In re I.H.
Filed 2/14/13 In re I.H. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
>
In re I.H., a Person Coming Under the Juvenile Court Law. | |
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. P.H., Defendant and Respondent; I.H., Objector and Appellant. | G047209 (Super. Ct. No. DP020769) O P I N I O N |
Appeal from an order of the Superior Court of
County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Linda
Rehm, under appointment by the Court of Appeal, for Objector and Appellant.
Nicholas
S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy
County Counsel, for Plaintiff and Respondent.
Marsha
F. Levine, under appointment by the Court of Appeal, for Defendant and
Respondent.
* * *
Introduction
I.H. was taken into protective custody in
January 2011, several days after she was born.
She had been one month premature, and both I.H. and her mother, P.H.
(Mother), tested positive for amphetamines.
The juvenile dependency petition included two counts: count 1 was for failure to protect under
Welfare and Institutions Code section 300, subdivision (b) (further
code references are to the Welfare and Institutions Code unless otherwise
noted), and count 2 was for abuse of sibling under section 300,
subdivision (j).
At the 18‑month review hearing in July
2012, the juvenile court brought its own motion under section 350,
subdivision (c) (section 350(c)).
After giving the parties the opportunity to argue, the court granted the
motion, found the Orange County Social Services Agency (SSA) failed to carry
its burden under section 366.22, subdivision (a), and ordered that
I.H. be returned to Mother’s custody under SSA’s supervision. I.H. appeals from this order. SSA has filed a letter brief stating it will
not file a respondent’s brief but does not oppose I.H.’s appeal.
Applying the relevant standard of review,
described in detail in the discussion section, we conclude the juvenile court
did not err by granting the motion under section 350(c) at the 18‑month
review hearing and ordering that I.H. be returned to Mother’s custody. We therefore affirm. Because the only issue presented by this appeal
is whether the juvenile court erred by granting the section 350(c) motion,
we start with an explanation of that code section and other relevant law,
provide an abbreviated procedural history, and limit our recitation of the
facts to the evidence presented at the 18‑month review hearing.
The juvenile court granted its own motion
under section 350(c), which states:
“At any hearing in which the probation department bears the burden of
proof, after the presentation of evidence on behalf of the probation department
and the minor has been closed, the court, on motion of the minor, parent, or
guardian, or on its own motion, shall order whatever action the law requires of
it if the court, upon weighing all of the evidence then before it, finds that
the burden of proof has not been met.
That action includes, but is not limited to, the dismissal of the
petition and release of the minor at a jurisdictional hearing, the return of
the minor at an out‑of‑home review held prior to the permanency
planning hearing, or the termination of jurisdiction at an in‑home
review. If the motion is not granted,
the parent or guardian may offer evidence without first having reserved that
right.â€
Section 350(c) allows a parent to test
the sufficiency of the social services agency’s evidence before presenting his
or her case. (In re Eric H. (1997) 54 Cal.App.4th 955, 968‑969.) Section 350(c) permits the juvenile
court to dismiss the dependency petition “when, upon weighing the evidence on
behalf of the agency and the minor then before it, it finds that the burden of
proof has not been met.†(
juvenile court may weigh the evidence and consider the credibility of witnesses
in deciding a motion under section 350(c).
(In re Roberto C. (2012)
209 Cal.App.4th 1241, 1252‑1253.)
The juvenile court granted its
section 350(c) motion following the 18‑month review hearing. Section 366.22, subdivision (a)
provides that following 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 has the burden of establishing detriment. (§ 366.22, subd. (a).) In making its determination, the juvenile
court must review and consider the social worker’s report and recommendations,
the report and recommendations of any child advocate, the efforts or progress
demonstrated by the parent, and the extent to which the parent has availed
himself or herself of services provided.
(Ibid.)
“By authorizing the continued removal of a
child from parental custody based on the risk of either physical detriment or
emotional detriment, sections 366.21 and 366.22 focus on the child’s well‑being
at the time of the review hearing rather than on the initial basis for juvenile
court intervention. [Citation.] Thus, while the court must consider the
extent the parent has cooperated with the services provided and the efforts the
parent has made to correct the problems which gave rise to the dependency
[citation], the decision whether to return the child to parental custody
depends on the effect that action would have on the
of the child.†(In re Joseph B. (1996) 42 Cal.App.4th 890, 899.)
