Carrie L. v. Super. Ct.
Filed 1/2/13 Carrie L. v. Super. Ct. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FIFTH APPELLATE DISTRICT
CARRIE L.,
Petitioner,
v.
THE
SUPERIOR COURT OF FRESNO COUNTY,
Respondent;
FRESNO
COUNTY DEPARTMENT OF SOCIAL SERVICES,
Real Party in Interest.
F065773
(Super. Ct. No. 11CEJ300136)
O P I N I
O N
THE COURT
ORIGINAL
PROCEEDINGS; petition for
Fresno
Dependency Office and Samuel D. Kyllo, for Petitioner.
No
appearance for Respondent.
Kevin
Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Real
Party in Interest.
-ooOoo-
Carrie
L. (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from
the juvenile court’s orders issued at a contested 12-month review hearing
(Welf. & Inst. Code, § 366.22, subd. (a))
section 366.26 hearing as to her 12-year-old daughter M.S. and two-year-old
son, T.S. Mother contends the juvenile
court erred in finding that she was provided reasonable services and that there
was not a substantial probability the children could be returned to her
custody. She seeks an order from this
court directing the juvenile court to vacate its section 366.26 hearing and to
continue reunification services. We
decline to do so and deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
In
June 2011, the Fresno County Department of
Social Services (department) took then ten-year-old M.S. and
eight-month-old T.S. into protective custody and filed a dependency petition
alleging that mother and the children’s father, Matthew S., placed the children
at risk of harm because of their drug use and domestic violence.
In its report
for the detention hearing, the department included mother’s child welfare
history, which dated back to 2004. In
addition to multiple reports over the years of mother’s drug use, there was
also a report in 2007 that then seven-year-old M.S. was sexually molested. The department substantiated the report and
the perpetrator was arrested.
In
July 2011, the juvenile court ordered the children detained and ordered the
department to refer M.S. for a mental health assessment and treatment if
indicated. The juvenile court also
ordered the department to offer mother and Matthew services.
In
July 2011, mother completed a substance abuse assessment and was referred for
intensive outpatient substance abuse treatment.
Mother also completed a domestic violence assessment and was referred to
a domestic violence victim’s treatment program.
In mid-July, mother entered drug treatment, but relapsed and was
discharged approximately a week later.
The department scheduled a meeting to help her re-enter treatment, but
she did not attend. By August, the
department had lost contact with mother and her whereabouts were unknown.
In
August 2011, the children were placed with their paternal aunt. That same month, M.S. began seeing therapist
Monica Reynoso weekly. M.S. expressed
worry and fear about visiting her father and stated she did not want more
frequent visitation. She also talked a
lot about wanting to stay with her aunt and enjoying her school and
friends.
In
December 2011, the juvenile court conducted the dispositional hearing. Mother was in attendance. The juvenile court ordered the children
removed from parental custody and ordered mother and Matthew to participate in
parenting classes, substance abuse and domestic violence treatment, complete a
mental health assessment and participate in recommended treatment, and submit
to random drug testing. The juvenile
court also ordered supervised visits and set the six-month review hearing for
June 2012.
By
June 2012, mother was participating in her services plan and the department
anticipated that she would be able to resume custody of the children within
another six months. The department
reported that mother completed inpatient drug treatment and had tested negative
for drugs since the preceding March. She
completed a mental health assessment and was attending weekly therapy sessions
and making progress. She was also
addressing domestic violence with her therapist during their sessions. In addition, the department had advanced
mother to unsupervised visitation, which M.S. enjoyed. She, however, expressed discomfort having
mother’s boyfriend present. The
department told mother that her boyfriend could not attend visits. Mother said she understood and would not
include him again, but two weeks later she told M.S. that she was taking them
to see “Shadow.†She told M.S. not to
tell anyone, however, because she could get into trouble because Shadow had not
had a background check. When confronted,
mother explained that Shadow was M.S.’s godfather and his mother wanted to see
M.S. Mother agreed not to allow anyone
who had not been screened to participate in visitation.
The
department further reported that mother had obtained housing for herself,
attended Alcoholics/Narcotics Anonymous meetings, and had a sponsor. In addition, M.S. stated that she wanted to
remain with her brother and her aunt, but also wanted to be placed with mother
if at all possible. However, she did not
want to reunify with her father. She
said that she loved him but was afraid of him.
In
June 2012, at the six-month review hearing, the juvenile court continued
reunification services to mother and Matthew and set the 12-month review
hearing for August 2012.
The
12-month review hearing was conducted in September 2012. In the few short months between the review
hearings, the prospects of mother successfully reunifying diminished. M.S. reported that her great-aunt said that
mother was no longer living with her and she did not know where mother
was. M.S. did not want to visit mother
unsupervised as she did not trust mother to keep her and her brother safe. M.S. also told her therapist that she did not
want to reunify with mother. She said
she would try conjoint therapy with her mother and even an overnight visit, but
was not comfortable with the idea. She
cried when the subject of overnight visitation was raised and insisted on
having several safety plans in place if it occurred.
During
this same period, mother was exhibiting increasing frustration with M.S.’s
resistance and responded inappropriately to her. For example, she told M.S. that M.S. was
making it hard for her to remain sober.
She told her that she (M.S.) was “F***ed up†because she (mother) was
“F***ed up†and that M.S. would always be “F***ed up.†She also told M.S. that her (mother’s)
therapist thought M.S. was acting like a “B.â€
Also, during this time, it was becoming increasingly apparent that T.S.
was developmentally delayed and was possibly autistic. Finally, during this period, Matthew decided
it was in the children’s best interests if they were adopted by his sister and
he ceased any further attempts to reunify.
