Filed 1/3/18 V.C. v. Superior Court CA4/3






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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


V.C.,

Petitioner;

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

ORANGE COUNTY SOCIAL SERVICES AGENCY et al.,

Real Parties in Interest.






G055433

(Super. Ct. Nos. 16DP0012, 16DP0013)

O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Katherine Lewis, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition denied.
Juvenile Defenders and Donna Chirco for Petitioner.
No appearance for Respondent.
Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.
Law Office of Harold LaFlamme and Jess Ann Hite for Real Parties in Interest R.M. and A.M.
* * *
INTRODUCTION
V.C. (Mother) is the mother of now nine-year-old R.M. and now eight year-old A.M. (collectively, the children). The children were taken into protective custody in January 2016. In September 2017, the juvenile court held an 18 month review hearing after which the court found that the return of the children to Mother would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being within the meaning of section 366.22, subdivision (a)(1) of the Welfare and Institutions Code. (All further statutory references are to the Welfare and Institutions Code unless otherwise specified.) The court terminated reunification services and set the matter for a permanency hearing under section 366.26. The permanency hearing is scheduled for January 4, 2018.
Mother filed a petition for a writ of mandate challenging the court’s order. She argued the juvenile court erred by finding that the return of the children to Mother would create a substantial risk of harm to the children. We deny the writ petition. Substantial evidence supported the court’s finding, which the court explained in detail at the 18-month review hearing, that the children were at substantial risk of detriment to their safety, protection, or physical or emotional well-being if returned to Mother’s care.




BACKGROUND
I.
THE JUVENILE DEPENDENCY PETITION
In January 2016, the Orange County Social Services Agency (SSA) filed a juvenile dependency petition (the dependency petition) on behalf of then seven-year-old R.M. and then six-year-old A.M., alleging the children came within the jurisdiction of the juvenile court under section 300, subdivision (b) (failure to protect). The following summarizes the allegations.
The children were taken into custody in January 2016 after their father S.M. (Father), with whom they lived, drove the children and other family members in his car while he was intoxicated. Father lost control of the vehicle, causing the vehicle to roll over. Although there were eight occupants, there were only five seatbelts in the vehicle.
R.M. suffered abrasions all over her body, a large laceration to the right side of her skull, and a fracture to her left wrist. A.M. suffered a closed fracture to his left femur, a fracture to his left hip, road rash on his back, and a “minor occipital hematoma.”
Father had a history of substance abuse including but not limited to the abuse of alcohol; in June 2010, he had been arrested for suspicion of driving under the influence of alcohol or drugs and his driver’s license was suspended due to his excessive blood alcohol level. Father also had a history of engaging in domestic violence; he was arrested in May 2009 for suspicion of committing battery against a spouse or cohabitant in violation of Penal Code section 243, subdivision (e)(1).
Father remained incarcerated at the time the dependency petition was filed and therefore could not provide for the care, protection, and support of the children. Mother lived in Mexico and was unable to obtain a visa to travel to the United States. She was not otherwise able to care for the children at the time the dependency petition was filed.
II.
SUMMARY OF SSA’S JURISDICTION AND DISPOSITION HEARING REPORT
AND ADDENDUM REPORTS
In the jurisdiction and disposition report dated February 2, 2016 and subsequent addendum reports, SSA reported that the children were placed with their paternal great aunt and uncle in Barstow, California.
The reports also contained the following information.
Father remained incarcerated and Mother resided in Mexico. Mother stated that she would like the children to come live with her and that she would be able to provide for them at her home in Jalisco.
The children, however, were happy with their placement with their great aunt and uncle, who wished to continue providing care for them. The children also stated they wanted to ultimately live with Father, with whom, the social worker observed, the children shared a strong bond; it was evident to the social worker they missed him very much.
The children were adamant that they did not want to live with Mother based on their experience living with her in Mexico years before. Mother reported that she and Father were living in California (where the children were born) when Father was arrested and deported in 2011 or 2012. Mother stated she was afraid of “being alone” in the United States and wanted to be a family again, so she returned to Mexico with the children. She further stated that because Father became “more violent” in Mexico, she left him and had not heard from him for two years. Meanwhile, the children lived with Mother.
The children unequivocally reported to the social worker that they did not want to return to Mother’s care because, as A.M. reported, Mother “didn’t treat us that good” when they lived with her in Mexico. Mother left them alone at night without supervision and failed to provide them with appropriate care. A.M. stated “I don’t want to live like that again. I know she will treat us like that again.”
Mother reported that, after not hearing from Father for two years, he contacted her to ask for forgiveness and the opportunity to talk to the children. He asked her to send the children to him for one month. She stated she agreed to send the children to Father in the United States, notwithstanding her knowledge of Father’s domestic violence and substance abuse issues. She stated she thought he was no longer consuming alcohol and was a changed man; the record does not explain the basis for Mother’s beliefs. Mother stated that Father did not return the children and threatened that if she did not get back together with him, she would never see them again. Father claimed that Mother lied and that she sent the children to him because she did not want to take care of them anymore.
Mother’s neighbors, wishing to remain anonymous, reported that Mother enjoyed drinking with her current partner and that, when she had the children living with her, she sometimes left them alone at home to go out and party. Mother denied leaving the children home alone without a babysitter and stated she worked at night.
Although the juvenile court ordered liberal visitation with Mother when she visited the United States and also authorized liberal phone calls and Skype communications with Mother, Mother’s calls to the children were brief. On one occasion, the children told the caregiver that they did not want to talk to Mother because she sounded like she was drunk and she was yelling at them.