Procedural
History
I.H. was placed on a hospital hold on the day
she was born, primarily due to Mother’s admitted substance abuse and positive
toxicology test at I.H’s birth. At a
team decisionmaking meeting held four days later, Mother admitted her drug use
and said she was ready for treatment.
The juvenile dependency petition was filed in
January 2011. The juvenile court ordered
that I.H. be detained and placed in SSA’s custody. Mother pleaded no contest to the dependency
petition’s allegations at the jurisdictional hearing on April 14,
2011. The court found the allegations true by a
preponderance of the evidence.
The dependency petition alleged Mother
knowingly used methamphetamine while pregnant with I.H. and had a history of
methamphetamine and cocaine use. The
petition alleged that while pregnant with I.H., Mother failed to obtain
prenatal care on a regular basis. The
petition alleged that I.H.’s alleged father was “Mick,†whose last name and
whereabouts were unknown, and that Mick knew or reasonably should have known
that Mother used methamphetamine while pregnant, but did not assist Mother in
seeking treatment and did not provide for I.H.’s care, supervision, and
support.
The petition alleged I.H. has two older half
siblings, Mi. and Ma., who were declared dependent children in 2006 when Ma.
was born with a positive test for cocaine.
Mother failed to reunify with them.
Mi. was adopted by the maternal grandmother and Ma. was adopted by her
foster parents.
On July 11, 2011, following a contested
dispositional hearing conducted over several days, the court declared I.H. a
dependent child of the juvenile court and vested custody with SSA. Mother was offered reunification services and
the court approved SSA’s case plan for her.
The case plan required Mother to complete a parenting program and an
outpatient substance abuse treatment program, participate in substance abuse
counseling and a 12-step program, submit to random drug testing, and
participate in individual or group counseling to address depression. The case plan established goals for Mother of
complying with court orders, cooperating with SSA, maintaining a relationship
with I.H., staying sober, not breaking the law, knowing and understanding
age-appropriate behavior for I.H., and obtaining and maintaining a suitable
residence.
A contested six‑month/12‑month
review hearing was conducted over several days in May 2012. The juvenile court found that return of I.H.
to Mother would create a substantial risk of detriment to I.H. and “the court
cannot trust the mother to protect the child.â€
The court also found, however, a substantial probability that I.H. would
be returned to Mother’s physical custody within two months. The court found that Mother had made
substantial progress toward alleviating or mitigating the causes necessitating
placement. The court approved SSA’s new
case plan presented in the SSA report addendum dated May 16, 2012.
The 18‑month review hearing was
conducted over several days in July 2012.
At the hearing, the juvenile court received in evidence SSA’s status
review report dated July 17, 2012 (the Status Review Report) and SSA’s
addendum report dated July 17, 2012 (the Addendum Report). The court heard testimony from social worker
Gina Diep, supervising social worker John Mannings, Mother, alleged father
M.A., and foster parent K.B.
I.
Evidence Presented at the 18‑month
Review Hearing
A.
Report
The Status Review Report stated that Mother
was living in a confidential residence, working full time as a trainee at a
dental laboratory, and driving an automobile for transportation. She had 14 hours per week of monitored visits
with I.H.
I.H. remained placed with foster parents K.B.
and M.B.,
temper tantrums. I.H. often woke up at
night screaming and had to be held to be calmed down. K.B. reported that Mother had given I.H. two
items (a zippered wallet and a beaded bookmark) that were potential choking
hazards.
The Status Review Report described as
“substantial†Mother’s cooperation with the case plan, and her efforts and
progress made toward alleviating or mitigating the causes necessitating court
involvement.
In March 2012, Mother had moved to
transitional housing. There, Mother
participated in drug testing and in counseling on relapse prevention and
financial responsibility. Mother was
following all of the rules of the program, including the rule against
unauthorized visitors. Her case manager
described her as “open and honest, focus[ed] on her case plan,†and
“motivat[ed]†to regain custody of I.H.
