D.D. v. Superior Court









Filed 3/23/17 D.D. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

D.D.,

Petitioner,

v.

THE SUPERIOR COURT OF SANTA CLARA COUNTY; SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES,

Real Party in Interest.

H044224
(Santa Clara County
Super. Ct. No. JD023399)

Petitioner D.D. (mother) is the mother of two‑year‑old N.D. (child). Child was placed in protective custody in December 2014 and declared a dependent of the court due to severe injuries sustained while in mother’s care and custody. Shortly before the disposition hearing in October 2015, child’s maternal grandmother (grandmother) admitted responsibility for at least one of child’s three bone fractures. The juvenile court entered a permanent restraining order against grandmother in December 2015. At the 18‑month review hearing in November 2016, the juvenile court accepted the recommendation of the Santa Clara County Department of Family and Children’s Services (the Department) to terminate reunification services (Welf. & Inst. Code, § 366.22, subd. (a))[1]and set a permanency planning hearing pursuant to section 366.26.
Motherpetitions for extraordinary writ review.Her petition, filed in propria persona thoughshe was represented by counsel in the juvenile court, may be understood as (1) challengingthe sufficiency of the evidence to support the juvenile court’s ruling and (2) allegingthat the juvenile court had “prejudged” the case and was biased.
For the reasons explained herein, we deny the petition.
I. BACKGROUND[2]
October 2014 Referrals
The Department received two referrals when child was seven months old, living with mother and grandmother in Mountain View.Child’s father was in a relationship with mother and visited the home, also assisting with child’s care.The referrals mentioned bruising around child’s eye, and one referent stated that mother handled child roughly, appeared developmentally delayed, and had a history of dropping child.The Department investigatedand deemed the case “inconclusive.”
December 31,2014 Protective Custody
Child was placed into protective custody when she was nine months old. Mother and grandmother had broughtchild to the hospital for a leg injury while they were visiting family inBakersfield.The medical team determined that child abuse could not be ruled out. X‑rays showed child’s right hip bone was angulated and not in the right place—an injury not typically seen in an infant or young child—and child’s ankle had a “crush injury.”Child had multiple scratches to her neck, which grandmother attributed to other children in the household. The hospital transferred child for evaluation by a pediatric orthopedist. Dr. Philip Hyden observed what appeared to be nonaccidental trauma to the ankle and hip, and other, possible healing fractures on the x‑rays.[3]Child was placed in a spica cast (extending down from the chest) on both legs.
Section 300 Petition and Jurisdiction Reports
Kern County Department of Human Services (DHS) filed a dependency petition on January 5, 2015, alleging that child was a person described under section 300, subdivisions (a), (e), and (i). On January 6, 2015, the juvenile court heard the petition, declared father to be a presumed father, and ordered child to be detained and mother and father to receive supervised visitation. Mother agreed to out‑of‑county placement.
DHS filed a social study dated January 29, 2015 and numerous supplemental studies, which reflected the doctors’assessments that “child abuse cannot be ruled out” and the injuries appeared to be “nonaccidental trauma” and suspicious because “for the ankle to be broken how and where it was broken, a lot of pressure had to be applied. . . .[I]t appeared the ankle was either stepped on by a larger person or a large amount of pressure was applied to the ankle.” Hospital staff reported that mother had trouble grasping their concerns and the etiology of child’s injuries.
In February 2015, child’s placement in the home of her maternal grandfather (grandfather) and his wife (step‑grandmother) was approved. Father was hospitalized in February forseizures and was diagnosed with a brain tumor.
Jurisdiction Hearing;Transfer to Santa Clara County; Grandmother’s Confession
The contested jurisdiction hearing was on July 13, 2015. Dr. Hyden testified that child had three fractures. The acute fracture of the right anklewas “brand‑new” and had been sustained close to the day that child was hospitalized. Grandmother’s explanation of having grabbed child by the ankle to prevent child from falling, while “very suspicious, . . . could explain the injury.” The injury to child’s right hipwas older, so grandmother’s reported action could not account for it. Dr. Hyden explained that to cause the hip injury would take a “lot of force,” though “there’s always exceptions to the rule.” Dr. Hyden’s only explanation was “forceful trauma in someone trying to grab that part of the thigh up near the femur . . . .” Child also had a healing eighth rib fracture. Dr. Hyden estimated that the hip and rib fractures were at least more than seven days old, possibly closer to two weeks old. Dr. Hyden excluded the other initially‑suspected fractures because they did not show on follow‑up films.
Dr. Hyden was “very concerned about the possibility of non‑accidental trauma” given the history of falls, multiple scratches of different ages on the face and neck reportedly from other children in the home, and fractures for which there was“no explanation,”though grandmother’s explanation for the ankle fracture “could be true.” On cross‑examination, Dr. Hyden stated that he could not “prove” the injuries were abusive but “[r]ib fractures are usually caused by forceful compression enough to cause enough loading on the angle of the rib that it causes it to break. The femur fracture usually takes a lot of force because—or a blow to that area because it’s not easy to break the hip.” He testified that posterior rib fractures “don’t usually happen from falls.”
Mother testified that she was child’s primary caretaker and they lived with grandmother. During the time frame based on Dr. Hyden’s testimony, child was always in mother’s care. Mother had no explanation for the rib or hip fractures. Mother acknowledged one incident when child fell off the bed, resulting in a mark under the eye, and another incident in November when child fell out of the stroller because she was not strapped securely. Mother agreed “a little bit” that she should have been more attentive and made sure child was safe. Mother testified that she had never hurt child.
The juvenile court concluded that child was the victim of intentional injuries, sustained the petition,and transferred the matter to Santa Clara County for disposition.
