Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. EJ3002A-B, Laura J. Birkmeyer, Judge.
IRION, J.
Presumed father Milton S. appeals following a hearing on supplemental petitions (Welf. & Inst. Code, § 387) in the juvenile dependency case of his daughter, D.S., and son, Devon S. (together the children). Milton contends there is no substantial evidence to support the true findings on the section 387 petitions and the order removing the children from the home of their maternal great grandmother, Ruth A. Milton also contends the juvenile court erred by failing to bifurcate the adjudicatory and dispositional phases of the hearing. We determine the contentions to be without merit and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
PROCEDURAL AND FACTUAL BACKGROUND
In September 2008 when D.S. was seven years old and Devon was six years old, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions alleging Milton sexually abused Devon by digitally penetrating his anus. The children were detained in Polinsky Children's Center (Polinsky) and then with a nonrelative extended family member. At the September 3 detention hearing, the court ordered supervised visits for the children's mother, M.C., and no visitation for Milton. On September 24 the court ordered that Milton would have supervised visits upon completion of the children's evidentiary interviews. In October, the interviews were completed and Milton began supervised visits. Some of the visits were supervised by the Agency and some were supervised by Ruth.
At the February 2009 jurisdictional and dispositional hearing, the court amended the dependency petitions by deleting allegations that the penetrations occurred on multiple occasions and D.S. stated someone had touched her vagina.
M.C. steadfastly denied Milton had committed any abuse. She told Devon the molestation "did not happen."
In February 2009 the court entered true findings on the dependency petitions and ordered the children placed with the nonrelative extended family member. In May the children were moved to Ruth's home. At the six-month review hearing in September, the court confirmed the placement with Ruth. The court ordered unsupervised visits for M.C., in Ruth's home, with another adult present and Milton not there.
In July 2009 the Agency received a report that Milton had unsupervised contact with the children. Milton and M.C. admitted they were sometimes alone with the children. The Agency sent Ruth a letter expressing concern that she was not following visitation guidelines. The social worker also met with Ruth in person. Ruth said Milton and M.C. were always supervised during visits in her home, but she did not "follow them around." On July 28 the social worker told Milton that until further notice his visits were to occur in a public place.
The social worker placed the same restriction on M.C.'s visits, but rescinded it a short time later.
On November 12, 2009, Ruth admitted that Milton had been to her house to visit Devon when Devon was sick. The social worker reminded Ruth this was not permitted. The family requested that Milton and M.C. be allowed to have Thanksgiving dinner at Ruth's home, and the social worker approved the request on the condition that Milton and M.C. be supervised. On November 25 the social worker reminded Ruth of the visitation rules. Ruth looked confused and said she was the one who decided who came to her house. The social worker reminded Ruth that Milton was not to be alone with the children. Ruth said Milton had not abused the children and Devon was good at "telling stories...."
In early December 2009 the Agency received further reports that Milton had unsupervised contact with Devon in Ruth's home. Ruth and Milton denied this. On December 24 Milton and M.C. canceled a visit that was to be supervised by the social worker, claiming that D.S. was sick. The social worker went to Ruth's house unannounced. M.C. answered the door and quickly said she was the only one visiting. The social worker thought she heard Milton inside. D.S. came outside to play. She did not appear sick.
On January 7, 2010, the Agency sent Ruth a letter stating "Milton... is to have supervised contact in a public place only. You may supervise these visits but they may not take place in your home. [Milton] is not to be alone with his children at any time. You must be within hearing distance at all times as well as have the children and [Milton] in your sights at all times." The letter also stated that if M.C. had visits outside of Ruth's home and Milton was present, the visits had to be supervised.
At the January 12, 2010, 12-month review hearing, the court terminated reunification services and set a section 366.26 hearing for May. The court continued the existing placement and visitation orders.
