In re J.O. CA4/2 ( 2013 )

Filed 11/21/13 In re J.O. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re J.O. et al, Persons Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E057541
Plaintiff and Respondent, (Super.Ct.No. RIJ1200989)
v. OPINION
E.O.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Judge. Affirmed as modified.
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela J. Walls, County Counsel, Julie Koons Jarvi, Deputy County Counsel, for
Plaintiff and Respondent.
1
E.O. (father) is the presumed father of Jan. O. and Jay. O. (the children). On
appeal, father contends that the juvenile court erred in declaring the children a sibling
group at the disposition hearing, and in issuing a restraining order since there was no
evidence that he had harmed the children. We agree that the court erred in declaring the
children a sibling group. Otherwise, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 25, 2012, the Riverside County Department of Public Social
Services (the department) filed a Welfare and Institutions Code1 section 300 petition on
behalf of the children. Jan. O. was three years old at the time, and Jay. O. was 16 months
old. The petition alleged that the children came within the provisions of section 300,
subdivision (b) (failure to protect). Specifically, the petition alleged that father and the
children’s mother (mother)2 engaged in acts of domestic violence while in the presence
of the children. The petition further alleged that mother failed to protect the children
from father, and that father suffered from mental health issues and failed to seek
appropriate treatment.
Detention
The social worker filed a detention report stating a referral was received that
alleged father, who was mother’s boyfriend and the children’s father, had been assaulting
1 All further statutory references will be to the Welfare and Institutions Code,
unless otherwise noted.
2 Mother is not a party to this appeal.
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mother. The referral also stated that father had been physically abusive to the children in
the home, and that the children could be heard yelling and screaming from outside the
residence. A second referral was received stating that mother continued to be involved
with father, that mother left the children with him unsupervised, and that father stalked
mother and continued to intimidate her.
The social worker went to mother’s home and spoke with mother’s roommate.
The roommate said she had witnessed father lose his temper and yell and scream at
mother and the children. Mother was not at home, so the social worker went to the
maternal grandmother’s home to find her. The maternal grandmother began talking to
the social worker about father and said that he was mean, and he had been stalking her
daughter. When mother arrived at the home, she spoke with the social worker and said
that father had hit her on many occasions, inflicted “busted lips,” and had pulled her hair.
She said that “these things happen[ed] in front of the children.” Mother said father
always threatened her and she was afraid of him, but she was no longer with him.
Mother admitted that she would sometimes leave the children with him, since her
babysitter was unreliable. She also informed the social worker that she was awarded full
custody of the children at a recent family law court hearing.
A deputy and the social worker accompanied mother to the paternal grandmother’s
house to get the children. Father was there, so the social worker introduced herself to
him and said she wanted to speak with him about the allegations. Father instantly
became belligerent, used profanity, and took an aggressive posture. He declared that
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everything was fine between him and mother. He admitted that he had hit her and left
marks and bruises, but said he had not done so “in a long time.” He said that after he gets
help, they will be back together. The social worker reported that father had some mental
health issues and received SSI disability benefits.
On September 26, 2012, the court found father to be the presumed father of the
children. The court detained the children from him, but ordered them to remain in
mother’s custody. The court issued a temporary restraining order, prohibiting father from
any contact with mother and the children. The order was to expire on October 22, 2012.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report, recommending that father
be provided with reunification services, and mother be provided with family maintenance
services. The social worker stated that mother and father had a three-year pattern of
domestic violence. The social worker was very concerned about the safety of the
children, since both parents reported that the children had witnessed numerous incidents
of domestic violence.
On October 2, 2012, October 8, 2012, and October 18, 2012, father was arrested
for violating the terms of the restraining order. He violated the order on other occasions,
but the police were unable to locate him after those incidents. Father was incarcerated
and was “not expected to be released within the next month due to the numerous times he
[had] violated the current restraining order.” On October 22, 2012, the court reissued the
restraining order until November 5, 2012.
