Filed 2/14/14 In re K.C. CA6
                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                  IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SIXTH APPELLATE DISTRICT


In re K.C. et al., Persons Coming Under the                          H039225
Juvenile Court Law.                                                 (Santa Cruz County
                                                                     Super. Ct. No. DP002363 &
                                                                     DP002364)

SANTA CRUZ COUNTY HUMAN
SERVICES DEPARTMENT,

         Plaintiff and Respondent,

             v.

J.P.,

         Defendant and Appellant.



         In this juvenile dependency matter, father, J.P. appeals an order of the juvenile
court sustaining a subsequent petition under Welfare and Institutions Code, section 342 ,1
and ordering guardianship of his children as the permanent plan, with the paternal
grandmother appointed as guardian.




         1
             All further statutory references are to the Welfare and Institutions Code.
                            STATEMENT OF THE F ACTS AND CASE2
        This is the fourth of father’s appeals. The origins of this matter are described in
detail in our previous decision, In re K.C. et al.(Jun. 5, 2012, H036896) [nonpub. opn.]
(K.C. I). To summarize, Father had two children, K.C. and her brother Z.J., as to whom
he informally shared custody with their mother, T.C. (Mother). The Santa Cruz County
Human Services Department (Department) initiated dependency proceedings after Z.J.
suffered severe brain injuries that doctors considered non-accidental. The Department
eventually concluded that the injuries had been sustained while Z.J. was in the home of
Mother, but were likely caused by a third party and not either of the parents.
        On April 7, 2011, the juvenile court sustained original petitions as to both
children under Welfare and Institutions Code section 300. It placed Z.J. with the
children’s paternal grandmother, J.W. (Grandmother), while placing K.C. with Father
under the supervision of the Department. We ultimately affirmed these orders, with
modifications, in K.C. I, supra, H036896.
        The second appeal addressed the court’s finding that its previous disposition
placing K.C. with Father was not effective in protecting her. We affirmed the court’s
order with modifications. (In re K.C. (Dec. 12, 2012, H037296) [nonpub. opn.] (K.C.
II).)
        The third appeal challenged orders from the six and 12-month review hearings that
terminated services for Father and reduced his visitation. We reversed the order
terminating services and directed the Department to afford Father additional services
unless new circumstances prevailing upon remand supported a finding that services were
unwarranted. (In re K.C. (2012) 212 Cal.App.4th 323, 334 (K.C.).)



        2
            The underlying facts of this case are contained in the opinions issued in prior
appeals.
                                                2
       This court issued its opinion in K.C. I on June 5, 2012. On June 14, 2012, the
Department filed a petition under section 342 to allege new facts or circumstances about
a current dependent child.
       On December 12, 2012, the juvenile court found clear and convincing evidence to
sustain the section 342 petition. The court found father continued to have undertreated
mental health issues that put the children at a substantial risk of harm. The court also
found that father had not progressed with treatment, and there were impulse control and
anger management issues that presented a substantial risk of harm to the children’s well-
being. The court concluded that it would be detrimental to terminate the parent child
relationship, and ordered legal guardianship as the permanent plan, appointing the
paternal grandmother as guardian.
       Father filed a timely notice of appeal.
                                         DISCUSSION
       On appeal, father asserts the evidence supporting the section 342 petition was
insufficient to sustain the petition, the court erred by failing to order reunification
services for father, and the court’s order following the remand from this court in case
number H036896 should be reversed.3
       Section 342 Petition
       Father asserts on appeal that the incidents alleged in the section 342 petition were
not new facts or circumstances; rather, they occurred in 2011, and 2012. Therefore, these
facts cannot be used to sustain a section 342 petition.
       Section 342 provides, “In any case in which a minor has been found to be a person
described by Section 300 and the petitioner alleges new facts or circumstances, other than
those under which the original petition was sustained, sufficient to state that the minor is