In
its report for the 12-month review hearing, the department recommended that the
juvenile court terminate reunification services for mother and Matthew. Its reasoning as to mother was that, though
she completed her court-ordered services and maintained her sobriety, she
demonstrated she did not utilize the skills she learned as evidenced by her
inappropriate communication with M.S. In
addition, she did not have stable housing or a job and was struggling to
provide the basic necessities such as food for T.S. during their two-day-a-week
liberal visits. She had even resorted to
panhandling at the zoo with T.S. for $2 to drug test. Thus, the department opined it was
detrimental to return the children to mother’s custody and there was not a
substantial probability the children could be returned to her after another
period of reunification.
In
September 2012, the juvenile court conducted a contested 12-month review
hearing. Monica Reynoso testified that
she diagnosed M.S. with anxiety disorder and that M.S.’s anxiety was related to
returning to mother’s care. She
testified that M.S. was excelling socially and scholastically in her aunt’s
home and she was concerned that she would decompensate if she were placed in a
situation that caused her anxiety. She
said M.S.’s primary need was “some sort of finality for her to know what’s
going to happen in her future .…â€
Ms.
Reynoso further testified that she did not refer M.S. for family therapy
because M.S. stated she was not ready for it.
M.S. felt hopeless that any change would occur and did not believe it
would make a difference. Ms. Reynoso
also testified that family therapy needed to occur before M.S. could reunify
with mother. However, Ms. Reynoso said
she would not be conducting family therapy if it occurred because she was
concerned M.S. would view her participation as a betrayal.
Social worker
Tiffany Murphy-Deaver testified that M.S. was asked if she wanted to
participate in therapy with mother and her therapist and M.S. said she was not
comfortable doing that. She said they
considered having a third party conduct the therapy, but did not pursue it
because Ms. Reynoso did not believe it was therapeutically recommended to force
M.S. into therapy with her mother.
At the
conclusion of the hearing, the juvenile court acknowledged mother’s progress,
but that she was not “remotely†close to being able to safely parent the
children. The juvenile court found that
it would be detrimental to return the children to mother’s custody, that she
was provided reasonable services, but that her progress was moderate. The court further found there was not a
substantial probability the children could be returned to mother, terminated
her reunification services, and set a section 366.26 hearing. This petition ensued.
Reasonableness of Services
Mother
contends the juvenile court erred in finding she was provided reasonable
services because the department unreasonably delayed in providing her family
therapy at a time when she contends M.S. was willing to participate in it. As evidence of that, she cites Ms.
Murphy-Deaver’s response to a question posed by mother’s attorney about a
meeting on July 5, 2012 that M.S. attended.
We quote that exchange:
“[Mother’s
attorney]: And you’re talking
[about] the staffing on July fifth?
“[Ms.
Murphy-Deaver]: Yes.
“[Mother’s
attorney]: She was
uncomfortable with therapy but she would do it.
That’s what I read in your report?
“[Ms.
Murphy-Deaver]: Yes, she
reluctantly said she would do it.â€
Mother
construes M.S.’s position at the July meeting as a willingness to participate
in therapy of which the agency failed to take advantage. In our view, the record speaks for itself. M.S. was reluctant and uncomfortable
participating in family therapy.
Further, Ms. Reynoso advised against it for therapeutic reasons. Short of forcing M.S. into therapy against
her therapist’s advice, there was nothing the department could do to facilitate
family therapy. Under those
circumstances, the department was not unreasonable in temporarily suspending
its efforts to promote family therapy.
Substantial Probability of Return
Mother
contends the juvenile court did not sufficiently weigh her progress in
assessing the probability the children could be returned to her custody with
continued services. Thus, she argues the
juvenile court erred in terminating her services. We disagree.
The juvenile court may extend
services beyond 12 months if it finds there is a substantial probability that
the child will be returned to parental custody and safely maintained in the
home within the extended period of time, or if it finds that reasonable
services have not been provided to the parent.
(§§ 361.5, subd. (a); 366.21, subd. (g)(1).) We conclude that mother was provided
reasonable services, so the question then is whether there was not a
substantial probability the children could be returned to her if she was
provided additional time to reunify.
In assessing whether there is a substantial
probability of return, the juvenile
court must consider the parent’s capacity to meet the objectives of the case
plan and provide a safe home for the child.
(§ 366.21, subd. (g)(1)(C).)
When the juvenile court’s order
terminating reunification services is challenged on appeal, our role is to
determine whether substantial evidence supports the juvenile court’s
order. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) In so doing, we do not
S. (1988) 201 Cal.App.3d 315, 321.)
Rather, we merely determine if there are sufficient facts to support the
findings that the juvenile court made. (Ibid.) Stated another way, the question on appeal is
not whether the juvenile court could have found differently, but whether
substantial evidence supports the finding that the juvenile court made. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228.)
On this record, we conclude that it does.
The juvenile court acknowledged
at length mother’s progress and lauded her courage in overcoming significant
obstacles. Nevertheless, the juvenile
court concluded, in essence that M.S. and T.S. had special needs that mother
could not yet meet. M.S. had been
damaged by mother’s neglectful parenting and M.S. needed to be able to trust
the adults in her life and live in a stable environment. Despite that, mother continued to expose her
to strange men and inappropriately took her frustrations out on her. T.S. had special developmental needs and
mother struggled to even feed and diaper him.
These are just some of the reasons that convinced the juvenile court
that the children would not soon be safe to return to mother’s custody. The juvenile court did not, as mother
contends, disregard the significance of her accomplishments; it simply found
that despite her accomplishments, she could not make the children safe.
The petition for
extraordinary writ is denied. This
opinion is final forthwith as to this court.
Acting P.J., Cornell, J., and Detjen, J.
Welfare and Institutions Code unless otherwise indicated.