4
On November 5, 2012, the court held a contested jurisdiction hearing. The court
found that the children came within section 300, subdivision (b), and adjudged them
dependents of the court. The court ordered that physical custody of the children be
retained by mother, subject to the department’s supervision. The court ordered her to
participate in family maintenance services. The court ordered that physical custody of
the children be removed from father, and ordered him to participate in reunification
services. The court declared the children to be a sibling group and informed father that
he had six months to complete his services and reunify with the children. The court
stated that he if failed to do so, the matter could be set for a section 366.26 hearing. The
court also issued a permanent restraining order, prohibiting father from contacting mother
and the children in any way, except for court-ordered visitation. The court ordered the
restraining order to be in effect for three years.
ANALYSIS
I. The Court Erred in Declaring the Children a Sibling Group
Father argues that the court erred in declaring the children a sibling group under
section 361.5, subdivision (a)(1)(C), thereby limiting him to six months of reunification
services. He contends that section 361.5, subdivision (a)(1)(C), did not apply since the
court placed the children in mother’s custody with family maintenance services under
section 364. Thus, he argues that the court’s order declaring the children a sibling group
and limiting his services to six months should be reversed. We agree.
5
Section 361.5, subdivision (a), currently provides that unless certain exceptions
apply, “whenever a child is removed from a parent’s or guardian’s custody, the juvenile
court shall order the social worker to provide child welfare services to the child and the
child’s mother and statutorily presumed father or guardians.” “Child welfare services”
include both reunification and maintenance services. (In re Pedro Z. (2010) 190
Cal. App. 4th 12, 19 (Pedro Z.).)
Section 361.5, subdivision (a)(1), “contains time limits on the provision of family
reunification services. For a child three years of age and older and not part of a sibling
group, ‘court-ordered services shall be provided beginning with the dispositional hearing
and ending 12 months after the date the child entered foster care as defined in Section
361.49, unless the child is returned to the home of the parent or guardian.’ [Citation.]”
(Pedro Z., supra, 190 Cal.App.4th at p. 19.) The presumptive rule for children under the
age of three is that “court-ordered services shall not exceed a period of six months from
the date the child entered foster care.” (Former § 361.5, subd. (a)(1)(B); see In re A.C.
(2008) 169 Cal. App. 4th 636, 642 (A.C.).) “The court may combine a ‘sibling group’ that
includes at least one child less than three years old at the time of his or her initial
removal. In such cases, the court applies the shortened six-month ‘child welfare services’
presumption to all members of the ‘sibling group.’ [Citation.]” (A.C., supra, 169
Cal.App.4th at p. 642; § 361.5, subd. (a)(1)(C).)
When a child is adjudged a dependent but is placed in the custody of a parent, the
applicable statutory provision is section 362, subdivision (c), which provides: “If a child
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is adjudged a dependent child of the court, on the ground that the child is a person
described by Section 300, and the court orders that a parent or guardian shall retain
custody of the child subject to the supervision of the social worker, the parents or
guardians shall be required to participate in child welfare services or services provided by
an appropriate agency designated by the court.”3 The services referred to in section 362
are not reunification services, but family maintenance services, which are provided “in
order to maintain the child in his or her own home.” (§ 16506; see also Pedro Z., supra,
190 Cal.App.4th at pp. 19-20.) “[W]hen the child remains in a parent’s home, the court
reviews the status of the case every six months under section 364; under such review, the
court is not concerned with reunification, but in determining ‘whether the dependency
should be terminated or whether further supervision is necessary.’ [Citations.] This is so
because the focus of dependency proceedings ‘is to reunify the child with a parent, when
safe to do so for the child. [Citations.]’ [Citation.] The goal of dependency
proceedings—to reunify a child with at least one parent—has been met when, at
disposition, a child is placed with a former custodial parent and afforded family
maintenance services.” (Pedro Z., supra, 190 Cal.App.4th at p. 20.)
3 At the time the court ordered services in the instant case, this paragraph was
designated as subdivision (b). The language in subdivision (c) now is virtually the same.
(See Pedro Z., supra, 190 Cal.App.4th at pp. 19-20.)
