Christal H. v. Super.
Filed 5/15/13 Christal H. v. Super. Ct. CA2/4
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FOUR
CHRISTAL H.,
Petitioner,
v.
THE SUPERIOR COURT
OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Real Party in
Interest.
B246191
(Los Angeles County
Super. Ct. No. CK92090)
(Timothy R. Saito, Judge)
ORIGINAL
PROCEEDING; application for a writ of mandate.
Writ denied.
Law
Offices of Alex Iglesias, Steven Shenfeld, and Shataka Shores-Brookes for
Petitioner.
No
appearance for Respondent.
John
F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy
County Counsel, for Real Party in Interest.
INTRODUCTION
Following
a review hearing conducted pursuant to Welfare and Institutions Code section
366.22,
title="">[1] the juvenile court ordered that a hearing be
held on April 8, 2013, pursuant to section
366.26, to develop a permanent plan for the dependent minors Anthony H., Josiah
H., and G. H. Their mother, Christal H.,
petitioned for a writ of mandate to compel the juvenile court to vacate its
orders, contending the court did not have before it
make substantive progress in her case plan or that it would be detrimental to
return the children to her care. Review
by extraordinary writ is the remedy provided in section 366.26, subdivision (
Court. Real party in interest the Los
Angeles County Department of Children and
Family Services (DCFS) filed an answer to the petition. We deny the petition.
factual and procedural
background
Three-year-old
Josiah H. (born in Nov. 2007) was taken to Chino Valley Hospital by Christal H. (Mother)
because his eye was swollen and he was vomiting blood. His left eye socket was found to be
fractured. As a result, San Bernardino
Children and Family Services (SBCFS) received a referral regarding the
family. Also in the home were A.V. (eight
years old), Anthony H. (six years old, born in Feb. 2005), J.V. (five years
old), and G. H. (one year old, born in June 2009).
(Mother’s boyfriend) and Tony’s father.
Mother told the social worker that Josiah and Anthony were throwing a
ball in their room and Josiah fell on the floor. When he began vomiting blood she took him to
the hospital.
Anthony
told the social worker that Josiah had fallen off of the bed while trying to
catch a ball. However, Anthony said he
had seen his brother’s eye was swollen when he woke up that morning. Tony had been the first person to notice
Josiah’s eye was swollen. When Tony
showed Mother Josiah’s eye, she asked, “Would I get in trouble for this?â€
While
visiting the home, the social worker noticed that G. had bruising under both
eyes, blood inside her lower lip, and two circular bruises on her lower
cheeks. Anthony said G. had fallen. Mother said G. had fallen from a chair and
hurt her lip, and that the bruises were caused by other children at day
care. At another time Mother said some
of the bruises were caused by the child hitting herself on a table and the
bruises on her cheeks occurred because Mother squeezed her cheeks too hard. G. was examined and the doctor opined that
the bruises around her eyes were not typical accidental bruises, and the
bruises on her cheeks were often seen when a child’s face was grabbed
forcefully. As to Josiah, the doctor
thought his injuries were suspicious but he could not confirm physical abuse
had occurred.
The
social worker spoke with A.V. and J.V. at their father’s home. J.V. said Tony hit her when she got in
trouble. She had seen Tony hit Anthony
with a belt and submerge him in the pool as a form of punishment. She had also seen Mother submerge Anthony in
the pool to punish him. Tony also
“smack[ed] G. on the face†“really hard.â€
Tony also hit Anthony and Josiah, and J.V. said she was afraid of him. Mother denied that the children were abused
by anyone. She said Tony was a good man
and she had never seen him abuse the children.
Several
months before, a referral had been made alleging Tony had submerged Josiah in
the pool to punish him. A.V. and J.V.
confirmed that information when interviewed alone, but recanted in Mother’s
presence.
The
children were detained. A.V. and J.V.
were placed in their father’s custody.
Anthony and G. were placed with their maternal aunt, who lived with her
mother and grandfather (Mother’s stepmother and the stepmother’s father);
Josiah remained hospitalized but would be placed in the same home upon his
release.
SBCFS
filed a section 300 petition regarding the five children on May 4, 2011. Therein, it
alleged that Mother had a history of domestic violence
injuries while in Mother’s care and custody.
