Filed 6/22/17 Sherrie L. v. Superior Court CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


SHERRIE L.,
Petitioner,
v.
THE SUPERIOR COURT OF ALAMEDA COUNTY,
Respondent;
ALAMEDA COUNTY SOCIAL SERVICES et al.,
Real Parties in Interest.



A150922

(Alameda County
Super. Ct. No. OJ15025195)

S.S. was sexually abused twice by her father (Father). After each incident, S.S.’s mother (Sherrie L.; Mother) let Father back in the family home. After Father was found back in the home the second time, he was arrested, convicted and incarcerated, and S.S. was removed from Mother’s care. After 18 months of reunification services, the juvenile court found S.S. could not safely be returned to Mother’s care, terminated her services, and scheduled a Welfare and Institutions Code section 366.26 permanency planning hearing. Mother filed a writ petition challenging the juvenile court’s decision, arguing there was insufficient evidence that S.S. would suffer physical or emotional detriment if returned to her care. We deny the petition.
I. BACKGROUND
On about July 4, 2014, when S.S. was 12 years old, Father entered her bedroom, put his hand under her clothes, and touched her vagina for three to five seconds. Father was drunk at the time. S.S. told an aunt about the incident and the information was passed on to Mother. Mother asked S.S. if she wanted Father to leave the home, and S.S. said no. Mother confronted and physically struck Father. She kicked him out of the home, but later allowed him to return. Mother did not report the incident to authorities.
On April 2, 2015, both Mother and Father were drinking. Father again entered S.S.’s room, lay on her bed, put his hand inside her underwear, and touched her vagina. S.S. told him to stop and get out. She did not tell Mother about the incident because she thought Mother would kick Father out of the home. S.S. got in a fight at school the next day and told school officials about the incident, which was then brought to the attention of Alameda County Social Services (Agency). Mother obtained a temporary restraining order against Father, took S.S. for a child abuse interview, and made preliminary arrangements for counseling for S.S. and herself (who was also a victim of childhood sexual abuse). S.S. told the Agency she wanted to stay with Mother. However, the social worker was concerned that Mother was ambivalent about keeping Father away from S.S. When S.S. asked Mother if she would see Father in mid-April for a special occasion, Mother “talked to [S.S.] about contacting [child protective services].” Also, Mother told the social worker S.S. had been “changing her story about the incident. . . . [S]he believes her daughter,” but “she wants her daughter to be sure of what she is reporting as it is very serious.”
On June 24, 2015, officers were sent to arrest Father on a warrant for sexual abuse charges (Pen. Code, § 288, subd. (a)) and located him in the family home with Mother and S.S. present. Father was incarcerated and S.S. was placed in protective custody. The Agency filed a juvenile dependency petition on behalf of S.S., alleging Mother failed to protect S.S. from sexual abuse, both parents had substance abuse problems, and Mother’s conduct suggested she was unlikely to comply with treatment (§ 300, subd. (b)); Father sexually abused S.S. on April 2, 2015, and on about July 4, 2014 (§ 300, subd. (d)); and Father was incarcerated and could not arrange alternative care for S.S (§ 300, subd. (g)). The court ordered S.S. detained on July 7, 2015.
Later in July 2015, S.S. said she felt safe at home with Mother and Father, and she did not believe Father would abuse her as long as he did not drink alcohol. S.S. felt she should be home to care for Mother, and she also wanted to return home so she could attend her old school. With Father’s incarceration, the Agency considered recommending S.S.’s return to Mother’s care; however, on about July 31, Mother was hospitalized for a physical illness. In its August 2015 disposition report, the Agency recommended removal. On September 23, the juvenile court sustained the petition, removed S.S. from the home, and granted reunification services to both parents.
In a February 2015 status review report, the Agency wrote that Mother had completed 12 weeks of substance abuse treatment classes and consistently tested clean on random drug tests. Mother was still recovering from her physical illness. She had attended four to six individual counseling sessions and three family counseling sessions with S.S. The family counselor reported that Mother seemed “super depressed” and needed coaching about not making inappropriate comments to S.S. about Father and about Mother’s personal stress. Mother admitted she initially did not believe S.S.’s allegations against Father and blamed S.S. for her removal, but said she had come to believe S.S. and was focused on protecting her. Mother said she realized Father would not be able to live in the home if released, but appeared to have mixed emotions about resuming a relationship with him. In conversations with the social worker, Father referred to Mother as “my lady,” “my fiancé,” and “my wife.”
