Opinion
B232753
11-30-2011
In re T. K., et al., Persons Coming Under the Juvenile Court Law. BARBARA L., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Barbara Langer, in pro. per., for Petitioner. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
(Los Angeles County Super. Ct. No. CK51152)
PETITION FOR EXTRAORDINARY WRIT from an order of the Superior Court of Los Angeles County, Juvenile Division, Stanley Genser, Commissioner Presiding. Denied.
Barbara Langer, in pro. per., for Petitioner.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, for Real Party in Interest.
Barbara Langer (Petitioner) filed a petition for extraordinary writ, in propria persona, challenging the juvenile court's order of April 26, 2011 terminating reunification services with her children, T. K. (T.) and S.L. (S.). Prior to the current case, both children were detained by the Los Angeles County Department of Children and Family Services (DCFS) after T. suffered skull fractures consistent with inflicted traumatic injuries. Approximately three years after the children were returned to Petitioner, DCFS became aware of additional problems and initiated the current proceedings. Petitioner has received 29 months of reunification services since the current proceedings were begun. After concluding that Petitioner has made insufficient progress towards providing these two children with a safe and nurturing home, the juvenile court terminated reunification services and set a Welfare and Institutions Code section 366.26 hearing. As there is substantial evidence in the record to support the juvenile court's order, we will deny the instant petition.
T. was born in December 2002 and is now approximately age nine.
S. was born in January 2004 and is now approximately age seven.
A hearing under Welfare and Institutions Code section 366.26 is one at which, with respect to children adjudged dependents of the court, parental rights are terminated and a long-term placement plan is selected and implemented involving adoption or guardianship. (In re Jason E. (1997) 53 Cal.App.4th 1540.)
Unless otherwise noted, all references to code sections herein are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background is drawn from the record, which includes a three-volume Clerk's Transcript, a one-volume augmentation to the Clerk's Transcript, and a one-volume Reporter's Transcript.
Prior to the instant case, T. and S. were dependents of the court from March 12, 2003 through November 15, 2005 due to T.'s suffering bilateral skull fractures which were inconsistent with Petitioner's explanation of the injuries and were found to be consistent with intentional trauma. The children were returned to Petitioner's home in early 2005.
After receiving a report of general neglect with respect to T. and S. on November 5, 2008, DCFS initiated the current proceedings. A DCFS social worker responded to the report and found the residence smelled of marijuana and was so cluttered as to make her entrance impossible. The social worker separately interviewed T. and S., who informed the social worker that they slept on chairs, among other things, which led DCFS to file a section 300 petition on behalf of T. and S. on November 12, 2008. The section 300 petition, as amended, contains the following relevant allegations: "On numerous prior occasions, the children T. K., S.L. and N.G.'s mother, Barbara Langer's male companion and the father of the child N., Kevin Gamble inappropriately physically disciplined the child T. by striking the child's hands with a shoe horn resulting in the child sustaining red marks. On prior occasions, the Gamble father locked the child in a bathroom with no lights as a form of punishment. Such inappropriate physical discipline was excessive and caused the child unreasonable pain and suffering. The children's mother, Barbara Langer, failed to take action to protect the child when she knew that the child was being physically abused by the Gamble father. Such inappropriate physical discipline of the child by the Gamble father and the failure to protect the child by the mother endangers the child's physical and emotional health, safety and well-being, creates a detrimental home environment and places the child T. and the child's siblings, S. and N. at risk of physical and emotional harm, damage, danger, physical abuse and failure to protect."
Petitioner has four children. The oldest is F.L. (F.), who pursuant to previous involvement by DCFS has lived with his father since he was seven years old. F. is not a party to the instant petition. The two children currently at issue, T. and S., have a different father, Theoplis Khair (Khair). Although Khair participated in parental visits and counseling, DCFS recommended that his reunification services be terminated and the children not be placed in his home due to his being arrested for assault with a deadly weapon (he tried to run over a neighbor with his car) on September 11, 2010. Khair initially filed a notice of intent to file a writ petition; however, Khair has not filed a petition and is not a party to the instant petition. Petitioner's fourth child is N.G. (N.). Reunification services with respect to N.'s father, Kevin Gamble (Gamble), were previously terminated and Gamble has not sought review of the order. N. has been placed in Petitioner's home and is not a party to the instant petition. Neither F. nor N. will be discussed further unless such discussion is relevant to the instant case.
A subsequent petition was filed pursuant to section 342 on November 5, 2010. The section 342 petition contained allegations of physical abuse by Petitioner against N. On November 12, 2010 the section 342 petition was amended to exclude such allegations, which were ultimately dismissed. The section 342 petition also included allegations relating to Khair's arrest on September 11, 2010. As a result, the contents of the section 342 petition is not relevant to the instant case.
