Opinion
A132954
10-13-2011
In re MADISON H., A Person Coming Under the Juvenile Court Law. AARON H., Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA COUNTY Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. J11-00585)
Aaron H. (father), the father of Madison H., filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, after the court denied him reunification services under Welfare and Institutions Code section 361.5, subdivisions (b)(10) and (11) and set a hearing pursuant to section 366.26. Father challenges the denial of reunification services to him and contends insufficient evidence supported the implied finding that he had not made reasonable efforts to treat the problems leading to the removal of another child. We conclude substantial evidence supported the lower court's ruling and deny father's petition for an extraordinary writ.
All further unspecified code sections refer to the Welfare and Institutions Code.
BACKGROUND
Jurisdiction
On April 5, 2011, the Contra Costa County Children and Family Services Bureau (the bureau) filed a petition pursuant to section 300, subdivision (b), alleging that Madison was at substantial risk of harm due to the history of domestic violence between father and Madison's mother (mother), and mother's history of substance abuse.
The original petition also contained an allegation pursuant to section 300, subdivision (j).
--------
The bureau filed its detention/jurisdiction report on April 7, 2011. According to the report, on March 28, 2011, Madison was dropped off at school and a person there noticed a large bruise on Madison's forehead that was about two inches long. The person at the school also noticed that father had a black eye when he came to pick up Madison from school. Two days later when questioned about the bruise on Madison's forehead, father and three-year-old Madison claimed that a television had fallen on her head. Subsequently, on April 1, the person at school noticed that Madison shut her eyes, covered her face with her hands, and screamed when someone in the class kicked the door. Madison then disclosed that her mother and she had locked themselves in a room and then father tried to kick the door down. Madison stated that her mother kicked her father and there was a lot of blood. Mother, according to Madison, had to kick the window out to permit them to escape and stay with friends. When asked if she got hurt, Madison first said, "No," but then admitted that her mother and father had kicked her in the head. Madison reported that her parents fought a lot but declared that she "love[d] my mommy and daddy now." The bureau recommended that the court find Madison to be a child described by section 300, subdivision (b).
The bureau filed a memorandum dated May 6, 2011. The memorandum stated that Madison had been placed in foster care and, since then, Madison had experienced " 'meltdowns' before and after the visits with her parents." The memorandum elaborated: Madison stated "that 'mommy and daddy fight and say bad words,' 'do you bleed?, because my mommy bleeds.' She has stated that 'mommy and daddy don't like me. Mommy and daddy hit me. Daddy hides me and we had to go out a window and he told me to run to go to a safe house.' " Madison, according to the memorandum, wanted to talk to her father and half sister on the phone, but did not want to talk to her mother. The memorandum stated that Madison asked her foster parents "to make sure that the doors to the house are locked so her parents cannot get her" and she asked her foster parents to "hide her so her parents cannot get her."
The court held a contested juvenile jurisdiction hearing on May 10, 2011. At the hearing, both mother and father admitted to an amended petition. The court sustained the allegations that father has a serious and chronic history of domestic violence that placed Madison at risk and there was "substantial risk that [Madison would] be abused or neglected by father in that the child's sibling . . . is in permanent placement due to the father's failure to reunify." It made a finding that Madison's sibling was adopted on July 1, 2009. The court terminated visitation with Madison pending the disposition hearing.
Disposition
The bureau filed its report for the disposition hearing set for May 24, 2011. It recommended that neither mother nor father receive reunification services and that the court set a section 366.26 hearing to determine a permanent plan for Madison. The report noted that both parents had failed a reunification plan with regard to Madison's older sibling. That case plan consisted of individual counseling, a domestic violence program, a parenting education class, inpatient substance abuse treatment, testing, and a 12-step meeting. The parental rights were terminated regarding that child on October 30, 2007.
The bureau's report also stated that Madison had been removed from the parents' home in 2007, because of domestic violence and mother's drug use. Father had received reunification services and at the 12-month review on December 8, 2008, Madison was returned to father's care. The petition filed on behalf of Madison was dismissed and the dependency vacated on May 18, 2009. The court gave father sole legal and physical custody of Madison.
The bureau opined that it would be unsafe for Madison to be in the care and home of either parent. It noted that since the Madison had been returned to father's custody in December 2008 and the original dependency case closed on May 18, 2009, there had been five incidents of domestic violence reported to the police. The parents reported that there had been many other incidences of domestic violence not reported to the police.
The parents declared that they wanted to resolve their relationship issues. They claimed that they were in love with each other and that they had a bond over the years. They maintained that they were now communicating better and that counseling was helping them with their problems. Father stated that the services were assisting them to overcome the issues that brought them to the attention of the juvenile court.