In addition, Mother’s boyfriend had submerged Josiah’s head into the
pool as a form of punishment and Mother knew about the abuse but failed to
protect him. SBCFS filed amended
petitions adding that Mother had a history of substance abuse based on a
referral made in 2006 when J.V. was born.
A.V.,
Anthony, and J.V. were interviewed and received medical examinations in June
2011. All three children disclosed
physical abuse by both Mother and Tony and said they did not want to return to
Mother’s care for fear of being “smacked.â€
The children agreed that A.V. and J.V. were not subjected to physical
abuse but the other three children were.
Anthony and A.V. were concerned about getting Mother into trouble but
agreed that she needed help controlling her anger and learning to stop hitting
them. Mother hit the children, sometimes
with a belt, and gave Josiah a “wet head,†meaning she put his head into water
to punish him. Even when confronted with
this information, Mother continued to deny any abuse had occurred. She stated, however, that she was willing to
participate in the services recommended by SBCFS.
In August 2011, Mother submitted on the allegations in the
amended petition and the social worker’s reports. The court sustained the allegations and
declared the children dependents of the court.
In a
case plan update completed in June 2011, the services in which Mother was
required to participate were stated as follows:
(1) general counseling: “individual
counseling regarding the [SBCFS] intervention, developing interpersonal skills,
to decrease treatment resistance, develop communication skills, discuss
benefits of therapy services, develop problem solving skills, work on
self-esteem, increase self-awareness, neglect and physical abuse of minors and
working developing appropriate boundaries in relationshipsâ€; (2) anger
management: “complete an anger
management program and show completion certificate to the . . . social
worker. . . . [D]evelop skills
to recognize when she is getting angry and ways to deal with her ang[er]
positively. Develop how her anger
[a]ffects her children negativelyâ€; (3) complete a 12-week parenting program;
(4) random drug testing and if a positive screen was produced, complete a
substance abuse treatment program. At
the hearing on August 4, 2011, the court adopted the
reunification plan as recommended by SBCFS.
The juvenile court ordered monitored visitation for Mother a minimum of
once per week with the children.
As of
the February 6, 2012 status review report, Mother had not participated in
services required by her case plan, although she visited regularly with the
children. She continued to deny any
abuse had occurred. In April 2012,
Mother’s stepmother stated in a letter to the court that Mother had not moved
out of Tony’s home and in fact she intended to marry him. During monitored visitations, Mother often
called Tony and put G. on the telephone with him. In November 2011, Mother tried to demand of
the caregivers that she be allowed to take the children to Tony’s home for a
weekend visit. She continued to deny to
her family that Tony had done anything wrong and vowed not to leave him. Mother became outraged and said the children
were lying whenever family members attempted to talk to her about the
allegations of abuse. In February 2012,
nine months after the children were removed from her custody, Mother enrolled
in parenting classes and individual counseling.
The
six-month review hearing (§ 366.21, subd. (e)) was held in April 2012. The court found Mother had made moderate
progress in alleviating or mitigating the causes necessitating removal of the
children from her custody, but that continued jurisdiction was required.
SBCFS
reported in July 2012 for the 12-month review hearing (§ 366.21, subd. (f))
that Mother had completed a parenting education course on April 12, 2012, and
continued to participate in counseling.
She attended individual counseling sessions regularly between February
and May 2012, but had been inconsistent in participating after being
transferred to a different therapist.
She had participated in only two counseling sessions. The service provider recommended further
counseling for her. Mother visited with
the children consistently and acted appropriately during visits. Mother was no longer living with Tony; she
had moved into her biological mother’s home.
On
July 5, 2012, the 12-month review hearing was held and the court found that
Mother had made moderate progress toward alleviating or mitigating the problems
leading to the children’s detention. In
light of Mother’s move, the juvenile court ordered the case transferred to Los
Angeles County. The case was accepted by
the Los Angeles County Juvenile Court on July 31, 2012.
In a
September 2012 interim review report, DCFS reported that Mother had completed a
10-week domestic violence awareness education class at House of Ruth in
February 2012 and an eight-session parenting education course in April 2012. Mother had attended only two sessions of
counseling since being transferred to a new therapist in May 2012. In June 2012, the counseling service provider
advised the social worker that Mother needed to continue attending counseling
to focus on improving her problem solving skills, improving boundary setting in
relationships, and managing stress and anger; the provider requested an
extension of 12 additional sessions.
However, Mother had not continued with counseling. After the case was transferred, Mother met
with a DCFS social worker on August 30, 2012, and received referrals for
individual counseling and anger management.
