In re Selina D.

Filed 7/3/06 In re Selina D. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Affirmed.

Marilyn S. appeals a judgment placing her daughter Selina D. in long-term foster care under Welfare & Institutions Code,^[1] section 366.22, subdivision (a). She contends

that substantial evidence does not support the court's finding that Selina would suffer a substantial risk of detriment to her safety, protection, or physical or emotional well-being were she returned to parental custody. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Selina was born when Marilyn was 15 years old and a dependent of the juvenile court. In November 1995, at age five weeks, the San Diego County Health and Human Services Agency (the Agency) removed Selina from Marilyn's custody because of her lack of parenting skills. Although Marilyn was only "marginally compliant" with reunification services, in February 1997 the court returned Selina to her mother's custody on the assumption that their extended family would provide a safety net should Marilyn have difficulty caring for the baby. Over the next seven years, Marilyn gave birth to six more children.

Between 1998 and 2004, the Agency received 15 referrals concerning Marilyn and the children alleging general neglect, physical abuse, sexual abuse, emotional abuse, and substantial risk of abuse and neglect. In December 2003, the Agency confirmed reports that domestic violence in the home presented a substantial risk of harm to Selina and several siblings. In January 2004, Marilyn entered into a voluntary services contract with the Agency and received in-home services, including counseling and parenting instruction. In March, the Agency substantiated an allegation that Selina was sexually abused by a family friend. On April 6, the Agency verified allegations of emotional abuse and domestic violence and removed Selina and her siblings from the home.

On April 8, 2004, the Agency filed a petition on behalf of eight-year-old Selina under section 300, subdivision (b).^[2] The petition alleged Selina was exposed to an incident of domestic violence between her mother and the father of a younger sibling.^[3] Marilyn submitted to the allegations of the petition. On June 24, the court declared Selina a dependent of the juvenile court, removed her from parental custody and placed her in licensed foster care.

The case plan required Marilyn to participate in a domestic violence prevention program, individual therapy and parenting classes. In addition to learning to avoid situations in which she might be subjected to domestic violence, Marilyn's case plan objectives were to be able to consistently, appropriately and adequately parent her children, obtain sufficient resources to meet the children's needs, provide them a safe home, and show that she was capable of supervising her children and protecting them from emotional harm.

Generally, Marilyn made some progress with case plan requirements. At the 12-month review hearing, after initially recommending termination of reunification services, the Agency agreed to continue services to the 18-month review date. In return, Marilyn agreed to undergo a psychological evaluation and to resume individual therapy, which had been discontinued to allow her more time to participate in other aspects of her case plan. Individual therapy was a prelude to allow Marilyn to participate in conjoint therapy with Selina.

By the time of the 18-month review hearing, Marilyn had completed a parenting class and a 52-week domestic violence prevention program. She reenrolled in therapy but did not consistently attend therapy sessions. Marilyn did not undergo the psychological evaluation ordered by the court. The social worker assessed the risk factors impeding the children's return to their mother's care as Marilyn's lack of a stable residence, her continued minimization of the incident of domestic violence that led to the children's removal, and her lack of consistent visitation with the children.

At the 18-month review hearing, the social worker recommended termination of reunification services and the selection and implementation of a permanent plan for the children. The social worker believed Marilyn did not have the ability to address the children's behavioral needs. Although Marilyn had completed some aspects of her case plan, the children's behavior problems and emotional needs would make it difficult for her to protect and care for them.

Selina's behavior problems included poor boundary and impulse control. According to her therapist, Selina was angry, aggressive, did not make friends easily, and tended to lie. In August 2005, Selina and her foster mother requested a change of placement. The foster mother reported that Selina's behaviors included acting out sexually, throwing tantrums, lying, stealing, and physically attacking her younger sister. Selina refused to participate in therapy. Selina missed her mother and wanted to return to her care. During an evaluation, she told the psychologist, "what I want more than anything is to go back with Mom," and "what I want to happen the most is to go home who I belong to."

The psychologist diagnosed Selina's condition as "Major Depressive Disorder-Moderate, Neglect of Child . . . and Sexual Abuse of Child . . . ." Selina displayed some symptoms of sexual reactivity and post-traumatic stress disorder. The psychologist opined Selina would benefit from a "highly structured, predictable environment where her symptoms and behaviors can be closely monitored and supervised." Selina also required a caretaker with effective parenting skills who would be able to implement a behavioral modification plan and work closely with teachers to maximize her academic performance.