The Santa Clara County juvenile court accepted transfer of the case on August 26, 2015. Mother and fatherwere then livingtogether at grandmother’s home. They voluntarily underwent drug testing (both tested negative) and began participating in recommended services. They had participated in several, four‑hour supervised visits once a week and displayed appropriate behavior toward child, who enjoyed the visits. The social worker assessed the parents as highly motivated toward reunification.
In October 2015, grandmother admitted responsibility for child’s injury on December 31, 2014. Grandmother told the social worker that she resented father and child and had an underlying anger toward them. One time she threw child on the couch in front of mother to hurt mother. She admitted sometimes advising mother not to comfort child. On the day of child’s ankle injury, grandmother purposely stepped on child’s ankle with the intent to hurt her.
Mother expressed shock upon learning that grandmother was responsible. Mother told the social worker that she knew grandmother had resentment toward child. Mother described the incident when grandmother grabbed child by the torso and threw child on the couch, which occurred “slightly before Thanksgiving.” After that, mother left with child for two days and stayed with a friend;grandmother was remorseful. Mother believed that grandmother would not hurt child again and never suspected grandmother.
Grandmother moved out of the residence. Child’s medical providerreported that grandmother stepping on the ankle would be sufficient to cause the fracture seen on December 31, 2014, but would not account for the healing fractures. Grabbing and throwing child could possibly account for the hip fracture and rib fracture.
DispositionHearing
The parties reached a settlement on October 29, 2015, the day of the disposition hearing. The juvenile court remarked that at the time of the jurisdictional findings, the suspected perpetrators of child’s injuries were mother, father, and grandmother. Despitethe newly discovered information, the court was concerned that grandmother’s actions did not account for all of child’s injuries. The court found that mother was aware of at least one of the prior incidents yet continued to allow grandmother to care for child.
The juvenile court declared child to be a dependent, removed custody, and ordered reunification services for child, father, and mother. Child’s counsel requested issuance of a permanent restraining order to prevent any contact by grandmother with child, which mother and father opposed. The court entered the restraining order against grandmother on December 9, 2015. Mother was ordered to attend a 16‑week “Parenting Without Violence” program, counseling to address issues of depression, anxiety, confidence, and situational stressors, and to undergo a psychological evaluation.
Mother appealed the judgment, and this court affirmed. (In re N.D.(Jun. 3, 2016, H043026)[nonpub. opn.].)
Psychological Evaluation
In December 2015, mother participated in a psychological evaluation by Dr. Gary Rezowalli, Ph.D. Mother told Dr. Rezowalli that she lived with father and received financial help from grandmother, but was unable to live with grandmother due to court restrictions. She had been attending a special education program at junior college but stopped when she became pregnant. Mother attributed the need for special services to her learning disabilities. Mother was not socially active, did not have a driver’s license but did drive, and did not have a bank account or credit cards. She stated that father worked two jobs and helped support her, as did grandmother. She had held a series of entry‑level jobs and had done some seasonal work at stores.
Mother “did not express specific knowledge” of child’s injuries and was “noncommittal when asked if she believed that [grandmother] actually caused the injuries.” Mother “trusted others [to] help care” for child and “did not express concern that her daughter would be in any danger” when returned home. Mother listed challenges like finding an affordable place to live and a job that would allow her to be around child, but “did not express concerns about keeping her daughter safe and appear[ed] unclear as to how” child may have incurred her injuries.
The psychological testing revealed no“significant mental health issues,” though mother displayed “features of avoidant and dependent personality disorders.”[4]Dr. Rezowalli explained that mother appeared to be dependent on others, with weak judgment and limited insight,anddevelopmentally functioned at a level that was “much lower than her actual cognitive abilities” which might have been “more due to dependent and avoidant personality traits than to limited cognitive functioning.”
Mother “was able to recite” the court requirements for reunification. Dr. Rezowalli observed that mother seemed to care for child’s safety “but may be naïve in not seeing any potential threats or dangers . . . .” He summarized mother’s strengths as her love for child and desire to raise child in a safe and healthy environment; mother’s weaknesses were “poor insight, a dependency on others for her welfare, lack of vocational prospects, and social as well as economic limitations.”
Regarding parenting ability, Dr. Rezowalli concluded that mother’s “tendency to be dependent on others may lead her to benaïve in trusting others to have her best interest at heart” and to “return[] to patterns of behaviors that have the possibility of putting her child at risk.” Dr. Rezowalli recommended monitoring mother’s progress in parenting classes andher continuing relationship with child in order “to prevent any re‑occurrence of harm, intentional [or] not.” He further recommended a vocational assessment and a educational program to help mother become more independent and feel successful.
Six‑Month Review
The six‑month review report dated April 13, 2016, recommended that mother and father continue receiving family reunification services and that child remain with her caretakers (grandfather and step‑grandmother) in Stockton. The parents were residing in Mountain View. Both were engaged in services.[5] Mother had enrolled in a 42‑week medical assistant program in Santa Clara, where she attended classes four days a week. Mother believed that once she finished the program, she would be able to get a job so that she and father could afford an independent place to live and could stagger their work schedules in order to care for child. Mother expressed her desire to be more involved in child’s life, present at medical visits, and for child’s caretakers to inform her about child’s day‑to‑day routine.
Mother had begun a 16‑week Parenting Without Violence class. The instructor reported that mother had attended all five sessions since enrolling and was “ ‘very quiet.’ ” Mother also had begun individual counseling in December 2015 through Kaiser. Mother was referred to a different psychologist in March 2016 who reported that mother appeared “very motivated” to reunify. The psychologist saw mother once every three weeksand had referred mother for group therapy.
The Department facilitated a family team meeting in January 2016 as part of a family effort to help with transportation toStockton and supervision of visits.Mother’s sister (maternal aunt) agreed to transport parents and supervise visits until the Department could approve father’s mother (paternal grandmother). The Department agreed to pay for mileage for these visits and provided bus passes to both parents. However, the effort to increase visits did not work. The social worker reported that family members had a “very volatile relationship with one another,” bringing dysfunctional dynamics to their attempts to support the parents and leading to more complexities and stress for mother and father.
