Cynthia L. v. Superior Court CA2/3 ( 2023 )

Filed 8/7/23 Cynthia L. v. Superior Court CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
CYNTHIA L., B326613
Petitioner, Los Angeles County
v. Super. Ct. No.
20CCJP05696A
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS in mandate.
Charles Q. Clay III, Judge. Petition denied.
Law Offices of Vincent W. Davis & Associates and
Vincent W. Davis for Petitioner.
No appearance for Respondent.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Brian Mahler, Deputy County
Counsel, for Real Party in Interest Los Angeles County
Department of Children and Family Services.
Children’s Law Center and Michael Ono for Real Party in
Interest Y.L., a Minor.
INTRODUCTION
In this juvenile dependency matter, Cynthia L. (mother)
seeks extraordinary writ relief from the court’s order terminating
her family reunification services and setting a hearing pursuant
to Welfare and Institutions Code section 366.261 to consider the
implementation of a permanent plan of adoption for her son, Y.L.
(the minor). Mother argues no substantial evidence supports the
court’s finding that returning the minor to her custody would be
detrimental to his health and well-being. We conclude the record
amply supports the court’s conclusion. Mother further argues the
Department of Children and Family Services (Department) failed
to provide reasonable reunification services during the 12- to 18-
month review period and that such failure requires the reversal
of the challenged order. The Supreme Court, however, recently
held otherwise. (Michael G. v. Superior Court (2023) 14 Cal.5th
609, 634 (Michael G.).) Finally, mother argues the court erred in
finding that the beneficial parent-child relationship exception to
adoption does not apply. The court has not yet considered that
question and therefore the issue is not yet ripe for review.
1 Section references are to the Welfare and Institutions Code unless
otherwise specified.
2
FACTS AND PROCEDURAL BACKGROUND
1. Petition (§ 300)
Mother and the minor most recently came to the attention
of the San Mateo County Department of Children and Family
Services (Agency) in late July 2019 due to concerns about
mother’s untreated mental health conditions and the minor’s
isolation. Specifically, the minor, who was then eight years old,
had never been enrolled in school and mother had only taught the
minor about the Bible. Although mother lived with other family
members, she kept the minor isolated from them and from other
children. Mother kept the minor locked in a room and did not
allow him to talk to anyone. He was not allowed to watch
television, play with toys, or read books because mother believed
“they are the devil.” When other family members were on
vacation, mother threw away all their clothes, shoes, valuables,
children’s toys, and the television “because the devil was in the
label of the items.”
On August 6, 2019, after a referring party advised that
mother was a flight risk, the Agency filed a petition under
section 300, subdivision (c), alleging generally that mother had
refused treatment for mental illness and as a result had
obstructed the emotional and social development of the minor
and subjected him to various forms of emotional abuse. At the
detention hearing, the court ordered that the minor remain in
mother’s care on the condition that mother complete a
psychological evaluation, allow unannounced home visits, involve
the minor in mental health services and youth groups, and keep
the Agency apprised of the family’s address at all times.
On August 30, 2019, the minor was detained from mother
after she moved to a shelter without advising the Agency.
3
2. Jurisdiction and Disposition
By April 2020, the Agency had filed a third amended
petition including allegations under section 300,
subdivisions (b)(1) and (c). After a contested adjudication and
disposition hearing, the court sustained the following
jurisdictional allegation under section 300, subdivision (b)(1):
“On August 6, 2019, a petition was filed on behalf of [the]
eight-year-old [minor], due to concerns about the mother’s
untreated mental health which resulted in [the minor] being
isolated from age appropriate educational, familial, and social
interactions. The minor has never been enrolled in public school
and was not in compliance with California’s home school
education requirements and as a result he was not at grade level
when eventually enrolled in public school after removal from the
mother. Further, [the minor] does not have any friends of his age
group. When asked who his friends were, [the minor] reported
that spiders and inanimate objects were his friends.
“[The minor] also reported that God also prevents him from
playing with other children and that he is only allowed to read
about how God will return to Earth. The mother was previously
psychiatrically hospitalized on October 3, 2015, and diagnosed
with Psychosis, not otherwise specified. However, she denies
having mental health issues, and has not engaged in treatment
for several years. On August 7, 2019, the San Mateo County
Juvenile Court allowed [the minor] to remain in mother’s care, on
the condition that the mother complete a psychological
evaluation, allow unannounced home visits, involve [the minor]
in mental health services and youth groups, and that mother
keep the Agency apprised of her residence address at all times.
