California Court of Appeal Jun 2, 2015 No. D067309Unpublished
Filed 6/2/15 In re Jonathan M. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JONATHAN M. et al., Persons Coming Under the Juvenile Court Law. D067309 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J518803ABC) Plaintiff and Respondent,
v.
JULIETTE F.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Carol Isackson,
Judge. Affirmed.
Suzanne F. Evans, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Erica R. Cortez, Deputy County Counsel, for Plaintiff and Respondent.
Juliette F. appeals orders continuing dependency jurisdiction under Welfare and
Institutions Code section 364.1 She contends the court erred when it continued
jurisdiction because the initial protective issues had been resolved, there were no current
protective issues concerning the children's care in her home, and she had complied with
the fathers' visitation orders for two months. We affirm.
Juliette F. is the mother of three sons, Jonathan M., Nathaniel M. and Noah Y.
The children are now ages seven, six and two years old. Jonathan's and Nathaniel's father
is J.M. Joshua Y. is Noah's father.
In October 2013, Joshua came to Juliette's house to visit then five-month-old
Noah. He and Juliette had an argument about financial support for Noah. Juliette, who
had been drinking, pushed Joshua and hit him in the face and head. Joshua called police.
Juliette screamed obscenities at the police and had to be restrained. She was arrested for
domestic violence and resisting arrest.
As a child, Juliette was emotionally and physically abused, and witnessed ongoing
domestic violence in her home. She was involved in an incident of domestic violence
with Jonathan and Nathaniel's paternal aunt in 2009. In 2013 she had a fist fight with a
woman on a bus.
J.M. had custody of his sons for approximately a year and a half while Juliette was
homeless. When she stabilized her circumstances, she regained custody. J.M. saw his
1 Further statutory references are to the Welfare and Institutions Code. 2
sons every two weeks. When the children were detained in protective custody, J.M. told
the social worker he was ready and able to care for his sons.
When Joshua was 19 years old, he was involved in a brawl in which someone was
killed. Joshua served six and a half years in prison for manslaughter and was on
probation. Joshua was respectful and cooperative with the social worker. He told her
that he and Juliette had a brief relationship. During Juliette's pregnancy with Noah, he
used methamphetamine and was jailed on a probation violation. He subsequently entered
a drug rehabilitation program. Joshua was present at Noah's delivery. Joshua said every
time he went to see Noah, Juliette started an argument with him.
The San Diego County Health and Human Services Agency (the Agency) placed
Jonathan and Nathanial with J.M. Noah was placed with a paternal aunt. Joshua saw
Noah every day and had unsupervised overnight visits with Noah. Noah bonded with his
father. There were no reports of any protective issues for the children in their fathers'
care.
Juliette participated in a domestic violence treatment group, individual counseling,
a substance abuse treatment program and in-home parenting services. She made
continual progress. The Agency recommended Juliette and Joshua attend a coparenting
class. Juliette's therapist reported that she had a history of emotional dysregulation and
impulsivity due to childhood trauma. The therapist recommended that Juliette receive
psychiatric treatment and/or cognitive therapy to help manage her anxiety.
In April 2014, the Agency placed the children with Juliette on a 60-day trial visit.
The social worker reported that visitation with the children's fathers became difficult to
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arrange because of Juliette's heightened concerns. Juliette attempted to control every
aspect of visitation. She was very upset about the Agency's plan to expand the father's
visitation. The social worker said Juliette was having a very difficult time accepting that
she would have to coparent her children with their fathers. Although Juliette was doing
"a great job" caring for her children, she was not able to accept the fathers' presence in
their children's lives.
In July, Juliette reported that Noah returned from a visit with Joshua with multiple
superficial scratches. The Agency investigated and determined Noah had not been
abused. Juliette became extremely upset when the Agency did not stop visitation. She
said the Agency was expanding Joshua's visits too quickly and she was not comfortable
with Joshua's wife.
The social worker made an unannounced visit during Joshua's next visit with
Noah. He said Noah was very happy with his father. Joshua was working fulltime. He
had stable housing, and lived with his wife, their infant and her two-year-old son. There
were no safety concerns in their home. Juliette did not cooperate with J.M., who had
visits every other weekend with his sons at his home in Riverside County. Juliette
allowed J.M. to visit Jonathan and Nathaniel only under her supervision.
The court held a special hearing on two dates in July to address visitation. Juliette
did not appear at the first hearing date, saying two of her children were sick and she
needed to take them to the doctor. The court issued an interim order directing Juliette to
comply and cooperate with visitation. The court ordered the Agency to conduct body
checks of Noah before and after visits. At the second hearing date, Juliette discussed her
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concerns about Noah's safety in Joshua's care. The court ordered the Agency to continue
to closely monitor the case, directed each parent to photograph Noah before and after
each visit, and maintained the existing visitation schedule.
J.M. was not able to contact Juliette to arrange visits with Jonathan and Nathaniel
from August to mid-October. The social worker believed the children were at risk of
emotional trauma.
