P.
Filed
9/11/13 In re James P. CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re JAMES P., et al., Persons
Coming Under the Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Plaintiff and
Respondent,
v.
TIFFANY P.,
Defendant and
Appellant.
F065284
(Super.
Ct. Nos. 515877, 515878, 515896)
APPEAL from
an order of the Superior Court of
County. Ann Q. Ameral, Judge.
Liana
Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant.
John P.
Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
Tiffany P.
is the mother of four children: James, age 5; Hailey, age 4; Daniel,
age 2; and Aubrey, age 1. This is
the second appeal involving the three older children; the youngest child was
born after the latest disposition order and is not a subject of this
appeal. In mother’s first appeal, we
affirmed the order of jurisdiction, but reversed the disposition order, finding
that there was insufficient evidence to demonstrate by clear and convincing
evidence that a substantial risk of harm existed at the time of hearing that
could not be mitigated by family maintenance service and close supervision by
child welfare staff. (
F061732 [nonpub. opn.].)
name="_ftnref1" title="">[1] On remittitur, James and Hailey were returned
to mother’s full-time custody. The
youngest child, Daniel, was placed with his father and allowed extended visits
in mother’s home.
Approximately
one month later, the children were again removed and the
County Community Services Agency (the Agency) filed a Welfare and
Institutions Code section 387
name="_ftnref2" title="">[2] supplemental petition. The juvenile court found the allegations of
the petition to be true and removed James from mother’s custody; Hailey was
allowed to remain in mother’s custody with family maintenance services; and
Daniel was to remain in his father’s custody, but continued as a dependent of
the court.
Mother
contends on appeal that there was no substantial evidence to support the
juvenile court’s findings and orders of May 11, 2012, by which the court
sustained the section 387 supplemental petition and ordered removal of James
from mother’s physical custody. Mother
also claims the Agency failed to provide reasonable reunification services and
that the Agency violated mother’s due process and equal protection rights. We disagree and affirm.
Original Section 300 Petition and Jurisdiction/Disposition
On August 11, 2010, a referral to
the Agency noted that mother was locking her two children in a bedroom for
“hours.†Social worker Madeline Perez
made an in-home visit on September 2, 2010, at 2:00 p.m., and observed that the
doorknob lock was turned around, i.e., on the outside of the door, facing the
hallway. Mother unlocked the door and
both James, age 2, and Hailey, age 1, walked out of the room. A strong urine odor emanated from the
room.
Hailey had various scratches and
red marks on both her cheeks and along her neck. Mother told Perez that James was often
aggressive towards Hailey. Mother also
told Perez that she locks the children in their bedroom during their naptime,
approximately 12:00 noon to 3:00 p.m., and then again for their bedtime,
approximately 7:00 p.m. to 7:00 a.m.
When Perez raised concerns over the children’s safety, mother minimized
the situation and made comments indicating she failed to grasp the seriousness
of her actions.
Mother denied any mental health
history or problems and denied an eating disorder. She advised Perez that she had a restraining
order against Hailey’s father, Jerry S., and against her current husband, John
P., father of her unborn child. While
Perez was there, two staff workers from the BEST program, an early autism
intervention program, arrived to work with James. They had to remove feces from the childrens’
bedroom before beginning to work with James.
On September 8, 2010, Perez and
another social worker, Rosa Mercado, visited mother and observed Hailey with
scratches on her face and body, which mother acknowledged were caused by
James. Mother told them she did not feel
the need for additional parenting instruction.
She also initially denied any mental health diagnosis, current or past,
before admitting she was previously diagnosed with an eating disorder and had
been admitted to a mental health institution several years prior for cutting
herself. She also admitted she was currently
working with a mental health services provider through Telecare.
Mother’s Telecare case manager,
Lisa Amarant, informed Perez that mother had been receiving services for
approximately three years and had been diagnosed with an eating disorder
(bulimia) and major depressive disorder.
Mother’s eating disorder was an ongoing concern.
On September 9, 2010, Perez visited
mother’s home and observed the doorknob lock was dismantled but still in
place. She also noted James was not
wearing a diaper. When she suggested
James should have a diaper on, mother responded that James has a “‘bladder of
steel,’†was not potty trained, and would sometimes take off his diaper and
smear feces around the room, requiring hours of clean up. The social worker wrote in her report that
mother again “minimize[ed] her problems and denied any mental health issues
other than the bulimia.â€
Investigation into the children’s
fathers revealed that John P., father of mother’s unborn child, was convicted
of child abuse in June of 2010 after mother had him arrested for physically
abusing James and Hailey. He also had a
lengthy history of substance abuse convictions.
James’s father, Juan E., was found
to have no criminal background and a suitable home. He admitted that he did not have much contact
with his son as mother had sole legal and physical custody. But, he had gone to pick up his son several
weeks earlier and found him in the locked bedroom. He also reported that he had seen James eating
and then sticking his two fingers down his throat, causing him to vomit. Juan E. had seen James do this before and was
concerned due to mother’s bulimia.
Hailey’s father, Jerry S., had a
long history of mental illness, a conviction for abusing his own father to the
point of causing him brain injury and a more recent conviction for abusing his
sister’s 22-month-old son. He was
currently incarcerated.
James and Hailey were removed from mother’s
home on September 9, 2010. James was
placed in the temporary custody of his father.
Hailey was placed with a friend of mother’s who had babysat the children
in the past.
The Agency filed a petition on
September 13, 2010, which set forth nine allegations as to mother’s unfitness
for custody, under section 300, subdivision (b). On September 14, 2010, the juvenile court
ordered the children detained and a jurisdiction hearing set.
Mother gave birth to Daniel on
September 24, 2010. Two days later, he
was removed from mother’s physical custody and placed in the same home as
Hailey. A petition was filed for Daniel,
with allegations that essentially mirrored the allegations in the petition for
James and Hailey.
