In re M.A.

















Filed 2/15/13 In re M.A. CA1/4











>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
FOUR




>

In re M.A., a Person Coming Under the Juvenile Court Law.
SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. M.A., Defendant and Appellant.	A134637 (Sonoma County Super. Ct. No. 3708-DEP)

We
are familiar with the facts of this case through our review of a petition for
extraordinary writ pursuant to California Rules of Court, rule 8.452 in a
related case, M.A. v. Superior Court
(Jan. 18, 2012, A133633). There, we
denied a petition brought by M.A. (Mother) challenging the juvenile court’s
order setting a permanent plan hearing for her two older children, G.J.A. and
O.A. (collectively, the siblings). In
this appeal, Mother challenges the juvenile court’s assumption of jurisdiction
over another child, M.A. (Minor), and its dispositional order denying href="http://www.fearnotlaw.com/">reunification services. We affirm.

I.
BACKGROUND

A.
The
Sibling Cases

Many
of the background facts are contained in our opinion in M.A. v. Superior Court, and we will not repeat them here. In summary, the href="http://www.mcmillanlaw.com/">dependency proceedings as to G.J.A. and
O.A. began in November 2009, shortly after O.A. was born. The petitions as to both children included
allegations related to Mother’s substance abuse. The petition as to the older child, G.J.A.,
alleged in addition that Mother had a history of domestic violence and had
exposed G.J.A. to domestic violence by brandishing a kitchen knife at Mother’s
16-year-old sister. The juvenile court
sustained the allegations of the petitions and ordered reunification services
for Mother. At the 18-month review
hearing in May 2011, the juvenile court ordered that Minors be placed with
Mother and that family maintenance services be provided.

Supplemental
petitions were filed on behalf of G.J.A. and O.A. in July 2011, alleging that
Mother and her live-in boyfriend had been involved in an incident of domestic
violence the previous month. Mother had
told her therapist that she and her boyfriend had argued and he grabbed her by
the throat, threw her on the bed, and held her down. G.J.A., who was five years old, came in, saw
what was happening, and swore at the boyfriend.
The boyfriend threatened to hit G.J.A. before calling Mother a bitch,
telling her she was worthless, and leaving.
The therapist believed the boyfriend was jealous of G.J.A. and competed
with him for Mother’s attention. Mother
told a social worker that she and her boyfriend were both jealous, that they
had argued, that she tried to restrain him physically as he was leaving, and
that he resisted her and pushed her down onto the bed. The social worker testified that Mother told
her G.J.A. had walked into the room as the boyfriend was pinning her down on
the bed, and attacked the boyfriend because he was afraid the boyfriend was
hurting Mother. At the time, Mother was
pregnant with M.A., the minor at issue in the current appeal.

The
social worker told Mother and her boyfriend that the children would be removed
if they continued to live together.
However, during a July 2011 unannounced visit to the home, G.J.A. told
the social worker the boyfriend slept in the home every night and that he lived
there. G.J.A. also told the social
worker Mother had hit his hands a month previously because he had tried to steal
something from a store, and that she told him she would burn his hands on the
stove if he ever stole anything.

On
October 24, 2011, the juvenile court sustained allegations, based on the
domestic violence incident, that the relationship between Mother and her
boyfriend placed G.J.A. and O.A. at substantial risk of mistreatment, and that
Mother had a history of domestic violence that had been previously found true
by the court. The court found Mother’s
progress toward alleviating or mitigating the causes necessitating placement
had been minimal, denied reunification services to her, and ordered a permanent
plan hearing pursuant to Welfare and Institutions Codehref="#_ftn1" name="_ftnref1" title="">[1]
section 366.26 (.26 hearing).
Mother petitioned for extraordinary relief, and in M.A. v. Superior Court, we denied her petition on the merits.