The two children were detained and taken to a foster home the day after the social worker's visit. At the detention hearing on November 12, 2008, the juvenile court found that DCFS made a prima facie case to detain the children, ordered DCFS to provide family reunification services, ordered monitored parental visits and set the matter for a pretrial resolution conference. The children were subsequently released to their paternal aunt, Maxine L. (Maxine).
In March of 2009, the juvenile court sustained the section 300 petition, as amended; declared the children to be dependents of the court, removing custody from Petitioner; ordered family reunification services; ordered Petitioner to participate in parenting classes and counseling and ordered monitored parental visitation, among other things.
After 29 months of family reunification services, Petitioner's relationship with T. and S. remains strained. When the children were detained, Petitioner stated that DCFS could detain them and that the girls had been in foster care before and were used to it. When the children came to say goodbye to Petitioner, she stated, "Say goodbye. You'll never see me again." During visitation with the children, Petitioner does not talk very often with them and generally pays them little attention. The children refer to Petitioner by her first name rather than calling her "mother" or "mom". The children do not wish to return to Petitioner. During monitored visits with the children, the social worker noted that Petitioner failed to engage with T. and S. and that Petitioner stated as her rationale that, "The girls are big and they don't need [me]." When the children grew tired of traveling the long distance to visit Petitioner and requested that Petitioner visit them at Maxine's house, Petitioner refused. Petitioner states that she would no longer visit the children if they are ultimately not returned to her custody.
Despite attending numerous domestic violence classes, anger management classes, substance abuse classes, "healthy relationship" classes and parenting classes, Petitioner continues to deny any abuse occurred and fails to recognize her role in the detention of her two children, T. and S.. For example, Petitioner continues to deny that Gamble hit either of the children with a shoe horn but admits that he placed them in the bathroom as punishment, turning off the light if the bad behavior continued. However, Petitioner states there is no lock on the bathroom door. Petitioner's therapist, Anneka Busse (Busse) reports that Petitioner "demonstrates a lack of insight when she continues to state that she would like more direction from the court regarding what she needs to work on in therapy, as she does not fully understand what changes she needs to be making in order to provide a safe and healthy environment for her children." Another of Petitioner's therapists, Art Wharton (Wharton), reports that Petitioner "does not have a realistic sense of what is and perceived as appropriate parenting [sic]," describing Petitioner as having poor insight because she fails to take responsibility for past events. Finally, regarding conjoint therapy between Petitioner and the children, the children's therapist expressed concerns over Petitioner's ability to control her anger.
On April 26, 2011, DCFS and children's counsel asked the juvenile court to terminate reunification services with Petitioner. At the contested section 366.22 hearing, the court found that Petitioner "can marginally meet the needs of the child N., releasing two more children in the situation that she's in now, . . . the stressors would be unbelievable. [Petitioner is not] capable of safely meeting the needs of the children." As a result, the court found by a preponderance of the evidence that "[r]eturn of the [children] to the physical custody of [Petitioner] would create a substantial risk of detriment to [their] physical/emotional well-being . . . . " The court terminated reunification services "for lack of compliance and demonstration of the ability to safely meet the needs of the children and provide appropriate housing" and scheduled a section 366.26 hearing to determine permanent placement for T. and S..
On that same date, Petitioner filed a notice of intent to file a petition for extraordinary writ, which she ultimately filed on June 13, 2011. We issued an order to show cause on June 21, 2011.
CONTENTIONS
Petitioner contends that the case should be remanded to the juvenile court, that an order should be entered continuing the provision of reunification services, and that custody of T. and S. should be granted to her. In support of her contentions, Petitioner states, "All ordered correctional classes have been completed. Counseling is attended by me every week." Petitioner also alleges that both T. and S. are being abused by Maxine. Although Petitioner's legal arguments are not entirely clear, we are required to liberally construe the petition. (Cal. Rules of Court, rule 8.452(a)(1).) Based on such construction, it is our understanding that Petitioner is challenging the juvenile court's order terminating reunification services on the basis that the findings are not supported by substantial evidence.
There is no evidence in the record that supports Petitioner's allegation that Maxine is abusing the children. Although the original section 300 petition filed on November 12, 2008 alleged that Maxine "physically abused the children T. and S. by striking the children about the children's bodies with a belt," such allegations were stricken and ultimately dismissed. In any event, allegations that Maxine abuses the children does not support Petitioner's challenge to the juvenile court's order terminating reunification services and setting a section 366.26 hearing.