The minute order for May 24, 2011, indicated that both parents were present at the disposition hearing to hear the bureau's recommendation of no reunification services for either parent. The court set the case for a contested disposition hearing on June 28, 2011.
The bureau filed a memorandum dated June 24, 2011. The bureau advised the court that mother and father were involved in another domestic violence incident. The Concord police went to the home of father and mother regarding a domestic dispute on May 27, 2011. When the officers arrived, father was inside the residence and his head was bleeding. He told the police that mother had assaulted him. He reported that mother appeared to be drunk when she arrived home and they argued. He was going to leave when mother grabbed a raw piece of chicken and threw it at him; she then started to hit, bite, scratch, and punch him. Father admitted to grabbing her and pushing her back. He said that mother threw a cordless phone at him and struck him on the head.
Mother, according to the memorandum, claimed that father threw a piece of uncooked meat at her. She reported that she had wanted to make a phone call, but father was holding the cordless phone. She went to grab it; father grabbed her by her ponytail and yanked her head back. He then grabbed her neck and they began to fight. He dropped the phone, and she picked it up and threw it at his head. Mother was taken to the hospital "and treated for muscle spasms to the back of her neck, consistent with her head being jerked back and forth, sensitivity to the right side of her chest, bruising to her right chest wall and scratches on her arm."
The memorandum also stated that Madison had been diagnosed with "Post Traumatic Stress Disorder, Acute."
The court held a contested disposition hearing on August 4, 2011. Diana Graves, the social worker assigned to the case, testified. She testified that Madison told her that she wanted to stay with her foster mother. Madison's therapist reported that Madison sometimes wanted to see her parents and sometimes did not want to see them, but was clear that she definitely did not want to live with them.
Graves acknowledged that father had completed his parenting program, was consistently attending counseling, was in an anger management program, and had tested negative in all of his random drug-testing. She pointed out that father had participated in and completed the same services in his prior case plan regarding Madison. When asked whether substance abuse was an issue for father, Graves responded, "I just know in the May incident of 2011, a police report states that he was drinking alcohol."
Graves also testified about the most recent report of domestic violence involving mother and father on May 27, 2011. Both parents accused the other of throwing things at each other. Graves stated that it concerned her that three days after the first disposition hearing, and after they had already been engaged in services, mother and father became involved in a violent incident. She agreed that it was "starting to look like no services are going to make any difference . . . ." She emphasized that Madison was traumatized and little things scared her. Madison's therapist reported that Madison now had imaginary friends, including a mother who protected her and kept her safe.
Counsel for father introduced three documents into evidence during her examination of Graves. The first document was a letter from Jessica Valle of Rubino Counseling Services, dated July 28, 2011. She wrote that father "has consistently reported that he would like to be able to move forward with his life and his family. Client presents himself as a motivated individual as he attends all his sessions and has made a conscious effort to improve his life situations." The second document was a letter from Joyce Shappee, the facilitator of the Domestic Violence Treatment Program. She noted that father was "consistent in attendance and participates in group discussions." The third document was a certificate of completion of the Parent Education Course provided by Mount Diablo Adult Education.
Father also testified. He admitted that his parental rights regarding his son had been terminated after he had received reunification services. He also received reunification services after Madison was removed from his care. He successfully completed his plan and Madison was returned to him. He claimed that he was now older and that he was learning more than he did in the past. He avowed that he was willing to go through therapy and remain separated from mother.
Father admitted that he had completed programs in the past. He acknowledged that he completed all of the programs last time Madison was removed and, after Madison was removed from his care, he invited mother back into the home as soon as she was released from prison. He also understood at the last disposition hearing, three days before he got into another fight with mother, that the bureau was recommending no reunification services because of the domestic violence in the home. He admitted that he had separated from mother quite a few times in the past, but they had always got back together again.
Mother testified. She said that this time it would be different and that she now realized she had to end the relationship with father.
At the end of the hearing, the court noted that it had been "on this case since the very beginning." The court had the opportunity to observe the parents and it believed that "they are joined at the hip." The court added: "I don't think there is a snowball's chance—anywhere—that they're not going to be back together. I think they care very much about each other. I don't think they are good for each other, but I do think that relationship is about as tight as any relationship I've seen in this court."
The court emphasized that both mother and father had chances and services, and now Madison is traumatized. The court explained: "I could not conceivably grant more services here. It would be so irresponsible to do that. [¶] And you know, I kind of like both of you. It's not a question of that. I don't think you're good for this child. [¶] I find, by clear and convincing evidence, that it is in the best interest not to have either one of you in this child's life." The court elaborated: "You have not dealt with the problems that brought you before the court time and time and time again, and you've been given so much time." The court set a section 366.26 hearing to be held on November 3, 2011.
Father filed a petition for extraordinary writ in this court.
