B.J. v. Superior Court
Filed 6/24/13 B.J. v. Superior Court CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
B.J. et
al.,
Petitioners,
v.
THE SUPERIOR
COURT OF SAN
FRANCISCO COUNTY,
Respondent;
SAN
FRANCISCO HUMAN SERVICES AGENCY,
Real Party in Interest.
A138336
(San Francisco
County
Super. Ct.
No. JD11-3075)
B.J.
and K.U. (parents) petition this court for an
and Institutions Code section 366.26 and California Rules of Court, rule 8.452,
seeking review of the juvenile court’s order terminating their
matter for hearing to implement a permanent plan for their son, B.T. (minor).
the evidence in the record fails to support the juvenile court’s findings that
they failed to make substantial progress on their case plan and that returning
minor to their care would present a substantial risk of harm to his
parents’ related request for a stay of these proceedings.
FACTUAL
AND PROCEDURAL BACKGROUND
On March 10, 2011, a petition was
filed in San
Francisco County pursuant to section 300, subdivisions (b), (c) and (g),
alleging that minor, then five years old, had suffered or faced substantial
risk of suffering serious physical harm or illness as a result of parents’
failure or inability to adequately supervise or protect minor, or as a result
of parents’ willful or negligent failure to adequately supervise or protect
minor from the conduct of the custodian with whom minor was left; had suffered
or faced substantial risk of suffering serious emotional damage as evidenced by
minor’s severe emotional anxiety, depression, withdrawal or untoward aggressive
behavior toward self or others as a result of parents’ behavior or failure to
provide appropriate care; and had been left without provisions for support
necessary for his physical or emotional health and safety (hereinafter, section
300 petition). Specifically, the section
300 petition alleged, among other things, that parents had abandoned minor, who
was found traveling from Mexico
to the United States
on February 26, 2011,
under the care of an adult male named Ewan Brighting. Minor was described as “dirty and smelly,
drinks out of a bottle, has rotten teeth, is non-verbal, and has behavioral
problems,†as evidenced by his acts of kicking, spitting and scratching several
people before attempting to run away.
Although the San Diego CPS (contacted by Homeland Security) found the
situation “odd,†Brighting was nonetheless permitted to take minor into the
United States because minor seemed bonded to him and Brighting had documents
from parents authorizing him to do so.
San Francisco Human Services Agency
(agency) social worker Gomez and her supervisor visited minor at Brighting’s San
Francisco residence on March 3, 2011. They
observed that minor, who was dirty and smelled of urine, had speech and
behavioral problems, including an inability to sit still, avoidance of eye
contact and acting out by, among other things, throwing items at them. Brighting confirmed these problems and
acknowledged minor had never been assessed for social services. Brighting also advised that minor generally
slept with him in his bed.
On March 8, 2011, the juvenile court
ordered minor removed from Brighting’s care and taken to the Child Protection
Center (CPC). The CPC ordered an
immediate assessment of minor due to his “out-of-control†behavior, which
included kicking, spitting, and screaming.
Eventually, minor calmed down, yet kept his right hand inside his pants,
touching his penis, prompting social worker Gomez to ask him whether anyone had
touched him there. Minor responded by
identifying Brighting. A few days later,
the juvenile court found that a prima facie case had been made that minor came
within section 300, and thus ordered him detained and placed in foster
care.
The juvenile court subsequently
ordered a settlement conference for April of 2011, prior to which the
appropriate Mexican social services agency, DIF, conducted a home study of
parents’ residence in Mexico. This study revealed that parents’ home lacked
a working bathroom and was surrounded by piles of trash and other waste that,
parents advised, was awaiting recycling.
In addition, it was noted that a report had been filed by parents
stating that minor had been physically or verbally abused in the home by his
aunt F.M.
When the agency’s social worker,
Kristina Pock, later spoke to parents, mother expressed disbelief at the
agency’s description of minor’s poor condition when they found him, and claimed
his rotting teeth were simply from eating too much candy. She admitted minor had not received dental
care even though it was available and inexpensive in Mexico. Father also confirmed he used to sell drugs
and was now barred from entering the United
States after being thrice deported for
various violations. Pock concluded
parents lacked the necessary parenting skills to care for minor, noting that
mother seemed more annoyed than happy to hear from him despite a two-month
absence, and that minor did not seem to recognize or be excited to speak to
parents.
Meanwhile, the foster mother in San
Francisco with whom minor was placed reported that, when he arrived, he was not
socialized, was unable to drink from a cup or use the toilet, and could barely
speak. Minor had also been abusive to the
other foster children, engaging in sexually aggressive behavior such as trying
to touch his foster brother’s penis and to passionately kiss other children on
the mouth. While minor had made
significant progress since his arrival, learning to use a cup and the toilet,
to follow instructions and to play properly with the other children, he still
exhibited speech and language problems.