At the progress hearing on September 4, 2012, the court ordered DCFS to
prepare an update on Mother’s progress and to ensure Mother’s visits took place
three times per week for three hours per visit.
Mother
told the social worker on September 26, 2012, that she had an intake
appointment scheduled for October 2, 2012, for counseling services that would
include assistance with anger management.
Mother finally met with her new therapist on November 29 and December 6,
2012.
The children’s caregivers reported that
Mother’s visits were inconsistent. She
did not take full advantage of the three-hour, thrice weekly visits as she
would often call to cancel.
Mother
lived with her biological mother, who told the social worker she did not know
if Mother still had a relationship with Tony.
Anthony’s biological father, Agustin A., reported to the social
worker that Mother continued to have contact with Tony.
At
the request of the caregivers, the children received
in October 2012 to assess their need for therapy. The clinician reported that Josiah appeared
withdrawn and displayed considerable anxiety due to the abuse he had
endured. When asked where he wanted to
live, Anthony said he wanted to live with his grandparents. He did not want to live with Mother because
she was with Tony and because she lived with her mother, who was mean to him.
DCFS
recommended that returning the three children to Mother’s custody would create
a substantial risk of detriment to their safety and well-being. Mother had not completed individual
counseling and continued to deny that she had contact with Tony, described by
DCFS as “the perpetrator.â€
At
the 18-month review hearing (§ 366.22) held on December 10, 2012, Mother
testified that she was enrolled in individual counseling and had had two
sessions; she said they were working on “boundaries.†Mother testified that the SBCFS social worker
wanted her to address “anger issues,†but her former therapist did not find
that she had any anger issues, rather she thought that Mother needed to learn
boundaries. Mother described anger as
being “when you obviously don’t know how to control your feelings and you just,
you know, overreact. And boundaries are,
basically, setting rules and not allowing things to happen and people to do
things that are inappropriate.†She said
she had previously completed separate programs in anger management, parenting,
and domestic violence. In the parenting
class she learned how to discipline and understand her children and that each
child was different and needed his or her own attention. In domestic violence class she learned “not
to put up with any . . . disrespect or hitting†and that “it’s
not healthy and appropriate for somebody to do that to another person.â€
Mother
acknowledged that she had never been granted unmonitored visitation with her
children. She said that she had not seen
Tony since she moved out of his home in June 2012.
Counsel
for DCFS pointed out that Mother had not provided proof that she had completed
an anger management program. Counsel
expressed concern that Mother had only recently been back in compliance with
the individual counseling portion of her case plan, and that her visitation had
been inconsistent. DCFS requested
termination of reunification services.
Counsel for the children acknowledged that Mother had made efforts, but
counsel still had “significant concerns†about Mother’s ability to care for the
children. She noted that Anthony did not
want to go back to Mother, and that he felt safe and comfortable with his
current caregivers. The child said that
despite what Mother had said, he believed that she was still in contact with
Tony. The children’s counsel said she
was not sure Mother had learned what she needed to from either the domestic
violence or parenting counseling. Mother
never progressed beyond unmonitored visitation.
Counsel agreed that reunification services should be terminated.
Mother’s
counsel argued that Mother did not realize that she could ask for liberalized
visitation and instead DCFS should have provided it, although counsel
acknowledged DCFS might be hesitant to do so with a case assigned to it for
only a matter of months. Counsel pointed
out that Mother’s case was transferred to Los Angeles in late July 2012, but
she was not assigned a social worker until September. Mother’s counsel did not address the lack of
proof that she had completed a separate anger management program. Rather, counsel asserted that the only issue
was that Mother had not completed individual counseling but argued that she had
nonetheless made substantial progress in her programs. Counsel requested that the court return the
children to Mother’s home because DCFS had not shown a risk of harm to the
children if they were placed with her.
The
juvenile court found that conditions continued to exist justifying jurisdiction
and found that returning the children to the physical custody of Mother would
create a substantial risk of detriment.
Mother had been ordered to participate in programs that she still needed
to complete, and the extent of progress she had made toward alleviating or
mitigating the causes necessitating placement of the children had been only
partial. Although Mother had made some
progress in her classes, there had not been sufficient progress in individual
counseling and there appeared to be issues that remained to be addressed. The court terminated family reunification
services and scheduled a permanency planning hearing for April 8, 2013.
discussion
Mother
contends there was insufficient evidence to support the court’s finding that she failed to make
substantive progress in her case plan or that it would be detrimental to return
the children to her care. We
disagree.
