Wendy E. v. Superior Court CA1/5 ( 2015 )

Filed 8/31/15 Wendy E. v. Superior Court CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
WENDY E. et al.,
Petitioners,
A145511
SUPERIOR COURT OF THE CITY AND
COUNTY OF SAN FRANCISCO, (San Francisco County
Super. Ct. No.
Respondent; JD143263)
SAN FRANCISCO HUMAN SERVICES
AGENCY et al.,
Real Parties in Interest.
__________________________________________/
The juvenile court terminated mother Wendy E.’s (mother) and presumed father
Jose R.’s (father, collectively parents) reunification services and set a Welfare and
Institutions Code section 366.26 hearing (.26 hearing).1 Parents petition for writ relief
(Cal. Rules of Court, rule 8.452). They contend the San Francisco County Health and
Human Services Agency (the Agency) failed to provide reasonable reunification services.
Father contends the court applied the wrong standard when determining parents failed to
1
Unless noted, all further statutory references are to the Welfare and Institutions
Code.
1
participate in the services or make substantial progress in their court-ordered treatment
plans. He also claims substantial evidence does not support various court findings.
We direct the juvenile court to modify its June 11, 2015 minute order to reflect the
court’s oral findings made on that date. In all other respects, we deny parents’ petitions.
FACTUAL AND PROCEDURAL BACKGROUND
Detention and Jurisdiction
J.R. was born at 33 weeks gestation in July 2014 and the Agency filed a section
300 petition shortly thereafter. The operative petition alleged J.R. came within section
300, subdivisions (b) and (j) because mother has or had: (1) a “serious substance and
alcohol abuse problem” that “continued during her pregnancy” with J.R.; (2) “mental
health concerns” including “depression, a history of suicide attempts and prescribed
psychotropic medications, and anger management problems for which she has been
previously arrested[;]” (3) “a history” of relationships involving domestic violence,
including with father; (4) “a criminal history” including “child endangerment[;]” (5) four
previous Agency referrals beginning in 2010 for “neglect, domestic violence,” and
substance, emotional, and physical abuse; and (6) another child “in the care of his father
after 18 months of services were provided” to her. The operative petition also alleged
father had “an admitted substance abuse problem which includes alcohol, marijuana and
crystal methamphetamines” and “an anger management problem which includes
domestic violence in his relationship with” mother.
The court held a detention hearing and determined J.R. came within section 300,
subdivisions (b) and (j). The court detained J.R. and ordered supervised visitation for
parents. At a combined hearing on jurisdiction and disposition, parents submitted to the
allegations in the operative section 300 petition. The court removed J.R. from parental
custody and ordered supervised visitation, with Agency discretion to offer unsupervised
visitation with notice to J.R.’s counsel. Parents’ case plans required them to complete a
drug treatment program, undergo group counseling/therapy to address domestic violence
for mother and domestic violence and anger management for father, obtain suitable
housing, visit J.R. regularly, and undergo a psychological evaluation.
2
Six-Month Review Reports
In its March 2015 six-month review report, the Agency recommended terminating
parents’ reunification services and setting a .26 hearing because parents were “early in
their recovery process. They have not addressed the domestic violence that has impacted
their relationship. [Father] has not displayed any efforts to reunify with his son during
this reporting period. . . . [J.R.] is a child under the age of three, who needs stability and
permanence. He will thrive in his current placement.” The Agency recounted father’s
violence against mother. According to the report, father “hit her when she was pregnant.
. . . [He] would take away important documents, her cell phone, or give her
misinformation from providers. . . . [He] has called her derogatory names in public and
their arguments have involved violence.” Parents argued loudly in front of the social
worker, who “had to ask [mother] to leave because of the amount of conflict between”
parents.
