Opinion
D060664
01-11-2012
BENNIE W. et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Diego County Super. Ct. No. EJ2467A-C)
PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Ronald J. Frazier, Judge. Petitions denied; request for stay denied.
Bennie W. and Stacy W. (together, the parents) seek writ review of juvenile court orders terminating reunification services regarding their children, Nicole W., Christopher W. and Ryan W. (together, the children), and setting a hearing under Welfare and Institutions Code section 366.26. Bennie contends substantial evidence does not support the juvenile court's finding that returning the children to his custody would present a substantial risk of detriment to their well-being. Stacy joins the arguments Bennie raises. We deny the petitions.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On March 1, 2010, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of 14-year-old Nicole, six-year-old Christopher, and two-year-old Ryan under section 300, subdivision (b), alleging Stacy had a mental illness; had been hospitalized in June 2009 after threatening to kill herself and the children; the parents have a history of domestic violence and five substantiated referrals with the Agency primarily involving child neglect; and the family had received services during a previous juvenile dependency proceeding. The petitions also alleged the parents had not followed through with voluntary services; Stacy was not taking her psychotropic medications or participating in treatment; Stacy and the children had poor hygiene; Stacy was neglecting the children; the home was cluttered and had a foul odor; and Nicole and Christopher were prediabetic and not getting proper nutrition. The court ordered the children detained.
The family had had voluntary services during 2002 and 2003. Nicole and Christopher had been dependent children of the juvenile court in 2004 and 2005 because of parental neglect and in 2005, they reunified with the parents. The parents had agreed to participate in a voluntary services plan in July 2009. Under its terms, Stacy was to engage in mental health treatment and other services, Bennie in therapy, a support group and childcare services, and Nicole in therapy. The parents told the social workers they were making progress, but they did not comply with the services they were offered. The children were often late to school and were behind in their immunizations, Stacy struggled with her mental illness and her own and the children's hygiene, and, although the children's doctor had told Bennie that Nicole and Christopher were prediabetic, Stacy continued to feed them fast food almost every day.
Bennie worked long hours as a security guard and said he could not stay home to ensure that Stacy was caring for the home and the children. He said he thought she needed to be hospitalized.
At the jurisdictional and dispositional hearings, the court found the allegations of the petitions to be true, removed the children from parental custody and ordered reunification services.
Bennie began working toward having the children returned to his care. He secured an apartment separate from Stacy, was working on his services plan and was granted unsupervised visits. Stacy became homeless, but refused to go to a shelter and was living in her car. Subsequently, Bennie lost his housing and his car. He was working 60 to 80 hours each week as a security guard. He and Stacy began living together in her car and said they wanted to get an apartment together.
At the six-month review hearing the court continued services and ordered the parents could have separate unsupervised visits with Nicole, and Bennie unsupervised visits with Christopher and Ryan on the condition Stacy not be present during the visits.
For the 12-month hearing, the social worker reported Bennie was continuing to work long hours, and Bennie and Stacy had lived in Stacy's car for several months until they obtained an apartment. Stacy was being treated for bipolar disorder and taking medication for anxiety and depression. At the 12-month hearing the court continued services.
For the 18-month hearing, the social worker reported Bennie had been having unsupervised visits with all of the children; Stacy had had unsupervised visits with Nicole and supervised visits with Christopher and Ryan. Nicole had been living with the maternal grandmother and said she wanted to stay with her unless the parents were stable enough for all three children to return to their care. Christopher was struggling emotionally and was angry that the parents' behavior had caused his former foster parents to request that he be moved to a new foster home. The social worker expressed concern about Bennie's decision to reunite with Stacy. Stacy was not capable of providing
adequate care, and Bennie's long work hours would mean he could not supervise the children and ensure they were not being neglected.
The psychologist who evaluated Stacy said if treatment were to focus only on her depressive symptoms, dependent personality traits, and parental skill-building, symptoms could be significantly reduced in six months, but because of Stacy's cognitive inflexibility, treatment could take a year or more.
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At the 18-month hearing, after considering the documentary evidence and argument by counsel, the court found reasonable reunification services had been offered and provided, and Bennie had made substantive progress with the provisions of his case plan, but Stacy had not made progress. It held there was a substantial risk of detriment in returning the children to the parents. The court expressed concern that Bennie's relationship with Stacy outweighed his ability to provide adequate care for the children and noted it would welcome the filing of a section 388 petition if Bennie could show he was able to make adequate child care arrangements and consistently care for the children. It terminated reunification services and set a section 366.26 hearing.
Bennie and Stacy petition for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
Bennie contends substantial evidence does not support the juvenile court's finding that returning the children to his custody would present a substantial risk of detriment to their well-being. Stacy joins his arguments.
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) Determinations of the credibility of witnesses and resolutions of conflicts in the evidence are for the trier of fact. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Section 366.22, subdivision (a), provides in part:
"The court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child."
Substantial evidence supports the court's finding that returning the children to Bennie's custody would create a substantial risk of detriment. The children had been neglected in the parents' home for several years. Bennie worked long hours as a security guard. Stacy was the children's primary caregiver, but she was mentally ill and unable to provide adequate care. The children were neglected, their hygiene was poor and they were not provided with nutritious foods to eat. By the time of the 18-month hearing little had changed. Bennie and Stacy were living together, Bennie was working from 60 to 80 hours each week so was not available to care for the children, Stacy's mental health had not improved and she had not made changes to her lifestyle or her ability to parent the children.
Bennie misplaces reliance on Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, David B. v. Superior Court (2004) 123 Cal.App.4th 768, and In re Yvonne W. (2008) 165 Cal.App.4th 1394. In Jennifer A. v. Superior Court, supra, at pp. 1341-1347, the reviewing court granted the mother's writ petition after the juvenile court had terminated her services and set a section 366.26 hearing. The mother had been having daily unmonitored visits and had substantially complied with her case plan, and her therapist reported she was not likely to repeat the neglectful behavior that had caused her children to become dependents. In David B. v. Superior Court, supra, at pp. 795-798, the appellate court granted the father's writ petition, stating he had done more than had been asked of him, and the social worker had not helped him obtain new housing or told him the children would not be returned unless he found another residence. In In re Yvonne W., supra, at pp. 1401-1402, the appellate court reversed the juvenile court's decision not to return the child to the mother based on the child's wish not to live in a shelter with her, stating the child's dislike of the living arrangement does not show a substantial risk of detriment.
Here, by contrast, although Bennie had shown adequate parenting skills, because he would not be available to the children, Stacy would be their primary caregiver just as she had been when they were neglected in the past. Bennie knew the risk Stacy posed to the children, but he returned to live with her even though he was aware this would hurt his chance of reuniting with the children.
Bennie's situation is essentially the same as it was when the children were first taken into protective custody. Although extensive services had been offered and provided over many months, he had not developed a plan for how the children could be provided adequate care, and he continued to be unable to protect them from Stacy's mental illness. Substantial evidence supports the court's finding the children would be at a substantial risk of harm if returned to parental custody.
DISPOSITION
The petitions are denied. The request for stay is denied.
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MCCONNELL, P. J.
WE CONCUR:
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BENKE, J.
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NARES, J.