On August 17, 2019, the family left their residence without prior
4
notice and could not be located. The Court issued a Protective
Custody Warrant which was executed on August 27, 2019, when
the Agency located the family at a shelter. [The minor] is at
substantial risk of suffering serious physical harm or illness as a
result of the mother’s inability to provide care due to mental
illness.”
The court sustained a nearly identical allegation under
section 300, subdivision (c). The only difference is the final
sentence, which reads: “[The minor] is suffering, or is at
substantial risk of suffering, serious emotional damage as a
result of the mother’s conduct.”
The court ordered the minor returned to mother’s custody
with family maintenance services and ordered mother to
participate in a parenting program, individual counseling, and a
psychological evaluation. Mother did not engage in any of the
offered services, however. Additionally, during the minor’s foster
placement, he had received tutoring services to support his
education. During that time, the minor made substantial
academic progress, gaining confidence and showing excitement
about academics. That progress ceased when the minor returned
to mother’s care because he missed or mother canceled most
tutoring appointments.
In a status review report filed in October 2020, the Agency
noted that the minor had been enrolled in an elementary school
in Los Angeles2 but was not attending school via distanced
2 The family relocated to Los Angeles County in August 2020. The
dependency matter was transferred to Los Angeles County in October
2020.
5
learning.3 Mother had disenrolled the minor from school in
September 2020, opting to homeschool him instead. Mother also
continued to resist court-ordered services and stated that she
would not participate in court-ordered mental health services
through any non-Christian organization.
3. Supplemental Petition (§ 387)
In June 2021, the Department filed a supplemental petition
under section 387 and the court detained the minor from mother.
The petition contained the following allegation: “[Mother]
continues to exhibit mental and emotional problems including
paranoid behavior and continues to deny the need for mental
health therapy. The mother does not show any insight to her
mental health needs and is continuously resistant to participate
in mental health services and continues to isolate the child from
age appropriate socialization. The mother’s mental and emotional
problems endanger the child’s physical health and safety and
place the child at risk of serious physical harm, damage and
danger.”
The Department had made repeated efforts to provide
mental health evaluations and services, if appropriate, to the
minor and mother but met with mother’s refusal at every turn.
Mother denied having any mental health concerns, her 2015
diagnosis of psychosis notwithstanding. The Department
requested that the court order intensive individual therapy,
parenting classes, and additional case management services for
mother. As for the minor, the Department concluded that he had
3 During this timeframe, many schools in Los Angeles County
conducted classes online due to the Covid-19 pandemic.
6
not been receiving adequate education and continued to be
isolated from children his own age. Due to mother’s continued
denial of mental health issues and resistance to participating in
court-ordered services, the Department recommended removing
the minor from mother.
In a last minute information, the Department described a
recent monitored visit at a park between mother and the minor.
The maternal grandmother also attended the visit. The visit was
initially monitored by the minor’s foster mother. She became
concerned, however, when mother and the maternal grandmother
repeatedly took the minor some distance away from her and they
were whispering to him. The minor then stated that the foster
mother had called him “cabron” (“dumbass”), which she denied.
The foster mother contacted the Department social worker, who
subsequently arrived at the park to find officers from the Los
Angeles Police Department on the scene and the family
screaming and crying. The minor was extremely upset and was
disrespecting the foster mother. Mother began begging the social
worker to return the minor to her care. In the midst of this scene,
the maternal grandmother grabbed the minor and whispered in
his ear, cupping her hand so she could not be heard.
The social worker took the minor back to the Department’s
nearby office. The minor was clearly upset and said he overheard
the foster parent use the word “cabron” and that “[i]t emotionally
abused me and I am traumatized.” After some time, the minor
was calm enough to return to the foster mother’s home. The
social worker facilitated a discussion about the incident and
recommended that future visits between mother and the minor
occur in a therapeutic setting to ensure the minor’s well-being.
7
At a hearing on June 18, 2021, the court found the
Department had established a prima facie case as to the
allegation in the supplemental petition, ordered the minor
detained from mother, and further ordered monitored visitation
with discretion to liberalize.