III.
THE COURT SUSTAINS THE AMENDED DEPENDENCY PETITION
The dependency petition was amended to allege that Mother failed to protect the children when she sent the children to live with Father for one month despite Father’s previous history of domestic violence and Mother’s knowledge of his substance abuse problem. In addition, the dependency petition was amended to allege that R.M. reported being left alone in Mother’s home with A.M. and a young cousin.
At the jurisdiction hearing, Mother’s and Father’s attorneys submitted on the amended dependency petition. The juvenile court found the allegations of the amended dependency petition true by a preponderance of the evidence, bringing the children within the provisions of section 300, subdivision (b).
At the disposition hearing, the court declared the children dependent children of the court, found that to vest custody of the children with Mother or Father would be detrimental to the children, and vested custody with SSA. The court also ordered reunification services for both Mother and Father.
IV.
SUMMARY OF SSA’S FURTHER STATUS REPORTS FILED BEFORE THE
12-MONTH REVIEW HEARING; AT THE 12-MONTH REVIEW HEARING, THE JUVENILE COURT DOES NOT CHANGE ITS ORDERS AND SCHEDULES AN 18-MONTH REVIEW HEARING.
In a status report dated June 7, 2016, SSA reported Mother had moved again to Jalisco, Mexico. An August 2016 status report stated Mother was attending a parenting program and therapeutic sessions with a psychologist; Mother was described as punctual and “committed.”
A September 2016 status report stated that the children remained happy in their placement, wanted to live with Father, and did not want to live in Mexico. In that same report, the social worker reiterated that Mother was participating in some court ordered services but also expressed concern because “it is difficult to ascertain if the mother demonstrates new skills consistent with case plan objectives, such as showing her ability to understand her children’s feelings and give emotional support because the mother resides in Mexico and has no in-person contact with the children.” The report also noted Mother calls the children “occasionally.”
In a November 2016 report, the social worker stated a monitored, in-person visit between Mother and the children occurred near the United States/Mexico border in October 2016.
In a February 2017 report, the social worker stated that Mother was working in Jalisco, Mexico as a caregiver for an elderly person. Father had been released from jail and deported to Mexico. Neither Mother nor Father had legal status in the United States. The social worker reported that Mother’s and Father’s compliance with their case plans were moderate.
The social worker also reported that Mother maintained “sporadic telephonic contact with the children,” calling them once every other week. Mother had two in-person visits with the children. R.M. stated she wanted to “see the judge and tell him I don’t want to live with my mom and I want to live with my dad.” R.M. stated she did not think Mother was a good parent as Mother appeared to care only about herself. The children reported feeling happy in the care of their aunt and uncle. They further reported they want to reside with Father in the future and that they do not want to live with Mother. R.M. said she would run away from home if she were required to live with Mother.
In a report dated March 16, 2017, the social worker stated that the children’s paternal great aunt/caregiver reported concerns about the children’s behaviors since they visited Mother. The children started to have nightmares. They refused to talk to Mother on the telephone. The social worker met with R.M. who told the social worker that she wants to tell the judge she does not want to live with Mother because her Mother “evil.” R.M. said she meant that Mother was “really really bad.” The social worker also met with A.M. who told her he was having bad dreams almost every day. The social worker learned details about the nightmares and stated they featured Mother in a “predator” role.
The social worker also met with the paternal great aunt who “indicated the mother is not very ‘loving’ during her telephone contact and she believes the children may react to her ‘cold’ nature.”
The social worker stated that she believed “the family needs more time for the children and the mother to establish a more positive relationship and for the children to process any negative memories they have of the mother. Currently, the undersigned believes it is not in the children’s best interest to reunify with the mother, as they present with emotional concerns.” Notwithstanding the social worker’s statements, the recommendation portion of the report did not state SSA’s recommendation but referred the court to SSA’s earlier report, dated February 23, 2017, in which SSA recommended the court find that the return of the children to the parents would create a substantial risk of detriment to the children’s physical or emotional well-being. SSA also recommended that the court find that there was a substantial probability that the children would be returned to the physical custody of their parents by the 18-month review hearing.
In another March 2017 addendum report, the social worker stated that Mother had moved to Tijuana and was working as an inspector in the night shift for a company. In still another March 2017 addendum report, the social worker noted that a scheduled in-person border visit between Mother and the children was cancelled because the children refused to attend the visit.
At the 12-month review hearing, as recommended by SSA, the juvenile court found that under section 366.21, subdivision (f), return of the children to Mother and Father would create a substantial risk of detriment to the children’s safety, protection, or physical or emotional well-being. The court ordered the case continued for an 18-month permanency review hearing.
V.
SUMMARY OF SSA REPORTS FILED BEFORE THE 18-MONTH REVIEW HEARING
In a June 2017 report, the social worker stated that Mother moved a third time during the pendency of this case, this time from Tijuana back to Jalisco, Mexico. Mother stated she was working at a restaurant and at a ranch taking care of the animals and the land. Mother again in a romantic relationship and was living with her boyfriend.
The report stated that although Mother had successfully completed individual therapy and a parent education program, she had been unable to demonstrate she could understand the children’s feelings and give them emotional support and use the tools she had learned. The social worker requested that, given the concerns triggered by Mother’s prior home study and in particular her neighbors’ comments about the environment in which the children were living with her, a new home study should be conducted.
The children continued to decline visits with Mother and stated they did not want live with her. The children continued to reside with their great aunt and uncle, with whom they had been placed in January 2016. The social worker stated the caregivers provided a safe, stable, and caring environment for the children.
In August 2017, the social worker reported that an updated home study showed that Mother had been living with her partner for eight months in his three-bedroom house, which had running water, electricity, and a drainage system. Mother was “dedicated to field work,” in which she feeds her partner’s livestock “so that they can gain weight and sell them.”
In the report, SSA recommended that the children be returned to Mother’s custody.



