Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco City & County Super. Ct. Nos. JD05-3014, JD05-3015
Margulies, J.
A.F. (Mother) seeks an extraordinary writ to set aside an order of the San Francisco City and County Superior Court, Juvenile Division, which sustained supplemental petitions filed pursuant to Welfare and Institutions Code section 387, denied further reunification services, and set a hearing under section 366.26 to select permanent plans for her children Carlos F. (born January 2001) and Lorenzo F. (born November 2003). As discussed post, we find no merit in Mother’s claims of error and deny her petition on the merits.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated. References to rules are to the California Rules of Court.
Section 366.26, subdivision (l)(1)(A) bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. (§ 366.26, subd. (l)(4)(B).)
I. Background
On January 14, 2005, Mother was arrested in San Francisco for allegedly maintaining a house where narcotics were sold. The police notified the San Francisco City and County Department of Human Services (Department) they had taken her two young children into protective custody. Four days later, the Department filed petitions pursuant to section 300, subdivisions (b) and (j), to establish Carlos and Lorenzo as dependents of the juvenile court. The court entered orders the following day detaining the minors in out-of-home custody. On March 16, the court established jurisdiction over the minors, sustaining the following amended allegations: The minors had been placed in protective custody due to Mother’s incarceration; Mother had an untreated substance abuse problem that required assessment and treatment; and Mother had placed the minors at risk in that methamphetamine and syringes were found in the house. At the dispositional hearing on June 16, the court continued the minors in foster care and adopted an amended version of the Department’s proposed reunification plan for Mother. The plan called for her to complete drug treatment and drug testing, to undergo counseling and parenting education, to obtain and maintain suitable housing, to engage in regular visitation with the minors, and to sign any necessary consent forms and maintain contact with the Department.
The petitions further alleged that Carlos’s alleged father was a hospitalized quadriplegic and currently unable to provide care, and that the whereabouts of Lorenzo’s alleged father were unknown. Neither alleged father is involved in this review proceeding.
During the period preceding the juvenile court’s first status review hearing, Mother began living at Love-A-Child Missions Homeless Recovery Shelter in Bay Point, Contra Costa County. She also began outpatient drug treatment. While living at the shelter Mother gave birth to a third child, Francisco F., in November 2005, and began caring for him. In early January 2006, the court completed its first status review hearing. Its order continued Carlos and Lorenzo in out-of-home custody and directed the Department to continue Mother’s reunification services.
At the 12-month permanency hearing in late April 2006, the juvenile court adopted the Department recommendation to continue Mother’s services. In June 2006, the Department completed a report for the 18-month permanency review hearing, which stated that Mother would soon complete her outpatient drug treatment program, and recommended that the court return Carlos and Lorenzo to her custody, with continued supervision under a family maintenance plan. This new plan included requirements such as participation in drug treatment aftercare and both individual and family therapy. On July 19, 2006, the court adopted the family maintenance plan and returned the two boys to Mother’s physical custody. It scheduled the first family maintenance review hearing for mid-January 2007.
The Department completed a report for the first family maintenance review hearing in mid-December 2006. This report noted Mother had essentially completed the requirements of her family maintenance plan, and recommended that the juvenile court terminate its jurisdiction over Carlos and Lorenzo and dismiss their dependency proceedings. A few days after the Department completed the report, Mother gave birth to her fourth child, Christian F. Mother’s boyfriend at this time, Emilio F., is the father of both Francisco and Christian, the two younger half-siblings of Carlos and Lorenzo, who were born after the initiation of these proceedings.
On January 8, 2007, the Department filed supplemental petitions pursuant to section 387. As subsequently amended, these petitions alleged that Mother had stabbed Emilio with a screwdriver during an altercation, and that she was subsequently arrested on charges of domestic violence and assault with a deadly weapon. The petitions further alleged that before her arrest she left the recovery shelter where she had resided and left Carlos and Lorenzo with their former foster parent, and that as a result of the domestic violence incident, Carlos and Lorenzo had been removed from her custody by the Department, and their younger half siblings—Francisco and Christian—had been removed by the social services agency of Contra Costa County. On June 12, 2007, the juvenile court sustained these allegations and returned Carlos and Lorenzo to out-of-home custody. The court additionally denied any further reunification services, found that the Department had provided reasonable services, and set the matter for a hearing under section 366.26. This petition followed. (§ 366.26, subd. (l); rule 8.450.)
