J.R. v. Super.
Filed 5/8/13 J.R. v. Super. Ct. CA1/4
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opinion has not been certified for publication or ordered published for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
>
J.R., Petitioner, v. THE SUPERIOR COURT OF DEL NORTE COUNTY, Respondent; DEL NORTE COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Real Party in Interest. | A137755 (Del Norte County Super. Ct. Nos. JVSQ12-6041, JVSQ12-6042, JVSQ12-6043, JVSQ12-6044, JVSQ12-6045, JVSQ12-6046, JVSQ12-6047, JVSQ12-6048, JVSQ12-6049) |
J.R.
(mother) petitions this court for extraordinary writ review of a juvenile court
order terminating reunification services
and setting a selection and implementation hearing for her nine children, who
currently range in age from three to 17 years old. She argues that the juvenile court applied an
incorrect legal standard when it declined
to extend reunification services past the six-month review hearing. (Welf. & Inst. Code, § 366.21,
subd. (e).)
title="">[1] We disagree and deny her petition.
I.
Factual and Procedural
Background
These proceedings began on March 1, 2012,
when the Del
Norte County Department of Health and Human Services (Department) filed
nine separate juvenile dependency petitions alleging that mother and the
children’s father, B.R. (father), had abused their children. Specifically, the petitions alleged that
father had sexually and physically abused 16-year-old daughter M.R. (the oldest
child) and had physically abused 11-year-old son E.R. (the oldest son and fourth-born
child). The petitions further alleged
that all nine of the children faced a substantial risk of harm. A detention hearing was held the following
day, and father was ordered not to return home.
By
the time jurisdiction reports were filed a couple of weeks later, M.R. and E.R.
were placed in foster care while the other seven children remained with
mother. According to the jurisdiction
reports, M.R. had claimed that father had slapped and pushed her in late
December, and she feared for her safety, telling social workers: “ ‘I can’t go back in there! He will kill me! I’m not supposed to talk about what
happens.’ †She also disclosed
other incidents of violence against her siblings and mother, as well as sexual
abuse by father. The reports also
revealed that E.R. had alleged that father burned him with a toaster oven after
he failed to finish his homework (E.R. later recanted this allegation),
suffered other violence in the home, did not feel safe, and had been instructed
not to discuss what happened in the home because he would be “punished for
speaking outside of the family.â€
The
parents denied all allegations. Father
claimed that M.R. was “ ‘making lies up [just to] get out of the
home’ †and was “ ‘mentally ill.’ †He also denied that E.R. or any other child
had suffered abuse. Mother claimed that
E.R. and “ ‘all the children’ †lied, she denied that any of the
children had recently suffered physical punishments, and she stated she was not
“ ‘an abused woman.’ â€
Mother,
M.R., her 13-year-old and 15-year-old sisters, the social worker, and another
witness testified at the contested jurisdiction hearing held over four days in
May. Although the juvenile court
dismissed some of the original allegations regarding abuse of M.R. and E.R., it
found that it had jurisdiction over each of the nine children under section
300. Specifically, the court found that
M.R. suffered: (1) sexual abuse by
father and a failure to protect by mother (subd. (d)); (2) a failure
to protect based on physical abuse by father (subd. (b)); and
(3) emotional damage by her parents’ failure to seek appropriate mental
health services after she tried to commit suicide, and by father telling her
that he would kill her and that she would burn in hell for speaking outside the
family (subd. (c)). The court found
that E.R. and the other seven minors had an abused sibling (M.R.)
(subd. (j)), and that the parents had failed to protect the seven minors
(those other than M.R. and E.R.) based on their promotion of an unorthodox
religious belief system leading M.R. to fear she would burn in hell for
speaking outside the family (subd. (b)).
Around the time of the contested jurisdiction hearing, the seven minors
remaining with mother were removed from the home under voluntary safety plans
because of a reported lack of supervision.
In
June, the Department filed supplemental petitions (§ 387) as to those
seven minors. As later amended, the
supplemental petitions alleged that mother suffered from depression and
post-traumatic-stress disorder, which impaired her ability to parent
effectively and placed the minors at substantial risk of emotional abuse and
neglect; that the home smelled of garbage and contained various safety hazards;
that father had returned home, which placed the minors at risk of sexual abuse
and serious risk of emotional harm; that the parents’ parenting resulted in
emotional detriment to the minors; and that the minors were at risk of
educational neglect.
