Opinion
G059267
11-16-2020
J.S., Petitioner v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
Law Office of Rebecca Captain and Donna P. Chirco for Petitioner. No appearance for Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Real Party in Interest, Orange County Social Services Agency. Law Office of Harold La Flamme and Christopher Mastick for Real Party in Interest, the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18DP0598) OPINION Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Petition denied. Law Office of Rebecca Captain and Donna P. Chirco for Petitioner. No appearance for Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Real Party in Interest, Orange County Social Services Agency. Law Office of Harold La Flamme and Christopher Mastick for Real Party in Interest, the Minor.
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J.S. (father) seeks a writ of mandate or prohibition to overturn the juvenile court's order terminating reunification services and setting a hearing to select a permanent plan for his daughter, D.S., who is just over two and a half years old. (Welf. & Inst. Code, § 366.26 (hereafter, ".26 hearing").) The .26 hearing could result in termination of parental rights, freeing D.S. for adoption. (Id., subd. (b)(1).) Father, who gained liberal visitation for a time, but then regressed to monitored visitation, challenges the sufficiency of the evidence to support the court's finding that D.S. faced a substantial risk of detriment if returned to his custody. Minor's counsel opposes father's petition. As we explain, the evidence supports the court's finding based on the preponderance of evidence standard. We therefore deny the writ petition.
All further statutory references are to this code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
This court previously found no merit in father's appeal from the juvenile court's dispositional order maintaining D.S. (then three months old) and her maternal half-sister, T.S. (then age five), in foster placement outside of father's care. (In re D.S. (Mar. 29, 2019, G056868) [nonpub. opn.].) The Orange County Social Services Agency (SSA) originally took the girls into protective custody after police responded to a domestic violence incident at a motel in June 2018 between father and the girls' mother, J.A.S. (mother).
About two months into the dependency, father informed the girls' social worker "that he 'had to quit his job' and would assume all caretaking duties for the children [and that] he planned to sue the 'County and the police' for wrongfully detaining the children." (In re D.S., supra, G056868.) We excerpt the following from In re D.S. to summarize the case history up to the September 2018 disposition hearing:
"Father explained he had not visited his daughter or T.S. since their removal because it 'emotionally damaged' him. Specifically, he said he 'can't stand' the thought of seeing D.S. in a foster home 'with other people breathing in her face.' Therefore, if she were not returned to his care, he would 'walk away' from D.S. When the social worker stressed the importance of forming a bond with her as an infant, he answered that he had to do 'what's best for him.' For her part, mother was no longer enrolled in her residential treatment center and, while she claimed to have located a sober living home, she would not provide an address. Based on phone conversations the social worker overheard, the worker concluded mother resided with father.
"Meanwhile, T.S.'s challenging behaviors required the resource couple's full attention, so in September 2018, they reluctantly gave SSA notice that they could not also care for D.S. Consequently, SSA began looking for an alternate placement for her.
"The trial court held the disposition hearing that month. The social worker identified 'a pattern of abuse or . . . discord' between mother and her partners, which father had done nothing to address, including his reportedly active role in the motel incident. Regardless of who instigated acts of domestic violence, father appeared not to grasp its gravity, seeming 'more concerned with his emotional anguish,' including a potential need to 'walk away' without any 'insight as to what effect his absence could cause to his child.'
"Father denied stating he would abandon D.S., but acknowledged his lack of visits stemmed from feeling 'punished and tortured' by the children's removal, causing him to 'suffer from mental anguish.' He did not believe mother posed any danger to the children and that it was 'safe' to return them to her custody, but he testified he would allow them only 'court approved' contact with her if they were placed in his care.
