L.R. v. Superior Court
Filed 7/2/12
L.R. v. Superior Court CA4/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 THREE
L.R. et al.,
Petitioners,
v.
THE SUPERIOR COURT OF ORANGE COUNTY,
Respondent;
ORANGE COUNTY
SOCIAL SERVICES AGENCY et al.,
Real Parties in Interest.
G046713
(Super. Ct. Nos. DP020253 &
DP021423)
O P I N I O N
Original
proceedings; petitions for writ of mandate to challenge an order of the Superior Court of Orange County, Cheryl
L. Leininger, Judge. Petitions denied.
Frank
Ospino, Public Defender, Michael Hill, Assistant Public Defender, Hong T. L.
Nguyen and Dennis M. Nolan, Deputy Public Defenders, for Petitioner L.R.
Craig
McCabe for Petitioner S.M.
No
appearance for Respondent.
Nicholas
S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County
Counsel, for Real Party in Interest
County Social Services Agency.
Law
Office of Harold LaFlamme and Linda O’Neil for Real Parties in Interest A.M.
and Au.M.
* * *
Introduction
L.R. (Mother) and S.M. (Father) are the parents of A.M. and
Au.M. A.M. was taken into
old, and Au.M. was taken into protective custody in June 2011, a week after she
was born.
In March 2012, the juvenile court held a combined 18‑month
review hearing on A.M.’s dependency case and six‑month review hearing on
Au.M.’s dependency case. At the
conclusion of the hearing, the court made an order terminating reunification
services for Father and Mother in both cases and setting a hearing under
Welfare and Institutions Code section 366.26 (all further code references
are to the Welfare and Institutions Code).
The section 366.26 hearing is scheduled for July 17,
2012.
Mother and Father each have filed a petition for writ of mandate
challenging the order. Mother challenges
the ruling as to Au.M. only. Mother
argues the court erred by finding there was no substantial probability of
returning Au.M. to her physical custody within six months because substantial
evidence did not support the findings that she failed to make significant
progress in her reunification plan. In
his writ petition, Father argues he was not provided reasonable reunification
services because he was required to change therapists halfway through the final
six months of reunification services.
Father’s petition generally refers to “two children,†so it is not clear
whether the petition is directed to both A.M.’s dependency case and Au.M’s
dependency case. In his reply, Father
makes a broad‑based challenge to the order by arguing he had complied
with every part of his case plan.
The Orange County Social
Service Agency (SSA) has filed opposition to the writ petitions. Counsel for A.M. and Au.M. also has filed an
opposition to the writ petitions. A.M.
and Au.M. essentially make the same arguments as SSA.
We conclude substantial evidence supported the court’s extensive
findings and therefore deny both writ petitions.
I.
Father’s History of Domestic Violence
We start by laying out Father’s history of
important to understanding the case and the ruling.
1. Irvine Incident. Father was
arrested on charges of domestic violence in July 2009 in Irvine. According to the police report, a witness saw
Mother and Father inside a sport utility vehicle and heard them arguing. The witness saw “[Father] use his right fist
and swing in a backwards motion striking [Mother] in the front torso
area.†The witness was “sure†that she
saw Father strike Mother with his fist.
Father was arrested, but no charges were filed against him.
2. Courthouse Headbutting Incident.
Father was arrested on charges of domestic violence again in September
2010 in Orange County. The sheriff’s
report reported the following. While
waiting in the courtroom hallway for the detention hearing on A.M., Mother and
Father started to argue. Mother placed
her hand on Father’s mouth and told him to “leave and go home.†A witness saw “what appeared to be [Father] headbutting
[Mother],†who sustained a cut lip.
3. Moreno Valley Incident. Father
was arrested on charges of domestic violence in November 2010 in Moreno
Valley. This arrest occurred when Mother
was two months’ pregnant with Au.M.
According to the sheriff’s report, Mother’s cell phone rang while Mother
and Father were seated in a parked vehicle.
When Mother tried to answer the call, Father became upset and yelled,
“[g]ive me the f[]ing phone.†She
refused, so he got out of the vehicle, walked around to her side, opened the
door, and attempted to take the phone away from her. She would not let go of the phone, and he
“slapped her across her face against her left cheek with the back of his left
hand.†Father wrested the cell phone
from Mother and ran away. The sheriff’s
deputy asked Mother if she wanted to have Father arrested. She replied, “[y]es, I’m tired of this
shit.†Father was arrested, convicted of
domestic violence, sentenced to informal probation, and ordered to attend a 52‑week
batterer’s intervention program.
4. Truck Incident. The Truck
Incident occurred in August 2011.
According to Mother, Father drove off in his truck while Mother was
getting in or out of it. Mother fell to
the ground and was injured. Father
testified that while he was backing up his truck, Mother knocked on the window
and asked him to open the door so they could talk. Father said he did not want to talk, and
drove off at a speed of about five miles an hour. Father looked back and saw Mother on the
ground. He did not know how she
fell.
A.
Hearing
In September 2010, Costa Mesa police officers found A.M. living with
Mother and Father in a commercial office building used for constructing and
repairing boats. Hazardous chemicals and
toxic airborne particles were present in the living quarters, which reeked of
urine. A.M.’s belongings were strewn on
the floor. Two coffee mugs were filled
with urine. The bathroom had no running
water or electricity, and there were exposed wires and an empty, unplugged
refrigerator. Mother and Father told the
officers that they had been living in the building off and on because Father
could not afford a motel.
A.M. was taken into protective custody and a juvenile dependency
petition was filed a few days later. The
petition asserted failure to protect under section 300,
subdivision (b). The petition
alleged Mother had an “unresolved substance abuse problem†and both Mother and
Father had an “unresolved anger management problem,†those problems impaired
their abilities to provide A.M. with regular care, protection, and support, and
neither Mother nor Father had a record of successfully completing an anger
management program. The petition alleged
Mother and Father have “a history of domestic altercations with the last
incident being in approximately August 2010.â€
The petition alleged Mother had two other children by a different
father and those two “half‑siblings†had been declared dependent children
of the Riverside County Juvenile Court due to neglect by Mother and the
father. Mother failed to complete her
court‑ordered service plan and family reunification services were
terminated. The petition alleged: “[M]other has been provided with numerous
services by the Riverside County Juvenile Court, and the Social Services
Agency/Community Agencies including, but not limited to Emergency Response
Services, Family Reunification Services and Substance Abuse Rehabilitation
Services. Despite these extensive
services the child’s mother has failed [to] protect the seven[-]month old
infant, A[.M.] from harm and/or risk of harm.â€
On September 8, 2010, the juvenile court ordered A.M. be
detained under SSA’s custody and placed him at Orangewood Children’s Home. Later, A.M. was placed with the maternal
great‑grandparents, and, ultimately, with the maternal grandmother.