Mother underwent a psychological
assessment on October 14, 2010. The
diagnostic impression was that mother had an adjustment disorder with depressed
mood, a history of bulimia, and a personality disorder. In the evaluation section of the report, the
social worker noted that, although mother had received three years of parenting
instruction from Parent Resource Center, including in-home mentoring, that
“knowledge ha[d] not translated into appropriate actions.†Mother still did not recognize the inherent
danger in leaving the children alone, locked in the bedroom for long periods of
time, especially because James was aggressive with Hailey, causing the
scratches on her face and body. The
social worker opined that mother’s denial of problems would be the most
difficult issue of any case plan objective.
During the pendency of the case, an
autism evaluation was completed on James and he was found to fall in the mild
to moderately severe category of autism.
He was particularly impaired in the area of language.
A contested joint jurisdictional
and dispositional hearing took place over three days in December 2010 and
January 2011. The juvenile court found
that a preponderance of the evidence supported a finding that James, Hailey,
and Daniel were persons described by section 300, subdivisions (b) and (g) and
that removal of the children from mother’s physical custody was
appropriate.
Appeal from the
Jurisdiction/Disposition Findings and Orders and Remittitur
Mother filed an appeal from the
disposition findings and orders. While
the appeal was pending, the case was set for a six-month status review
hearing.
The status review report filed in
anticipation of the hearing stated that mother was receiving mental health
services and working on issues of self-esteem, organizational skills, and
finding housing. But when asked if she
was working on the issues set out in her case plan, mother said she was not
because she did not think they were valid.
Mother had not worked on the housing packet provided her by the
counselor, nor had she signed up for counseling in response to her referral to
Sierra Vista. Mother was in the process
of completing her parenting program with Mary Anne Cose, also at Sierra
Vista. Cose reported that mother was
most concerned with the injustices done to her and continued to defend locking
James in the bedroom. But Cose also
reported that mother used appropriate parenting techniques during the parenting
labs, part of the parenting program. The
social worker noted that mother was fixated on James’s autism, to the exclusion
of her other two children.
The social worker, who had taken
over the case on April 4, 2011, noted mother’s continued attempts to “dominate
and manipulate the system,†continuing to argue over the reasons the children
were detained at every opportunity, rather than work on her case plan. On May 2, 2011, mother was found to have made
threats of harm on the internet toward the social workers. In response, safety precautions were put into
place prior to her visits.
Mother requested a contested review
hearing, which began on July 12, 2011, and continued over multiple days and was
eventually put over to September 20, 2011.
But in the interim, on September 1, 2011, a section 387 petition was
filed. Mother had lost her housing and
Juan allowed her to move into the home with him, contrary to the court order
that all contact between James and his mother be supervised by the Agency. Mother did not inform the Agency of this
arrangement, and it only came to light when mother fell in the home and Juan
took her to the hospital, leaving James home alone unintentionally due to a
misunderstanding with a neighbor.
The section 387 petition was
combined for hearing with the continuing contested review hearing, heard over
several days. Prior to the last
scheduled hearing date, this court, on November 14, 2011, issued its opinion in
the appeal from the original jurisdiction and disposition order, ordering a new
disposition hearing. We found that the
juvenile court “could have imposed stringent conditions, including frequent
unannounced in-home visits, for mother on her use of the lock to confine her
children, and on following the advice given to her by social workers and
service providers as to her parenting behavior and mental health.â€
On November 17, 2011, the juvenile
court suspended the ongoing hearing and continued the matter to January 17,
2012, for hearing on the remittitur and further disposition. Social worker Roslyn Mincey visited mother’s
home on December 14, 2011, to assess it for possible in-home visitation or
return of the children. A home
inspection revealed that mother had installed an alarm on her front door,
baby-proofed electrical outlets, and there were no locking doors in the
apartment, other than the bathroom, which could be unlocked from the
outside. Medications and cleaning
supplies were secured. Mother and Mincey
discussed various ways to cook safely with children around, specifically
suggesting that mother not cook on the front burners of the stove. Mother agreed that the social worker could
remove the knobs from the stove.
Mincey noted that mother had
acquired a small hyperactive dog, according to mother a “therapy dog,†which
ran around inside of the house. Although
Mincey expressed concern regarding the dog when the children were returned due
to its hyperactivity, mother thought the children would do well with the dog.
On December 15, 2011, the Agency
filed a section 388 petition seeking an order to allow increased visitation,
including overnight visits with mother in anticipation of their return, as well
as authority to begin trial visits with John P. for Daniel. The petition was granted on January 4,
2012.
A disposition report on the
remittitur was filed for the January 17, 2012 hearing, and recommended that all
three minors remain dependents of the court; that James and Hailey be released
to the custody of their mother; that reunification services be given for James
and his father; that Hailey’s father, who continued to be incarcerated, be
denied services; and that custody of Daniel be given to both of his parents,
with the primary residence being with his father.
Mother obtained a one-bedroom
apartment, and the Agency assisted her in obtaining a crib for Daniel. Daniel’s father, John P., was working on
getting housing and employment; James’s father, Juan E., lost his housing and
was living with his parents. Mother
reported to the Agency that her only need at that time was to continue
counseling at Sierra Vista.
On December 21, 2011, Juan E.
reported to the social worker that he was concerned with mother’s ability to
handle all of the children. He also
reported that mother was again pregnant, but that he was not the father. Mother denied the pregnancy allegation.
James continued to receive services
through Valley Mountain Regional Center (VMRC) and was reported by his care
providers to be improving in both speech and social skills. Hailey had begun to develop negative
behaviors in foster care and was approved for mental health and counseling
services.
The Agency recommended return of
James and Hailey to mother’s full-time care and extended visitation for Daniel,
but it continued to have concerns about mother’s ability to supervise her three
children. A home-based service plan was
put into place through Therapeutic Behavior Services (TBS) to assist mother in
parenting, which would begin when the children were returned to her home.
During extended in-home visits,
social workers observed that mother was affectionate with the children and was
trying hard to manage them, but needed a lot of help learning how to accomplish
this. One issue involved her need to
establish and maintain boundaries, and not give in to the children’s demands
after she said no. Mother and John P.
were referred to coparenting counseling at Sierra Vista because they shared
custody of Daniel.
