Margarita S. v. Super. Ct. CA4/1 ( 2014 )

Filed 11/6/14 Margarita S. v. Super. Ct. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MARGARITA S., D066383
Petitioner, (San Diego County
Super. Ct. No. SJ12868E)
v.
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY et al.,
Real Parties in Interest.
PROCEEDINGS for extraordinary relief after reference to a Welfare and
Institutions Code section 366.26 hearing. Daniel G. Lamborn, Judge. Petition denied;
request for stay denied.
Dependency Legal Group of San Diego and John P. McCurley for Petitioner.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Real Party in Interest San
Diego County Health and Human Services Agency.
Margarita S. seeks writ review of the juvenile court's July 18, 2014, order setting a
Welfare and Institutions section 366.26 hearing regarding her youngest daughter, Q.S.
(born 2014). (Undesignated statutory references are to the Welfare and Institutions
Code.) Margarita contends the court erred by denying reunification services based on her
failure to reunite with a sibling or half sibling of Q.S. in a previous dependency
proceeding. (§ 361. 5, subd. (b)(10).) We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2013, the San Diego County Health and Human Services Agency
(Agency) filed petitions for D.C., L.C. and R.S. after the minors were removed from
Margarita's home because of the "filthy and unkempt" conditions of the home and
concerns about Margarita's marijuana use. The children had not been attending school
regularly, there was minimal food in the home and they had ongoing lice and skin rash
issues. Margarita gave birth to P.I. in May 2013. In July 2013, P.I. was removed after
allegedly being "exposed to violent confrontations" involving Margarita and the father.
Although Margarita was ordered to participate in services, she failed to do so and her
services were terminated in March 2014.
Q.S. was born in May 2014. At that time, Margarita and Q.S. tested negative for
controlled substances. The Agency filed a petition alleging Q.S. was at substantial risk
because her sibling had been abused or neglected, exposed to domestic violence and
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substance abuse. Q.S. was detained in the home of the paternal grandmother. At the
combined jurisdiction and disposition hearing held in July 2014, the Agency and counsel
for Q.S. argued that services should not be provided. At the dispositional hearing, after
considering the evidence and argument by counsel, the court found section 361.5,
subdivision (b)(10) applied, it denied services and set the matter for a section 366.26
hearing.
Margarita filed a petition for review of the court's orders. (§ 366.26, subd. (l); Cal.
Rules of Court, rule 8.452.) We issued an order to show cause, the Agency responded
and the parties waived oral argument.
DISCUSSION
It is presumed in dependency cases that parents will receive reunification services.
(Cheryl P. v. Superior Court (2006) 139 Cal. App. 4th 87, 95.) Nonetheless, subdivision
(b) of section 361.5 "sets forth a number of circumstances in which reunification services
may be bypassed altogether. These bypass provisions represent the Legislature's
recognition that it may be fruitless to provide reunification services under certain
circumstances." (Francisco G. v. Superior Court (2001) 91 Cal. App. 4th 586, 597.)
Subdivision (b)(10) of section 361.5 provides that services need not be provided if the
parent failed in a previous dependency to reunite with a sibling or half sibling of the child
who is the subject of the current petition.
To apply this provision, the juvenile court must find by clear and convincing
evidence that (1) the parent had previously failed to reunify with a sibling, and (2) the
parent has not made a reasonable effort to treat the problems leading to the removal of the
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sibling. (§ 361.5, subd. (b); Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p.
96.) In assessing a parent's efforts to overcome the problem that led to the removal of a
child's sibling, the juvenile court considers the duration, extent, and context of the
parent's effort and the degree of progress. (R.T. v. Superior Court (2012) 202
Cal. App. 4th 908, 915.) We must affirm an order setting a section 366.26 hearing if it is
supported by substantial evidence. (James B. v. Superior Court (1995) 35 Cal. App. 4th
1014, 1020.) We do not consider the credibility of witnesses, attempt to resolve conflicts
in the evidence or weigh the evidence and must draw all reasonable inferences in support
of the court's findings. (Id. at p. 1021.)
Margarita does not dispute satisfaction of the first prong of section 361.5,
subdivision (b)(10), that she previously failed to reunify with a sibling or half sibling of
the minor. She argues substantial evidence did not support the finding she had failed to
make reasonable efforts to treat the problems that led to the removal of Q.S.'s siblings or
half siblings.
When Q.S. was born, Margarita denied having a drug problem, denied any history
of domestic violence, blamed others for her previous dependency and did not
acknowledge any responsibility. Although the juvenile court found that Margarita had
made reasonable efforts to resolve her substance abuse, it noted that she had made no
effort to address her history of domestic violence and child neglect. Substantial evidence
supports these findings.
In July 2013, the Agency removed P.I. from Margarita's care after she had been
exposed to acts of domestic violence. Nonetheless, Margarita failed to participate in
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previously ordered domestic violence treatment and failed to comply with three safety
plans that had been put into place. At the time of Q.S.'s detention, Margarita denied any
history of domestic violence. When a social worker reminded Margarita of a recent
altercation with the father where the father ripped clothing and threw objects, Margarita
responded, "[i]t was funny, not violent," apparently unaware that thrown objects can hurt
an infant. Moreover, in June 2014, only a month before the jurisdiction and disposition
hearing, Q.S.'s paternal grandmother informed the Agency that Margarita and the father
"fought a lot" and the father often telephoned "crying, acting like a 12 year old" stating
that Margarita was going to beat him up. This evidence revealed that domestic violence
remained an untreated and valid concern.
Substantial evidence also supports the court's decision to deny services to
Margarita based on her failure to make reasonable efforts to address the neglect of Q.S's
three older half siblings. The Agency removed Q.S.'s half siblings from Margarita
because her home was filthy, there was minimal food, the children were not regularly
attending school and had lice and skin issues. Margarita failed to participate in any
services to address these issues. Although Margarita began a 52-week parenting program
just before the jurisdiction and disposition hearing, she had attended only two classes.
This effort was too little and too late, especially given the social worker's report that
Margarita did not take personal responsibility for the condition of her children and
showed no insight as to how she placed them in danger. The social worker ultimately
concluded that Margarita did not have the capacity to be a safe and nurturing parent.
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Additionally, at the time of the hearing it appeared Margarita did not have a place to live
or a job.
In summary, the record supports the juvenile court's conclusion that Margarita did
not make a reasonable effort to treat the problems that led to the removal of Q.S.'s
siblings or half siblings.
DISPOSITION
The petition is denied. The request for a stay is denied.
MCINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
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