On February 10, 2010, the Agency received a report that D.S. had been wetting herself at school for three or four months and this seemed to occur when she had unsupervised contact with Milton. School staff frequently saw Milton and M.C. at D.S.'s school, by themselves and without Ruth, when there were school performances. Milton and M.C. attended one such performance on February 5. They were also at the school by themselves for a January 22 family night and for D.S.'s Individualized Educational Program assessment in January.
On February 10, 2010, social worker Julie Walker mentioned to Ruth the possibility that Ruth might no longer supervise Milton's visits. Ruth responded, "I don't understand, because it's not like these kids were sexual[ly] abused." Walker said she could not continue to transport Devon to and from therapy and Ruth would have to assume that duty. Ruth responded, "if you don't take him, he ain['t] going" and "therapy is just messing this kid up[;] he don't need therapy because it's only making him worse."
On February 11, 2010, Walker and another social worker interviewed the children at their schools. D.S. said she and Devon shared a bedroom but had their own beds. Devon had put objects, such as a crayon or pencil, in her bottom. This happened more than once. D.S. said she played in the yard with Milton while Ruth was in the house.
A test in October 2009 placed D.S.'s intellectual functioning in the range of moderate mental retardation. The psychologist who administered the test, however, believed the results might underestimate her abilities. In her February 2010 interview, D.S. was able to answer questions clearly and give descriptions.
In his interview, Devon said he had been alone with Milton. Milton, M.C. and the children were at Ruth's house for D.S.'s birthday in January. Devon went to the park with Milton, M.C. and D.S. while Ruth stayed home. Milton visited seven days a week and M.C. visited five days a week. During the visits, only the children, Milton, M.C. and Ruth were in the house.
On February 11, 2010, the Agency detained the children in foster care. That day, Ruth told the social worker she did not understand why the children had been removed, as she never let Milton in her home after July 2009. On February 17 Ruth again denied she let Milton have unsupervised contact with the children. She said she never let Milton come to her house, especially when M.C. was there, and never let the children go anywhere alone with Milton and M.C.
On February 18, 2010, the Agency filed the section 387 supplemental petitions. The petitions alleged the January 12 order continuing the children's placement with Ruth had not been effective in protecting or rehabilitating the children or was no longer appropriate in light of the criteria in section 361.3. Specifically, the petitions alleged that beginning in January, Ruth allowed Milton to have unsupervised contact with the children, in violation of the September 24, 2008 order; Devon struggled with sexually reactive behavior; and Ruth failed to ensure that he received therapy.
On February 22, 2010, at a forensic examination, D.S. spontaneously stated, "Somebody touched me here... and somebody touched me here." She pointed first to her genital area and then to her anus. When asked who had touched her, D.S. replied, "my dad." She also said "someone poked me with a lollypop, " "someone touched me with my butt" and "someone touched with a private part." When asked who had done this, D.S. replied, "my dad and my mom and Devon and me."
In March 2010 Devon was moved to Polinsky after he exhibited aggressive behavior in his foster home. In early April, he was moved to a foster home with D.S.
On April 13, 2010, Devon's therapist submitted a treatment update. On numerous occasions, Devon told the therapist that Milton came to Ruth's home frequently and Devon frequently went on outings with Milton and M.C. without Ruth's supervision. When Devon made these disclosures, he became extremely anxious and asked the therapist not to tell. Devon said his family blamed him for the Agency's involvement, Ruth and Milton blamed him for the children's removal from Ruth's home and Milton and M.C. told him to recant his allegations. Ruth told him he would go to jail if he continued to report abuse and told him to tell the judge the abuse did not happen. When the therapist told Devon he would be participating in the Kids in Court program, Devon cried, shook, hid and tried to throw himself off a couch. Devon said he was afraid that Ruth, Milton and M.C. would be angry and would hit him. He was also afraid he would be returned to Milton and Milton would molest him again. The therapist believed Devon lacked skills to keep himself safe.