"The juvenile court did not find father credible. The court observed it 'simply d[id] not believe that father would be capable of establishing appropriate boundaries should the child or children be released to his care,' in particular 'to be sufficiently protective of the children regarding mother . . . given the primacy of what appears to be his self-referential concerns and concerns for mother.' The court expressly cautioned it was 'not looking for perfection.' Instead, the court stated, 'It's the ability of the father . . . to protect his own child and put her needs ahead of his own primary needs [that] is at issue.' The court 'note[d] that [D.S.'s] needs to have her father present to begin, to continue the important bonding process . . . seems to have been lost in the shuffle.'" (In re D.S., supra, G056868.)
In affirming the juvenile court's order, we observed that father was seemingly preoccupied with his own interests, rather than the children's. For example, he "seemed to seek custody of T.S., who was not his daughter, as a 'hook' for his relationship with mother." (In re D.S., supra, G056868.) Father showed no appreciation of the risks mother's unresolved substance abuse and mental health issues posed, nor of the "real danger" that domestic violence poses for children, including their mental and emotional health. (Ibid.) We concluded that "[a]n inability to perceive risk is itself a risk factor," citing authority that "'[o]ne cannot correct a problem one fails to acknowledge.'" (Ibid.; see In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.)
We also observed that while father "testified he would not walk away from D.S., but instead visit her every day if she were not returned to his care," the trial court found him to be not credible. In any event, we said, "Time will tell as the dependency proceedings continue whether father will visit D.S. and make her protection his priority." (In re D.S., supra, G056868.)
Following remand, father's reunification efforts continued through three successive, six-month review periods. During the first period, father gained unsupervised visits with D.S., up to six hours per week, but he failed to secure stable housing. He initially moved to his mother's home in Bakersfield and participated in services, including parenting classes; he then relocated to Los Angeles and suggested he would soon move to Irvine. While father was living in Bakersfield, the court authorized transportation funding so he could continue visiting D.S.
Mother returned to Oklahoma. Once separated from father, who had been "her only source of support in California," she informed the social worker that father was a '"very unhealthy person."' According to mother, their relationship had been marred by "a lot of domestic violence," which father had a history of downplaying. Nevertheless, mother reported she was bearing another child with father.
Around this time, father began to make unsubstantiated allegations that D.S. was being sexually abused in her placement. Father declined the social worker's recommendation to contact an abuse hotline, stating he "would rather go to the police, the doctor, get his own forensics team, and get the media involved." He believed the placement caregiver put D.S. in a dress and "makeup" to use her for "child pornography." Stoking his unsupported conclusion, he forwarded Internet articles to the social worker about the prevalence of child pornography in the Philippines, the caregivers' country of origin.
On one occasion, father unilaterally extended his unsupervised visitation with D.S. to take her to a doctor to examine a scratch on her leg that he felt was proof of abuse. The hospital staff disagreed and reported, "'No signs of concern from the perspective of the medical team.'"
Father continued to move around, including returning to Bakersfield, where he sometimes lived with his sister, though he was still working in Costa Mesa. Father had two overnight visits with D.S., which appeared to go well, and SSA approved a move by D.S. to father's mother's home in Bakersfield. Father declined that opportunity. He wanted a commitment letter from SSA, which the agency could not provide, guaranteeing that D.S. would be returned to him on a date certain. Father apparently believed such a letter would qualify him for an apartment of his own "in the area."
He did not want to move into his mother's home as a means to reunite with D.S., and continually stated he would return to Orange County, which prevented a transfer of the case to Kern County social services. Father ignored the social worker's suggestion he have an overnight visit with D.S. at a hotel in Orange County. The social worker observed that father's refusal to find a way to reside with D.S. for a 60-day trial visit "demonstrates [him] putting his own needs and desires before what is best for his daughter."
Father continued to lodge unsupported allegations of abuse and neglect against the caregiver. He made an unfounded Child Abuse Report (CAR) when he claimed he found small bruises on D.S., a slight rash, and swelling on her right eye. When the social worker investigated and found no "worrisome or unexplainable issues," father again took D.S. to a doctor himself. The doctor similarly expressed no concerns about the child's safety, prescribing only ointment for her rash.
