N.A. v. Super.
Filed 6/20/12 N.A. v. Super. Ct. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SEVEN
N.A.,
Petitioner,
v.
THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS
ANGELES,
Respondent.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Real Party in
Interest.
B240635
(Super. Ct.
No. CK84908)
Writ
petition to review order setting hearing under Welfare and Institutions Code
section 366.26. Sherri Sobel, Juvenile
Court Referee. Petition denied.
Law
Office of Timothy Martella, Rebecca Harkness and Renelde Espinoza for
Petitioner.
No
appearance for Respondent.
John
F. Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel,
Peter Ferreira, Senior Deputy County Counsel for Real Party in Interest Los
Angeles County Department of Children and
Family Services.
_______________________________
Petitioner N.A. (Mother) seeks
Code, §366.26, subd. (l);
juvenile court’s order, made at the 12-month review hearing (§ 366.21, subd.
(f)), setting a hearing pursuant to section 366.26 to consider termination of
parental rights and implementation of permanent plans for three of her four
dependent children: then 16-year-old
I.A., 14-year-old C.C. and 13-year-old J.C.
On
October 28, 2010 the
Family Services (Department) filed a petition under section 300 to declare
Mother’s four children dependents of the juvenile court. The petition alleged Mother had physically
abused C.C., J.C. and E.M., failed to obtain timely medical treatment for an
injury suffered by J.C. and had a history of
In
its report for the detention hearing the Department stated it first became
involved with Mother’s family in January 2010, after J.C. arrived at school
with his right wrist wrapped in gauze and told school personnel his wrist hurt
but Mother had not taken him to the doctor because she did not have time. The school officials were unable to contact
Mother by telephone and suspected she might be using drugs. J.C. told the social worker he had fallen on
his arm. Mother denied she used drugs
and refused to take a drug test.
On
October 26, 2010 the
Department received a telephone call from the police indicating C.C. was afraid
to return to Mother’s home. C.C. told
the social worker that Mother was physically abusing her and J.C. and had put
C.C. out of the family home three months earlier. C.C. had been living with a neighbor; when
she returned to Mother’s house to get some clothes to go to school, Mother
began hitting her with a belt. C.C.
telephoned the police and, after a physical struggle with Mother, went outside
to wait for the police to arrive.
J.C.
told the social worker he suffered the
when Mother struck him with a broomstick.
J.C. also described a previous incident in which Mother hit him in the
chest with a “2 x 4 stick,†leaving an open wound, and another instance when
Mother hit him and E.M. with a bamboo stick.
E.M. described the incident in which Mother hit J.C. and him with a
bamboo stick and showed the social worker a mark on his leg that he said was
left by one of the blows. Mother denied
she had abused any of her children.
Mother’s
next-door neighbor told the social worker she had taken C.C. into her home
three months earlier when C.C. was put out by Mother. The neighbor also stated she had witnessed
Mother striking C.C. with a belt and J.C. with a stick. The neighbor added that Mother was crazy and
had spoken of ghosts coming out of her body.
On October 28, 2010
the juvenile court ordered the children detained in shelter care.
In
its jurisdiction and disposition report submitted November 19, 2010 the
Department stated C.C. had told the social worker Mother had been physically
abusing her almost daily since she was 11, sometimes leaving bruises and scars,
and also hit J.C. with sticks, a clothes hanger and a broom “plenty of
times.†C.C. added that Mother smoked
marijuana and drank alcohol every day.
J.C. told the social worker Mother hit him with a broom, a stick and a
belt, sometimes leaving scars and bruises.
E.M. told the social worker Mother regularly gave him “licks†with a
belt for misbehaving, and sometimes it was up to 20 “licks.†E.M. added he had seen Mother smoking
marijuana many times.
On
January 6, 2011 Mother pleaded no contest to an amended petition alleging she
had used inappropriate physical discipline on C.C., J.C. and E.M., placing all
of the children at risk of harm. At the
disposition hearing held immediately thereafter, the court ordered the
Department to provide reunification services for Mother and ordered Mother to
attend anger management group counseling and parenting classes, as well as
conjoint counseling with the children when appropriate. The court continued the matter to
July 7, 2011 for the six-month review hearing (§ 366.21, subd. (e)).
In
its report for the six-month review hearing the Department stated Mother had
failed to enroll in any of her court-ordered programs. Mother told the social worker that her
schedule did not allow time to attend any programs and suggested she did not
need to attend them in any event because she had appropriately disciplined her
children. The social worker had met with
Mother on a monthly basis, provided her with referrals for parent education
classes, anger management group counseling and individual counseling, provided
her with transportation funds, and emphasized the importance of enrolling in
the court-ordered programs. Mother
tested positive for cannabinoids on three occasions and failed to appear for
her seven other scheduled drug tests.
