Opinion
A132820
09-28-2011
B.L., Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; HUMAN SERVICES AGENCY OF SAN FRANCISCO, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City & County of San Francisco Super. Ct. Nos. JD093010, JD093011, JD93012, JD093012A)
B.L., the mother of four children subject to juvenile court jurisdiction since March of 2009, seeks relief from a trial court order setting a hearing to terminate her parental rights under Welfare and Institutions Code section 366.26. The trial court's finding at a 24-month review hearing that the children could not safely be returned to mother was supported by substantial evidence and, therefore, we shall deny the writ petition.
Further statutory references are to the Welfare and Institutions Code.
B ACKGROUND
Petition and detention
On January 22, 2009, the Human Services Agency of San Francisco (the agency) filed a petition under section 300, subdivisions (b) and (g) alleging that three of mother's children, then aged nine, four and two, came within the jurisdiction of the juvenile court. A separate petition was subsequently filed alleging that mother's newborn child came within the court's jurisdiction under section 300, subdivisions (b), (c) and (g). The petitions allege that mother was involved in a relationship characterized by domestic violence, and that she has mental health issues requiring assessment and treatment because those issues affect her ability to protect the children from physical and emotional harm.
On the same day, the agency filed a detention report alleging multiple incidents of neglect and abuse. Among other things, the report alleged that mother admitted leaving the three youngest children, then five, four and two years of age, unsupervised; mother's boyfriend, Aladdin Fagan, had threatened to kill the minors and mother; mother denied there was domestic violence in her relationship; mother was being threatened with eviction but not following up on referrals to prevent such action; and mother was sneaking Fagan into her housing even though he had been evicted for violent behavior. The children remained with mother.
The court set a jurisdiction and disposition hearing for March 12. Jurisdiction and disposition
On March 6, 2009, the agency filed a disposition report stating that mother was seeking housing that would allow her to live with Fagan, despite his history of violent behavior towards her and her children. The report also stated that "[t]his is a case of a family that has a history of domestic violence and homelessness. The family is open to and receiving many services. [The concern is] that even with several agencies assisting the family, the situation is marginal at best. . . . Although the agency is recommending a Family Maintenance case, this CWW would like to state that these children have witnessed years of domestic violence and emotional abuse due to [B.L.'s] choices in men so she needs to proceed with caution. This CWW feels that it would be detrimental to the children to witness any further domestic violence and should it become known that Mr. Fagan is harming [B.L.] or the children, the agency would recommend, without hesitation, that the children be removed from [B.L.]"
The juvenile court declared jurisdiction, placed the children with mother, and set a six-month review hearing for September 16, 2009. First restraining order
On March 11, mother filed an application for a temporary restraining order against Fagan, alleging he had threatened to kidnap the children and to kill mother, and that due to his threats they were in hiding. The application also alleged that the locks at mother's housing complex were changed because of his threats. The court issued a restraining order valid through March 31.
On March 12, the court found jurisdiction, declared dependency and ordered that the children remain with mother. Second restraining order
On April 10, the restraining order was amended and reissued, valid through May 1. Supplemental petition
On April 14, a supplemental petition was filed alleging that mother had placed the children in danger by ignoring the restraining order. The supplemental petition recommended that the children be placed in foster care. The children were detained. On May 4, the court sustained the amended petition and found that there was a substantial danger to the children if they were returned to mother. The court reset the six-month review hearing to October 28, 2009. Fagan requested a continuance on the restraining order hearing, and the temporary order was reissued through May 29. Third restraining order
On May 29, mother filed a new application for a restraining order alleging that "In April, 2009, [Fagan] hit [mother] in the face with a closed fist knocking her to the ground and giving her a black eye. On or about May 16, 2009, [Fagan] placed both of his hands around [mother's] neck and choked her, causing her to fear for her life. On the same date, [Fagan] slapped [mother] in the face. On May 28, 2009, [he] told [mother] that he would kill her and take her someplace and bury her so that no one would ever know what happened to her. On that same date, [he] told [mother] that he would bury her alive, and made a motion with his fist indicating that he would hit her. . . . [Mother] fears for her life as a result of threats against her life by [Fagan]."
On May 29, the court issued a juvenile restraining order after hearing, finding that Fagan struck mother in the presence of the children. The order protected all four children.
