Filed 3/10/14 In re William F. CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re WILLIAM F. et al., Persons Coming
Under the Juvenile Court Law.


STANISLAUS COUNTY                                                                     F067834
COMMUNITY SERVICES AGENCY,
                                                                   (Super. Ct. Nos. 516690 & 516691)
         Plaintiff and Respondent,
                   v.
                                                                                  OPINION
RICHARD F.,
         Defendant and Appellant.

                                                   THE COURT*
         APPEAL from orders of the Superior Court of Stanislaus County. Ann Q.
Ameral, Judge.
         Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Levy, Acting P.J., Gomes, J., and Peña, J.
      Richard F. (father) appeals from the juvenile court’s dispositional order removing
his sons, William and Alfred, seven and four years old respectively, from his custody.
He contends reasonable efforts were not made to prevent the children’s removal.
Therefore, he further contends, the juvenile court erred and its removal order must be
reversed. We affirm.
                   PROCEDURAL AND FACTUAL SUMMARY
      Father and his wife, M.H. (mother), are the parents of William and Alfred, the
subjects of this appeal. Father and mother also have three adult daughters and a ten-year-
old daughter, Emily.
      Mother has a history of drug use. In 2006, she tested positive for amphetamines
while delivering William. William tested negative. Mother admitted using drugs during
her pregnancy and father admitted to having been involuntarily committed in 2006. He
was diagnosed with adjustment disorder and personality disorder but not prescribed
medication. They participated in six months of voluntary family maintenance services
during which mother completed alcohol and drug treatment. Their case was closed in
November 2006.
      In 2009, while pregnant with Alfred, mother was admitted to the hospital because
her “water ruptured” and remained there until Alfred was born. She tested positive for
marijuana and admitted to using it daily. She also used Oxycontin during the pregnancy
until the third trimester when she switched to methadone.
      These dependency proceedings were initiated in June 2013 after Officer R. Cuellar
was dispatched to father and mother’s house to investigate a report that a male minor was
in front of the house naked and that his brother who was autistic was running down the
street. Officer Cuellar found four-year-old Alfred naked standing in front of the garage
door. Alfred ran to the front door but could not open it. Cuellar opened the unlocked
door and Alfred ran in. Mother was asleep on the couch. Cuellar woke mother up and

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told her William was missing. She said William was autistic. While other officers
searched for William, Cuellar looked through the home. He observed human feces and
rotten food in every room and razor blades and broken glass in the bathtub. He also
noted human and dog feces along with a rotten egg on the bed where the children played.
There was also a pornographic magazine found in the bathroom in an open drawer within
reach of the children.
       Mother told Cuellar the house had been in that condition for a month. She also
told Cuellar that she had a babysitter, “Tayana,” who left but was supposed to return.
She could not provide “Tayana’s” address and telephone number. During the
conversation, William was located two streets over and returned home.
       Mother also told Cuellar that she was diagnosed with extreme anxiety and
depression. She said she had not been taking her medication for a year and was self-
medicating with alcohol and marijuana. She was also taking a non-addictive pain
medication for a shoulder injury.
       Father arrived and confirmed that the house had been in that condition for
approximately a month. He said neither he nor mother was employed and he had been
gone for three days looking for a job. He said he and mother were having financial and
marital problems and did not have the time to clean the house.
       Cuellar contacted the Stanislaus County Community Services Agency (agency)
and emergency response social worker Monica Medeiros responded. Father told
Medeiros mother attempted suicide in 2012, was suffering from depression, but not
taking medication for it. He also said she drank one to five high gravity beers each day.
Mother said she smoked marijuana and drank two “tall cans” of beer every day. She said
she last used methamphetamine a year before. Father denied any drug use. Mother,
however, suspected he was using methamphetamine. Cuellar told Medeiros the police
had responded to the home five times in 2013 for domestic disputes.