The agency arranged for him to begin individual therapy for sexual abuse
and to complete a psychological
assessment.
Social worker Pock filed addendum
reports on August 11 and October 5, 2011.
federal officials were investigating Brighting for suspected
nude pictures of [minor] and other male children†had been found on his
computer. Minor had received extensive
dental treatment and had become more socialized, but still exhibited sexualized
and aggressive behaviors. His vocabulary
had improved, although his speech remained delayed. Parents had been ambivalent about phone
visitation, raising inappropriate topics and concern about others listening
in. Minor was unwilling to speak to
father. The agency recommended mandatory
weekly therapeutic visitation via
Skype in light of these concerns.
On a positive note, parents had
begun receiving family therapy to comply with the case plan’s requirement of
parenting education, and had begun paperwork at a school for minor. DIF also confirmed parents’ installation of a
bathroom and agreed to conduct monthly home visits for six months for minor’s
safety.
On
October 21, 2011, the juvenile court sustained allegations in the section
300 petition with respect to subdivisions (b), (c) and (g). In addition, the court adopted the case plan
proposed by the agency, which required parents, with assistance from DIF, to
improve the sanitation of their home by removing waste materials from the yard
and providing a working bathroom; to secure therapeutic services to address
minor’s speech and language deficiencies; to secure medical services to address
his dental and other health needs; to enroll in and complete a parenting class;
and to adopt a safety plan to ensure minor is not abused again by his
aunt. Finally, the court adopted the
agency’s recommendation for supervised weekly therapeutic phone calls via
Skype.
A
status review hearing was held on April 19, 2012, after which six
additional months of services were ordered. The report and addendum
filed in anticipation of this hearing reiterated many of the concerns set forth
in the August and October 2011 addendum reports. (See Status Review Report 4/19/12 filed
April 17, 2012, supra, at
pp. 3-16.) For example, the report
noted ongoing problems with parents’ case plan compliance. Among other things, a second DIF home study
was delayed due to father’s request; father had participated in just two of ten
phone visits; mother had begun family therapy, yet insisted her therapist have
no contact with the agency regarding this case; trash in parents’ yard remained
a problem; and, although parents had insisted a local school could provide
minor speech therapy, a letter from the school failed to mention it. A DIF representative had spoken to social
worker Pock and expressed concerns regarding parents’ apparent pattern of lying
and manipulation. This representative
mentioned an incident of mother secretly video-taping a DIF home visit, and
explained that mother did not appear to trust the agency or DIF. In addition, Pock advised that parents
continued to trust Brighting, to discuss the case with him, and to defend him. Father, in particular, had told Pock that he
did not believe the allegations in the section 300 petition, did not believe
there were any problems with his home, and did not consider it wrong to send
minor away with Brighting. Mother, in
turn, appeared to defer at all times to father.
The
agency’s report also stated, however, that minor was doing very well socially
and academically in kindergarten, was receiving speech and language therapy,
was participating in bi-weekly therapy sessions with Lydia Santiago, and had
been psychologically assessed by Brianna Coffino, Ph.D., at the Child Trauma
Project. This assessment observed that
minor displayed symptoms relating to his uncertain home situation and
unpredictable relationships, and to his possible traumatic experiences with Brighting.
Following
the August 2012 status review hearing, the juvenile court continued
reunification services with the goal of minor’s return to parents, and the
matter was set for an 18-month review hearing.
The 18-month review hearing occurred
in March of 2013, a report for which was prepared by social worker Pock. As before, this report noted ongoing concerns
regarding parents’ mistrust of the agency and its findings, and their continued
trust of and reliance on Brighting. The
report also noted Pock’s frustrations with parents’ progress in meeting certain
case plan requirements, such as improving their parenting skills and
recognizing their role in minor’s dependency.
For example, parents were not receptive or cooperative with respect to
services and did not believe minor needed therapy or had been mistreated. While visitation via Skype was mostly
appropriate, parents were in denial about their son’s significant speech and
language delays and his need to participate in a special education program. In addition, parents had made clear they
would not maintain a relationship with minor’s foster family if he were
returned.
Dr. Coffino, in turn, had
submitted a 17-page report based on extensive interviews with minor, parents,
the foster family, and professionals who had been working with the family. Like Pock, Dr. Coffino was concerned
with parents’ ongoing denial of minor’s past abuse and current impairments, and
their ongoing support of Brighting. Dr. Coffino
also expressed doubts regarding parents’ ability to adequately care for and protect
minor, given their lack of concern or remorse for placing him in Brighting’s
care in the first place and lack of acknowledgement of his difficulties. Ultimately, Dr. Coffino advised that
minor continue receiving services and maintaining relationships with both
parents and his foster family, whether he stay in the United States or return
to Mexico.
