and lacked insight into how her behaviors affect the children.
His observation was that Wendy tries to be patient with the children, but often loses her
temper and reacts negatively. Although Wendy’s visits with the children were sometimes
interactive and happy, at other times they became problematic when Wendy became
frustrated with the children, especially T.S.
Marquez also reported that Jose easily loses his temper and lacks insight about
how the children are affected by his verbal abuse of Wendy and the parents’ physical
altercations in their presence. Jose also seemed hesitant to engage with the services
provided for the children and did not want any appointments scheduled during his time
with them. Marquez later noted that Jose was reluctant to allow him to meet with him at
4
his home to observe his interactions with the children. However, when Marquez did visit
and was able to observe Jose with N.S. (T.S. was at school), N.S. appeared comfortable
there and was affectionate with Jose.
Both children stated their desire to remain in the grandparents’ home, but they also
wanted to see Wendy more often. Diane believed that T.S. was adjusting well to living
with them, but thought N.S. was having a hard time “ ‘especially after coming back from
their father’s.’ ” She said that N.S. acted aggressively, cursed, and called them names,
but calmed down a couple of days after returning from Jose’s home.
The agency’s initial report recommended that the children be adjudged dependents
of the court, that they be removed from Wendy’s home and placed in the home of the
grandparents, that Wendy and Jose receive services under case plans, that Wendy have
two supervised visits a week, and that father continue to have unsupervised, overnight
visits three times per week.
As time passed, the agency developed concerns about the home environment
provided by the grandparents. The third addendum report, filed on February 21, 2014,
noted “language and cursing” in the home and threats used as a form of discipline. The
children reported that their grandparents spoke negatively about both Wendy and Jose to
them. Accordingly, the agency changed its recommendation to placement with Jose
while services were provided to the family.
On February 24, 2014, the juvenile court made interim orders “in the format as
recommended in the third addendum to the report.” The children were placed with Jose
pending the jurisdiction/disposition hearing. Wendy was to have a minimum of two
visits per week. Continued contact with the grandparents, but not overnight contact, was
encouraged. In March 2014, both T.S. and N.S. stated “that things were ‘fine’ ” in Jose’s
home.
By the time the fourth addendum report was filed on March 6, 2014, the children
were participating in therapeutic supervised visitation with the mother. The visits were
facilitated by psychiatric social worker Nicole Daly, who reported that Wendy was
“great” at assessing N.S.’s needs and handled N.S.’s acting out behavior “very well.”
5
While the visits demonstrated that there were “ ‘issues’ ” between Wendy and T.S.,
visitation between them had generally gone well. Daly reported that Wendy “has
struggled with managing her anger regarding issues related to concerns about other adult
caregivers in the children’s lives” and “lacks self-regulation when discussing court issues
and frustration with her perception of [the agency’s] lack of support to her family.”
Wendy acknowledged to Daly that she and T.S. could benefit from therapeutic support to
help them improve their communication. Marquez observed that when Wendy “is calm,
she can be very loving and affectionate with her children. She can be insightful and
aware of her children’s needs, but when she cannot control her frustration, she becomes
angry very quickly and it is difficult to calm her down.”
The jurisdiction/disposition hearing set for March 10, 2014, was continued
because Jose was unavailable due to immigration issues. Jose’s counsel indicated that the
children were staying with the grandparents pending the next hearing.
On April 3, 2014, the agency filed a fifth addendum report. Daly reported that
Wendy “is doing great in the visits with the children.” Marquez had contacted Homeland
Security and learned that Jose was on an immigration hold and that deportation
proceedings were in progress. The grandparents had complained to the agency about the
children’s service providers, but Diane refused to talk with Marquez when he attempted
to contact her, and Jerry stated that they were upset at the agency for recommending that
the children be placed with the father rather than remaining with them. Further meetings
between Diane, Jerry, Marquez and service providers demonstrated that obtaining the
grandparents’ cooperation with the agency and service providers would be problematic.
The agency changed its disposition recommendation to one of foster care for the children
“[g]iven the toxicity of the children’s current placement.” The report explained: “The
four adults involved as primary care givers for these children seem to be more interested
in controlling the other parties than they are in ensuring the children’s health, emotional
health, and well being.”
At an interim hearing on April 7, 2014, the court declined to place the children in
foster care but warned the grandparents that the court would have no option but to change
6
the children’s placement if they did not cooperate with the service providers. The court
granted the agency discretion regarding additional visits with Wendy and directed the
grandparents to cooperate.