DISCUSSION
Father contends that he should have received reunification services because the record does not contain substantial evidence to support a finding that clear and convincing evidence established that he had not made a reasonable effort to treat the problems leading to the removal of Madison's sibling.
Section 361.5, subdivision (b), sets forth situations in which the juvenile court may deny reunification services. Section 361.5, subdivision (b)(10), allows the court to deny services if it finds, by clear and convincing evidence "[t]hat the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian . . . and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian." Section 361.5, subdivision (b)(11) allows the court to deny services if it finds, by clear and convincing evidence, "[t]hat the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent . . . , and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent."
If the juvenile court determines that section 361.5, subdivision (b)(10) or (11) applies, it "shall not order reunification [services] for" the offending parent unless it "finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c).) " ' "[O]nce it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]" ' [Citation.] The burden is on the parent to change that assumption and show that reunification would serve the best interests of the child." (In re William B. (2008) 163 Cal.App.4th 1220, 1227.)
In deciding whether reunification is in the child's best interests, the court considers the parent's current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity. (In re William B., supra, 163 Cal.App.4th at p. 1228.) A best interests finding requires a likelihood reunification services will succeed—"some 'reasonable basis to conclude' that reunification is possible . . . ." (Id. at pp. 1228-1229.)
We review the juvenile court's order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) When determining whether substantial evidence is present, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, or determine where the preponderance of the evidence lies. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact. (Ibid.)Substantial evidence is "reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged. . . ." (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) The burden is on the petitioner to show the evidence is insufficient to support the trial court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Father does not challenge on appeal the findings that Madison's older sibling was previously removed because of domestic violence, that father failed to reunify with this child, and that his parental rights were terminated as to Madison's older sibling. He also does not contend that he met his burden of showing that reunification services would serve the best interests of Madison. His sole argument is that insufficient evidence supported the court's implicit finding that clear and convincing evidence established that he had not subsequently made a reasonable effort to treat the problems that led to the removal of Madison's sibling. In support of this argument, he cites to the evidence that he participated in counseling, a domestic violence program, and parenting classes since Madison's second removal from the home. He also points out that he participated and completed all of the reunification services required of him when Madison was first removed from the home in 2008.
Our review of the record establishes that sufficient evidence supports the lower court's implicit finding that clear and convincing evidence showed that father had failed to make a reasonable effort to treat the domestic violence problem, which had led to the removal of Madison's sibling. Father has consistently availed himself of the services provided by the bureau, but the evidence shows that he has made no real effort to address or treat the problems he has with domestic abuse. Thus, the court advised the parents: "You have not dealt with the problems that brought you before the court time and time and time again, and you've been given so much time."
Father received and completed reunification services when Madison was first removed from the home in 2007 and returned to father's custody in 2008. He also completed reunification services with regard to his other child who was removed from the home. However, there were five more incidents where the police were called to the home for domestic abuse between the date Madison was returned to the home in 2008 and the date she was removed again in 2011. The parents reported that there had been numerous incidents of domestic violence between them that they did not report to the police. Thus, father clearly had not made a reasonable effort to treat the problem of domestic violence, which led to the removal of Madison's older sibling.
Indeed, after Madison's second removal from the home and just three days after the first disposition hearing, Graves received another report that mother and father were involved in a violent incident. In this particular incident, both mother and father were injured. They both accused the other of throwing things at each other, including a cordless phone and meat. Graves noted that father had a pattern of completing counseling and recommended programs but continued to become involved in violent incidents; she therefore concluded that services would not help father address this problem.
Furthermore, the court had the opportunity to observe the behavior of mother and father in the courtroom and it concluded that they were still very emotionally attached to each other and were not likely to separate. There is no evidence in this record to contradict this conclusion. In 2008, Madison was returned to father's care after her first removal from the home and, as soon as mother was no longer incarcerated, father let mother back into the home. Moreover, the bureau's report for the disposition hearing indicated that father did not intend to separate from mother as the parents reported that they wanted to resolve their relationship issues. They claimed that they were in love with each other and that they had a bond over the years. They stated that they were communicating better and that counseling was helping them with their problems. Father maintained that the services were assisting them to overcome the issues that brought them to the attention of the juvenile court. Thus, it was entirely reasonable for the court to conclude that no amount of reasonable services was going to help father and that he was not taking the necessary steps to treat the problem of fighting with mother.