The Department continued to organize and supervise visits once a week for three hours, with the expectation that parents would gradually be able to transport themselves to Stockton. The social worker reported that both parents were attentive to child’s needs, engaged child in play and appropriate activities, and encouraged child to explore and use words. Child appeared “very comfortable and happy with her parents.” The parents continued to express their desire to reunify with child as a family unit and to have more frequent visits.Both parents were open to the social worker’s suggestion to attend a“Triple P” parenting class focused on children under the age of three.
Mother and father remained financially reliant on grandmother for rent. Mother “continue[d] to rely on [grandmother]’s guidance and emotional support” but had begun “to recognize the importance of establishing and maintaining healthy boundaries with her mother.” Although mother told the social worker that she would not leave child alone with anyone except father, the social worker noted the findings of the psychological evaluation regarding mother’s tendency to be dependent on others and susceptible to trustingothers’ best intentions.
As of April 2016, grandfather and step‑grandmother had signed a concurrent plan for child, indicating they would be willing and able to assume legal guardianship for child in the event that reunification for parents was not successful.
Twelve‑Month Review
The juvenile court held the six‑month review hearing, which had become a 12‑month review hearing by passage of time, on April 28, 2016. The court continued reunification services for both parents. The court amended mother’s counseling requirement to include “responding to conflicts in the family dynamics,” in addition to the original topics of “confidence, situational stressors, [and] excessive dependence on others and avoidance.”
Section 388 Petition
In April 2016, while mother’s first appeal was pending, mother’s counsel filed a section 388 petition[6] challenging the jurisdictional findings due to grandmother’s confession. The juvenile court held a contested hearing on May 25, 2016 and granted the petition in part.The court amended the petition by replacing section 300, subdivision (a) with subdivision (b).[7]The court denied mother’s request to strike the section 300, subdivision (e) and (i) allegations.
Eighteen‑Month Review and Addendum Report
The 18‑month review report dated June 29, 2016, recommended that reunification services be terminated as to both parents and that a section 366.26 hearing be set to establish a permanent plan for child. The Department recommended that child remain in her placement with grandfather and step‑grandmother in Stockton.
After the prior review hearing, father moved to paternal grandmother’s residence in Antioch. The parents remained in a relationship and wished to reunify with child together. Father continued to work two jobs, for a cleaning service and as a security guard. Mother remained enrolled in the medical assistant program.
Mother and father completed orientation for the Triple P parenting coursein September 2015 and continued their participation in Parenting Without Violence. Mother had attended 11 sessionsand missed two. The instructor reported that shewas “ ‘very, very, very quiet’ ” but did participate when called on.
Mother stopped attending individual counseling toward the end of March 2016and did not attend any group sessions. Thetherapist at Kaiser tried to reach mother and was not successful. The social worker sent mother a list of therapists on May 9, 2016.
The parents had five visits with child in Stockton in April and May 2016. The social worker reported they “were able to engage with” child but there were challenges. The social worker described one incident in which mother was visibly upset and cried while child sat next to her in the car, another incident when father was constantly distracted by paternal grandmother but neither parent tried to set boundaries to indicate it was their limited time with child, and another incident in which neither parent took precautions when a poorly‑controlled pit bull‑type dog was near child.
The Departmentassessed mother and father to have “minimally engaged in services,” noting that mother’s last counseling session was in March 2016 and she had yet to begin the Triple P parenting class. The report stated that child remained vulnerable due to her young age and to mother’s “propensity to be dependent on others and her naiveté in trusting others to have her best interest at heart.” It indicated that both father and mother remained reliant on family for guidance, emotional and financial support, and were “easily swayed by the strong personalities” in their family. The Department emphasized that the parents had “limited parenting skills to provide consistency, structure and routine for [child] over an extended period of time” and mother “was not able to assess the potential environmental harm or regulate her emotions to effectively plan a visit.” The Department did not believe that either parent had made significant progress in their case plan to ameliorate the issues that had brought child into the system.
The juvenile court set the 18‑month review for trial on November 18, 2016.
An addendum report filed on November 18, 2016,maintained the Department’s recommendation to terminate services to mother and father. Since the social worker’s last meeting with mother in June 2016, mother had “consistently reported”that she was living in San Jose in the home of her sister, together with maternal aunt’s husband and two children. But the social worker received two separate reports in September 2016 suggesting that maternal grandmother also was living in San Jose with maternal aunt. When the social worker spoke with mother about grandmother, mother said that shetalked with grandmother on the telephone about three times per month and acknowledged that grandmother provided her with $50 each week. Mother denied that grandmother lived with her and said that grandmother lived with a relative in Bakersfield. When pressed by the social worker about her contact with grandmother, mother admitted that she talked with grandmother on the telephone every other day.
Regarding her financial status, mother reported receiving food stamps, $50 per week from grandmother, and occasional gas money from father.She had not sought employment because of her full‑time medical assistant program. Maternal aunt did not require her to pay rent but had agreed that mother would begin paying rent once she completed her program and began working. On October 27, 2016, mother reported to the social worker that she had completed her medical assistant program and had started applying to jobs in the medical field.
Mother did not beginthe Triple P parenting class after the first referral in July 2016. The social worker referred mother again on September 20, 2016. Mother began the Triple P class the next day and had completed five out of seven scheduled sessions. Mother told the social worker that she was learning about what parents need to do and what kind of environment a child needs to grow.
Mother completed the Parenting Without Violence classes. According to the progress report, mother attended 16 out of 18 sessions and demonstrated “marginal progress” in several subjects and “inadequate progress; poor participation” in the area of demonstrating a constructive change in beliefs. The facilitator described mother as very quiet in the group, speaking only when spoken to. Mother was able to explain why she was attending the group, though she did not mention that it was her mother who had hurt child. She was able to describe concepts from the class and to explain the effects of violence on children.