On May 5, 2014, the agency filed a sixth addendum report. Jose was still detained
in immigration proceedings. The grandparents had become “more flexible and
cooperative” with the agency, but services providers had reported instances in which
Diane spoke negatively about Wendy in front of the children. Daly reported that Wendy
“ ‘engages in nurturing activities with both boys,’ ” has “ ‘demonstrated different parent
techniques to help de-escalate the boys, redirect undesirable behavior, and to enhance
their communication with herself and with each other’ ” and has been able to “ ‘decrease
her communication to her boys during visits about other adult family caregivers.’ ”
Wendy had participated in a team decision-making meeting with the agency to discuss
what was required of her to reunify with the children and to develop an action plan. At
the meeting, Wendy “was open about her concerns regarding her children, had thought
out ideas as to how to alleviate problems that have arisen, and was open to hearing about
areas in which she can improve.”
On May 6, 2014, the agency filed a seventh addendum report.
Jose had been released from custody and was back at his home. Homeland Security
Officer Alvin Wong reported that he was “ ‘on temporar[y] leave to attend the upcoming
[Juvenile] Court hearings.’ ” Wong explained that Jose was required “ ‘to obtain a
passport, not violate any local, state, or federal laws, and report to his probation officer, if
he has one.’ ” In addition, Jose was required to “ ‘check in with [Homeland Security]
once a month and if he violates any of the terms, he will be deported.’ ”
Marquez had asked T.S. and N.S. about where they preferred to live. T.S. said
that he does not like his father’s home and that his order of preference was first with his
7
grandparents, then with Wendy, and finally with Jose.4 N.S.’s order of preference was
first with Wendy, then with his grandparents, and finally with Jose.
At an interim hearing on May 7, 2014, Jose’s counsel presented a copy of a stay of
deportation signed on April 30, 2014. Counsel stated “It is for six months. It is my
understanding that it is renewable.” The court ordered “the parties to cooperate to set up
a workable visitation schedule for [Jose] that doesn’t interfere with Mother’s current
visitation schedule or the other counseling sessions that the children are participating in
or any other beneficial activity that the children are engaged in at this point in time.”
On June 11, 2014, the agency filed an eighth and final addendum report. The
children agreed with Marquez that visits with Wendy were “going much smoother.” N.S.
reported that he wanted to return to living with his mother and the grandparents would be
his second choice. T.S. preferred to remain living with his grandparents. It was now the
agency’s recommendation that the court sustain the petitions and declare T.S. and N.S.
dependents of the court; that the children return to Wendy’s home “[g]iven the progress
[Wendy] has made over the past several months,” that Jose have visitation with the
children, and that the family participate in family maintenance services.
On June 16, 2014, the agency filed amended dependency petitions in which the
wording of the allegations was modified slightly.5 At the hearing that day, both parents
submitted on the matter of jurisdiction. The court found by a preponderance of the
evidence that the allegations were true and declared the children to be dependents of the
court. The court then conducted a contested disposition hearing.
Marquez testified that although the agency had concerns about returning the
children to Wendy’s home, “we have services in place such as in-home counseling. Both
children have their own therapist.” He believed that with Daly’s help Wendy had found
4
T.S. expressed his preference in terms of people, not in terms of homes. His
actual order was Jerry, Wendy, Diane and then Jose.
5
The amended petition for T.S. alleged that Wendy’s teeth had left a “small red
mark” on his cheek rather than “red marks” as well as other minor changes in wording.
The amended petition for N.S. removed allegations that Wendy instigated the family
conflicts and failed to recognize N.S.’s need for therapeutic services.
8
ways to handle T.S.’s behaviors. He explained that “followthrough with services has
been or was a major issue in the past,” but he believed “that has been alleviated” because
Wendy “has been participating in services frequently and often.” The children had
regularly attended their individual therapy sessions and the therapists reported they had
made progress. Marquez reiterated that the agency did not recommend a disposition of
removal from Wendy’s home. He believed that both T.S. and N.S. had suffered as a
result of the temporary removal pending jurisdiction and disposition.
Daly testified that the initial goal of the therapeutic visitation services she
provided for Wendy and the children was for Wendy “to not engage with the children
about discussion about . . . adult family members. And [Wendy] has absolutely met that
goal.” The current goal was “to work . . . on deescalating power struggles between her
and specifically [T.S.] and how to remain calm in her communications with her children.”
That goal was still in progress but Wendy had made “great progress[]” toward meeting it.
Daly had observed Wendy implement strategies in dealing with the children after
discussing them with her. Despite power struggles between Wendy and T.S., Daly had
“seen a lot of bonding and positive things as well” She believed that being out of his
mother’s care had been “extremely hard” for N.S. and “difficult for [T.S.], as well; but I
think he’s responded in different ways.”
T.S. testified that if he couldn’t live with his grandparents, he would prefer to live
with his mother. He testified that Wendy had “changed” and was talking to him (“using
her words”) rather than yelling. He believed that she was acting in a “better way.”
