Reyna C. v. Super. Ct.

Filed 3/26/08 Reyna C. v. Super. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 PROCEEDING; petition for extraordinary writ. Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Petition denied.

Megan McGuire for Petitioner.

No appearance for Respondent.

No appearance for Real Party in Interest.

Petitioner Reyna C. (Mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile courts order terminating reunification services as to her children (13-year-old daughter B.F., 9-year-old daughter E.F., 7-year-old son J.F., and 2-year-old daughter M.F) and setting a Welfare and Institutions Code^[1]section 366.26 hearing. Mother argues that the juvenile court erred in (1) failing to specify the factual basis for its determination that return of the children would be detrimental to the children, and (2) terminating reunification services. For the reasons provided below, we reject Mothers challenges and deny her petition.

I

FACTUAL AND PROCEDURAL BACKGROUND

The children came to the attention of the Riverside County Department of Public Social Services (DPSS) on September 1, 2006, when it was alleged that their father (Father) was abusing the children, and Mother was in denial of Fathers abuse. The children were terrified of Father and the oldest daughter, B., was so stressed out that her hair was falling out in large patches. Mother had allegedly witnessed the abuse and failed to protect them. Father had a history of alcohol and substance abuse, as well of physically abusing Mother.

Father was arrested in September 2006 after he punched B. in the face with a closed fist and threatened to kill her. B. reported that Father repeatedly hit her and her siblings with his hands, a belt, a sandal, and a cable on their backs and legs and that he had threatened to kill her on numerous occasions. She also disclosed that her father threatened to throw her out of the window from their upstairs apartment unit and hit her with a piece of wood. She further reported that her father had choked her with a cable around her neck. She had witnessed Father abusing drugs and alcohol, and she was glad that Father was in jail.

B. also recalled an incident wherein Father attempted to molest her when she was nine years old. B. reported this incident to Mother, who cried and claimed that she would kick Father out if he did not get better. B. also informed Mother about Fathers physical abuse and threats, but Mother filed to do anything about it. B. did not believe that Mother could protect her and her siblings. B.s siblings confirmed B.s accounts of the abuse by Father and Mothers lack of protection.

Mother denied the abuse or any domestic violence. She claimed that Father only hit B. in the face once. She also denied any knowledge of Fathers drug abuse or the sexual abuse incident. The children were subsequently taken into protective custody.

On September 8, 2006, section 300 petitions were filed on behalf of the children pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (c) (serious emotional damage), (d) (sexual abuse), (g) (no provision for support), and (j) (abuse of sibling). The children were formally detained on September 11, 2006. DPSS was ordered to provide counseling to the children and assess the appropriateness of returning the children to Mothers care if she went into a shelter.

The social worker interviewed Mother on September 20, 2006. Mother stated that she would allow Father to return to the home upon his release from jail on conditions that he was willing to make changes . . . . Mother appeared to be in denial about the allegations and believed that the person who called the police had made up a bunch of lies. She confirmed the incident wherein Father punched B. in the face but minimized Fathers physical abuse of B. Based on her statements to the social worker, it appeared that Mother believed the children had lied about Fathers abuse, and she essentially chose to believe Father rather than her children.

On September 26, 2006, DPSS received a new referral alleging sexual abuse and general neglect of B. by Father. Following an investigation, the allegations were determined to be substantiated.

At the jurisdictional/dispositional hearing, the allegations were found true as amended under section 300, subdivisions (a), (b), (c), (d), (g), and (j). The children were declared dependents of the court and maintained in their foster home. The parents were offered reunification services and ordered to participate. They were advised that services would not exceed the statutory time line of 12 months. Among other requirements, Mothers case plan required her to attend sexual abuse counseling, complete a domestic violence program for victims, complete a parenting program, protect her children from emotional harm, take appropriate action to avoid being a victim of further domestic violence, show that she will not permit others to sexually and physically abuse her children, and maintain a stable and suitable residence.