4. Jurisdiction and Disposition (§ 387)
In its report on jurisdiction and disposition for the
supplemental petition, the Department noted that mother said
she had been homeschooling the minor because he had been
bullied at school. She also stated that she saw a picture of a witch
in one of the minor’s schoolbooks and felt that was “psychological
abuse” to the minor. Mother elaborated, saying the witch was
satanic and that it would lead to teaching about “sex and
perverted things like condoms.” The social worker who spoke
with the minor, however, was concerned about his apparent lack
of learning. When asked what he had learned recently, the minor
said “300 makes 300 and 600 makes 600.” He could not elaborate.
In addition, the minor could not identify any friends.
Mother had begun seeing a therapist, but the therapist
reported that mother was not participating in “therapy,” per se.
Instead, the sessions focused on the Department’s
recommendations. The therapist expressed concern over mother’s
excessive emails (20 at a time when mother had something on her
mind) and recommended a psychiatric evaluation. The therapist
had obtained a psychiatric evaluation of mother from 2019, which
reflected a history of severe depression, including psychotic
symptoms such as hallucinations and delusional thoughts. The
report stated “[a]t this time, her ultra-religious beliefs do not
seem psychotic in nature, albeit very fanatical.” The Department
8
requested that the court order a psychiatric evaluation for
mother.
The foster mother reported that the minor had very limited
social skills and would generally not play outside or interact with
the other children in the house for an extended period. The minor
had started to see a therapist on a weekly basis. The therapist
diagnosed the minor with an anxiety disorder and noted that he
was triggered by speaking with mother. The therapist spoke
briefly with mother and described her this way: “[S]he was in
distress regarding being accused of abusing her son. The mother
is engaged in religion and she stated that school and interactions
were limited because the devil was involved.”
In mid-August 2021, a last minute information for the court
described another visitation incident. A Department social
worker was monitoring the visit at a park and mother took the
minor to her car to retrieve something. When they returned,
mother said the minor had told her that the foster mother was
mistreating him. The minor denied any mistreatment, but
mother began to cry and scream, pleading with the social worker
to remove the minor from the abusive foster home. As mother
cried louder, the minor became upset and also began to cry and
scream. Mother turned to him and yelled, “[t]ell me what she
does to you, tell me how she mistreats you.” The minor froze. At
that point, the social worker intervened and took the minor to her
car to talk. Mother got on her knees, cried even louder, and
begged the social worker to remove the minor from the foster
home “because he is being psychologically abuse[d] every day.” By
the time the social worker got the minor away from the scene, he
was hyperventilating. When he calmed down, he said he was not
9
being mistreated by the foster family and did not want to be
moved from the home.
Several days later, the foster mother contacted the social
worker to report that the minor’s behavior had gotten worse, that
he had regressed and was no longer listening or following
directions. He was also soiling himself and said he did not notice
when he “poops on himself.” He also began urinating more
frequently while sleeping and would hide the soiled clothing. The
foster mother observed that the minor was not doing well after
his last visit with mother and that her visits had a negative
impact on the minor when she became upset. The social worker
recommended that future visits be monitored by a therapist.
In late August 2021, the court adjudicated the section 387
petition and sustained the supplemental allegation. The court
further found as to disposition that clear and convincing evidence
presented by the Department required the minor’s removal from
mother. The court ordered that the minor remain in suitable
placement, receive individual counseling, and have a psychiatric
evaluation to address ongoing enuresis and encopresis. Further,
the court ordered the Department to continue to provide family
reunification services to mother, with monitored visitation a
minimum of twice a week for two hours per visit. The court
advised, however, that the monitor should be made aware of
mother’s mental health issues and that her visits with the minor
would stop if she acted inappropriately. Mother’s case plan
included individual counseling to address case issues, parenting,
depression, dysfunctional beliefs, and childhood trauma.
5. Six-month Status Review
During the next period of supervision, the Department
reported that mother continued to accuse the foster mother of
10
abusing the minor. The minor and the foster mother continually
denied any sort of mistreatment. Mother’s therapist reported that
mother was difficult to work with as she did not accept
responsibility for her actions. During sessions, mother avoided
speaking about herself and instead spoke about the Bible. The
Department expressed concern that although mother was
participating in court-ordered services, she was not addressing
case issues and therefore was not making progress toward
reunification. Mother denied that her behaviors and decisions
negatively impacted the minor and instead blamed the
Department or his school. The Department recommended
continuing family reunification services for mother with the
minor remaining in suitable placement.