B. >The Current Appeal

Minor
was born in August 2011 and promptly detained.
The Department filed a petition pursuant to section 300. As later amended, the petition alleged that
the relationship between Mother and her boyfriend, Minor’s father (Father)href="#_ftn2" name="_ftnref2" title="">[2]
placed Minor at risk of mistreatment in that Mother had a history of domestic
violence that had been previously sustained by the court; that there had been a
domestic violence incident between Mother and Father in June 2011, in which
five-year-old G.J.A. was present and tried to intervene to protect Mother; and
that Mother minimized the risks of exposure to domestic violence on the
siblings. (§ 300, subd. (b).) The amended petition also alleged abuse of a sibling,
based on the dependency of G.J.A. and O.A.
(§ 300, subd. (j).)

In
the disposition report, the Sonoma County Human Services Department (the
Department) recommended that Mother not be offered reunification services, but
that services be provided for Father.
The Department took the position that, in light of Mother’s failure to
reunify with her other children after 18 months of services, she would not
benefit from further services. Mother
had attended all scheduled visits and had been attentive and affectionate
toward Minor. The Department also
reported that although Mother and Father had told the social worker they had
not been in contact with each other since September 2011, they had in fact had
contact; when the social worker called Father’s phone, Father’s father answered
and said Father was with Mother.

A
contested jurisdiction and disposition hearing took place in December
2011. Father was not present; the Deputy
County Counsel told the juvenile court Mother had told a Department employee
that Father had returned to Mexico.

The
social worker assigned to the case testified that when the case began, Mother
was already engaged in services through the dependencies for G.J.A. and
O.A. Those services, which consisted of
individual parenting classes, individual therapy, and random drug testing,
continued as part of Minor’s dependency.
Mother had been attending therapy regularly. She had been visiting with Minor, and the
visits had been going well. Minor had
been assessed for possible developmental problems.

Mother
testified that she was working on anger management with her therapist. When asked about the June 2011 incident of
domestic violence, she said Father had provoked her, and that she had to defend
herself. She acknowledged, however, that
she had grabbed Father’s shirt as he was trying to leave their apartment. She had looked for domestic violence classes
in Spanish, and was apparently waiting for a referral; however, she did not
believe domestic violence, jealousy, or inability to manage her anger had been
problems in her relationship with Father.

Mother
testified she had not seen Father since July, except for court hearings and
visits with Minor. According to Mother,
Father “showed up” with Minor some weeks previously. She also testified that she and Father had
not been together since he left the home in July 2011, and that he left two or
three weeks after the domestic violence incident, after a social worker told
the couple that one of them would have to leave the home. Elsewhere in her testimony, however, she
stated that Father left the home the morning after the June 2011 domestic
violence incident.

Mother’s
therapist testified that Mother was working on anger management in her
therapy. During therapy provided as a
result of the dependency proceedings for G.J.A. and O.A., Mother had discussed
her history of sexual abuse, which had begun in childhood. The therapist had asked the Department to
provide more sessions in order to address Mother’s problems, but the Department
was slow in responding, although it ultimately authorized an additional 12
sessions. Mother had also discussed
aspects of her relationship with Father, including the fact that he would
become angry if she wanted to leave the apartment or go outside and play with
her children. Mother was aware of
Father’s “jealous behaviors” when she moved in with him, apparently in late May
2011. She told her therapist that she
herself had initiated the domestic violence incident in June 2011. The therapist thought Mother was about a
third of the way into her therapy.

Sandra
Echavarria testified that she provided parent education to Mother after a
referral by the Department in March 2010, during the dependency proceedings for
G.J.A. and O.A. According to the
referral, G.J.A. had a history of difficult behavior and had been competing for
Mother’s attention during visits. The
goals of the therapy were to help Mother with “practicing quality time, showing
affection, giving instructions, and providing age-appropriate activities.” During visits, Mother was able to implement
the techniques Echavarria taught her, was affectionate toward both boys, and
shared her time with them. Echavarria
received another referral in November 2010, as Mother was going to start
overnight visits with the two boys, with the goals of “more [e]ffective
parenting, limit setting, better verbal communications, and feeling words
increased in vocabulary.” With
Echavarria, Mother learned about child development, ways to manage behavior,
and problem-solving strategies.
Echavarria believed Mother had made reasonable efforts to address the
problems for which she had been referred, given her circumstances and
background, and had made slow progress.
She described Mother’s improvement in parenting G.J.A. as
“minimal.” She had no concerns about how
Mother parented O.A.

