M.D. v. Superior Court CA4/2 ( 2021 )

Filed 2/11/21 M.D. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
M.D.,
E076249
Petitioner,
(Super.Ct.No. J282487)
v.
OPINION
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,
Respondent;
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Christopher B.
Marshall, Judge. Petition denied.
Friedman & Cazares and M. Teri Lim for Petitioner.
No appearance for Respondent.
Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County
Counsel, for Real Party in Interest.
1
M.D. (mother) filed this petition for extraordinary writ after the juvenile court set
a hearing to terminate her parental rights. Mother and father, who is not a party to the
writ, have one daughter, A.V. She was five months old when the juvenile court took
jurisdiction over her and removed her from her parents’ custody based on allegations of
physical abuse. During the reunification period, mother was offered and participated in
services for 12 months. At the 12-month review hearing (Welf. And Inst. Code, § 366.21,
subd. (f)(1), unlabeled statutory citations refer to this code) the juvenile court followed
the recommendations of San Bernardino County Children and Family Services (the
department) by terminating services and setting a permanency planning hearing under
section 366.26.
Mother challenges the order, claiming there was insufficient evidence she didn’t
benefit from services, that return would be detrimental to the child, and that there was no
substantial probability of return. We find there is substantial evidence and deny the
petition.
I
FACTS
A. Facts Leading to Detention
The subject of this dependency proceeding is mother’s nearly two-year-old
daughter A.V. As of September 2019, A.V. was five months old. Mother and father lived
apart but were in a relationship.
2
On the weekend of September 7 and 8, 2019, A.V. was with her father. On
September 8, mother received a text from father saying A.V. fell off the bed while he was
trying to change her. When father returned A.V. to mother on the evening of
September 8, mother noticed bruises on the left and right side of the child’s face. On
September 10, mother noticed A.V. appeared sick and took her to the doctor. The doctor
said the injuries were consistent with mother’s explanation of the alleged accident, but
also expressed concern about A.V.’s wellbeing.
On September 11, 2019, the department received a referral regarding suspected
physical abuse. When a department social worker arrived at mother’s home to
investigate, she observed bruising on both sides of A.V.’s face, with noticeably more
bruising on the right side. She also noticed redness in the child’s eyes. The social worker
took pictures and sent them to a forensic doctor, who recommended taking the child to
the hospital. At the hospital the doctor asked whether either parent was left handed, given
the bruising was predominantly on the right side of A.V.’s face. Mother said father was
left handed, but said she didn’t have any concerns about him.
The social worker then went to father’s home. Father attempted to demonstrate
how A.V. fell off the bed, but the social worker didn’t think the re-creation was
consistent with A.V.’s injuries.
The next day the doctor told the social worker A.V. “ ‘presented with extensive
right side facial and scalp bruising . . . consistent with a hand slap injury.’ ” The doctor
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expressed concern mother didn’t seek immediate medical attention upon seeing the
child’s injuries following her return from father’s care.
That evening, Ontario police arrested father for child abuse and child
endangerment. The next day, a San Bernardino sheriff’s deputy served a detention
warrant on mother and removed A.V. from her custody.
On September 17, 2019, the department filed a section 300 petition with
allegations of serious physical harm under subdivision (a), failure to protect under
subdivision (b), and severe physical abuse under subdivision (e). At the detention hearing
on September 18, the juvenile court ordered A.V. detained with the department.
B. Jurisdiction and Disposition
The social worker interviewed mother on September 24, 2019. Mother said that
father told her the alleged accident happened around 3:00 a.m. on September 8, even
though he didn’t tell her about it for several more hours (at around 11:00 a.m.). Father
sent her a video of A.V., which she showed the social worker. According to the social
worker, though the video was grainy and A.V. was far from the camera, there was still
visible discoloration on her face. Mother said she was concerned when she received the
video and message, but felt father was capable of taking A.V. to the doctor and A.V.
seemed to otherwise be acting normally. When A.V. returned to mother’s care, mother
iced the bruises because she didn’t think the injuries were serious enough to warrant a
trip to the emergency room. Mother said A.V. was safe with her, and “if the Department
wants [her] to ‘remove’ [A.V.] from [father] then that is what she will do.”
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Mother also admitted to a history of methamphetamine use. She said she used
around 2007, starting at once a month but increasing to once a week, but said she hadn’t
used since 2012. She denied using any other drugs and said she drank “around a drink
every three years.”