The social worker arranged for visits between Mother and the children;
but Mother visited the children only on a sporadic basis, and the visits were unsatisfactory.
The
Department further indicated in its six-month report that C.C.’s current
whereabouts were unknown and she had been arrested several times since her
placement for theft, burglary and solicitation of prostitution. E.M. had brought a butcher knife to school in
his backpack and threatened to kill anyone who tried to bully him. The Department recommended termination of
reunification services for Mother.
name="_ftnref3" title="">[3]
At
the six-month review hearing on July 7, 2011 the court released E.M. to his
father’s care with family maintenance services.
The court found the Department had provided reasonable reunification
services and also found Mother was not in compliance with her case plan. The court ordered continued family
reunification services and set the 12-month review hearing (§ 366.21,
subd. (f)) as to I.A., C.C. and J.C. for January 4, 2012.
In
its filing for the 12-month review hearing the Department reported, despite
repeated requests by the social worker, Mother had failed to provide proof that
she had enrolled in any of her court-ordered programs although she claimed to
have enrolled in a program in September 2011.
Mother continued to deny she had inappropriately disciplined the
children. C.C.’s whereabouts remained
unknown. J.C. was placed with a paternal
uncle. I.A. had recently turned 17 and
was receiving wraparound services.
name="_ftnref4" title="">[4] E.M. remained in his father’s custody and was
adjusting well. The Department
recommended the court terminate jurisdiction over E.M. and grant his father
full custody, and Mother’s reunification services as to the other children be
terminated.
At
the commencement of the 12-month review hearing on January 4, 2012, the court
noted that the proceedings were 14 months old.
Mother requested a contest.
The court continued the case to January 12, 2012 for a progress
hearing and to February 22, 2012 for the contested 12-month review
hearing.
In
an addendum report for the January 12, 2012 progress hearing the Department
chronicled the social workers’ efforts to obtain information from Mother
regarding her claimed participation in court-ordered programs. Mother had arrived for a meeting with the
social worker on November 16, 2011 without documentation showing her
participation in programs and instead engaged in a verbal confrontation with
the social worker. At a second meeting
on December 28, 2011 Mother stated she had completed all her programs but again
failed to provide documentation showing participation in any programs.
The
contested 12-month review hearing was held on February 22, 2012. After the court admitted the Department’s
reports into evidence, Mother testified she had completed 21 or 22 weeks of a
26-week anger management program and had learned from the classes to think before
acting and to remain calm and control her emotions. The court interrupted Mother’s testimony to
inquire whether C.C. or J.C., who were present in court, wished to return to
Mother’s care. Counsel for the two children
replied, “Neither one do [sic].
Strongly, strongly, I can’t say it strongly enough.†Mother then testified she had not enrolled in
parenting classes because her referrals came late and she was not given
transportation assistance, and she did not enroll in a counseling program
because she did not think it was necessary.
Mother added she had not visited with J.C. because he was placed too far
away and she had not received transportation funds during the previous four
months. Mother explained, although the
social worker informed her that transportation funds were available, the social
worker did not tell her “when to come get it.â€
Mother
also testified she had not spoken with C.C. on the telephone or visited with
her because she did not have a relationship with C.C. Mother stated she was willing to participate
in conjoint therapy with her children “if it’s convenient,†explaining her
attendance at cosmetology school took up most of her time. Mother added she had not worked for two years
because she became depressed after a friend was killed by police and because
she was having problems with her children.
At the conclusion of testimony
counsel for the Department requested that the court terminate reunification
services for Mother. Counsel noted the
Department’s report for the six-month review hearing documented the various
program referrals and transportation funds provided to Mother by the social
worker and outlined the social worker’s multiple reminders to Mother of the
importance of enrollment in her court-ordered programs. Counsel further observed Mother had made no claim
at the six-month hearing that the Department was not providing adequate
services, nor had she mentioned any impediment to her compliance with her case
plan.
Counsel
for I.A., C.C. and J.C. joined in the Department’s request to terminate
reunification, citing Mother’s failure to enroll in programs, her failure even
to communicate with C.C., and her very limited contact with J.C. and I.A. Counsel also stressed that none of the three
children wished to maintain a relationship with Mother.
Counsel
for Mother argued that she was entitled to additional reunification services,
citing Mother’s testimony that she was participating in one program and
insisting the Department’s reunification services had been insufficient.
