Liliana R. v. Superior Court
Filed 7/3/12
Liliana R. v. Superior Court CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LILIANA R.,
Petitioner,
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
D061593
(San Diego County
Super. Ct. No. EJ3217B)
SAN DIEGO COUNTY
HEALTH AND HUMAN SERVICES AGENCY,
Real Party in Interest.
PROCEEDINGS
for extraordinary relief after
reference to a Welfare and Institutions Code section 366.26 hearing. Ronald F. Frazier, Judge. Petition denied; request for stay denied.
Liliana
R. seeks writ review of a juvenile court order terminating
daughter, L.R., and setting a hearing under Welfare and Institutions Code
366.26. She contends the court erred by
not continuing her reunification services to the 18-month date and by denying
her request for unsupervised visits with L.R.
We deny the petition and Liliana's request for a stay.
FACTUAL AND PROCEDURAL BACKGROUND
In
August 2009, when Liliana was four months pregnant with L.R., she was involved
in a domestic violence incident with L.R.'s father, Robert M. Liliana's three-year-old daughter Linda was
present at the time. The San Diego
County Health and Human Services Agency (Agency) intervened, and Liliana agreed
to participate in voluntary services that included a safety plan, but she
refused to obtain a restraining order against Robert. Four months later, Liliana and Robert were
involved in another incident of domestic violence. Robert was arrested for battery, even though
Liliana denied that he hit her. There
was some indication Liliana was using illegal
drugs.
L.R.
was born in February 2010. Agency filed
a petition in the juvenile court under section 300, subdivision (b) alleging L.R.
was at substantial risk of harm as a result of her parents'
to participate in her voluntary case plan and obtain a restraining order
against Robert. At a jurisdiction and
disposition hearing, the court sustained the allegations of the petition,
declared L.R. a dependent, and placed her with Liliana. This placement was conditioned on Liliana
participating in her case plan and abiding by a three-year restraining order against
Robert.
During
the next six months, Liliana participated in services and made some
progress. However, Agency learned she
was spending time with Robert, and had taken L.R. to visit him in jail on
numerous occasions. In February 2011,
the court sustained the allegations of a section 387 supplemental petition,
finding L.R.'s placement with Liliana was not effective in protecting her
because Liliana had violated the restraining order. The court removed L.R. from Liliana's
custody, placed her with a non-relative extended family member and ordered
reunification services for Liliana.
In
April 2011, Liliana allowed Robert to spend the night with her. The police responded to a call from a
neighbor who reported that Liliana and Robert had been arguing. Liliana denied anyone else was in the
apartment, but the police found Robert hiding in a closet and arrested
him. The next month, Liliana was evicted
from her apartment. She continued to
have supervised visits with L.R. and participate in services. She met only some of her therapy goals and
had limited understanding of the impact of domestic violence. Liliana's level of insight had decreased
during this reporting period. In the
social worker's opinion, Liliana did not have adequate skills or an understanding
of the protective issues to protect L.R. from domestic violence. The social worker recommended the court
terminate Liliana's services and set a section 366.26 hearing to select and
implement a permanent plan for L.R.
In
September 2011, Liliana contacted the social worker to report she had been
arrested earlier that week for driving under the influence of alcohol. She minimized the amount of beer she had
consumed. Liliana did not bring the
social worker the requested documentation regarding the status of her driver's
license.
drug test the day she met with the social worker.
At
a six-month review hearing, the court found Liliana had made some progress with
her case plan and ordered services extended to the 12-month date. Liliana's case plan was revised to include
services designed to address her alcohol problem.
One
month before the 12-month hearing, Liliana and a 16-year-old male were arrested
for stealing merchandise from stores at a shopping center. Liliana misinformed the social worker about
the charges having been dropped. Liliana
eventually pleaded guilty to a theft-related crime. Her substance abuse specialist referred her
to dependency drug court after Liliana disclosed she had consumed alcohol on
New Year's Eve. The social worker again
recommended the court terminate Liliana's services and set a section 366.26
hearing.