On January 17, 2012, although the
remittitur had not yet been received, the court held the new disposition
hearing and adopted the Agency recommendations.
Hailey and James were returned to their mother’s care.
Section 387
Petition
Slightly more than one month later,
on February 23, 2012, the Agency filed a section 387 petition seeking removal
of the children from mother’s home.
Hailey and James were detained and Daniel remained in his father’s
custody. The petition allegation
described a series of issues that had arisen over the course of the six weeks
since the minors began extended visits in mother’s home and were subsequently
returned.
Section 387 Detention Hearing
A contested detention hearing began
on March 1, 2012. Social worker Nicole
Cunningham testified, primarily reviewing log notes of other social
workers. The notes were admitted into
evidence. The notes included the
following incidents:
On January 10, 2012, Mincey
supervised the first two hours of a four-hour home visit. When Daniel and James arrived for the visit,
James immediately began pushing buttons on the air conditioning unit. He then focused on the small dog, repeatedly
picked him up and squeezed him hard to keep him from jumping out of his
arms. Although mother and Mincey
attempted to teach James to treat the dog gently, James continued to grab the
dog by the stomach or legs. At Mincey’s
suggestion, the dog was placed into a travel kennel. But when the children again asked for the
dog, mother let the dog out. Although
Mincey expressed concern for the dog, mother insisted that the children have
the dog available and that it was good for the children to have a pet.
At one point, Daniel spilled the
dog’s water dish. Mother used a Swiffer
mop to clean up the mess. James then
used the mop and activated the water flow, getting the floors wet and
slippery. Mincey suggested removing the
water bottle from the mop, which mother did, only to replace it when James
complained. James then resumed using the
mop and activating the water, causing him to slip on the wet floor. James again pushed buttons on any electric
devices in the apartment, including the remote control and dishwasher. He turned on the microwave and tried to turn
on the furnace with a broomstick. Mother
followed and tried to redirect him. When
Hailey arrived, she and James played with the dog in “much the same manner as
before.â€
Social Worker Maria Pasillas
supervised the last two hours of the visit.
James continued to turn knobs on the appliances and much of the same
behavior reported by Mincey continued.
At the end of the visit when mother hugged Hailey, Hailey slapped her
hard in the face. Mother did not respond
and Mincey told Hailey that her behavior was not appropriate. Pasillas noted that mother was listening to
suggestions on how to care for her children and she seemed to be trying, but
she needed help learning how to manage three children and how to say “no†and
stick by it.
At the next visit, two days later,
Mincey noted that James continued to fixate on the electric appliances. Mincey suggested locking devices for the
appliances, and mother said she had not found any yet, but would continue to
look. Hailey and Daniel both grabbed the
dog, which Mincey put into the kennel.
When mother refused a request from Hailey, Hailey hit her. At Mincey’s suggestion, Hailey was given a
time out.
During the second half of the
visit, supervised by Pasillas, James continued to mistreat the dog. He put all of his weight on the dog, so that
the dog could not breathe. When told not
to, he laughed and continued to do it, although the dog was gasping for air. Hailey also mistreated the dog, but listened
when told not to. Hailey then bit James
and was placed in a time out by mother.
On January 20, 2012, the Agency
delivered a crib to mother’s apartment for Daniel. Mother had two males visiting her; the apartment
was messy and had a “really bad odor.â€
Nine days after Hailey and James
were returned to their mother’s care, Mincey made an unannounced visit to the
home on January 26, 2012. At that time,
mother said she was still postponing visits with Daniel while she got better at
handling James and Hailey. Mother said
that a behavior clinician came daily to work with Hailey, while another
clinician made home visits and was working with both Hailey and James on
“perservarative behavior.†Mincey noted
that specific items of interest to James, i.e., the Swiffer mop and TV remote
control, etc., were placed out of reach.
The dog was now in a full-leg cast, the result of James dropping the dog
from a great height, breaking its leg.
Mincey advised mother to either give the dog away or temporarily place
it with a friend until the children learned to play with it appropriately. Mother was hesitant to do either.
Mother reported that, earlier that
day, James had opened the dishwasher while it was hot and gotten a “steam burnâ€
on his finger. Treating it with ice
appeared to solve the matter and Mincey noticed no ongoing injury to the
finger. Mother still did not have any
locking devices on either the dishwasher or stove, but continue to look for
such devices. The social worker
suggested additional behavioral services for James through VMRC, and mother
said she would call.
The following evening, when social
worker Pasillas made an unannounced home visit, Hailey bit James on the hand
and was put in time out. The social
worker noted that the home was messy with “toys all over the floor†and a
“mountain of clothes on Hailey’s bed.â€
The social worker provided mother with documents for her neighbor Bryan
H., so that he could be a respite care person for mother.
On January 31, 2012, a social
services driver attempted to deliver bus passes to mother, but when he called
her cell phone, she refused to come get them.
According to mother, she was trying to put the children to sleep at the
time.
Early on February 4, 2012, the
Agency received a call from mother’s neighbor Bryan H., who was at the hospital
with mother and her children. According
to Bryan H., mother had come to his home that morning with the children,
stating that she had fallen, and that she needed help getting to the hospital
and watching the children. It was at
this point that the social worker discovered that mother was now 24 weeks
pregnant. She had fallen, causing a
placental abruption and needed to stay in the hospital overnight for
observation. A friend of mother’s,
Tiffany M., came to the hospital to take the children. Mother was released the following day.
On February 6, 2012, Mincey visited
mother, who admitted she was about 23 weeks pregnant and that the father was
“no one involved in the case.†According
to mother, the father lived on the East Coast with his family, and she had a
written agreement with him not to disclose his name.
At the February 8, 2012, visit
Mincey noted that Hailey had scratches on both sides of her face and on her forehead. Mother reported to the social worker that she
was tired all the time, most likely due to her pregnancy and the fact that the
children no longer took daytime naps.
On February 15, 2012, a referral
was received from Daniel’s father, John, that when Daniel returned from a visit
with mother, he had bites on his arm and hand and a bruise on his arm. Mother told him Hailey had bitten
Daniel. When asked about the incident,
mother reported that the two had argued over a mop and over a toy, and Hailey
bit Daniel when he wanted the items.
