In re J.O. CA4/2

• Court: California Court of Appeal
• Decided: November 21, 2013
• Docket: E057541
• Status: Unpublished

Opinion

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

2 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

3 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

6 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

9 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.

10 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.