On September 26, 2019, the social worker also spoke with mother’s adult
daughter, who was living with mother at the time of the incident. The adult daughter said
that A.V. had visible bruises when father returned her to mother and that she “would be
scared to even see an adult hurt like that.” She also said she told mother to take A.V. to
the hospital, was confused when she didn’t, and thought the only explanation for why
mother didn’t was because she was in shock.
The same day, the department referred mother for on-demand drug testing. The
test came back positive for marijuana, but mother continued to deny any drug use for the
two months prior to the test.
On September 27, the department referred mother to individual counseling and
parenting classes via a case plan referral. On October 2, 2019, the department received a
medical report stating that A.V.’s injuries included “extensive facial bruising and
bilateral subconjunctival hemorrhages,” which were “not consistent with the explanation
provided.” The report stated the injuries were consistent with someone using force that
would wrap around the child’s face, such as a strike, slap, forceful pressure, or
smothering. It also said A.V.’s hemorrhaging was “consistent with smothering.”
The same day, the department referred mother to substance abuse counseling.
5
The department filed a report on October 7, 2019. The report recommended that
the court bypass reunification services for both parents and set a permanency planning
hearing under section 366.26 due to the seriousness of A.V.’s injuries. The department
believed father caused A.V.’s injuries and that they were non-accidental. The department
was also concerned that mother didn’t seek immediate medical treatment for the child
and denied that father injured the child or failed to seek appropriate medical care.
On October 8, 2019, the department filed an amended section 300 petition which
added allegations that both parents had a history of substance abuse. Mother tested
negative on two drug tests later that month. On November 5, the parents moved in
together, but failed to update their new address. They did not update their address until
December 4, 2019.
On November 26, 2019, the department contacted the parents’ counseling center
for an update. The center reported that mother attended six individual counseling sessions
and five parenting education sessions. The center said her attendance was consistent and
she was making good progress.
The counseling center also provided an assessment report, which noted that after
the incident mother “did not see signs of injuries and did not feel the need or urgency to
take daughter in for an evaluation,” and only did so because she thought A.V. had a cold.
The report also said mother claimed she didn’t know what injuries the doctor’s found.
Nevertheless, the center felt mother’s progress was good, and that she was “open and
honest” in discussing the “history of events.” It also said that mother acknowledged she
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should have taken A.V. to the hospital sooner, and that she “accepted attorneys [sic]
recommendation of ending relationship with,” father. In general, the report indicated
mother’s prognosis was good and that she understood why the department got involved
and how it impacted A.V. However, it also disclosed that mother needed to continue to
work on gaining “ ‘insight about how abuse and neglect has impacted the child,’ ” that
she “has a long history of maladaptive coping skills,” was struggling with depression, and
that it “will take a considerable amount of time to address and support” her issues.
On December 4, 2019, the department updated its report to the court just prior to
the jurisdiction and disposition hearing. The department changed its position to
recommending that mother be provided with reunification services, rather than bypassing
services. It proposed a case plan for mother which included general counseling, parenting
education, and substance abuse treatment and testing. Of the 10 objectives of this case
plan, the final two were that mother show she would not let others physically abuse her
child and that she would accept responsibility for her actions.
The court held a contested jurisdiction and disposition hearing on December 4,
2019. The department successfully moved to dismiss the allegations of serious physical
abuse under section 300, subdivision (e). The court found all other allegations true, over
mother’s objection. It then formally removed A.V. from her parents, approved the
department’s case plan, and ordered family reunification services for both parents.
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C. The Six-Month Review Period
The parents had supervised visitation with A.V. once a week for two hours. Prior
to the COVID-19 pandemic, both parents consistently attended these face-to-face visits.
They played with, interacted with, and cared for A.V. appropriately during these visits.
After the pandemic, visitation became more infrequent. For instance, while the parents
called A.V. five times in April 2019, they called only once in May as of May 26, 2020,
the date the report was filed. Mother said this was because of her new work schedule, as
she’d started a job in late March or early April working 6:00 p.m. to 4:30 a.m. shifts.
As of May 26, 2020, neither parent had completed their case plan services. Mother
missed several parenting classes and individual counseling sessions, despite these
services being offered online due to COVID-19. Both parents insisted they had
completed their services and didn’t think they “had to do it over again.” Mother felt this
way despite the fact her therapist recommended additional services due to her lack of
awareness about herself and her parenting issues.