Mother claimed the bruise on Daniel’s arm was already present when he
arrived at her house.
Mincey noticed that James had a
“good size†scrape on his forehead.
Mother said that the injury had occurred the previous weekend when James
was visiting his previous foster parents and he fell off of a scooter. Although she invited the social worker to
call the foster parents, mother could not remember their names or contact
information. Mother had still not
purchased appliance locks.
The social worker contacted the
previous foster family, who confirmed that James and Hailey had visited the
previous week, but that they had played all day without incident. James did not fall and get hurt while visiting.
On February 16, 2012, Mincey made
an unannounced home visit. At the visit,
mother reported that she had given the dog to a friend to take to the animal
shelter. Mother had now purchased locks for
her refrigerator and oven, but had yet to find one that fit her dishwasher. James continued to pull on appliance doors
and try to turn them on.
Juan Taran, behavior therapist for
Hailey, was contacted and stated that he works daily with Hailey and mother at
their home. He had not been there when
all three children were there, just James and Hailey. Mother told him about one biting incident
with Hailey and that she had put her in time out. She did not mention a second biting incident.
After an Agency staffing on the
case on February 21, 2012, a warrant was written for detention of the
minors. It was served that afternoon and
the children taken into protective custody.
Mother was upset and would not listen to the social workers regarding
the reasons for the detention. As
summarized in the report, the reasons for placing the children in protective
custody were as follows:
“[T]he allegations of General Neglect are
SUBSTANTIATED. [Mother] recently
reunified with her 3 children ranging in ages from 1-4 years old. They were initially removed due to issues
regarding her mental health issues, her lack of parenting skills, her inability
to protect them from physical abuse and her being completely overwhelmed. The children have been back in her home since
mid January. Over the course of the past
month, the FR SWs have noted supervision and parenting concerns, [mother]
herself was seriously injured, despite the fact that she knows Hailey bites,
[mother] has not taken appropriate steps to keep Daniel safe and he sustained
two bites in the space of one morning and James has an unexplained injury to
his forehead. Despite the extensive
services provided to [mother] over the past year it does not appear that she
[is] able to demonstrate that she can safely supervise and appropriately parent
the children.â€
Hailey’s therapist, Chad Fielden,
testified that he had begun therapy with Hailey while she was still in foster
care. At the time of referral, the
concern had been Hailey’s behavior, which had included smearing feces,
defiance, tantrums, and difficulty sleeping.
Fielden had been to mother’s home between six and eight times, and was
working on Hailey’s frustration tolerance.
He saw Hailey’s biting as a response to frustration. Fielden saw an improvement in the duration of
Hailey’s tantrums. Fielden thought
mother’s home was chaotic due, in part, to James’s behavior, but he did not
think mother’s parenting put the children in danger. Daniel was present during two of Fielden’s
visits to the home. Early on when
Fielden first visited mother’s home, she refused to sign a release of information
form to share his reports with the Agency.
Mother was “adamant†that Fielden not share information with the
Agency.
Fielden testified that when he went
to mother’s home, there was usually another adult male present who would watch
James while Fielden and mother worked with Hailey. On occasion, the male would intervene with
James to prevent him from doing various negative behaviors. Fielden testified that it was particularly
important with a child like Hailey for a parent to establish boundaries and to
maintain them with consistent discipline.
Fielden thought mother was able to provide those appropriate structures
and boundaries.
Mincey, who
made four visits with mother and children since December of 2011, testified
that James had autism that manifested itself in repetitive behaviors. James uttered a few words, but had no
appreciable communication skills. In her
first visit with mother on December 14, 2011, Mincey discussed with mother the
wisdom of keeping a dog very demanding of her time while she was trying to care
for her children. Mother thought the
children would treat the dog appropriately in time. Mincey was concerned that the dog would bite
one of the children while trying to protect itself. The children played tug of war with the dog
and the dog would grab food out of their hands.
During the
visit, Mincey noticed a large pot on the stove with the handle in a position
that it could be easily bumped or knocked off.
Mincey discussed with mother that the placement of the pot handle could
result in injury.
According
to Mincey, James remained fixated on repetitive activities, including pushing
the air conditioning buttons, pulling at plugs, and running a toy along the
heater grate. Mother was torn between
the three children, trying to monitor normal childhood issues and being
distracted with James’s constant activity.
Mincey discussed with mother several times that the appliances needed to
have locking devices on them for James’s safety. Mother had reported to Mincey that James had
a steam burn on his finger from opening the hot dishwasher. When James was in his father’s house, he did
not have the same preoccupation with electrical devices. After witnessing the children hurting the
puppy, Mincey suggested to mother that she give the puppy away, but mother
refused.
At this
point in the proceedings, a conference was held at the suggestion of the
juvenile court. It was agreed that
Hailey would return to mother’s care, but James would continue in foster care
and Daniel in his father’s care. This
would allow mother to focus on getting Hailey’s behavior under control before
adding the other children. Visits with
James would occur when there was a service provider in the home. A jurisdiction/disposition hearing was set
for March 27, 2012.
Jurisdiction/Disposition
Report and Hearing
The March
27, 2012, report prepared in anticipation of jurisdiction/disposition stated
that, while mother was able to safely parent Hailey, she was not able to parent
all three children at that time, especially due to James’s behavior problems
caused by autism. The report, which
described mother as “overwhelmed,†noted mother’s inability to explain the
scrape on James’s forehead and surmised that it occurred while he was not being
properly supervised. The report also
stated that it was not safe to return Daniel to his mother’s care because
Hailey had bitten him while he was under mother’s supervision. The report noted that, while mother was
presently providing a safe environment for Hailey, mother might not be able to
cope with Hailey once the new baby arrived.
The report
stated that mother had not been keeping up with her counseling services at
Sierra Vista. Mother had cancelled
appointments on February 27, 2012, and March 12, 2012, and she had not informed
her therapist that she was pregnant.