Eighteen‑Month Review;Contested Hearing
The contested hearing took place on November 18 and December 2, 2016. Department social worker Rajni Madan testified by stipulation of counsel as an expert in risk assessment, placement, and reunification of dependent children. Madan was the supervising social worker for child’s case from October 2015 through May 2016 and authored the 18‑month report dated June 29, 2016. Madan described mother’s referral to Triple P parenting, her participation in the Parenting Without Violence classes, andher lack of continuity in individual counseling. Madan explained that she had discussed the importance of attending counseling each time they spoke, and mother had responded that she had a good relationship with the therapist through Kaiser and was comfortable.
Madan testified that theparents’ visitation with child progressed from supervised to monitored visits in which the monitor “checks in regularly” but does not maintain contact. Madan noted concerns about visitation, such as when the visit supervisor had to warn the parents about the dog whose owner was not paying attention. Madantestified that the parents did not have unsupervised visits due to concernsabout their awareness of “environmental challenges” and the child’s “vulnerability” and young age.
Madan believed that child continued to face a risk of harm if returned to her parents’ custody. She explained that although the parents were no longer living with grandmother, grandmother remained an integral part of the family, and mother and father “relied heavily on the guidance and financial support from their extended family” who could not support parents in a way that would be “conducive to [child]’s safety.” Madan further explained that child was only two years old and completely reliant on adults for her safety and well‑being, but “the parents really didn’t show enough protective capacity even during the short visits.”
On cross‑examination, Madan agreed that mother had never tried to involve grandmother in an unauthorized visit. However, Madan believed that if child were returned to mother or to father, neither parent would be able to keep grandmother away from child. Madan emphasized that although grandmother admitted to having caused some of the injuries to child, no one had come forward to provide a reasonable explanation for child’s other injuries.
Department social worker Adriana Campos also testified by stipulation of counsel as an expert in risk assessment, placement, and reunification of dependent children. Campos took over child’s case in June 2016. She explained that mother was a “no‑show” to her July start date for the Triple P class but acknowledgedon cross‑examination that the enrollment notice might have gone to mother’s old address in Mountain View, and she did not know whether mother received the voicemail messages that the facilitator had left. Campos re‑referred mother in September 2016. Mother had attended seven of nine sessions. Campos did not yet have feedback from the Triple P course facilitator.
Campos spoke with the facilitator for the Parenting Without Violence course that mother completed. The facilitator declined to provide any additional assessment of mother’s ability to protect child, stating that mother’s participation had been so minimal that she did not feel comfortable making an assessment.
Campos spoke with mother about counseling during their first meeting in June 2016. Mother said that she had gone back to her therapist at Kaiser and was starting to see her regularly. Mother repeated the same information when Campos spoke with her in July—that she was attending therapy in Mountain View and it was going well. Campos spoke to the therapist in September. The therapist reported that mother had not been in counseling from March 2016 until August 30, 2016. Campos informed mother that she had received a contradictory report. Mother acknowledged that she had lied; her explanation was that she did not want to get in trouble. Campos confirmed that since September 2016, mother was enrolled in therapy but had not participated consistently.
Regarding visitation, Campos described a visit in July that had concerned child’s caretakers. The visit took place in Santa Cruz on a cold and overcast day. The caretakers reported that they had advised mother not to go into the water, but mother entered the water with child and did not take child out until she was visibly in distress, crying, and fussy.
During a visit in August, Campos observed mother and child at a playground. Mother placed child on a swing without back support but switched her to an infant swing after the caretaker intervened and told mother that child still needed the supportive swing. Campos later observed mother and child at a picnic table listening to music. Child stood upon the bench of the table and began dancing, and mother followed child’s lead and climbed on top of the picnic table, pulled child up by the arms, and lifted her into the air above her head while dancing on the table top. To get down, mother brought child to chest level and held her while she jumped from the tabletop to the bench and to the grass,where they continued dancing.
Campos explained that she had not allowed the parents to have unsupervised visits. Campos remained concerned about mother’s “ability to identify risk, specifically for a two‑year‑old child.” Father was not able to have unsupervised visits due to ongoing concerns about his medical condition and the need to have a second adult present in the event that he were to have a seizure.
Campos believed that returning child to the parents would put child at risk. She explained that child’s injuries at the outset of the case were severe, including bone fractures and scratches to her face, and because not all of the injuries had been explained, “the biggest concern is both parents’ ability to protect [child] from the perpetrator.” Campos stated that she did not see any indication that the parents had increased their capacity to protect child. Although both parents participated in parenting classes, mother did not receive positive feedback. Further, mother had not fully engaged in individual therapy, had only recently began the Triple P class, and despite the restraining order to protect child from grandmother, there was no evidence that mother was able to “consistently and clearly set boundaries” with grandmother.
Campos testified about mother’s communications with grandmother. When Campos confronted mother with the reports suggesting that grandmother might be living with her, mother admitted that her earlier statementsabout minimal telephone contact with grandmother were not entirely true, and that she talked to grandmother by telephone every other day. Campos asked what they spoke about, and mother responded that they talked about her day‑to‑day activities and about the dependency case. Campos reminded mother that the restraining order included third party information about child. Mother “backtracked a little bit and tried to explain that they talked about the case but in a way that didn’t bring up [child] at all.”
Campos also explained the conflicting accounts of whether grandmother continued to live with mother. Campos believed that mother was minimizing her relationship with grandmother and there was “a real possibility” that mother was still living with her. Campos acknowledged on cross‑examination that she had not tried to contact the relative in Bakersfield to verify mother’s report that grandmother was living there and had not visited mother’s residence at maternal aunt’s home in San Jose.