A jurisdictional hearing was conducted in November 2010. The juvenile court found the allegations of
the petition (as amended by interlineation) true by a preponderance of the
evidence.
B.
Hearing/Reunification Services for Father
A dispositional hearing was conducted in January 2011. The juvenile court declared A.M. a dependent
child of the court under section 360, subdivision (d) and vested
custody of A.M. with SSA. The court
ordered reunification services for Father as recommended by SAA in a report
dated October 6, 2010, and denied reunification services to Mother
pursuant to section 361.5, subdivision (b). Father’s case plan included completion of a
program of domestic violence counseling and a parenting class, and required him
to provide and maintain “stable, suitable housing†for A.M., and to submit to
random drug testing. In February 2011,
the court amended Father’s case plan to include completion of a program of
anger management counseling.
In January 2011, Father reported to the social worker that he and
Mother were “essentially homeless.†He
reported too that he had secured full‑time employment working on
boats. He did not believe A.M. should
have been removed from his custody, claimed the place where he and Mother had
been living was not “as bad as described†in the SSA report, and denied that
A.M. had been exposed to hazardous materials.
Father denied any history of engaging in domestic violence or drug
abuse.
In March 2011, Father began “IPP mental health counseling†with a
bilingual therapist, Irene Bernal, who prepared an assessment and treatment
program for him. Two months later,
Father was terminated from the counseling program because he failed to appear
for five sessions. Father was reinstated
to the program and resumed counseling in June 2011. Father failed to attend weekly 12‑step
meetings as ordered by his case plan.
Father began attending parenting classes in May 2011 but was
terminated from the program after he was late to the final class session. The instructor recommended that Father be
reinstated to parenting classes with a different instructor as she “no longer
feels safe having the father in her parenting program.†A month later, Father enrolled himself in
another parenting program.
Father visited A.M. every week for four hours, as permitted by the
visitation plan. The monitor described
Father’s interaction with A.M. as “very positive and affectionate,†and noted
that Father “consistently attend[ed] to the child’s needs by feeding him,
changing his diaper as needed and playing with him during the visits.â€
In April 2011, the assigned social worker learned that Mother was
pregnant and expecting to deliver in June.
Mother had been visiting A.M. regularly and no problems had been
reported.
The SSA status review report, dated June 29, 2011, concluded
Father “remains out of compliance with his Case Plan activities†and
recommended termination of reunification services for Father (Mother did not
have reunification services) and the scheduling of a section 366.26
hearing for A.M. An addendum report of
the same date reported that the maternal grandmother had been “an excellent
caregiver†for A.M., but was unable or unwilling to adopt him. For that reason, the report concluded, “it is
likely that the child is adoptable however; there are factors which suggest
termination of parental rights may be detrimental or undesirable.â€
The six‑month review hearing, scheduled for June 29,
2011, was continued by stipulation to August 2011.
A.
Custody/Jurisdictional Hearing
Mother gave birth to Au.M. in June 2011. Au.M. was born full term and weighed eight
pounds 7.8 ounces at birth.
Mother had been instructed to inform SSA when and where her child
was born. Mother did not comply and
instead moved between three counties to evade SSA and prevent it from removing
Au.M. SSA soon caught up with Mother,
finding her at her grandmother’s home in Irvine. Au.M. was taken into protective custody
“[d]ue to the mother’s ongoing substance abuse, failure to comply with her
Court ordered case plan to attend substance abuse counseling and domestic
violence counseling, evading [SSA] in an attempt to hide this child, and non‑compliance
with her current visitation plan regarding her two older boys.â€
Mother told the assigned social worker that she broke up with Father
after she became pregnant. Father was
present when Au.M. was born, but Mother had not seen him since then. Mother testified that when she and Father
were together, he was married to a different woman. Mother did not have a stable housing
arrangement; she stayed with a friend some days and with her grandmother on
others. Mother was not working and told
the social worker her family helped her financially. Mother also told the social worker that she
began using methamphetamine five years previously and used it for the first two
or three months of pregnancy with Au.M.
A few days after Au.M. was taken into protective custody, SSA filed
a juvenile dependency petition (the Au.M. Petition) alleging counts for failure
to protect (section 300, subd. (b)) and abuse of sibling
(section 300, subd. (j)). The
Au.M. Petition alleged Mother had a history of substance abuse, instability,
domestic violence, and had failed to reunify with her three other
children. The Au.M. Petition alleged
Mother had an unresolved problem with methamphetamine, which she admitted using
during the early months of her pregnancy with Au.M., and for which she has no
documented proof of completion of a substance abuse program. The Au.M. Petition also alleged that Mother
failed to participate in regular prenatal care, and that both Mother and Father
had evaded SSA and failed to notify it when Au.M. was born. As to Father, the Au.M. Petition alleged he
had a history of “neglect and domestic violence†pertaining to A.M. and had
failed to comply with his case plan.
Both Mother and Father, the Au.M. Petition alleged, had received
extensive family reunification services, but Mother had failed to reunify with
A.M. and her two other children, and Father had failed to reunify with A.M.
B.
Jurisdictional/Dispositional Hearing
At the detention hearing on July 1, 2011, the juvenile court
ordered Au.M. detained under SSA’s custody.
The detention order permitted Mother and Father each to have a minimum
of two monitored visits per week with Au.M.
The order stated, “[p]arents[’] visits with child are to be
separate.†Au.M. was placed with her
paternal cousin, V.V.