Mother’s failure to be forthcoming concerned the therapist. Mother did not attend coparenting sessions on
March 12 and 29, 2012, which were scheduled with Daniel’s father. The social worker opined that, although
mother was for the most part working on her case plan, she was not putting the
skills she learned into practice. The
social worker had serious concerns about mother’s ability to supervise all
three children at the same time.
At a March
27, 2012, pre-trial conference, the juvenile court gave the Agency discretion
to allow mother extended visits with James.
A contested jurisdiction/disposition hearing was set for April 17, 2012.
An addendum
report filed April 17, 2012, stated that a visit with James on March 21,
2012, was cancelled because he was ill.
A visit on March 23, 2012, went well with mother appropriately
redirecting the children when they did not get along. A March 26, 2012, visit went well; the house
was clean and organized, but the children argued a lot. A scheduled April 2, 2012, visit was
cancelled due to mother’s “pregnancy pains.â€
The first
visit with Daniel was scheduled for April 9, 2012, but he could not come due to
an emergency in his father’s family.
Hailey and James argued with each other.
Daniel came to visit with the others on April 16, 2012; Hailey
misbehaved and had to be placed in time out three times.
The report
included a letter from mother’s therapist Cose who stated that, between June of
2011 and March 12, 2012, mother missed or cancelled eight sessions. According to Cose, mother was forthcoming and
motivated “for brief periods,†but her ability to be forthcoming was
fleeting. Mother still had not revealed
her pregnancy to Cose. Cose worried that
this would likely add additional stress for mother.
At the
April 17, 2012, contested hearing, the Agency submitted on the petition and
reports. It was agreed that the juvenile
court would take judicial notice of the testimony at the detention hearing,
except for Mincey’s testimony because she had not yet been cross-examined and
was presently unavailable to testify.
Juan Taran
testified on mother’s behalf that he was a therapeutic behavioral aide with
Therapeutic Behavior Services (TBS) and had been working with Hailey for about
five months, three of those with mother.
He was in the home three to four times a week for one or two hours a
day. He had never witnessed Hailey
biting and had not heard reports of biting until he was informed about the
bites on Daniel. Because he was working
with Hailey, he had not had interaction with James or Daniel. Taran testified that he and mother had
discussed getting a lock on her dishwasher, but that it was a very small size
and he did not think she would be able to find such a lock for it. Instead, mother had put number magnets on the
dishwasher, which steered the children’s attention away from the dishwasher
knobs.
Tiffany M.,
mother’s friend, testified that they each have children with autism. Tiffany babysat Hailey and James when mother
was in the hospital overnight in February.
While she did have to redirect James at times, the children behaved and
played relatively well together. Hailey
did not try to bite anyone.
Sarah
Jordan, a friend and neighbor of mother’s, testified that she visited with
mother in her apartment two to three days a week. Jordan had seen James “bolt†and get out of
the residence two or three times since the beginning of the year.
Social
worker Gary Boyd testified that he had been the placement worker since the end
of February 2012. James visits with
mother twice a week for two hours. Boyd
described Hailey as a very difficult child; she is demanding and screams and
spits on him. Boyd described Hailey as
unpredictable, and he had not seen any improvement in her behavior in the six
weeks he had worked with her.
Boyd was not aware of James’s
assessment or available services at this time because James moved between
counties and mother had not yet signed a release for VMRC to release records to
the Agency.
Boyd
observed one visit on April 16, 2012, with all three children present. It was difficult for mother to manage all
three children and Hailey was more difficult to manage when the others were
around. Boyd thought it best if mother
had one-on-one time with James and Daniel, which could occur if mother allowed
Hailey go to the Children’s Crisis Center, but she was not willing to do
that. Boyd opined that, for James to be
safely returned at this point, there would need to be another set of hands in
the home, which the Agency could not provide on an around the clock basis.
Social
worker Pasillas testified that James was originally a client of Stanislaus
County VMRC before dependency. James
moved to Merced County when taken from his mother and participated in a
different VMRC. He has been back and
forth between the two counties again due to his placement, causing a disruption
in services at Stanislaus County VMRC.
Cunningham
testified that Mother must attend VMRC classes in order to receive in-home VMRC
services for James. Although mother
claimed she had just begun, she had not yet provided Boyd paperwork. To date, mother had attended only one coparenting
session with Daniel’s father.
At the
continued hearing, Mincey testified that James had received autism-based
services through the school autism-based program since he was three. James’s father had attended the mandatory
parent orientation classes at VMRC while James was in his care. Although Mincey had referred mother to VMRC
for in-home behavioral services for James, she did not attend the classes
before he was removed. She was scheduled
to attend on March 31, 2012.
Mother
testified that she got a referral for VMRC in January or February and was
scheduled to attend in March, but did not go because she did not know the
proper time. She knew James would be
eligible for 40 hours of in-home services.
Mother admitted that her home was chaotic when all three children were
present because the home is small. If
her children were returned to her, she would be eligible for a three bedroom
home through Section 8. Mother thought
many of “these problems†would not have occurred had she had a bigger
home.
Mother
acknowledged that she missed four coparenting sessions with Daniel’s father,
including one the previous day. Mother
claimed Sierra Vista, where the visits were to take place, did not provide her
information about visit times because they were scheduled by Daniel’s father.
Mother
testified that she thought Hailey was “on the calmer side,†although there were
times when “everything bothers her,†usually when James leaves after a visit.
Mother testified that Hailey and James had no aggression towards each
other. She cancelled a recent visit with
Daniel and James because she was expecting a doctor to come to her home for a
prenatal exam. And she refused to have
visits at the Agency when the social worker was not available to stay at the
house because the room at the Agency was too small and it became too
chaotic.
Mother had
not yet gotten a parent mentor through Aspiranet. She had called them and they had failed to
return her call. Mother testified that
her neighbor Brian helps her often, that her extended family visits every other
weekend, that therapists Taran, Fielden, and Cose help, as does Parent Resource
Center, and that a public health nurse would be working with Hailey and the
newborn. Mother had taken an online
autism parent training course in the past week.
Mother was planning to attend the next VMRC orientation in July.