We note that Petitioner did not check the box on page 3 of her petition to request that we direct the juvenile court to vacate its order setting the section 366.26 hearing. Therefore, we do not address whether reasonable reunification services were provided as the adequacy of such services has not been raised by Petitioner and is thus not in dispute.
DISCUSSION
1. Standard of Review
Ordinarily, an order following a review hearing is appealable. However, if such an order is made in conjunction with setting a permanency planning hearing to consider an appropriate permanent plan for a child adjudicated a dependent of the court under section 366.26, pursuant to subdivision (l), the order is nonappealable. Notwithstanding the foregoing, under California Rules of Court, rules 8.450 and 8.452, the order may be reviewed pursuant to the filing of a timely petition for extraordinary writ. (Welf. & Inst. Code, § 366.26, subd. (l); In re Harmony B. (2005) 125 Cal.App.4th 831, 838.)
" 'Evidence sufficient to support the court's finding "must be 'reasonable in nature, credible, and of solid value; it must actually be "substantial" proof of the essentials which the law requires in a particular case.' " [Citation.] . . . In the presence of substantial evidence, appellate justices are without the power to reweigh conflicting evidence and alter a dependency court determination. [Citations.]" (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
2. Substantial Evidence Supports the Juvenile Court's Order Terminating Reunification Services.
Section 366.22, subdivision (a), provides in relevant part: "The 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. . . . The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental."
In the challenged April 26, 2011 order, the juvenile court refers to section "366.2(e)." As there is no section 366.2, we assume that this is a typographical error and that the juvenile court intended to refer to section 366.22, subdivision (a).
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Petitioner argues that the juvenile court ignored the progress she has made in that she completed all court-ordered "correctional classes" and attended weekly counseling sessions. While it is true that Petitioner has attended individual and group counseling sessions on a fairly consistent basis and completed numerous parenting, domestic violence and anger management classes, it is clear from the record that such participation has not resulted in Petitioner's making "substantive progress" as required under section 366.22, subdivision (a). Despite receiving 29 months of reunification services, Petitioner continues to exhibit a lack of understanding of and a failure in taking responsibility for the actions that led to T. and S.'s detention as determined by Petitioner's and the children's therapists. (Constance K. v. Superior Court, supra, 61 Cal.App.4th at pp. 704-705 [stating, "a trial judge can consider, among other things: . . . properly supported psychological evaluations which indicate return to a parent would be detrimental to a minor [citations] . . . . "].) Further, Petitioner has not demonstrated that she has bonded with T. and S.. (Constance K. v. Superior Court, supra, at p. 705 [stating, "a trial judge can consider, among other things: . . . the manner in which the parent has conducted himself or herself in relation to a minor in the past. [Citations] . . . "].) Under section 366.22, subdivision (a), Petitioner's failure to make substantive progress is prima facie evidence that returning T. and S. to Petitioner would be to the children's detriment.
Moreover, "there is a strong public policy in this state that ' "judicial proceedings to declare a child free from parental custody and control shall be fully determined as expeditiously as possible." ' [Citation.] To this end the Legislature has set an outer limit of 18 months from the original order of detention for the court to determine whether the child is to be returned to the parents or permanently placed elsewhere." (In re Dino E. (1992) 6 Cal.App.4th 1768, 1776.) Extending this 18-month reunification period thwarts the legislative intent of providing a stable and secure home for children adjudged dependents of the court as promptly as possible without evidence of extenuating circumstances justifying such an extension. (See, e.g., In re Dino E., supra, at p. 1776 [finding that the"[f]ailure to formulate an adequate reunification plan which realistically can be implemented within the 18 months defeats this purpose and has been held to be reversible error"]; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1214 [holding that a court has discretion to extend the 18-month period if it finds that reasonable reunification services were not provided]; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787 [holding that the court has discretion to extend the reunification period where a parent has made efforts to comply but is hospitalized due to mental illness for most of such period].)
Here, Petitioner has already been provided with the statutory 18 months plus an additional 11 months for a total of 29 months of reunification services without making substantive progress. Petitioner continues to deny that T. and S. were abused, does not have a realistic sense of appropriate parenting, has difficulty controlling her anger and has poor insight. Additionally, Petitioner makes no arguments and provides no evidence supporting her request to further extend the period during which reunification services are provided. Accordingly, any additional extension of services would be contrary to the Legislature's intent, as described above.
"Taken together, all of the foregoing constituted substantial evidence which supported the [juvenile] court's orders pursuant to section 366.22." (Constance K. v. Superior Court, supra, 61 Cal.App.4th at p. 709.)
DISPOSITION
The petition for extraordinary relief is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J. WE CONCUR:
KITCHING, J.
ALDRICH, J.