The jurisdictional and dispositional hearing on the section 387 petitions took place on April 23, 2010. The court found the factual allegations of the petitions were true. The court determined placement with Ruth had not been effective in protecting the children, and based on the criteria of section 361.3, the placement was no longer appropriate. The court noted that Ruth minimized the risk that Milton posed to the children, she did not believe the allegations in the case were true, she had not been straightforward with the Agency and she had allowed Milton unsupervised access to the children. The court found it was "paramount that [Devon] be supported in his therapy[, ]... be protected from being alone with [Milton, and]... be supported... in the need to tell the truth to the Court." The court found it was necessary for both children to have a supervisor who was attentive to their bond, to the need to protect D.S. from Devon and to obtaining the therapy and support they needed.
After making the above adjudicatory findings, the court turned to the dispositional issue. The court found there was no available relative who was able and willing to care for the children and placement in a licensed foster home was necessary and appropriate. The court accordingly ordered the children placed in foster care.
Before ruling, the court asked the Agency's counsel for "the [A]gency's position with respect to the burden of proof on a 387 for removal." The Agency's counsel responded she believed the burden was by clear and convincing evidence, although she was unsure. Milton's counsel stated the burden was by clear and convincing evidence. The court found the evidence met the standards of a preponderance of the evidence and clear and convincing evidence. As discussed below, the former standard is the correct one in this case.
Milton appeals.
I.
Substantial Evidence Supports the True Findings On the Section 387 Petitions
Milton contends the true findings on the section 387 petitions are not supported by substantial evidence. He argues the children's placement with Ruth was appropriate in light of their best interests, as expressed in section 361.3.
Before parental rights are terminated, the Agency cannot move a child from a court-ordered relative placement to a foster placement without filing a supplemental petition and obtaining a dispositional order on the petition. (§ 387, subd. (a); In re H.G. (2006) 146 Cal.App.4th 1, 10-11; In re A.O. (2004) 120 Cal.App.4th 1054, 1060; Cal. Rules of Court, rule 5.560(c).) The petition "shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the [relative] placement is not appropriate in view of the criteria in [s]ection 361.3." (§ 387, subd. (b); rule 5.565(a).) The hearing on a section 387 petition must be bifurcated into an adjudicatory phase and a dispositional phase. (In re H.G., supra, at pp. 12, 17-18; In re A.O. (2010) 185 Cal.App.4th 103, 110; In re Javier G. (2006) 137 Cal.App.4th 453, 460; rule 5.565(e).) During the adjudicatory phase, the court must decide whether the factual allegations of the petitions are true and, if so, whether "the previous disposition has... been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, [whether] the placement is not appropriate in view of the criteria in Section 361.3." (§ 387, subd. (b); rule 5.565(e); In re H.G., supra, at pp. 11-12; see In re A.O., supra, at p. 110; In re Javier G., supra, at pp. 460-461.) During the adjudicatory phase, the Agency has the burden of proof by a preponderance of the evidence. (In re H.G., supra, at p. 11; In re Jonique W. (1994) 26 Cal.App.4th 685, 691.)
All rule references are to the California Rules of Court.
Here, the section 387 petitions alleged "[t]he previous disposition has not been effective... or... the placement is not appropriate...." The court found both of these criteria to be true. As discussed below, both findings were proper. "We need not discuss whether, in the case of relative placement, ... section 387 entails a showing only 'that the placement is not appropriate in view of the criteria in Section 361.3' or whether a showing 'that the previous disposition has not been effective' may be substituted." (In re Miguel E. (2004) 120 Cal.App.4th 521, 547, fn. 23.)