S.S. visited Mother every weekend for the remainder of 2015. S.S. said she was not comfortable providing personal care to Mother, she felt stress about Mother’s illness, and she did not like hearing Mother talk about Father (Mother told S.S. she missed Father and looked forward to his release). S.S. was “torn between wanting to go back home and not trusting that [Mother] can keep her safe.” S.S. thought Mother did not believe her reports of abuse and would reunite with Father if he was released from jail. After December 2015, visitation became biweekly at S.S.’s request.
At the March 1, 2016 six-month hearing, the court adopted the Agency’s recommendations and continued S.S.’s removal, continued Mother’s reunification services, and terminated services for Father.
The Agency’s August 2016 status review report indicated that Mother was actively participating in individual and family therapy and seemed to be gaining insight into her parenting style. She continued to test clean in weekly drug tests. Her medical condition had improved, but neither Mother nor S.S. was comfortable with S.S. returning home before Mother became physically stronger. Visitation apparently had returned to a weekly schedule. S.S. no longer provided personal care for Mother during the visits. “There are times that [S.S.] would rather attend a social event with the other youth [at] her placement, and because of this she has requested to go[] back to bi-weekly visits; however, this change has not been made.” At the 12-month hearing on August 16, the court approved the Agency’s recommendation to continue S.S.’s removal and Mother’s reunification services.
According to a December 2016 status review report, the family counselor stated that Mother had made “great use of her sessions” and incorporated what she learned into her interactions with S.S. The social worker similarly opined that Mother seemed to have gained insight. S.S. was consistently resistant to weekly home visits because of conflicting social activities and dynamics in Mother’s home. S.S. reported that Mother was “distant” when S.S. was home, visits were stressful, she worried about Mother’s health, and she did not get along with an aunt who lived with Mother. Mother was frustrated with S.S. missing or arriving late for visits, which caused her to miss family therapy. The foster parent promised to solve a transportation problem that had interfered with S.S.’s timely arrival.
The Agency recommended termination of services for Mother. On the issue of detriment, the social worker wrote: “[S.S.] shows inconsistencies when trying to determine if she wants to return to [Mother’s] care. Initially, [S.S.] reported that she wanted to return, however[, she] has not wanted to go home every weekend. [S.S.] has recently reported that she does not feel emotionally or physically safe returning home. [She] reports feelings of stress when at home. She has stated that being at home is a reminder of the sexual molestation she suffered by [Father]. [She] reports that [Mother] is in regular contact with [Father] and that she believes that [Mother] will be with him when he is released from jail in two years. [She] also worries about [Mother’s] health.”
At a December 20, 2016 hearing, a contested 18-month review hearing was scheduled for March 22, 2017. In a March 2017 addendum report, the Agency again recommended termination of services for Mother. Although Mother continued to test clean and consistently made herself available for family therapy, family therapy had ended due to missed visits and S.S.’s resistance to participating. S.S. had refused to visit Mother for about a month after the December 20, 2016 hearing. She resumed biweekly visits on January 20, 2017. “[S.S.] initially reported that . . . [Mother] would ‘distance herself’ from [S.S.], staying in her bedroom and . . . they rarely spoke. This behavior by [Mother] made [S.S.] feel uncomfortable and like she was not wanted there. . . . [S]he and [Mother] did not spend much time talking about what happened at court.” In February 2017, both S.S. and Mother reported their visits had improved. In March 2017, “[S.S.] reported that the relationship between her and [Mother] has been better and she has thought that it might improve more if she were home. When the [social worker] asked [S.S.] if she had any concerns about returning home she . . . cited the inability to talk to [Mother] about the past and the abuse, as she feels that [Mother] still does not believe her about the abuse. The [social worker] reminded [S.S.] that family therapy is a safe place to have these conversations and reminded her that she has to be willing to attend and participate, instead of remaining silent as she did previously. Another major concern for [S.S.] is that she has the understanding that [Father] will be released from jail in either December 2017 or January 2018. [She] is still worried that [Mother] will allow [Father] to return to the home, placing her in danger of being abused . . . again. This is [S.S.’s] primary concern. [¶] . . . [S.S.] said she would be most comfortable remaining with her current caregiver and working to improve her relationship with [Mother].”
