In re MARY N. B., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ROBERT W., Defendant and Appellant.
D063372
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
July 30, 2013
(Super. Ct. Nos. NJ013869)
Filed 7/30/13 In re Mary B. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed.
Suzanne F. Evans, under appointment by the Court of Appeal, for Minor.
Robert W. appeals an order issued at a contested six-month review hearing that resulted in his daughter, Mary, remaining in out-of-home care. He appeals, contending the juvenile court improperly (1) denied his motion for a directed verdict, (2) continued the hearing, and (3) allowed the San Diego County Health and Human Services Agency (Agency) to reopen its case-in-chief. He also asserts the evidence did not support the juvenile court‘s finding that returning Mary to his custody posed a risk of detriment. We reject his arguments and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
When Mary was born in March 2008, she tested positive for amphetamine. Mother admitted using diet pills during pregnancy. Mary was detained and remained in foster care until she was placed with Robert. In July 2009, the juvenile court terminated dependency jurisdiction after Robert obtained legal and physical custody of Mary. Mother was given supervised visitation.
According to Mother, however, Robert gave Mary back to her because there was no stipulation in the custody orders that she do anything to get Mary back. In December 2010, Robert was arrested for domestic violence after an altercation with Mother. During that incident, Robert pushed Mother against a door causing her to hit her head while she held Mary in her arms.
In November 2011, Robert was arrested again. In December 2011, the Agency filed a petition under
Robert moved for a directed verdict, reasoning the Agency agreed that Mary should be placed with him. Explaining that the parents’ issues were inseparable, the court denied the motion. Mary‘s counsel renewed her request for a continuance indicating she had a duty to check with Mary as to how she was doing and to review the prospect of Mary‘s placement with her parents. The court continued the matter for 11 days.
The social worker filed an addendum report recommending that Mary remain in out-of-home care and that visits be supervised. Among other things, Robert had been allowing Mother to have unauthorized overnight visits with Mary and Mary‘s caregiver believed that Robert‘s aggressive behavior was escalating. The social worker listened to a recorded phone conversation between Robert and Mother in which Robert threatened to go to Mother‘s home and get Mary even though Mother reminded him it was against court orders. He called Mother names and escalated to the point where he screamed something inaudible into the phone. The social worker believed that even though Robert was engaged in services, he did not appear to be demonstrating or implementing what he was learning or showing that he was changing his behavior in order to protect Mary.
At the continued hearing, the Agency moved the court to reopen its case-in-chief. The court found good cause existed and granted the Agency‘s motion to reopen. It also indicated it was continuing the case to provide the parents with time to respond to the evidence supporting the Agency‘s section 388 motion. The court found the Agency had met its threshold burden of proof regarding its section 388 motion requesting supervised visits and set the evidentiary hearing to follow the six-month review ruling.
After several continuances, the six-month review hearing concluded in early January 2013. At that hearing, the Agency withdrew its section 388 motion and the court received the additional Agency reports into evidence.
DISCUSSION
I. Procedural Issues
At a six-month review hearing, the issue before the court is whether the child should be returned to parental custody. (
A. Directed Verdict
Robert claims we must reverse the juvenile court‘s ruling denying his motion for a directed verdict under
Under
In the dependency context,
In a nutshell, Robert contends the juvenile court had no choice but to grant his motion for a “directed verdict” under
Moreover, a
B. Continuance
Robert asserts the juvenile court erred when it granted the continuance requested by Mary‘s counsel because no good cause existed. We disagree.
At the start of the six-month hearing in early October, Mother‘s counsel requested a continuance because Mother was late. In hearing from other counsel regarding the request, Mary‘s counsel noted, “[M]y office has had an incredibly difficult time making contact with the caregiver and with my client. They have, over the past two months, attempted at least a dozen times to meet with Mary and get an update on Mary and have been unable to do so because of the current caregiver.” Mary‘s counsel suggested the court proceed with trial, but that it set argument for another date to allow counsel to check on Mary. The court denied Mother‘s continuance request, and deferred ruling on the request of Mary‘s counsel. At the end of the hearing, the juvenile court continued the hearing for 11 days to allow Mary‘s counsel to contact Mary before closing argument.
While it is troubling that Mary‘s counsel was not able to meet with Mary despite repeated attempts, it appears the fault lies with the caregiver and not Mary‘s counsel. Again, minor‘s counsel is required to interview the child and may present evidence or make recommendations to the court. (
C. Reopening Case-in-Chief
Robert contends the juvenile court erred in granting the Agency‘s request to reopen its case at the continued hearing because the Agency was not diligent in its investigation and the request unnecessarily protracted the trial.