After she was removed from the foster care home, Selina was placed in a group home. Initially, her behavior appeared to stabilize. However, in late November 2005 Selina became defiant with staff and combative with other residents. As a result, she was not permitted to participate in the facility's day treatment program. At the time of the 18-month review hearing, the social worker was trying to locate a residential treatment program to meet Selina's needs.

Marilyn acknowledged Selina exhibited behavior problems before she was taken into protective custody. She believed the children's behavior problems were due to their exposure to domestic violence, their removal from her care and the lack of visitation with her and their siblings. Marilyn wanted all six children returned to her care.^[4] Family members would help her with day care and rent. She was no longer involved in an abusive relationship and had learned how to protect the children from domestic violence. Her visitation with the children was inconsistent due to her work schedule and difficulty arranging visitation with six children in four different placements. Marilyn missed three therapy sessions, and the therapist suspended treatment. The Agency would not pay for the missed appointments. Marilyn was unable to pay the required fee and therapy was not reinstated.

The court found Marilyn was offered or provided reasonable services, and had made some progress with her case plan, but Selina's return to her care would be detrimental to the child. The Agency assessed Selina as "not adoptable," and the court ordered her placed in a permanent planned living arrangement in a group home. The court urged Marilyn to visit Selina "as often as possible" and stated the goal remained Selina's safe return home.

DISCUSSION

A

Marilyn contends insufficient evidence supports the court's finding that it would be detrimental for Selina to return to parental custody. She argues the evidence shows she substantially complied with the case plan and corrected the problems that led to Selina's removal from her custody. (See In re Jennifer A. (2004) 117 Cal.App.4th 1322 (Jennifer A.).) For that reason, Marilyn maintains the Agency did not meet its burden under section 366.22, subdivision (a), to show Selina's return to her care would be detrimental to the child.

The Agency replies that substantial evidence supports the court's findings and orders and denies Marilyn corrected the problems that led to Selina's removal. The Agency argues that, in determining whether a substantial risk of detriment prevents the child's return to parental custody, the court properly considers not only the parent's response to the problems that led to the child's initial removal from parental custody but also other risk factors that may have arisen or become known during the course of the proceedings. (See In re Joseph B. (1996) 42 Cal.App.4th 890, 899 (Joseph B.).)

B

On review, our function is limited to a determination of whether substantial evidence exists to support the conclusions reached by the trial court. (In re B.J.B. (1986) 185 Cal.App.3d. 1201, 1211.) We review the record in the light most favorable to the prevailing party and indulge in all reasonable and legitimate inferences to uphold the finding. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The appellant has the burden to show there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

C

At the 18-month review hearing, the court is required to return the child to the physical custody of his or her parent unless the court finds, by a preponderance of the evidence, that returning the child to parental custody would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The Agency has the burden of establishing that detriment. The failure of the parent to participate regularly and to make substantive progress in court-ordered treatment programs is prima facie evidence that return would be detrimental to the child. (§ 366.22, subd. (a).)

In Joseph B., a division of this court held that the Legislature "did not intend to restrict the showing of detriment at a review hearing to the type of harm which necessitated dependency intervention." (Joseph B., supra, 42 Cal.App.4th at p. 899.) The court in Joseph B. pointed out that the language of sections 366.21 and 366.22 differs from the standards required to establish dependency court jurisdiction under section 300, and focuses on "the child's well-being at the time of the review hearing rather than on the initial basis for juvenile court intervention." (Joseph B., supra, at p. 899.) "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 . . . 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." (Ibid.)

Marilyn maintains that domestic violence was the sole reason for dependency jurisdiction. She relies on Jennifer A., supra, 117 Cal.App.4th pages 1344-1346, in which another division of this court discussed the need for a causal connection between a current risk of detriment and "the parent's actions leading to the out-of-home placement." (Id. at p. 1344.) Marilyn contends that she "corrected the problem that required court intervention" (ibid.), and argues that her home is free from domestic violence and thus there is no evidence to support the finding that Selina's return to her custody poses a substantial risk of detriment to the child.

