S.D. v. Superior court

Filed 6/11/10 S.D. v. Superior court CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

S.D. (petitioner), the mother of M.D. (the minor), seeks an extraordinary writ to vacate the orders of the juvenile court terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26.[1] (Cal. Rules of Court, rule 8.452.)[2] Petitioner raises numerous contentions but, for the most part, has failed to support these with legal authority. We reject her contentions on this basis, with the exception of her claim that there was insufficient evidence to support the juvenile courts finding that she had not made substantive progress in reunification services. As this claim is resolved predominantly by a review of the facts, which petitioner has cited in her petition, we reach the merits of this claim, albeit adversely to her. Accordingly, we shall deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2009, a petition was filed by the Sacramento County Department of Health and Human Services (the Department) regarding the three-and-one-half-month-old minor. The minors two siblings (ages one and-one-half and six years) were the subjects of an ongoing dependency proceeding based in part on the parents domestic violence issues, during which petitioner completed services that included parenting education and anger management.[3] Shortly before the filing of the petition concerning the minor, petitioner reunified with the minors siblings with an order that the father was not to be present in the home. Soon after, it was learned that the father had been living in the home and that petitioner was preparing to move to Florida with the children to live with the father. In addition, according to the jurisdictional report, at the time of removal, the home and the children were filthy, and the children all exhibited hygiene problems.

Petitioner denied there had been any domestic violence incidents with the father since 2007 or that any of her children were ever present during these incidents, which she claimed had occurred only twice. Both parents also denied that petitioner planned to live with the father when she moved to Florida.

At the jurisdictional hearing in May 2009, petitioner submitted the matter on the social workers report, and the juvenile court sustained the allegations in the petition and ordered services for petitioner, to include a domestic violence program and counseling.

In September 2009, the minors attorney filed a request to change the courts order granting reunification services because services with the minors siblings had been terminated earlier that month.

Two weeks later, petitioner filed for a restraining order against the father.

According to a status review report filed in January 2010, petitioner had completed her most recent domestic violence program and was reported to be an honest, open and . . . active member of the class. She also attended individual counseling twice a week, and her therapist reported she was making a great effort to change and improve her life for herself and her children. Her visits with the minor were positive.

Nonetheless, the social worker felt that petitioners ability to protect the minor was unreliable based on her past dishonesty and poor judgment with regard to protecting her children from domestic violence.

At the review hearing in February 2010, petitioners attorney requested a continuance because, four days earlier, she received discovery from the minors attorney consisting of several visitation logs that contained evidence suggesting the parents had continued to have contact with each other. Petitioners attorney wanted a continuance in order to obtain all of the visitation logs for purposes of cross-examination. The juvenile court denied the request for a continuance, concluding there was nothing to indicate the remaining visitation logs would have any information bearing on whether the parents continued to have contact with each other, and that, in any event, the visitation logs had been available to petitioner all along.

Petitioner testified she had not had contact with the father since March 2009. She again maintained that the only domestic violence that had occurred with the father was in January and May 2007 when she was pregnant with one of the minors siblings and the other sibling was not present. Initially, she testified there were a total of three incidents of physical violence during that period, but later claimed there had been only two physical incidents. She acknowledged two other incidents had occurred during which the father destroyed property and also that he was verbally abusive to her, sometimes in the presence of the children. Petitioner testified she had filed for divorce from the father in March 2008 and reinitiate[d] the process again after she broke up with the father, but the divorce was not yet final because she had been busy looking for a job and attending school, and it was a long process coming down to the courthouse. Petitioner still had tattoos bearing the fathers name and initials, which she said she could not afford to have removed.

Petitioner admitted that, until February 2009 when the children were removed again, she had been dishonest with everybody, including the court, about having ended her relationship with the father, despite having completed a domestic violence program and being able to explain how the cycle of violence worked. She admitted she lied about whether she was living with the father and acknowledged the father had kept his belongings elsewhere to prevent his presence from being detected.

Petitioner testified she took pictures of the minor and one of her siblings dressed as a Santa two days before Christmas, which she shared with family members, including e-mailing the picture to the paternal aunt in Florida. She was shown a printout of the picture posted on the fathers MySpace page on December 23 and stated that he could have gotten it from the paternal aunt. She denied she had contact with the father on MySpace.

A visit supervisor testified that, even though the parents visits were separate, they sometimes brought gifts for the children that appeared to be coordinated, such as different parts of a matched outfit or identical food items, which led her to believe they were having contact with each other. Petitioner denied she had ever communicated with the father about the type of gifts the children would like.

A domestic violence counselor testified that petitioner was an active member of her group and that her participation added to the class. The counselor did not believe that petitioner was just say[ing] the right things but not making the actual changes.

The social worker testified that, in addition to the services already noted, the Department had referred petitioner to individual and group meetings at Codependents Anonymous as a result of concerns that petitioner had issues with boundaries and limit setting. The social worker stated that she was recommending termination of services based on the history of this case and the history of the minors siblings and also based on the concerns about petitioner having continued contact with the father.

The juvenile court terminated services and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minor. The court found it could probably say petitioner had regularly participated in services but concluded she had not made substantive progress, based on her past history of dishonesty and the circumstantial evidence that she continued to have contact with the father. The court stated that petitioner could not be believed due to her history of lying, minimization and denial about her relationship with the father, and the amount of domestic violence that had transpired.