Milton argues a section 387 petition "can only be sustained where there is a showing that the child is at substantial risk of serious harm." As authority, he cites In re H.G., supra, 146 Cal.App.4th at p. 18. Milton misreads that case. In In re H.G., supra, at p. 1, the section 387 petition alleged the grandparents allowed the father "unauthorized contact" with the child (id. at p. 13), and the Agency asserted in its section 387 detention report the "grandparents... placed the child at significant risk by allowing surreptitious unsupervised contact... with the father." (Id. at p. 15.) On appeal, this court noted "the Agency did not identify the 'significant risk' posed by [the father]'s 'unauthorized contact' " and "did not allege [the child] suffered any harm as a result of any unauthorized contact...." This court also stated "[m]ere speculation is not sufficient to establish a risk of physical or emotional harm to a child." (Id. at p. 18.) In re H.G., supra, at p. 1, did not hold that a "substantial risk of serious harm" is required.
We review the juvenile court's findings at the adjudicatory phase of the section 387 hearing for substantial evidence. (In re H.G., supra, 146 Cal.App.4th at pp. 13-14; In re A.O., supra, 120 Cal.App.4th at pp. 1061, 1064; In re Javier G., supra, 137 Cal.App.4th at pp. 459, 460-462.) "We review the evidence in the light most favorable to the trial court's determinations, resolve all evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable inferences to uphold the trial court's findings. [Citation.] We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The burden is on the party or parties challenging the findings and orders of the trial court to show there is no evidence of a substantial nature to support the finding or order. [Citation.]" (In re H.G., supra, at pp. 12-13.)
"In determining whether placement with a relative is appropriate, the... court shall consider, but shall not be limited to, " the factors enumerated in section 361.3, subdivision (a). (§ 361.3, subd. (a).) "The linchpin of a section 361.3 analysis is whether the placement with a relative is in the best interests of the minor." (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 862-863.) The factors in section 361.3 are:
"(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs.
"(2) The wishes of the parent, the relative, and child, if appropriate.
"(3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement.
Those provisions prohibit discrimination based on race and other criteria (Fam. Code, § 7950) and give children who are at least 10 years old the right to make a statement when the court is making a placement decision (Fam. Code, § 7952).
"(4) Placement of siblings and half siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in Section 16002.
"(5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect.
"(6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful.
"(7) The ability of the relative to do the following:
"(A) Provide a safe, secure, and stable environment for the child.
"(B) Exercise proper and effective care and control of the child.
"(C) Provide a home and the necessities of life for the child.
"(D) Protect the child from his or her parents.
"(E) Facilitate court-ordered reunification efforts with the parents.
"(F) Facilitate visitation with the child's other relatives.
"(G) Facilitate implementation of all elements of the case plan.
"(H) Provide legal permanence for the child if reunification fails. [¶] However, any finding made with respect to the factor considered pursuant to this subparagraph and pursuant to subparagraph (G) shall not be the sole basis for precluding preferential placement with a relative.
"(I) Arrange for appropriate and safe child care, as necessary.
"(8) The safety of the relative's home. For a relative to be considered appropriate to receive placement of a child under this section, the relative's home shall first be approved pursuant to the process and standards described in subdivision (d) of Section 309." (§ 361.3, subd. (a).)
"For a relative to be considered appropriate to receive placement in the first instance, the relative's home must be approved according to the process and standards described in section 309, subdivision (d), which requires the Agency to conduct an in-home inspection regarding safety and the relative's ability to care for the child, and to check adult household members for criminal records and prior allegations of child abuse or neglect. (Ibid.) The approval of the relative's home is based on the standards set forth in regulations for family foster care licensing, which include standards of safety and sanitation for the home and standards for basic personal care, supervision, and services provided by the caregiver. [Citations.]" (In re H.G., supra, 146 Cal.App.4th at p. 12, fn. 6.)
Here, there is ample evidence that placement with Ruth did not serve the children's best interests. (§ 361.3, subd. (a)(1).) She did not provide a safe and secure environment (§ 361.3, subd. (a)(7)(A)) or protect the children from Milton (§ 361.3, subd. (a)(7)(D)). In light of the reports Devon had sexually abused D.S., it was questionable whether Ruth was able to "[e]xercise proper and effective care and control of the child[ren]." (§ 361.3, subd. (a)(7)(B).)