Mothertestified at the contested hearing. Mother stated that she took responsibility for having allowed child to be hurt. Mother described completing the Parenting Without Violence course and shared examples of what she had learned. Mother acknowledged that she had not been consistent in attending counseling, but believed that she had benefitted, such as by learning to control her emotions, not get so angry,and focus on what she needed to do “instead of being in a depressed state.” Mother recently had begun attending group therapy. She described how being around people with similar problems and hearing about how they handled those problems had been helpful to her. Mother alsodescribed her participation in the Triple P parenting class, which she was set to complete in January 2017. Mother gave examples of what she had learned in the class, such as time outs and using praise as well as reward charts.
Mother testified that she had not lived with grandmother since the issuance of the restraining order.[8] Mother explained that grandmother had never lived with her at maternal aunt’s home. Mother denied having told her therapist or step‑grandmother that grandmother was living there.
Mother testified that she had contact with grandmother “[e]very other day” and that grandmother continued to help her financially. Mother later testified that she spoke with grandmother “[o]nce or twice” a week about how school was going, and that they spoke for about three minutes each time. Mother did not believe that grandmother expected anything in return and stated that grandmother had never asked to see child since the restraining order was issued.
Mother explained that she had recently completed the nine‑month medical assistant program and had obtained a job at a home care facility.She completed the program on a shortened schedule and volunteered doing extra work at the medical clinic where she was an intern. She testified that now that she had a job, she would no longer get financial help from grandmother. Mother had not started the new job yet.
Mother responded to the concerns about visitation. She explained that she had not seen the dog on the leash doing anything dangerous and was just showing child the dog. Regarding the playground swing, she explained that she usually would swing on the big kids swing with child on her lap, but child wanted to try it herself, so she “got down to her level, put her on, got behind her and was holding her and the swing together and just lightly started pushing it.” As for the beach day, mother testified that the water “wasn’t that cold,” and she believed it was safe to enter and would do it again. She testified that she had danced with child on the table at the park but “didn’t jump down with her in my arms . . .because she would learn to do that and I didn’t want her doing that so I climbed down. I didn’t jump, I climbed.”
Mother acknowledged telling the social worker in June 2016 that she was in counseling. She explained that she was looking for a counselor at the time though she was not in counseling. Mother admitted to not being truthful with the social worker.
Mother testified that if child were returned to her, she would not allow grandmother to be near child and would leave if grandmother showed up. She said that she would be prepared to call the police if grandmother refused to leave.
Child’s caretaker, step‑grandmother, also testified. She explained that she was married to child’s grandfather, and child had been living with them since February 2015. They had supervised or monitored the parents’ visits early in the case and for the past six months. Step‑grandmother explained that at a visit in August 2016, she saw “a lot of stuff” in mother’s car and asked about it. Mother responded that she and grandmother had just moved in with mother’s sister. Step‑grandmother testified that two weeks before the contested hearing, mother told her that grandmother was living in Bakersfield. Step‑grandmother had no independent knowledge of where grandmother lived.
Father testified at the continued hearing on December 2, 2016. He explained that he was living with his mother and siblings in Antioch. Father and mother communicated “a lot” about visits with child and going to classes. Father had not had contact with grandmother and stated that if child were returned to his care, he would not allow any contact between child and grandmother. Father had visited the residence that mother shared with maternal aunt and did not see any evidence that grandmother lived there. He believed that he would know if grandmother was living with mother.
Counsel for the Department, mother, father, and child presented oral argument, at which child’s counsel joined the Department in seeking termination of reunification services for both parents. The juvenile court stated that it would take the matter under submission in order to review the reports and the testimony that had taken place over the course of two separate hearings.
Juvenile Court’s Order
The juvenile court issued its ruling at a hearing on December 12, 2016. The court stated that it had considered all of the evidence and had reviewed the factual and procedural history of the case. The court found the expert testimony of both social workers to be credible and persuasive. The court found step‑grandmother’s testimony to be credible and found mother’s testimony “partly credible and partly not credible.”
The court explained that mother’s dishonesty toward the social worker about attending counseling and her ongoing relationship with and financial dependence on grandmother had “cast a shadow over her credibility at trial.” The court observed that as a witness, mother “appeared credible when she talked about her schooling and job prospects” but when asked about the nature and extent of her relationship with grandmother, “her demeanor changed and she frequently lowered her voice and lowered her head as she responded to questions.” The court added that mother’s testimony revealed “little to no insight regarding child safety” and the “record as a whole” supported the conclusion that mother had maintained a close dependence on grandmother throughout the proceedings. The court determined that relationship to be significant because of grandmother’s responsibility for some of child’s injuries.
The court found that each parent had participated in parts of their case plan, but neither parent had completed the case plan and “neither parent ha[d] demonstrated the ability to safely parent or protect the child.” The court noted that neither parent had progressed to unsupervised visits or demonstrated an ability during visits to provide child with the “consistent, appropriate, and sustained attentiveness”required for a toddler.
The court observed that this was not only a “failure to protect” case: “The reality is that we still do not know who is responsible for all of the injuries.As I stated in my decision at the 388 hearing, all we know is that maternal grandmother admitted to some of the injuries. At that time, I noted that it is still possible that mother may have committed some of the other injuries and that there was no dispute that mother was aware of maternal grandmother’s abusive behavior towards [child] prior to [child] coming into custody.”
The court concluded that the Department had affirmatively established that returning child to mother or father would create a substantial risk of detriment to child’s safety, protection, or physical or emotional wellbeing. The court further concluded that reasonable services had been offered and provided to the parents. The court ordered that family reunification services be terminated, leaving in place the existing visitation orders pending the 366.26 hearing.
II. DISCUSSION
A. ALLEGED JUVENILE COURT BIAS
Mother claims that the juvenile court had predetermined the outcome of the 18‑month review hearing before it began. Specifically, she asserts that before the contested hearing, and at the time that the court rendered its ruling, the judge said something to the effect of, “ ‘I know you had something to do with the harming of [child].’ ” Mother claims that “minds were made up the moment I walked through the door.”