The court conducted a six-month review hearing regarding
the section 387 petition in February 2022. The court concluded
that mother’s compliance with the case plan was partial, ordered
that the minor remain in suitable placement, and continued
mother’s family reunification services for reasons stated on the
record in open court.4
6. 12-month Status Review
During the following period of supervision, the minor
remained in his foster placement. The minor said he felt safe and
comfortable with everyone in the house and described the
caregivers as “caring and supportive.” The minor reported that he
had experienced “tremendous growth” in that he was learning to
communicate better, being more social, and expressing his
feelings.
4 No transcript of this hearing is included in the appellate record.
11
On May 3, 2022, however, mother went to the minor’s
school and demanded that the administrative staff stop other
students from bullying the minor. They responded that the minor
had not reported any bullying. The following day, the minor told
the foster mother that he had been thinking about the word
“suicide” all day during school. The foster mother alerted the
Department. An emergency team was dispatched and concluded
the minor “seemed to be doing well and did not need services.”
The next day, the minor’s school administrators called the foster
mother to report that the minor was in crisis. He had had a panic
attack, said he was thinking of suicide, and was now thinking of
a plan. The following weekend, the minor had several toileting
accidents. In late May and early June, the minor began crying
during his virtual visits with mother but could not explain why.
The minor’s new therapist did not recommend conjoint therapy in
June, as she was just beginning to build rapport with him.
Mother completed a parenting course but, according to the
Department, was not applying the concepts she had learned.
Most of the visits between mother and the minor involved the
minor doing his homework on his own and mother grooming the
minor (e.g., clipping his nails or cleaning his shoes.) Mother also
reacted to reports of the minor’s misbehavior—pulling down his
pants in front of other children, for example—by saying
everything was okay. The Department noted that mother had
difficulty disciplining the minor as well as engaging with him. In
general, the Department was concerned that mother had made
little progress on case issues, and it recommended continuing
family reunification services for another six months.
Also, at some point, the Department learned that in
April 2022, mother had kept three children away from their
12
biological mother for six days. Limited detail is provided in the
appellate record. It appears mother believed that the biological
mother had neglected and abused the children and reported such
to the Child Protection Hotline. Mother claimed that the children
were left with her by their father and were only with her for a
weekend. Mother denied any misconduct and insisted she was
simply doing a favor for a friend. The biological mother, however,
contacted law enforcement to regain custody of the children. Even
after the children were returned to their home, mother continued
to try to have contact with them, despite being told not to do so.
In a last minute information for the court, the Department
reported that mother had again disenrolled the minor from
school. The minor had been scheduled to attend a three-day
orientation at his new middle school designed to assist new
students with the transition. When the foster mother and the
minor arrived at school for the orientation, they were told that
mother had disenrolled the minor. Mother denied doing so, but
the school staff identified her as the person who removed the
minor from the school.
The court conducted the 12-month review hearing in
mid-August 2022. The court concluded that mother’s progress
was substantial and ordered reunification services continued for
an additional six months for reasons stated on the record in open
court.5
7. 18-month Hearing and Order
In preparation for the 18-month review hearing, the
Department reported that the minor remained in his original
5 No transcript of this hearing is included in the appellate record.
13
foster placement and showed significant growth in his learning
and social capacities. He had also obtained basic hygiene skills,
often completed chores at home, and gained self-confidence. The
minor was attending the sixth grade at a nearby public school
and reported enjoying school. He had been staying after school
where he received homework assistance and played with friends.
He continued to display disruptive behavior at home and at
school, however.
Mother and the minor had had several conjoint therapy
sessions. The sessions stopped after mother attempted to
subpoena the therapist in an attempt to create a case against the
minor’s foster mother. Mother’s individual therapist reported
that mother had attended weekly sessions but still denied that
anything was wrong and that she had any case issues to be
addressed in therapy.
The minor told a Department social worker that although
he missed mother, he was not ready to reunify with her.
Specifically, he said that although mother was nice to him during
their monitored visits, in the past, she had gotten upset with him
and hit him. The minor also expressed concern that mother did
not listen to him and would rephrase his statements to something
he did not mean.