At
a contested 12-month hearing, social worker Eunice Aguilar testified Liliana
had been receiving services for more than two years, and yet her visits with
L.R. remained supervised. Liliana had
completed domestic violence treatment, was regularly attending individual
therapy and a substance abuse program, and was enrolled in a parenting
class. Nevertheless, Aguilar did not
believe Liliana had made significant progress on her reunification plan because
she continued to make bad decisions for which she took no responsibility and
she was unable to understand the consequences of her behavior for herself or
L.R. On many occasions, Liliana lied to
Aguilar or misled her. Liliana's pattern
of poor decision-making included an arrest for driving under the influence of
alcohol after she set the six-month review for trial. She showed poor judgment by not calling the
substance abuse specialist to say she could not attend her intake
appointment. A month before the 12-month
hearing, she and her teenage companion committed burglary. In Aguilar's opinion, Liliana did not
understand her responsibility as an adult, and as a parent, to make good
decisions and set a good example for children.
Despite having had ample time to make positive and significant changes
in her life, Liliana continued to behave in a way that showed she could not
provide a safe environment for L.R.
Liliana's
therapist, Brenda Mack, testified Liliana had made progress in that she was
aware of how domestic violence impacted L.R., and she now had more insight into
her role as a parent. In Mack's opinion,
Liliana could meet her therapeutic goals in the next four months, but it would
be difficult for her to do so if her visitation with L.R. did not become
unsupervised.
Jacqueline
Arellano, Liliana's substance abuse counselor, testified Liliana started
treatment in November 2011 and was placed on a behavioral contract due to poor
attendance. Following her burglary
arrest, she became compliant with the program.
In Arellano's opinion, Liliana would complete the year-long substance
abuse program. Arellano observed visits
between Liliana and L.R., noting they were appropriate. She would not be concerned about allowing
Liliana to have unsupervised visits.
Liliana
testified she had grown up and matured since spending three days in custody for
the burglary. She admitted she had
waited two months before complying with the court's order to enroll in
substance abuse treatment. Liliana
attributed her recent positive change to her participation in the parenting
program.
After
considering the evidence and arguments of counsel, the court found returning
L.R. to parental custody would create a substantial risk of detriment to
her. Finding Liliana had received
reasonable services and there was no substantial probability L.R. would be
returned to her custody in the next six months, the court terminated services
and set a section 366.26 selection and implementation hearing.
Liliana
sought review of the court's order.
(§ 366.26, subd. (l);
Cal. Rules of Court, rule 8.452.) This
court issued an order to show cause and Agency responded. The parties waived
DISCUSSION
I
Liliana
contends the court erred by refusing to extend reunification services to the
18-month review date under section 366.21, subdivision (g)(1). She asserts:
(1) she visited L.R. frequently and they were very bonded;
(2) she made significant progress in resolving the protective issues; and
(3) she had the capacity and ability to complete the objectives of her
treatment plan, and could provide for L.R.'s safety and physical and emotional
well-being.
A
"Whenever
a minor is removed from parental custody, the juvenile court must, in the
absence of certain specified exceptions, order the social worker to provide
services to the parent for the purpose of facilitating reunification of the
family." (In re Jesse W. (2007) 157 Cal.App.4th 49, 59.) Reunification services for a parent of a
dependent child under the age of three are generally limited to six months, but
may be extended to the 12-month date.
(§ § 361.5, subd. (a)(1)(B) & 366.21, subd. (e).) Court-ordered services may be extended to a
maximum of 18 months after the child was originally removed from parental
custody under a heightened showing there is a substantial probability the child
will be returned to the parent's custody and safely maintained in the home by
that time. (§ § 361.5,
subd. (a)(3); 366.21, subd. (f); 366.21, subd. (g)(1);
695.) In considering whether there is a
"substantial probability" of return to warrant extending services to
the 18-month date, the court must find:
(1) the parent has consistently and regularly contacted and visited
the child; (2) the parent has made significant progress in resolving
problems that led to the child's removal from the home; and (3) the parent
has shown "the capacity and ability both to complete the objectives of his
or her treatment plan and to provide for the child's safety, protection,
physical and emotional well-being and special needs." (§ 366.21, subd. (g)(1)(C).)
Where,
as here, the court is required to make factual findings, we review its decision
for substantial evidence. (
1232; In re Basilio T. (1992) 4
Cal.App.4th 155, 170.) In this regard,
we do not consider the credibility of witnesses, attempt to resolve conflicts
in the evidence or weigh the evidence.
Instead, we draw all reasonable inferences in support of the findings,
view the record favorably to the juvenile court's order and affirm the order
even if there is substantial evidence supporting a contrary finding. (In re
Baby Boy L. (1994) 24 Cal.App.4th 596, 610; Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340,
1346.) On appeal, the parent has the
burden of showing there is no evidence of a sufficiently substantial nature to
support the court's finding or order. (
947.)