Although mother entered a residential drug treatment program in December 2014
where she attended weekly therapy, she had “not engaged in any counseling groups to
address the domestic violence” and was not visiting J.R. consistently. Mother offered
“various reasons [ ] why she was late or could not visit ranging from she did not have an
alarm, woke up late, forgot to confirm the visit or the bus was taking long.” Although
mother visited J.R. twice in September 2014, “[t]here were other occasions when she did
show up on the day of the visit but arrived 40 minutes late” and J.R. had already been
“returned to his caregiver.” Mother’s November 2014 visits were “canceled for tardies,
not confirming the day before, or mother’s own cancelations.” The Agency moved
mother’s visits to her residential drug treatment program and she visited J.R. twice in
December 2014.
Father had not begun therapy or counseling for domestic violence and anger
management and had not visited J.R. regularly. He was not “forthcoming . . . about
where he was living” and did not have a working cell phone number until November
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2014.2 The Agency had not been able to evaluate father’s parenting skills during his two
supervised visits with J.R. and reported father appeared to have used drugs during one
visit. In January 2015, father admitted using marijuana; according to the social worker,
father “appeared with redness in the whites of his eyes and often closing his eyes.” He
also had “very slow speech” on two occasions.
In a May 2015 addendum report, the Agency reported mother was doing well in
the drug treatment program. She consistently visited J.R. and attended a domestic
violence support group. According to the addendum report, however, mother had
allowed father to join her at a supervised visit, which concerned the Agency because of
parents’ “history of domestic violence[.]” Mother admitted calling father and
communicating with him “on a regular basis. . . . She explained that they had been
recently getting along.” Father had “inconsistent participation in his outpatient [drug]
program” and had “not participated in any other services” except for visiting J.R. in late
March 2015. Clinical psychologist Dina Perez-Neira evaluated father and did “not
recommend” continuing reunification services because father had not “acknowledged [ ]
issues that need to be addressed.”
The Agency was concerned about “domestic violence . . . when returning” J.R. to
mother’s custody. Mother had “consistently gone back and forth with acknowledging the
toxicity in her relationship with [father] and hoping that he will change so they can be a
family once again. [Mother] has been dishonest in communicating her continued contact
with [father] . . . denying the relationship” and “display[ing] limited judgment and ability
to set healthy boundaries with . . . father, placing [J.R.] at risk of physical and emotional
harm should an argument ensue in [J.R.]’s presence.” According to the Agency, both
parents failed to acknowledge “domestic violence between them is a problem not only for
them but for their infant son as well.”
2
Mother reported father was incarcerated in December 2014. Father said he had
been at the courthouse “several times but when asked did not disclose . . . the reason for
his attendance.”
4
In a second May 2015 addendum report, the Agency reported mother was
“work[ing] hard on her sobriety” and visiting J.R. consistently. According to the
Agency, mother claimed she had not contacted father “in the past month, [but] it is
important to acknowledge that this is a short amount of time when considering the CPS
history. . . . [I]n July 2010 through September 2012, CPS was involved with [mother]
regarding both domestic violence . . . and substance abuse resulting in the lost custody of
her eldest son. Furthermore, [mother] has not obtained a restraining order to protect
herself from [father] although she disclosed that she sustained injuries causing her to go
to the hospital.” Father participated in the court-ordered treatment plan reluctantly and
had made “little progress . . . in addressing the domestic violence he perpetrated[.]” The
Agency recommended terminating reunification services.
Six-Month Review Hearing
Social worker Monica Espinoza testified at the six-month review hearing. She
applauded mother for “working on her sobriety in such a huge way[,]” but recommended
terminating reunification services because “there has not been significant progress made
in the area of domestic violence.” Espinoza recounted how mother allowed father to
enter her residential drug treatment program in February 2015 to visit with J.R. “against
the [Agency]’s recommendation[.]” During the visit, parents argued. It “quickly
escalated. [Father] began getting loud with the baby in his arms” and was asked to leave.
Mother also called father in April 2015, which concerned Espinoza because mother knew
“she should not have any contact with [father]” but was “still very much codependent”
with him and “lack[ed] the insight as to the seriousness of the domestic violence she
experienced at his hands—the implications of being able to effectively keep herself safe.”