Father then went to the Anaheim Police Department, filing a duplicate CAR, which the police and SSA investigated and found meritless. Father's mother, D.S.'s paternal grandmother, participated in the false reporting. Father continued to take D.S. to the emergency room or urgent care. He ultimately made eight CAR claims, all found to be baseless. Father harassed the caretaker, calling her incessantly and sending law enforcement to her home late at night, traumatizing the children in her care.
At a Child and Family Team meeting with SSA, at which mother appeared telephonically, father grew agitated, and abruptly left the room when mother highlighted her progress. He objected to participating in anger management classes and parenting classes tailored to D.S.'s age level because they would not "benefit" him since he did not "have any problems." Father also objected to counseling stating, '"I don't need it, I am PERFECT."'
At the 12-month review hearing, father testified about the abuse he maintained was being inflicted on D.S. He did not believe a toddler could sustain such bruises in normal childhood activity. Father's visitation was again restricted based on several factors, including the numerous unnecessary trips to the doctor, his refusal to accept diagnoses of licensed medical professionals, proliferating medications for D.S. as a result of visiting different doctors, and exposing D.S. to visitors not preapproved by SSA. He also grew more unpredictable, "nice one minute and then chang[ing] the next." Based on these concerns and father's seemingly increased impulsivity and irrationality, the court authorized an Evidence Code section 730 evaluation for father.
Meanwhile, in the third review period, after trial visits for D.S. and T.S. with mother in Oklahoma seemed to go well, mother gained a 60-day trial return of the children to her care. That arrangement proved to be short-lived. Within a few weeks, mother was hospitalized for a drug overdose and the children were again removed from her care. D.S. remained in Oklahoma with a maternal aunt pending a home assessment, and father had video call visitation with her. Those visits were consistent and generally positive, but on two occasions father appeared to be intoxicated. At other times father appeared to have difficulty focusing. Father agreed to a drug test, which was delayed before the social worker could arrange it; the test results were negative.
The 18-month review hearing was originally scheduled for December 2019, but due to continuances and then the COVID-19 pandemic, father had the benefit of further reunification services through July 2020.
In the interim, father's whereabouts continued to change. He lived for a time in Anaheim; then he lost his job in mid-February 2020 and moved back to Bakersfield. He enrolled in counseling with a new provider, but continued to believe he "did not do anything wrong," blaming the dependency on mother while ignoring his role in the children's initial removal and his inability to progress towards reunification with D.S.
Shortly thereafter, father called his Orange County social worker to share that he was on his way to Oklahoma. Father had one monitored visit with D.S. in the Tulsa area, but it was not clear where he lived. Mother stated father was at a sober living residence; however, the caretaker reported his car was parked outside mother's home.
SSA received a letter from father's counselor before the 18-month review hearing, stating that father had completed his counseling sessions by early June, had always been "on time, . . . cooperative, demonstrated insight[,] and actively engaged with" the therapist. The court considered the letter at the review hearing, in addition to the forensic psychologist's section 730 report, which had been filed under seal. The psychologist concluded father did not have "a psychiatric disorder that would interfere with his judgment and impulse control," but instead exhibited "narcissistic traits" that included "placing his judgment above that of healthcare professionals."
We granted father's motion to unseal, review, and cite the contents of the report for purposes of his appeal. SSA's motion to provide its counsel with the confidential report was likewise granted. --------
The psychologist observed that, "[h]aving 'proof'" in father's mind "that his daughter has been mistreated gives him a false sense of being morally upright . . . and shifts the focus from his having to participate fully in the Case Plan." Similarly, by "[p]lacing the focus and onus of the issues involving his daughter on the caretaker," father "effectively removes the focus off himself."
The psychologist concluded it was "clinically probable" that father was "not quite conscious about this process and [that father] has not shown much ability to reflect on and begin accepting his own contributions to this process." Instead, "adhering to these allegations [of caretaker abuse] also helps to 'demonstrate' [to father] that his commitment to this daughter exceeds that of anyone who has been taking care of her." The psychologist noted that father had not shown to date "a steadfast commitment either to other relationships, a place of residence or to places of employment."