II. Discussion
A. The Findings Necessary to Sustain the Supplemental Petitions
A supplemental petition must include “a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the . . . protection of the child.” (§ 387, subd. (b).) When such a petition seeks the removal of a minor from the physical custody of a parent, the standard for removal is the same as that which applies to an original petition. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1077 (Kimberly R.).) That is, there must be clear and convincing evidence that there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if he or she is returned to a parent’s custody, and there is no reasonable means other than removal to protect the minor from such danger. (See § 361, subd. (c)(1).)
Here the juvenile court sustained the amended allegations of the supplemental petition and determined the previous disposition had been ineffective in protecting Carlos and Lorenzo. While it made no express finding by clear and convincing evidence pursuant to section 361, subdivision (c)(1), such a finding may properly be implied from the court’s ultimate finding that the previous disposition had been ineffective to protect Carlos and Lorenzo. (See In re Jonique W. (1994) 26 Cal.App.4th 685, 691; rule 5.565(e)(1); see also In re Fred J. (1979) 89 Cal.App.3d 168, 177–178.)
Mother claims there was insufficient evidence to support these findings. She reasons the evidence failed to show either that Carlos or Lorenzo had perceived or were affected by her act of stabbing Emilio, or that there was any reasonable likelihood that she would commit other acts of domestic violence in the future.
Our review is limited to a determination whether substantial evidence supports the challenged findings. In doing so we view evidence in the light most favorable to the juvenile court’s ruling. (Kimberly R., supra, 96 Cal.App.4th at p. 1078.) We do not reweigh the evidence, and indulge all reasonable inferences to uphold the findings. (See In re H.G. (2006) 146 Cal.App.4th 1, 12.)
We note the following evidence taken from the testimony elicited during the hearing on the supplemental petition and from the Department’s report admitted at that hearing. Prior to the stabbing, Mother had continued to reside at the Love-A-Child facility in Bay Point, Contra Costa County, with Carlos, Lorenzo, Francisco, and Christian. This facility provided drug testing, monitored Mother’s progress, and ensured Mother was attending 12-step meetings to address her drug abuse. Mother told the caseworker she desired to leave the facility and live with a friend, Celestina R. Because Celestina and her husband had some criminal history, the caseworker advised Mother to stay at the facility until the juvenile court terminated the dependency proceedings at the family maintenance review hearing scheduled for mid-January 2007. Meanwhile, on December 31, 2006, Mother stabbed Emilio with a screwdriver at his home in Brentwood, Contra Costa County, after learning he had been “cheating on her.” Her children were not there at the time, but were at the home of Celestina and her husband. Fearing she would be arrested and her children removed, Mother “ran away” from the Love-A-Child facility. She then called Debbie E.—who had been the foster parent of Carlos and Lorenzo before their return to Mother’s custody—and asked her to pick them up and care for them. Before giving Carlos and Lorenzo into Debbie’s care, Mother told them she had stabbed Emilio and that Debbie would be caring for them so that Mother could “surrender herself to go to jail.” According to the caseworker, this news had a “huge impact” on Carlos and Lorenzo. Police in Contra Costa County subsequently arrested Mother for the stabbing. She was released after a few days of incarceration, after Emilio declined to press charges, and began living with Celestina and her husband. As a result of the incident, the social services agency of Contra Costa County removed Francisco and Christian from Mother’s custody and initiated dependency proceedings as to them. The agency offered or provided Mother with reunification services in the form of referrals to classes for treatment of domestic violence and anger management. The Contra Costa agency later informed the caseworker in these proceedings of a subsequent incident of domestic violence in which Emilio “made a hole in the wall” during an argument with Mother. The caseworker himself had interviewed Carlos and Lorenzo after Mother’s initial act of domestic violence, and testified that they had reported incidents in which Mother “used to hit them and put hot sauce in their mouth when they say bad words.”