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       Father and mother told Medeiros William was diagnosed with autism when he was
three, but the family had not been able to obtain services for him.
       Medeiros took William and Alfred into protective custody and Cuellar arrested
mother and father for child cruelty. At the time, Emily was spending the summer with
family friends. The agency placed William and Alfred together in foster care.
       The juvenile court ordered William and Alfred detained pursuant to a first
amended petition filed by the agency1 and set a combined jurisdictional/dispositional
hearing (the hearing) for July 2013. Social worker Sarah Hernandez provided father and
mother referrals for a clinical assessment and parenting classes through Sierra Vista Child
and Family Services, as well as individual counseling for mother. In addition, she
referred them for a medication evaluation and an alcohol and drug assessment through
Behavioral Health Services.
       In its report for the hearing, the agency provided more detail about the family’s
background and circumstances. Father was 44 years old and worked for 25 years in the
heating and air conditioning business. In February 2012, he and the family moved to
California after his employment in Alaska ended. He had been unemployed since, but
was actively seeking employment. He said the family had endured difficult times and he
acknowledged having a mental breakdown in the past and having to be admitted to the
hospital. However, he said he was released shortly after admission and was not
prescribed medication. He said he participated in parenting classes and drug testing and
completed a drug and alcohol assessment as part of the voluntary maintenance services
plan. However, he did not require treatment. He said he last used methamphetamine
when he was 22, alcohol when he was 25 and marijuana when he was 35. He did not see
any harm in mother smoking marijuana and her use did not influence him. He also said

1      The agency filed a dependency petition as to Emily but did not detain her. The
juvenile court ultimately dismissed the petition.

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they had tried to get help by applying for couples counseling, individual counseling and
counseling for William’s anxiety. They also tried to obtain services for William through
Valley Mountain Regional Center but had not received a response. They erected an eight
and a half foot fence to keep William safe and put a chime on the door to alert them if he
went outside. He felt the family was “caught at the wrong time.”
        Mother, 44 years old, received treatment while in Alaska for acute anxiety and
depression including anti-depressants and weekly therapy. She did not like taking
medication and stopped. She has a “degenerative disc in her neck” and suffered whiplash
in 2000 as the result of a head-on collision. She takes non-narcotic pain medication and
is under a doctor’s care. She has physical limitations which prevent her from doing
laundry and mopping. She smokes marijuana occasionally for pain and has one or two
beers every now and then. She used methamphetamine when William was born because
she was under stress. She previously completed voluntary maintenance services and no
longer used methamphetamine. She said it had been a rough year and she could not cope
with father not working. She believed they needed couples counseling to help them
communicate better and that father needed anger management. She said he occasionally
pushed her around and cornered her which made her uncomfortable. She said she was
not alone when she fell asleep. “Jill” was also there and mother was asleep maybe 20
minutes. She assumed complete responsibility for the charges, but said she did not do it
deliberately. She said there was nothing rotten on the floor ─ she “just had not swept up
yet.”
        The agency also reported William and Alfred had to be removed from their initial
foster care placement after one day because of William’s behavior. His caregivers
reported that he was affectionate and loving but was “a lot of work.” He loved to “climb
all over the place and was very active.” He was also anxious and picked at his skin or at
objects near him when he was not engaged in an activity. Alfred was also reportedly

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loving, but exhibited sexualized behavior with other foster children, including William.
Approximately two weeks into their second placement, the caregivers gave the agency a
seven-day notice to remove the boys. As of the report, the boys were in a foster care
home in Sacramento.
       The agency recommended that the juvenile court exercise its dependency
jurisdiction and provide father and mother reunification services. The agency’s concern
was that father and mother minimized their alcohol and drug use, domestic violence and
mental instability and the chaotic and unsafe environment it created for the children. The
services plan recommended by the agency included mental health services for the whole
family, parenting education and substance abuse treatment for father and mother, and a
regional center assessment for William. The agency also recommended that father and
mother attend a parenting class at a regional center to address the issues of parenting an
autistic child.
       The hearing originally scheduled for July 2013 was continued until August and set
as a contested hearing. Meanwhile, the agency filed an addendum report advising the
juvenile court that William and Alfred were in separate foster homes because the agency
had not been able to find one caregiver willing to take them both. The agency considered
the placements concurrent homes for the children, but advised the court it would continue
its efforts to place the brothers together.
       The agency also reported father and mother completed assessments at Sierra Vista
and were referred for a clinical assessment and parenting classes. Mother was also
referred for individual counseling. Father and mother scheduled but did not keep two
appointments for an alcohol and drug assessment. In addition, mother appeared to be
under the influence of some substance during a visit with the children in early August, as
she was reportedly “jittery” and “lethargic.” They were asked to drug test but declined
on the advice of their criminal attorney. Because of father and mother’s unwillingness to