B
Here,
the evidence showed Liliana consistently and regularly visited L.R. (§ 366.21, subd. (g)(1)(A).) However, there was no showing Liliana made
significant progress in addressing the protective issues or that she has the
capacity and ability to complete the objectives of her treatment plan and
provide for L.R.'s safety and well-being.
(§ 366.21, subd. (g)(1)(B) & (C).)
Although
Liliana received more than two years of services, including therapy,
classes, she was unable to consistently implement what she had
learned. She continued to make poor
decisions; failed to consider her own or L.R.'s safety; had no regard for the
truth; minimized the amount she drank when arrested for driving under the
influence; tried to mislead the social worker about her burglary arrest; took
no responsibility for her bad decisions; and had little understanding of how to
be a responsible adult and parent. The
court was entitled to accept the social worker's opinion, supported by facts in
the record, that Liliana had not made significant progress in resolving
problems that led to L.R.'s dependency.
We cannot reweigh the evidence or substitute our judgment for that of
the juvenile court. (
53.)
Moreover,
the evidence showed Liliana would not be able to complete the objectives of her
treatment plan and provide for L.R.'s safety and well-being. Mack testified Liliana could meet her
therapeutic goals in the next four months, but she also said this would be
difficult if visitation with L.R. remained supervised. Even though Liliana attended 32 therapy
sessions, Mack's report noted she needed "intensive trauma work" to
improve her individual functioning and reduce the risk of exposing L.R. to
domestic violence. Arellano testified
Liliana would be able to complete the year-long substance abuse program, but
she had not yet submitted her "step one" or any verification that she
had a sponsor. Additionally, Liliana had
completed barely half of her one-year parenting course. From this, the court could reasonably find
Liliana could not provide a safe environment for L.R. despite having had ample
time to make positive and significant changes in her life.
L.R.
was removed from Liliana's custody at birth and had been a dependent for more
than two years. Liliana received
services beyond the statutory 12-month limit for a child under the age of three. (§ 361.5, subd. (a)(1)(B).) Nevertheless, L.R. could not be returned to
Liliana's custody due to a substantial risk of detriment. At this point, the focus of the proceedings
shifts to the child's need for stability and permanence. (Denny
H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1509-1510.) Substantial evidence supports the court's
order terminating services and setting a section 366.26 selection and
implementation hearing. (
Cal.App.4th 521, 529-530.)
II
Liliana
contends the court abused its discretion by denying her request for
unsupervised visits with L.R. Liliana
asserts she was able to apply the parenting skills she learned; she and L.R.
were bonded; she had been sober for five months; and she had partially met her
therapy goals. Thus, she claims, L.R.'s
safety would not be jeopardized and it would be in her best interests to allow
unmonitored visits.
A
The
juvenile court defines a parent's visitation rights by balancing the parent's
interests in visitation with the child's best interests. (In re
Jennifer G. (1990) 221 Cal.App.3d 752, 757; § 362.1, subd. (a)(1)(A)
["Visitation shall be as frequent as possible, consistent with the
well-being of the child"]; § 366.21.)
Restrictions on parental visitation are proper if they are consistent
with the child's best interests under the particular circumstances of the
case. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009;
988, 999.)
The
court has broad discretion in making visitation orders, which we review for
abuse of discretion. (
26-27; In re Julie M. (1999) 69
Cal.App.4th 41, 48-51.) In this regard,
the juvenile court's order will not be disturbed on appeal 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. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319;
1218, 1226-1227.)
B
Here,
the evidence showed Liliana had a pattern of making poor decisions, including
repeatedly violating the restraining order against Robert, lying to the social
worker, driving under the influence of alcohol and shoplifting in the company
of a minor one month before the 12-month review hearing. Despite receiving services for more than two
years, Liliana did not resolve the problems that led to L.R.'s removal from her
custody, and she was not able to show she could make good decisions for L.R. or
provide for her safety, protection and well-being. Although Liliana's substance abuse counselor
had no concerns about unsupervised visits, other evidence indicated Liliana did
not take responsibility for her poor judgment and she did not understand the
consequences of her behavior. From this,
the court could reasonably find it was not in L.R.'s best interests to order
unsupervised visits for Liliana.
DISPOSITION
The petition is denied. The request for stay is denied.
IRION,
J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
name="_ftn1" title="">[1] Statutory references
are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Agency later
discovered Liliana pleaded guilty to driving under the influence of
alcohol. Her right to drive was
suspended for a year and her license was restricted for a year.