Viewing the foregoing evidence in the light most favorable to the juvenile court’s ruling, we find it sufficient to show that Carlos and Lorenzo were adversely affected by the incident even if they did not perceive it. The court’s determination on this point was not mere speculation, as Mother insists, but was one that might reasonably be inferred from the evidence. We also find the foregoing evidence sufficient to show there was a likelihood that Carlos and Lorenzo would be subjected to further acts of domestic violence if they were returned to Mother’s care. We conclude there is substantial evidence to support both the court’s ultimate finding—that the prior disposition had become ineffective to protect Carlos and Lorenzo—and also the underlying implied finding—that returning the minors to Mother’s custody would place their physical or emotional well-being in substantial danger, and that there was no reasonable means to protect them from such danger short of removal.
B. The Denial of Further Reunification Services
Mother cites In re Michael S. (1987) 188 Cal.App.3d 1448 for the proposition that a juvenile court “must exercise its discretion with respect to what, if any, further reunification services are to be ordered” so that a parent may address the new problems that resulted in the removal of the minor pursuant to a supplemental petition. (Id. at p. 1460.) She contends the juvenile court abused that discretion when it denied further services. As Mother puts it, a modified family maintenance plan, encompassing additional services to address her act of domestic violence, “could very well [have] constituted a reasonable means” of protecting Carlos and Lorenzo without resorting to their removal from her physical custody. In her view the court abused its discretion by failing to implement this less drastic intervention.
We do not agree. In the first place, family maintenance services were not an option. The juvenile court made a finding that the previous disposition—that is, placement with Mother under a family maintenance plan—had been ineffective to protect Carlos and Lorenzo. We have affirmed that portion of the challenged order. The only course open to the court was to remove minors from Mother’s custody.
More importantly, the 18-month permanency review hearing occurred in July 2006, almost one year prior to the hearing on the supplemental petitions. Reunification services are normally limited to a maximum period of 18 months, a period that ordinarily culminates with this 18-month review hearing. (See § 361.5, subd. (a)(3).) A court may order further reunification services, at the time of the 18-month hearing, only under very limited circumstances: when no reunification plan was ever developed for the parent, when the agency failed to provide or offer reasonable services to the parent during the maximum period, or when the best interests of the minor would be served by a continuance of the 18-month review hearing. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167 .) None of these exceptions applied at the time of the hearing on the supplemental petitions. When the juvenile court sustained the supplemental petitions in June 2007, the proceedings did not return to “ ‘ “square one” ’ ” with regard to Mother’s reunification efforts. (Id. at p. 166.) There was accordingly no abuse of discretion in the court’s denial of further reunification services at that stage.
C. Reasonable Services
As we have noted, the juvenile court’s order sustaining the supplemental petitions included findings that the Department had provided reasonable services. Mother suggests these findings were not supported by the evidence, essentially because the caseworker testified he had not offered Mother any funding or referrals for domestic violence programs, following the incident that led to the filing of the supplemental petitions.
Mother suggests the findings were also erroneous because the court did not make them by the “clear and convincing” standard of proof. That standard of proof, however, expressly applies only at the stage of the 12-month permanency hearing. (§ 366.21, subd. (g); cf. §§ 366.21, subd. (e), 366.22, subd. (a).)
By the time of the 18-month permanency review hearing, a finding regarding the reasonableness of services is still required. (§ 366.22, subd. (a).) But at that late stage in a dependency proceeding, it is no longer a precondition that this finding be a positive one. The court may proceed to a hearing pursuant to section 366.26 even if it finds that services were not reasonable. (See Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1511–1512.) In this case, the late stage of the 18-month review hearing had passed long before the time the court made these findings in connection with its ruling on the supplemental petitions.