At the contested 18-month review hearing on March 22, 2017, the social worker testified that Mother had complied with the therapy, substance abuse treatment, medical treatment, and visitation parts of her case plan. The factual basis for the Agency’s recommendation was S.S.’s stated desire not to return home primarily because she was concerned about whether Father would enter the home after he was released from custody. S.S. also reported that in about December 2016 Mother mentioned wedding plans. The social worker did not know whether S.S. understood what parole conditions Father might have after his release. Mother had told the social worker at least twice that she did not plan to reunite with Father, but the social worker had never spoken to Mother specifically about her plans after Father’s release from custody.
The social worker testified that S.S. said she did not think Mother believed Father had abused her and did not feel she could talk to Mother about the subject without getting into trouble. Mother had told the social worker she was open to talking about the issue and would not get angry if S.S. brought up the subject. The social worker had encouraged S.S. to discuss the issue in therapy, but thought S.S. had not done so. S.S. said she did not feel she had a voice in the family therapy or that Mother was able to hear her, at least in part because Mother saw the same therapist for individual therapy. The social worker had discussed this issue with the therapist, who said she would try to draw S.S. out. Therapy, however, had terminated due to S.S. missing so many appointments. S.S. also told the social worker that visits with Mother were stressful because her emotional needs were not met, she felt unwanted in Mother’s home, and she and Mother often spent time in separate rooms. S.S. would cry when anticipating a visit and stress from the visits had negatively affected her academic performance.
The social worker testified S.S. should not be returned “[b]ecause she doesn’t feel safe and because it’s not clear. I know that [Mother] has stated she doesn’t have a relationship with [Father], however [S.S.] believes that [Mother] does and [S.S.] has given an indication of why she believes that . . . . And because there’s no certainty that there won’t be contact with [Father] . . . we can’t recommend . . . a return home if there’s a risk.” The social worker responded, “Yes,” when asked, “So it’s your testimony today that there’s still a risk to her safety?”
Mother testified that she believed Father had abused S.S. and she had never said or done anything to suggest otherwise. Mother would not resume a relationship with Father or let him in her home after he was released, and she would cooperate with the Agency to protect S.S. She never told S.S. she planned to marry Father after his release. She spoke to Father in jail shortly after he was incarcerated, but broke off their relationship about six months later. She said Father received a three-year sentence and was required to stay away from S.S. under a criminal protective order that would expire in June 2018.
Mother had not discussed her plans regarding Father with S.S. because her therapist told Mother she talked to S.S. too much about Father. Mother and S.S. only had four family therapy sessions. S.S. did not speak about Father in therapy, and Mother felt S.S. was hiding something. S.S. never expressed to Mother any concern about Father’s return, about not having a voice, or about feeling stressed or isolated in Mother’s home. During visits, Mother and S.S. watched movies, read or sang together, although S.S. would also go to her room sometimes and “shut off.”
The juvenile court found S.S. could not be returned to Mother’s care. “It was discussed that [S.S.] sometimes did not want to go to counseling. The Court finds that that’s reasonable. She doesn’t want to . . . if she’s going to counseling with someone who from the get-go doesn’t believe what she has to say about what happened. . . . [T]o say that this child is not believed I think shakes her very foundation. I don’t know how one gets [past] that. [¶] She’s had concerns all along that [Mother] will take [F]ather back once [he] gets out of jail. He was removed from the home previously. Mother allowed him back in. There was some discussion about [Mother] discussing wedding colors, which I can only imagine would be shocking to this child and would create a lot of fear in her. Sadly, she just doesn’t feel safe in [Mother’s] home at this time. . . . [I]t is a substantial risk to her physical and emotional well-being.” The court terminated Mother’s services and set a section 366.26 hearing for July 13, 2017. Mother filed a writ petition seeking to set the order aside.
II. DISCUSSION
Mother argues the juvenile court’s order must be reversed because there was insufficient evidence that S.S. would suffer detriment if returned to Mother’s care. We construe the court’s order as finding S.S. faced a risk of further sexual abuse by Father if returned to Mother’s care and conclude substantial evidence supports that finding. We affirm the order.
