In re M.D.
Filed 11/6/13
In re M.D. CA1/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
In re M.D.
et al., Persons Coming Under the Juvenile Court Law.
SAN
FRANCISCO HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
S.N.,
Defendant and Appellant.
A137672
(San Francisco City and County
Super. Ct. No. JD12-3185)
At a six-month
review hearing, the juvenile court found that S.N.’s children were at
substantial risk of detriment if returned to her custody. (Welf. & Inst. Code, § 366.21, subd. (e).)
court’s finding is not supported by substantial
evidence.
title="">[2] We affirm.
PROCEDURAL B
Section 300 Petition
The initial
section 300 petition, filed by the Los
Angeles Department of Children and Family Services (DCFS), alleged that M.D.,
Z.D., and Luke D. (the children) were at risk of serious physical harm
(§ 300, subd. (a)) because their parents, S.N. (mother) and Marvin D.
(father), had a history of engaging in
of them.
25, 2012, father pushed mother onto a bed, grabbed her hair, hit her in the
face with his hand, and scratched her cheek and chest. The petition also alleged that mother used
excessive physical discipline against M.D. and Luke; hitting their heads and
bodies with her hand and a plastic bat. Mother
also reportedly pinched and scratched M.D.’s neck, leaving scratch marks.
Detention Report and Hearing
The
detention report indicated that five-year-old Luke was present, on January 25,
2012, when father picked up a potted plant, threw it at mother, pushed her on
the bed, grabbed her by the neck, and proceeded to punch her in the face with a
closed fist. At the time, mother
reported that there had been 10 other incidents of domestic violence. In an earlier 2008 incident, father sustained
scratches to his face and back of his head after he and mother got into a
physical altercation. Mother was
arrested due to the injuries sustained by father, and was also accused of
having pulled M.D.’s hair.
When
interviewed by a social worker, the children confirmed that mother spanked with
both an open hand and closed fist, and sometimes with a plastic bat or
belt. M.D. had been previously “chokedâ€
by her mother, sustaining bruises and scratches on her neck. The children also confirmed that they saw
their parents yelling and hitting each other.
Mother
admitted that she spanked the children, but claimed it was not abuse. She also admitted scratching M.D., but
maintained it was accidental. According
to mother, M.D. was prone to misinterpreting things due to having had encephalitis
as a small child. Both parents admitted
to a history of domestic violence but denied that it was an ongoing issue. The social worker concluded: “The parents’ extensive history of domestic
violence in the home poses an imminent danger of serious physical and emotional
harm to the children. [¶] Several safety factors are present, and
placement is the only protective intervention possible for [the]
children.â€
On April 24,
2012, the juvenile court ordered the children detained in the maternal great
uncle’s care. At the time of detention,
DCFS recommended that mother undergo domestic violence awareness counseling,
individual/family counseling, anger management counseling to address the
physical abuse of the children, parenting classes, and a
psychological/psychiatric evaluation with follow-up treatment as recommended.
Jurisdiction/Disposition Report and Determination
By the time
the jurisdiction report was filed in May 2012, the children claimed that they
had been hit with a belt, but had never been hit with a plastic bat. Instead, both M.D. and Z.D. claimed that they
had been playing with bats and hit themselves.
M.D. also confirmed that her parents yell, curse, and fight in front of
her, and recalled an instance where father shoved mother into a wall. M.D. recalled seeing mother clean up blood
from her arm. Luke reported that “ ‘[his]
mom closed the trunk on [his] sister’s fingers on purpose’ †and then “ ‘walked
away.’ †Mother’s former roommate also
informed a social worker that she personally witnessed mother hitting the
children, specifically recalling that she saw mother smack Luke in the face on
a few occasions.
Mother admitted
spanking and using a plastic bat to discipline the children. But, she said “ ‘[i]t’s not abuse in my
mind’ †because it was “ ‘one tap or two taps’ †and “ ‘it
wasn’t on the face.’ †She denied
hitting the children anywhere in the rib cage area. Father told the social worker that he
“ ‘step[ped] in’ †as needed to “ ‘make sure [mother] does not get
carried away’ †when disciplining the children.
Although
mother once claimed that father hit her during the January 2012 altercation,
she now claimed that she hit herself during the scuffle. Mother explained that the parents remained
living together, between January 2012 and April 2012, because it was “ ‘ridiculous’ â€
to obtain a permanent restraining order because she believed father needed to
interact with the children.
At the May
31, 2012 hearing, Mother pleaded no contest to the jurisdictional allegations and
dependency was declared pursuant to section 300, subdivision (a). Mother was ordered to participate in
counselor addressing “parenting†and “domestic violence.†Mother was also ordered to engage in a domestic
violence support group for victims, to take a parenting class, and to verify a
sober and stable lifestyle. The court
further ordered that mother “sign any form necessary to release information to
DCFS with regard to all court ordered counseling,†and that there would be “no
corporal punishment†inflicted on the children.