On June 3, mother's counsel filed a motion to be relieved. In the supporting declaration he states that after testifying to the matters in the application for the restraining order filed on May 29, mother returned to a shelter and her counsel sought an emergency protective order. "Before that matter could be heard by the Court ex parte, [B.L.] informed me that she no longer is seeking an order to protect herself from her husband, that she no longer intends to separate from him, and that they are again living together." The declaration continued that mother "has acknowledged abuse by her husband serious enough to cause her to seek emergency protection from the court on two occasions, then on both occasions resumed living with her abuser within days or even hours of her claim that she feared for her life."
On July 15, the social worker filed a request to change the visitation order in which she reported that mother was again living with Fagan Six-month review
On October 8, 2009, the agency filed a status review report in advance of the six-month review hearing, recommending that the children remain in foster care and that a 12-month review be set for April 28, 2010. The report states that mother told the social worker that Fagan "was upset that [mother] tried to go to a doctor's appointment without asking his permission [and] grabbed [mother] by the hair and threw her on the ground, face first. At that time, [mother] was four and a half months pregnant by [Fagan]. [Mother] reported to [the social worker] that a friend called the police but that she was made to lie to the police by [Fagan] and say that everything was okay." Mother told the social worker that she lied to the police because Fagan and his mother were standing nearby. The social worker made a safety plan with mother, but mother stated that she "did not want to betray her husband" and "that she was scared to go to a shelter because her husband had found her at a shelter in the past. [Mother] stated that she needed to make a plan to try to leave, but that it was challenging for her to make any moves because she loved her husband and wished that he could get help."
The report states that on September 11, 2009, mother reported to the social worker that she had left Fagan "because she could no longer take the emotional and verbal abuse from him and her [mother in law]. [Mother] stated that she was scared and feared for her life." On September 18, mother's therapist made a report to CPS because mother told him that Fagan had threatened her, saying, "If that baby isn't mine, I'm gonna kick it out of your stomach," and "If you leave me again, I will kill your brothers, sisters and your mother—and if you call the police and I go to jail, then my mother will finish you off." On September 23, mother reported to the same therapist that Fagan "was planning on hiring a security guard to watch her every move so that she not try to leave again. [Mother] stated that he also tried to punch her stomach, but that she was able to back away." Mother agreed to enter a shelter. On September 28, the social worker received a call from the shelter informing her that mother had left the shelter with all of her personal belongings at six that morning. Mother had used another resident's phone to call Fagan. The other resident overheard mother tell Fagan that she missed him and that she was in a shelter in Concord. On September 29, mother told the social worker that she had not called Fagan and denied leaving the shelter.
On October 1, mother informed her attorney that she did not want a restraining order against Fagan "because she no longer felt threaten[ed]" by him. On October 3, mother left the shelter and did not return. On October 6, mother told her case worker that "she called her husband and that they decided that they wanted to talk and try to resolve their problems"
On October 28, the court renewed dependency, ordered an additional six months of services, and set a 12-month review for April 28. Fourth restraining order
On November 5, mother filed another application for a restraining order against Fagan. In the supporting declaration she states that Fagan "learned that my unborn child could be removed from me/us after his birth. This enraged him. He blames me for this. He blames me for telling others what I am going through with him and his mother. He tells me he will get my son and I will never see him again."The declaration also states, "The recent court report in my children's juvenile court case documents these incidents as well. I am not making these things up. I have denied them in the past, but disclose them again now in hopes of finally making my situation better. . . . I am afraid for my life and need the restraining order to protect me and my unborn son." Mother also sought a restraining order against Fagan's mother, whom she accused of joining Fagan "in his threats and abusive behavior."
On November 6, the court issued a temporary restraining order valid through November 20, when a hearing on the application was set. On November 20, 2009, the court issued a restraining order against Fagan valid through November 21, 2010. 12-month review
On April 14, 2010, the agency filed a status report in advance of the 12-month review. The agency recommended that an additional six months of services be offered while the children remained in foster care. Mother had given birth to her son, and appeared to be taking proper care of him. However, she had allowed her mother-in-law to take the baby away on two occasions and did not know where she had taken him. Mother's therapist reported that "things were going well and . . . that there were no risk or safety concerns and that he would support for the mother to have the children for unsupervised visits . . . ." Mother had been attending therapy regularly. The report concluded that mother had followed through on the restraining order and taken advantage of the services offered, but that she "has also expressed feeling overwhelmed and stressed when with all of her children. Due to this, the mother continues to need guidance and coaching from providers to help her organize and structure her life so that she can successfully parent all of her children without having emotional break downs and needing the [agency] to intervene."
At the April 28 hearing, the court noted substantial progress by mother and set an 18-month review for October 13, 2010. 18-month review
On September 28, 2010, the agency filed a status report in advance of the 18-month review hearing. The report recommended terminating reunification services.