In addition, the caseworker testified that Mother was receiving and participating in domestic violence services provided by the social services agency for Contra Costa County, as a part of her efforts to reunify with Francisco and Christian. Consistent with such efforts, the Department was recommending a permanent plan of legal guardianship, so that Mother could seek to have Carlos and Lorenzo returned to her care in the event she successfully completed her reunification efforts with Francisco and Christian.
For these reasons, even if we assume the findings were erroneous, we conclude the error was necessarily harmless.
D. The Timeliness of the Hearing on the Supplemental Petitions
On the filing of a supplemental petition, the clerk of the juvenile court is required to set the matter for hearing within 30 days. (§ 387, subd. (d).) Here, as we have noted, the Department filed the supplemental petitions on January 8, 2007, but the court did not conclude its hearing on the petitions until June 12, 2007. On the other hand, the court held a timely detention hearing on these petitions, on January 9, and at that time entered a minute order setting the matter for further hearing on January 17—also a timely date. Afterwards it continued the matter twice, to March 12.
On March 12, Mother’s counsel requested, for the first time, that the matter be heard on a “no time waiver” basis, that is, within 30 days of that date. The court accordingly set the hearing for the “first available date,” on April 23. Mother’s counsel filed a “letter brief” the following day, in which he reiterated his argument and objected to the timeliness of the scheduled date of April 23. It does not appear, however, that Mother’s counsel placed the matter on calendar for a hearing on his brief. On April 17, the parties appeared in court after they learned the April 23 hearing had been “bumped” from the court’s calendar. Mother’s trial counsel again objected to any further delay. At that point the court rescheduled the matter on the first date agreeable to counsel for all parties—June 12.
Mother now contends the juvenile court violated her constitutional due process rights by failing to hear the matter within 30 days of March 12, the date he first expressed a “no time waiver.”
We see no merit in this claim. Mother relies on Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238 (Jeff M.). That decision involved a jurisdictional hearing on a section 300 petition—not a hearing on a supplemental petition under section 387. Further, its ruling relied in part on a provision of former rule 1447(d) that no longer exists—one that required dismissal of a section 300 petition when the court failed to hold a jurisdictional hearing within 30 days of the filing of the petition, unless the court granted a continuance or the parties waived the time requirement. (Jeff M., at p. 1243.). As such, the decision is neither controlling nor persuasive authority for the proposition that a juvenile court must hear and determine a section 387 petition within 30 days of the date that a party first insists that there be no further time waiver, even if that party, as here, effectively waived a timely hearing for three months following the petition filing date.
We note also that the stringent statutory requirements that limit continuances of dependency hearings are designed chiefly to protect the best interests of the minor who is the subject of the dependency proceeding. (See § 352, subd. (a).) Mother has made no affirmative showing that her own interests as a parent were prejudiced by the delay of some two months—that is, the period that began 30 days after March 12, 2007, when her counsel first declared Mother’s unwillingness to waive any further delay, and that ended with the hearing on June 12. Mother was not deprived of her opportunity to appear and be heard, and this delay had no apparent adverse effect on her opposition to the supplemental petitions. To the extent this delay may have implicated Mother’s constitutional due process rights, we conclude that any error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18 (Chapman).)
E. The Proposed Testimony of Mother’s Roommate
Near the conclusion of the hearing on June 12, 2007, Mother’s counsel called Mother’s friend, Celestina, to testify on Mother’s behalf. After counsel for the Department requested an offer of proof, Mother’s counsel stated Celestina would testify concerning the house where she and Mother lived, Mother’s ability to provide for Carlos and Lorenzo, Mother’s sobriety during the time she had known Mother, and her familiarity with Mother’s non-abusiveness and her skill as a parent. He also stated Celestina would testify as to her own successful completion of a drug abuse treatment program and her efforts to expunge her criminal convictions, as well as whether Mother continued to have contact with Emilio. The juvenile court noted that—as to the suitability of the house—the witness’s testimony appeared to be unnecessary because the caseworker had already testified that it seemed “adequate or fine.” As for Mother’s contacts with Emilio, the offer of proof appeared to be similarly cumulative, as Mother had already testified on that issue. When Mother’s counsel commented that Celestina could still testify as to her observations of the bond between Mother and the minors, the court noted that such testimony seemed unnecessary in that the Department had no issue with “the loving bond between [Mother] and the children.” Mother’s counsel then replied, “Your honor, so maybe we don’t need her.”