After the detention order, the children had moved to San Francisco to
live with their maternal grandmother, and mother had moved to San Francisco as
well. Accordingly, the juvenile court
ordered the children removed from parental custody, placed them in the home of
the maternal grandmother and transferred the case to San Francisco.
Upon
assuming jurisdiction, the San Francisco Superior Court ordered that the care
and custody of the children rest with the San Francisco Human Services Agency
(Agency). The children continued to
reside with their maternal grandmother.
Request to Change Court Order
On August
2, 2012, mother filed a request to change a court order seeking permission to
move into the maternal grandmother’s home and reside with the children, or have
unmonitored visits, or have the children placed in her home. Mother reported that she was no longer in a
relationship with father, had completed a six-hour parenting course, was
attending individual therapy, and
took care of the children’s daily needs in a supervised setting. The court set the petition for a hearing.
On August
3, 2012, an interim review report acknowledged that mother had completed a
six-hour parenting class. However, the
social worker did not believe that a six-hour class was sufficient to address
the 11-year domestic violence relationship between mother and father and the
effects of that violence on the children. Mother’s request for a parent education
program that could be completed in a day because she “ ‘want[ed] to get it
over with’ †indicated to the social worker that mother was only
superficially fulfilling her requirements, and not taking the opportunity to gain
insight and understanding into how her violent relationship with father was
emotionally harmful to her children.
Mother continued to deny that the children actually witnessed any
domestic violence. The report also noted
that mother refused to participate in a domestic violence support group. Mother also refused to acknowledge that she
was violent because she believed only “people who did not go to college are
violent.â€
Mother was
participating in individual therapy, but between May and July, had missed three
sessions. Her therapist opined that mother
was still in denial and was minimizing the effects of domestic violence on the
family. Mother also did not appear to
understand the trauma that the children endured through the years of domestic
violence, or that the children could still be negatively affected by the
tension, conflict, and arguments between the parents even if they were not in
the immediate vicinity of domestic violence.
The Agency recommended that mother’s petition be denied and the matter
continued to the six-month review hearing.
On
September 4, 2012, mother requested a restraining order against father, based
on allegations that he was stalking her and leaving messages threatening to
kill and mutilate her. She also based
the request on the couple’s history of domestic violence, describing incidents
from 2011 and early 2012. The court
granted a temporary restraining order on September 5, but mother unilaterally
withdrew the restraining order application at the September 17, 2012 hearing on
her petition for a change of court order.
At that hearing, the parties also stipulated for mother to have
unsupervised day visits and two overnight visits per week at the grandmother’s
home.
Six-Month Review
On November
9, 2012, the Agency filed a status review report, which acknowledged that mother
completed a parenting class and a psychological evaluation, with test results
still pending. Mother told the social
worker that “[she] realized that it was not appropriate for her to even tap the
children with a plastic bat in the past.â€
Instead, she now used praise and a point system to reward good
behavior. Mother also told the social
worker that she now recognized that she does not need to be in a relationship
with someone who does not treat her well.
However, Dr. Amy Watt, the psychologist who performed mother’s
evaluation, informed the social worker that mother was in denial and minimized
the domestic violence. Mother also
refused to deal with any anger issues and presented with much grandiosity.
The report
further noted that mother began individual therapy with Desdemonia Whittle at
the end of August 2012. Whittle
stated that mother was in denial regarding her anger, refused to admit that she
has negative emotions, and instead believed that she was a happy person. Mother also refused to believe that therapy
was necessary. Whittle opined that
mother was only attending therapy to fulfill her requirements to regain custody
of the children. The therapist expressed
concern regarding mother’s denial as well as her lack of insight into her financial
condition. In particular, the therapist
was apprehensive of mother’s plan to move back to Los Angeles and hire an au
pair for the children.
Mother had
been visiting the children consistently and had completed a series of parenting
classes, in which she was an active participant. Mother also completed a domestic violence
counseling program, but according to the case manager, mother did not identify
herself as a victim of domestic violence, instead asserting that she was in
control of the relationship. Thus, she
did not actively participate in the support group. Further, mother stated that she ended the
relationship with father not because she cared for the safety of her children,
but because he did not have sufficient money for her. Mother also believed that, when she moved
back to Los Angeles, father would likely follow the family.
Based on
the above information, the social worker opined that mother had been
participating “consistently†in her case plan, but failed to fully comprehend
the reasons for the court’s involvement, the effects of domestic violence on
her and her children, or the purpose of the reunification services. Mother’s attitude indicated that she had an
unrealistic perception of reality. The
social worker acknowledged mother’s love for the children, but opined that
reunification was premature. Accordingly,
she recommended an additional six months of services to allow mother to
continue her participation in court-ordered services.
