Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy B. Williamsen, Commissioner. Super. Ct. Nos. 509228, 509229
Rebecca A. Roberson, for Petitioner.
No appearance for Respondent.
John P. Doering, County Counsel and Linda S. Macy, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Wiseman, A.P.J., Levy, J., and Gomes, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court issued at a contested 18-month review hearing at which the juvenile court terminated her reunification services and set a Welfare and Institutions Code section 366.26 hearing as to her sons M. and E. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner and Israel, a married couple, are the parents of M. and E. born in July 2004 and June 2005 respectively. E. was born with spina bifida and hydrocephalus. He has no feeling below the waist and requires constant care. Petitioner and Israel have a long history of domestic violence and endangering the children during their conflicts. While pregnant with E., petitioner held a knife to M.’s throat and asked Israel how he would like it if she hurt M. Petitioner claimed she had no intention of hurting M. but wanted to make a point with her husband. In May 2005, Israel got into an argument with petitioner while driving the car and threatened to crash the car and kill the whole family. Over time, separations, restraining orders, and reconciliations became a routine aspect of petitioner’s relationship with Israel.
The instant dependency proceedings were initiated after E. sustained a series of unexplained injuries. The first occurred in December 2005 when a physician, while reviewing x-rays of then five-month-old E. for pneumonia, discovered he had two fractured right ribs. Petitioner reported that E.’s car seat had not been properly buckled into the car and rolled over with and on him. The treating physician concluded petitioner’s explanation could not account for E.’s injury which the doctor suspected was the result of child abuse. Consequently, the doctor referred the case to Stanislaus County Community Services Agency (agency). No action was taken at that time. However, in March 2006, the agency received referrals that E. had a bite mark on his right forearm, bleeding toes, and fingerprint-shaped bruises on both sides of his mouth. Petitioner accused Israel of biting E., which Israel denied. Israel claimed he accidentally cut E.’s toenails too short, causing his toes to bleed. In response, the agency opened a Family in Partnership case. When, in May 2006, E. was diagnosed with a new fractured rib, the agency removed the children and filed a dependency petition seeking their removal. The children were placed in foster care.
The juvenile court ordered the children detained and sustained the petition. In July 2006, the court ordered a plan of reunification which required petitioner and Israel to participate in counseling to address their volatile behavior and complete a domestic violence program, parenting class, and substance abuse assessment and follow any recommended treatment. Both parents were advised early on and repeatedly by the reunification social worker that the court would not likely return the children to their custody without an explanation of E.’s injuries.
Over the next 18 months, petitioner and Israel were provided services and successfully completed them. However, neither of them could provide an explanation for E.’s injuries despite the opportunity to do so. In addition, petitioner and Israel’s violent relationship continued even though they were divorced in January 2007. During a visit with the children in May 2007, petitioner told the social worker that Israel slapped her in the face in front of the children. Petitioner also stated that Israel forced her to stay with him over a weekend and punched her in the stomach when she tried to leave. Israel claimed petitioner called him and asked him to call her back. He played two voice messages for the social worker in which petitioner told him to stop bothering her but demanded that he answer her calls.
In July 2007, petitioner completed a court-ordered psychological evaluation. The psychologist concluded petitioner exhibits traits of various personality disorders, which have implications for her ability to parent. Of particular concern to the psychologist was petitioner’s lack of concern about E.’s injuries and her denial that she or Israel caused them. Without “overt concern about her child’s past hurts,” the psychologist reported, “it is unclear whether she would be able to act on her child’s behalf in order to prevent any future harm.” Of further concern was the possibility that petitioner and Israel had maintained a romantic relationship. The psychologist recommended intensive therapy for petitioner in her native Spanish language.
In September 2007, petitioner was leaving her home with two friends to attend a function when Israel approached petitioner and told her he would take her. When she declined, Israel dragged her out of a vehicle, picked her up and shoved her into his car. Israel let petitioner off at a bus stop where she boarded a bus and rode around for approximately two and a half hours. She said she did not contact the police because she was afraid Israel was following her. Meanwhile, the police had been contacted and arrested Israel. He was jailed and deported to Mexico in October 2007 only to return the next month. In the beginning of November 2007, he attempted to visit the child at the agency’s offices and ran into petitioner. A week later, petitioner began counseling to assess her ability to parent the children safely and protect them from violence.