The Department assessed the minor’s risk of future harm
as “high” if returned to mother’s care. The Department
summarized its findings this way: “Mother continues to not
utilize her individual therapy, reporting everything is well and
there are no concerns. Mother fails to take accountability [for] her
actions or deal[ ] with the issues that brought the family to the
attention of the Department. Up until now, there appears to be a
great growth in [the minor]. He is able to function as any other
14
child his age. While he is mischievous and gets in trouble at
school, he is confident, smart and understands a lot of what is
going on around him. All these accomplishments would be
negatively impacted if he were allowed to return [to] mother.
Mother still demonstrates paranoid and accusatory behaviors
towards people. Mother is not able to listen to her son and have
an appropriate conversation with him. Mother attends individual
therapy that should be used to address things that happened to
her, but she is only attending; she is not learning anything since
she is not open and sharing with her therapist. Mother’s actions
cause [the minor] to watch what he shares with her as he fears
mother will lie about what he is saying. Mother does not have the
appropriate skills necessary to be an appropriate parent.
Mother’s actions are likely to cause a deterioration of [the
minor’s] mental, emotional and social gains. [¶] Due to the
aforementioned, it is the Department’s assessment that Family
Reunification Services be terminated and a .26 hearing be
scheduled. Despite mother complying with Court ordered
programs, mother has made little to no progress in dealing with
the case issues that brought the family to the attention of [the
Department]. Mother has completed programs, but there is no
behavioral change that has come from the programs she has
participated in and completed. Mother does not take any
responsibility for her actions. At this time, mother is unable to
provide the child with a safe and stable home.”
At the hearing on January 24, 2023, the court found it
would be detrimental to return the minor to mother’s care.
Specifically, the court noted that the reports and other
information offered by the Department contained many instances
of mother’s failure to make progress with respect to the case plan.
15
Additionally, the court noted that the minor, who was then 11
years old, seemed to recognize that returning to mother’s home
might not be in his best interest at that time. In addition to the
Department, minor’s counsel also argued that reunification
services should be terminated and the minor should not be
returned to mother’s custody.
The court found that mother’s progress on her case plan
was not substantial, that jurisdiction and suitable placement
continued to be necessary, and that reunification services for
mother should be terminated. The court found further that the
Department had made reasonable efforts to return the minor to
mother’s home but that doing so would create a substantial risk
of detriment to him. In sum, the court found that it was in the
minor’s best interest to set a hearing to select a permanent plan
under section 366.26 and it set the date for the hearing on
May 30, 2023.
8. Writ Petition
Mother filed a petition for writ of mandamus on
April 3, 2023. We issued an order to show cause staying the
hearing under section 366.26. We also invited responsive briefs
and received same from the Department and from the minor.
DISCUSSION
Mother contends the court erred in finding that it would be
detrimental to return the minor to her custody, that the
Department provided reasonable reunification services, and that
the beneficial parent-child relationship exception to adoption
does not apply. As to the first two issues, we disagree. The third
issue is not yet ripe for review.
16
1. Appellant’s Burden on Appeal
“The juvenile court’s judgment is presumed to be correct,
and it is appellant’s burden to affirmatively show error.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) To
demonstrate error, appellant must present meaningful legal
analysis supported by citations to authority and citations to facts
in the record that support the claim of error. [Citations.] When a
point is asserted without argument and authority for the
proposition, ‘it is deemed to be without foundation and requires
no discussion by the reviewing court.’ [Citations.] Hence,
conclusory claims of error will fail.” (In re S.C. (2006) 138
Cal.App.4th 396, 408.)
“An appellant must fairly set forth all the significant facts,
not just those beneficial to the appellant. (Foreman & Clark
Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)” (In re S.C., supra, 138
Cal.App.4th at p. 402.) Further, “[w]hen an appellant’s brief
makes no reference to the pages of the record where a point can
be found, an appellate court need not search through the record
in an effort to discover the point purportedly made. [Citations.]
We can simply deem the contention to lack foundation and, thus,
to be forfeited. [Citations.]” (Id. at pp. 406–407.)