On January
9, 2013, the Agency filed an addendum report. Since the last report, Z.D. reported that he had
seen mother push M.D. Mother denied the
incident. Mother also unilaterally
discontinued therapy sessions with Whittle after only 12 sessions. Whittle said she confronted mother about her
refusal to meaningfully engage in therapy, and mother responded by stating she
“does not have any problems, but solutions.â€
Mother also inquired of the social worker about when she could stop
attending therapy.
As a result
of her psychological
evaluation, mother was diagnosed with depressive disorder not otherwise
specified, histrionic personality disorder, narcissistic personality disorder,
poor insight, and poor reality testing.
self focus and her unrealistic perception of what is happening around her makes
it difficult to attend to the needs of her children.†Throughout the evaluation, mother also
repeatedly claimed to be “peaceful†and denied ever being angry or hitting
anyone.
Dr. Watt
observed that mother minimized the seriousness of the domestic violence between
her and father, and spoke little of her role in the conflict. According to the psychologist, mother also
presented with a high level of grandiosity and narcissism, conveying an image
of being well-off and successful, even though the records do not support such
an impression. Dr. Watt opined that test
results indicate a “significantly high level of defensiveness and denial of
problems†and that mother “tends to minimize any negative impact that her
actions may have on other people and on herself.†Dr. Watt concluded that “[a]s [mother] does
not believe there are any problems in the family, she is unlikely to seek help
or accept help offered to her.†In
addition, mother’s decision to “maintain an ongoing conflict laden relationship
with the children’s father†is also “detrimental to the children’s emotional
development.â€
The Agency
continued to recommend additional services before reunification. The social worker wrote: “Returning the children to either [parent’s]
care and home is contrary to their well being and best interests because (1) [neither]
parent has . . . completed their reunification services case plan;
(2) their current status is still unstable regarding . . .
housing, employment; (3) there [are] still concerns about the mother’s
ability to put the children’s needs before hers; (4) there are still
concerns about the parents not involving the children in their domestic
violence relationship; and (5) there are still concerns about whether the
parents will use [the] children to manipulate each other.â€
At the
contested six-month review hearing, held on January 15, 2013, the social worker
testified that mother had completed some, but not all, of the reunification
requirements. The social worker testified
that mother began individual therapy in May 2012, but unilaterally
discontinued it in December 2012. Thus,
mother did not complete the individual therapy component of her case plan. Mother’s counsel represented that mother was
seeking a new therapist, but the social worker had been unable to obtain any
information from the new therapist.
Mother completed
the domestic violence support group
component of her plan, as well as the parenting class. Although mother was able to articulate her
understanding that it was important to keep the children safe and free from
domestic violence, it was the social worker’s opinion, based on her personal
observations and discussions with mother’s therapist, case manager, and
psychologist, that mother had not gained sufficient insight into her domestic
violence history.
Mother
testified on her own behalf. She
described her visits with the children and provided testimony on what she
learned in parenting classes, therapy, and the domestic violence support group.
She admitted, however, that she never
received any letter or certificate indicating that she completed the therapy
component of her reunification plan.
Mother
admitted that her relationship with the father was violent for at least the
last five years, that the police were called on at least four occasions, and
that the children witnessed two of these altercations. Mother also admitted that in one of the
altercations that the children witnessed, she was arrested and was a mutual
combatant in the violence. Mother
initially claimed that she learned to control her temper in the parenting
class, but later denied that she had any anger issues.
At the
conclusion of the evidence, the juvenile court found that conditions still
existed justifying the court’s assumption of jurisdiction, and further found
that returning the children to their mother’s physical custody would create a
substantial risk of detriment to their safety, protection, emotional or
physical well-being. The court
explained: “[N]either parent has
completed their reunification requirements.
There has been progress, and I want to acknowledge that and not lose
sight of it. But in light of this history
of domestic violence in this case, and the evaluator’s report . . .
that mom is going through the motions, that is troublesome to me, and I think
that more services are needed.†The
court ordered an additional six months of services, with the goal of returning
the children home at the next review hearing.
Mother filed a timely notice of appeal.
On appeal, mother
challenges only the juvenile court’s detriment finding and argues that it is
unsupported by substantial evidence. We
disagree.
At the
six-month review hearing, the juvenile court is required to return the
dependent child to the parent’s physical custody unless it finds, by a
preponderance of the evidence, that return “would create a substantial risk of
detriment to the safety, protection, or physical or emotional well-being of the
child. . . . The failure of the parent . . . to participate
regularly and make substantive progress
in court-ordered treatment programs is prima facie evidence that return would
be detrimental. In making its
determination, the court shall review and consider the social worker’s report
and recommendations and the report and recommendations of any child advocate
appointed pursuant to Section 356.5; and shall consider the efforts or
progress, or both, demonstrated by the parent . . . and the extent to
which he or she availed himself or herself to services provided . . . .