This court has reviewed the record transcript in its entirety. We have found nothing resembling the statement that mother asserts the juvenile court made,[9] nor evidence of any kindto support anallegation that the judge “prejudged” the case or harbored animus or biastoward mother.
Whereas “ ‘[p]otential bias and prejudice must clearly be established by an objective standard’ ” (Haworth v. Superior Court (2010) 50 Cal.4th 372, 389; see also Wechsler v. Superior Court (2014) 224 Cal.App.4th 384, 390‑391), we find mother’s claim of bias to be unfounded.What is more, mother was represented by counsel at all times during the proceedings, and a claim of judicial bias may be forfeited by failing to assert it below. (People v. Farley (2009) 46 Cal.4th 1053, 1110.)
We recognize the difficult and emotionally fraught nature of the dependency proceedings. A parent in mother’s position is the expression of a “ ‘partisan litigant emotionally involved in the controversy’ ”and “ ‘is not the disinterested objective observer whose doubts concerning the judge’s impartiality provide the governing standard.’ ”(Haworth v. Superior Court, supra,50 Cal.4th at p. 389.) For this reason, we caution mother against making unsupported assertions that the trial court was acting out of bias toward a party. Such statements are “not taken lightly by a reviewing court” and, when baseless, may be found contemptuous. (In re S.C.(2006) 138 Cal.App.4th 396, 422; In re White (2004) 121 Cal.App.4th 1453, 1478.)
B. SUBSTANTIAL EVIDENCE SUPPORTEDTERMINATION OF REUNIFICATION SERVICES AND SETTING OF PERMANENCY PLANNING HEARING
Mother contends that her counsel and the Department social workersdid not “d[o] their jobs to their capacity.” She points out that she complied with everything asked of her, including completing multiple parenting classes and getting a job to support herself. She contends that even though she had separated from grandmother since January 2015 and had been living with maternal aunt since June 2015, nobody checked to see whether grandmother was still living with her and “nobody investigated or proved that [child] coming home was a danger.”
Mother’s argument implicitly challenges the sufficiency of the evidence to support the juvenile court’s determination that mother did not complete all parts of her case plan, did not demonstrate the ability to safely parent or protect child, and that it would be detrimental to return child to the parent’s care.[10]
1. Standard of Review
The pertinent law is well‑settled. “When a child is removed from parental custody, certain legal safeguards are applied to prevent unwarranted or arbitrary continuation of out‑of‑home placement. [Citations.] Until reunification services are terminated, there is a statutory presumption that a dependent child will be returned to parental custody.” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400 (Yvonne W.).) Section 366.22, subdivision (a) requires the juvenile court at the 18‑month review hearing toorder the child returned to the 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.”
It is the Department’s burden toestablishdetriment. (§ 366.22, subd. (a)(1).) “The standard for showing detriment is ‘a fairly high one.’ . . .[T]he risk of detriment must be substantial,such that returning a child to parental custody represents some danger to the child’s physical or emotional well‑being.” (Yvonne W., supra,165 Cal.App.4th at p. 1400.)In evaluating the evidence, “the juvenile court must consider the extent to which the parent participated in reunification services” and “the efforts or progressthe parent has made toward eliminating the conditions that led to the child’s out‑of‑home placement.” (Ibid., citing § 366.22, subd. (a); see also Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748 (Blanca P.); In re DustinR. (1997) 54 Cal.App.4th 1131, 1141‑1142.)
This court reviews the record to determine whether substantial evidence supports the juvenile court’s finding that the child would be at substantial risk of detriment if returned to the parent’s custody. (Yvonne W., supra, 165 Cal.App.4that pp. 1400‑1401.)“ ‘Substantial evidence’ means evidence that is reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case.” (Id.at p. 1401.) We examine the evidence in favor of the juvenile court’s order, and indulge in all reasonable inferences to support the findings of the court. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
2. Analysis
In her argument that “nobody investigated or proved that [child] coming home was a danger,” mother seizesupon the essential issue before the juvenile court at the 18‑month review hearing: did the Department establish, 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 child. (§ 366.22, subd. (a)(1).)
As mother points out, the record shows that mother made considerable efforts toward the goal of reunifying with child. She completed two parenting courses with few absences, participated in individual counseling from December 2014 to March 2015 and again beginning in September 2015, complied with visitation and tried to increase the frequency of her visits, and completed a vocational program to become a medical assistant. Mother testified at the 18‑month hearing that she had obtained a position at a facility caring for elderly patients and had stopped getting money from grandmother, showingprogress toward financial independence. The evidence further showed mother’s love and concern for child and her desire to parent child.
Unfortunately, mother’s vocational progress, compliance withparts of her case plan,and her clear desire to parent child did not negate substantial evidence in the record that mother had not made substantive progress in“eliminating theconditions” that led tochild’sinjuries two years earlier.(Yvonne W., supra,165 Cal.App.4th at p. 1400.)
The juvenile court found the testimony of both social workers to be credible and persuasive butfound mother’s testimony to be only partially credible. The court specifically noted mother’s change in demeanor when testifying about grandmother. Mother’s failure to be honest with the social worker tarnished mother’s credibility on this issue, as the juvenile court observed: “Prior to trial, [mother] lied to the social worker about attendance at counseling and she lied about her ongoing relationship with and . . . financial dependence upon her own mother. And that lack of truthfulness with the social worker has cast a shadow over her credibility at trial.”