By the six-month review hearing, Mother was employed and renting a room from two young men. When asked how Mother will be able to accommodate the children in this living situation, Mother changed her story and said that she was the one renting to the two men and that she would ask them to move out. The social worker reported that though Mother had completed most of her case plan, she continued to minimize the circumstances surrounding the removal of her children and had failed to secure a safe home environment for the children. In addition, Mother had difficulty believing that B. was sexually abused by Father and continued to expose B. to a paternal uncle, P.F., who also allegedly molested her. B also noted that Mother continued to not believe her regarding Fathers molestation, continued to speak about Father during visits, and tried to pass a letter written by Father to the children. It appeared as though Mother had not benefitted from the services.

The children were placed together in a specialized care home and had adjusted well. The foster parents were attentive to the childrens physical, emotional, medical, and educational needs, and the children continued to thrive and flourish. They were closely bonded to the caregiver; B. indicated that she preferred to stay in foster care placement instead of returning home to live with her mother. B. disclosed that Mother was not considerate of her feelings and believed that Father did nothing wrong.

By the 12-month review hearing, the social worker recommended that services be terminated as to both parents and a section 366.26 hearing be set. Mother was residing with and was 9 months pregnant by her husbands brother, the childrens uncle (Uncle). She gave birth to a baby girl in October 2007. Uncle reported that Mother had been living with him since September 2007; that he was the sole financial provider; that they had informed Father of the living situation; that he had called the police on Father; and that he wanted to take care of the family since his brother had failed to do so. B. continued to have issues with Mother; she was retraumatized when Mother again brought paternal uncle P.F. to a visit. She was also emotionally distraught that Mother had not informed the children about her relationship with Uncle or even disclosed that she was pregnant. Mother eventually disclosed the pregnancy when B. and the foster mother noted Mothers expanding belly. B. was also upset when Mother brought Uncle to visits and by the fact that Mother was pregnant by Uncle; B. did not accept Mothers relationship with Uncle Mother continued to minimize the circumstances surrounding the molestation and believed that B. was confused. B. did not want to return home due to Mothers current living situation; her siblings, J. and M., likewise did not wish to return home and wanted to remain with their sister. The social worker did not believe that Mother was capable of protecting her children.

On October 30, 2007, a section 300 petition was filed on behalf of the newborn baby girl F.F. pursuant to section 300, subdivisions (b) and (j). F.F. was taken into custody in October 2007 and formally declared a dependent of the court on January 29, 2008. As to F.F.s dependency, the parents were provided with reunification services and ordered to participate.

Mother underwent a psychological evaluation on January 16, 2008. The evaluation indicated that Mother was functioning at low average levels of intelligence but certainly had the cognitive capacity to participate in her services and was capable of absorbing new knowledge and cultural norms. The evaluator opined that it is not intelligence, but rather emotional and motivational factors, which have prevented [Mother] from functioning adequately.

The contested 12-month review hearing as to B. and her siblings was also held on January 29, 2008. Following presentation of evidence and arguments, the juvenile court terminated reunification services and set a section 366.26 hearing.

II

DISCUSSION

A. Factual Basis That Return of the Children Would be Detrimental

Mother contends that the juvenile court failed to adequately specify the factual basis for its conclusion that it would be detrimental to return the children. Section 366.21, subdivision (f), provides in pertinent part: If the child is not returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that the return would be detrimental.

Here, in response to Mothers counsels statements that Mother had taken some additional classes at her own expense and had been trying really hard and participating, the court stated: Based upon the relationships that mother gets herself involved in, based on who mother brings with her for visitations with the children, mother has really demonstrated to this court that all the hard work she has put in to the services that the department has offered her has really not made much of an impact . . . .