2. Governing Law and Standard of Review
“Dependency proceedings span up to four stages:
jurisdiction, disposition, reunification, and permanency. (See
In re Matthew C. (1993) 6 Cal.4th 386, 391; In re Ethan C. (2012)
54 Cal.4th 610, 624–626.) At the jurisdictional stage, the juvenile
court determines whether to declare a child a dependent of the
court because the child is suffering, or at risk of suffering,
significant harm. (Welf. & Inst. Code, § 300.) At the dispositional
17
stage, the court decides if the child can be returned to, or must be
removed from, a parent’s custody. (Welf. & Inst. Code, §§ 315,
319.) During the reunification stage, qualifying parents are
offered services to address the causes that led to the loss of
custody. (Id., § 361.5, subd. (a).) Finally, if the child cannot be
safely returned to the parent within a statutorily specified
timeframe, the juvenile court proceeds to the permanency stage,
where it either terminates parental rights and places the child up
for adoption or it selects another permanent plan, such as
placement with a guardian or in long-term foster care. (§ 366.26.)
Throughout the proceedings, the juvenile court is instructed to
pay careful attention to the well-being of the child, the efforts of
the parent, and the services provided by the state to ensure that
cases proceed to this final stage only when necessary. (See
Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253 (Cynthia
D.).)” (Michael G., supra, 14 Cal.5th at p. 624.)
This proceeding concerns the reunification stage. “The
Legislature has determined the juvenile court may generally offer
family reunification services for a maximum period of 18 months.
(§§ 361.5, subd. (a)(3), 366.22, subd. (a); Cynthia D. v. Superior
Court (1993) 5 Cal.4th 242, 249.) At the 18-month permanency
review hearing the juvenile court must order a child returned to a
parent’s custody unless it finds, by a preponderance of the
evidence, that return of the child will create a substantial risk of
detriment to the child’s safety, protection or physical or emotional
well-being. (§ 366.22, subd. (a).) ‘That standard is construed as a
fairly high one. [Citation.] It does not mean the parent in
question is less than ideal, did not benefit from reunification
services as much as we might have hoped, or seemed less capable
than the available foster parent or other family member.’ (M.G. v.
18
Superior Court (2020) 46 Cal.App.5th 646, 660 (M.G.).) [¶] If the
child is not returned to a parent at the permanency review
hearing, the court must terminate reunification services and
order a hearing pursuant to section 366.26. (§ 366.22, subd. (a).)
“We review the juvenile court’s finding of detriment for
substantial evidence. (In re B.S. (2012) 209 Cal.App.4th 246, 252;
Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
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. (In re I.J. (2013) 56 Cal.4th 766, 773; Los Angeles
County Dept. of Children & Family Services v. Superior Court
(2013) 215 Cal.App.4th 962, 966; see In re Quentin H. (2014) 230
Cal.App.4th 608, 613.) 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.’ (In re M.S.
(2019) 41 Cal.App.5th 568, 580; accord, In re J.A. (2020) 47
Cal.App.5th 1036, 1046 [while substantial evidence may consist
of inferences, any inferences must rest on the evidence;
inferences based on speculation or conjecture cannot support a
finding].)” (Georgeanne G. v. Superior Court (2020) 53
Cal.App.5th 856, 864–865.)
19
3. Analysis
3.1. Mother fails to carry her burden to establish
prejudicial error.
Mother’s petition is deficient. Specifically, mother fails to
provide citations to the record to support factual assertions she
makes in support of her legal arguments. She also presents only
the evidence favorable to her, rather than discussing the entire
record. For example, the opening brief states: “Here, [mother]
took great care of the minor; and she participated in
psychotherapy, had a psychological evaluation, had a medication
evaluation, attended individual therapy, and completed two
parenting classes.” The brief goes on to list 15 specific facts
supporting that contention—none of which includes a citation to
the appellate record. Further, mother claims that “[she] attended
every visit with her child and minimal concerns were noted.” But
as noted, ante, mother’s conduct was inappropriate during visits
with the minor on multiple occasions and those incidents caused
the minor significant distress. Also, in discussing the
Department’s provision of reunification services, mother relies on
legal authority concerning the type of effort that must be made
with regard to an incarcerated parent. Mother was not
incarcerated.
In short, mother fails to adhere to basic principles of
appellate procedure and therefore fails to establish prejudicial
error requiring a reversal of the court’s order terminating
reunification services and setting this matter for a permanency
planning hearing under section 366.26. This deficiency
notwithstanding, we briefly address mother’s arguments on the
merits.