VI.
THE 18-MONTH REVIEW HEARING
Both R.M. and A.M. testified at the 18-month review hearing. R.M. testified she knows Mother does not love the children like Father loves them. She stated when she sees Father’s face, she knows he loves them but Mother has “a different face, gets [her] scared.” R.M. testified she has nightmares about Mother killing the children and had one such nightmare the day before the hearing. She testified Mother hit her weekly with a belt or with her hand when she lived with her. She testified that Mother used to go out with “boys, different ones every single time.” She remembered more than one occasion when Mother left her alone without a parent which made her feel scared.
R.M. stated she thought Mother was more focused on herself because she spent money on painting her hair and nails, which R.M. thought costs a lot of money, when the children were without shoes or clothes. R.M. said “we barely had clothes.” She stated she believed Mother sent the children to California to be with Father because she could not take care of them and R.M. stated she did not think Mother was capable of caring for them now. R.M. also feared that Mother would keep her from Father.
When asked how she would feel if she were sent for a visit to Mexico to stay with Mother for a month, R.M. responded: “No. I can’t even handle seeing her for one day. I’m not sure I can handle her for like a week, a month.” She did not like conversations with Mother. R.M. also stated she had trouble understanding Spanish.
Mother had not told R.M. about the house in which Mother was living or whether she was living with anyone. R.M. testified she would like to stay with “auntie” and to “go with” Father when she was old enough and “[t]hat’s all.” She likes the way she has been treated in her current placement. She also stated that even if she could not return to Father, she still would not like to live with Mother stating, “[e]ven when I am there, I won’t like her.”
A.M. was eight years old at the time of the hearing. He testified he did not have good visits with Mother and that he did not want to talk to her because every time he did, he would start crying. A.M. was afraid Mother would separate him from Father. A.M. testified that even if he cannot go with Father, he would want to stay with his paternal great aunt. Mother told him a little about her house and that it is nice. A.M. testified he did not want to visit Mother even for a month because he does not want to be with her. He said he wants to stay in his current placement or return to Father and that he would be sad if he were required to return to Mother. He testified: “I don’t like my mom,” because when he and R.M. were little and living with her, she left them alone in the house at night. He said that when he would wake up in the morning, she would not be there. He was worried about whether she could take care of the children. He also said it would not be okay for him to live with Mother even if he were able to see Father.
VII.
THE JUVENILE COURT’S RULING
The juvenile court found, by a preponderance of the evidence, there would be a substantial risk of detriment to the physical or emotional well-being of the children if they were to be returned to Mother. The court acknowledged that Mother had completed her case plan and that that is a relevant factor, but that it is not a dispositive factor. The court expressed concern that evidence showed that if the children were placed with Mother, they would run away. The court stated, “[h]aving two children under the age of ten running away in any country is not good” and here “they would be running away in an area where they don’t speak Spanish completely, fluently. And where they don’t know the area. The Court finds that particularly unsafe.” The court cited evidence of the children’s nightmares, fear of Mother, and their behavioral changes after visits with Mother at the border. The court stated it found the children “credible and extremely articulate.”
The court stated that while it considered evidence the children stated they intended to run away and were afraid of and otherwise had concerns about Mother, the court was not delegating this decision to the children or relying solely on the children’s testimony in making its findings. The court noted “[t]he nightmares, behavioral adjustments, have all been observed by other people.”