       3
        In the opening brief, father also argued the Department failed to comply with
Indian Child Welfare Act. Father subsequently withdrew this argument.
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a person described in Section 300, the petitioner shall file a subsequent petition. This
section does not apply if the jurisdiction of the juvenile court has been terminated prior to
the new allegations. . . .”
       Here, the court took jurisdiction of K.C. in April 2011 under section 300,
subdivision (b), which provides in pertinent part: “The child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm or illness, as a result of
the failure or inability of his or her parent or guardian to adequately supervise or protect
the child . . . , or by the inability of the parent or guardian to provide regular care for the
child due to the parent’s or guardian’s . . . substance abuse. . . . The child shall continue
to be a dependent child pursuant to this subdivision only so long as is necessary to protect
the child from risk of suffering serious physical harm or illness.”
       “The basic question under section 300 is whether circumstances at the time of the
hearing subject the minor to the defined risk of harm.” (In re Nicholas B. (2001) 88
Cal.App.4th 1126, 1134.) “Proof by a preponderance of evidence must be adduced to
support a finding that the minor is a person described by Section 300” at the jurisdiction
hearing. (§ 355, subd. (a).) “On appeal, the ‘substantial evidence’ test is the appropriate
standard of review for both the jurisdictional and dispositional findings. [Citations.]” (In
re J.K. (2009) 174 Cal.App.4th 1426, 1433.)
       Thus, “we must uphold the court’s findings unless, after reviewing the entire
record and resolving all conflicts in favor of the respondent and drawing all reasonable
inferences in support of the judgment, we determine there is no substantial evidence to
support the findings. (In re Monique T. (1992) 2 Cal.App.4th 1372, 1378, . . .)
Substantial evidence is evidence that is reasonable, credible, and of solid value. (In re
Angelia P. (1981) 28 Cal.3d 908, 924, . . .)” (In re Veronica G. (2007) 157 Cal.App.4th
179, 185.)



                                               4
       Here, the court relied on reports provided by the Department and other evidence in
sustaining the section 342 petition. Specifically, the petition alleged that father had an
undertreated mental health condition that created a substantial risk of abuse and neglect
as well as physical and emotional harm to the children. These allegations were supported
by Dr. Mark Burdick’s psychological evaluation dated November 11, 2011, and
statements from the supervising social worker, Trevor Davis. Dr. Burdick diagnosed
father with “Mood Disorder with obsessive/compulsive features, Cannabis Abuse,
Identity Problem, and Paranoid Personality Disorder.” In addition, according to
Mr. Davis, father refused to acknowledge that he suffered from any mental health
condition, and father believed Dr. Burdick’s evaluation that concluded he had a clinical
diagnosis was wrong. The court also considered an incident with law enforcement in
April 2012 during which father threatened the children’s grandmother in front of the
children, and punched a witness in the face when the witness tried to intervene.
Witnessing this incident caused his son to act aggressively in school, and his daughter to
be afraid of her father.
       In addition to allegations that father had undertreated mental health and anger
management issues, the petition also alleged father and mother failed to fully participate
in family reunification services provided to them, and mother was continuing her
relationship with the likely abuser of her son. The court relied on statements of father’s
therapist, Andy Castro, who stated that father had a history of raising his voice when
challenged, and that although he was engaging in services, he was not making behavioral
changes. The court also relied on Mr. Davis’s account that father continued to believe
that people involved in the dependency case were “liars,” and were plotting against him.
These people included father’s mother, and the two social workers involved in his case,
Janet Moncrief, and Mr. Davis.