According
to social worker reports filed in early June, mother and father had shown
“verbally and emotionally hostile retaliation†toward M.R., E.R., and their
nearly 10-year-old daughter for the roles the parents perceived that those
minors had played in having the Department and court intervene in their
lives. The social worker reported
problems that occurred during supervised visitation, such as the parents not
being aware of some of the minors’ basic needs, and mother being unaware that
her four-year-old daughter and two-year-old son were even in the visitation
room. One visit had to end early, and a
sheriff’s deputy was called, after mother started screaming at M.R. that she
was “ ‘lying and trying to have my children removed’ †and would
“ ‘burn in hell,’ †which upset the younger siblings; refused to
leave the room after being repeatedly told to do so; and later screamed at the
social worker that she, too, would “ ‘burn in hell.’ †The social worker concluded that the parents
had demonstrated over five months of supervised visitation that they did not have
the ability or desire to meet their children’s emotional or physical well-being
during visits.
A
psychologist who had counseled the parents, E.R., and M.R., and who had
observed several visitation sessions, reported that mother suffered from “Major
Depression (recurrent) resulting from unresolved long term Complicated Post
Traumatic Stress Disorder (PTSD) caused by repeated traumatic events in her
life as a child, teenager and young adult; and Dependent Personality
Disorder.†The psychologist also
described the “Biblical Patriarchy†belief system followed by the family, a
practice he stated was “akin to an indoctrination under divine rule that
isolated the family from conventional social experiences, led to inadequate
home schooling for the[] children leading to educational neglect, and a
blurring of the boundaries, roles and developing identities of the older R[.]
children.â€
The
juvenile court sustained the supplemental petitions filed as to the seven
minors after a contested jurisdiction hearing in mid-July.
In
late August, the Department filed a disposition report as to all nine
minors. According to the Department,
many of the children continued to report violence within their family,
including violence between the parents and by the parents (particularly father)
against the children. The following
month, the parents’ 10-year-old daughter, H.R., disclosed to her foster parent
and her therapist that father had molested her and that she had witnessed
father molesting M.R. H.R. stated that
father used to get in bed with her “and they would ‘do it,’ †and he would
also ask her to pull down her pants so he could look at her. The parents told a social worker they
believed H.R. was trying to “get back at them for not allowing her to get her
ears pierced and because she has been influenced by M[.]â€
A
dispositional hearing was held on October 2. The juvenile court adjudged the minors to be
dependent children after finding by clear and convincing evidence that they
should remain out of the parents’ physical custody and ordered family
reunification services. Mother and
father both timely appealed from the dispositional order, and their appeals are
currently pending in this court. These
appeals were consolidated with father’s premature appeal of the jurisdictional
order. (Appeal Nos. A135645,
A136929.)
The
parents, and particularly mother, worked to achieve the objectives of their
court-ordered case plan, but their success was limited. In October, the parents completed a certified
nursing assistant training program and were searching for work. Although the parents lived together in the
family home at that time, mother told the social worker that father was moving
out so that the juvenile court would permit the return of the minors to
her. Mother was receiving counseling,
but she complained that she was misdiagnosed as having depression and
PTSD. She continued to insist that
father did not abuse her, even though several of the older children reported
that father had been physical with mother, and community members reported that
father had been seen “berating [mother] in a public place for a significant
amount of time.â€
Both
parents completed a parenting course and were undergoing counseling. They acknowledged making poor decisions in
the past when disciplining their children, and they stated they had decided to
no longer use corporal punishment.
Mother attended courses relating to domestic violence education and
child abuse prevention. But these
services did not appear to result in any behavior or attitude change. The social worker testified that mother could
“go through the motions of completing [a parenting] class,†“do the homework,â€
and “fill a seat,†but did not necessarily benefit from the class. According to staff who led
attended, mother “did not approach the classes as a victim in her marriage or
in her relationship. It was more of she
was a victim of the system and her children.â€
The
Department remained concerned that although the parents had worked to improve
their parenting skills and to correct the safety hazards in and around their
home, they had done nothing to address concerns related to sexual abuse. The social worker stated that “given the
further disclosures of the children [of violence and sexual abuse], the
Department is more concerned than ever about the children’s ability to be safe
in the home of their parents.†Father
failed to complete a “psychosexual assessment,†and the Department was
concerned that he was “purposely hiding†information. Mother was described by her children as a
“child herself†who was “controlled and manipulated†by father.