According
to mother, her wish would be to have James back home with in-home services and
have Daniel transition back into the home.
That way she could get James and Hailey settled first with the newborn. According to mother, Hailey was a typical
“easy-going†child, and James was the one who required a lot of
“redirection.†Mother thought Hailey’s
behavior problems had improved since she left foster care. According to mother, Hailey was not
aggressive at home, except for the one time when she bit Daniel.
Mother
refuted several claims made by social workers.
She claimed she had always been open to signing release forms and did
not remember telling Fielden not to share information with the Agency. She did not remember being asked in January
to install appliance locks, but instead installed the locks the day it was
discussed on February 16, 2012. That
same day, she took James to the doctor for a cold and to address the scrape on
his head. She did not tell the social
worker that she was certain James’s injury occurred at the foster parents, but
she assumed it occurred there.
Mother
insisted that she was honest and forthcoming with her counselor, Cose. She did not tell Cose about her pregnancy
because it was irrelevant and none of her business. Mother thought the social workers had no
right to say she was overwhelmed and she thought her pregnancy had no impact
“whatsoever†on her care of her children.
Mother
denied that Hailey ever bit James, only that she bit Daniel twice in one
day. Mother did not think Hailey
spitting at someone while in time out was an aggressive behavior. Mother did not recall Hailey hitting her or a
social worker’s response to such an incident.
Mother
claimed that she lost the information on the time for the VMRC class and she
could not find the paperwork she was supposed to fill out. She claimed that she had now sent in the
paperwork and was “adamant†about attending the next available class in July.
Boyd
re-took the stand as a rebuttal witness.
Mother had signed a release for VMRC records on April 18, 2012, and he
had since received James’s records from them.
James had received assessment, speech therapy, physical therapy and case
management through VMRC until age three.
After that time, he received some services through the Department of
Education and case management services through VMRC. He is currently receiving speech therapy and
is in a special autism class, and will be assessed for in-home behavioral
services after mother takes the class.
Boyd had
arranged respite care for mother the weekend of April 14 and 15 so that she
could attend what he believed to be the VMRC class. Boyd requested documentation, which mother
did not provide. She later said she
attended an autism conference in Sacramento.
He still had not received verification from mother that she attended
such a conference.
Boyd
testified that, in the two months he had supervised visits, he had seen Hailey
hit and spit on mother. Hailey had also
spit on Boyd, and Hailey typically had to have two to three time outs every
two-hour visit.
The
juvenile court sustained the petition, finding that mother was unable to safely
care for all three children, or even two children, at the same time. Specifically, the court found that mother was
not able to care full-time for James at that point. The court found that the number of injuries
to the children, albeit small, demonstrated by clear and convincing evidence
that they were at a substantial risk of harm.
The court noted that, although several of the service providers
testified that mother did okay supervising the children, it was always in a
situation where there were other adults present. The court found that mother’s testimony
lacked credibility.
The
juvenile court ordered that Hailey remain in mother’s care with family
maintenance services; that James be removed from mother and father’s care and
placed in foster care with reunification services; and that Daniel be removed
from mother’s custody but remain placed with his father and reunification
services ordered.
I.
SUFFICIENCY OF THE SECTION 387 SUPPLEMENTAL PETITION
Mother
contends that the evidence did not support the juvenile court’s ruling
sustaining the section 387 supplemental petition and removing James from her
custody and that it should have been dismissed.
We disagree.
A section
387 supplemental petition is used to change the placement of a dependent child
from the physical custody of a parent to a more restrictive level of
court-ordered care. (§ 387; Cal.
Rules of Court, rule 5.560(c).)
name="_ftnref3" title="">[3] In the jurisdictional phase of a section 387
proceeding, the court determines whether the factual allegations of the
supplemental petition are true and whether the previous disposition has been
ineffective in protecting the child.
(§ 387, subd. (b); rule 5.565(e)(1).) If the court finds the allegations are true,
it conducts a dispositional hearing to determine whether removing custody is
appropriate. (Rule 5.565(e)(2);
11.) A section 387 petition need not
allege any new jurisdictional facts, or urge different or additional grounds
for dependency because a basis for juvenile court jurisdiction already
exists. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1200;
1211.) The only fact necessary to modify
a previous placement is that the previous disposition has not been effective in
protecting the child. (§ 387, subd.
(b); In re Joel H., supra, at p.
1200.)
When
a section 387 petition seeks to remove a minor from parental custody, the court
must apply the procedures and protections of section 361. (In re
Paul E. (1995) 39 Cal.App.4th 996, 1001-1003.) Thus, before a minor can be removed from the
parent’s custody, the court must find, by clear and convincing evidence,
“[t]here is or would be a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minor if the minor were
returned home, and there are no reasonable means by which the minor’s physical
health can be protected without removing the minor from the minor’s parent’s …
physical custody.†(§ 361, subd.
(c)(1); In re Javier G. (2006) 137
Cal.App.4th 453, 462.)
A removal
order is proper if it is based on proof of: (1) parental inability to provide
proper care for the minor; and (2) potential detriment to the minor if he or
she remains with the parent. (
52, 60.) The parent need not be
dangerous and the minor need not have been harmed before removal is
appropriate. The focus of the statute is
on averting harm to the child. (
Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
Jurisdictional
findings under section 387 are reviewed for the existence of substantial
evidence. (In re Joel H., supra, 19 Cal.App.4th at p. 1200.) We will therefore affirm the jurisdictional
findings if examination of the record, reviewed as a whole and in the light
most favorable to the order, discloses evidence that is “‘reasonable, credible
and of solid value,’†which would allow a reasonable trier of fact to make the
pertinent findings. (
1073, 1080.) In making this
determination, we recognize that all conflicts are to be resolved in favor of
the prevailing party and that issues of fact and credibility are questions for
the trier of fact. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214;
16.) Upon review for substantial
evidence, we do not reweigh the evidence.
(In re Spencer W. (1996) 48
Cal.App.4th 1647, 1650.)
