Y.H. v. Superior Court

Filed 12/15/08 Y.H. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Lily Sinfield, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied.

Linda Bell Levine for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Jacqueline Carey-Wilson, Deputy County Counsel, for Real Party in Interest.

INTRODUCTION

After petitioner Y.H. (mother) had been provided 18 months of services, the trial court found that it would be detrimental to J.H. (the minor) to return him to her care. Accordingly, it terminated services and ordered that a permanency planning hearing be held pursuant to Welfare and Institutions Code section 366.26.^[1] Mother seeks review by petition for extraordinary writ. ( 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) We deny the petition.^[2]

STATEMENT OF FACTS

The minor was born in November 2005. At the time, mother was 15 years old^[3]and was herself a dependent minor living in a group home. In August 2006, the San Bernardino County Department of Childrens Services (department) received a report that mother had gone AWOL from her placement, taking the minor. When found and informed that she was required to return to her placement, she fled with the minor. A few days later mother was again found and returned to placement, but immediately fled again. At one point, it was reported that she was riding in a car with a boyfriend, with the minor placed on the floorboards. It was also reported that the vehicle was stolen and that the boyfriend^[4]had committed a robbery to obtain money for mother and the child.

After almost a month of searching, in cooperation with law enforcement, mother was found again, but did not have the minor with her. She was returned to a group home, but again promptly left. That same evening, Rialto police found mother and the minor and placed them back in the group home. The next day, the department took the minor into protective custody. Within an hour, mother was gone again.

By the time the jurisdictional/dispositional report was prepared three weeks later, mother had left messages for the social worker, but had indicated she did not have a contact number. At the last contact, she told the social worker that she was living here and there.

On November 21, 2006, the trial court found that the minor came within the provisions of section 300, subdivision (b) (failure to protect). Mother was initially present at the hearing, but after the court encouraged her to return to her group placement in order to receive assistance with the minor, she left the courtroom. The department was ordered to provide reunification services.

The six-month report filed on May 9, 2007, reported that mother had initially participated in counseling, but had not attended for the past month due to personal problems, which involve her current boyfriend. She had regularly visited with the minor and both appeared to enjoy the visits. She had remained in her own placement and was cooperating in providing names of persons who might be able to take her in after she reached 18 years of age and gave birth to the second child with whom she had become pregnant. The social worker believed there was a good probability that the minor could be returned to mother within the next six months, although her progress was described as moderate and the report also expressed the view that she had made minimal progress. Services were continued.

The next report, filed on November 9, 2007, continued to acknowledge the apparent bond between mother and the minor. Mother had been permitted to have the minor for overnight visits, which had gone quite well. However, she had also missed three visits within the reporting period without explanation. She was providing adequate care for her newborn child. Mother was described as loving and nurturing, and it was noted that she readily accepts the assistance of others. However, the social worker was concerned that school is not a priority for mother and she had not developed plans for the future. The minor was not returned to her custody, but services were again continued.

The last report, filed in March 2008, reflected a continuing decline in mothers commitment to visiting the minor. She had had only five visits during the reporting period although they were scheduled to take place at her own place of residence.^[5] Her plans for parenting two toddlers were expressed as she would just do what she had to do. It was also noted that during the minors visits, mother would often send her new child to be cared for by others while she visited with the minor. The social worker concluded that mother did not truly want to take on the responsibilities of reunifying with the minor although she did wish to continue visiting him. (The foster parents, who were willing to adopt the minor, had indicated that they were open to postadoption contact.)

On June 10, 2008, the court determined that services should be extended for a further three months due to exceptional circumstances, but told mother that regular visits with the minor were absolutely critical: [I]f she does not visit, then, she is going to forever lose any opportunity to lay claims to this child, and her parental rights are going to be terminated. Mother stated that she understood. It was contemplated that mother would visit weekly, on Wednesdays at 1:00 p.m., with increased visits as she progressed. The trial court also urged mother to return to school and get her general education diploma. It was also pointed out that, as she would be 18 years old in a few days, she needed to develop an independent living plan.

In a status review report filed on August 22, 2008, the social worker reported that mother had attended only two visits and had not been in contact with the department or the minor since July 7, 2008. On that date, she had telephoned to say she would not be available, but asked that the visit be rescheduled for July 16. The social worker agreed, but mother did not show up on July 16.

At the hearing, mother established that she had completed a perinatal program, as required by her reunification plan. However, the social worker, who confirmed this, also testified that she had observed a slackening of the mother-child bond over the months as mothers visits became sporadic. Mother had left a message two weeks earlier asking for a visit, but had not provided a contact number.