At the 18-month review hearing, father testified he lived with his sister in Bakersfield, but he would move to his mother's home in order to gain custody of D.S., and then, with the court's permission, to Michigan where he had arranged housing with a friend. He objected to SSA's recommendation to terminate reunification services and set a .26 hearing, arguing it was unwarranted because he had "not violated any law and I have done the whole time everything that was asked of me."
The juvenile court praised as "admirable" father's engagement with services, adding that this performance came only after "a lot of water had passed under the bridge." Despite father's progress, the court found his persistence in making unfounded allegations of abuse involving D.S. "was a detriment to this child" and that father "going back to" monitored visitation did not bode well for safely releasing D.S. to his custody. The court also observed that father's inability to accurately perceive risk and "the needs and the developmental levels of an infant or a child of [D.S.]'s age," including the need for stable housing, posed a risk of detriment to D.S. That risk included alienating others committed to D.S.'s well-being, such as her caregiver.
The court did not weigh heavily a favorable letter submitted by father's second therapist, just two weeks after the social worker had reported father's lack of insight to the therapist as a subject needing attention. The court commented on the letter: "[N]otwithstanding its glowing terms . . . [it] seems unlikely that father could have made such dramatic progress" in that short time frame. The court concluded, "[F]ather's actions, as they unfolded, malign that letter."
The court found father failed to take any responsibility for D.S. remaining out of his custody for the lengthy dependency proceedings. Instead, he continued to blame mother for D.S.'s initial removal; he did not "see[] his own role" in failing to protect D.S. initially from domestic violence and failing to progress to reunification. The court concluded it did "not appear that father has . . . moved beyond a self-centered—and to use [the forensic psychologist]'s phrase—narcissistic view of the world; and . . . that certainly poses inherent risk . . . to his child."
DISCUSSION
Father challenges the sufficiency of the evidence to support the juvenile court's conclusion that returning D.S. to his care posed a substantial risk of detriment to her. His burden is a heavy one; it requires him to show that no substantial evidence supports the court's finding. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
On review, we "must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.] In dependency proceedings, a trial court's determination will not be disturbed unless it exceeds the bounds of reason." (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.)
The standard the juvenile court applies at the 18-month review hearing "is not, as it were, quantitative (that is, showing up for counseling or therapy or parenting classes . . . ) but qualitative (that is, whether the counseling, therapy or parenting classes are doing any good). These are sensitive cases, fraught with emotional overtones, because they invariably deal with an evaluation of the personality, character and attitudes of the parent." (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748, italics omitted.)
The stakes are high at the hearing. By that late date in a dependency case, "the Legislature has determined a child's need for stability and security within a definitive time frame becomes paramount. . . . At this hearing, 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." (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788.)
The 18-month review hearing is governed by section 366.22, which provides in relevant part: "[T]he court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.22, subd. (a)(1).) Failure to "make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental." (Ibid.)
Father argues that he only "complained about aspects of his service plan or postured that he was not going to do additional services." He claims he "did all the services that were requested of him," including two parenting classes and two rounds of counseling. Father seems to imply he was therefore entitled to reunify with D.S., but acknowledges that "[c]ompleting one's service plan is not an automatic ticket to have your child returned to your care."
To the contrary, "simply complying with the reunification plan by attending the required therapy sessions and visiting the child[] is to be considered by the court; but it is not determinative. The court must also consider the parents' progress and their capacity to meet the objectives of the plan; otherwise the reasons for removing the child[] out-of-home will not have been ameliorated." (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143; see also, e.g., In re Brian R. (1991) 2 Cal.App.4th 904, 918 (Brian R.).)
Father notes that, unlike in Brian R., "there was no expert testimony [that D.S.] would be at risk in [his] care." But no expert opinion was necessary. The risk determination was for the juvenile court to make (§ 366.22, subd. (a)(1)), and ample evidence supports the court's conclusion.