Mother referred to father as a “good man,” and expressed a desire to “becom[e] a family
with him” while also describing how he mistreated her. According to Espinoza, mother
was “making poor decisions even though she’s starting on her road to sobriety. So her
minimization of the dynamics of the relationship [was] a huge concern” because it
impacted “her ability to protect herself and the baby.”
5
Espinoza testified mother missed visits with J.R. and was tardy to others.
According to Espinoza, mother’s visits were supervised because she failed to visit J.R.
consistently from September to December 2014 and “allowed . . . father into the
program” to visit J.R. in February 2015, which raised “a concern about [mother]’s ability
to protect the baby and herself.” The Agency feared that if mother had an unsupervised
visit with J.R., she would leave the drug treatment program with J.R., in part because
mother expressed a desire to “take the baby home with her[.]” The Agency was also
concerned about mother’s “feeding habits” with J.R., but Espinoza characterized the issue
as “a small [one] that can be corrected.”
Father had failed to address “domestic violence issues”—he continued to
communicate with mother and planned to reunite with her. As Espinoza explained, this
“pose[d] a huge risk because there has not been any self-reflection on what the triggers
are for [father] to become physically violent or become verbally abusive with [mother].
And if those issues aren’t addressed, they are bound to repeat themselves.” Father was
not engaged in the substance abuse program, repeatedly tested positive for THC, and did
not visit J.R. consistently until April 2015.3 Dr. Perez-Neira, who evaluated father,
recommended terminating reunification services because he “was not amenable to
comply with any recommendation” from the Agency.4
Clinical psychologist Dr. Maria Holden evaluated mother and opined she suffered
from “‘codependency, anxiety, [and] self-doubt’” and would “‘have to do a lot of
psychological work’” over a period of several years “‘before she can become a
consistently safe parent.’” Dr. Holden explained in detail why mother had “not been able
3
Visitation was not available from March 29 to April 24, 2015 because father
requested visitation on Sundays, and one visitation center was not open that day and
another visitation center’s Spanish-speaking staff member was unavailable.
4
As Dr. Perez-Neira explained, a “complete” psychological evaluation usually
takes five to six hours, but father “was working at the time and so he was only able to do
it for two hours at a time. He arrived late and so we were able to work only 90 minutes.”
During the session, father was “impatient” and “guarded” and gave Dr. Perez-Neira the
impression “he was not open to being there.” Father did not arrive for his scheduled
second session with Dr. Perez-Neira.
6
to stop herself from” contacting father. Homeless Prenatal Program case manager Leslie
Laughlin testified mother had “completely turned around her addiction and other
codependency issues. She’s made significant progress in confronting these issues and
finding new . . . ways of conducting her life.” According to Laughlin, mother was “able
to prevent a new domestic violence relationship” and possessed the “coping skills” to
“get out of” a situation involving domestic violence. Mother is “a different person . . . as
far as confidence, coping mechanisms, being clean and sober, being out of a violent
relationship for several months.”
The Court’s Ruling
At the June 2015 conclusion of the six-month review hearing, the court terminated
reunification services and scheduled a .26 hearing for October 2015. The court
concluded by a preponderance of the evidence returning J.R. to father’s custody would
create a substantial risk of detriment because there was “clear and convincing evidence
that reasonable services were offered, but the reasonable services were not taken up . . . in
a timely fashion.” The court noted father did not participate in the services the Agency
offered “until very late in the game.” Next, the court determined there was not a
substantial probability J.R. would be returned to father’s custody by the 12-month
hearing “given the stage that [father] is in currently[.]”
The court found by a preponderance of the evidence returning J.R. to mother’s
custody would create a substantial risk of detriment based on mother’s failure to regularly
participate and make substantive progress in her treatment plan. The court found “clear
and convincing evidence that reasonable services were offered because they were,
directed at the very issues that the mom had to deal with and known to her. . . . And . . .
