In re Violet A.
Filed 12/17/12 In re Violet A. CA4/1
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
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re VIOLET A., a Person
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
MELISSA D.,
Defendant and Appellant.
D062297
(Super. Ct.
No. SJ12658)
APPEAL from
an order of the Superior Court
of
County, Garry G. Haehnle, Judge. Affirmed.
Melissa D.
appeals a juvenile court order, made at a six-month review hearing, terminating
her reunification services as to her dependent child, Violet A. Melissa challenges the sufficiency of the
evidence to support the court's finding she did not make substantive progress
with the provisions of her case plan and there was no substantial probability
Violet would be returned to Melissa's custody in the next six months. Melissa also contends it was in Violet's best
interests to order additional reunification
services. We affirm the order.
FACTUAL
AND PROCEDURAL BACKGROUND
Violet was
born in 2010 to Melissa and Jimmy A. (together, the parents). The parents had a history of
custody of Violet. Violet came to the attention
of the San Diego County Health and Human Services Agency (Agency) in July 2011
as a result of domestic violence between the parents. There was also an altercation between Jimmy
and Melissa's new boyfriend, Robert P., which put Violet at risk of
several times to discuss the need to keep Violet safe, and Melissa agreed to a
safety plan. However, Melissa violated
the plan on two occasions when she exposed Violet to violent confrontations
with Robert. When Robert was arrested,
Melissa signed another safety plan, agreeing to have no contact with him and to
have supervised visits with Violet, who was staying with the maternal
grandmother.
Following a
team decision meeting with Agency, Melissa filed a temporary restraining order
against Robert. Less than a month later,
Melissa and Robert reconciled and were living together. Melissa was using marijuana. Consequently, Agency filed a petition in the
juvenile court on behalf of Violet under Welfare and Institutions Code, section
300, subdivision (b),
name="_ftnref1" title="">[1]
and detained her with the grandmother.
Three days later, the police responded to another altercation between
Melissa and Robert.
At the
jurisdiction and disposition hearing in October 2011, the court declared Violet
a dependent, removed her from parental custody, placed her with relatives and
ordered reunification services for the parents.
Melissa's case plan required her to participate in domestic violence
treatment, develop a domestic violence safety plan, attend individual therapy,
complete a parenting course, submit to random drug tests and participate in
drug treatment and a 12-step program.
During the
next six months, Melissa lived with the maternal great-grandparents, but
maintained her relationship with Robert.
Melissa participated in domestic violence treatment and made some
progress. She left her inpatient drug
treatment program after one day, stating she preferred to participate in
outpatient treatment. All her drug tests
were negative. Melissa delayed beginning
individual therapy until February 2012.
She was having regular weekly visits with Violet at the grandmother's
home and another visit every week at her drug treatment facility.
On March 1,
a violent altercation occurred involving Jimmy, Robert and Melissa. In response to Jimmy vandalizing Robert's
car, Melissa, Robert and his brother chased Jimmy with their car. Melissa was driving, and positioned the car
to prevent Jimmy from escaping. Robert's
brother stabbed Jimmy twice, resulting in life-threatening injuries. At the same time, Melissa punched Jimmy's
girlfriend in the face. Melissa was
arrested for attempted murder and assault with a deadly weapon causing great
bodily injury. Jimmy required surgery to
repair a collapsed lung and to stop the bleeding in his chest wall.
At the
contested six-month review hearing in June 2012, the court received in evidence
Agency's reports. The court took
judicial notice of criminal court files showing Melissa had pleaded guilty to
assault with a deadly weapon and was likely to receive probation conditioned on
serving a year in custody with credit for time served. After considering the evidence, including the
testimony of the social worker and Melissa, the court found returning Violet to
parental custody would create a substantial risk of detriment to her. The court further found reasonable services
were offered or provided to the parents, but Melissa had not made substantive
progress with the provisions of her case plan and there was no substantial
probability Violet would be returned to her care in the next six months. The court terminated reunification services
for Melissa but continued services for Jimmy.
DISCUSSION
Melissa
challenges the sufficiency of the evidence to support the court's order
terminating her reunification services.
She asserts the evidence showed she actively participated in services,
made substantive progress with the requirements of her case plan, and showed a
substantial interest in reunifying with Violet.
She further asserts additional services would not be futile despite the
incident for which she was arrested and criminally charged.
A
Whenever a
minor is removed from parental custody, the juvenile court ordinarily must
"provide services to the parent for the purpose of facilitating
reunification of the family." (
Cal.App.4th 670, 678; Tonya M. v.
Superior Court (2007) 42 Cal.4th 836, 843.)
Where, as here, the child is under the age of three, "services are
presumptively limited to six months."
(Tonya M., at p. 843;
§ 361.5, subd. (a)(1)(B).) Services
may, if warranted, be extended up to 18 months.
(§§ 361.5, subd. (a)(3), 366.21, subd. (g)(1).) Nevertheless, "there is no absolute right
to receive the maximum amount of statutorily fixed services in any and all
circumstances." (
Cal.App.4th 436, 445; In re
Aryanna C. (2005) 132 Cal.App.4th 1234, 1242.)