To support his argument that insufficient evidence supported the court's refusal to offer reunification services, father quotes extensively from In re Albert T. (2006) 144 Cal.App.4th 207. In In re Albert T., the child was removed because of domestic violence. In an earlier proceeding, the court had terminated reunification services for an older sibling after the mother, who was cognitively delayed, surrendered him because he suffered from bipolar disorder and attention deficit hyperactivity disorder and she was unable to care for him. (Id. at p. 210.) The petition with regard to him stated that the mother was unable to provide him with ongoing care and supervision " 'due to the sibling's mental and emotional problems.' " (Id. at p. 219.) The prior dependency case did not establish that domestic violence was the problem that led to the sibling's removal, although domestic violence was a concern. (Ibid.)The appellate court noted that in the present dependency proceeding the mother had completed several court-ordered programs specifically directed to domestic violence, which included counseling and parenting classes. (Id. at p. 220.) The appellate court concluded that the evidence the mother was still becoming involved with violent men did not mean that she had not made a reasonable effort to treat the problem. (Id. at p. 221.) The court held that the fact that the mother had not completely remedied the problem did not mean that she had not made reasonable efforts to treat it and it reversed the lower court's denial of reunification services to the mother. (Ibid.)
Father claims that his situation is almost identical to the one in In re Albert T., supra, 144 Cal.App.4th 207. Like the mother in Albert T., he completed numerous court-ordered programs. He claims that the lower court used the wrong standard and ruled that he had to cure the domestic violence problem rather than merely make a reasonable effort to treat it.
We agree that the statute does not require father to establish that he has been successful in treating the problem that led to the prior dependency proceedings and the loss of his parental rights. We recognize that "the 'reasonable effort to treat' standard found in . . . subdivision (b) . . . is not synonymous with 'cure.' " (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464, superseded by statute on another point.) However, the standard requires an effort that corresponds with the underlying problem in the case. (See Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 99.) "The statute provides a 'parent who has worked toward correcting his or her problems an opportunity to have that fact taken into consideration in subsequent proceedings.' [Citation.] To be reasonable, the parent's efforts must be more than 'lackadaisical or half-hearted.' [Citation.]" (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393.)
In the present case, father attended classes and participated in programs but there was no evidence that he had taken any concrete steps to address the problem of his violent interactions with mother, despite domestic violence being the problem that led to the removal of Madison's older sibling from the home. Both parents testified that they were not going to separate, but the evidence showed that mother and father had a pattern of separating and then getting back together. The court had observed mother and father throughout the proceedings and was aware of their pattern of separating and reconciling. It concluded that they would not permanently separate. This evidence combined with the fact that mother and father were in numerous fights subsequent to the removal of Madison's sibling as well as another fight while they were currently receiving services in this current dependency proceeding, supported the lower court's conclusion that clear and convincing evidence established that father had not made reasonable efforts to address the domestic violence problem. Section 361.5, subdivision (b) provides "a parent who has worked toward correcting his or her problems an opportunity to have that fact taken into consideration in subsequent proceedings; it was not [enacted] to create further delay so as to allow a parent, who up to that point has failed to address his or her problems, another opportunity to do so." (In re Harmony B. (2005) 125 Cal.App.4th 831, 843.) Father participated in his case plan, but took no concrete steps to demonstrate that he was permanently separating from mother or that he was not going to become involved in violent interactions with mother.
Father also argues that the present situation is similar to the one in Cheryl P. v. Superior Court, supra, 139 Cal.App.4th 87. The appellate court in Cheryl P. held that the evidence failed to support the implicit finding that the parents had not made reasonable efforts to treat the problems leading to the removal of the older child and reversed the lower court's order denying the parents reunification services under section 361.5, subdivision (b)(10). (Cheryl P., supra, at p. 90.) In Cheryl P., the reviewing court concluded that the lower court "applied the wrong standard—namely, that six more months of services would be pointless because [the parents] had not eliminated their problems after 18 months of services." (Id. at p. 97.) In Cheryl, the child was removed from his parents' custody because they were homeless and did not properly supervise him. (Id. at p. 98.) By the time of the disposition hearing, the parents were renting an apartment, which was deemed adequate for the family and the parents had participated in their case plans. The professionals agreed that the parents loved their son and were devoted to him. (Ibid.)
Here, the juvenile court properly assessed that while father had gone through the motions of attending counseling and attending parenting class, father had not shown that he was willing to take any concrete steps towards addressing the problem of fighting with mother. As already stressed, even after Madison had been removed and father realized that his parental rights regarding her were being subject to dependency review, he remained with mother and become involved in another violent altercation. Thus, unlike the situation in Cheryl, where the parents demonstrated real effort towards treating the problem of homelessness by the time of the disposition hearing, here, father showed no concrete signs of treating or changing his pattern of behavior.
We thus conclude there is substantial evidence to support the court's denial of reunification services to father under section 361.5, subdivisions (b)(10) and (11).
DISPOSITION
The petition for extraordinary writ is denied on the merits. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).)
Lambden, J. We concur:
Kline, P.J.
Haerle, J.