Mother
had not told Echavarria that she had become involved with Father or that they
were living together; as a result, Echavarria had not discussed with Mother the
impact that relationship might have on her relationship with G.J.A. Echavarria agreed that Mother’s statement to
a social worker that she had threatened to burn G.J.A.’s hands on a stove if he
stole again showed a lack of insight and appropriate parenting. Echavarria also acknowledged that in
September 2011, she told a social worker she had taught Mother everything she
could have taught her during the time they were working together and that
Mother was having a very difficult time implementing the strategies and tools
Echavarria had taught her. In October,
Echavarria told the social worker that she thought Mother was not committed to
trying strategies more than once or twice.
In October 2011—after Minor was born—Echavarria noticed that Mother
seemed depressed and offered her a referral to a perinatal specialist. Mother initially wanted the service, but
refused to see the counselor when the counselor made a house call.

Mother
presented evidence that she had made good progress in addressing her problems
with substance abuse, and the Deputy County Counsel acknowledged that she had
made progress.

The
juvenile court sustained the allegations of the amended petition on December
19, 2011. It found Mother had not made
reasonable efforts to address the problems that led to the siblings’
dependency, and denied reunification services to Mother under section 361.5,
subdivisions (b) and (c). In doing so,
it found Mother had failed to reunify with Minor’s siblings after they were
removed from her care, that Mother had not subsequently made a reasonable
effort to treat the problems that led to the removal of the siblings, and that
reunification with Mother would not be in Minor’s best interest.

II.
DISCUSSION

A.
Mootness

We
first consider the Department’s contention that Mother’s appeal has been made
moot by later events, specifically the trial court’s May 17, 2012 action in
setting a .26 hearing in this case, which was scheduled for September 13,
2012. Mother did not file a petition for
extraordinary writ pursuant to rule 8.452 challenging this order. The Department has already filed two motions
to dismiss this appeal as a result of this order and a subsequent .26 hearing,
both of which we denied. We likewise
decline the Department’s request, made in its respondent’s brief, that we
dismiss the appeal as moot.href="#_ftn3"
name="_ftnref3" title="">[3]

As
Mother notes, “[t]he question of mootness must be decided on a case-by-case
basis. [Citation.] An issue is not moot if the purported error
infects the outcome of subsequent proceedings.”
(In re Dylan T. (1998) 65
Cal.App.4th 765, 769; see also In re C.C.
(2009) 172 Cal.App.4th 1481, 1488.) The
juvenile court’s actions in assuming jurisdiction and denying reunification
services unquestionably affected the outcome of subsequent proceedings. Accordingly, we will consider the merits of
her appeal.

B. > Jurisdictional Finding on Domestic Violence

Mother
contends the evidence does not support the juvenile court’s finding that it had
jurisdiction over Minor based on Mother’s history of domestic violence,
including the June 2011 incident between Mother and Father. According to Mother, her past actions were
insufficient to show that, at the time of the dependency proceeding at issue
here, Minor was at risk of being harmed by domestic violence in the future. She relies upon In re Rocco M. (1991) 1 Cal.App.4th 814, 824, which states, “While
evidence of past conduct may be probative of current conditions, the question
under section 300 is whether circumstances at
the time of the hearing subject the minor to the defined risk of harm. [Citations.]
Thus the past infliction of physical harm by a caretaker, standing
alone, does not establish a substantial risk of physical harm; ‘[t]here must be
some reason to believe the acts may continue in the future.’ ” (But see In
re David H. (2008) 165 Cal.App.4th 1626, 1642–1644 [questioning >In re Rocco M. and holding that in
absence of unusual circumstances, allegation that child had suffered serious
physical harm inflicted nonaccidentally by parent or guardian was sufficient to
establish jurisdiction under § 300, subd. (a).)