At the 18-month review hearing, the
juvenile court heard testimony from social worker Pock, Dr. Coffino,
Dr. Lieberman (consulting therapist), and therapist Loveseth (who
supervised Skype visitation). In
addition to the facts set forth above in the agency’s report, the witness
testimony revealed that the DIF had now closed its case in Mexico; parents had
failed to secure speech therapy or a special school for minor (or even to
acknowledge his need for it); parents had failed to validate their own
participation in therapy; parents continued to defend Brighting and to refuse
to agree to maintain a relationship with minor’s foster family should he be
returned; and father continued to participate only minimally in
visitation. Drs. Coffino and
Lieberman, moreover, confirmed minor still had significant emotional
difficulties stemming from his severe neglect, deprivation and “most likely
also, actual abuse.†They strongly
advised minor not be returned to Mexico given the unacceptably high risk of
relapse due to parents’ continued denial of any problem or concern, and given
minor’s need of a structured, nurturing and loving home environment with access
to services.
On March 28, 2013, at the hearing’s
conclusion, the juvenile court found by clear and convincing evidence that the
agency had offered reasonable services, but that parents had failed to make
substantial progress with the case plan.
The juvenile court further found that returning minor to parents’
physical custody would present a substantial risk of detriment to minor’s
safety or physical or emotional well-being.
The juvenile court thus terminated reunification services and set the
matter for a selection and implementation hearing on July 29, 2013.
Parents filed a timely petition and related request for
a stay.
DISCUSSION
Parents challenge the March 28, 2013, order
terminating reunification services and setting the matter for a permanency
planning hearing on the ground that the evidence was insufficient to support
the juvenile court’s findings that they failed to make significant progress
with the case plan and that returning minor would create a substantial risk of
detriment to his safety, protection or physical or emotional or
well-being. The following legal
principles are relevant to their challenge.
When
a child is removed from parental custody, the juvenile court must order
reunification services to assist the parents in reuniting with the child. (§ 361.5, subd. (a).) Where, as here, a minor without siblings
involved in the dependency system, and is over the age of three at the time of
his initial removal from the physical custody of the parents or guardian,
“court-ordered services shall be provided beginning with the dispositional
hearing and ending 12 months after the date the child entered foster care as
provided in Section 361.49, unless the child is returned to the home of the
parent or guardian.†(§ 361.5,
subd. (a)(1)(A).) “If the time period in
which the court-ordered services were provided has met or exceeded the time
period set forth in subparagraph (A) . . . of paragraph (1) of
subdivision (a) of Section 361.5 . . . and a child is not returned to
the custody of a parent or legal guardian at the permanency hearing held
pursuant to subdivision (f), the court shall do one of the following: [¶]
(1) Continue the case for up to six months for a permanency review
hearing, provided that the hearing shall occur within 18 months of the date the
child was originally taken from the physical custody of his or her parent or
legal guardian. . . .†(§ 366.21,
subd. (g)(1).)
Following
such a continuance, the juvenile court must “order the return of the child to
the physical custody of his or her parent or legal guardian unless the court
finds, by a preponderance of the evidence, that the return of the child to his
or her parent or legal guardian would create a substantial risk of detriment to
the safety, protection, or physical or emotional well-being of the child.
. . . The failure of the
parent or legal guardian to participate regularly and make substantive progress
in court-ordered treatment programs shall be prima facie evidence that return would
be detrimental. In making its
determination, the court shall review and consider the social worker’s report
and recommendations and the report and recommendations of any child advocate
appointed pursuant to Section 356.5; shall consider the efforts or progress, or
both, demonstrated by the parent or legal guardian and the extent to which he
or she availed himself or herself of services provided . . . .†(§ 366.22, subd. (a).)
Thus,
applying this statutory framework to the facts at hand, the juvenile court
found that returning minor to parents would create a “substantial risk of
detriment to [his] safety, protection, or physical or emotional well-being†due
at least in part to “[t]he failure of . . . parent[s]
. . . to participate regularly
and make substantive progress in court-ordered treatment programs
. . . .†(§ 366.22, subd. (a).)
