M.M. v. Superior Court CA1/1 ( 2015 )

Filed 4/10/15 M.M. v. Superior Court CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
M.M.,
Petitioner,
A144263
v.
THE SUPERIOR COURT OF THE CITY (San Francisco City & County
AND COUNTY OF SAN FRANCISCO, Super. Ct. No. JD1330443A)
Respondent;
SAN FRANCISCO HUMAN SERVICES
AGENCY et al.,
Real Parties in Interest.
M.M. (mother) petitions for extraordinary writ review of a juvenile court order
terminating reunification services and setting a selection and implementation hearing
under Welfare and Institutions Code1 section 366.26 regarding her son, Y.M. Mother
argues the juvenile court erred by finding that the San Francisco Human Services Agency
(the Agency) provided her with reasonable reunification services. Specifically, she
contends the Agency did not do enough to facilitate her ability to visit Y.M. during a
three-month period earlier in the proceedings. We deny the petition.
BACKGROUND
In February 2013, the Agency filed a petition alleging that Y.M. (age 9), his older
brother, J.M. (age 16), and three of his younger siblings were subject to the juvenile
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All statutory references are to the Welfare and Institutions Code.
court’s jurisdiction under section 300. The petition alleged that mother failed to protect
J.M. against physical abuse by father, who, after accusing J.M. of stealing money, threw
a knife at him, slammed his head against a wall, and further assaulted him. The petition
also alleged that Y.M. and his younger siblings were at risk of physical and emotional
harm due to J.M.’s abuse.
A detention report filed by the Agency later that month noted that the family had
been involved in 19 previous referrals and 11 prior dependency cases and that two older
daughters refused to return home in 2010 and 2011 upon the closure of their cases. At
the detention hearing, the court ordered all five children to be detained in out-of-home
placements pending a further hearing.
In a May addendum report to its March 2013 jurisdiction/disposition report, the
Agency stated it had discovered mother coached Y.M. to fabricate a story to cover up the
assault. Although the Agency did not believe continued out-of-home placement was
warranted for Y.M. and his younger siblings, it recommended the parents complete their
reunification requirements to “give them the skill set . . . to better deal with their
children’s quest for independence” and prevent “the use of physical force to
discipline . . . their . . . children as they enter their teenage years.” Under the
reunification requirements specified in the jurisdiction/disposition report, the parents
were ordered to successfully complete anger management therapy to help them
understand how their conduct led to Agency involvement and removal of their children;
complete parenting education focusing on reasonable expectations of a teenager and
parenting without use of physical discipline; and undergo a psychological evaluation and
accept recommended treatment to address their ability to adequately protect and parent
the children. They were also ordered to meet the case plan service objectives such as
interacting with the children without physical abuse or harm and demonstrating an ability
to consistently, appropriately, and adequately parent the children.
The juvenile court adopted the Agency’s recommendations at the May 2013
jurisdictional and dispositional hearing. The court sustained jurisdiction under
section 300, subdivisions (b) and (j) as to all the children, continued J.M.’s placement in
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foster care, and returned Y.M. and his younger siblings to the parents’ care under the
reunification requirements described in the disposition report.
Y.M. was subjected to abuse upon his return home. In early October 2013, the
Agency filed a supplemental petition under section 387 alleging that mother had been
arrested for child abuse after she stabbed Y.M. in his arm with a pencil and burned one of
his fingers. Y.M. told the social worker that mother stabbed and punched him after
“yelling and cussing” at him about getting ready for school. He stated he did not want to
go home because “his mother told him she d[id]n’t want him any[]more” and he was
afraid his parents would “start hitting him” like they hit J.M. The social worker reported
that the parents “ha[d] not grasped that physical force to discipline their children is not
acceptable” and recommended Y.M.’s home placement be vacated. The court
temporarily directed Y.M. to be under the care, custody, and control of the Agency, and
at a subsequent hearing on October 29, 2013, it ordered father and siblings to have
supervised therapeutic visits with Y.M. and suspended mother’s visitation pending
further order of the court. It appears the court suspended mother’s visitation because on
October 23 the social worker learned a protective order preventing mother from
contacting Y.M. had issued.
In a six-month status-review report filed in late November, the Agency
recommended that Y.M. remain in out-of-home placement, that the parents receive six
more months of reunification services, and that the six-month status-review hearing trail
the section 387 matter. Regarding visitation, the social worker stated she had submitted a
request to arrange for supervised therapeutic visits between Y.M. and his parents and
younger siblings. Mother’s visits did not commence, however, due to the protective
order that was still in place.