                                              5
       The evidence presented at trial was sufficient to support the court’s finding
sustaining the petition. Moreover, there was sufficient evidence for the court to conclude
that the children were at substantial risk of serious physical and emotional harm if
returned to the care of either of the parents. Father’s significant problem with anger
management, as evidenced by the violent April 2012 incident, and his continuing denial
that he suffered from any mental disorder despite information from professionals to the
contrary support the court’s order sustaining the petition.
       Father asserts the incidents alleged in the petition were not “new,” and therefore,
could not provide the basis for a section 342 petition. Section 342 requires “petitioner
allege[] new facts or circumstances, other than those under which the original petition
was sustained.” (Emphasis added.) Here, the facts that were alleged as a basis for the
petition, including father’s undertreated mental health and anger management issues
occurred after original petition for jurisdiction under section 300, subdivision (b) was
filed. This satisfies the requirements under section 342.
       Father notes that the violent April 2012 incident occurred eight months prior to the
hearing on the section 342 petition, and could not provide a basis for a finding that the
children were presently at risk for emotional and physical harm. However, given the
severity of the facts of that incident, coupled with the real psychological and behavioral
impact it had on the children, the passage of eight months did not diminish its seriousness
or basis for the court’s finding of present risk to the children.
       Remand From This Court in Case Number H036896 (K.C. I)
       Father asserts that on remand, the juvenile court failed to follow the directions of
this court in its disposition in K.C. I. In particular, father complains the court did not
consider ordering reunification services for father.
       In the disposition of K.C. I, we revered the original court orders in part, and
directed the juvenile court to modify the disposition as to Z.J. “in accordance with this

                                               6
opinion and to reflect circumstances as they appear at the time of hearing on remand.”
As to K.C., we ordered the juvenile court to modify the disposition “if and as necessary”
to reflect circumstances at that time. (K.C. I, supra, H036896 [p. 50].)
       At the hearing of the section 342 order, the juvenile court stated “the Court of
Appeals . . . asked the Court to . . . make findings about Father’s situation . . . now that
we are at disposition.” In ruling on the petition, the court considered father’s present
circumstances, including his violence and impulse control problems and his mental health
issues in determining that he was not able to safely care for his children. The juvenile
court followed our directions on remand, and clearly considered the circumstances at the
time in ordering the disposition of the children.
       Failure to Provide Reunification Services
       Father argues the juvenile court erred in failing to order reunification services for
him. In particular, father notes that in his third appeal, K.C., supra, 212 Cal.App.4th 323,
this court held that the Department failed to provide reasonable services for father
because it did “little to secure a psychotropic medication evaluation recommend for
Father in s psychological evaluation . . . . ” (Id. at p. 325.) In the disposition of In re
K.C., this court directed the juvenile court “to afford Father additional services unless
new circumstances prevailing upon remand support a finding that services are
unwarranted.” (Id. at p. 334, italics added.)
       However, at the time of the hearing on this section 342 petition at issue on
December 12, 2012, this court had not yet issued its opinion in In re K.C. Therefore, with
the information presently before the court on the petition, the court acted within its
discretion in not offering father reunification services. (See, e.g., In re Barbara P. (1994)
30 Cal.App.4th 926, 934 [“Failure to order additional reunification services after finding
jurisdiction on a subsequent petition constitutes reversible error only if particular facts of
the case demonstrate an abuse of discretion in failing to order additional services.”].) The

                                                7
evidence in support of the petition demonstrated that father had participated in services
that were previously provided to him, but that he failed to change his behavior. Despite
having attended therapy, father still strongly believed he did not suffer from any mental
disorder. With regard to the section 342 petition, the court did no t abuse its discretion in
refusing to order reunification services for father.
       The Guardianship Appointment
       Father asserts the guardianship appointment should be reversed because the court
failed to provide him reunification services. Father points to this court’s opinion in In re
K.C., supra, 212 Cal.App.4th 323 as the primary basis for the reversal. However, as
discussed above, this court’s opinion in K.C. was issued on December 20, 2012, eight
days after the court’s decision to appoint the paternal grandfather as guardian. It was not
possible for the juvenile court to consider this court’s opinion in K.C. at the time the
guardianship appointment was made. Therefore, the opinion cannot form a basis for a
reversal of the order.
       Moreover, for the issues stated above, we do not find the court abused its
discretion in refusing to order additional services based upon the facts and allegations
before it at the time of the section 342 hearing.




                                              8
                              DISPOSITION
     The order is affirmed.


                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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