In
our decision denying the writ petition filed in the sibling action—challenging
an order made less than two months before the order at issue here—we rejected
Mother’s challenge to the sustained allegation of domestic violence, holding
that the juvenile court “could reasonably conclude Mother was not yet able to
protect Minors from her pattern of engaging in domestic violence and that there
would be a substantial danger to [the siblings’] health, safety, or well-being
if they were returned to Mother.” (>M.A. v. Superior Court (Jan. 8,
2012, A133633) at p. 8.) The
evidence here too—including not only the evidence of the June 2011 incident,
but also Mother’s denial at the contested hearing in this matter that she had a
problem with domestic violence or anger—is sufficient to support the juvenile
court’s finding.

In
any case, Mother does not dispute that the juvenile court properly assumed
jurisdiction based on the allegations under section 300, subdivision (j), that
petitions as to G.J.A. and O.A. had been filed and sustained, that Mother had
been provided with 18 months of reunification services for the siblings, that
the siblings were again detained in July 2011 and a supplemental petition
filed, and at the October 2011 jurisdictional/dispositional hearing on the
supplemental petition in the sibling cases, the court ordered no further
services for Mother and set a .26 hearing.
Mother acknowledges that this basis for jurisdiction is “unassailable.” As noted in In re Alexis E. (2009) 171 Cal.App.4th 438, 451, “When a dependency
petition alleges multiple grounds for its assertion that a minor comes within
the dependency court’s jurisdiction, a reviewing court can affirm the juvenile
court’s finding of jurisdiction over a minor if any one of the statutory bases
for jurisdiction that are enumerated in the petition is supported by
substantial evidence. In such a case,
the reviewing court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.”

Accordingly,
we reject Mother’s challenge to the juvenile court’s assumption of jurisdiction
over Minor.

C. >Bypass of Reunification Services

The
juvenile court bypassed reunification services pursuant to section 361.5,
subdivisions (b) and (c), finding that the court had ordered termination of
reunification services for Mother relating to the siblings, that Mother had not
subsequently made a reasonable effort to treat the problems that led to the
siblings’ removal, and that reunification would not be in Minor’s best
interest.href="#_ftn4" name="_ftnref4" title="">[4]

Mother
makes two challenges to the juvenile court’s ruling bypassing reunification
services: that there was no substantial
evidence that she had not made a reasonable effort to treat the problems that
led to G.J.A. and O.A.’s removal, and that the evidence showed reunification
would be in Minor’s best interest.
“Where the court makes factual findings that a bypass section applies,
we review those factual findings under the substantial evidence standard. [Citation.]
We do not reweigh the evidence or make credibility determinations. We review the entire record in the light most
favorable to the trial court’s findings to determine if there is substantial
evidence in the record to support those findings. [Citation.]
Interpretations of statutes, however, are independently reviewed on
appeal as questions of law.” (>A.A. v. Superior Court (2012) 209
Cal.App.4th 237, 242.)

Mother’s
first contention is that the problem that led to the removal of G.J.A. and O.A.
was her drug use, and that she made reasonable efforts—and indeed, good
progress—in treating that problem.
Mother’s drug use, however, was not the only problem that led to G.J.A.
and O.A.’s removal. As we have
explained, the November 2009 petitions as to both G.J.A. and O.A. included
allegations related to Mother’s substance abuse; the petition as to the older
child, G.J.A., alleged in addition that Mother had a history of domestic
violence and had exposed G.J.A. to domestic violence by brandishing a kitchen knife
at Mother’s 16-year-old sister. The July
2011 supplemental petitions—which led to G.J.A. and O.A. being once again
removed from Mother’s care—included allegations that there was a domestic
violence incident between Mother and Father in June 2011, and the supplemental
petitions were later amended to add the allegation that Mother had a history of
domestic violence that had been
previously sustained by the court. The
court found the allegations of the supplemental petition true on October 24,
2011, and in M.A. v. Superior Court,
we concluded that based on the evidence before the court in those cases, “[t]he
juvenile court could reasonably conclude Mother was not yet able to protect
Minors from her pattern of engaging in domestic violence and that there would
be a substantial danger to their health, safety, or well-being if they were
returned to Mother.” (>M.A. v. Superior Court (Jan. 8,
2012, A133633) at p. 8.)