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be assessed for substance abuse and to drug test, the agency said it had not been able to
consider voluntary family maintenance services nor had it scheduled a home assessment
for safety hazards.
       In August 2013, at the contested hearing, mother testified she had not been
assessed for substance abuse and was not participating in parenting classes or counseling.
She did not believe she then suffered from depression or anxiety nor needed medication.
She denied having any concerns about father’s anger or her safety. She denied being
under the influence of a drug or alcohol during the August visit and denied exhibiting any
of the reported behavior.
       Mother further testified she and father were living with his mother and brother.
Asked whether she had put a plan in place to keep her current residence clean, mother
could only say she was “working” on a plan. She said there were locks on all the doors
and locked gates in the backyard to keep William safe. Mother took pictures of the home
in which she was living and the juvenile court received them into evidence.
       Sarah Hernandez testified she knew father and mother moved to a different home.
However, she had not assessed the home to determine its suitability for placing the
children there. In order for the home to be approved, the other inhabitants had to be live
scanned and had not been. In addition, Hernandez was waiting for the results of father
and mother’s drug and alcohol assessments before she assessed the home. She conceded
they did not have to complete a drug and alcohol assessment or submit to random drug
testing prior to the hearing. However, she did not believe the safety of the home could be
assessed until concerns about father and mother’s drug use could be allayed. She was
also concerned about domestic violence in front of the children, mother’s mental state
and the lack of supervision. Her concerns for the family, she said, were more than the
dirty house.



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       Following testimony, the juvenile court amended the petition and heard argument.
The court found the first amended petition true as modified, ordered William and Alfred
removed from father and mother’s custody, and found there were no reasonable means to
protect the children without removing them. The court ordered reunification services as
proposed by the agency and set a six-month review of services for January 2014. This
appeal ensued.2
                                      DISCUSSION
       Father contends the juvenile court erred in ordering William and Alfred removed
from his custody. We disagree. In order to remove a child from parental custody, the
juvenile court must find by clear and convincing evidence, as relevant here, that “[t]here
is or would be a substantial danger to the physical health, safety, protection, or physical
or emotional well-being of the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be protected without
removing the minor from the minor’s parent’s ... physical custody.” (Welf. & Inst. Code,
§ 361, subd. (c)(1).)
       Father does not dispute that William and Alfred were exposed to a substantial risk
of danger in his custody. Instead, he argues, there were reasonable means to protect them
from that danger without removing them. Specifically, he points out that their new home
is clean and free of clutter as evidenced by the pictures introduced at the hearing.
Further, he contends the agency could have protected the children in the home by
offering the family in-home services, respite care, and family counseling through the
regional center.
       We review the juvenile court’s dispositional order removing a child from parental
custody for substantial evidence, bearing in mind that clear and convincing evidence

2      Mother did not appeal.


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requires a heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635,
1654.) Having reviewed the record, we conclude substantial evidence supports the
juvenile court’s removal order.
      William and Alfred were initially removed from father’s custody because they
were unsupervised and endangered and because the home was hazardous and filthy. If
the lack of supervision had been an isolated incident and the condition of the home had
improved by the dispositional hearing, the juvenile court would have more than likely
returned the children to father’s custody. However, this was, as Ms. Hernandez testified,
more than a case of a dirty home. Rather, there was evidence suggesting ongoing
substance abuse, domestic violence and mental instability.
      The question then is whether substantial evidence supports the juvenile court’s
finding there were no alternatives to removal including the provision of in-home services.
We conclude that it does. First, there was no reason to believe father and mother would
have participated in services. They had the opportunity to do so but were unwilling.
Beyond their unwillingness, however, there is a far more compelling reason in our view
why in-home services were not an alternative in this case. Mother and father were under
tremendous financial and emotional stress which they were trying to overcome without
adequate coping skills. At the same time, they had two children who required close and
constant supervision. As a result, the family’s needs were great and the problems were
not going to be resolved quickly. In the meantime, the possibility the children could be
left unsupervised remained and the consequences were dire. As the juvenile court noted,
the children could have been killed while mother slept. Under the unique circumstances
of this family, in-home services were not sufficient to guarantee William and Alfred’s
protection in the home and were not an alternative to their removal.
      We find no error on this record.



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                                    DISPOSITION
      The juvenile court’s dispositional order issued on August 8, 2013, removing
William and Alfred from father’s custody is affirmed.




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