Mother also testified and stated that transportation issues had prevented her visits. However, she was currently attending a vocational school and was able to obtain transportation for that.

The trial court found that the minor could not safely be returned to mothers custody, and it terminated services and set a hearing pursuant to section 366.26.

In this petition, mother argues that the evidence was insufficient to show that the minor was at risk if returned to her custody.

DISCUSSION

The department bore the burden of establishing that return of the minor to mother would be detrimental. ( 366.22, subd. (a); In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400.) The risk of detriment cannot be speculative or minor, but must be substantial. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 788.) In reviewing the trial courts decision, we apply the substantial evidence test and consider the evidence favorably to the prevailing party. (In re David M. (2005) 134 Cal.App.4th 822, 828.) Furthermore, a parents failure to participate regularly in a reunification plan constitutes prima facie evidence of detriment. ( 366.22, subd. (a).)

It is frequently stressed that regular visitation between parent and child is perhaps the most important component of a reunification plan. (In re James R. (2007) 153 Cal.App.4th 413, 435.) While such statements are often made in the context of evaluating the adequacy of reunification servicesthat is, whether visitation has been appropriately scheduled and facilitated (see, e.g., In re Julie M. (1999) 69 Cal.App.4th 41, 48-50)the responsibility is also on the parent. (See In re Shaundra L. (1995) 33 Cal.App.4th 303, 317-318.)

First, we recognize that mother, due to her age and dependent legal state, faced substantial difficulties in satisfying the department and the trial court that she could provide a safe home for the minor and provide reliable, competent care. We also commend mother for having conformed with her placement after the minor was removed from her and for having completed the parenting class. However, the unfortunate fact is that, after an extended period of reunification services, mother did not satisfy the most important criterion for reunifying with the minor. This in turn was a substantial factor in demonstrating that the minor could not safely be returned to her and the trial courts order was proper.^[6]

In this case, the dependency was initiated because mother put the minor at risk by running away from her legal placements and basically putting herself and the minor on the streets. To her credit, after the minor was removed from her custody, she became more compliant and initially participated in the requirements of her reunification plan. Unfortunately, for reasons not apparent, in 2007 she began placing other, unexplained priorities ahead of her visits with the minor. When she did visit, she did not demonstrate that she could handle two small children at once, but instead sent her infant to be looked after by others.

In June 2008, mother was explicitly informed that she needed to visit the minor on a regular basis or else. She failed to do so. Although she blamed transportation difficulties, it is significant that her failures to visit began during the period wherein she herself was a dependent and apparently simply absented herself from placement rather than make herself available for visits. Nor did she inform the social worker of her difficulties or ask for transportation assistance; instead, she simply let the matter drop. These were not the actions of a parent committed to the child or sincere about her determination to obtain full and permanent custody of the child. Mothers failure to take the steps necessary to maintain and promote the mother-child bond reflected instead either an indifference to, or at best a lack of understanding of, a childs emotional needs.

The trial court could also validly consider that mother had not demonstrated the ability to provide a suitable home for the minor. Although, as noted above, it was the departments duty to show detriment, the case began with mothers willingness to put the minor at risk of homelessness or other unsavory situations. Her living circumstances at the time of the 18-month hearing were unclear. Although she was apparently living with her mother, she had not notified the social worker of her decision so that its appropriateness could be evaluated. Given that mother had herself been removed from her mothers custody and had spent several years in the dependency system,^[7]the trial court was not required to believe that this was either a suitable or stable home.^[8]

DISPOSITION

Substantial evidence supported the trial courts decision. The petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P. J.

GAUT

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The fathers identity is currently unknown.

^[3] At the jurisdictional/dispositional hearing slightly more than a year later, mother told the court she was then 16 years old.

^[4] By surname, apparently the father of mothers second child; see post.

^[5] It is not clear where mother was during these missed visits.

^[6] Mother argues that she was providing adequate care for her newborn child as a factor rebutting any finding that she could not parent the minor. Although the social worker acknowledged that no dependency proceedings had been initiated with respect to the newborn, the record is devoid of actual evidence concerning mothers care for that child. It does not appear that any representative of the department had ever observed her unsupervised care of the newborn and mother had given the social worker no opportunity to evaluate how the newborn was being cared for at the time of the hearing. Hence, this factor is not of substantial weight.

^[7] Mother actually testified that she was removed from her sisters custody; she could not explain why she was not living with her mother at the time. The circumstances of mothers dependency are not reflected in this record, but obviously her mother was either unwilling to care for her or was not deemed suitable by the department within the time frame of mothers dependency.

^[8] We are not saying positively that it was not, only that mothers failure to inform the social worker made it impossible to verify that she had obtained suitable housing and was likely to remain there.