Based
on the evidence before it in this
proceeding, the juvenile court could likewise reasonably conclude Mother had
not made reasonable efforts to address her problems with domestic
violence. As explained in >R.T. v. Superior Court (2012) 202
Cal.App.4th 908, 914–915, “The reasonable effort requirement focuses on the
extent of a parent’s efforts, not whether he or she has attained ‘a certain
level of progress.’ [Citation.] ‘To be reasonable, the parent’s efforts must
be more than “lackadaisical or half-hearted.” ’ [Citations.]
However, ‘[t]he “reasonable effort to treat” standard “is not synonymous
with ‘cure.’ ” ’
[Citation.] [¶]
. . . [T]he ‘reasonable
effort’ language in the bypass provisions [does not] mean that >any effort by a parent, even if clearly
genuine, to address the problems leading to removal will constitute a
reasonable effort and as such render those provisions inapplicable. It is certainly appropriate for the juvenile
court to consider the duration, >extent and context of the parent’s
efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort
for reasonableness. And while the degree
of progress is not the focus of the
inquiry, a parent’s progress, or lack of progress, both in the short and long
term, may be considered to the extent it bears on the reasonableness of the effort made.
[¶] Simply stated, although success alone is not the sole measure
of reasonableness, the measure of
success achieved is properly considered a factor in the juvenile court’s
determination of whether an effort qualifies as reasonable.”

The
evidence here showed that Mother was receiving individual therapy and was
working on anger management. However, on
October 24, 2011, in the siblings’ cases, less than two months before the order
challenged on in this appeal, the juvenile court found Mother’s progress toward
alleviating or mitigating the causes necessitating placement had been
“minimal.” Even after engaging in the
June 2011 incident of domestic violence, Mother still testified in this action
that she did not believe domestic violence, jealousy, or inability to manage
her anger had been problems in her relationship with Father. (See In
re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“One cannot correct a
problem one fails to acknowledge.”].) Indeed,
in denying reunification services, the juvenile court referred to “the lack of
insight that the mother has, the choices the mother’s made despite ongoing
therapy, her unwillingness to provide information to her therapist that would
have allowed for more meaningful intervention [and] counseling.” On this record, the juvenile court could
reasonably conclude Mother had not made reasonable efforts to treat the
problems that led to the removal of G.J.A. and O.A.

Mother
also argues the juvenile court should have concluded reunification services
were in Minor’s best interest. “Section
361.5, subdivision (c) enables a parent to obtain reunification services
notwithstanding [the applicability of a section 361.5, subdivision (b), bypass
provision] where the parent demonstrates reunification is in the child’s best
interest by offering evidence of, among other things, his or her current
ability to parent. To determine whether
reunification is in the child’s best interest, the court considers the parent’s
current efforts, fitness, and history; the seriousness of the problem that led
to the dependency; the strength of the parent-child and caretaker-child bonds;
and the child’s need for stability and continuity. [Citations.]
A best interest finding requires a likelihood reunification services
will succeed; in other words, ‘some “reasonable basis to conclude” the
reunification is possible . . . .’ ” (In re
Allison J. (2010) 190 Cal.App.4th 1106, 1116.)

The
juvenile court could reasonably conclude Mother did not meet her burden to show
reunification was in Minor’s best interest.
Although Mother had been attentive and affectionate toward Minor during
visits, there was no indication the two shared a strong bond, since Minor was
removed from Mother’s care shortly after her birth. And there was evidence not only that Mother
did not acknowledge the problems that led to the dependency, but also that she
had not persisted in trying the parenting strategies she had been taught in connection
with her other children, and that she had refused the services of a perinatal
specialist when she was depressed after Minor was born. We see no error in the juvenile court’s
ruling.

>III. > DISPOSITION

The
orders appealed from are affirmed.













_________________________

Rivera,
J.





We concur:





_________________________

Ruvolo, P.J.





_________________________

Reardon, J.