Mother twice weekly attended meetings of Alcoholics Anonymous/Narcotics
Anonymous.
Mother had reenrolled in the perinatal program
at the Orange County Health Care Agency and remained in full compliance with
individual therapy, as well as drug testing, between May and July 2012. Mother had been “exited†from the dependency
drug court in May 2012. In addition,
Mother had commenced individual therapy with Beatriz Granja, and, by July, had
attended six therapy sessions. Granja
reported that “[Mother] seems to be doing well and appears very motivated to
reunify with her child.â€
From January 20 through June 29,
2012, Mother had 27 drug tests, two of which she missed but was excused, and
the remaining were negative. Mother had
a drug patch applied on May 17, 2012, and, from that date to June 21,
2012, patch tests were taken six times.
All tests were negative.
Mother was consistent in visiting I.H. 14
hours every week (10 hours
four hours monitored by SSA staff).
During visits, Mother played with I.H., read her books, fed her, changed
her diaper, and tended to her needs.
I.H. and Mother often cuddled.
I.H. generally was happy during visits but had tantrums when she did not
get her way. She appeared to be very
comfortable with Mother and referred to her as “moma.†Mother appeared to be “very attentive and
affectionate†toward I.H.
I.H. usually cried when being placed in her
car seat to be transported to visits.
Sometimes, when being handed from her foster mother to Mother, I.H.
would scream, cry, and kick. Once, the
social worker transported I.H. from K.B.’s home to a visit with Mother. When the social worker tried to place I.H. in
the car seat, I.H. “began to arch her back†but within one minute fell
asleep.
On May 22, 2012, Mother called the
social worker, admitted that Mick and M.A. were one and the same person, and
provided M.A.’s address. On
June 20, Mother identified two ex‑boyfriends, M.A. and L.L., as
potential fathers of I.H. Mother
described M.A. as “crazy†and stated L.L. used drugs. Mother told the social worker that she “is
solely focused†on “being a good mother†and was not interested in having a
relationship with M.A. or L.L.
Under assessment/evaluation, the Status
Review Report stated: “To [M]other’s
credit, she has been compliant and cooperative with [SSA] and has complied
[with] the case plan. To the knowledge
of [SSA], she has not had any contact or interaction with persons not
authorized by [SSA]. She continues to
consistently visit her child and all visitation is reported to have gone well. She provides good care for her child during
the visitation. [M]other is not residing
in a state licensed or regulated residential treatment center and the residence
is not considered to be a residential treatment center. Her current residence is considered to be a
transitional living home (homeless facility).
[M]other has demonstrated progress during these previous two months;
however, it does not negate [M]other’s actions and/or behavior[] from the
previous eighteen months of services.â€
SSA recommended that reunification services for Mother be
terminated.
When the social worker informed Mother of
this recommendation, Mother was “tearful†and asked for “additional time to
reunify with the child.†Mother told the
social worker that she had received a couple of telephone calls from jail but
did not respond to them.
In June 2012, K.B. reported that I.H.’s
tantrums had been increasing. In July,
K.B. informed the social worker that, for the previous month, I.H. had awakened
“hysterical†every night about 10:30 p.m.
K.B. reported: “For the last
[]month, [I.H.] has been waking up around 1030p every night hysterical. We bring her to her bed and give her a bottle
(water) until she eventually falls asleep.
This takes hours sometimes. She
wakes up again hysterical and we repeat the process. Starting July 7th evening [I.H.]
. . . will not even let me put her in her crib—she cries
hysterically. She has also started
crying when I close her bedroom door when it’s time . . . for me to
read to her and her sister (part of our normal night time routine). When she does this, I lay her in my bed (by
herself) and she goes right to sleep.â€
B.
1.
Gina Diep, the social worker assigned to the
case, testified she was recommending that reunification services be terminated
even though Mother had participated in all required services, had complied with
her case plan, and had received positive reports from service providers. Diep believed the program at the transitional
home where Mother resided was “sufficient†because it offered case management
services, drug testing, and 12‑step meetings, and maintained strict
guidelines for visitors.