At a contested hearing in December, the juvenile court sustained the section 387
petition, continued services to mother in accordance with the case plan, kept Y.M. in
foster care, specified supervised visitation for parents, and set a six-month status-review
hearing on the section 300 petition for the following April. The criminal protective order
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against mother was apparently modified shortly after the December hearing to allow her
to have supervised visits with Y.M.
In March 2014, the Agency filed a section 388 petition asking the juvenile court to
modify its prior order allowing mother to have supervised visits with Y.M. to provide that
visitation between mother and Y.M. not occur until Y.M. came to feel “safe and
comfortable with the idea of visiting his mother.” In support of the petition, the social
worker stated: “On several occasions, the undersigned has talked to [Y.M.] about visiting
his mother. He has disclosed to the undersigned that he did not want to have visits with
his mother because he was afraid. [Y.M.] has also disclosed this to the transportation
workers . . . [taking him] to his weekly visit with his father and siblings.” Y.M.’s
individual therapist reported that when the subject of visitation with mother was broached
with Y.M., his “body language suggested that he was afraid and worried. . . . [His] eyes
would get big and he would be overly alerted [sic], by shaking his head and saying no . . .
[and] would have startled responses when asked about visiting his mother.” The Agency
requested the change in visitation in the hope “that [when Y.M. was] emotionally ready
to visit his mother, he would be comfortable with participating in the therapeutic
visitation process.” Following a hearing in late March, the juvenile court granted the
section 388 petition and suspended mother’s visits with Y.M. Mother did not appeal the
order granting the petition.
In the six-month status-review report, the Agency recommended that Y.M.’s
dependency status be renewed, that he remain in foster care, and that the matter be
continued for a 12-month status review. The report stated that Y.M. had weekly
supervised therapeutic visits with father and the younger siblings but “ha[d] refused to
visit with his mother.” It noted that the parents had completed some of their court-
ordered services but continued to deny any role in physically abusing Y.M. or J.M. and
had not contacted the psychologist to schedule a psychological evaluation as ordered by
the juvenile court. At the May 2014 six-month status-review hearing, the court ordered
that Y.M. remain in foster care. It found that the Agency had made reasonable efforts to
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return Y.M. home and had offered reasonable services to the parents. Mother did not
appeal this order either.
Four months later, the Agency filed a 12-month status-review report
recommending that Y.M. remain in foster care, that mother’s services be terminated, and
that a section 366.26 hearing be set. At the time, Y.M. had not visited with mother since
his placement in foster care almost a year earlier. The report noted that criminal
proceedings against mother for assault, injury to a child, and child endangerment were
still pending. It also reiterated that Y.M. still refused to visit with mother.
The 12-month status-review hearing originally scheduled for October was delayed
until December 2014 and January 2015. At the hearing, Y.M. testified that he enjoyed
visiting his younger siblings and father as long as the therapist was present. He stated
that he did not feel safe going back to live with his parents and that he felt safe with his
foster parents and wanted to stay with them. He could not recall ever asking to visit
mother since he started living with his foster parents, did not want to visit her, and did not
miss her.
Mother’s trial counsel questioned social worker Rose Willis about the lack of
visits between mother and Y.M. during the three months between late December 2013
(when the criminal protective order was modified to allow visits) and the granting of the
section 388 petition in late March 2014 (when the juvenile court resuspended visits).
Counsel asked about the “efforts . . . made by the Agency to start visitation between
mother and Y.M.” during that period. Willis replied that a request was submitted to
Foster Care Mental Health (FCMH) for mother to be included in supervised visits, but
Y.M. told Willis that he did not want to visit mother. Willis also testified that mother
was required, as part of the case plan, to complete certain court-ordered services. She
testified that four of those were complete, five were in progress, and one—a
psychological evaluation—had not been started.
At the conclusion of the hearing, the juvenile court noted that there had been “lots
of testimony about the situation with visitation. And the Court is aware that father has
visited consistently, but . . . these are not just supervised visits, they are supervised
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therapeutic visits, and they have not progressed from that point. [¶] And the Court also
notes that visits with mother were suspended on an earlier occasion, I believe nine
months ago, and that is where they have stayed. And while the Court is aware that . . .
[Y.M.] has not wanted to have visits with his mother, . . . we have information that the
therapist was of the view that having visits with his mother was not in his best
interest. . . . [¶] I will also note that mother has not completed all of her services. . . .
And in this case . . . the psych eval[uation]s were a very important part of the services
that were court[-]ordered, and neither parent has stepped forward to accomplish that,
notwithstanding referrals that were made by the [Agency]. So I will at this time
terminate reunification services for both mother and father.” Thereafter, the court set a
section 366.26 hearing for June 3, 2015, and this writ petition followed.