Here, in
its section 387 petition, the Agency first repeated how mother initially came
to the attention of the Agency: the fact that she had been locking Hailey and
James in their room for hours; that James was aggressive towards Hailey,
causing scratches on her face; the Agency’s concern with mother’s mental health
despite some mental health counseling and her parenting abilities despite
having participated in parenting education; her pregnancy with Daniel; and
mother’s difficulties with dealing with the system based on her “perceived
injustices.†Based on the opinion of
this court, the children, who had been detained in response to the initial
section 300 petition, were returned to mother on January 17, 2012, under a
family maintenance plan.
The section
387 petition then alleged an overarching concern that mother was unable to
properly supervise the children after they were returned to her as evidenced by
(1) Hailey biting and bruising Daniel on February 15, 2012; (2) James’s
continued fascination with buttons on the A/C unit, dishwasher, stove and oven,
and mother not having installed a lock on the dishwasher until the children
were removed from her on February 21, 2012; (3) mother repeatedly “‘giv[ing]
in’†to the children and her inability to say no to them, despite parenting
education; (4) James having an unexplained scrape on his forehead (which mother
claimed happened when he fell from his scooter); (5) mother giving away
her dog only after James injured it; (6) and mother again being pregnant, not
being forthcoming about her pregnancy with the Agency, and the Agency’s concern that the pregnancy would exacerbate
her parenting deficits. The Agency
alleged:
“The circumstances that led the initial removal of the
children in January 2011 continue to exist despite over a year of
services. [Mother] has completed a
parenting program, has TBS services in home every day for two hours, and has a
Children’s System of Care clinician in her home on a weekly basis. Despite these intensive[] services [mother]
continues to be overwhelmed in caring for her three young children, the home
continues to be chaotic, and she is unable to provide adequate supervision for
the children. The children continue to
harm each other and the mother is unable to maintain their safe and stable care
in her home. If these very young
children were to remain in her care they would be [at] risk for substantial
risk or harm as has been demonstrated by the recent injuries to James and
Daniel.â€
We find that substantial evidence
supports the juvenile court’s findings under section 387. There was ample evidence in the record that
mother was not able to adequately care for and protect the three children when
they were together in her home. The
visits observed by social workers Mincey and Pasillas were consistently
described as chaotic and mother was described as overwhelmed. Numerous instances of inadequate supervision
were described. James, who is autistic
and aggressive, was constantly fixated on pushing buttons and opening dangerous
appliances. One such instance resulted
in a steam burn when he opened the dishwasher.
And although mother was asked numerous times to get locks for her
appliances, she was slow to do so.
James, on his own and with Hailey when they were together, repeatedly
hurt the family’s pet dog, causing the social worker to become concerned that
the dog would bite them. At one point,
James had an unexplained “good size†scab on his forehead. According to Mincey, mother was consistently
torn between the three children, trying to monitor normal childhood issues and
being distracted by James’s constant activity.
In addition
to James’s behavioral concerns, Hailey was also a difficult child. Social worker Boyd described Hailey as
demanding and unpredictable, and he had not seen much improvement in the time
he had worked with her. Boyd testified
that it was difficult for mother to manage all three children, and that Hailey
was even more difficult to manage when the others were around. Hailey’s aggressive behavior resulted in her
biting Daniel on two occasions. While
mother had the option of taking Hailey to the Children’s Crisis Center in order
for her to have one-on-one time with James and Daniel, mother was not willing
to do so. Boyd opined that, in order for
James to be safely returned, there would need to be another set of hands in the
home at all times.
There was
some evidence in conflict with that of Mincey, Pasillas and Boyd. Haley’s therapist Fielden agreed that
mother’s home was chaotic due, in part to James’s behavior, but he did not
think mother’s parenting put the children in danger. Taran, a behavioral aide who worked with
Hailey, did not have concerns about mother’s parenting, although he
acknowledged he had been in the home only once or maybe twice when mother and
all three children were present, and during those times there had been another
adult present as well. And mother
herself minimized much of her problems, claiming they were due to the small
size of her home. Mother described
Hailey as “easy-going†and acknowledged that James needed a lot of
“redirection,†but that there was no aggression between Hailey and James, or
between Hailey and Daniel, except for the times Hailey bit Daniel.
The
juvenile court, hearing the testimony and weighing the evidence, resolved the
conflict adversely to mother, whom it found not credible, and found the
petition true. Viewing the evidence in
the light most favorable to the juvenile court’s finding, as we must, we
conclude there was sufficient evidence to support the factual allegations in
the section 387 petition and that mother was unable to provide adequate
supervision for the children, such that the children were at risk of
substantial harm. James’s removal from
mother’s custody was therefore proper.
II.
REASONABLENESS OF REUNIFICATION SERVICES
Mother next
contends that she was not offered reasonable services to prevent removal of the
children from her home. Specifically,
mother argues that former and current social workers testified to a lack of
knowledge and lack of services provided to James with his known behavioral
issues due to autism and that she was not provided any help or training on
dealing with a special needs child like James.
We disagree.
“In a
section 387 disposition hearing, the Agency has the burden of proof to show
reasonable efforts were made to prevent or eliminate the need for removal. [Citations.]â€
(In re Javier G., supra, 137
Cal.App.4th at p. 463.) When a finding
that reunification services were adequate is challenged on appeal, we review it
for substantial evidence. (
Cal.App.4th 1147, 1158.)
Here,
substantial evidence reveals that the department provided mother with
reasonable reunification services.
Further, the services were reasonably geared to overcoming the problems
that caused dependency and were appropriate under the circumstances. (See In
re Jasmon O. (1994) 8 Cal.4th 398, 424-425; In re Christina L. (1992) 3 Cal.App.4th 404, 417 [reasonable, not
ideal, services required].) “In almost
all cases it will be true that more services could have been provided more
frequently and that the services provided were imperfect. The standard is not whether the services were
the best that might be provided in an ideal world, but whether the services
were reasonable under the circumstances.â€
(In re Misako R. (1991) 2
Cal.App.4th 538, 547.)
Mother’s
complaint of inadequate services for James is without merit. In-home behavioral services were not
available while James was not in the home.