Mother now argues that the court erred in denying her the opportunity to call Celestina as a witness, and that such error was prejudicial to her, because no other available witness could provide Celestina’s proffered testimony, which addressed the “central issues” raised by the supplemental petitions.
The evidence elicited prior to Mother’s attempt to call Celestina included that of the caseworker, who testified that Mother had reported to him, and he had accepted as “probably true,” the fact that Celestina had graduated from the same drug treatment program as Mother. He agreed, too, that Celestina had provided him with an exit report from the Love-A-Child facility confirming her successful completion of their program. The caseworker stated he had visited the home Mother shared with Celestina and her husband, and he found the physical condition of the home to be an appropriate place for Carlos and Lorenzo to live. He also stated that the criminal history of Celestina and her husband did not necessarily preclude the Department’s approval of their home as a suitable place for Carlos and Lorenzo to live. The caseworker further acknowledged that he had received a report stating Mother had exhibited excellent parenting skills during supervised therapeutic visitation with Carlos and Lorenzo. He also acknowledged a report from the Love-A-Child facility, to the effect that facility staff had never observed Mother to exhibit physically violent behavior toward the children or anyone else.
We note the court later denied Mother’s request to admit the reports themselves into evidence, commenting that, even if the reports were deemed true, they did not controvert the factual allegations of the supplemental petitions.
Mother, for her part, testified that, if Carlos and Lorenzo were returned to her custody, she could provide appropriate care for them in the home where she currently lived with Celestina and her husband. She testified further to the effect that she could protect the minors from further incidents of domestic violence if they were returned to her, given her compliance with her plan for reunifying with Francisco and Christian, and given her desire to focus on her children and to comply with a stay-away order prohibiting further contact with Emilio. Finally, Mother stated that she had so far been successful in complying with her case plan for reunification with Francisco and Christian, and currently expected that the Contra Costa juvenile court would return these younger children to her custody in August 2007.
We see no error in the juvenile court’s decision to curtail further testimony and conclude the hearing. (See § 350, subd. (a)(1).) The offer of proof indicated that Celestina’s proposed testimony was merely cumulative of the foregoing evidence, and would add nothing of significance. The authorities cited by Mother in support of her argument are distinguishable. They all involve much graver inroads into due process protections, such as a ruling that deprives a party of any opportunity to call a witness to testify as to matters for which there truly was no available substitute. (See In re Amy M. (1991) 232 Cal.App.3d 849, 864–865.) We note as well that Mother effectively waived any objection to the court’s ruling when her counsel agreed with the court’s assessment of Celestina’s proposed testimony and stated, “[M]aybe we don’t need her.” Assuming there was a due process violation, we again conclude that any error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. 18.)
F. Evidentiary Rulings
Mother finally challenges a number of evidentiary rulings, arguing that, taken together, they effectively violated her due process rights by preventing her from “fully present[ing] her side of the case.”
We review evidentiary rulings for abuse of discretion. (See People v. Barnett (1998) 17 Cal.4th 1044, 1118.) It is unnecessary to describe in detail the particular rulings to which Mother objects. For the most part they were either rulings in which the juvenile court sustained—usually on relevancy grounds—objections to questions posed by Mother’s counsel, or rulings in which the court denied motions by Mother’s counsel to strike certain responses. We have reviewed them all and find none to be an abuse of discretion. As such they do not, cumulatively, amount to due process violation, even when added to the previously discussed claims of error.
III. Disposition
The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Rule 8.264(b)(3).)
We concur: Marchiano, P.J., Stein, J.