“The dependency scheme is based on the law’s strong preference for maintaining family relationships whenever possible. [Citations.] When a child is removed from parental custody, certain legal safeguards are applied to prevent unwarranted or arbitrary continuation of out-of-home placement. [Citations.] Until reunification services are terminated, there is a statutory presumption that a dependent child will be returned to parental custody. [Citation.] As relevant here, section 366.22, subdivision (a) requires the juvenile court at the 18-month review hearing to return the child to the custody of the parent unless it determines, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment to the child’s physical or emotional well-being.
“The Agency has the burden of establishing detriment. (§ 366.22, subd. (a); [citation].) The standard for showing detriment is ‘a fairly high one. It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.’ [Citation.] Rather, the risk of detriment must be substantial, such that returning a child to parental custody represents some danger to the child’s physical or emotional well-being. [Citations.]
“In evaluating detriment, the juvenile court must consider the extent to which the parent participated in reunification services. (§ 366.22, subd. (a); [citation].) The court must also consider the efforts or progress the parent has made toward eliminating the conditions that led to the child’s out-of-home placement. (§ 366.22, subd. (a); [citation].)
“This court views the record to determine whether substantial evidence supports the court’s finding that [S.S.] would be at substantial risk of detriment if returned to [Mother’s] custody. [Citation.] In so doing, we consider the evidence favorably to the prevailing party and resolve all conflicts in support of the trial court’s order. [Citation.] ‘Substantial evidence’ means evidence that is reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. [Citation.] In the absence of substantial evidence showing such detriment, the court is required to return the minor to parental custody.” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400–1401.)
Because Mother relies heavily on In re Yvonne W. to support her argument that insufficient detriment was shown in this case, we review the facts of that decision. Eleven-year-old Yvonne was removed from her mother’s (Celeste’s) care based on findings that Celeste smoked marijuana, her boyfriend sold crack cocaine from the family home, and cocaine base and marijuana were found in the home. Celeste participated in residential drug treatment and random drug testing, completed a parenting class, participated in therapy, and had successful overnight and weekend visits with Yvonne. About six months into the reunification period, Celeste had a baby and struggled to find housing, but by the 18-month hearing she had found shelter housing where she could stay for two years with the baby and Yvonne. (In re Yvonne W., supra, 165 Cal.App.4th at pp. 1397–1398.) “Yvonne complained that she sometimes felt uncomfortable visiting Celeste at the shelter and that she often felt sick after visits. Celeste reported that Yvonne sometimes had a negative attitude toward people at the shelter and appeared to ‘look down’ on them. Yvonne expressed her fear of being homeless. She was addressing these and other concerns in therapy. [¶] In the social worker’s opinion, there was a risk to Yvonne if she were returned to Celeste’s care too soon.” (Id. at pp. 1398–1399.) The juvenile court found that “returning Yvonne to Celeste’s custody would create a substantial risk of detriment to Yvonne’s physical and emotional well-being because Yvonne had expressed fear, anxiety and unhappiness with Celeste’s living arrangement.” (Id. at p. 1399.)
The Court of Appeal reversed. “[N]othing in the record shows that conditions at the shelter pose a risk of harm to Yvonne in any identifiable way. . . . A child’s dislike of a parent’s living arrangement, without more, does not constitute a substantial risk of detriment within the meaning of section 366.22, subdivision (a).” (In re Yvonne W., supra, 165 Cal.App.4th at p. 1401.) “The Agency’s desire for more time beyond the 18-month review hearing, to ensure a smooth transition for Yvonne’s return to Celeste’s custody, is contrary to the legislative presumption that a minor will be returned to parental custody no later than the 18-month date, absent a showing of substantial detriment.” (Id. at p. 1403.)
Analogizing this case to In re Yvonne W., Mother argues: “In the present case, the risk of emotional harm is even more removed, [as] it is fear of what may happen when [Father] is released from jail.” (First italics added.) However, the juvenile court here explicitly found a substantial risk of detriment to S.S.’s emotional and physical well-being. We read the court’s ruling to find that a specific and identifiable safety risk (i.e., further sexual abuse by Father) prevented S.S.’s return to Mother’s care. Accordingly, In re Yvonne W. is not on point.
The juvenile court expressly found it was reasonable for S.S. to refuse to attend counseling “with someone who from the get-go doesn’t believe what she has to say about what happened,” and that Mother had recently “discuss[ed] wedding colors”—i.e., findings reflecting the court’s view that Mother did not actually believe Father abused S.S. and that Mother was not committed to keeping Father out of the family home. Thus, we infer the court found a substantial risk that Mother would let Father back into her home and fail to protect S.S. from further abuse.