During a visit in August, Joshua texted Juliette to ask about Noah's bad diaper
rash. Juliette believed Joshua was trying to make her look bad and telephoned child
protective services and the local police department to conduct a child welfare check on
Noah. Juliette told police she could tell by Joshua's text message that he was using
methamphetamine. Joshua said the late night police visit traumatized Noah.
In September, Noah sustained bruises on his cheek and scratches on his forehead
when he fell off a bed while wrestling with his two-year-old step-brother. The social
worker said Joshua and his wife needed to better supervise the two toddlers in their care.
Noah did not sustain any injuries the following weekend while visiting his father.
Juliette did not produce Noah for visits with Joshua for five weeks. She refused to
provide the children's updated medical, developmental or educational information to the
social worker. Juliette told the social worker "my son WILL NOT be left alone with that
woman Joshua is married to or anyone else I don't approve of." Juliette discontinued
therapy, telling the social worker she was required to participate in therapy for only six
months.
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The social worker concluded that Noah was not being physically abused but was
at risk of emotional abuse. Noah was at risk of losing his relationship with his father.
The Agency recommended the parents participate in a coparenting course. J.M. reported
that Juliette did not allow him to take Jonathan and Nathaniel to his home and had
reduced the time and frequency of his visits.
In late October, the Agency set a special hearing to address visitation. Juliette did
not appear, stating that Jonathan was sick and she was taking him to the doctor that
morning. The court granted her request for a two day continuance. The court ordered
Juliette to appear at the rescheduled hearing and bring verification of the child's doctor
visit.
At the rescheduled hearing, Juliette's attorney said Juliette wished to appear
telephonically. However, she did not answer her phone. The court said Juliette's
nonappearance was a willful effort on her part to frustrate the processes of the court. The
court continued the matter to that afternoon. If Juliette did not appear, the court would
issue a warrant for her arrest. Juliette's attorney informed the court that Juliette was
available by telephone. Juliette argued with the court when the court directed her to
appear and bring Noah with her. The court said, "Let's put it this way, ma'm. Either you
can come voluntarily or we will have the police come and pick you up and bring you
down."
Juliette appeared in court that afternoon. When discussing problems with
visitation, Juliette said, "I literally had to deny [Joshua's] visits because nobody was
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listening to me." When asked whether she intended to comply with the visitation order
that weekend, Juliette said, "I have no idea . . . because of my concerns."
The court told Juliette: "In our society we have to depend on courts to resolve
conflicts. . . . And we have courts that have to make orders . . . to resolve things when
people, for whatever reason, can't do it themselves. Those orders must be followed. If
they are not followed, there are consequences. Those consequences can, in your
particular situation, be significant [describing contempt proceedings and loss of
custody]. . . . Your position in unilaterally deciding whether to have the visits or not is
creating that kind of a situation. You are putting your position in jeopardy, whether you
agree with the visitation orders or not."
The court specifically directed Juliette to make the child available to the father for
any and all scheduled visitation. It directed Juliette and Joshua to attend and complete a
cooperative parenting class as part of the parenting component of their case plans. The
court also directed Joshua to complete the in-home parenting safe care model parenting
course.
On a subsequent visit, Noah was hit in the head with a ball by a child at Chuck E.
Cheese. Noah sustained a reddish mark on top of his right eyebrow. Joshua documented
the incident, recorded an eyewitness's statement and took Noah to the hospital. Juliette
was very upset when she learned of the incident. She told the social worker she was
going to Chuck E. Cheese to speak to the manager and she was taking Noah to Children's
Hospital.
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At a hearing on November 12, the court again reminded Juliette if she did not
comply with visitation orders, the court could direct the Agency to consider removing the
children from her care or find her in contempt of court. The court said, "You are
jeopardizing the future of the kids [and] their relationship with their fathers."
The court held a review hearing on January 7, 2015. The Agency asked the court
to continue jurisdiction. The social worker said if jurisdiction were withdrawn,
conditions would exist that would justify the initial assumption of jurisdiction. Juliette
did not complete a coparenting course or address her anxiety. Joshua had yet to complete
the in-home safe care model for closer supervision of toddlers. Minors' counsel was
"extremely opposed" to terminating jurisdiction. The parents had not yet learned to
coparent in a healthy, stable manner. Counsel was concerned because Juliette had not
responded to her requests to visit the children.
At this point Juliette interrupted the proceedings, saying everything that was being
said was "so ridiculous." She said she could not attend a coparenting class with Joshua
because she was uncomfortable being in the same room with him.
The court continued the dependency proceedings and vested custody, care and
control of the children with the Agency. The court placed the children with both parents.
Juliette interrupted the court, saying, "Help. This is crazy."
The court found there were no incidents with respect to visitation in the last two
months because the court and Agency had supervised visitation "under a microscope."
The court said it had held many special hearings about visitation that ordinarily were not
necessary in a dependency proceeding. The court found that the parents, particularly the
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mother, were not able to manage cooperative parenting on their own. Each child was
entitled to the benefit of two parents. Juliette continued to display a reactive nature,
anxiety and anger. The court directed Juliette to complete individual therapy and a
coparenting class, noting that therapy may be required before she was able to participate
in a coparenting class.