The
six-month review hearing took place on January 11, 2013.
the hearing, the Department recommended that family reunification services be
terminated and that the juvenile court set a selection and implementation
hearing under section 366.26. At
the time of the report, three of the minors refused to visit with father, and
the six oldest minors all had told the social worker that they did not want to
return home and wished to remain in foster care. All of the minors’ attorneys concurred with
the Department’s recommendation.
At
the hearing, the social worker testified, consistent with what she had stated
in her review report, that although mother had participated in various services
provided to her and had tried to implement new parenting techniques, she lacked
insight into the danger father posed to her children, and she had “taken more
of the blame onto herself and ha[d] protected her husband.â€
The
social worker believed that the parents had not made the changes necessary to
parent their children properly, and she did not think that it was probable they
would be able to do so in the next six months, based in part on father’s
failure to participate in a psychosexual assessment ordered by the court and
both parents’ unwillingness to address the issue of domestic violence. According to the social worker, the minors
did not want to return home, they would not feel safe doing so, and they
believed their parents were “putting on a front.†Because mother had demonstrated no insight
into father’s power over her and had not changed her behavior despite having
participated in services, the social worker did not believe that additional
services would be helpful. The worker
also testified that it would be difficult for mother to handle all nine minors
on her own, and there were concerns about “her co-dependence issues with the
father and her . . . inability to protect†her children.
Mother
testified that she had consistently participated in the mental health portion
of her case plan, but she had concerns that her therapist was “biased,†had not
supported her “at all,†and was taking the word of her children and the social
worker over hers. She claimed that the
psychologist who administered a psychological test faked the results by writing
down answers different from those she provided.
Mother described herself as “very independent†and “very defensive,†and
she testified that although her own father abused her, she currently would
“never allow anyone to abuse me or the children.â€
Father
testified that he had moved out of the family home out of respect for the
juvenile court’s requirement that he stay away from the residence for the
safety of his children. Mother insisted
that although she loved father, she would continue to live apart from him in
order to have her children returned to her.
The
juvenile court terminated reunification services and set a selection and implementation
hearing (§ 366.26). Mother filed a
timely notice of her intent to seek writ relief. Father also timely filed a notice of intent
to file a writ petition but did not timely file his petition in this
court. On March 27, 2013, this
court denied father’s request for an extension of time.
II.
Discussion
Mother’s sole argument in support of her petition is that
the juvenile court applied an incorrect standard when declining to extend
reunification services beyond the six-month review hearing. We disagree.
“When
a child is removed from a parent’s custody, the juvenile court ordinarily must
order child welfare services for the minor and the parent for the purposes of
facilitating reunification of the family.
(§ 361.5, subd. (a).)â€
(Tonya M. v. Superior Court
(2007) 42 Cal.4th 836, 843.) If a child
is over the age of three when removed from parental custody, the minor
generally is entitled to a minimum of 12 months of reunification services,
whereas a child who is under the age of three at the time of removal generally
is entitled to only six months of services.
(§ 361.5, subd. (a)(1)(A)-(B).) In the case of a “sibling group†that
includes children in both age categories at the time of removal, the juvenile
court may limit services for all siblings to six months. (§ 361.5, subd. (a)(1)(C);
112 Cal.App.4th 9, 13-14.) The parties
here agree that because the youngest sibling was under the age of three when
removed from parental custody, all nine minors were part of a sibling group
subject to the possible limitation of services.
Section 366.21,
subdivision (e), provides that at the six-month review hearing, “the court
shall order the return of the child to the physical custody of his or her
parent . . . unless the court finds, by a preponderance of the
evidence, that the return of the child to his or her
parent . . . would create a substantial risk of detriment to the
safety, protection, or physical or emotional well-being of the child.†The social worker has the burden of
establishing that detriment, and mother does not dispute that the Department
did so here. The statute further
provides that if a child was under the age of three at the time of removal or a
member of a sibling group with such a child, “and the court finds by clear and
convincing evidence that the parent failed to participate regularly and make
substantive progress in a court-ordered treatment plan, the court may schedule
a hearing pursuant to Section 366.26 within 120 days.†(§ 366.21, subd. (e).) There is apparently no dispute that mother
participated regularly in her treatment plan.
However, mother does not dispute the juvenile court’s finding that she
failed to make substantive progress in that plan, as contemplated by the
statute.