In its 18-month status report filed in late November 2007, the agency recommended the juvenile court terminate Israel’s reunification services but continue services for petitioner for 60 days to allow her more time in therapy. Israel challenged the agency’s recommendation and a contested hearing was conducted in February 2008. At the hearing, petitioner and Israel’s social worker testified she made it clear to petitioner and Israel that they would not likely reunify with their children if the cause of E.’s injuries was not disclosed. At the conclusion of the hearing, the court terminated Israel’s reunification services and set an 18-month review for petitioner in April 2008. Israel appealed from the juvenile court’s order terminating his services and the case, F054964, is currently pending before this court.
In late February 2008, E.’s teacher informed the social worker that she saw petitioner and Israel conversing in front of the school. Israel admitted being at the school but told the social worker he left when he saw petitioner and did not speak to her. Petitioner denied knowing Israel was at the school or seeing him there. However, her attorney told the social worker that she admitted seeing Israel and talking to him that day at school.
In March and April 2008, the social worker spoke to petitioner’s therapist who stated that petitioner had not admitted to knowing how E. was injured and that petitioner had no further information to offer on the subject. He also stated he would not be surprised if petitioner were still in a relationship with Israel but had no evidence of that. In the report filed for the April 2008 hearing as to petitioner, the social worker recommended the juvenile court terminate petitioner’s reunification services.
A contested 18-month review hearing was conducted in May 2008. Petitioner’s attorney offered evidence that petitioner obtained a permanent restraining order against Israel in May, approximately two weeks before the hearing. Petitioner testified that she was afraid of Israel and was no longer in a relationship with him. She denied hurting E. and thought Israel might have hurt him but did not witness it. She thought Israel might still pose a danger to the children and testified she planned to sell her house and move. Petitioner denied speaking to Israel at the school and stated she only saw him from a distance. She said she lied when she told the social worker that she had not seen Israel because she was afraid that if she told the truth, her children would not be returned to her. Petitioner could not explain why she waited so long to get a restraining order after Israel returned to this country, except to say that she made a decision to protect herself and the children after she saw him at the school. However, she could not remember which month she saw Israel at the school or which month she filed the temporary restraining order (TRO). Her attorney informed the court the TRO was filed in mid-April 2008.
Petitioner’s 20-year-old daughter testified that she worked for the sheriff’s department and was living with petitioner. She and petitioner had devised a plan to ensure the children’s safety if they were returned to petitioner’s custody. The plan called for either petitioner or her daughter to care for the children at all times and to call the police if Israel were spotted near their home. She also testified she had never observed petitioner hurting M. and E.
At the conclusion of the hearing, the court found that return of the children to petitioner’s custody would place them at a substantial risk of detriment. Consequently, the court terminated petitioner’s reunification services and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Petitioner argues the juvenile court should have returned M. and E. to her custody, or alternatively continued reunification services because she complied with her case plan. Instead, the juvenile court erroneously refused to do either because she could not explain the cause of E.’s injuries.
The decision for the juvenile court at the 18-month review hearing is whether the child can be safely returned to parental custody without creating a substantial risk of detriment to the child’s safety. (§ 366.22, subd. (a).) The parent’s failure to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return would be detrimental. (Ibid.) We will uphold the juvenile court’s finding of detriment if it is supported by substantial evidence. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
In this case, petitioner’s compliance with court-ordered services is undisputed. However, the significance of that is merely the social worker cannot rely on petitioner’s performance as prima facie evidence of detriment. Instead, the risk of detriment must be shown by other evidence. Petitioner argues the only other evidence of detriment is the fact that she could not explain how E. was injured, which, she claims, is an impermissible basis upon which to find detriment according to the court’s holding in Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 (Blanca P.).
We find no support for petitioner’s argument in Blanca P. In that case, the injury to the child was alleged sexual molestation for which there was no solid evidence. (Blanca P., supra, . 45 Cal.App.4th at pp. 1750-1751.) In this case, evidence that E. was physically abused while in the care of petitioner and/or Israel was uncontroverted. Further, unlike Blanca P., there is evidence aside from the physical abuse that M. and E. would not be safe in petitioner’s custody. (Id. at p. 1752.) She minimized the severity of E.’s injuries, lied about the nature of her contacts with Israel, and inexplicably delayed in securing an order to restrain him. Further, despite knowing of Israel’s violent nature and admitting her own fear of him, petitioner was not certain she needed to protect the children from him. Moreover, her history of maintaining a relationship with Israel portends the children’s exposure to future abuse. Given the facts of this case, we concur with the juvenile court that M. and E. would be placed at a substantial risk of harm if returned to petitioner’s custody.
In light of its finding of detriment, the juvenile court properly terminated petitioner’s reunification services and proceeded to permanency planning. (§ 366.22, subd. (a).) We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.