7
In the instant case, the applicable statutory provision was section 362, not section
361.5. The children were in mother’s custody prior to the dependency proceeding.4 The
court retained them in mother’s physical custody and ordered her to participate in family
maintenance services. The court removed the children from father’s custody and ordered
reunification services to be provided to him for a period of six months. We note that the
court apparently erred in ordering reunification services, since the children were not
placed in out-of-home care or in the custody of a former noncustodial parent. (Pedro Z.,
supra, 190 Cal.App.4th at p. 20.) Because parental custody of the children was not
disrupted by the dispositional order, and the children were not placed in foster care, there
was no current need to “reunify” the family. (In re A.L. (2010) 188 Cal. App. 4th 138, 140
(A.L.).) Instead, the goal of this dependency proceeding was simply to “eliminat[e] the
conditions or factors requiring court supervision.” (§ 364, subd. (b).) Consequently, the
court had discretion to “direct any reasonable orders to the parents . . . as the court
deem[ed] necessary and proper to carry out” the provisions of section 362. (§ 362,
subd. (d); see also A.L., supra, 188 Cal.App.4th at pp. 140-141.) “For their part, the
parents were ‘required to participate in child welfare services or services provided by an
appropriate agency designated by the court.’ [Citation.]” (A.L., at p. 141; see also § 362,
subd. (c).)
4 According to mother, she had a family law court order awarding her full
custody.
8
Since the children have remained in the custody of a parent, section 361.5 plays no
role. (A.C., supra, 169 Cal.App.4th at p. 650.) The language of section 361.5
“contemplates that the period for mandatory reunification services begins at the time of
disposition and continues while the child is in foster care or until the child is returned to
the home of the parent.” (Pedro Z., supra, 190 Cal.App.4th at p. 19; see also, A.L.,
supra, 188 Cal.App.4th at p. 145.) Since the children never entered foster care, the time
limits for reunification services set forth in section 361.5 did not apply here. (A.C., at
p. 650; Pedro Z., at p. 21.) Accordingly, we agree with father that the court’s order
declaring the children a sibling group pursuant to section 361.5, subdivision (a)(1)(C),
and thereby limiting his reunification to six months, “was unnecessary and erroneous.”
Thus, we will direct the juvenile court to vacate that portion of its order.
II. The Court Properly Issued a Restraining Order
Father argues that the court erred in issuing the restraining order with regard to the
children, since there was no evidence that he had harmed them. He contends that no
restraining order was needed, in that there was no basis to infer that he was a threat to
them since he was incarcerated. He further asserts that the restraining order “acted to
limit his visitation with the children.” We disagree.
“[W]e view the evidence in a light most favorable to the respondent, and indulge
all legitimate and reasonable inferences to uphold the juvenile court’s determination. If
there is substantial evidence supporting the order, the court’s issuance of the restraining
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order may not be disturbed. [Citation.]” (In re Cassandra B. (2004) 125 Cal. App. 4th
199, 210-211.)
Section 213.5 permits the juvenile court to issue an order “enjoining any person”
from “contacting, either directly or indirectly, by mail or otherwise,” a dependent child in
cases related to domestic violence. (§ 213.5, subd. (a).)
Here, the court issued a restraining order prohibiting father from having contact
with mother or the children “directly or indirectly in person, by mail or otherwise, except
for court-ordered visitation.” There was substantial evidence to support the issuance of
the restraining order. There was evidence of domestic violence in the home that created a
safety concern for the children and posed a danger of serious physical and/or emotional
harm to them. The evidence indicated that father had little ability to control himself and
tended to resort to violence in that he hit mother, “busted her lip,” pulled her hair, and
had given her bruises, all in front of the children. Defendant threw things at mother,
stalked her, and even climbed through a window to get into her house. Although father
complains that there was no need for the restraining order since he was incarcerated, the
record did not indicate how long he would be incarcerated. At the time of the disposition
hearing, he was in county jail due to his arrest for violating the court’s previous
restraining order. The social worker simply reported that he was in jail and was “not
expected to be released within the next month.” However, the restraining order was
necessary to protect the children from him whenever he was to be released.
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Furthermore, father’s claim that the restraining order “acted to limit his visitation”
is unsupported by the record. The court ordered that father should have supervised
visitation, to be arranged by the social worker. He was scheduled to begin having
supervised visits two times per week. At the disposition hearing, the court ordered father
not to contact mother or the children “by mail or otherwise, except for court-ordered
visitation of your children, and there will be an exception for visitation.” (Italics added.)
The restraining order did not limit father’s visitation in any way.
DISPOSITION
The juvenile court is directed to vacate the portion of the disposition order
declaring the children to be a sibling group and thereby limiting father’s services to six
months. Otherwise, the order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.
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