Leading up to the review hearing, the department recommended the court
terminate reunification services as to both parents and hold a permanency planning
hearing under section 366.26. The department said the parents refused to acknowledge
their responsibility for A.V.’s removal and hadn’t “demonstrated any behavioral changes
toward the goal of reunifying with their child.” The department felt they had “failed to
demonstrate any benefit from the services provided,” and therefore further services
wouldn’t help. Overall, the department felt the prognosis for returning the child was
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“guarded” as both parents hadn’t completed their services, hadn’t benefited from the
services provided, missed drug testing, and had unstable housing and employment.
The court held the six-month review hearing on June 4, 2020. At the hearing both
parents requested the court set the case for a contested hearing. The court set a hearing
for August 19, 2020.
The department updated the court on the parents’ status on August 5, 2020. By
then, mother had completed her parenting classes, was compliant with on-demand drug
testing, tested negative, completed eight individual counselling sessions, and started a 12-
step program. The department also reported that mother “can finally accept responsibility
for her daughter being injured,” and knew she needed to set limits and boundaries for
people watching A.V.
The department updated its prognosis for reunification to “fair.” Because of this, it
changed its recommendation from terminating services to providing six more months of
reunification services.
On August 19, 2020, the court adopted the department’s recommendations and
case plan, and set a 12-month review hearing for November 10, 2020.
D. The 12-Month Review Period
Between August 19 and October 21, 2020, mother completed her case plan
services, which included parenting education, individual counseling, and random drug
testing. The department referred her for additional services, but the processing delays due
to the pandemic prevented mother from participating in these services.
9
The department filed an updated status report on October 21, 2020. In this report,
the department remained concerned that mother was still not admitting her role or taking
ownership of her part in the incident which led to removal. Because of this, the
department’s prognosis of return declined from “fair” to “guarded.” In particular, the
department found it troubling that neither parent had yet admitted to or disclosed what
caused the child’s injuries, despite social workers and doctors believing the injuries were
not consistent with their story and were consistent with father physically abusing the
child. Mother’s refusal to acknowledge the possibility that father was responsible for
A.V.’s injuries, combined with her initial refusal to take A.V. to a doctor, called into
question her continued ability to protect A.V. from father or others. However, mother
was working to complete her services and demonstrated benefit from these services,
including new parenting skills.
Based on its concerns, the department once again recommended terminating
services. The department concluded that further services were unlikely to benefit mother
because she had failed to benefit from the services already provided and there
“remain[ed] great concerns for the parents’ ability and capacity to protect the child from
any future exposure to physical and emotional abuse.”
On October 27, 2020, the court continued the 12-month review hearing to
December 9. The department filed an update on the parents’ status on December 7. At
that time mother was participating in group therapy, individual counseling, and drug
testing.
10
The court held the 12-month review hearing on December 9, 2020, and heard
testimony from father, mother, and the social worker. Father revealed that he and mother
no longer lived together as of December 3. He said they made the decision to stop living
together because someone at mother’s aftercare program “recommended that we be apart
until the case ends.” However, according to him they were still in a relationship.
Mother said the services she had completed taught her how child abuse affects
children, how it can come from those close to children, and in particular that “it’s very
important to seek medical attention” for any injury, and not just count on her own
observations. She said she understood the seriousness of her failure to take A.V. to the
hospital. She acknowledged that the department was concerned she refused to take
accountability for how A.V. was injured, but when asked how A.V. was injured she still
insisted it was because of a falling accident. Specifically, mother said A.V. “fell off of the
bed while her dad was changing her diaper . . . [s]he hit, I believe, the toy. There was a
toy at the end of the bed and the floor.” Mother claimed she was “completely separated”
from father. When asked whether she planned to reunify with him, she took a long pause
before saying no. She later revised her answer to say that she and father were “on a
break.”
The social worker said she didn’t think mother was taking responsibility for her
role in A.V.’s injury. However, when pressed to give a specific example to support this
opinion, the social worker said, “I don’t really have any—much observation.” The social
worker also did not identify what services mother would need to complete to convince
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the social worker that she was taking responsibility for her role in A.V.’s injuries. The
social worker confirmed that both parents continued to deny any abuse or acknowledge
that the incident was the result of abuse. When asked whether her concern for the child’s
safety upon reunification was based on mother and father’s continued relationship, the
social worker said no. She said she never advised mother to separate from father. Instead,
she said she based her recommendation on the parents’ capacity and ability to protect
A.V., not their relationship.
