In re Juan Z. CA2/4 ( 2013 )

Filed 10/22/13 In re Juan Z. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FOUR
In re JUAN Z., a Person Coming Under the B244507
Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK94058)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
RUTH Z.,
Defendant and Respondent;
JUAN Z.,
Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Philip L. Soto, Judge. Affirmed.
Deborah Dentler, under appointment by the Court of Appeal, for Appellant
Juan Z.
Office of the County Counsel, John F. Krattli, County Counsel, James M. Owens,
Assistant County Counsel, and Tracey M. Blount, Deputy County Counsel for Plaintiff
and Respondent.
No appearance for Defendant and Respondent Ruth Z.
Minor Juan Z. challenges the dependency court‟s disposition order requiring him
to remain in foster care, rather than returning him to the home of his mother and baby
sister. We find no error under the circumstances and affirm.
FACTUAL AND PROCEDURAL SUMMARY
This dependency case involves two children of mother, Ruth Z. Juan Z. was born
in June 2004. His younger half-sister, Ariana D., was born in March 2012. In June 2012,
a domestic violence incident occurred during which J.D., mother‟s male companion and
presumed father of Ariana, hit mother in the face several times with his fist, causing a
swollen eye and lacerations. The Department of Children and Family Services (the
Department) arranged for mother and both children to be placed at a battered woman‟s
shelter. Juan appeared to be traumatized, jumping when someone entered the room
where he was interviewed. He said he saw J.D. hit mother. He said J.D. hit him, and
showed the worker a bruise on his chest which he said had been inflicted by J.D.
The original petition under Welfare and Institutions Code section 3001 was filed
on June 21, 2012. The petition alleged that J.D. physically abused Juan and that mother
failed to protect Juan from this abuse; during a violent altercation with mother, J.D.
knocked over Ariana‟s stroller causing the baby to hit the ground resulting in bruises;
mother and J.D. had a history of violent altercations in the presence of the children; J.D.‟s
past and current abuse of alcohol rendered him incapable of caring for the children; and
mother failed to protect them. It alleged the children came within the jurisdiction of the
Department under section 300, subdivisions (a), (b), and (j). At the detention hearing, the
court ordered the children to remain with mother.
The jurisdiction/disposition report recounted statements by Juan about J.D.‟s
physical abuse of him and his mother. He also said there were repeated fights between
mother and J.D. Juan stated that J.D. drank a lot and got crazy. Mother denied that J.D.
1 Statutory references are to the Welfare and Institutions Code.
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hit Juan, but said that he hit her and knocked over Ariana‟s stroller. Mother declined to
press criminal charges against J.D.
In an interim review report dated August 22, 2012, the Department informed the
court of new information regarding Juan‟s aggressive acts toward Ariana. Mother told an
investigator that she left Juan with Ariana while she stepped out to go to the kitchen.
When she came back, she found Juan holding a pillow on Ariana‟s face. Mother said she
screamed at Juan and asked him why he did this, but he did not respond. Mother reported
the incident to her caseworker at the shelter and to the social worker. Mother was warned
not to leave Juan alone with Ariana under any circumstances, to which she agreed. Juan
was referred for individual counseling. When the Department investigator asked Juan
about this incident, Juan said “„I put the pillow on her face because she has scratche[d]
me twice on my face and I don‟t like it.‟” He said that “something [in] his head told him
to put the pillow on the face of the baby” and that was why he did it. He said this
happened only once.
The Department filed a last minute information for the court on August 22, 2012
stating mother had reported a second incident in which Juan mistreated Ariana. She told
the investigator that on August 18, 2012, she left Juan watching television and Ariana
sitting in a swing in the same room while she went to cook in a nearby kitchen. While
she was cooking, she heard Ariana. When mother checked on the children, Ariana was
crying and had a purple bruise on her forehead. Juan told her he had put a stuffed teddy
bear on Ariana‟s face, which caused the baby to cry. The investigator interviewed Juan.
He said: “„I put the Teddy Bear on her face because she was crying too much and she did
not let me hear my program. I was watching “Spongebob Squarepants.”‟” Juan said he
left the teddy bear on the baby‟s face for “„[j]ust a little bit.‟” At this time Juan had been
participating in weekly individual counseling. The investigator recommended that Juan
be referred for wraparound services2. An emergency team decision-making meeting
“Welfare and Institutions Code section 18251, subdivision (d), states that
2
„“Wraparound services” means community-based intervention services that emphasize
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(TDM) was held to address concerns about the risk Juan posed to Ariana. During this
meeting, mother reported that Juan had a history of aggression toward her as well. His
aggressive behavior had increased since Ariana‟s birth. Mother was fearful that Juan
might hurt Ariana during the night or when her attention was elsewhere, even for a
moment. The team recommended that Juan receive intensive mental health services
including wraparound and psychiatric evaluation to determine whether he required
medication. Mother was unable to suggest an appropriate family member or friend to
care for Juan. She said she wanted him to receive the evaluations and medications he
needed. Juan was placed in protective custody in a foster home.
On August 28, 2012 the Department filed a petition pursuant to section 385 to
detain Juan. The court granted the Department‟s petition, and ordered the Department to
hold another TDM with mother and Juan‟s presumed father, Jose M., to develop a plan
for Juan. The Department reported that the second TDM resulted in an action plan that
required Juan to remain in foster care until his father produced four clean tests for drugs
and alcohol. Jose M.‟s home was to be assessed for placement. But mother did not agree
with the action plan because she did not want Juan placed with Jose M. She preferred
foster care unless Juan could be released to her. Juan was to continue with wraparound
services. Juan‟s caretaker reported he was doing well in his placement, in school, and
with other children in the placement. In a last minute information for the court on
September 21, 2012, the Department reported that Juan wanted to live with his mother,
but not with his father.