Instead,
mother contends that the juvenile court misapplied the correct legal standard
in denying an extension of reunification services for another six months and
scheduling a selection and implementation hearing. Her argument is based on section 366.21,
subdivision (e): “If, however, the
court finds there is a substantial probability that the
child . . . may be
returned to his or her parent . . . within six months or
that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.†(§ 366.21, subd. (e), italics
added.) M.V. v. Superior Court (2008) 167 Cal.App.4th 166 (
relies, emphasized that the standard is whether there is a substantial
probability that a child may be reunited
with the parent in the next six months (§ 366.21, subd. (e)), and not
whether the child will be reunited
with a parent in the next six months (which is the standard applicable at the
12-month review hearing, § 366.21, subd. (g)(1)). (M.V.
at p. 180.) “Literally, the statute
commands the court to determine whether there is a strong likelihood of a
strong likelihood the return will in fact occur). The word ‘may’ alters the typically high
burden of ‘substantial probability.’ â€
(Id. at p. 181, original
italics.) “If, at the six-month review,
the court finds there is a substantial probability the child may be returned to
the parent, the court lacks discretion to schedule a .26 hearing. The court must instead continue reunification
services until the 12-month review, and make any necessary modifications to the
service plan in the interests of facilitating reunification. [Citations.]â€
(Id. at p. 182.)
Mother
contends that it is “ambiguous at best†whether the court used the correct
standard, and that the court’s comments indicate it incorrectly terminated
reunification services based on whether the minors would be returned to mother in six months, as opposed to
it was clear that the juvenile court had applied the “substantial probabilityâ€
standard applicable to 12-month review hearings even though it was making
findings at a six-month hearing, because the court read directly from section 366.21, subdivision (
applicable at 12-month review hearings, when issuing its ruling. (M.V.,
supra, 167 Cal.App.4th at
p. 178.) The court also
specifically stated that it was relying on the three-factor test applicable at
the 12-month hearing (whether the parent has maintained regular visitation,
made significant progress in resolving the problems that led to the child’s
removal, and demonstrated the capacity and ability to complete the objectives
of his or her treatment plan and provide for the child’s well-being,
§ 366.21, subd. (g)(1)(A)-(C)), whereas the court is not required to
consider those three factors when deciding whether to continue services past
the six-month review.
name="_ftnref4" title="">[4] (M.V.
at p. 183.)
Here,
by contrast, the juvenile court did not specifically rely on the statutory
provisions applicable at 12-month review hearings. And although some isolated comments used by
the juvenile court during the hearing might suggest that it was contemplating a
heightened standard, we conclude—after reviewing the evidence, the arguments,
and other comments by the juvenile court—that the correct standard was applied.
In
terms of the evidence, a review of the entire hearing transcript reveals that
the juvenile court believed that there was no probability that the minors would
be returned to mother in another six months, much less a substantial
probability that they may be returned. (
it was denying further reunification services to mother: “[I]t has to do much more with attitude. It’s her failure to recognize and admit the
abuse that went on in the family, not just the sexual abuse, but the domestic
violence.†The court also stated: “She blames herself, blames society, blames
her children, does not blame the father. I think she has no insight as to what has really been going on in her family. And even though she took the classes and did
the things that we asked her to do, there was evidence that her instructor
thought that she would benefit from retaking the parenting class, which she did
not do. She went to the Dina Dinosaur
[class]. She was asked to come and watch
the kids to get some role modeling as to how she should deal with children;
instead, she was asked not to come back because of her interference in it.†(Italics added.) The court concluded: “It is absolutely clear to me she would have
great difficulty in parenting these children for a couple different
reasons. One, her attitudes, believing
that society is somehow to blame for the problems in the way that her children
act and not accepting what the children say.
And difficulty of managing nine children appears to be well beyond her
means and her capabilities. [¶] I
find it absolutely incredible her claims that the psychiatrist faked the
[psychological] test results. I’m not
sure what she thinks that the social worker committed perjury on, but indicates
to me that she is, again, not—she is blaming everybody but herself and her
husband. I’ve already indicated that her
self-image as somebody who is very independent and not controlled [by father]
is not sustained by the evidence.â€
In
terms of the court’s comments, we acknowledge that during the lengthy exchange
between the juvenile court and the attorneys, the court occasionally referred
to whether the parents would reunify in the next six months, as opposed to
whether it was possible they “may†reunify.
For example, the court at one point asked mother’s counsel, “I mean, do
you have—have you shown that there’s a substantial probability that any of the children
would be returned in the next six
months.†(Italics added.) At another point, the juvenile court stated,
“I’m looking at is there a substantial probability that this mother is
court stated, “I just find by clear and convincing evidence that [mother] has
not made any substantive progress in Court ordered treatment such that there is
any substantial probability she would have the children returned to her in the next six months.†(Italics added.)