Diep testified that Mother was visiting I.H.
for 14 hours per week. Diep made no
changes to visitation because she believed the court order prevented making changes. Diep might have considered supervised and
unmonitored visits if she could make such changes.
When asked whether Mother had complied with
her case plan, Diep testified that Mother “needs . . . to be
honest.†Diep had no information to
suggest Mother had been dishonest during the previous two months, but believed
Mother needed more time “to demonstrate that we can be able to trust her in
. . . being truthful.†Diep
believed Mother had not been truthful about I.H.’s potential father and had
provided “confusing†information about whether “Mick†and M.A. were the same
person.
Diep believed Mother had the ability to meet
I.H.’s needs and had no concerns over Mother’s ability to care for I.H. When asked what risk there would be if I.H.
were returned to Mother’s custody, Diep testified that she wanted to slowly
transition Mother to unmonitored visits, but insufficient time remained to do
so. Diep also testified: “I feel comfortable that the child can be
safe in the house, but I don’t know what’s going to happen after or if
[Mother]—whether she’s meeting somebody or taking the child with her—I don’t
know—outside of the home environment.â€
Diep’s primary concern was that Mother was
engaging in inappropriate relationships or was in contact with men of whom SSA
did not approve. Diep had no evidence
that Mother was engaged in such relationships or contacts.
SSA rested at the conclusion of Diep’s
testimony. The rest of the witnesses
were called by counsel for I.H. (Minor’s Counsel).
2.
John Mannings was Diep’s supervisor. He testified he consulted with Diep regarding
the recommendation to terminate reunification services and agreed with it
because Mother “has run out of family reunification time.â€
Mannings was concerned about permitting
Mother to have unmonitored visits with I.H. because Mother’s past behavior
suggested that Mother would allow I.H. to be exposed to criminals and drug
users. He testified that during the prior
two months, Mother had done “really, really well†and had done “everything
she’s needed to do.†However, he
testified, “when you counterbalance that across a consistent period of 18
months, I think the 18 months holds heavier weight than these previous two
months.â€
Mannings was concerned that Mother was not
being entirely truthful with SSA and that her residence did not offer
supervision for 24 hours a day. Mannings
had no evidence that Mother had contact with any inappropriate people in the
last two months and acknowledged that her service providers all gave good
reports. He testified his “only concernâ€
was that Mother had provided “inconsistent information†about the father’s
identity.
3. Mother
Minor’s Counsel called Mother as a witness
under Evidence Code section 776.
While Mother was on the stand, she was examined by her own counsel as
part of her case-in-chief. The juvenile
court did not consider Mother’s examination conducted by her counsel, and,
therefore, we do not consider it.
On cross‑examination, Mother testified
she had been sober since the day I.H. was born.
Mother acknowledged she had a problem with drugs and alcohol and was
“still in recovery†and “working on my sobriety.†Mother testified that before she was sober,
“I didn’t care about anybody. I do all
kind[s] of stuff just to get my dope. I
didn’t care about my mom, my family, my kids and I lied.â€
Mother also acknowledged she had a problem
with lying. She admitted she lied when
she testified at the last hearing, but she was not lying “at this time.†She had not lied since the previous May, when
she had falsely testified that Mick and M.A. were different people. Mother had lied because she was afraid of
M.A. After I.H. was born, Mother accepted
rides from M.A. and had lived with him at the beginning of the dependency case.
Mother acknowledged receiving a telephone
call from the jail on July 11. She did not know who from the jail had
called her. She had recognized the
telephone number as being from the jail because she had friends who had been in
jail sometime in 2011, and she had received telephone calls from them.
At transitional housing, Mother lived in a
two‑bedroom apartment with another woman and her children. A “house mom†checked on Mother every day to
make sure she followed the rules. Mother
participated in relapse prevention every other week, met with her case manager
weekly to address budgeting, savings, and planning for her future, and attended
Alcoholics Anonymous/Narcotics Anonymous meetings. Mother was also participating in individual
therapy and the perinatal program, and was employed.
On recross‑examination by Minor’s
Counsel, Mother again acknowledged she had lied when she testified in May that
Mick and M.A. were not the same person.