It is the province of the trial court to determine issues of fact and credibility. On appellate review, we have no power to weigh the evidence, to consider the credibility of witnessesby witnessing their demeanor, or to make inferences or deductions from the evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)
Mother’s failure to be forthright with the social worker,and the related credibility issues at trial, raised questions about her ability to establish and maintain emotional and practical independence from grandmother. The juvenile court’s findings on this point were significant due to the history of the dependency proceeding. Child suffered bone fractures when she was nine months old. After grandmother admitted to intentionally hurting child, and child’s medical providers confirmed that grandmother’s explanation could account for at least one fracture, it remained unclear who had caused child’s other injuries. The court amended the dependency petition to reflect grandmother’s role by replacing the section 300, subdivision (a) allegation with a subdivision (b) allegation for failure to protect. However, the court refused to strike the subdivision (e) and (i) allegations in part because “all we know is that maternal grandmother admitted to some of the injuries” and it was “still possible that mother may have committed some of the other injuries” and certainly “was aware of maternal grandmother’s abusive behavior” toward child in at least one instance. Evidence that mother remained susceptible to grandmother’s influence indicated a diminished ability to recognize threats to child. The psychological evaluation amplified these concerns. And thereports of both step‑grandmother and mother’s therapiststatingthat grandmother may have moved to maternal aunt’s house with mother reinforced the social worker’s assessment that mother was downplaying her relationship with grandmother.
In addition, both social workerstestified that despite attending parenting courses, mother had not progressed in her ability to set boundaries and adequately protect child. The Parenting Without Violence instructor told the social worker that she was not comfortable offering an evaluation of mother because mother’s participation was minimal. Moreover, neither social worker deemed it appropriate to shift mother and father from supervised or monitored to unsupervised visits. Social worker Madan explained that the parents did not show enough protective capacity “even during the short visits.” Social worker Campos testified that she was concerned about mother’s ability to perceive and assess risk for a two‑year‑old child.
Drawing all inferences in favor of the juvenile court’s findings, substantial evidence existed to suggest that mother had not distanced herself sufficiently from grandmother—whether physically, emotionally, or financially—and had not made substantive progress in identifying potential risks and taking precautions to protect child. While individual counseling ordered by the juvenile court was intended to help mother address these issues, mother failed to engage in counseling for a significant period of months and lied to the social worker about it. Thus, the juvenile court’s finding that mother only partially completed her case plan services was supported by the evidence.
For perspective on mother’s position that this evidence was insufficient to support a finding of substantial risk of detriment, we look to twocases in which the Court of Appeal found thejuvenile court’s decision terminating reunification services at the 18‑month review hearing to be unsupported by substantial evidence.
One such case is Yvonne W.There, the minor’s removal from parental custody was based on findings related to the mother’s marijuana use and the mother’s boyfriend sellingdrugs from the family home. (Yvonne W., supra, 165 Cal.App.4th at p. 1397.) The mother entered residential drug treatment, a parenting class, andindividual therapy. Her therapist reported that mother was “knowledgeable about positive parenting techniques, took responsibility for her bad choices and showed empathy for” the minor. (Ibid.) The mother moved into a long‑term shelter with her then‑infant son, continued services and random drug testing, and began hosting the minor for unsupervised and eventually overnight visits. (Id.at p. 1398.) As of the 18‑month‑hearing, the juvenile court recognized the mother’s progress but found that returning the minor to her custody would create a substantial risk of detriment based on the minor’s “fear, anxiety and unhappiness” about the mother’s living arrangement. (Id.at p. 1399.)
The appellate court reversed, because “[n]othing in the record” indicated that the mother was “incapable of adequately parenting” the minor. (Yvonne W., supra, 165 Cal.App.4th at p. 1402.) The court citedthe “uncontroverted evidence” that mother had eliminated the conditions that led to the minor’s removal by staying sober, participating in all recommended services, and obtaining “stable and ‘appropriate’ housing at a long‑term shelter where she [wa]s safely parenting her son.” (Id.at p. 1401.) The court notedthat there were “no reported problems” from the minor’s unsupervised weekend visits “other than her dislike of the shelter and its residents.” (Ibid.) Because the agency “presented no specific and objective evidence to show that [the minor] would suffer detriment, including serious psychological or emotional injury, if she were placed with [the mother] at the shelter,” the court found that the juvenile court was required to return the minor to the mother’s custody at the 18‑month hearing. (Id.at p. 1402.)
Another example is Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 (Jennifer A.). In that case, the children, ages three and seven, were detained after their mother left them alone in a motel room while she went to work. By the six‑month hearing, the mother’s social worker and therapist recognized that she “was ‘ “far removed” ’ from leaving the children at home alone again, had learned proper parenting skills, and had accepted responsibility for the circumstances that brought the children into the juvenile court’s custody.” (Id.at p. 1326.) But by the 18‑month review hearing, the social worker had concerns about a possible “ ‘unresolved substance abuse problem’ ” due to the fact that in twice weekly random drug testing, the motherhad somemissed and diluted tests, had tested positive for alcohol one time (for which she underwent treatment), and had tested positive for marijuana two times. (Id. at p. 1327.) The social worker believedthelatest positive marijuanatest was “one of a series of events, starting with the incident leading to the children’s detention, that are indicative of poor judgment.” (Ibid.)
The appellate court rejected this as insufficient substantial evidence to support the juvenile court’s finding that returning the children to the mother’s custody would create a substantial risk of detriment. (Jennifer A., supra,117 Cal.App.4th atp. 1341.) The court noted that the mother had daily, unmonitored visits with her children (ibid.),there was no concern about the mother’s living conditions or physical or emotional abuse of the children, and the social worker continually reported that the mother’s parenting skills were improving. (Id.at p. 1345.) Further, the social worker had testified that the mother “did not have a drug problem that affected her parenting skills.” (Id.at p. 1346.) The court concluded that no evidence linked the mother’s marijuana use to her parenting judgment or skills, so the juvenile court’s ruling terminating reunification services and setting a section 366.26 permanency hearing was error. (Jennifer A., supra,at pp. 1346‑1347.)