The court concluded that mother’s failure to accept that father physically abused
A.V. was sufficient evidence neither parent had benefited from services, that returning
the child to mother’s custody would create a substantial risk of detriment, and that there
was no substantial possibility of return. In addressing the fact that mother’s therapist said
mother had begun to take responsibility, the court acknowledged that mother took
responsibility for not taking A.V. to the doctor, but still insisted the actual cause of the
injury was an accident. The court felt that both parents “believe we’re still just dealing
with, basically, [an] accident[] . . . . That’s not what the issue is in this case. And because
there isn’t a recognition on the parents’ part of that significant issue, then this Court is
left with the concern of the ability to protect on the part of the mother without that
recognition . . . . So the absence of the recognition of that significant issue to this Court as
it considers this indicates to the Court that there hasn’t been a benefit from services.”
When addressing whether there was a substantial probability of return, the court was
blunt that it “cannot make that finding when the parents don’t recognize that this case
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revolves around physical abuse, and not insignificant physical abuse.” In addition, the
court was disturbed by the parents’ apparent continued relationship, even though they
didn’t live together any longer, because it was “satisfied that the parents cannot be in a
relationship.”
Accordingly, the court terminated reunification services and set a permanency
planning hearing under section 366.26.
Mother filed a timely notice of intent to file a writ petition.
II
DISCUSSION
Mother raises two issues in her writ. First, she claims there is insufficient evidence
to support the court’s conclusion that she did not benefit from services, that return would
be detrimental, and that there was no substantial probability of return. Second, she argues
the case plan failed to specify critical goals to accomplish in order to be reunified with
A.V., nor did it identify the means to reach those goals.
A. Sufficiency of the Evidence
Mother argues there is insufficient evidence to support the court’s conclusion that
she failed to benefit from services, that returning A.V. posed a detriment to the child, and
that there was no substantial probability of return. In particular mother claims the only
evidence supporting any of these conclusions was the social worker’s inchoate suspicion
that mother wasn’t capable of adequately protecting A.V.
13
“When the sufficiency of the evidence to support a juvenile court’s finding or
order is challenged on appeal, the reviewing court must determine if there is substantial
evidence, contradicted or uncontradicted, that supports it.” (In re Albert T. (2006) 144
Cal.App.4th 207, 216.) “Under that standard we inquire whether the evidence,
contradicted or uncontradicted, supports the court’s determination. We resolve all
conflicts in support of the determination, indulge in all legitimate inferences to uphold the
findings and may not substitute our deductions for those of the juvenile court. [Citations.]
However, ‘[s]ubstantial evidence is not synonymous with any evidence. [Citation.] To be
substantial, the evidence must be of ponderable legal significance and must be reasonable
in nature, credible, and of solid value.’ ” (Georgeanne G. v. Superior Court (2020) 53
Cal.App.5th 856, 865.) We review the juvenile court’s finding there is no substantial
probability of return and decision to terminate reunification services for substantial
evidence. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688.) The same is
true for the juvenile court’s finding of detriment. (Georgeanne G. v. Superior Court, at
p. 864.)
Mother argues the evidence she failed to benefit from services and posed a danger
to A.V. is not supported by substantial evidence because much of this evidence was, in
her view, unsupported speculation from the social worker. In particular, she points out
that under questioning the social worker wasn’t able to articulate why she felt mother had
not benefited from services. At the hearing, the social worker responded yes when asked
whether the main issue “the [d]epartment had with the mother was she failed to take the
14
child to the doctor?” The social worker agreed that in mother’s “therapy report, the
mother takes responsibility for failing to take the child to the doctor,” and further
confirmed she felt that statement was accurate. The social worker also admitted that she
had no recent interactions with mother and that because of this she had no evidence
mother had not benefited from services. Based on this testimony, mother says the court
lacked any evidence to conclude mother failed to benefit from services, that return would
be detrimental, or that reunification was unlikely.
However, even accepting that the social worker’s testimony was largely based on
speculation and suspicion rather than concrete evidence, the record contains sufficient
additional evidence to support the juvenile court’s findings. The court’s decision didn’t
turn on whether mother learned and accepted that she should have taken A.V. to the
hospital. The court’s concern was that she failed to learn or appreciate the root cause of
the injury: namely that father likely physically abused A.V. It’s entirely possible, even
likely, that mother did benefit from services in that she now appreciates the necessity of
immediate medical treatment for any physical trauma. But here that medical treatment
was only necessary in the first place because of father’s physical abuse. It is not enough
that mother knows to get A.V. care for physical trauma, she must also accept, understand,
and act in A.V.’s interest to prevent that trauma in the first place. Thus, the court could
and did conclude that her refusal to accept father’s role in A.V.’s injuries undermined any
benefit she may have received in appreciating the importance of prompt medical care.