The juvenile court followed the recommendations of the agency and ordered an in-
home placement with Wendy, subject to agency supervision, with a transition plan for the
children to be moved from the grandparents’ home. The court ordered that Wendy would
be subject to unannounced visits by the agency. It declared Jose to be the presumed
father and reinstated his prior visitation schedule from noon Sunday to 4:00 p.m.
Tuesday. The court also ordered services as recommended by the agency, including
intensive in-home counseling and wrap around services.
On June 25, 2014, Jose timely filed a notice of appeal.
9
DISCUSSION
In this case, Wendy was the parent who had physical custody of T.S. and N.S. at
the time dependency proceedings were initiated. On the facts of this case, the juvenile
court could order a disposition removing the children from Wendy’s home only by
finding clear and convincing evidence of “a substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the minor if the minor were
returned home.” (§ 361, subd. (c)(1).) If the court had made such a finding, it would
have been required to place the children with Jose, unless it also found that placement
with him “would be detrimental to the safety, protection, or physical or emotional well-
being” of the children. (§ 361.2, subd. (a).) When a child is placed with a noncustodial
parent, that placement is made without regard “to the parent’s immigration status.”
(§ 361.2, subd. (e)(1).)6
“We review a juvenile court’s custody placement orders under the abuse of
discretion standard of review; the court is given wide discretion and its determination will
not be disturbed absent a manifest showing of abuse. (Alicia B. v. Superior Court of San
Diego County (2004) 116 Cal.App.4th 856, 863.) “ ‘The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason.’ ” (Walker v.
Superior Court (1991) 53 Cal.3d 257, 272.)
Jose contends that the court abused its discretion because in his estimation there
was clear and convincing evidence of substantial danger of physical and emotional harm
to the children if they remained in Wendy’s home and the court improperly considered
his immigration status when it returned the children to her care under the supervision of
the agency. He argues that “the only reasoning the court gave for following the Agency’s
recommendation . . . was in reliance on [Jose’s] ‘immigration situation.’ ” We disagree.
6
Similarly, section 361.3, subdivision (a), provides in relevant part: “In any case
in which is child is removed from the physical custody of his or her parents pursuant to
Section 361, preferential consideration shall be given to a request by a relative of the
child for placement of the child with the relative, regardless of the relative’s immigration
status.”
10
In reaching its detention orders, the court stated: “So I just want to say for the
record that I have read and considered the trial briefs that were in the file, including
[Jose’s counsel’s] brief. I have given serious thought to everyone’s arguments; and
certainly, I think everyone is trying to do what they think is best for the children and I
understand that.
“And I understand that the only reason that we’re here is because of the mother’s
initial refusal to accept voluntary services so I do understand that that’s where we started.
“And at that time, there was physical custody by the mother of both children with
the father having visitation from Sunday through Tuesday. So I understand that that’s
where we started.
“And I understand the Department’s recommendation—and unfortunately, as
these things happen when it all evolves, then there are all other kinds of considerations
that come into play. So I think that it’s clear that everyone involved loves the children.
Unfortunately, they can’t get along with each other and that’s the dynamic that we’re
pretty much stuck with.”
The court continued: “And I also appreciate that the father—while it’s clear that
the father loves his children and would like to have custody of both boys all the time—I
do have a lot of concerns about the—well, first of all, he didn’t have custody initially
when this started; this process started. We’ll start there.
“And secondly, I do have some concerns about the immigration situation as
testified to.
“The Court is going to follow the recommendation of the Department . . . .”
Contrary to Jose’s argument, this does not give us the impression that if Jose had
no immigration issues, the court would have found clear and convincing evidence of a
serious risk of harm to the children if placed in Wendy’s home. The court was clearly
concerned about Jose’s immigration situation and the future impact that might have on
the children, but the court’s preliminary remarks provide no reason to believe that the
court’s disposition of in-home placement with Wendy was based on that concern.
11
During the time the children were temporarily detained with the grandparents (and
briefly with Jose), Wendy had regularly participated and made substantial progress in the
recommended services and in her therapeutic visits. Daly especially was positive in her
assessment of the progress that Wendy was making. Wendy had ceased talking with the
children about other adult family members and had improved in her ability to deal with
the children’s behavior that had previously caused her frustration. The change in Wendy
was apparent not only to Daly and the agency, but also to T.S., who testified that instead
of yelling at him when she became upset, Wendy would now talk to him about the
situation. Based on the evidence in the record, it was reasonable for the juvenile court to
determine that, under agency supervision and subject to unannounced agency visits to
Wendy’s home, the children would not be at substantial risk of physical or emotional
harm if placed with Wendy.