The report detailed the events in the preceding months. It states, "Since the undersigned received this case on or about April 2010, the mother has changed her mind about wanting a relationship with Mr. Aladin Fagan so many times that it has been very confusing and concerning to really understand the truth. The mother has also not been truthful with the [agency] regarding her relationship with Mr. Fagan. The mother reported that she has filed for divorce, but the status is unknown." The children reported to the family therapist that they had been visiting Fagan. Mother denied that the children had seen Fagan. The family therapist confirmed that all of the children reported visiting Fagan at his apartment and playing ping-pong. The social worker spoke with the children who again confirmed that they had visited Fagan. Mother's attorney spoke with the social worker and indicated that mother admitted taking the children to see Fagan, and that she "has reported to him that she would like to reconcile with Mr. Fagan . . . ." The following day, mother's attorney told the social worker that "the verbal abuse with her mother in law . . . continued and that she had decided as of yesterday that she no longer wanted to reconcile with Mr. Aladin Fagan due [to] a verbal discussion that she had with her [mother-in-law]."
On June 18, the social worker received a phone call from the children's attorney, informing her "that she received a call from Mr. Aladin Fagan stating that the mother had been living with him ever since the restraining order."
The agency received a report on June 21 that mother had left the six-month-old baby home alone for 25 minutes. On June 23, the children's attorney informed the social worker that mother had taken the baby to see Fagan on Father's Day. When confronted, mother admitted that she had done so. She also informed the social worker that she had given Fagan her new phone number, which was supposed to be confidential.
On July 4, mother was walking with the baby when she saw Fagan. "Mr. Fagan began to threaten her and tell her how she could be so evil and not let him see his own son. The mother stated that Mr. Fagan told her that if she ran or caused a scene that it was going to be bad for her. The mother stated that the father then grabbed the stroller with the baby and stated that they were going to the paternal grandmother's . . . house. The mother stated that she felt scared and intimidated by the father and that that was the only [r]eason why she left with him." When mother tried to leave, father prevented her, telling her "if you grab the baby I'm going to sock you in the face." Fagan blocked the door while holding the baby. Mother was able to escape and called the police, but the police allowed the baby to remain with Fagan. Mother was able to get the baby back the following morning. The baby was detained on July 28.
Mother told the social worker that Fagan was not present at the birth of the baby but later told the domestic violence specialist that he was present. On August 6, mother told the social worker that "she still wanted to be with the father, " that she had been seeing him "off and on through the entire time that the [social worker] had the case," and that "she was really scared of what the father was capable of doing because the father has told her that he would come after her."
The eldest child told her care provider that she had witnessed domestic violence between mother and Fagan and that on one occasion she had inserted herself in a violent argument to protect her mother.
The report concluded: "It is evident that [mother] continues to be vulnerable and lacks the capacity to protect herself as well as her children. The mother's poor judgment and decision making impair her ability to keep her children safe and away from Mr. Fagan as well as from the uncle . . . ."
The uncle was caught molesting the nine-year-old approximately four years earlier. In August 2010, mother allowed him into her home.
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The 18-month review was continued to November 10, then to November 17, and finally to January 10, 2011.
On November 10, 2010, the agency filed an addendum report. On November 1, the agency had received a new referral, with the reporting party alleging that mother had a party while the children were in the house. Mother and the other adults went into a bedroom to smoke marijuana while the children were left unattended.
On December 15, mother's brother filed a declaration stating that he was approved by the agency to supervise visitation; that he had been doing so; that "the children are happy when they are with their mother, and she is happy when they are around"; that he was at the recent party and no one smoked marijuana or consumed alcohol and that "[t]here is no marijuana smoking at my sister's house, period"; that mother was no longer in a relationship with Fagan; that she was divorcing him and no longer spoke to or saw him; that "[i]t would be very hard for her to hide a relationship with him if she were still in a relationship"; and that "[e]verything I have seen and heard from her in the past months has been that she is divorcing him, has no contact with him, and wants nothing to do with him."
An addendum report was filed on January 7, recommending up to six months of additional reunification services to mother. At the 18-month review on January 10, 2011, the court set a 24-month review date of April 20, 2011. No record appears for April 20, but on June 2, the 24-month review hearing was continued to June 23 and 24. 24-month review
On April 1, 2011, the agency filed a status review report recommending termination of reunification services. Mother's individual therapist had reported that her "ability to provide adequate parenting to her children is highly doubtful. Although she can provide for her children's basic needs, [mother's] poor judgment in her relationships and her difficulty in taking responsibility in her life is of concern. As long as she avoids dealing with her feelings and acknowledging the destructive pattern of relationships she is in, [mother] would continue to have difficulty relating to others and to find herself in the same abusive situation as before." It was reported that on March 8, mother was intoxicated when she arrived to visit her infant son. She "arrived to the visit with a strong smell of alcohol and throwing up." She denied to the social worker that she had been drinking, though she had admitted it to another party.