As for any suggestion the children had been coached against Mother, the court stated: “Court considers that information with a grain of salt given the way in which the children testified as well as given the corroboration in the home study from 2016, of the mother leaving the children and going out. [¶] So there has been corroboration of much of what they said.” The court cited evidence the paternal relatives had encouraged the children to talk to and visit with Mother.
The court questioned the common sense of “putting two children ages nine and eight with a person who’s absented herself from their lives for four-plus years. And since then has seen them a total of three hours at the border and engaged in three additional conjoint therapy sessions over the telephone where connectivity has been spotty.”
The court impliedly found the children were justified in having difficulty getting past their abandonment and fear issues with Mother. The court stated: “[T]he fact that she gave them to dad because she didn’t want to care for them anymore. Despite her knowledge of his drinking and previous domestic violence behaviors.”
The court noted that Mother was offered the opportunity of generous telephone contact with the children but had fewer than 50 telephone conversations, each of about five minutes long, with them during the course of the dependency proceedings. In addition, Mother had not availed herself of visitation opportunities as she had only three visits in 20 months of court proceedings, as noted by the court, “[b]ut if you think about it, it’s basically three visits in four-and-a-half years.” The court acknowledged there was a reference in the record that Mother was unable to afford transportation to the border for visits, however “nothing [was] fleshed out” regarding how much Mother needed to pay for plane fare or to ride a bus. The court stated that if such an issue had been brought the court’s attention, it could have been addressed. In any event, the court stated, “[i]nfrequency of contact nearly guarantees the erosion of any meaningful parent-child relationship that existed.”
The court also noted that, in SSA’s March 16, 2007 report, the social worker had stated it was not in the children’s best interests to reunify with Mother because of their emotional concerns. The court noted that since that report, only one more border visit and three conjoint therapy sessions occurred, and these did not show any alleviation of those emotional concerns or the development of a more positive relationship.
The court expressed concern the children did not know Mother had a boyfriend and expressed concern that the court did not know anything about Mother’s boyfriend. The court observed Mother’s living situation had been unstable for the prior 20 months as she had moved four times.
In addition, the court found the children continued to fear abandonment and physical discipline if they were returned to Mother. They feared Mother would isolate them from Father and other relatives and that she would not meet their needs.
Furthermore, the court noted that the therapist suggested there would be a substantial risk of emotional harm to the children should they be returned to Mother. The court credited Mother for putting forth a lot of effort into completing the case plan and doing what was required in that respect. The court found that, although her progress was substantial, Mother was not able to bridge that gap between herself and the children or show an ability to recognize or meet the children’s needs.
The court found the risk of detriment to the children in returning them to Mother was substantial under the totality of the circumstances.
The court stated that it was not returning to the children to Father either, noting that in any event, it did not appear that such a request was before the court.
The court terminated reunification services and set a permanency hearing. Mother filed a petition for a writ of mandate seeking to set aside the court’s orders at the 18-month review hearing. SSA filed a letter brief stating it would not oppose Mother’s petition. The children’s counsel filed a letter brief “urging this Court to find that substantial evidence supported the trial court’s findings and orders, and to deny the relief sought.”