We are not persuaded by Marilyn's argument. First, the Jennifer A. court recognized that "the decision whether to return a dependent child to parental custody is not necessarily governed solely by whether the parent has corrected the problem that required court intervention." (Jennifer A., supra, 117 Cal.App.4th at p. 1344.) Intervening protective risks can pose a serious threat to the safety, protection and well-being of children already adjudicated a dependent of the court. Here, for example, the section 300 petition did not address sexual abuse, yet an incident of sexual abuse continued to affect Selina's mental health. In addition, even when a parent has substantially remedied any adverse conditions or influences in the home, the court properly assesses the effect that return to parental custody would have on the child. (Joseph B., supra, 42 Cal.App.4th at p. 899.)

Second, domestic violence was not the sole reason for Selina's removal from parental custody. The disposition report shows that, in addition to Selina's exposure to domestic violence, the Agency was concerned about Marilyn's ability to safely supervise her children and provide consistent structure and a stable home. At times, Selina lived with her father, mother (and various boyfriends, some with significant criminal histories), maternal grandmother and paternal grandparents. As a result of neglect, domestic violence and sexual abuse, Selina had behavior problems that Marilyn had been unable to manage.

We conclude the reasons necessitating Selina's removal from parental custody were not as limited as Marilyn contends. Having rejected Marilyn's argument that domestic violence was the sole reason for Selina's out-of-home placement, we need not address Marilyn's argument that her failure to participate in therapy and a court-ordered psychological examination were not critical components of her case plan. Marilyn's participation in individual therapy was required to enable her to establish a supportive, nurturing relationship with Selina through eventual conjoint therapy. Marilyn concedes that she did not complete these elements of her case plan.

Substantial evidence supports the court's conclusion that Selina's return to parental custody would create a substantial risk of detriment to her safety, protection, or physical or emotional well-being. (§ 366.22, subd. (a).) At the time of the 18-month review hearing, Selina's mental health condition and behavior were not stable. She was suffering from a major depressive disorder. Her recent behaviors included defiance with staff at the group home, combativeness with other residents, acting out sexually, throwing tantrums, lying, stealing, and physically attacking her younger sister. Selina needed a "highly structured, predictable environment where her symptoms and behaviors can be closely monitored and supervised" as well as a caretaker with effective parenting skills who was able to implement a behavioral modification plan and work closely with teachers to maximize her academic performance.

Although Selina missed her mother and wanted to be with her, Marilyn did not show that she could offer Selina a "highly structured, predictable environment." Marilyn had not been able or willing to consistently visit Selina, and the lack of visitation negatively affected her daughter. Selina required a high level of care and consistent attention to her emotional and behavioral needs. Marilyn did not participate in the therapy required to allow her to begin effective conjoint therapy with Selina. After assessing Marilyn's parenting skills, including her lack of consistent visitation with Selina, the social worker did not believe Marilyn was able to consistently, appropriately and adequately parent Selina, provide her a safe home, and show she was capable of protecting her from emotional harm.

During the course of the dependency proceedings, Marilyn did not stabilize her circumstances.^[5] She was unemployed and lived with her mother and four siblings in a two-bedroom apartment. Marilyn testified she would rely on relatives for housing and child support.

Marilyn contends the court erred when it determined that her mother's home was too small and too crowded for six additional residents, instead of evaluating its suitability for only Selina's placement. However, the record shows the proposed living arrangement was not suitable for Selina. During an unsupervised visit, a teenage uncle pulled Selina back by the hair when she attempted to run for help during an incident of domestic violence between her uncle and his girlfriend. Her grandmother had an extensive history of child welfare involvement. She advised Selina to lie to the social worker about the incident of domestic violence. The court could draw the reasonable inferences that Marilyn was not yet able to secure a stable residence of her own and that the presence of domestic violence and chaotic conditions, or moving from one relative's home to another, would present a substantial risk of detriment to Selina.

Substantial evidence supports the conclusion that, at the time of the 18-month review hearing, Marilyn could not provide Selina with a stable, appropriate environment and the consistent parenting skills required to address Selina's mental health needs. The court reasonably determined that Selina's return to parental custody would be detrimental to her safety, protection, and physical and emotional well-being. (§ 366.22, subd. (a).)

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Real Estate Lawyers.

^[1] All statutory references are to the Welfare and Institutions Code.

^[2] The Agency also filed petitions under section 300 on behalf of Selina's younger brothers and sisters. They are not parties to this appeal.

^[3] Selina's father was incarcerated and later deported. He is not a party to this appeal.

^[4] One child was placed in her father's custody in June 2004.

^[5] Marilyn deserves credit for completing a domestic violence prevention program and pressing criminal charges against the perpetrator.