Mother and J.D. pleaded no contest to the petition as amended. Counsel for
mother asked the court to return Juan to her custody. Counsel for Juan joined in her
request. Jose asked the court to place the child with him. The Department opposed
placing Juan in the same home as Ariana. Its position was that Juan required either
therapeutic behavioral services or wraparound services. The court expressed empathy for
the strengths of the child and family and includes the delivery of coordinated, highly
individualized unconditional services to address needs and achieve positive outcomes in
their lives.”‟ (In re Andrew J. (2013) 213 Cal. App. 4th 678, 684, fn. 1.)
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mother and for Juan. It was mindful of infant Ariana‟s inability to protect herself and
mother‟s inability to continuously monitor Juan‟s interaction with the baby. For these
reasons, the court ordered that intensive training be provided to Juan to avoid further
incidents. Under section 361, subdivision (c), the court found by clear and convincing
evidence that Juan should be removed from mother. Ariana was to remain with mother.
The court considered whether Juan should be placed with his father Jose, against
whom there were no allegations. But Jose had not completed four clean tests for drugs or
alcohol and had not visited Juan. Mother was moving to a location closer to Juan‟s
school to facilitate visitation. Counsel for Juan opposed placement with Jose, expressing
concern that another move would harm the child. The court ordered Jose and the
Department to meet and confer after the hearing to arrange for father to complete the
substance tests. Juan would be released to Jose if four clean tests occurred. The court
noted that the wraparound services ordered for Juan were not in place until shortly before
the hearing. It stated that the matter could be walked on to request Juan‟s return to
mother if a safety plan had been established to eliminate the risks Juan posed to Ariana.
DISCUSSION
Both parties recognize a split of California authority regarding the standard of
review of a dependency dispositional order. Some courts apply the substantial evidence
standard (In re I.J. (2013) 56 Cal. 4th 766, 773; In re Noe F. (2013) 213 Cal. App. 4th 358,
367) while others review the order for abuse of discretion (In E.T. (2013) 217
Cal. App. 4th 426, 438–439; In re A.S. (2012) 205 Cal. App. 4th 1332, 1340).
Juan‟s argument is that there was insufficient evidence that there was no
reasonable means by which his health and safety could be protected without removing
him from his mother‟s physical custody, or that the dispositional order constituted an
abuse of discretion. He argues “[t]here were other far less draconian and traumatic
means to protect Ariana from 8-year-old Juan‟s childish, impulsive attempts to silence
her crying than to place Juan in a foster home.” He contends the Department overreacted
to Juan‟s behavior and that Ariana was not seriously harmed. He points to his ongoing
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individual counseling and mother‟s enrollment in a domestic violence program. Juan
asserts that both he and Ariana, victims of domestic violence, were further victimized by
the order placing Juan outside the home.
Once a dependency petition has been sustained, the court must conduct a
dispositional hearing to decide where the minor will live while under the court‟s
supervision. (In re Hailey T. (2012) 212 Cal. App. 4th 139, 145.) “Before the court may
order a child physically removed from his or her parents, it must find, by clear and
convincing evidence, the child would be at substantial risk of harm if returned home and
there are no reasonable means by which the child can be protected without removal.
(§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal. App. 4th 1635, 1654.) This is a
heightened standard of proof from the required preponderance of evidence standard for
taking jurisdiction over a child. [Citations.]” (Id. at pp. 145–146.)
Juan argues the Department concluded that mother does not have sufficient
parenting skills to protect Ariana, but that this does not constitute clear and convincing
evidence of danger to the child sufficient to order Juan placed outside the home. He
asserts that mother learned from the first two incidents. He also contends that there is no
evidence that mother allowed him to harm the baby when she was present. He contends
mother should have been allowed to monitor visits between the siblings.
The Department points out that there was no evidence that Juan had made progress
in understanding the issues which put Ariana at risk of harm from his actions. Although
a number of services had been ordered for Juan, they were not yet complete and no
therapist had provided a letter assuring the court that Juan no longer posed a risk to his
sister. It points out that the second incident occurred after mother had assured the
Department that she would not leave Ariana alone with Juan. It also occurred after Juan
had a month of individual counseling. The Department points out that mother expressed
concern that Juan would harm Ariana while mother was sleeping or distracted. It
contends removal of Juan from mother‟s custody was necessary to protect both children.
We agree with the Department. The two incidents were serious and placed Ariana
at substantial risk of harm. Under either standard of review, we are satisfied that the
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Department explored other possible means of assuring Juan would not harm Ariana. Two
TDM meetings were held and multiple services were ordered for Juan. At the time the
court made the dispositional order, there was no basis to conclude that Juan would not
repeat his aggressive conduct toward Ariana or that mother would be able to avert
another incident through constant supervision. We conclude that the requirements of
section 361, subdivision (c) were satisfied and that there was no error in ordering Juan to
out-of-home placement. The court provided an opportunity to revisit this issue by
directing that counsel could walk on the case if new developments indicated that return of
Juan to mother would be appropriate.
DISPOSITION
The dispositional order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
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