Our
review of the trial court’s findings as to Mother’s compliance with her case
plan and as to detriment is governed by the substantial evidence test: the trial court’s findings must be upheld if
there is substantial evidence to
support them. (In re Misako R. (1991) 2 Cal.App.4th 538, 545; Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762,
763.)
Section
366.22, subdivision (a) provides in relevant part that at the 18‑month
review hearing, “the court shall 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 social worker shall have the burden of
establishing that detriment. . . . 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 . . . ; and
shall make appropriate findings pursuant to subdivision (a) of Section
366.â€
The
court had before it substantial evidence to conclude Mother had not sufficiently
addressed her lack of parenting skills, her own physical abuse of the children,
her anger management problems, or the harm caused to her children by her
relationship with Tony. All of these
things led to the removal of the three children, as well as the two oldest
children who were placed in their father’s custody.
There
is substantial evidence that Mother did not fully comply with the court-ordered
case plan. The sum total of her compliance
(which did not begin until at least six months after the children were first
detained) consisted of the following:
(1) four months of weekly individual counseling in early 2012 with a
counselor who did not feel Mother had anger issues, two additional sessions
over the following few months, plus two sessions in the two weeks immediately
preceding the 18-month review hearing in December 2012; (2) a 10-week domestic
violence awareness course that she completed in February 2012; (3) and an
eight-week parenting education course that she completed in April 2012.
The parenting
class Mother took was only eight weeks long and she did not describe it as
including education on avoiding physical abuse.
The only substantive feedback from Mother’s counseling provider
indicated Mother had more work to do.
Her first counselor did not address anger management with her despite
the allegations that she had personally inflicted serious physical abuse on her
young children. The domestic violence
class was apparently for victims, while the record indicates that although
Mother might have been victimized or controlled by Tony, she was primarily a
perpetrator of abuse. Her former husband
had obtained a restraining order against her, and two of her children stated
that she got very angry and hit them more than Tony did. Her son Josiah had been hospitalized with a
skull fracture (of his eye socket), the cause of which was never adequately
explained, and he continued to suffer from anxiety and withdrawal almost two
years after being removed from Mother’s custody. Mother claimed she had taken a separate anger
management course but offered no proof or certificate of completion to support
that assertion. Indeed, and most
critically, she never once acknowledged that any physical abuse had occurred, let
alone demonstrated that she had learned to control her anger and no longer
posed a risk of harm to her young children.
In
any event, in determining whether to return a child to parental custody,
compliance with the reunification plan is not the sole concern of the
court. (See In re Dustin R.
(1997) 54 Cal.App.4th 1131, 1139-1140.)
Even if Mother had fully complied with the case plan, the paramount
issue remains whether return of the children to parental custody would be
detrimental or pose a substantial risk of harm to them. As was stated in Dustin R.: “Mother’s argument seems to suggest the mere
completion of the technical requirements of the reunification plan—such as
attending counseling sessions and visiting her children—is sufficient. Availing herself of the services provided is
one consideration under section 366.22, subdivision (a), but under this statute
the court must also consider progress the parent has made towards eliminating
the conditions leading to the [child]’s placement out of home.†(Id. at pp. 1141-1142.)
Mother
did some work toward completing the requirements of the case plan, but clearly
the underlying justifications for assuming jurisdiction over the children
continued to exist at the time of the section 366.22 hearing. Mother had physically abused her children and
never acknowledged that fact and never demonstrated that she had received
effective guidance to avoid doing so in the future, and therefore the questions
regarding the children’s safety while in Mother’s care remained unanswered. The court had before it substantial evidence that returning
the children to Mother would create a substantial risk of detriment to their
safety, protection, or physical or emotional well-being.
disposition
The petition for writ of mandate is
denied. The stay of the permanency
planning hearing is dissolved.
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J.
WILLHITE,
J.
further statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] A.V.
and J.V. are not subjects of the present petition. While they were declared dependents along
with their three half-siblings, the court ordered them placed with their
father, Jorge V., with whom they remain.
Daniel
L., the alleged father of Josiah and G., is not a party to this petition. Agustin A., the biological father of Anthony,
also is not a party to this petition.