"Before
reunification [services] can be terminated, the agency must establish by a
preponderance of evidence that it would be detrimental to return the child to
the parent. (§§ 366.21, subd. (f),
366.22, subd. (a).)" (Judith P.
v. Superior Court (2002) 102 Cal.App.4th 535, 546.) "The failure of the parent . . . to
participate regularly and make substantive progress in court-ordered treatment
programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall . . . consider
the efforts or progress, or both, demonstrated by the
parent . . . and the extent to which he or she availed
herself to services
provided . . . ."
(§ 366.21, subd. (e).) If
the court does not return the minor to parental custody at the six-month
hearing, it may terminate reunification services when the parent has "made
little or no progress in [his or her] service
plan[] . . . and the prognosis for overcoming the problems
leading to the child's dependency is bleak." (Daria D.
v. Superior Court (1998) 61 Cal.App.4th 606, 612.)
We review
the court's order terminating reunification services for substantial
evidence. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688; In re
James Q. (2000) 81 Cal.App.4th 255, 261.) In this regard, we draw all reasonable
inferences in favor of the court's findings, consider the record favorably to
the court's order and affirm the order even if other evidence supports a
contrary finding. (In re
Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The appellant has the burden of showing there
is no evidence of a sufficiently substantial nature to support the finding or
order. (In re L.Y.L. (2002)
101 Cal.App.4th 942, 947.)
B
Here, the
evidence showed Melissa participated in court-ordered treatment programs for
several months. She drug tested with
negative results, was active in a domestic violence treatment program and group
counseling, and had recently begun individual therapy. Melissa was able to articulate some of the
lessons she had learned and recognized that her relationships with men were
unhealthy and endangered Violet. Despite
having acquired this knowledge, Melissa continued her relationship with Robert
and lied about it to her service providers.
She took an active role in the life-threatening attack on Jimmy,
assaulted his girlfriend, and left the scene knowing Jimmy had serious
injuries. Even after pleading guilty to
criminal charges, Melissa failed to accept responsibility for her actions,
claiming she intended to prevent the incident from occurring. Melissa's violent behavior and lack of insight
show she made no progress in addressing the issues that placed Violet at risk
and led to her dependency. (See
(2004) 117 Cal.App.4th 1322, 1343 [purpose of reunification services is to
overcome problems that led to child's removal in the first place];
Cal.App.4th 1131, 1141-1142 [mere completion of certain technical requirements
of reunification plan does not necessarily mean the parent has made progress
toward eliminating the conditions leading to child's placement out of
home].) Moreover, Melissa's failure to
make progress while she participated in services inspires no confidence that
she will effectively utilize additional services in order to resume the care
and custody of Violet in the next six months.
Substantial evidence supports the court's findings Melissa had not made
substantive progress with the provisions of her case plan and there was no
substantial probability Violet would be returned to her care in the next six
months.
II
Melissa contends
the court abused its discretion by terminating her reunification services. She asserts it was in Violet's best interests
to provide continued reunification services because family preservation was a
paramount goal. She claims the
proceedings were fundamentally unfair because the court continued Jimmy's
services while terminating hers.
A
When
reunification efforts continue for one parent after a review hearing, the
juvenile court may, but need not, offer reunification services to the other
parent. (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881 (
Alanna A. (2005) 135 Cal.App.4th 555, 566.) "The parent seeking additional services
has the burden of showing such an order would serve the child's best
interests." (Katelynn Y., at p. 881.)
In deciding whether to order additional services, the court evaluates
whether the parent will utilize those services and whether services "would
ultimately inure to the benefit of the minor." (In re
Jesse W., at p. 66.) We
review that decision for abuse of discretion and will not disturb it unless the
court has exceeded the limits of legal discretion by making an arbitrary,
capricious or patently absurd determination.
When two or more inferences reasonably can be deduced from the facts, we
have no authority to reweigh the evidence or substitute our judgment for that
of the juvenile court. (
Cal.4th 295, 318-319; Katelynn Y.,
at p. 881.)
B
Here, the
court continued Jimmy's services for six months, but found additional services
for Melissa were not warranted because she had made no progress with the
services she had received. As the court
noted, Melissa continued to engage in domestic violence, both as a victim and a
perpetrator, and had committed a violent crime.
Although the primary purpose of limiting the period of reunification is
to afford the child stability and permanence where reunification is unlikely
within the statutory time limits, "[t]he Legislature has [also] recognized
that in some circumstances, it may be fruitless to provide reunification
services. [Citation.] In such a case, the general rule favoring
reunification services is replaced by a legislative assumption that offering
services would be an unwise use of governmental resources." (In re Alanna A., supra, 135
Cal.App.4th at p. 566.) Because
Melissa made no progress toward alleviating or mitigating the causes of
Violet's dependency, the court could properly find Melissa would not utilize
further services, nor would those services ultimately inure to Violet's
benefit. (Katelynn Y., supra,
209 Cal.App.4th at p. 881.) There
was no abuse of discretion or fundamental unfairness in the proceedings.
DISPOSITION
The order
is affirmed.
O'ROURKE, J.
WE CONCUR:
NARES, Acting P.J.
AARON, J.
name="_ftn1" title="">[1] Further statutory references are to the Welfare and
Institutions Code unless otherwise specified.