Mother testified that she often lied “before,†but now she was “trying
to change†and was “not lying any more.â€
Mother had had no contact with M.A. for “[a] long time.†Mother testified she had changed her ways in
that “I know how to pray every day and ask God to give me guidance and I want
to live in the way that pleases God.â€
She “did not think of these things†before. Mother also testified that
in addition to M.A. and L.L., one other man could be I.H.’s father.
4.
M.A. testified that about two years
previously he had a sexual relationship with Mother. The relationship lasted three to four
months. He had not seen Mother for over
a year and a half.
At some point, Mother led M.A. to believe he
was I.H.’s father. M.A. did not believe
Mother because he had “trust issues†with her and she had spent time with other
men. When Mother informed M.A. he was
the father of I.H., he “brushed it off as though she was lying to me†because
“she wasn’t an honest person with me.â€
Earlier in the dependency proceedings, M.A. had signed a document
denying he was I.H.’s father and declining to participate in the dependency
proceedings.
5.
I.H. had been in K.B.’s care since I.H. was
six days old, except for a 60‑day visitation with Mother. Since May 16, 2012, K.B. had dropped off
I.H. for visits with Mother some 12 times.
On each occasion, when K.B. handed I.H. to Mother, I.H. would arch her
back, scream, and cry. I.H. appeared
happy when returned to K.B.’s care.
K.B. testified that Mother gave I.H. a wallet
that had very small beads attached to it.
K.B. was concerned because she believed the wallet was a choking
hazard. K.B. saw the maternal
grandmother hand I.H. some keys and was concerned because Mother did not
intervene to take them away.
K.B. testified that I.H. and her half sister,
Ma., who had been adopted by K.B. and M.B., were very close. When Mother’s 60‑day visitation period
began, Mother promised Ma. that I.H. would visit her. K.B. contacted Mother weekly to arrange a
visit, but Mother did not respond and no visits occurred.
On July 24, 2012, when Minor’s Counsel
rested, the juvenile court asked the parties to be prepared the next day to
present argument on section 350(c).
On July 25, after hearing argument, the juvenile court found that
SSA had not met its burden of proof under section 366.22,
subdivision (a), granted the section 350(c) motion, and ordered that
I.H. be returned to Mother’s custody under SSA’s supervision. The court did not modify the de facto parent
status of K.B. and M.B.
The juvenile court stated its findings and
reasons at length on the record. The
court’s finding can be summarized as follows:
1.
Mother had been sober for 18 months and had maintained her sobriety
“despite very tumultuous times.â€
2.
Mother’s therapists fully supported Mother and believed she had made
“substantive progress.â€
3.
Mother had not exposed I.H. to people with “active drug problems†who
posed a substantial threat to I.H.’s well‑being and safety. There was “no evidence that [Mother]’s
associat[ing] with anyone she wasn’t supposed to associate with.â€
4.
Although one of Mother’s major “coping mechanisms†had been to lie, the
court was encouraged to believe Mother was trying to change her ways. Soon after the last hearing, when Mother
falsely testified that Mick and M.A. were different people, Mother had gone to
SSA and confessed that Mick and M.A. were the same person. Also, Mother had voluntarily informed the
social worker about receiving telephone calls from the jail.
5.
Mother obtained employment, was obeying the rules at her residence, and
maintained visitation with I.H. with “clockwork†regularity.
6.
Although I.H.’s behavior when handed from K.B. to Mother was
“disturbing,†the court took into account I.H.’s age and the fact I.H. likely
viewed K.B. as her mother. The court
attributed I.H.’s behavior to “known separation anxiety.â€
7.
Mother acted appropriately during visits with I.H. Aside from the “poor associations†and
decisions that Mother made during the 60‑day visitation period, there was
no evidence that Mother was not “parenting [I.H.] appropriately or that there
were any other dangers.†The court was
“mindful†of the dangers posed by the keys and beaded wallet that Mother gave
to I.H., but believed K.B. and Mother responded “exactly the same way.â€
8.
Mother had complied with her case plan, removed undesirable people from
her life, “re-engaged†with her family, and “has started to proceed in a
fashion that indicates that she is capable of caring for [I.H.].â€
Discussion
In reviewing an order made following an
18-month review hearing, we usually determine whether substantial evidence
supports the juvenile court’s findings.