Meanwhile, Father had been reinstated into a therapy program and,
according to his therapist, was presenting a “new attitude†and “now reports to
accepting responsibility for his actions and realizes the seriousness of the
situation.†In a report dated in mid‑August
2011, the assigned social worker stated:
“The father’s IPP therapist reported on the father’s consistent therapy
attendance since reinstatement on June 7, 2011, and described the father’s
new found attitude change in therapy. It
appears that the father has not transferred his new found attitude change to
working with the SSA staff. The father
has failed to maintain contact with the undersigned. The father no-showed to the previously
scheduled meeting with the undersigned on July 12, 2011, and has not
returned the undersigned’s numerous telephone messages.†The social worker reported Father had not
returned telephone messages about enrolling in a Spanish‑language
parenting program and, as of August 11, had not enrolled in the
program. “Further, the father has failed
to present proof of once‑weekly 12‑Step meeting attendance.â€
Following the jurisdictional/dispositional hearing on
August 18, 2011, the juvenile court found the allegations of the Au.M.
Petition true by a preponderance of the evidence, declared Au.M. to be a
dependent child of the court under section 360, subdivision (d),
vested custody with SSA, and approved SSA’s proposed case plan and visitation
plan. Father’s case plan included
participation in and completion of a program of domestic violence counseling
and a parenting class, and participation in a 12‑step program. The court found, pursuant to
section 361.5, subdivision (b)(10), that reunification services need
not be provided to Mother. Mother and
Father each were permitted two weekly monitored visits with Au.M.
Also on August 18, 2011, the juvenile court conducted a six‑month
review hearing on A.M. Despite finding
that Father’s case plan progress had been minimal, the court continued Father’s
services to a 12‑month review hearing.
Review Hearing (A.M.) and
Six‑month Review Hearing (Au.M.)
The combined 18‑month review hearing for A.M. and the six‑month
review hearing for Au.M. was conducted over several days in March 2012. The juvenile court received in evidence the
following reports: (1) SSA report
dated March 2, 2012 (A.M.); (2) SSA addendum report No. 1 dated
March 2, 2012 (A.M.); (3) SSA report dated February 21, 2012
(Au.M.); (4) SSA addendum report No. 1 dated March 2, 2012
(Au.M.); (5) SSA addendum report No. 2 dated March 12, 2012 (A.M.);
(6) SSA addendum report No. 2 dated March 12, 2012 (Au.M.);
(7) SSA addendum report No. 3 dated March 19, 2012 (A.M.); and
(8) SSA addendum report No. 3 dated March 19, 2012 (Au.M.). The following people testified as
witnesses: Kaytlin McCallister, V.V.,
Francisco Perez, Father, Irene Bernal, and Mother.
A.
The reports established the following facts.
Between August 20 and November 17, 2011, Mother visited
Au.M. three times, and between August 20 and November 9, 2011, Father
visited her three times. Neither Mother
nor Father visited Au.M. between October 14 and November 9. By March 2012, Mother had visited
“consistently†and “ha[d] not missed any visitations,†and although Father had
“generally visit[ed] regularly,†he had missed three visits after
November 9.
The juvenile court had ordered Father and Mother to visit A.M. and
Au.M. separately; however, Father and Mother appeared together at V.V.’s home
to visit Au.M. on one occasion in August 2011 and on another occasion a month
later. Mother and Father used each
other’s cell phone. Mother and Father
repeatedly denied visiting Au.M. together, but, when presented with photographs
of a joint visit, each blamed the other and denied knowing the other would be
there.
Father admitted to V.V. he had slapped Mother on August 21,
2011. Father was not honest with his
therapist and did not tell her about the slapping incident. The therapist reported, “[w]hat [Father]
reports is not consistent with what the social worker reports i.e.,
. . . [Father] did not share the slapping incident with [Mother,] and
[Father] reports no contact with [her].â€
In September 2011, Father’s therapist reported that “father continues to
deny having contact with [M]other and denied the slapping incident.â€
V.V. recorded and played for the social worker a conversation
between V.V. and Mother on August 20, 2011. In that conversation, Mother stated: “He [father] hits me all the time. I love him so much, why does he hate me so
much? What did I ever do? This is not my fault.†Mother related to V.V. the Truck
Incident. V.V. previously had noticed
the injuries, but Mother had said she had fallen off a bicycle. In the recorded conversation, Mother admitted
she had lied to V.V. When, during the
recorded conversation, V.V. asked Mother why she put up with Father’s abusive
behavior, Mother replied, “I have no where else to go.â€
The degree of Father’s progress in therapy could not be measured
because Father “continued misleading . . . the therapist.†For that reason, in December 2011, Father
began mental health counseling with a new therapist, Francisco Perez. The new therapist reported that Father
punctually arrived at therapy sessions and actively participated in them. He admitted “non‑compliance problems
with attending therapy†with the previous therapist and stated he understood
“the expectations for the participation [i]n therapy.†The new therapist reported: “I confronted [Father] with the reports of
domestic/spousal abuse incident on August 20, 2011 (driving off with the
mother of child still attached) and issues of dishonesty with previous
therapist and social worker(s) [about] maintaining contact with [M]other
. . . in spite of order not to do so.
He admits that he must be truthful now or he is at risk of losing
custody of his child. [Father] further
stated that he understands that the undersigned will continue to communicate
with the assigned social worker and any disparities in ‘communications’ will
not be tolerated and will carry serious consequences for him, including
termination of counseling with me.â€
As of December 8, 2011, Father had completed 24 weeks of a
domestic violence batterers’ treatment program.
The program report stated Father “continues to express a positive
attitude towards completing social services requirements.†In November 2011, Father completed
orientation into parent support group counseling and, as of early January 2012,
had completed all but three sessions of the eight‑week program. Because of scheduling issues, Father was relieved
of the obligation to complete the parent support group program and would
receive parenting support from his therapist.
Father’s case plan included attendance at 12‑step meetings
three times each week. In mid‑December
2011, Father submitted four 12‑step meeting cards which indicated three
times weekly attendance from July 2011 through December 4, 2011.