Father relies on In re Jonathan P. (2014) 226 Cal.App.4th 1240 (Jonathan P.), but
that was a very different case. Prior to dependency proceedings, Jonathan P.’s father had
physical custody and the mother had visitation. (Id. at p. 1245.) The father was
deported, after which Jonathan P. remained in his mother’s care. (Ibid.) When the court
held a jurisdiction/disposition hearing, the father’s whereabouts were unknown. (Ibid.)
The court removed Jonathan P. from his mother’s care and ordered reunification services
for her. (Ibid.) The father reentered the United States illegally and appeared at the six-
month review hearing. (Id. at pp. 1246-1247.) Father requested that Jonathan P. be
placed with him based on the prior custody arrangement. (Id. at p. 1247.) At that point
Jonathan P. had left his placement and his whereabouts were unknown. (Ibid.) The Los
Angeles County Department of Children and Family Services (department)
recommended that reunification services for the mother be cancelled and made no
recommendation as to the father. (Ibid.) The court told the father that it could not restore
custody to him because Jonathan P.’s whereabouts were unknown and directed him to file
a section 388 petition if he wished reunification services. (Id. at pp. 1247-1248.)
The department recommended that the court deny father’s section 388 petition but
also order an evaluation under the Interstate Compact on the Placement of Children
12
(ICPC) to assess his home so that when Jonathan P. was found, a recommendation could
be made to release him to the father. (Jonathan P., supra, 226 Cal.App.4th at p. 1249.)
At the hearing “[t]he Department’s counsel argued that neither prong of the section 388
test had been met because in his view, Father was a ‘federal fugitive’ who had entered the
country illegally, and that was the ‘only change’ in his circumstances. The Department’s
counsel further argued that no ICPC could be conducted, since that would ‘basically, be
having the court perpetuate Father’s violation of federal law being in this country by
helping somebody who is currently in this country illegally with this I.C.P.C.’ ” (Id. at
p. 1250.) The juvenile court denied the section 388 petition, denied reunification services
to the father, and did not order an ICPC evaluation. (Ibid.)
The Court of Appeal reversed, concluding that Jonathan P.’s father was entitled to
reunification services. (Jonathan P., supra, 226 Cal.App.4th at pp. 1257-1260.) The
appellate court also determined that “the dependency court should not have required
Father to prove his entitlement to custody pursuant to section 388. Instead the court
should have analyzed the request under section 361.2, subdivision (a).” (Id. at p. 1256.)
However, the court concluded that this error was harmless because Jonathan P.’s
whereabouts were unknown, so “[i]t was not possible to conduct an evaluation of whether
it would be detrimental to Jonathan P. to place him with Father.” (Id. at pp. 1256-1257.)
In the course of its discussion, the court found “troubling” the department trial counsel’s
“repeated references to Father’s immigration status during the proceedings in the
dependency court. It is not clear on this record the degree to which the juvenile court was
influenced by Department counsel’s argument on this issue, or whether Father’s legal
status played any role in the court’s decisionmaking process. The law is clear, however,
that Father’s citizenship status is not a legally relevant consideration in these matters.
[Citation.] It is also clear that the Department counsel’s improper comments infected the
proceedings, distracting the court and parties from the relevant matters at hand, namely,
Father’s request for custody and/or reunification services.” (Id. at p. 1256.)
In contrast to Jonathan P., Jose’s immigration status came to the attention of the
court because he had been detained and held for deportation proceedings at a time when
13
the children had been placed in his care. Jose was released after he received a six-month
stay of deportation, subject to the condition that he obtain a passport. At the disposition
hearing, Jose stated that he was attempting to secure a passport from El Salvador, but was
having difficulty because his family was not in possession of necessary documents.
Thus, it was unclear that Jose would be able to comply with the terms of his release and
avoid deportation. The deportation proceedings against Jose had already deprived the
children of the care that the court, at an earlier point in time, determined was in their best
interest, and they had the potential of permanently depriving the children of his physical
presence in their lives, to their detriment whatever the dispositional orders of the court.
Under these circumstances, it was entirely proper for the court to have “concerns” about
Jose’s “immigration situation.”
The primary question for the juvenile court in this case was whether there was
substantial risk of harm to the children if they were placed with Wendy. Jose’s
deportation proceeding would have no relevance to that question, and the record provides
no reason to believe that the court improperly considered it in evaluating the risk of harm.
The court’s implicit finding that there was not a substantial risk of harm was reasonable
considering the progress that Wendy had made and continued supervision of the family
by the agency. Because the court placed the children in Wendy’s care, it never reached
the question, pursuant to section 361.2, whether the children should be placed with the
noncustodial parent—a question for which it would be improper to consider immigration
status. Accordingly, we find no abuse of discretion by the juvenile court.
DISPOSITION
The dispositional orders of the juvenile court are affirmed.
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STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
15