20
3.2. Substantial evidence supports the court’s
detriment finding.
Properly framed,6 the question before us is whether
substantial evidence supports the court’s finding that it would be
detrimental to return the minor to mother’s custody. We conclude
that it does.
As noted, the juvenile court must order a child returned to
a parent’s custody at the 18-month permanency review hearing
unless it finds, by a preponderance of the evidence, that return of
the child will create a substantial risk of detriment to the child’s
safety, protection or physical or emotional well-being. (§ 366.22,
subd. (a).) If the child is not returned to a parent at the
permanency review hearing, the court must terminate
reunification services and order a hearing pursuant to
section 366.26. (§ 366.22, subd. (a); Michael G., supra, 14 Cal.5th
at p. 624.)
The supplemental petition alleges that mother’s untreated
mental health issues created an unstable and unhealthy
environment for the minor.7 But mother claims “the only mental
6 Mother asserts the court erred in retaining jurisdiction over the
minor and that the Department failed to establish, by clear and
convincing evidence, that removal was the only reasonable means to
protect the minor. These arguments do not reflect the questions
presented at the 18-month permanency review hearing. Construing
mother’s petition generously, we presume she intended to argue that
no substantial evidence supports the court’s finding that returning the
minor to her care would be detrimental to his health, safety, or well-
being.
7 Although mother contends the court “erred when it retained
jurisdiction over the minor due to [mother’s] religious beliefs,” neither
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health issue reported for [mother] was related to [the
Department] removing her child from her care, which is to be
expected from any parent; and not cause to remove her child from
her care.” Mother fails to represent the record accurately. As
described, ante, the record contains evidence that mother had
been hospitalized and diagnosed with psychosis, not otherwise
specified, and had a history of severe depression, including
psychotic symptoms such as hallucinations and delusional
thoughts. In addition, there are numerous examples of mother’s
irrational behavior (e.g., her belief that a witch in a schoolbook
would lead to the minor’s exposure to condoms, causing her to
withdraw the minor from public school) and paranoid views (e.g.,
her baseless accusations of abuse by the minor’s foster mother
and bullying by the minor’s schoolmates.)
Mother also contends that the Department failed to
demonstrate that her mental health issues had any impact on the
minor. She relies on In re David M. (2005) 134 Cal.App.4th 822,
abrogated on another point by In re R.T. (2017) 3 Cal.5th 622, a
case in which the Court of Appeal found that no substantial
evidence supported jurisdiction under section 300,
subdivision (b)(1), on account of mother’s use of marijuana and
both parents’ mental illness. (In re David M., at pp. 829–832.)
There, the court noted, “[t]he record on appeal lacks any evidence
of a specific, defined risk of harm to either David or A. resulting
from mother’s or father’s mental illness, or mother’s substance
abuse.” (Id., at p. 830.) Mother notes that the appellate court
concluded “[t]he evidence was uncontradicted that David was
the original nor the supplemental petition alleges jurisdiction on that
basis.
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healthy, well cared for, and loved, and that mother and father
were raising him in a clean, tidy home. Whatever mother’s and
father’s mental problems might be, there was no evidence those
problems impacted their ability to provide a decent home for
David.” (Ibid.) Mother urges that the same is true in the present
case.
As mother notes, a mental health diagnosis is insufficient,
standing alone, to justify dependency jurisdiction. There must be
some nexus between a parent’s condition and some specific,
defined risk of harm. (See In re A.L. (2017) 18 Cal.App.5th 1044,
1051 [mother’s schizophrenia did not create substantial risk of
physical harm to her children where incident in which she
stopped taking her medication did not result in injury to the
children, father acted quickly to obtain medical help, and mother
had resumed taking her medication]; In re Joaquin C. (2017) 15
Cal.App.5th 537, 565 [mother’s mental illness was not a sufficient
justification for exercise of dependency jurisdiction where mother
was able to provide appropriate care for her son]; In re Travis C.
(2017) 13 Cal.App.5th 1219, 1226 [“ ‘Harm to a child cannot be
presumed from the mere fact the parent has a mental illness.’ ”].)