[¶] [mother] did not make substantive progress in the case plan that was developed by the
social worker.” The court commended mother on her “tremendous effort at this point”
but found she had made minimal effort in the early stages of the case. Additionally, the
court observed parents’ “volatile” relationship “present[ed] a threat” to J.R. and
Espinoza’s concern was “well-founded in that there was such recent contact, even after
the issue of domestic violence was the basis for the removal of [J.R.] and had been an
7
issue in a prior removal.” Finally, the court determined there was not a substantial
probability J.R. would be returned to mother’s custody by the 12-month review hearing.
DISCUSSION
I.
There is Substantial Evidence the Agency Provided
Reasonable Reunification Services
Parents contend the Agency did not provide mother with reasonable services
because it denied her “repeated requests for unsupervised and overnight visits.”5 Father
also contends he did not receive reasonable services. When a child is removed from a
parent’s custody, the responsible agency must make a “good faith effort to develop and
implement” reasonable family reunification services responsive to the needs of that
family. (In re Kristin W. (1990) 222 Cal.App.3d 234, 254.) “Visitation . . . is an
essential component of a reunification plan,” and “‘shall be as frequent as possible,
consistent with the well-being of the child.’ [Citation.]” (In re Mark L. (2001)
94 Cal.App.4th 573, 580, quoting § 362.1, subd. (a)(1)(A).) A court may not set a
.26 hearing unless it finds clear and convincing evidence reasonable reunification
services have been provided. (§ 366.21, subd. (e).) We review the reasonableness of the
reunification services provided—including visitation—for substantial evidence,
construing all reasonable inferences in favor of the court’s findings. (Christopher D. v.
Superior Court (2012) 210 Cal.App.4th 60, 70.)
Parents contend mother did not receive reasonable services because she was
“offered only supervised visitation twice per week despite repeated requests for
unsupervised and overnight visits.” We are not persuaded for two reasons. First, mother
does not refer us to the place in the record where she made these “repeated requests.”
Mother mentions only one request, made just days before the six-month review hearing,
and does not cite the record. Contentions not supported by record citations are forfeited.
5
Father has standing to challenge the court’s findings regarding mother because the
findings have “the potential to adversely affect [his] own interests in reunifying with”
J.R. (In re R.V., Jr. (2012) 208 Cal.App.4th 837, 849.)
8
(Dominguez v. Financial Indem. Co. (2010) 183 Cal.App.4th 388, 392, fn. 2.) Second,
the Agency was justified in rejecting any requests for unsupervised or overnight visits
because: (1) mother did not consistently visit J.R. in late 2014; (2) mother’s heated
interaction with father at a supervised visit in February 2015 suggested she could not
protect J.R. or herself from father; (3) mother had not “made significant progress . . . in
the area of domestic violence[;]” and (4) mother expressed a desire to “take the baby
home with her[.]”
Mother’s reliance on a single case, Tracy J. v. Superior Court (2012) 202
Cal.App.4th 1415 (Tracy J.), does not alter our conclusion. Tracy J. involved
developmentally disabled parents whose reunification services were terminated at the 18-
month review hearing. The appellate court held the agency did not provide the mother
with services designed to address her disabilities, unnecessarily limited visitation, did not
give the parents advance notice of their child’s medical appointments, and did not instruct
them on how to treat their child’s asthma. (Id. at pp. 1426-1427.) Tracy J. is completely
distinguishable. As we have explained, the Agency provided mother with a multitude of
services and was completely justified in denying any request for unsupervised or
overnight visits.
Father claims he did not receive reasonable reunification services because the
Agency knew his work schedule allowed only for Sunday visits and “did not offer or
provide” such visits until March 2015. We are not persuaded. There is overwhelming
evidence the Agency offered father a broad range of services tailored to him—including
substance abuse assessment and treatment, domestic violence classes and counseling, and
housing assistance—and he declined to participate “until very late in the game.” The
Agency also offered father visitation beginning in September 2014, which he consistently
failed to attend. When father told Espinoza about his work schedule, she arranged for
Sunday visitation.