Ruth denied Milton had committed any abuse or posed any risk to the children. She repeatedly allowed Milton and M.C. to have unmonitored contact with the children, in violation of the court's orders and the Agency's directions. Ruth continued to allow the contact even after numerous admonitions, and was dishonest and uncooperative with the Agency. She caused Devon anxiety and fear, pressured him to recant, told him to lie to the court and threatened him with jail. Ruth claimed therapy was hurting rather than helping Devon and refused to continue transporting him. D.S. wet herself at school over a period of months, and this seemed to occur when she had unsupervised contact with Milton. Thus, substantial evidence supports the juvenile court's conclusion placement with Ruth was no longer appropriate based on the criteria of section 361.3.
Furthermore, relative placement is ineffective in protecting a child if it does not guard against "danger or actual harm" to the child's physical or emotional well-being, or if the relative is unable "to provide a secure and stable environment...." (In re Joel H. (1993) 19 Cal.App.4th 1185, 1201, 1203.) The facts set forth above clearly show Devon suffered emotional harm in Ruth's care, both children were at risk of continued emotional harm and sexual abuse, and Ruth was unable to provide a secure environment. Thus, substantial evidence supports the juvenile court's conclusion that placement with Ruth had not been effective in protecting the children.
In re Joel H., supra, 19 Cal.App.4th at p. 1185 was decided before the 1997 amendment to section 387, which added the reference to section 361.3. (In re Miguel E., supra, 120 Cal.App.4th at p. 547, fn. 23.) When Joel H. was decided, section 387 simply required a showing "the previous disposition has not been effective in the rehabilitation or protection of the minor." (§ 387, former subd. (a).)
Substantial evidence supports the true findings on the section 387 petitions.
III
Substantial Evidence Supports the Order Removing the Children From their Relative Placement with Ruth
Milton contends substantial evidence does not support the order removing the children from Ruth's home.
If the Agency meets its burden of proof during the adjudicatory phase of the section 387 hearing, the case proceeds to the dispositional phase. (In re H.G., supra, 146 Cal.App.4th at pp. 12, 17-18; In re A.O., supra, 185 Cal.App.4th at p. 110; In re Javier G., supra, 137 Cal.App.4th at pp. 461-462.) During that phase, the court determines whether there is a need to remove the child from the relative placement. (In re H.G., supra, at pp. 12, 17-18; see In re Javier G., supra, at pp. 460-462.) In doing so, the court "follows the procedures for dispositional hearings to determine whether removal is appropriate." (In re Miguel E, supra, 120 Cal.App.4th at p. 542; rule 5.565(e)(2).) The determination whether to remove the child is based on the risk of harm to the child if he or she remained in the relative placement. (In re H.G., supra, at p. 18.) The Agency has the burden of proof on that issue by a preponderance of the evidence. (In re A.O., supra, 120 Cal.App.4th at p. 1061.)
Milton contends removal requires a finding of substantial risk of serious harm. He relies on In re H.G., supra, 146 Cal.App.4th at p. 18; Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067; and In re James R. (2009) 176 Cal.App.4th 129. In re H.G., supra, at p. 18 does not support Milton's contention. (Ante, fn. 9.) The other two cases are inapposite. Kimberly R. v. Superior Court, supra, at p. 1077, concerned removal from a parent on a section 387 petition. (In re A.O., supra, 120 Cal.App.4th at p. 1061.) In re James R., supra, at p. 129, concerned true findings and dispositional judgments on section 300 petitions.
Milton contends "the trial court must have clear and convincing evidence of abuse or neglect to remove a child from a relative caregiver's physical custody even when doing so pursuant to a [section] 387 supplemental petition." Milton relies on Kimberly R. v. Superior Court, supra, 96 Cal.App.4th at p. 1077. As noted above, that case is inapposite. (Ante, fn. 13.)