After
hearing argument, the court terminated reunification services and set the
matter for a hearing under section 366.26 as to I.A., C.C. and J.C. The court found that Mother had not made
significant progress in resolving the problems that led to the children’s
removal from her care and had not maintained regular and consistent contact
with her children, demonstrating Mother’s failure to take responsibility and
lack of interest in having a relationship with her children. The court observed Mother’s testimony
manifested deflection and blame and also noted the children stated absolutely
that they did not wish to return to Mother’s care. The court found by clear and convincing
evidence that the Department had made reasonable reunification efforts, adding
it “[did] not think there is an issue there at all.†The court also pointed out that less than
three months remained before the case reached the 18-month statutory limit for
reunification services, and found there was not a substantial probability I.A.,
C.C. or J.C. could be returned to Mother’s custody by the 18-month date.
Mother principally
contends the juvenile court improperly terminated reunification because there
was not substantial evidence to support the court’s finding the Department had
provided reasonable reunification services.
Mother further contends the court improperly shifted the burden of proof
to her at the 12-month review hearing regarding the issue of reasonable
services.
1.
Substantial
Evidence Supports the Juvenile Court’s Finding of Reasonable Reunification
Services.
We review the
juvenile court’s order finding that reasonable reunification were offered under
the substantial evidence standard. (
322, 329.)
might have been provided and the services that were provided are often
imperfect. The standard, however, is
whether the services provided were reasonable under the circumstances. (In re
Misako R. (1991) 2 Cal.App.4th 538, 547.)
Substantial
evidence supports the juvenile court’s finding the services offered to Mother
were reasonable under the circumstances of her case. (In re
Christina L. (1992) 3 Cal.App.4th 404, 416-417; In re Jasmon O. (1994) 8 Cal.4th 398, 434-425.) The record, as summarized above, establishes
the social worker immediately identified the problems that led to the loss of
custody, promptly provided Mother with referrals for her court-ordered
programs, and thereafter met with Mother in person on a monthly basis and urged
her to comply with her court-ordered treatment plan. The record further shows, notwithstanding the
social worker’s referrals and other efforts to assist her, Mother failed to
take advantage of the various services offered, claiming her schedule did not
permit her to enroll in treatment programs and insisting she had done nothing
wrong when she abused her children.
Mother urges the
social worker was derelict in failing to implement the court’s order for
conjoint counseling “when appropriate.â€
Mother suggests, although the order itself was impermissibly vague,
conjoint counseling at the earliest possible opportunity. While the order may not have been as explicit
as possible, by directing that conjoint counseling commence when it was
appropriate to do so, the court unmistakably intended such counseling would be
initiated only after Mother was making progress in her other treatment
programs. Yet, as of the six-month
review hearing, Mother had failed to enroll in any of her court-ordered
programs and even denied she had improperly disciplined her children. Under those circumstances, conjoint
counseling was not necessary or proper.
Indeed, Mother did not object to the court’s finding of reasonable
reunification services at the six-month hearing.
The record further
establishes the Department properly determined it was not appropriate to
commence conjoint counseling as of the 12-month review hearing. Mother had failed to provide documentation of
her enrollment in any court-ordered programs. When she met with the social
worker to discuss her progress, Mother instead verbally confronted the social
worker. Additionally, in her testimony
at the 12-month hearing Mother acknowledged she had made almost no effort to
visit or communicate with her children and stated she was then willing to
attend conjoint counseling only if it was convenient for her in light of her
schedule. In sum, substantial evidence
supports the court’s finding the Department provided reasonable reunification
services to Mother.
2.
The Juvenile
Court Properly Applied the Law Regarding the Issue of Reasonable Reunification
Services
Mother contends
the juvenile court improperly shifted the burden of proof to her on the issue
of reasonable reunification services at the 12-month review hearing. For this claim, Mother seizes on a statement
by the court on January 4, 2012 when it set the matter for a contested 12-month
review hearing: The court stated Mother
set the matter for a contest “to prove to me that [the Department’s position
is] inaccurate and that . . . the children should be returned to her or
she should get further services. . . .â€
The court did not
shift the burden of proof to Mother at the contested 12-month review hearing on
February 22, 2012. The court’s earlier
statement, made more than a month prior to the contested hearing, was an
attempt to explain to the family in simple terms what would occur at the
contested hearing. The record does not
indicate the court actually imposed burden of proof on Mother or otherwise
misunderstood the law at the contested hearing.
To the contrary, the court made appropriate findings of fact at the
hearing and properly applied established law in terminating reunification
services and setting the section 366.26 hearing.
The
petition is denied on the merits.
PERLUSS,
P. J.
We concur:
WOODS, J.
JACKSON,
J.
Welfare and Institutions Code.
juvenile court terminated jurisdiction as to 10-year-old E.M. and issued an
order granting sole physical custody to the father and joint legal custody to
Mother and the father.