As to Father, the reports concluded:
“Throughout the 18‑months of Family Reunification Services,
[F]ather has been provided with ample opportunity and resources to address his
case plan responsibilities. [F]ather has
physically attended his weekly classes which gives the impression of [F]ather
being in compliance with his case plan responsibilities. However, there remains a significant
difference between just merely attending the classes vs. actually listening,
accepting, learning and incorporating the concepts and ideas taught in the
classes to everyday behavior. [F]ather’s
failure to incorporate the lessons learned from his classes have been reported
and highlighted to the Court in court reports.â€
As of February 21, 2012, Father’s compliance with his case plan was
described as moderate.
Although the juvenile court did not order reunification services for
Mother, she completed a substance abuse program and a parenting program. In an SSA report dated January 30, 2012
(not received in evidence), Mother’s substance abuse program instructor stated
Mother had “made significant progress†and was “very impressed with her
turnaround.â€
In January 2012, Mother filed a request for reunification services
as to Au.M., based on changed circumstances.
On January 30, 2012, the juvenile court granted Mother’s request
for reunification services. Mother was
provided referrals to a “Personal Empowerment Program,†a domestic violence
support group, a parenting program, an outpatient substance abuse program, and
health counseling, and was enrolled in a personal empowerment program and a
domestic violence support group, and, by mid‑March, was attending 12‑step
meetings. Her therapist reported that
Mother “seems very motivated to stay off drugs†and “is making major efforts to
attend sessions and visits and to comply with her reunification plan.†The SSA addendum report, dated March 2,
2012, stated Mother “appears to be in compliance with her case plan
responsibilities.â€
As to A.M., SSA recommended termination of
SSA recommended continuation of reunification services.
The March 19, 2012 addendum reports included police reports for
the Irvine Incident and for the Moreno Valley Incident.
B.
1. Kaytlin McCallister
Kaytlin McCallister was the SSA social worker assigned to this
case. She testified Father was not ready
to reunify with A.M. or Au.M. and had not made sufficient progress in his case
plan because Father continued to have domestic violence issues and had lied
about not having had any contact with Mother.
McCallister described Father’s compliance with his case plan as
“minimal.†She confirmed that Father
attended nearly every visit with A.M. and Au.M. since September 2010, had
attended nearly every session of his 52‑week domestic violence program in
Riverside County, and had attended nearly every individual therapy
session. She explained that she had
described Father’s compliance as minimal because “[i]t’s one thing to physically
attend classes and sit through them.
That’s one part. The other part
is to actually engage in the program of the classes, whatever is being taught,
and be honest about what’s really going on in one’s life; acknowledge the
problems one is having, meaning being honest about what is going on and taking
personal responsibility for one’s behavior[] and actions.â€
McCallister had listened to the recorded telephone conversation
between Mother and V.V., and believed Mother was being honest when she said
that Father had hit her. Father had told
McCallister that Mother’s statements on the recording were false, which led
McCallister to conclude Father was not able to be honest about and take
personal responsibility for his actions.
McCallister testified: “In the
cycle of domestic violence, which I believe [is] similar to the addiction
process, again, if one doesn’t acknowledge that there is a problem and one is
behaving in a certain fashion, they cannot change their behavior[].â€
McCallister testified Father called once to cancel an appointment
with her but later told his therapist that McCallister had cancelled the
appointment. She did not believe there
had been a miscommunication or misunderstanding. McCallister confronted Father and told him he
had lied. This incident was significant
to McCallister because “[h]onesty . . . is very important in this
situation in order for a person to change . . . behavior[].â€
When asked if she believed Father would be able to reunify with
Au.M. if services were extended for another six months, McCallister
testified: “My hope is that [F]ather
would make more progress if given more time.
I think the problem right now is that [F]ather is not being honest and
acknowledging his behavior[]. That is
what is holding up the process. If he
would become honest, really talk about what is going on in his life, the
events, . . . the concerns that I have, . . . why he
behaved the way he did, why he lashed out at [M]other, only then can he really
start making progress and start to change his behavior[].†When asked the same question as to reunifying
with A.M., McCallister testified, “I guess not because he has not been honest
for the 18 months.â€
According to McCallister, she had told Mother and Father before
August 20, 2011, they were not to visit A.M. or Au.M. together, but Mother
and Father disobeyed that order.
McCallister testified that Mother had been granted reunification
services and was following her case plan “to a T.â€
2. V.V.
V.V., who was Au.M.’s caretaker, testified that Father was scheduled
to visit Au.M. at 3:00 p.m. on September 4, 2011, during a birthday
party for his niece at a park. Mother
and Father arrived together in the same car and stayed at the party until 7:00 p.m. V.V. had not invited Mother to attend the party
and did not drive her or Father to the party from her house.
Photographs taken at the birthday party confirmed both Mother and
Father were there. Previously, on
August 20, 2011, Mother and Father arrived together for Father’s scheduled
visit with Au.M. In fact, Mother and
Father visited together “the majority of the time[].â€
V.V. testified her home/business telephone answering machine advises
callers their calls may be recorded.
V.V.’s answering machine recorded a conversation between Mother and V.V.
from August 20, 2011. In this
conversation, Mother said she was upset because she had been fighting with
Father, whom she described as “a very abusive person.†For 18 to 20 minutes, Mother, who was crying,
talked about the reasons A.M. and Au.M. were taken into protective custody and
“indicate[d]†that Father recently had been violent to her. V.V. told Mother that she was stupid for
putting up with “that type of violence†and that Father “needed help.â€
Sometime before August 20, 2011, Mother had arrived with Father
at V.V.’s home. Mother had scrapes on
her elbow, shoulder, hand, and leg. V.V.
asked her what had happened, and Mother said she had fallen from a bicycle. During the recorded telephone conversation on
August 20, Mother said her scrapes were caused “by [Father] dragging her
from the truck†and she “was being beat up all the time.â€
After August 20, 2011, V.V. would not let Mother and Father
come to her house together. Soon
thereafter, Mother accused V.V. of being a liar. Father called V.V. and said he had slapped
Mother because she had spit on him. V.V.
recorded her conversation with Father.
The juvenile court listened to the audio recording, which was translated
into English. In the conversation,
Father said: “I told [Mother] to get the
f[] out of here, you f[]ing bitch, f[]ing bitch. Well, she got me pissed off, you know, so I
slapped her because[,] hey, I hit her.â€
(Italics omitted.)