We review the juvenile court's rulings at the dispositional phase of the section 387 hearing for substantial evidence, applying the principles set forth above. (In re H.G., supra, 146 Cal.App.4th at pp. 12-13; In re A.O., supra, 120 Cal.App.4th at pp. 1061, 1064; In re Javier G., supra, 137 Cal.App.4th at pp. 459, 462-463.)
The Agency contends the standard of review is abuse of discretion, citing In re Robert L. (1993) 21 Cal.App.4th 1057, 1067-1068, superseded by statute on another ground as noted in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032. In re Robert L., supra, at p. 1057, applied the abuse of discretion standard to a review of the juvenile court's determination regarding relative placement pursuant to section 361.3. In re Robert L., supra, at p. 1057, did not involve a section 387 proceeding. In any event, there was no error in the instant case under the abuse of discretion standard.
Here, the children were clearly at risk in Ruth's home. Ruth refused to believe Milton had committed sexual abuse. She was unwilling to protect the children from him and the children were unable to protect themselves. Ruth blamed and threatened Devon and told him to lie. He was extremely fearful of her. Rather than providing him emotional support, Ruth caused Devon extreme anxiety. D.S. exhibited possible symptoms of distress by wetting herself around times she had unsupervised contact with Milton, and she reported Devon had sexually abused her.
Substantial evidence supports the juvenile court's conclusion it was necessary and appropriate to remove the children from Ruth's home and place them in foster care.
III
There Was No Error Regarding Bifurcation of the Hearing On the Supplemental Petitions
Milton contends the juvenile court erred by failing to bifurcate the jurisdictional and dispositional phases of the section 387 hearing.
As noted above, the section 387 hearing must be bifurcated into an adjudicatory phase and a dispositional phase. (In re H.G., supra, 146 Cal.App.4th at pp. 12, 17-18; In re A.O., supra, 185 Cal.App.4th at p. 110; In re Javier G, supra, 137 Cal.App.4th at p. 460; rule 5.565(e).) In the juvenile court, Milton did not raise any objection to a lack of bifurcation. Thus, he has forfeited his right to argue this issue on appeal. (In re A.O., supra, 120 Cal.App.4th at p. 1061, fn. 4.) Even if Milton had not forfeited his right to raise the issue, he has not shown prejudice. (In re Miguel E., supra, 120 Cal.App.4th at p. 542, criticizing In re Fred J. (1979) 89 Cal.App.3d 168.) " 'When a [rule] does not provide any consequence for noncompliance, the language should be considered directory rather than mandatory. [Citations.] The directory and mandatory designations do not refer to whether a particular... requirement is permissive or obligatory, but simply denote whether the failure to comply with a particular procedural step will invalidate the governmental action to which the procedural requirement relates.' [Citation.] Here, the rule provides no penalty if the court does not comply with it, making the language directory." (In re Miguel E., supra, at p. 542.)
Milton argues he was prejudiced by the lack of bifurcation because it led the court to remove the children from Ruth without adequate supporting evidence. As discussed above, the removal order was proper.
Furthermore, as a practical matter, the juvenile court here did separate the adjudicatory and dispositional phases of the section 387 hearing. (See In re H.G., supra, 146 Cal.App.4th at p. 17 [the juvenile "court did not specifically state it was removing H.G. from Grandparents" and this court could not "infer that the court conducted a disposition hearing."].) The court first found the allegations of the petitions were true, and placement with Ruth was no longer appropriate based on the criteria of section 361.3. Only then did the court begin the dispositional phase of the hearing.
There was no error regarding bifurcation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., McINTYRE, J.
For the first time in his reply brief, Milton cites "a child's [fundamental] right to remain in the care of family" and asserts he "can raise the issue of the denial of due process at any stage of the proceeding, and thus, th[e bifurcation] issue could not [have] been forfeited for purposes of appeal." Milton does not explain how the lack of bifurcation denied him due process and our review of the record reveals no due process denial.