15
Such a conclusion is supported by substantial evidence. Indeed, its’s supported by
mother’s own testimony. Mother testified at the hearing that A.V. was injured when
“[s]he fell off of the bed while her dad was changing her diaper . . . . She hit, I believe,
the toy. There was a toy at the end of the bed and the floor.” Mother’s own words thus
confirm that she didn’t believe father was at fault for A.V.’s injuries. Indeed, mother
never admitted how A.V.’s injuries actually occurred or acknowledged that father’s story
was not consistent with the injuries. Instead she continued to insist on father’s version of
events and that the injuries were accidental.
Mother’s reluctance or inability to acknowledge that father poses a danger to A.V.
is an indication that she did not benefit from the services provided (as discussed more
below) and that returning A.V. to her care would be detrimental to A.V. Mother’s denial
about father’s role in A.V.’s injuries, her ongoing relationship with father, and her lack of
transparency about the nature of that relationship, are all evidence that returning A.V. to
mother would be a threat to A.V.’s well-being. First, it is evidence that mother has failed
to fully benefit from the services designed to help her recognize all the threats to A.V.
and work to mitigate those threats, including threats posed by other people. Second, if
mother thinks the primary issue was her failure to seek medical care for A.V., doesn’t
believe father is a threat, and may intend to resume a relationship with him, it is highly
likely that she will permit father to have unsupervised care for and custody of A.V. These
are the exact circumstances which resulted in A.V.’s previous injury, and the court could
reasonably conclude based on this evidence that the risk of events repeating themselves
16
was detrimental to A.V. We therefore conclude the challenged findings are supported by
substantial evidence.
B. The Case Plan
Turning to mother’s arguments regarding her case plan, we first note that she has
waived her right to argue her case plan was inadequate because she failed to timely seek
appellate review of her case plan by appealing from the dispositional order. In fact, she
submitted on the case plan and reunification services. “By failing to appeal, [the mother]
has waived any complaint she may have regarding the plan as ordered. [Citation.] Having
declined to seek appellate review of the dispositional order, and having failed to file a
petition to modify the dispositional order [citation], [the mother] cannot fault [the
department] for complying with it.” (In re Julie M.(1999) 69 Cal.App.4th 41, 47.)
But even if we consider the merits of mother’s claim, we disagree with her that the
case plan was inadequate. Section 16501.1, subdivision (g)(2), requires that any case plan
“identify specific goals and the appropriateness of the planned services in meeting those
goals.” “In other words, the case plan first establishes specific goals. It then must explain
how the planned services prescribed for parents are related to those goals.” (In re M.R.
(2020) 48 Cal.App.5th 412, 426.) Mother argues her case plan failed to meet this
requirement because it didn’t identify that one goal was for mother to separate from
father.
However, it is not at all clear that separating from father needed to be a specific
goal, nor did the court’s decision to terminate services depend on mother’s continuing
17
relationship to father. The court found mother had failed to meet one if not two of the
specific articulated goals of her case plan—namely that she “[s]how that you will not
permit others to physically abuse your child,” and “[s]how that you accept responsibility
for your actions.” In order to accomplish this goal, the case plan called for general
counseling “to identify the patterns of behavior that lead up to [the department’s]
involvement,” and “address her failure to protect [A.V.] from . . . physical abuse.”
Mother’s continued reluctance to admit that father could have been responsible for A.V.’s
injuries, up to and including in her testimony before the court, is a failure to meet this
case plan objective and a sign that these counseling services didn’t work. One of the
case plan’s specific goals was to help mother recognize that father posed a danger to
A.V.—whether they were in a relationship or not—and the services provided were
appropriate for helping her gain that recognition That she didn’t accomplish this goal
isn’t an indictment of the case plan’s goals or the services provided, but of mother’s
inability to acknowledge the reality of how A.V. was injured.
Though the court ultimately did conclude that the parents could not remain in a
relationship without posing a danger to A.V., this does not appear to be the deciding
factor in its decision. Ultimately the case plan goal was for mother to demonstrate that
she could adequately protect A.V. Her failure to meet that goal was determinative, not
her failure to terminate her relationship with father. Perhaps had she demonstrated an
adequate understanding of the danger father posed, it would have been appropriate to
specify that terminating the relationship was a necessary precondition to reunification.
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But unfortunately, mother never got that far, and so not specifying that as a goal was not
determinative.
III
DISPOSITION
We deny the writ petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
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