3. Francisco Perez
Francisco Perez, a licensed clinical social worker, began giving
Father therapy sessions in December 2011 and, from then until the time of the
hearing, had provided him a total of 10 sessions, each of about 50 minutes in
length. Father had been compliant in
scheduling and attending sessions.
Perez initially was asked to work with Father on the issues of
honesty and domestic violence, and, recently, had been asked to work with
Father on parenting skills too. On the
issue of domestic violence, Perez worked with Father “to help him to explore
his personal behavior[], for him to describe to me how they affect other
people, how he expresses anger, how he identifies the different forms of anger,
frustration.†Perez believed Father
listened to him and accepted his advice, and rated Father’s progress as eight
on a scale of one to 10. Perez was not
concerned that Father would again engage in domestic violence and did not
believe he presented a risk to A.M. and Au.M.
Perez would have permitted Father to have unsupervised visits with A.M.
and Au.M., but not overnight visits.
Perez believed that with an additional three and a half months of
therapy, Father would be ready to have custody of A.M. and Au.M. Perez had related this conclusion to the
social worker, but she questioned his opinion and told him to speak again with
Father about the incident in which Mother fell out of the truck and the
photographs showing Mother and Father together while visiting Au.M. Perez did so, and testified Father took
responsibility for his actions. Perez
testified he believed the social worker was not listening to him and accepting
his opinions.
At the beginning of therapy with Perez, Father acknowledged he had
not been honest with the first therapist and had had some difficulties with
her, the social worker, and Mother.
Father was angry and would get defensive to protect himself from what he
perceived to be an abusive system set against him. He told Perez during therapy sessions that he
had had several “altercations†with Mother, most of which were verbal, and at
least one of which was physical. Father
acknowledged he should not “get physical and argue and struggle with
[M]other.â€
Perez was not “a hundred percent satisfied†that Father was trying
his best to be honest, and Perez characterized honesty as “the breakthrough
issue.†Perez testified: “[Father] has come across to me as somebody
who has difficulties with [M]other, and perhaps with authority figures, but he
comes across as being very caring about his children as a father. And clinically he does not present a history
of physically being violent with the children; not just his children but other
children as well.†Perez testified he
had not had enough therapy sessions with Father to render an opinion on the
possibility of returning A.M. and Au.M. to Father’s custody.
Other than the Truck Incident, Father never told Perez of any
incident in which Father hit Mother.
4. Father
Father testified he had four children, one by adoption, from a
previous marriage. At the time of the
review hearing, those children were ages 21, 17, 14, and 11. He had
been in a “relationship†with his first wife for 18 years, and claimed he never
had a physical fight with her. Father
testified the social worker in this case only once asked him about his
relationship with those four children, which he described as “[g]ood.â€
Father broke up with Mother about three months before Au.M. was
born. Father testified they broke up
because “she wanted to be with me and I didn’t want to be with her.â€
They never married.
Father testified he argued with Mother at V.V.’s house on
August 20, 2011 because it was not Mother’s day to visit and he had asked
her to leave. Mother would not leave, so
Father did. Father denied arriving with
Mother to that visit, denied hitting her during the argument, and denied ever
slapping her. Father did not remember
whether he told V.V. that he had slapped Mother.
Father denied arriving with Mother at the birthday party on
September 4, 2011. He testified it
was his day to visit and Mother “show[ed] up.â€
Several months before the review hearing, Father was at a laundromat
washing his clothes, and Mother “appeared.â€
She confronted Father with a photograph of another person holding
Au.M.
Father explained the Courthouse Headbutting Incident as
follows. Father and Mother argued in the
hallway. Father went to the drinking
fountain and bent down to take a drink.
He sensed someone close behind him.
He stood up from taking a drink, turned around, and his face
accidentally hit hers. Father was
arrested.
Father denied hitting Mother during the Irvine Incident. He testified that while he drove his truck,
Mother became “very irritated†and “started to hit me in my arm.†He tried to calm her, but he was stopped by an
Irvine police officer and arrested.
Father testified that, in the Moreno Valley Incident, he had taken
his cell phone from Mother’s hands because he wanted to call his brother and
Mother would not give him his phone.
When Father finished the call, he gave the phone back to Mother, she left,
and “that is all that happened.†About
two months later, police officers arrested him.
He was convicted of domestic
violence.
As for the Truck Incident, Father testified that while he was
backing up his truck, Mother knocked on the window and asked him to open the
door so they could talk. Father said he
did not want to talk, and drove off at a speed of about five miles an
hour. Father looked back and saw Mother
on the ground. He did not know how she
fell.
As to the appointment cancellation incident, Father testified he
called McCallister to cancel an appointment, and she said that was “fine†but
they would need to make another appointment.
Later that day, when Father arrived for a therapy appointment with
Bernal, she asked about his appointment with McCallister. Father said, “[s]he canceled.†He had interpreted McCallister’s comment
about rescheduling to mean they had both cancelled, but later realized he
misspoke and he should have said, “I canceled the appointment.†After that, McCallister asked him many times
why he had lied. That incident and
another one made Father unwilling to say much to McCallister. In the other incident, Father had told
McCallister he had doubts whether he needed to go to a 12‑step
program. McCallister wrote in a report
that Father had said “[p]rove it to me,†which Father denied saying.
5. Irene Bernal
Irene Bernal, a licensed clinical social worker, saw Father once a
week for about six months, starting in June 2011, until she was replaced by
Perez. During the course of therapy
sessions, she and Father discussed his relationship with Mother and his arrests
on charges of domestic violence. She
believed Father had learned the reasons for his arrests and accepted responsibility
for them.
Father had discussed with Bernal the Irvine Incident and the Moreno
Valley Incident. He had told Bernal that
he did not have a history of domestic violence and anger problems, but his
relationship with Mother caused him to have “angry feelings.†Bernal believed that Father had “learned what
domestic violence is, what is acceptable behavior and what is not†and knew
“what abuse is, emotional abuse, physical abuse.â€
As to the cancelled appointment incident, Bernal believed Father and
McCallister had a miscommunication.