In determining "detriment," the juvenile court weighs all relevant factors in evaluating the "expected net harm to a child as the result of his or her return to parental custody." (In re Cody W. (1994) 31 Cal.App.4th 221, 227.) Those factors include, but are not limited to "whether the natural parent maintains relationships with persons whose presence will be detrimental to the ward [citation]; instability in terms of management of a home [citation]; . . . [citations]; limited awareness by a parent of the emotional and physical needs of a child [citation]; failure of a minor to have lived with the natural parent for long periods of time [citation]; and the manner in which the parent has conducted himself or herself in relation to a minor in the past." (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705 (Constance K.).)
None of these factors weigh in father's favor. He lacked insight to see mother's drug abuse and mental health history as risk factors for D.S. The same was true regarding mother's and father's history of domestic violence, including a prior arrest for each and mother's report that violence was common in their relationship. Father did not recognize the threat this factor posed to D.S. He failed to recognize it as a threat in advocating for immediately returning the children to mother's care. Then, despite the opportunity to make a clean break from mother, including geographically, he may have fathered another child with her and returned to their entangled relationship.
As the forensic psychologist observed, father has been unable to establish or maintain healthy and committed long-term relationships. It is noteworthy that when father gained unmonitored visitation with D.S. initially, he still could not find a way, despite their willingness, to live with his sister or his mother to reunify with D.S. Of particular concern is the fact that his mother, whose home was father's only realistic hope for reunification, herself participated in and fostered father's false abuse allegations against D.S.'s caretaker.
The same analysis applies to other factors such as (1) father's "instability" in finding a home for D.S., and (2) his "limited awareness" of D.S.'s emotional and physical needs, including the importance of early bonding with him and insight into her development. (Constance K., supra, 61 Cal.App.4th at p. 705.) He consistently refused to accept the advice of professionals and instead repeatedly filed unfounded abuse claims. Father only briefly lived with D.S. before she was removed as an infant and he never regained even a trial placement with her, thwarting his best opportunity to do so when he tentatively accepted family housing help for himself only if it did not include D.S. (Accord, ibid.) His overall conduct in relation to D.S. was marked by chronic selfishness. (Accord, ibid.)
Father misconstrued D.S.'s bug bites and bruises as signs of physical and sexual abuse; he continues to insist despite all contrary evidence, that "[t]he injuries to [D.S.] were real." Father misses the point. It appears he views his focus on the bites in particular as reflecting his concern for his daughter. But the court reasonably could conclude that his attention to these details was primarily to manufacture a narrative supporting his narcissism.
The court also reasonably concluded father's self-absorbed world view, which the juvenile court noted several times diverged from reality "to a point where it [became] injurious" and posed a "real-world danger" to D.S., inflicted real costs on her. She was dragged to numerous doctors, subjected to unnecessary examinations for unsupported sexual and physical abuse allegations, her paternal grandmother was implicated in father's machinations, and the only consistent home life she had known— with a devoted and loving caregiver—was disrupted at all hours by police officers responding to father's unfounded CAR reports. Not once, but eight times.
The court was not required to accept the conclusory, favorable assessment of father's second therapist, which was at odds with father's actions that demonstrated, at best, "moderate" progress and sustained commitment only to himself. When a parent fails to actually change his behavior, mere participation in services is not enough to gain reunification. (In re Mary B. (2013) 218 Cal.App.4th 1474, 1483-1484.)
On this record, the juvenile court reasonably could conclude that father's "abiding inability to see the world in any frame of reference other than, again, a narcissistic view, . . . [indicates] that the return of the child to father . . . would entail a substantial risk of detriment to [D.S.'s] safety, protection, physical, or emotional well-being." Father has failed to meet his burden to show that no evidence supported the juvenile court's assessment.
DISPOSITION
We deny father's petition for a writ of mandate or prohibition to overturn the juvenile court's order terminating reunification services and setting a .26 hearing.
GOETHALS, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.