DISCUSSION
I.
APPLICABLE LEGAL PRINCIPLES AND STANDARD OF REVIEW
At an 18-month review hearing, the child must be returned to the physical custody of the parent or parents unless the juvenile court finds by a preponderance of the evidence “that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a)(1).) Court-ordered reunification services may not be extended beyond 18 months from the date the child was removed from the parent’s physical custody. (§ 361.5, subd. (a)(3).)
“By authorizing the continued removal of a child from parental custody based on the risk of either physical detriment or emotional detriment, sections 366.21 and 366.22 focus on the child’s well-being at the time of the review hearing rather than on the initial basis for juvenile court intervention. [Citation.] Thus, while the court must consider the extent the parent has cooperated with the services provided and the efforts the parent has made to correct the problems which gave rise to the dependency [citation], the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child.” (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.)
We determine whether substantial evidence supported the juvenile court’s findings. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1341; Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
II.
THE TRIAL COURT DID NOT ERR BY FINDING THAT THE RETURN OF THE CHILDREN TO MOTHER WOULD CREATE A SUBSTANTIAL RISK OF DETRIMENT TO THEIR PHYSICAL OR EMOTIONAL WELL-BEING.
The appellate record is replete with evidence supporting the trial court’s finding that returning the children to Mother’s custody would create a substantial risk of detriment to the children’s physical or emotional well-being. The record shows, inter alia: (1) Mother did not properly care for the children when they were in her custody; (2) she sent them to live with Father even though she knew Father had a history of domestic violence and of substance abuse; (3) the children not only disliked Mother, they feared her and threatened to run away if placed with her; (4) Mother lived with a boyfriend for whom no background check had been conducted; and (5) Mother’s efforts to communicate and visit with the children were limited. More than substantial evidence supported the court’s findings of risk of detriment.
Although Mother made efforts to successfully complete her case plan, the record shows those efforts did not result in resolving the problems in her relationship with the children sufficient to return them to her without substantial risk of detriment.
In her writ petition, Mother argues the court improperly focused on the length of time the children had been out of mother’s care and how they were not bonded with Mother. Mother argues “a lack of bonding with mother is not an issue when the case is in the reunification stage. Reunification is the goal and the parents are entitled to every presumption in their favor. . . . Mother completed her service plan. Her social worker and service providers determined she made substantial progress in that they did not request additional services or disparage the mother’s progress in any way.”
The juvenile court did not focus solely on the lack of bonding between Mother and the children or the children’s bond with Father and their caregivers. Instead, the court analyzed whether the children were at substantial risk of harm to their physical and emotional well-being. Accordingly, the juvenile court cited evidence the children feared and disliked Mother, had nightmares of her killing them, and threatened to run away if placed with her. Their fear of her was based on their experience living with her and her failure to care for them—an experience corroborated by Mothers’ neighbors and by Father’s statements to SSA.
To the extent Mother suggests that completion of a parenting class and therapy should automatically result in the children being returned to her, that is not the law. As stated in In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143: “As we have already stressed, simply complying with the reunification plan by attending the required therapy sessions and visiting the children is to be considered by the court; but it is not determinative. The court must also consider the parents’ progress and their capacity to meet the objectives of the plan; otherwise the reasons for removing the children out-of-home will not have been ameliorated.”
III.
MOTHER FAILED TO SHOW SHE SHOULD HAVE BEEN GRANTED FAMILY MAINTENANCE OR ADDITIONAL FAMILY REUNIFICATION SERVICES.
In her writ petition, Mother provides no argument or citation to legal authority regarding whether the trial court erred by terminating reunification services or failing to grant family maintenance services. Yet, in her prayer (and reiterated in the conclusion of the writ petition), Mother asks this court to issue a peremptory writ of mandate directing the juvenile court to issue a new order providing for family maintenance or additional family reunification services for Mother.
Section 361.5, subdivision (a)(3) provides that reunification services may not be extended beyond 18 months from the date the child was removed from the parent’s physical custody. In any event, Mother completed her case plan and participated in visits with the children and acknowledged that her service providers did not recommend further services. Mother has not argued that she was not provided reasonable services in the first instance. The juvenile court did not err by failing to provide Mother additional services.

DISPOSITION
The petition for a writ of mandate is denied.


FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.