DISCUSSION

I

Petitioner claims the juvenile court erred by finding she had not made substantive progress in services because there was direct evidence from the service providers that she had benefitted from services, and the information that the parents were in contact was conjecture . . . . We conclude substantial evidence supports the juvenile courts finding.

Section 366.21, subdivision (e) provides in part: If the child was under three years of age on the date of the initial removal . . . 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.

Although petitioners current service providers attested to her active participation in services, petitioner previously completed reunification services with similarly glowing evaluations from her service providers, resulting in the return of the minors siblings to her care. As it turned out, the progress previously made by petitioner was illusory, as she had clandestinely maintained her relationship with the minors father while convincing service providers, social workers and the court that she had made sufficient progress to warrant return of her children. Thus, in order to demonstrate substantive progress following the minors removal, petitioner needed to do more than impress her service providers with her participation and compliance in services, as this would not constitute a change from her status prior to the childrens most recent removal.

Petitioner argues that the social workers opinion regarding petitioners lack of progress did not provide substantial evidence to support the juvenile courts finding, as the social worker was not able to cite any examples to show petitioner had failed to benefit from services and, instead, relied on petitioners prior history with the minors siblings to support her recommendation. We note that the social worker also cited the concerns that petitioner continued to have contact with the minors father as a basis for her recommendation.

In any event, the social workers ability to articulate the reasons for her recommendation is not the issue before us. Rather, we must determine whether substantial evidence supports the juvenile courts finding regarding petitioners lack of substantive progress. The juvenile court relied on evidence suggesting petitioner continued to have contact with the father as well as petitioners minimization of the domestic violence that had occurred in her relationship with the father. This evidence supported the conclusion that petitioner had not made substantive progress since the minors removal from her care.

Petitioner contends the evidence that she was in contact with the father was speculative because she had an explanation as to how the father might have come into possession of the photograph she took of the children, and the testimony regarding the similarity of items brought to visits by the parents was frequently contradicted by other evidence, such as the visit monitors own notes.[4] These contentions go to the weight to be given the evidence before the juvenile court, and [i]ssues of fact and credibility are questions for the trial court and not the reviewing court. (In re Christina T. (1986) 184 Cal.App.3d 630, 639.) The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact. (Ibid.)

Thus, the juvenile court, as the arbiter of credibility, was not required to accept petitioners explanation regarding how the father came into possession of the photograph she took of the minor and her sibling. The evidence suggested that the photograph was posted on the fathers web page on the same day it was taken supporting the inference that the father received the photograph directly from petitioner. Petitioners history of dishonesty provided ample cause for the court to disbelieve her alternate explanation.

Petitioner also asserts that the visit supervisors testimony regarding the apparent coordination of items brought by the parents to visits was frequently contradicted by other evidence, rendering it not very compelling. These asserted contradictions include the fact that, on one occasion, the coordinated items brought by the parents were on visits that occurred six days apart rather than one day apart, as the visit supervisor initially testified, and that the food items brought by both parents were Lunchables, which she claims are a common childrens lunch item.[5] Nothing about these so-called contradictions compelled the juvenile court to disregard the inference that the parents continued to have contact with each other, which was raised by the similarity of items they brought to visits.

Additional evidence corroborates the finding that petitioner had not made substantive progress. She still had not obtained a divorce from the father. She applied for a restraining order against him only after the minors attorney petitioned to terminate her services with the minor. She continued to wear tattoos bearing the fathers name. The father somehow had obtained information about a court case involving the maternal grandmother. In addition, petitioner moved shortly before the review hearing without notifying the social worker and was unable to provide her address when she testified. As the minors removal was precipitated by petitioner secretly living with the father, this last circumstance was particularly concerning.

In sum, we conclude substantial evidence supports the juvenile courts finding that petitioner failed to make substantive progress in her case plan. Accordingly, we reject her claim to the contrary.

II

Petitioners remaining contentions are that the juvenile court erroneously denied her request for a continuance, abused its discretion by admitting into evidence a copy of the fathers MySpace page, used the wrong standard to determine if she had benefitted from services, and erred in finding she was offered reasonable services. The Department responds that we should deny these claims because petitioner has failed to support her arguments with legal authority.

An extraordinary writ challenging a juvenile courts termination of reunification services must be accompanied by points and authorities that, at a minimum, adequately inform the court of the issues presented, point out the factual support for them in the record, and offer argument and authorities that will assist the court in resolving the contested issues. (Rule 8.452(b)(2); Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583.) Although dense with factual citations, petitioners writ petition is decidedly lacking in legal authority for the points she raises. [O]ur duty to closely review a [former] rule 39.1B [now rule 8.452] petition and its supporting record for reversible error does not relieve the petitioners attorney from his obligation to present an adequate record, argument, and points and authorities. (Cheryl S. v. Superior Court (1996) 51 Cal.App.4th 1000, 1005.) Consequently, we deny petitioners remaining claims for failure to provide any legal authority in support thereof.

DISPOSITION

The petition for extraordinary writ is denied.

BLEASE , Acting P. J.

We concur:

HULL, J.

ROBIE , J.

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[1] Further undesignated statutory references are to the Welfare and Institutions Code.

[2] Further rule references are to the California Rules of Court.

[3] The older sibling has a different biological father than the minor and her younger sibling.

[4] The visitation logs in question have not been made part of the record before this court.

[5] Petitioner refers to other asserted contradictions in the visit supervisors testimony that were referred to during her argument to the court following the presentation of evidence. However, as the parties arguments are not evidence and the visitation logs are not part of the record before us, we are unable to consider these claims.