McCallister had spoken with Bernal about that incident at least three
times and had told her, “I feel that [Father] lies, that he lied about that
situation.â€
Bernal testified that during August and September 2011, she had
asked Father at least every other week whether he had contact with Mother. Father denied having had any contact with
Mother and told Bernal, “I don’t have anything to do with her.â€
Bernal did not believe Father was a pathological liar. She described Father, who did not miss any
weekly appointments, as “open and receptive†to learning, and believed he was
making “good progress†in therapy. She
testified that Father had told her he was frustrated with the social worker
because she did not allow him more visits with A.M. and Au.M., did not work
with him on scheduling meeting times that did not interfere with his work, did
not understand him, and was “extremely hard on him.â€
Bernal testified that changing therapists, after six months of
weekly sessions, would be disruptive and could slow the patient’s progress.
6. Mother
Mother testified that Father committed physical, emotional, and
verbal domestic violence against her.
Father engaged in emotional or verbal violence by yelling at Mother and
calling her names. Mother yelled at
Father too, and she acknowledged she often started the arguments.
During Mother’s three‑year relationship with Father, he
committed physical violence against her five to six times. The first incident was the Irvine
Incident. Mother acknowledged she was
the physical aggressor in that incident.
While they were driving in his truck, she was hitting Father and he
pushed her to the side to protect himself.
When A.M. was six months old, Father and Mother got into a heated
argument, and Father grabbed A.M. from Mother’s arms. Mother was scared but not injured.
The next incident of domestic violence was the Courthouse
Headbutting Incident. Mother testified she hovered closely over
Father while he was drinking at the water fountain. He stood up and butted his head against her
mouth. Mother demonstrated physically
how Father threw his head to the side and backwards in a butting motion.
The next incident of domestic violence was the Moreno Valley
Incident. Mother testified Father wanted
to use his cell phone, which Mother was holding. Mother told him no, and Father grabbed the
phone from her hands. When asked what
was physically violent about the incident, Mother testified, “[h]e was aggressive
when he was grabbing the phone from me.â€
Mother was not injured; Father’s only physical contact with her was to
touch her hands while grabbing the phone.
She reported the incident to the police, and a restraining order against
Father was issued.
The next incident of domestic violence was the Truck Incident in
August 2011. Mother testified she had
asked Father for a ride to see Au.M. He
refused and got into his truck. As
Father drove off, Mother held onto the back of the truck until she tripped on a
bump in the road and fell off. She had
scrapes on her legs from the incident.
Mother testified that Father was driving slowly. Mother acknowledged she lied by telling V.V.
she fell out of the truck.
The Truck Incident was Father’s last act of physical domestic
violence. Mother testified the only time
Father hit her was during the Courthouse Headbutting Incident. She denied that Father had ever slapped her,
and testified Father lied when he told V.V. he had slapped Mother.
Mother acknowledged both she and Father were at V.V.’s house to
visit Au.M. on August 20, 2011. But
according to Mother, V.V. had told her she could visit “whenever†on that
day. A friend dropped off Mother near
V.V.’s house, then, as Mother walked to V.V.’s house, she saw Father drive up
in his truck. Mother and Father stayed
at V.V.’s house for about two hours and left at the same time. Mother had her friend follow Father to a
Wal-Mart, where Mother got out of the car and asked her friend to leave. Mother confronted Father and asked him why he
did not want to be with her. He yelled
and swore at her, and told her to “get the heck away from him.†Mother yelled back at Father. Mother considered Father’s behavior to be
violent and verbally abusive because he yelled at her and called her
names. Although Mother considered
Father’s conduct to be a violation of the restraining order, she did not report
the incident.
Mother testified she lived off and on with Father in a motel room
until sometime in July 2011, when Father ran out of money and told her to
leave. Thereafter, Mother lived with her
grandmother for awhile and then off and on with a friend. After Mother and Father separated in July
2011, they spoke by telephone once or twice a week until about five or six
months before the review hearing.
Mother testified V.V. invited her to the birthday party in the park
on September 4, 2011. A friend dropped
Mother off at V.V.’s house, and Father arrived about 10 minutes later. Mother testified V.V. drove her and Father to
the birthday party. (V.V. denied this.)
Later that September, Mother went to a laundromat to get change and
ran into Father. She spoke with Father and showed him a photograph of Au.M.
being held by another woman. Father
became annoyed and said, “[w]hat do you want me to do about it?â€
During the recorded telephone conversation, V.V. asked Mother, “why
do you put up with this?†Mother had
separated from Father at that time, but told V.V., “I have nowhere else to go,â€
because Mother wanted V.V. to feel sorry for her. Mother wanted V.V. to believe Mother was
still in a relationship with Father because, she testified, “I wanted
one.â€
Mother considered herself to be a victim of domestic violence and
participated in a domestic violence support group. She acknowledged having anger management
issues that had to be resolved before she could reunify with her children. However, Mother did not tell her social
worker about the domestic violence or anger management issues and did not
request services to address them.
Mother was 28 years old at the time of the review hearing and had
started using methamphetamine at age 17.
She was participating in therapy and attending a substance abuse
program, and had been sober since January 30, 2011. She previously had completed a four‑month
substance abuse and parenting program in Riverside County, and was participating
in a 12‑step program, but had not progressed past the first step.
Mother testified she did not want to live in a life of domestic
violence because “it’s dehumanizing†and she did not want A.M. and Au.M. “to
grow up in a domestic violence lifestyle.â€
Ruling
At the close of the hearing on March 26, 2012, the juvenile
court ordered termination of reunification services and set a
section 366.26 hearing. Credibility
was “the key factor†in the court’s decision.
The court found Mother and Father to be not credible and found V.V. to
be “completely credible.†The court gave
Bernal’s testimony little weight because Bernal “could not remember many
things†and “[t]he evidence shows father was not honest with Miss Bernal.†The court also gave Perez’s testimony little
weight, “[c]onsidering the fact that the evidence shows father has been
dishonest.â€
The court based its decision to a large extent on its finding that
neither Mother nor Father had been honest.
