San Diego Cnty. Health & Human Servs. Agency v. L.T. (In re T.W.)

• Decision Date: 05 March 2013
• Docket Number: D061960
• Citation: 214 Cal.App.4th 1154,154 Cal.Rptr.3d 669
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE T.W., a Person Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. L.T. et al., Defendants and Appellants; T.W., Appellant.

214 Cal.App.4th 1154

154 Cal.Rptr.3d 669

IN RE T.W., a Person Coming Under the Juvenile Court Law.San Diego County Health and Human Services Agency, Plaintiff and Respondent,

v. L.T. et al., Defendants and Appellants;T.W., Appellant.

D061960

Court of Appeal, Fourth District, Division 1, California.

Filed March 5, 2013

Affirmed in part and remanded with directions.

See 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 655 et seq.

APPEALS from a judgment of the Superior Court of San Diego County, Richard D. Huffman, Judge. (Associate Justice of the Court of Appeal, Fourth District, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and remanded with directions. (Super. Ct. No. J515074B)

Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant Timothy W.

Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant L.T.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Caitlin E. Rae, Deputy County Counsel, for Plaintiff and Respondent.

Patricia K. Saucier, San Diego, under appointment by the Court of Appeal, for Appellant, a Minor, T.W.

McDONALD, Acting P. J.

L.T. and Timothy W. (together the parents) appeal a juvenile court judgment removing their minor daughter, T.W., from their custody following true findings made on a Welfare and Institutions Code ¹ section 387 supplemental petition. The parents challenge the sufficiency of the evidence to support the court's findings that the previous placement with L.T. was ineffective in protecting T.W., and T.W.'s removal from parental custody was necessary to prevent substantial danger to her. We conclude substantial evidence supports the court's jurisdictional findings and dispositional order as to the section 387 supplemental petition.

T.W. also appeals, contending the court erred by granting L.T. six more months of reunification services because the services she already received exceeded the statutory limit of section 361.5. We conclude the time limits for services set forth in section 361.5 did not become operable until T.W. was removed from the custody of both parents at a disposition hearing on the section 387 petition. Because the parents have now used up some of their entitlement to services under section 361.5, we remand the matter to have the juvenile court determine whether to continue or terminate their services under current circumstances.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2009, the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under section 300, subdivision (j), alleging four-year-old T.W. was at substantial risk of harm because L.T. had subjected T.W.'s sister, Olivia J., to serious physical harm and excessive discipline in T.W.'s presence. The court detained T.W. with Timothy. At a jurisdiction and disposition hearing in October 2009, the court declared T.W. a dependent, removed her from L.T.'s custody and placed her with Timothy. The court ordered the parents to participate in services consistent with their case plans.

During the next 12 months, L.T. completed a parenting education program that was not court approved, and 10 weeks of a 12–week anger management program. The court ordered six more months of services for the parents, and amended L.T.'s case plan to include an assessment by a substance abuse specialist because she had recently tested positive for amphetamine and methamphetamine.

In July 2011, 15–year–old Olivia disclosed that Timothy, her stepfather, had molested her when she was 11 years old and continued to molest her until she was 14 years old. Agency filed a section 342 subsequent petition, alleging T.W. was at risk of being sexually abused by Timothy because he had sexually abused Olivia. T.W. was detained first in foster care and then with her adult sister. In October 2011, the court sustained the allegations of the subsequent petition, placed T.W. with L.T. and ordered supervised visits for Timothy.

Several months later, social worker Angela Gaynor received information that Timothy was living with L.T. and T.W. Gaynor reminded L.T. that Timothy could not be in her home and L.T. could not supervise visits between Timothy and T.W. Timothy admitted he continued to go to L.T.'s home but denied staying overnight. He refused to participate in sexual abuse treatment as required by his case plan, saying he was “not a predator” and the requirement was “stupid.” Gaynor reported that L.T. continued to show poor judgment and repeatedly placed T.W. at risk by allowing Timothy in her home. Risk factors included T.W.'s young age and vulnerability, Timothy's sexual abuse of Olivia when she was younger and lived with L.T., Timothy's refusal to obtain treatment, and L.T.'s refusal to participate in therapy. Consequently, Agency filed a section 387 supplemental petition, alleging T.W.'s placement with L.T. had not been effective in protecting T.W. The parents declined Agency's offer of services to prevent T.W.'s removal from L.T.'s custody.