Nonetheless, we reject mother’s contention that her untreated
mental health issues have not impacted the minor. As discussed,
ante, when the Agency intervened in 2019, the minor was eight
years old, and mother had totally isolated him from his family
and children his own age. He had never attended school and
lacked basic educational and social skills. During the proceedings
below, mother repeatedly attempted to isolate the minor by
withdrawing him from public school. Mother repeatedly, and
baselessly, accused the foster mother of abusing the minor which
caused the minor to become extremely upset, to regress in his
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behaviors, and to act out in school and at home. Mother’s
behavior resulted in the termination of conjoint therapy sessions.
And after mother falsely asserted that the minor was being
bullied at school, the minor began to dwell on suicide while at
school and regressed again, including with toileting issues. The
minor’s therapist concluded that the minor’s contact with mother
triggered stress reactions for him. This evidence, and other
evidence contained in the appellate record, constitutes
substantial evidence that returning the minor to mother’s
custody would be detrimental to the minor’s physical and mental
health and well-being.
3.3. Mother is not entitled to additional reunification
services.
Mother contends the court erroneously found that the
Department had provided reasonable reunification services
during the 12- to 18-month period of supervision and,
accordingly, that the order terminating those services and setting
a hearing under section 366.26 must be reversed. We disagree.
Where, as here, a child is removed from his parent during a
dependency proceeding, the juvenile court in most cases is
required to “order the social worker”—here, the Department—to
provide reunification services to the child and parent. (§ 361.5,
subd. (a).) To implement this mandate, the court will identify the
services that must be provided to the parent in a case plan. The
court is required to hold periodic status review hearings to assess
“[t]he extent of the” Department’s “compliance with the case
plan.” (§§ 366, subd. (a)(1)(B), 366.21, subds. (e)(8) [six-month
hearing], (f)(1)(A) [12-month hearing].) Under section 366.21,
“[t]he court may schedule the section 366.26 permanency
planning hearing ‘only if’ it finds ‘there is clear and convincing
24
evidence that reasonable services have been provided or offered
to the parents or legal guardians.’ (Welf. & Inst. Code, § 366.21,
subd. (g)(4).) In other words, at the six- and 12-month status
hearings, the court must find that the parent has been provided
or offered reasonable reunification services before the court can
proceed to set a hearing to decide whether to terminate parental
rights and select a permanent plan for the child.” (Michael G.,
supra, 14 Cal.5th at p. 625.)
Critically, however, the court here set the hearing under
section 366.26 at the 18-month permanency review hearing.
(§ 366.22.) The Supreme Court recently clarified one of the issues
presented here, namely whether a parent who is denied
reasonable services between the 12- and 18-month hearings is
statutorily entitled to an automatic extension of services at the
18-month review hearing: “Unlike the statutory provisions
governing the six- and 12-month hearings, the statutory
provision governing the 18-month hearing contains no provision
requiring the court to extend services if it concludes that
reasonable services have not been offered or provided. (Compare
§ 366.22 [governing the 18-month hearing] with Welf. & Inst.
Code, § 366.21, subds. (e)(3), (g) [governing the six- and 12-month
hearings].) Rather, as a general rule, once a child has been out of
a parent’s custody for 18 months, the court must proceed to set a
hearing to select a permanent plan for the child. (§ 366.22,
subd. (a)(3).)” (Michael G., supra, 14 Cal.5th at p. 628.) The
limited exceptions defined in section 366.22, subdivision (b), are
not applicable here and mother does not argue otherwise.
In sum, even if mother could demonstrate that the
Department failed to provide reasonable reunification services,
25
which does not appear to be the case, she would not be entitled to
a reversal of the challenged order and an extension of services.
3.4. Beneficial Parent-Child Exception to Adoption
Mother’s final argument is that the court erred in not
applying the beneficial parent-child exception to adoption.
(§ 366.26, subd. (c)(1)(B)(i).) But this issue arises, if at all, at the
permanency planning hearing under section 366.26. Because the
court has not yet conducted that hearing, it has not yet
considered whether the exception should apply. Mother’s
argument is therefore premature and not justiciable. (See, e.g.,
Association of Irritated Residents v. Department of Conservation
(2017) 11 Cal.App.5th 1202, 1221 [“A claim is unripe for
adjudication where there is not an actual controversy within the
context of a sufficiently definite or concrete set of facts … . The
ripeness requirement prevents courts from issuing purely
advisory or hypothetical opinions.”].)
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DISPOSITION
The petition for an extraordinary writ is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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