[¶] Regardless of whether the child is returned to a parent . . . ,
the court shall specify the factual basis for its conclusion that the return
would be detrimental or would not be detrimental.†(§ 366.21, subd. (e), italics added.)
We
review the substantial risk of detriment finding for substantial evidence. (Angela
S. v. Superior Court (1995) 36 Cal.App.4th 758, 763; In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) “We do not evaluate the credibility of
witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in
support of the findings, consider the record most favorably to the juvenile
court’s order, and affirm the order if supported by substantial evidence even
if other evidence supports a contrary conclusion.†(In re
L. Y. L. (2002) 101 Cal.App.4th 942, 947; accord,
903, 911.)
“The standard
for showing detriment is ‘a fairly high one.
It cannot mean merely that the parent in question is less than ideal,
did not benefit from the reunification services as much as we might have hoped,
or seems less capable than an available foster parent or other family
member.’ [Citation.] Rather, the risk of detriment must be
to parental custody represents some danger to the child’s physical or emotional
well-being. [Citations.] [¶] In evaluating detriment, the
juvenile court must consider the extent to which the parent participated in
reunification services.
[Citations.] The court must also
consider the efforts or progress the parent has made toward eliminating the conditions
that led to the child’s out-of-home placement.
[Citations.]†(
1394, 1400.) A parent is not required to
demonstrate perfect compliance with a case plan. (Jennifer
A. v. Superior Court (2004) 117
Cal.App.4th 1322, 1343.) “[T]he question
whether to return a dependent child to parental custody is not governed solely
by whether the parent has corrected the problem which required court
intervention; rather, the court must consider the effect such return would have
on the child.†(In re Joseph B. (1996) 42 Cal.App.4th 890, 894.)
Mother
argues that she “not only substantially complied with her case plan, but there
was no identified risk of harm to the children if they were returned to [her]
custody . . . .†Mother
completed the parenting class and domestic violence support group components of
her case plan. However, mother
unilaterally discontinued her individual therapy. Mother relies on Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at pages
1344–1345, but here, unlike the circumstances of that case, mother’s imperfect
compliance with her case plan is directly linked to the issues that brought the
children into the dependency system. And,
even if mother had technically complied with her case plan, that alone would
not answer the detriment question. (
at p. 1400; In re Dustin R. (1997)
54 Cal.App.4th 1131, 1141–1142 [“[a]vailing herself of the services provided is
one consideration . . . but . . . the court must also
consider progress the parent has made towards eliminating the conditions
leading to the children’s placement out of homeâ€].) Mother’s actions, as well as the reports from
her therapist and the psychological evaluator, reveal that mother failed to
demonstrate adequate progress towards ameliorating the conditions that caused
the children’s removal in the first place—domestic violence and excessive
physical discipline.
For
example, despite mother’s and father’s long history of domestic violence and mother’s participation in a domestic
violence support group, mother continued to minimize the issue and failed to
follow through with a restraining order when father purportedly stalked and
threatened her. And, despite her
completion of several parenting classes, there was evidence that mother had pushed
M.D. during a visit and denied having any anger problem.
The juvenile court’s detriment finding
is supported by substantial evidence.
1394 does not compel a contrary conclusion.
In that case, the reviewing court concluded a detriment finding was
unsupported by substantial evidence when the mother “did everything [the social
services agency] asked of her, including eliminating the conditions that led to
[the child’s] out-of-home placement.†(
did not comply with every aspect of her reunification plan. And, the juvenile court could reasonably
conclude that mother was merely making superficial efforts and had not
eliminated the conditions that caused the children’s removal.
Mother’s
reliance on Blanca P. v. Superior Court (1996)
45 Cal.App.4th 1738 is similarly misplaced.
In that case, the reviewing court criticized the juvenile court’s
reliance on vague statements by the social worker that the mother had failed to
“ ‘internalize’ †parenting skills.
(Id. at p. 1751.) The detriment finding was made in reliance on
the fact that the mother and the father continued to deny molestation
allegations, even though those allegations had since been discredited by an
expert. (Id. at pp. 1741–1744, 1752–1753.) In contrast, here, the truth of the domestic
violence and physical abuse allegations has not been questioned. Furthermore, there was evidence of mother’s
actions, in addition to statements by the social worker, therapist, and
psychological evaluator, which demonstrated that mother had not made sufficient
progress in eliminating the underlying problems.
The juvenile court’s order is
affirmed.
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P. J.
_________________________
Needham, J.
Code.
name="_ftn2" title=""> [2]
The children’s presumed father, Marvin D., is not a party to this appeal.