On March 28, the family therapist reported visiting mother and discovering rotten food in the kitchen, "about 6 inches of garbage all over the ground with rain, mud, and rotten food" in the back yard, and flies. Mother told him she could not afford garbage service. He reported that "the kitchen area was a disaster," and that "mother's bathroom was filthy." On a different visit he discovered a soiled diaper and feces on the bathroom floor. When the therapist addressed the subject with mother "she got mad at him for talking to her about it. He stated that the mother responded to him that she did not have time to pick up the garbage." Mother failed to appear for a scheduled meeting with the foster family. When asked about this incident, mother told the therapist that "she was too busy and forgot."
The report notes that the family therapist "expressed his concern of the mother not being able to identify when to do a behavioral intervention with her children versus providing emotional support. The mother also has not been able to understand the importance of doing collaborative work with the foster family. Her anger towards collaborating and being able to mak[e] unilateral [decisions] has been of great concern. Instead of the mother working with the foster parents so that they both could better meet the needs of the children, the mother has made very poor decisions and that has been the [social worker's] concern through the entire case . . . . It has never been a problem getting the mother to participate or attend her services, but the problem has been her ability to take in that information and follow through." The report adds that "mother has always tried to minimize her behavior and has tried to blame others for her actions. The mother has a difficult time handling any type of stress and it is evident by her behavior. That is why [the social worker] feels that it is in the best interest that the children obtain legal guardianship with their current care providers w[h]ere they will be able to receive stability, safety, and a sanitary living environment."
On June 27, 2011, the court found that return of the children to mother created a substantial risk of detriment to their physical and emotional safety, that reasonable efforts had been made to help mother overcome the problems that led to the removal, but that there was not a substantial probability of returning the children with the maximum time allowed for dependency. The court stated, I don't expect anyone to be perfect. . . . I do expect parents who are truthful, I do expect parents who obey court orders. I do expect parents to show more than just progress in the last four months of a 26-month period." The court added, "I think the evidence is very clear throughout this trial and before that these children cannot be returned safely to [mother's] custody. I believe that she's continued to show poor judgment and these children would be at risk if they were returned. There are some things that have happened fairly recently that give me grave pause about how safe the children would be. And again I think denial . . . is a huge part of the problem in this case, and coming back to a lack of truthfulness. . . . I think these children were put at risk in the past because of a lack of truthfulness and I really do think it's critical."
The court terminated reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26 for November 23, 2011. Mother challenges the setting of the hearing by way of a writ petition.
DISCUSSION
"[T]he juvenile court has the statutory authority, on a proper record and after conducting a hearing, to exercise its discretion and terminate reunification services at any time. In doing so, the court must consider all of the circumstances before it, and its determination must be based on a careful exercise of its discretion." (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1237.) "Absent extraordinary circumstances, the 18-month review hearing constitutes a critical juncture at which 'the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children.' " (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 596.)
Under section 366.22, subdivision (b), if a child is not returned to a parent's custody at the 18-month review hearing, the court may order additional services, but must set a subsequent permanency review hearing "within 24 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian." At a 24-month review under this provision, "[t]he 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." (§ 366.25, subd. (a)(1).) If the child is not returned to a parent at a 24-month review hearing, "the court shall order that a hearing be held pursuant to section 366.26 . . . ." (§ 366.25, subd. (a)(3), italics added.)
In this case, the court took the extraordinary step of extending services past the 18-month time frame based on mother's progress to that date. However, at the 24-month hearing, which actually occurred 26 months after three of the children were removed from mother's custody, the court found, based on substantial evidence in the social worker's report, that while mother had made some progress, the children still could not safely be returned to her. Mother continued to handle stress poorly, lied to the social worker concerning drinking, and failed to take responsibility for her actions. Given that returning the children to her custody was still not possible, the court had no choice but to set the matter for a termination hearing under section 366.26.
DISPOSITION
The petition for extraordinary relief is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894.) Since the permanency planning hearing is set for January 26, 2012, our decision is immediately final as to this court. (Cal. Rules of Court, rule 24(d).)
Pollak, J.
We concur:
McGuiness, P. J.
Siggins, J.