That the Agency could not arrange for Sunday visitation immediately does not
demonstrate a lack of substantial evidence supporting the court’s conclusion on
reunification services. In any dependency case, the services provided are rarely perfect.
9
(In re Misako R. (1991) 2 Cal.App.4th 538.) “The standard is not whether the services
provided were the best that might be provided in an ideal world, but whether the services
were reasonable under the circumstances.” (Id. at p. 547.) Here, ample evidence
supports the court’s finding the reunification services were reasonable under the
circumstances. (In re Julie M. (1999) 69 Cal.App.4th 41, 47-48.)
II.
There is Substantial Evidence Returning J.R. to Mother Posed a Substantial Risk of
Detriment to His Physical or Emotional Well-Being
Father challenges the sufficiency of the evidence supporting the court’s detriment
finding. At the six-month review, “the court shall order the return of the child to the
physical custody of his or her parent . . . unless the court finds, by a preponderance of the
evidence, that the return of the child . . . would create a substantial risk of detriment to the
safety, protection, or physical or emotional well-being of the child. . . . The failure of the
parent . . . to participate regularly and make substantive progress in court-ordered
treatment programs shall be prima facie evidence that return would be detrimental. In
making its determination, the court shall review and consider the social worker’s report
and recommendations . . . and shall consider the efforts or progress, or both,
demonstrated by the parent . . . and the extent to which he or she availed himself or
herself to services provided. . . .” (§ 366.21, subd. (e).) We review the court’s detriment
finding for substantial evidence, mindful it “is not our function . . . to reweigh the
evidence or express our independent judgment on the issues before the [juvenile] court.”
(In re Jasmon O. (1994) 8 Cal.4th 398, 423.)
Father contends the court’s detriment finding is not supported by substantial
evidence because mother participated, and made substantial progress, in her court-
ordered treatment plan. His claim fails. Mother did not engage in reunification services
until late 2014, when she entered a drug treatment program. At that point, five months
had passed since J.R. was placed in foster care. Although mother had made some
progress in certain areas of her reunification plan, she failed to make substantial progress
in addressing her domestic violence issues. In February 2015—and against the Agency’s
10
recommendation—mother let father into her treatment program to visit J.R. Parents
argued during the visit, and father was asked to leave. Mother also called father in April
2015, despite agreeing not to contact him. Dr. Holden testified mother would “‘have to
do a lot of psychological work’” over a period of several years before she could parent
J.R. safely.
This case is unlike Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738.
There, the father was falsely accused of sexually abusing a child, but the social worker
and juvenile court used the parents’ steadfast denials of abuse as evidence it would be
detrimental to return the child to their custody. (Id. at p. 1752.) This is not a
“‘confession dilemma’” case where an innocent parent is required to admit untrue
allegations to reunify. (Id. at p. 1751.) Nor is this a situation like Jennifer A. v. Superior
Court (2004) 117 Cal.App.4th 1322 (Jennifer A), where the juvenile court based its
detriment finding on the mother’s “missed, diluted, and positive drug tests between the
12-month review report/hearing and the 18-month review report/hearing.” (Id. at
p. 1346.) The appellate court reversed, concluding the record did not support a finding
the mother’s “marijuana use, as shown by the record, means the children’s return to [her]
would create a substantial risk of detriment to the physical or emotional well-being of the
children in light of the factors in this case militating in favor of their return. No evidence
was presented to establish [the] Mother displayed clinical substance abuse[.]” (Id. at p.
1346.) Here and in contrast to Jennifer A., there was ample evidence mother’s failure to
address her domestic violence issues negatively impacted her ability to care for and
protect J.R.
We commend mother’s progress in alleviating some of the issues that led to the
dependency petition, but we must conclude the evidence viewed most favorably to the
Agency supports the finding that returning J.R. to mother’s care created a substantial risk
of detriment to his physical or emotional well-being. (In re Mary N.B. (2013) 218
Cal.App.4th 1474, 1483; In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.)