DISCUSSION
Mother challenges the juvenile court’s finding at the 12-month status-review
hearing that the Agency provided her with reasonable reunification services, “specifically
with regard to the period in time between December 2013 and March 2014, when
therapeutic visitation was ordered between” her and Y.M. Mother argues that while “the
social worker testified that she did make a FCMH referral for such visits and spoke
regularly to [Y.M. and Y.M.]’s therapist about his readiness for such visits, there were
additional options that might have been explored but were not.” Mother observes that the
social worker did not attempt “to initiate any contact between the proposed therapeutic
visit supervisor and . . . [Y.M.]’s therapist,” and she speculates that a “dialogue between
the two clinicians may have been beneficial in structuring separate visits, which may
eventually have led to joint visits.”
Mother’s arguments are untimely because the issues of visitation and reunification
services during the period between December 2013 and March 2014 were addressed in
two earlier court orders. In late March 2014, the juvenile court granted the Agency’s
section 388 petition on the basis that suspending mother’s visits was in Y.M.’s best
interests. (§ 388, subd. (d); Cal. Rules of Court, rule 5.570(e)(1).) And in late May 2014,
at the conclusion of the six-month status-review hearing, the court determined that the
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Agency made reasonable efforts to return Y.M. home and offered reasonable services to
the parents. Both orders encompassed visitation and related services between December
2013 and March 2014, and both were final and immediately appealable. (In re Aaron R.
(2005) 130 Cal.App.4th 697, 703 [ruling on section 388 petition is separately appealable
order]; In re Cicely L. (1994) 28 Cal.App.4th 1697, 1705 [orders made at six-month
status-review hearing are immediately appealable].) Accordingly, mother was obligated
to raise her objections about visitation and services by appealing those two orders, and
she cannot raise these issues for the first time in a challenge to the order setting the
section 366.26 hearing. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811
[father forfeited right to object to disposition and six-month status-review orders by
failing to challenge them until appeal from 12-month status-review order]; see In re
Meranda P. (1997) 56 Cal.App.4th 1143, 1151 [“an appellate court in a dependency
proceeding may not inquire into the merits of a prior final appealable order on an appeal
from a later appealable order”].)
In sum, because mother did not appeal either the section 388 or the six-month
status-review order, and because the statutory time to file any such appeal has long
expired, mother has waived any challenge to the reasonableness of services and visitation
during the period from December 2013 to March 2014. (In re Jesse W. (2001) 93
Cal.App.4th 349, 355 [“The waiver rule as applied in dependency cases flows from
section 395, under which the dispositional order is an appealable judgment, and all
subsequent orders are directly appealable without limitation . . . [and] [a] consequence of
section 395 is that an unappealed disposition or postdisposition order is final and binding
and may not be attacked on an appeal from a later appealable order”].)
Mother does not articulate any other specific challenge to the juvenile court’s
finding that she was provided with reasonable reunification services. In any case, our
review of the entire record shows substantial evidence supporting the court’s finding that
reasonable services were provided. (See Katie V. v. Superior Court (2005)
130 Cal.App.4th 586, 598 [in evaluating challenge to reasonableness of reunification
services provided, appellate court determines “whether substantial evidence supports the
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[juvenile] court’s finding, reviewing the evidence in a light most favorable to the
prevailing party and indulging in all legitimate and reasonable inferences to uphold the
court’s ruling”].) Our review also shows that mother did not avail herself of all the
services offered. At the time of the 12-month status-review hearing, which was held
almost two years after the section 300 petition was filed, mother still had not completed
the majority of her court-ordered reunification services, and in particular she had taken no
steps to engage in a psychological evaluation to address her ability to adequately protect
and parent her children. (See In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220
[“Reunification services are voluntary, and cannot be forced on an unwilling or
indifferent parent”]; In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5 [“The
requirement that reunification services be made available to help a parent overcome those
problems which led to the dependency . . . is not a requirement that a social worker take
the parent by the hand and escort him or her to and through classes or counseling
sessions. A parent whose children have been adjudged dependents of the juvenile court
is on notice of the conduct requiring such state intervention”].) In sum, mother has failed
to show any error in the court’s finding that she was provided with reasonable services.
DISPOSITION
Mother’s petition for an extraordinary writ is denied on the merits. The decision is
final in this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
Mother’s request for a stay of the section 366.26 hearing, currently scheduled for June 3,
2015, is denied as moot.
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_________________________
Humes, P.J.
We concur:
_________________________
Margulies, J.
_________________________
Dondero, J.
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