(Jennifer A. v. Superior Court
(2004) 117 Cal.App.4th 1322, 1340, 1345.)
In this case, in which the juvenile court granted a section 350(c)
motion, the standard we apply is somewhat modified. “[The substantial evidence] test is typically
implicated when a defendant contends that the plaintiff succeeded at trial in
spite of insufficient evidence. In the
case where the trier of fact has expressly or implicitly concluded that the
party with the burden of proof did not carry the burden and that party appeals,
it is misleading to characterize the failure-of-proof issue as whether
substantial evidence supports the judgment. This follows because such a characterization
is conceptually one that allows an attack on (1) the evidence supporting
the party who had no burden of proof, and (2) the trier of fact’s
unassailable conclusion that the party with the burden did not prove one or
more elements of the case [citations].
[¶] Thus, where the issue on
appeal turns on a failure of proof at trial, the question for a reviewing court
becomes whether the evidence compels a finding in favor of the appellant as a
matter of law. [Citations.] Specifically, the question becomes whether
the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and
(2) ‘of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.’ [Citation.]â€
(In re I.W. (2009) 180
Cal.App.4th 1517, 1528.) We agree with
this formulation of the standard of review.
At the 18‑month review hearing, SSA and
Minor’s Counsel had the burden of establishing that the return of I.H. to
Mother would create a substantial risk of detriment to the safety, protection,
or physical or emotional well‑being of I.H. (§ 366.22, subd. (a).) In granting the section 350(c) motion,
the juvenile court expressly found that SSA did not meet its burden. Thus, the question for us is whether the
evidence at the 18‑month review hearing compelled a finding in favor of SSA and Minor’s Counsel that, as a
matter of law, the return of I.H. to Mother would create a substantial risk of
detriment to I.H.’s safety, protection, or physical or emotional well‑being.
The answer is no. There was evidence presented at the 18‑month
review hearing of risk of detriment if I.H. were returned to Mother’s
custody. In particular, there was
evidence that Mother might expose I.H. to undesirable people, that Mother had a
problem in the past with telling the truth, and that I.H. would benefit from a
continued relationship with Ma. But this
evidence did not compel a finding of
substantial risk of detriment.
To the contrary, evidence supported the juvenile
court’s extensive express findings, among which were the findings that Mother
was successfully working toward changing her ways, had not exposed I.H. to
undesirable people, had maintained her sobriety, had complied with her case
plan, and had displayed appropriate parenting skills. The Status Review Report described as
“substantial†Mother’s cooperation with the case plan and stated that to SSA’s
knowledge, Mother was consistent in visiting I.H. and provided good care for
I.H. during the visits. Mother’s
therapist and case manager noted her progress.
The primary concerns of SSA and Minor’s
Counsel expressed at the 18‑month review hearing were that Mother had not
been truthful about the identity of I.H.’s father and that Mother associated
with inappropriate people. The juvenile
court was entitled to weigh the evidence and assess witness credibility. (In re
Roberto C., supra, 209
Cal.App.4th at p. 1252.) The
juvenile court reviewed the Status Review Report and the Addendum Report and
observed Mother testify. The Status
Review Report noted that to SSA’s knowledge, Mother had not had any contact
with persons not authorized by SSA.
Mother testified she was “trying to change†and was “not lying any
more.†Based on the weight of the
evidence and an assessment of Mother’s credibility, the juvenile court could
find that Mother was striving toward being honest and had had no contact with
inappropriate people. For the same
reason, the juvenile court could properly conclude that I.H.’s behavior when
passed from K.B. to Mother was normal separation anxiety, and not grounds for
denying Mother custody of I.H.
The juvenile court did not err in returning
I.H. to Mother’s custody under the supervision of SSA.
The order granting the section 350(c) motion and ordering that
I.H. be returned to Mother’s custody under SSA’s supervision is affirmed.
FYBEL,
J.
WE CONCUR:
O’LEARY, P. J.
THOMPSON, J.
status at the 18‑month review hearing.