11
III.
The Court’s June 11, 2015 Minute Order Must be Modified
Father contends the court applied the wrong standard in concluding parents failed
to regularly participate and make substantive process in court-ordered treatment. Most
findings at the six-month review are made under the preponderance of the evidence
standard, but the juvenile court may schedule a section .26 hearing only if it has found by
clear and convincing evidence the parent failed to participate regularly and make
substantive progress in a court-ordered treatment plan. (§ 366.21, subd. (e).)
At the six-month review hearing, the court stated there was “clear and convincing
evidence that reasonable services were offered [to father], but the reasonable services
were not taken up . . . in a timely fashion.” The court reached the same conclusion
regarding mother, explaining: “there is clear and convincing evidence that reasonable
services were offered because they were, directed at the very issues that the mom had to
deal with and known to her. . . . And . . . [¶] [mother] did not make substantive progress
in the case plan that was developed by the social worker.” The court’s June 11, 2015
minute order, however, states “by [a] preponderance of the evidence that the parent[s]
failed to participate regularly and make substantial progress in any court ordered
treatment plan, as stated on the record.”
There is a conflict between the court’s statements at the six-month review hearing
and the minute order entered on that date. “Where there is a conflict between the juvenile
court’s statements in the reporter’s transcript and the recitals in the clerk’s transcript, we
presume the reporter’s transcript is the more accurate.” (In re A.C. (2011) 197
Cal.App.4th 796, 800; People v. Contreras (2015) 237 Cal.App.4th 868, 880 [same].)
The June 11, 2015 minute order must be corrected to reflect the court’s oral findings at
the conclusion of the six-month review hearing. (In re Abram L. (2013) 219 Cal.App.4th
452, 459 & fn. 3.)
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IV.
There is Substantial Evidence There Was Not a Substantial Probability J.R. Could be
Returned to Parental Custody by the 12-Month Review Hearing
Father’s final claim is insufficient evidence supports the court’s finding there was
not a substantial probability J.R. could be returned to parental custody by the 12-month
review hearing. Because J.R. was under three years old, parents were limited to six
months of reunification services unless the court found at the six-month review hearing
there was a substantial probability J.R. could be returned to parental custody by the 12-
month review hearing. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 182; see
also § 366.21, subds. (e), (g).) In making this determination, the court considers whether
the parent has: (1) “consistently and regularly contacted and visited the child;” (2) “made
significant progress in resolving the problems that led to the removal of the child;” and
(3) “demonstrated the capacity and ability to complete the objectives of the treatment
plan and to provide for the child’s safety, protection, physical and emotional health, and
special needs.” (Cal. Rules of Court, rule 5.710(c)(1)(D)(i).) The court also considers
the amount of time left in the statutory period between the six-month review hearing and
the 12-month anniversary of the date the child entered foster care. (Tonya M. v. Superior
Court (2007) 42 Cal.4th 836, 846.)
As we have discussed, father made virtually no progress in his court-ordered
treatment plan. Mother made some progress in some areas in the later stages of the
dependency, but not in the area of domestic violence. We conclude substantial evidence
supports the finding there was not a substantial probability J.R. could be returned to
parental custody by the 12-month review hearing. (Kevin R. v. Superior Court (2010)
191 Cal.App.4th 676, 690.)
DISPOSITION
The juvenile court is directed to modify its June 11, 2015 minute order to reflect
the court’s oral findings on that date, i.e., that the court found by clear and convincing
evidence mother and father failed to participate regularly and make substantial progress
in their court ordered treatment plans. Mother and father’s petitions seeking
13
extraordinary relief from the juvenile court’s order terminating reunification services and
setting a Welfare and Institutions Code section 366.26 hearing are denied on the merits.
This decision is final immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
_________________________
JONES, P.J.
WE CONCUR:
_________________________
NEEDHAM, J.
_________________________
BRUINIERS, J.
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