Here, mother complied with parts of her case plan and made laudable progress in completing her medical assistant training and getting a job; but she made little to no progress in convincing the social workers that it would be safe to return child to her. This is a critical factor that distinguishes mother’s situation from that of each parent inYvonne W. and Jennifer A.In Jennifer A., the basis for denying reunification (concern about the mother’s occasional marijuana use and possible, untreated substance abuse) was unrelated to the factors that led to the children’s removal or to any specific concerns about her parenting skills. (Jennifer A., supra,117 Cal.App.4th atpp. 1345‑1346.) Similarly in Yvonne W., the mother had addressed the circumstances that led to the dependency and had shown a consistent ability to parent her young son and the minor while living at the long‑term shelter. (Yvonne W., supra, 165 Cal.App.4th at p. 1402.)
We note thatcertain facets of the Department’sevidence, standing alone,appeared rather unremarkable. For example, the social workers’ testimony about mother’s management of potential hazards during visitation—such as responding to a dog with a distracted owner, allowing the two‑year‑old to test out a non‑infant swing, dancing atop a picnic table with child, or using poor judgment in taking child into the water on a cold day at the beach,without more, would not likely meet the “ ‘fairly high’ ” standard required to show detriment.(Yvonne W., supra,165 Cal.App.4th at p. 1400.) These incidents do not stand alone, however, and must be viewed alongside all of the evidence, including the psychological evaluation, mother’s strained credibility regarding her reliance on grandmother, her failure to be forthright with the social workers about this critical issue, her incomplete record of participation in counseling, and her limited progress in the Parenting Without Violence classes. In this context, these seemingly trivial examples reinforced the evidence that mother had not addressed the underlying circumstances that led to child’s removal.
This is what the appellate court in Blanca P. might have called one of the “harder cases.” (Blanca P., supra, 45 Cal.App.4th at p. 1748.) Where the problem is “qualitative (that is, whether the counseling, therapy or parenting classes are doing any good),” the case becomes highly sensitive and “fraught with emotional overtones, because [it] invariably deal[s] with an evaluation of the personality, characterandattitudes of the parent.” (Ibid.) Given the history of child’s case and the known as well as unknown sources of child’s injuries, mother’s failure to make progressboth in understanding potential risks to child and enforcing clear boundaries when confronted with possible sources of harm to child was tantamount to restating the original conditions that led to child’s removal.
III. DISPOSITION
The petition for extraordinary writ is denied.







Premo, J.





WE CONCUR:






Rushing, P.J.








Grover, J.





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D.D. v. Superior Court
H044224

[1] Unspecified statutory references are to the Welfare and Institutions Code.
[2] We repeat the relevant factual and procedural history taken from this court’s opinionin an earlier appeal in this dependency action (In re N.D.(Jun. 3, 2016, H043026)[nonpub. opn.]) and provideadditional facts as needed for consideration of the issues here.
[3] The initial MRI and bone survey results showed (1) subacute fracture on the right hip, (2) subacute distal fracture of the right femur; (3) distal tibial fracture with swelling; (4) proximal femur fracture; (5) subacute eighth rib fracture; and (6) undetermined first and ninth rib fractures. The subacute fractures were in the healing stages. The proximal femur injury (close to the pelvis) was not consistent with the reported fall. The distal tibial (ankle) fracture was more commonly seen in child abuse. Only three of these fractures were later confirmed.
[4] Dr. Rezowalli listed both “Diagnostic Features of Avoidant Personality Disorder” and “Diagnostic Features of Dependent Personality Disorder”as diagnoses, but stated that the full criteria for the personality disorders was not met.
[5] We include some general discussion of father’s participation and progress in case plan services. However, as father did not seek review from the termination of reunification services, the details of his participation are for the most part not relevant to resolve mother’s petition.
[6] Section 388 authorizes petitions in dependency proceedings to change or set aside a prior order “upon grounds of change of circumstance or new evidence.” (§ 388, subd. (a)(1); In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
[7] This change replaced the dependency petition allegation based on “substantial risk . . . [of] serious physical harm” by a parent or guardian (§ 300, subd. (a)) with that of “failure or inability . . . to adequately supervise or protect” the child (§ 300, subd. (b)).
[8] The juvenile court issued the restraining order on December 9, 2015.
[9] In its ruling on the 18‑month review hearing, the juvenile court stated that because some of child’s injuries remained unexplained, the court found it was “possible that mother may have committed some of the other injuries and that there was no dispute that mother was aware of maternal grandmother’s abusive behavior towards [child] prior to [child] coming into custody.” This statement merely reflects the juvenile court’s findings at the dispositional hearing, which this court affirmed in case No. H043026 as supported by substantial evidence.
[10] Mother’s statement also implies that she received ineffective assistance of counsel. Mother, of course, has the statutory right to competent counsel in the dependency proceeding (§ 317.5, subd. (a)) and may seek judicial review of a claim of ineffective assistance of counsel. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1661‑1662.) Moreover, a hearing for potential termination of reunification services and setting of a section 366.26 hearing implicates mother’s “due process entitlement to competent counsel . . . .” (In re Arturo A. (1992) 8 Cal.App.4th 229, 239.)
To establish ineffective assistance of counsel, mother would have to show that “(1) trial counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates, and (2) had counsel rendered competent service the outcome of the hearing would have been more favorable to the client.” (In re Arturo A., supra, 8 Cal.App.4th at p. 237.) This is a formidable burden, and one that “most commonly requires a presentation which goes beyond the record of the trial.” (Id. at p. 243.) Mother’s vague reference to people not doing “their jobs” provides an insufficient basis for this court to address such a claim. While it is theoretically “possible that the incompetency of counsel will be so gross as to jump out of the record and require no supplemental explanation” (ibid.), our review of the record here reveals no such obvious shortcoming.