Substantial evidence supports this finding that Mother was not committed to protecting S.S. from future sexual abuse by Father. First, the social worker opined that S.S. faced such a risk. (See In re Luke M. (2003) 107 Cal.App.4th 1412, 1427 [social worker’s opinion may be substantial evidence of detriment].) Although the bulk of the social worker’s testimony addressed S.S.’s emotions more generally (her fears about returning home or her discomfort with Mother), the social worker also testified that the potential detriment was “if [Father] was allowed back in the home that she would be abused again.” The social worker further testified S.S. should not be returned “[b]ecause [S.S.] doesn’t feel safe and because it’s not clear. I know that [Mother] has stated she doesn’t have a relationship with [Father], however [S.S.] believes that [Mother] does and [S.S.] has given an indication of why she believes that . . . . And because there’s no certainty that there won’t be contact with [Father] . . . we can’t recommend . . . a return home if there’s a risk. [¶] Q. So it’s your testimony today that there’s still a risk to her safety? [¶] A. Yes.” (Italics added.) Additionally, as the court noted in its oral ruling, Mother had a history of allowing Father back in the home after prior incidents of abuse.
Second, the juvenile court could reasonably credit S.S.’s own assessment of her safety in Mother’s care. From the first status review report, the Agency reported S.S.’s concerns about Mother’s plans to reunite with Father and whether Mother would protect her from future abuse by Father. S.S. provided specific reasons to explain her apprehension: Mother’s statements about missing Father; Mother making wedding plans as recently as December 2016; and S.S.’s feelings, inferably responsive to Mother’s conduct, that Mother was angry with her for not choosing to return home, that she was not free to discuss the abuse with Mother, and that Mother did not believe her reports of abuse.
Finally, the juvenile court, sitting in the best position to evaluate Mother’s demeanor on the witness stand, clearly disbelieved Mother’s testimony at the 18-month hearing and could reasonably draw negative inferences from that failure of credibility. (See In re Alvin R. (2003) 108 Cal.App.4th 962, 974 [“[w]e must accept the juvenile court’s assessment of [a witness’s] demeanor, its resolution of his credibility, and the reasonable inferences it has drawn as a result”].) Mother did not satisfactorily explain why she had not affirmatively reassured S.S. that she would be protected after Father’s release. For example, when Mother admitted she had never talked to S.S. about her intentions regarding Father after his release, the court directly questioned her: “THE COURT: Why is that? [¶] [MOTHER]: I had a problem at first with [S.S.] as trying to be a friend, discussing too much of my business with her. So I avoided that, discussing personal things with her. [¶] THE COURT: But if you know that she’s afraid of him and she thinks that you’re going to resume a relationship with him do you think that telling her that you are not planning to do that would be helpful?” “Yes” was Mother’s only response. When asked what she had done to make S.S. feel safe, Mother simply testified: “Completed drug therapy, alcohol therapy; talking to her more.” Mother did not testify that she felt empathy for S.S.’s anxiety around the issue or understood why S.S. might find it difficult to discuss the subject. Mother only said that she thought S.S. was hiding something when S.S. did not talk in therapy, and claimed to have never given S.S. reason to think she did not believe the reports of abuse, despite having previously admitted initial disbelief to the social worker. If Mother had not demonstrated belief in S.S.’s reports of abuse and a commitment to protect S.S. after 18 months of services, the court could reasonably find she would not do so in the foreseeable future.
We acknowledge no evidence suggests Father would be released from custody before December 2017. Thus, there was no immediate risk that S.S. would have been abused by Father if returned to Mother’s care in March 2017. However, Mother had already received an 18 months of reunification services, six months beyond the norm (see § 361.5, subd. (a)(1), (3)), and just a few months before the absolute maximum of 24 months of services (see § 361.5, subd. (a)(4)). Juvenile dependency proceedings should not be unnecessarily prolonged, depriving the minor of permanence and stability. (See In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788 [“the Legislature has determined a child’s need for stability and security within a definitive time frame becomes paramount”].) The juvenile court did not abuse its discretion in setting a section 366.26 hearing.
III. DISPOSITION
The petition is denied on the merits. (§ 366.26, subd. (l)(1)(C); Cal. Rules of Court, rule 8.452(h).) The request for a stay of the July 13, 2017 section 366.26 hearing is denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
 



_________________________
BRUINIERS, J.


WE CONCUR:


_________________________
JONES, P. J.


_________________________
NEEDHAM, J.


























A150922