The court stated: “After hearing
the testimony during trial and considering all the evidence, it is clear to the
Court that neither parent has been honest, has any understanding or insight
about domestic violence, how to recognize it and prevent it. Without honesty, the parents haven’t even
taken the beginning steps to address the issues. [¶] I
have considered that it sometimes takes some time for parents to admit their
responsibility and admit their part in domestic violence and start to truly be
open and honest. But father has been in
counseling and programs for many, many months.
And mother, considering the other programs she did on her own and what
she has done since reunification services were reinstated, has also been involved
in programs for months. [¶] But given the depth of the dishonesty by the
parents during this case and particularly during the trial, the parents simply
do not appear to get it or appear to be close to getting it. Without honesty, insight, understanding, the
Court does not believe that they can begin to understand how their issues,
particularly domestic violence, affects their children and how to protect their
children and keep them safe from harm both physically and emotionally. [¶]
Clearly the parents have many issues to work on individually. As a couple, they are completely
dysfunctional. Father continues to deny
he’s ever physically violent with mother.
Father blames mother for all of it.
He takes no responsibility for any domestic violence. In fact, it appears to the Court that father
absolutely believes he has done nothing wrong.
[¶] Mother continues to lie, to
support and protect father and his lies. . . . [¶]
Whether the parents are just incapable of telling the truth and
recognizing domestic violence or it is total denial, the missing key element
has been and is honesty.â€
The juvenile court also found that neither Father nor Mother had
benefitted from services and neither had made “substantive progress†in their
respective case plans. Based on the
evidence, the court found there was no substantial probability Au.M. would be
returned to Mother and Father by the time of the 12‑month review hearing
and, as to A.M., found no legal basis to “continue the case.†The juvenile court found by clear and
convincing evidence that returning A.M. and Au.M. to Mother and Father’s
physical custody would create a substantial risk of detriment “to the safety,
protection, or physical or emotional well being of the child[ren]†and that
Mother and Father had been provided reasonable services.
Review
A.
Hearing Standards
The juvenile court conducted a six-month hearing on Au.M.’s
dependency case. Except as otherwise
provided, when a child is removed from parental custody, the juvenile court
must order the social worker to provide child welfare services to the child and
the parents. (§ 361.5,
subd. (a).) At the six‑month
review hearing, “[i]f the child was under three years of age on the date of the
initial removal, . . . and the court finds by clear and convincing
evidence that the parent failed to participate regularly and make substantive
progress in a court‑ordered treatment plan, the court may schedule a
hearing pursuant to Section 366.26 within 120 days.†(§ 366.21, subd. (e).) If the court finds “a substantial probability
that the child . . . may be returned to his or her parent
. . . within six months or that reasonable services have not been
provided,†then the court must “continue the case to the 12‑month
permanency hearing.†(
Under section 366.21, subdivision (e), the juvenile court
makes two determinations. First, the
juvenile court finds, under a clear and convincing evidence standard, whether
the parent participated regularly and made substantive progress in the court-ordered
treatment plan. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175 (
If the juvenile court finds the parent did not participate regularly and
did not make substantive progress in the treatment plan, then the court decides
whether to schedule a hearing under section 366.26. (M.V.,
supra, at pp. 175‑176.) The court may, but is not required to,
schedule a section 366.26 hearing.
(Id. at p. 176.)
Second, the juvenile court determines whether (1) there is a
substantial probability that the child may be returned to his or her parent
within six months and (2) whether reasonable services have not been
provided. (M.V., supra, 167 Cal.App.4th at p. 176.) “The parent is also entitled to continued
reunification services (with any necessary modifications) if the court makes
either of these findings in favor of the parent. (Ibid.)
“In order to find a substantial probability that the child may be
returned within the applicable time period, the court should consider the
following factors along with any other relevant evidence: [¶]
a. Whether the parent or legal guardian has consistently and
regularly contacted and visited the child;
[¶] b. Whether the
parent or legal guardian has made significant progress in resolving the
problems that led to the removal of the child; and [¶]
c. Whether the parent or legal guardian has demonstrated the
capacity and ability to complete the objectives of the treatment plan and to
provide for the child’s safety, protection, physical and emotional health, and special
needs.†(Cal. Rules of Court,
rule 5.710(c)(1)(D)(i).)
B.
Hearing Standards
The juvenile court conducted an 18‑month review hearing on
A.M.’s dependency case. 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.â€
(§ 366.22, subd. (a).)
Court‑ordered reunification services may not be extended beyond 18
months from the date the child was removed from the parent’s physical custody
unless the juvenile court finds “there is a substantial probability that the
child will be returned to the physical custody of his or her parent
. . . within the extended time period or that reasonable services
have not been provided to the parent.â€
(§ 361.5, subd. (a)(3).)
C.
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.) In doing so, we
consider the evidence in the light most favorable to the juvenile court’s order
and resolve all conflicts in its support.
(In re David M. (2005) 134
Cal.App.4th 822, 828.)
“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.)
Err by Finding No Substantial Probability of Returning Au.M. to Mother’s
Physical Custody Within Six Months.
Mother argues the juvenile court erred when it found no substantial
probability Au.M. may be returned to Mother’s care before the 12-month review
hearing. Mother does not challenge the
juvenile court’s finding as to A.M.
The juvenile court expressly found that Mother and Father failed to
make substantive progress in their court‑ordered treatment plans and
impliedly found that each of them failed to demonstrate the capacity and
ability to complete the objectives of the treatment plan and to provide for Au.M.’s
safety, protection, physical and emotional health, and special needs. These findings were based in large part on
the court’s credibility determinations:
The court gave little weight to Bernal’s testimony and Perez’s
testimony, did not believe Mother and Father were truthful or had the ability
to be truthful, found McCallister “had good insight into what was occurring,â€
and believed V.V. to be “completely credible.â€
As a reviewing court, we do not reevaluate witness credibility. (People
v. Albillar (2010) 51 Cal.4th 47, 60.)
The evidence relied upon by the juvenile court established that
Father had committed acts of domestic violence against Mother, and both Father
and Mother lied about those acts and did not understand how they affected A.M.
and Au.M. “‘Both common sense and expert
opinion indicate spousal abuse is detrimental to children.’†(In re
E.B. (2010) 184 Cal.App.4th 568, 576.)