On appeal, we review the juvenile court’s factual findings for
substantial evidence. (
R. v. Superior Court (1998)
66 Cal.App.4th 965, 969, 971; Jennifer
A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1341.) In doing so, “we may look only at whether
there is any evidence, contradicted or uncontradicted, which supports the trial
court’s determination. We must resolve all conflicts in support of the
determination, and indulge in all legitimate inferences to uphold the court’s
order. Additionally, we may not substitute our deductions for those of the
trier of fact.†(Elijah R. v. Superior Court,
supra, 66 Cal.App.4th
318.) Ultimately, our task is to decide
whether any reasonable trier of fact, considering the entire record, could
properly have made the challenged decision.
(Kuhn v. Department of General
Services (1994) 22 Cal.App.4th 1627, 1633; see also In re Mark L. (2001) 94 Cal.App.4th 573, 580-581
rule of conflicting evidence is applied, giving full effect to the respondent’s
evidence, however slight, and disregarding the appellant’s evidence, however
strongâ€].)
Having considered the record as a whole and in a
light favorable to upholding the juvenile court’s March 28, 2013 order (
66 Cal.App.4th at p. 969), we conclude substantial evidence does indeed support
the juvenile court’s underlying
findings that parents failed to make significant progress with the case
plan and that returning minor to their custody would create a substantial risk
of detriment to his safety, protection or physical or emotional
well-being. Among the many
relevant facts supporting this order, we highlight those we deem most
significant.
First, with
respect to the case plan, there is evidence in this record in the form of
agency reports and testimony from social worker Pock establishing that parents
failed in several significant regards to meet the court-ordered conditions for
minor’s return. Among other facts (which
are described in much greater detail above):
father had failed to regularly participate in phone visits; mother had
begun family therapy with a therapist who was not adequately informed regarding
minor’s circumstances; sanitation and safety concerns remained with respect to
parents’ home; and no evidence had been provided that minor had been enrolled
at a school with the capacity to provide him with much-needed speech and
language services or therapy (which parents continued to deny minor
needed).
Next, with respect to the
substantial risk of detriment to minor’s safety, protection or physical or
emotional well-being should he return to parents’ physical custody, there is
ample evidence that parents remained incapable or unwilling to address the
underlying concerns that had led to his detention in the first place. For example, as set forth in reports and
testimony from minor’s case workers and professional service-providers, parents
continued to be uncooperative or mistrustful of those involved in minor’s case
and to deny his abuse or need for therapy and special education programs. Parents also remained unwilling to agree to
maintain a relationship with minor’s foster family and, at the same time, to
protect or isolate minor from Brighting (who they continued to defend and rely
on). Parents’ conduct in these regards
runs contrary to the well-supported opinions of Drs. Coffino and Lieberman that
minor’s well-being required that he continue receiving services and therapy and
maintaining nurturing, stable and loving relationships, whether he stay here or
return to Mexico.
This record, we conclude, provides
substantial evidence in support of the juvenile court’s findings that parents
failed to make
substantial progress with their case plan, with the result that a substantial
risk of detriment to minor’s safety, protection, physical or emotional
well-being would be created should he return to their custody. As such, the juvenile court’s decision to
terminate services and set this matter for a permanency planning hearing was
proper. Even accepting parents’
argument that they have recently accomplished many of the agency’s case plan
goals, including the goals of improving the sanitation and safety of their home
and participating in supervised Skype visits and therapy sessions, our role in
this case requires consideration of all the evidence in the record and in a
light most favorable to the juvenile court to determine whether the evidence
supporting its decision is substantial. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705, 708,
fn. 4.) Having done so, we conclude the
evidence in this case is more than substantial. (Cf. Jennifer
A. v. Superior Court, supra, 117 Cal.App.4th 1322, 1326, 1341 [granting writ petition and
issuing a peremptory writ of mandate directing the juvenile court to vacate its
order terminating reunification services and setting a permanency hearing
where, among other things, there was “no evidence†mother had a mental illness
affecting her parenting skills or could not provide adequate living conditions
for the minors].) Accordingly,
parents’ writ petition and request for a stay are both denied.
DISPOSTION
The
petition for extraordinary writ is denied on the merits (§ 366.26, subd. (
moot. Our decision is final
immediately. (Rules 8.452(i) &
8.490(b).)
_________________________
Jenkins,
J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] Unless otherwise stated, all statutory
citations herein are to the Welfare and Institutions Code, and all references
to rules are to the California Rules of Court.
The CPS worker also stated that
minor was crying and non-engaging throughout the interview, and that Brighting
was unable to calm him down or control him.
Brighting, described as a close family friend who had lived with parents
in Mexico for several months before returning to the United States on
February 26, 2011, later told the agency it was parents’ idea for him to
take minor with him. Father disagreed,
claiming it was Brighting’s idea, although they authorized it, and mother
claimed to the CPS she opposed the idea.