“A request to reopen for further evidence is addressed to the discretion of the trial court whose determination is binding on appeal in the absence of palpable abuse.” (Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 428.) Generally, the better practice is to consider all information bearing on the best interests of a child. (Ibid.) However, a court may consider the extent to which the trial may be protracted if the request is granted. (Ibid.)
Here, after the juvenile court continued the hearing from October 12 to October 23, the Agency appeared for argument with an addendum report
The October 23 addendum report notes that on October 16, the social worker learned from the caretaker that Robert‘s aggressive behavior had been escalating over the past couple of weeks. The caretaker informed the social worker “of his aggressive behavior now because she is concerned for [Mary]. She stated that she doesn‘t know if [Robert] is able to control himself while [Mary] is in his care and is scared that [Mary] could get hurt if [Robert] becomes enraged.” The caretaker stated, “[I]t has gotten to the point where she is nervous about doing visitation exchanges” with Robert and that she drops her daughter off beforehand in case he “‘loses it.‘”
On October 18, the social worker learned from Mother that Mary was with her during Robert‘s overnight visits and that Mary had spent the night with Robert only once. Mother also informed the social worker that Robert “still gets very angry and aggressive toward her,” and that she did not tell the social worker about her concerns earlier because she was worried that Robert would “‘ruin her socially or worse.‘”
This information does not support Robert‘s claim that the Agency changed its recommendation based on a failure to diligently investigate the case. Rather, after the social worker prepared the October 12 addendum report, she interviewed the caretaker and Mother, with both individuals relaying information they had previously withheld based on continuing concerns regarding Robert‘s behavior. Based on this new information, the social worker recommended continued out-of-home care. The social worker timely presented this information in her October 23 addendum report and the relatively brief delay did not unduly protract the proceedings. Moreover, the overriding issue was ensuring Mary‘s physical and emotional well-being. (
Robert asserts the evidence did not support the juvenile court‘s finding that returning Mary to his custody posed a risk of detriment.
At the six-month review hearing, the court is required to return the child to the parent‘s physical custody unless the Agency proves, by a preponderance of the evidence, that return would create a substantial risk of detriment to the child‘s physical or emotional well-being. (
In reviewing whether the record contains substantial evidence that returning Mary to Robert‘s custody would have been detrimental to her, we must keep in mind that the purpose of the reunification plan is “to overcome the problem that led to removal in the first place.” (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) While it is clear that Robert is making progress in alleviating the domestic violence and anger issues that led to the dependency petition, the evidence viewed most favorably to the Agency supports the finding that returning Mary to Robert‘s care created a substantial risk of detriment.
First, Robert and Mother have a history of engaging in domestic violence in Mary‘s presence and failing to comply with court orders. As early as December 2011, Robert agreed that his yelling and anger affected Mary and acknowledged a need to control his anger. Since that time, Robert has participated in services, including a domestic violence course and individual therapy. Nonetheless, in October 2012, when Mary was not returned to him, Robert readily admits that he went into a “tailspin.” Mary reported that Robert “‘yells a lot‘” and that upsets Mother. Among other things, Mother remained scared of Robert when he exhibited anger, he left angry messages with the caregiver and Mother and sought to violate a court order by texting Mother asking to see Mary or meet with her.
On November 1, Robert‘s therapist reported to the social worker that Robert “minimizes,” “does not think he has an anger problem,” and “has no clue how his anger affects others.” On November 20, Robert‘s therapist told the social worker that Robert had a “complete attitude change” at his last session, but reported “it [was] hard to tell if he [was] putting on an act.” On December 3, Mother reported that things have been “good” for the last month,
When the court made its detriment finding, it noted that Robert “appears to now be participating more sincerely in his therapy and his domestic violence classes,” but noted that the facilitator and Robert‘s therapist questioned “his credibility in those pursuits.” As a result, the juvenile court expressed concern that while the parents have engaged in services, it was difficult to gauge the information received from those services or point to any one specific issue. Putting the court‘s statements into different words, while Robert had exhibited positive change, it was too soon to say whether he had actually changed. As a result, there remained a substantial risk of harm to Mary should she be returned to Robert‘s care. The evidence amply supported the court‘s detriment finding.
DISPOSITION
The order is affirmed.
MCINTYRE, J.
WE CONCUR:
MCCONNELL, P. J.
IRION, J.