“Father’s past violent behavior toward Mother is an ongoing
concern. ‘[P]ast violent behavior in a
relationship is “the best predictor of future violence.â€â€™â€ (Ibid.)
As Mother points out, neither the juvenile court nor any party
challenged her sobriety, which she achieved in January 2011. Mother argues her sobriety “constitutes
significant progress and strongly suggests [she] possesses both the ability and
capacity to achieve the treatment objectives and keep her child safe from
harm.†Mother’s sobriety indeed was
progress, but it was one factor for the juvenile court to have considered in
determining whether Mother had made substantial progress toward achieving the
goals of her case plan. Her case plan
goals also included demonstrating progress in a domestic violence prevention
plan and participation in therapy “to address domestic violence and anger
management issues.†The juvenile court
listened to the testimony, weighed the evidence, and found Mother had not made
substantive progress in her case plan.
Mother argues, “there is no evidence in the record to suggest that
[Mother] will return to a relationship with Father or that she will engage in
violence with anyone else.†We
disagree. The juvenile court found that
Mother still harbored deep feelings for Father, minimized and took the blame
for the domestic violence, lied to protect Father, and colluded with him to
present rehearsed testimony. Substantial
evidence supported those findings. V.V.
testified Mother and Father arrived together to visit Au.M. on August 20,
2011 and at the birthday party on September 4, 2011. Mother testified she spoke by telephone once
or twice a week with Father from the time they broke up in July 2011 until
about five or six months before the review hearing. Mother testified that on August 20,
2011, she wanted V.V. to believe she was in a relationship with Father, even
though Mother and Father had separated by that time, because she “wanted one.â€
In her testimony, Mother denied Father ever slapped her and
downplayed his acts of domestic violence.
Her testimony was contradicted by police reports and evidence of V.V.’s
telephone conversations with Mother and Father.
The court, which saw and heard Mother and Father testify, concluded they
had colluded in rehearsing their testimony, and we have no reason to doubt the
court’s judgment. In addition, Mother
had a long history of unresolved anger
management issues.
As of the date of the ruling, Mother had had only 56 days of
reunification services for Au.M. She had
been denied services under section 361.5, subdivision (b)(10) at the
jurisdictional/dispositional hearing because reunification services previously
had been terminated for Au.M.’s half siblings.
She delayed seeking services until January 2012, leaving herself a
limited period of time before the six‑month review hearing in which to
attempt compliance.
Mother’s denial of domestic
violence, inability to confront the issue, and desire to protect Father,
demonstrate, as the court found, she had not made substantive progress in her
case plan and could renew her abusive relationship with Father. We agree with county counsel that “[t]here
was a clear risk that Mother would subject Au[.M.] to domestic violence—with
Father or some[one] else.â€
Err by Finding No Substantial Probability of Returning A.M. or Au.M. to
Father’s Physical Custody.
In his reply brief, Father argues for the first time substantial
evidence did not support the court’s finding that he failed to participate and
progress in court-ordered services. He
argues that for the final nine months of A.M.’s dependency case and for the
entire time of Au.M.’s dependency case, he “complied with every social services
requirement.†He complains that despite
his compliance with his case plan, and progress in therapy, he was not allowed
any unsupervised visits with A.M. or Au.M.
Anger literally drips from the pages of Father’s reply brief. He claims the juvenile court ignored the
evidence favorable to him by employing the “neat trick†of discounting the testimony
of Bernal and Perez. “This father feels
betrayed by the system, as well he should.
He did all that was asked of him, but now because one person thinks he
was not honest, though the 52 week course instructors and the two professional
therapists with whom he spent far more time disagree, he will lose his
children? What evidence did the court
cite? One statement about one slap a
year ago. Now the father loses his
chance to ever have a relationship with his two children. Is that reasonable? Is that good faith? Is that the way the Court system is supposed
to work?â€
Father’s argument, though no doubt sincere, seriously misstates the
evidence and defies the juvenile court’s crucial role in assessing the
credibility of witnesses. The court did
not believe Father and did believe McCallister and V.V. The evidence established that Father was
arrested for domestic violence after the Irvine Incident, the Courthouse
Headbutting Incident, and the Moreno Valley Incident. The last arrest resulted in his conviction,
for which he was required to participate in a 52‑week counseling
program. Despite participating in
counseling, Father hit Mother in August 2011, an act he admitted in a recorded
telephone conversation with V.V. At the
same time, Mother told V.V. that Father hit her all the time.
Father did not tell the truth when he testified he never slapped
Mother, and his account of the Irvine Incident and the Moreno Valley Incident
was at odds with police reports.
Tellingly, Father did not inform Perez of those incidents or the
Courthouse Headbutting Incident. Perez
testified that other than the Truck Incident, Father never told Perez of any
time in which Father hit Mother. Evidence
that Father lied about domestic violence, and failed to fully disclose his acts
of domestic violence to his therapist, fully supported the court’s finding that
Father did not have “even a basic understanding of the issues.†Father’s lack of understanding of the issues
demonstrated that he failed to make substantive progress in his court‑ordered
treatment plan and failed to demonstrate the capacity and ability to complete
the objectives of the plan.
At oral argument, Father’s counsel cited Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 (
issued a writ of mandate vacating an order terminating reunification services
and scheduling a section 366.26 hearing.
In Blanca P., a
subsequent petition alleged the father sexually abused his daughter. (Id.
at p. 1741.) While the parents
“faithfully†attended therapy in
| Description | L.R. (Mother) and S.M. (Father) are the parents of A.M. and Au.M. A.M. was taken into protective custody in September 2010, when he was eight months old, and Au.M. was taken into protective custody in June 2011, a week after she was born. In March 2012, the juvenile court held a combined 18‑month review hearing on A.M.’s dependency case and six‑month review hearing on Au.M.’s dependency case. At the conclusion of the hearing, the court made an order terminating reunification services for Father and Mother in both cases and setting a hearing under Welfare and Institutions Code section 366.26 (all further code references are to the Welfare and Institutions Code). The section 366.26 hea |
| Rating |