Juliette was agitated. She was talking while the court was giving its ruling. The
court asked her, "Do you need to leave the courtroom? You need to leave please."
Juliette said, "I need to hear this," and left the courtroom.
The court found that Joshua and J.M. were ready to engage in coparenting classes
but could not complete the program by themselves. The court ordered Joshua to
complete an in-home parenting course, and ordered that minors' counsel or investigator
be allowed to meet with the children.
DISCUSSION
Juliette claims the court erred in continuing the children's dependency
proceedings. She argues there were no protective risks to the children and she had
complied with visitation orders for two months. Her argument is without merit.
When dependent children are placed with a parent, the juvenile court is required to
hold a review hearing every six months. (§ 364, subd. (a).) At the hearing, the court is
required to determine whether continued supervision is necessary: "The court shall
terminate its jurisdiction unless the social worker or his or her department establishes by
a preponderance of evidence that the conditions still exist which would justify initial
assumption of jurisdiction under Section 300, or that those conditions are likely to exist if
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supervision is withdrawn. Failure of the parent or guardian to participate regularly in any
court ordered treatment program shall constitute prima facie evidence that the conditions
which justified initial assumption of jurisdiction still exist and that continued supervision
is necessary." (§ 364, subd. (c).)
We review the decision to continue dependency jurisdiction under the substantial
evidence test. (In re N.S. (2002) 97 Cal.App.4th 167, 172.)
Juliette's failure to participate in court-ordered therapy, recommended treatment
and a coparenting class constitute prima facie evidence that the conditions which justified
initial assumption of jurisdiction still exist and continued supervision is necessary.
(§ 364, subd. (c).) Juliette did not rebut this presumption at the hearing. In fact, her lack
of respect for court processes permits the reasonable inference she was complying with
the visitation orders only because the court repeatedly warned her that failure to do so
could result in the loss of custody of her children and/or contempt proceedings.
We reject the argument that because Juliette had complied with visitation during
the two months before the hearing, there was no longer any protective risk to the
children. In impeding the children's visits with their fathers, Juliette subjected her
children to emotional abuse. The record shows it was necessary for the court and the
Agency to expend scarce resources to ensure her compliance with standard visitation
orders. Juliette's outbursts in the courtroom at the review hearing permit the reasonable
inference she was unwilling to share custody with the children's fathers.
The court found that Juliette continued to display a reactive nature, anxiety and
anger. This finding is supported by the record. Jonathan's and Nathaniel's father cared
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for them for a year and a half while Juliette was homeless, with no reports of inadequate
care. J.M. did not want to fight with Juliette and took a low-key approach to asserting his
visitation rights. Jonathan and Nathaniel were comfortable and happy in their father's
care. Juliette willfully and unreasonably interfered with J.M.'s visitation rights, to her
children's detriment. Joshua was more assertive of his visitation rights. Juliette was
more confrontational with him. This dynamic led to the incident of domestic violence
that necessitated the children's dependency proceedings. By not complying with the
visitation order, Juliette placed Noah's relationship with his father at risk. The social
worker observed that when Noah was with his father, Noah was "happy, smiling and
laughing." During one visitation exchange, Noah was immediately comforted when
Joshua arrived.
Contrary to Juliette's argument, this case is not similar to In re N.S., supra, 97
Cal.App.4th 167, in which this court held that the juvenile court erred in continuing
jurisdiction. In that case, the evidence showed that the parent was in total compliance
with his case plan. He was cooperative with the social worker and complied with all
court orders. (Id. at p. 173.) Here, the record contains ample evidence to show that
Juliette was not in total compliance with her case plan, did not cooperate with the social
worker and did not willingly comply with court orders.
To avoid a recurrence of the events that brought the children within its jurisdiction
and to preserve the children's relationships with their fathers, the court reasonably
determined that continued jurisdiction was necessary. (§ 364.) In view of Juliette's
disregard of the children's emotional well-being and long-term stability, and the resources
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necessary to ensure Juliette's compliance with visitation orders, the court exercised great
patience in allowing the children to remain in her care.
The orders are affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
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AI Brief
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Holding. The court properly continued dependency jurisdiction because the mother failed to comply with court-ordered treatment and coparenting programs, and her ongoing inability to facilitate visitation created a risk of emotional harm to the children.
Issues
Whether the juvenile court erred in continuing dependency jurisdiction under Welfare and Institutions Code section 364.
Whether the mother's failure to participate in court-ordered treatment programs constitutes prima facie evidence that continued supervision is necessary.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Juliette's failure to participate in court-ordered therapy, recommended treatment and a coparenting class constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist”
“In impeding the children's visits with their fathers, Juliette subjected her children to emotional abuse.”
“To avoid a recurrence of the events that brought the children within its jurisdiction and to preserve the children's relationships with their fathers, the court reasonably determined that continued jurisdiction was necessary.”