At the conclusion of the 12-month review hearing, the court stated: The court has read and considered the review report filed by the department on October 26th, 2007. I have now reviewed the two documents submitted by [Mothers counsel] . . . , which includes a letter from [DPSS] filed January 23rd, 2008, which has [to] do with a parenting class that was ordered, and then a letter and a business card from Corona Life Services dated January 10th, 2008. [] Based upon my review of those documents, I make the following findings and orders. [] . . . [] In this matter, the court does find by clear and convincing evidence that the return of the children to the custody of the parents would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the children. [] . . . [] The extent of progress made by the parents toward alleviating or mitigating the causes necessitating placement has been unsatisfactory in that the parents have failed to make substantive progress or complete their court ordered case plan. Therefore, the court terminates services to both mother and father.

Section 366.21, subdivision (f) does not require the juvenile court to expressly discuss every fact that might impact its decision. Rather, the plain language of the statute merely requires the court to specify the facts that actually form the basis for its decision. Thus, it was enough for the court to note Mothers lack of benefitting from services and her inappropriate conduct, facts that clearly posed a substantial risk to the children. The courts comments were a short and straightforward statement of the factual basis of the courts detriment finding: Mother did not learn enough to ameliorate the risk on which the childrens removal was based. No more was required.

B. Termination of Reunification Services

Mother argues the juvenile court erred in terminating reunification services at the 12-month review hearing. At that hearing, the juvenile court can terminate reunification services and maintain the children in out-of-home placement when it finds by a preponderance of the evidence return of the children to the offending parent would create a substantial risk of detriment to the childrens safety, protection, or physical or emotional well-being. ( 366.21, subd. (f).) The parents failure to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence of detriment. (Ibid.)

Moreover, where the reunification period has exceeded the statutory limitation, in this case, 12 months,^[2]the juvenile court cannot continue reunification services if doing so would extend services beyond 18 months from the date the children were originally taken from the physical custody of their parent(s). ( 366.21, subd. (g)(1).)

Mother claims she had made substantial progress on her case plan, including attending general counseling, visitation, parenting classes, maintaining a home, and employment. Therefore, she argues, she complied with all aspects of her case plan, and the juvenile court erred in terminating reunification services as there was a substantial probability the children could be returned to her and safely maintained in her home. We disagree.

Though Mother was working very diligently on her case plan, she was no closer to being able to protect her children in January 2008 than she was in September 2006 when they were initially removed. Despite a claim to the contrary, Mother still had no stable housing or employment and had become romantically involved with her brother-in-law. By the time of the 12-month review hearing, Mother relied on her husbands brother to take care of her financially and emotionally. She failed to disclose this relationship to her children until B. noted Mothers pregnancy, and she failed to take into consideration her childrens emotional well-being before becoming involved with their uncle. Essentially, she continued to place her needs over those of her children. In addition, Mother continued to minimize the circumstances surrounding the removal of her children and believed that B. was confused. She had difficulty believing that B. was sexually abused by Father and continued to expose B. to the paternal uncle who had also allegedly molested B. Moreover, B. continued to have issues with Mother and did not want to be returned; her siblings likewise did not wish to return home and wanted to remain with their sister. On the other hand, the children were flourishing in their placement and were closely bonded to the caregiver, who was attentive to the childrens physical, emotional, medical, and educational needs. The juvenile court properly terminated services and found that return of the children to Mother would create a substantial risk of detriment to the childrens safety, protection, or physical or emotional well-being. ( 366.21, subd. (f).)

Moreover, we reject Mothers claim that there was a substantial probability that the children could be returned to her and safely maintained in her home. Section 366.21, subdivision (g)(1) provides that the juvenile court shall only extend reunification services if there is a substantial probability that the child will be returned to the physical custody of his or her parent within that extended period and that extending the period of reunification will not exceed the 18-month period of reunification. There was absolutely no evidence the children could have been safely returned to Mothers custody within the statutory timeframe. Her history alone demonstrated the infeasibility of their safe return. We find no error.

III

DISPOSITION

The petition for extraordinary writ is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

KING

J.

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

^[2] For a child who, on the date of initial removal from the physical custody of his or her parent . . . , was three years of age or older, court-ordered services shall not exceed a period of 12 months from the date the child entered foster care . . . . ( 361.5, subd. (a)(1).)