At a detention hearing on March 6, 2012, the court made a prima facie finding on the section 387 supplemental petition and found Agency had made reasonable efforts to prevent or eliminate the need to remove T.W. from L.T.'s custody. The court detained T.W. in out-of-home care.

Gaynor recommended six more months of services for L.T. to give her the opportunity to recognize the signs and red flags of sexual abuse, and to understand the dynamics of sexual abuse and the role she plays in protecting her children. Gaynor said services would enable L.T. to empathize with her children and discuss how she would prevent further incidents of sexual abuse. Services for Timothy would help him identify his triggers for sexual abuse, change his patterns of sexual behavior and develop a relapse prevention plan. Gaynor could not recommend placing T.W. with L.T. because she had violated the court's visitation order by allowing Timothy to visit T.W. in her home and she only recently began participating in services. Further, Gaynor was concerned that L.T. would allow Timothy to live with her because he was homeless.

The court held a contested jurisdiction and disposition hearing on May 4, 2012. Gaynor testified T.W. would be at risk if returned to L.T.'s custody because L.T. had participated in only three therapy sessions and refused to drug test twice, Timothy was still untreated for sexual abuse, and L.T. did not fully understand the dynamics of sexual abuse. Also, the parents had violated the court's visitation order on several occasions. Gaynor identified two safety threats to T.W.: (1) L.T. had allowed Timothy access to T.W. or had not protected her from the risk of sexual abuse; and (2) L.T. was likely to flee with T.W.

T.W.'s adult sister, L.C., testified she lived with L.T. and was asked to supervise Timothy's visits with T.W. She knew Timothy could not stay in L.T.'s home overnight and T.W. could not be left alone with the parents. L.C. said she never left T.W. alone with Timothy, and L.T. never supervised visits between T.W. and Timothy. L.C. testified she supervised eight visits between Timothy and T.W., four of which took place in L.T.'s home. She denied being told visits could not occur there.

The court received in evidence the stipulated testimony of social worker Rafael Munoz, who was assigned to T.W.'s case from December 2009 to July 2011 when T.W. was placed with Timothy. Throughout that time, the parents violated the court's orders for supervised visits with T.W. Munoz did not believe that L.T. would abide by the court's order prohibiting Timothy from being in her home or that she could protect T.W. from Timothy.

After considering the evidence and arguments of counsel, the court sustained the allegations of the section 387 supplemental petition and found reasonable efforts had been made to prevent T.W.'s removal from L.T.'s custody. The court removed T.W. from parental custody and placed her with a relative. The court found neither parent was entitled to an additional 12 months of services, but under the exceptional circumstances of this case, it was in T.W.'s best interests to order six more months of services for both parents.

DISCUSSION

The Parents' Appeals

I

The parents contend the evidence was insufficient to support the court's findings on the section 387 supplemental petition. They assert there was no evidence Timothy was having unsupervised contact with T.W. in L.T.'s home and, therefore, there was no showing T.W. was at risk of sexual abuse by Timothy.

A

A section 387 supplemental petition is used to change the placement of a dependent child from the physical custody of a parent to a more restrictive level of court-ordered care. (§ 387; Cal. Rules of Court, ² rule 5.560(c).) In the jurisdictional phase of a section 387 proceeding, the court determines whether the factual allegations of the supplemental petition are true and whether the previous disposition has been ineffective in protecting the child. (§ 387, subd. (b); rule 5.565(e)(1).) If the court finds the allegations are true, it conducts a dispositional hearing to determine whether removing custody is appropriate. (Rule 5.565(e)(2); In re H.G. (2006) 146 Cal.App.4th 1, 11, 52 Cal.Rptr.3d 364.) A section 387 petition need not allege any new jurisdictional facts, or urge different or additional grounds for dependency because a basis for juvenile court jurisdiction already exists. ( In re John V. (1992) 5 Cal.App.4th 1201, 1211, 7 Cal.Rptr.2d 629; In re Joel H. (1993) 19 Cal.App.4th 1185, 1200, 23 Cal.Rptr.2d 878.) The only fact necessary to modify a previous placement is that the previous disposition has not been effective in protecting the child. (§ 387, subd. (b); In re Joel H., at p. 1200, 23 Cal.Rptr.2d 878.)

We review the court's jurisdictional and dispositional findings for substantial evidence. ( In re Henry...