But
other comments eliminate any doubt that the court was applying the correct
standard. At one point, the court
plainly stated to mother’s counsel, “The issue is whether or not there’s a
substantial probability that the children could
be returned in the next six months.â€
(Italics added.) We agree with
the Department that this was a correct summary of the applicable standard,
because “could†is sufficiently similar to “may.†Indeed, mother’s counsel described the
standard in the same way during argument when he told the juvenile court, “If
my client is not with father, I think she has met that substantial—I think she
protecting from the allegations of the father.
If she has to make it and she has shown she has made a decision because
separated from father and, yes, I think there now is a substantial probability she could
reunify with [her children].†(Italics
added.)
In
light of the evidence and the juvenile court’s findings, it is not reasonably
probable that mother could obtain a more favorable result were this court to
grant her writ petition and direct the lower court to state more clearly the
standard it used in determining whether there was a substantial probability of
reunification. (Cf. M.V., supra, 167
Cal.App.4th at p. 183.) The fact
that the juvenile court found that mother had no insight into the very serious problems in her family and had not
made any substantive progress to alleviate those problems despite months of
services shows that it believed there was no possibility of reunification. Although mother cites evidence in the record
supporting a contrary finding, it is clear that the juvenile court considered this
evidence and rejected it.
Finally,
we reject mother’s argument that the juvenile court failed to consider factors
applicable when scheduling a selection and implementation hearing for members
of a sibling group. Section 366.21,
subdivision (e) provides that in making its determination to schedule such
a hearing for members of a sibling group, the court “shall review and consider
the social worker’s report and recommendations.
Factors the report shall address, and the court shall consider, may
include, but need not be limited to, whether the sibling group was removed from
parental care as a group, the closeness and strength of the sibling bond, the
ages of the siblings, the appropriateness of maintaining the sibling group
together, the detriment to the child if sibling ties are not maintained, the
likelihood of finding a permanent home for the sibling group, whether the
sibling group is currently placed together in a preadoptive home or has a
concurrent plan goal of legal permanency in the same home, the wishes of each
child whose age and physical and emotional condition permits a meaningful
response, and the best interest of each child in the sibling group. The court shall specify the factual basis for
its finding that it is in the best interest of each child to schedule a hearing
pursuant to Section 366.26 in 120 days for some or all of the members of
the sibling group.†(See also Cal. Rules
of Court, rule 5.710(d).)
The
social worker’s report, which was reviewed and considered by the juvenile
court, specified where the children were placed and with whom, described the
quality and frequency of sibling visits, and summarized each child’s current
circumstance. The social worker spoke
with all nine children and included in her report a summary of their wishes,
with more detail provided for the older children. At the review hearing, the juvenile court
acknowledged that “[t]here’s a number of factors you look at,†identified a few
of the relevant factors for sibling groups, and stated that “I’ve looked at
those factors.†It also asked county counsel
to address whether it would be appropriate to continue services to some, but
not all, of the minors, a possible option for sibling groups. (Cal. Rules of Court, rule 5.710(d).) The court also specifically found that it was
in all nine minors’ best interest to set a selection and implementation hearing
in order to provide permanency for them as soon as possible. It is thus not correct, as mother asserts,
that the court failed to apply the considerations governing sibling groups.
In
sum, it is clear that the juvenile court concluded at the six-month review
hearing that “ ‘ “parental unfitness [wa]s so well established that
there [wa]s no longer ‘reason to believe that [a] positive, nurturing
parent-child relationship[] exist[[ed]]’ [citation], and the
favoring preservation rather than severance of natural familial bonds ha[d]
been extinguished.†’
[Citation.]†(
terminate reunification services and set a selection and implementation
hearing. (Ibid.)
III.
Disposition
Mother’s petition for an
extraordinary writ is denied on the merits.
(§ 366.26, subd. (l);
Cal. Rules of Court, rule 8.452(h).)
This decision shall be final at the conclusion of three court days. (Cal. Rules of Court, rules 8.452(i),
8.490(b)(3).)
_________________________
Humes,
J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
name="_ftn1" title="">[1]
All statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2]
All date references are to the 2012
calendar year unless otherwise specified.
We commend the juvenile court and the Department for the
organization and clarity of the case files in this multiple-party proceeding.