After James was returned in January of 2012, mother was scheduled to go
to classes in order to qualify for the in-home services. She was provided with a referral in January
of 2012 for a class to VMRC by case manager Shannon Macen. By her own testimony on May 8, 2012, mother
acknowledged that she had been provided the paperwork to sign up, but did not
do so. According to mother, she “lostâ€
the necessary information and was not able to contact anyone.
Mother also
complains that not every social worker who testified was aware of the details
of each service, especially pertaining to James’s autism. While this may be true, it was not an
indication that necessary services were not offered, but rather that, since the
case involved three children, two with special needs, mother’s case needed
several social workers to keep track. A
social worker cannot be expected to know and recite all of the details of each
service provided for each child in a lengthy and complicated case such as
mother’s. In addition, mother
acknowledged that she did not sign a release of information for the Agency to
receive necessary records of James’s VMRC diagnosis and case plan until after
court on April 18, 2012.
Finally,
mother complains that, although the social worker knew that Hailey, while in
foster care, “bit every day all day long,†the social worker failed to tell the
therapist, Taran, so that he could concentrate on that target behavior. Instead, as argued by mother, mother was
unaware of this behavior until the one incident when Hailey bit Daniel twice,
which then resulted in the children being detained. But mother was clearly aware of Hailey’s
biting behavior and its inappropriateness before the detention – during an
extended supervised visit on January 12, 2102, Hailey bit James over a shared
toy and was put in a time out by mother.
Mother failed to mention this incident to Fielden or Taran, who were
both treating Hailey for aggressive behavior.
Taran testified that he did not have a release from mother to speak to
the social workers. Neither did Fielden,
who testified that mother was “adamant†that he not provide information about
Hailey to the social workers.
The problem
is not that inadequate services were offered, but that mother failed to utilize
them. We reject mother’s claim that
reasonable services were not provided.
III.
MOTHER’S DUE PROCESS AND EQUAL PROTECTION RIGHTS
Mother asserts that, by
allegedly giving a day care referral and a letter for Section 8 housing
purposes to Daniel’s father, John P., and not to her, and by failing to
investigate her complaint against John P. that Daniel came home with bruises
and a severe diaper rash, the juvenile court violated her due process and equal
protection rights. We disagree.
First, we
note that mother did not raise these due process/equal protection arguments
below, and thus forfeited them. (
We also
find mother’s due process and equal protection claims without merit. The statutory scheme recognizes that services
may be provided or continued for one parent but not the other, depending on the
circumstances presented and the minor’s best interests. (In re
Katelynn Y. (2012) 209 Cal.App.4th 871, 877-878; In re Jesse W. (2007) 157 Cal.App.4th 49, 59.) The very nature of reunification services and
the large body of case law thereon address the fact that services should not be
cookie cutter and identical from person to person and case to case, but should
address each parent’s individual needs and situation. (In re
Dino E. (1992) 6 Cal.App.4th 1768, 1777.)
Here, the
facts related to mother and John P. were by no means identical, negating her
claim that John P. was incorrectly treated differently and provided more
services. Mother claims first that John
P. was given a referral for day care and she was not. But John P. was employed; mother was
not. In addition, although mother claims
she was not referred child care, she actually was, to Children’s Crisis Center,
which was the same place to which John P. was referred. Mother, however, chose not to use that
facility, finding a variety of reasons why she did not want her children
there.
Mother also
claims that the Agency gave John P. a letter stating that Daniel was in his
custody in order to qualify for Section 8 housing, but failed to do the same
for her. Mother presents no evidence,
other than her own testimony, that she ever requested such a letter while the
children were in her care. In addition,
mother was already in Section 8 housing based, not on her children, but on her
mental health diagnosis.
Mother also
complains that the Agency failed to remove Daniel from John P.’s care after she
complained about a bruise on his arm and a case of severe diaper rash. But mother’s claim that the bruise was
intentional is wholly unsupported by the evidence. Mother showed the social worker pictures of
what appeared to be bruises, but the social worker did not indicate that the
bruises were of concern. And her claim
that Daniel should have been removed from John P. due to a severe diaper rash
is also without merit. Although mother
first stated that the diaper rash was so serious that she was going to take
Daniel to the emergency room, she did not do so because she claimed not to have
his Medi-Cal card. But she later
admitted knowing that such a card was not needed for an emergency room visit,
suggesting that the rash was not as severe as mother claimed.
Mother has
failed to establish any disparate treatment, and to the extent mother and John
P. did not have the same experiences with the Agency and the court, it was
based on the evidence, and the needs and credibility of each party. No violations of mother’s constitutional
rights occurred.
DISPOSITION
The orders
are affirmed.
| Description | Tiffany P. is the mother of four children: James, age 5; Hailey, age 4; Daniel, age 2; and Aubrey, age 1. This is the second appeal involving the three older children; the youngest child was born after the latest disposition order and is not a subject of this appeal. In mother’s first appeal, we affirmed the order of jurisdiction, but reversed the disposition order, finding that there was insufficient evidence to demonstrate by clear and convincing evidence that a substantial risk of harm existed at the time of hearing that could not be mitigated by family maintenance service and close supervision by child welfare staff. (In re James P., et al. (Nov. 14, 2011, F061732 [nonpub. opn.].)[1] On remittitur, James and Hailey were returned to mother’s full-time custody. The youngest child, Daniel, was placed with his father and allowed extended visits in mother’s home. Approximately one month later, the children were again removed and the Stanislaus County Community Services Agency (the Agency) filed a Welfare and Institutions Code section 387[2] supplemental petition. The juvenile court found the allegations of the petition to be true and removed James from mother’s custody; Hailey was allowed to remain in mother’s custody with family maintenance services; and Daniel was to remain in his father’s custody, but continued as a dependent of the court. Mother contends on appeal that there was no substantial evidence to support the juvenile court’s findings and orders of May 11, 2012, by which the court sustained the section 387 supplemental petition and ordered removal of James from mother’s physical custody. Mother also claims the Agency failed to provide reasonable reunification services and that the Agency violated mother’s due process and equal protection rights. We disagree and affirm. |
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