From Casetext: Smarter Legal Research

Carolina C. v. Superior Court of Orange Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Feb 17, 2012
No. G045961 (Cal. Ct. App. Feb. 17, 2012)

Opinion

G045961 Super. Ct. No. DP017069

02-17-2012

CAROLINA C. et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.

Juvenile Defenders and Donna P. Chirco for Petitioner Carolina C. Frank Ospino, Interim Public Defender, Michael Hill, Assistant Public Defender, Christine Johnson and Dennis M. Nolan, Deputy Public Defenders, for Petitioner Gabriel P.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Jane L. Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition denied.

Juvenile Defenders and Donna P. Chirco for Petitioner Carolina C.

Frank Ospino, Interim Public Defender, Michael Hill, Assistant Public Defender, Christine Johnson and Dennis M. Nolan, Deputy Public Defenders, for Petitioner Gabriel P.

No appearance for Respondent.

Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.

Carolina C. (mother) and Gabriel P. (father) seek extraordinary writ relief from an order terminating reunification services for their now six-year-old son Cesar P. and setting a Welfare and Institutions Code section 366.26 (all statutory references are to this code) hearing for February 21, 2012. The parents contend there is insufficient evidence to support the juvenile court's finding that returning Cesar to their physical custody would create a substantial risk of detriment to his safety, protection, or physical or emotional well-being. Father also challenges the sufficiency of the evidence to support the court's conclusion that father was offered or received reasonable reunification services. Finding no error, we deny the petition.

I


FACTUAL AND PROCEDURAL BACKGROUND

The Orange County Social Services Agency (SSA) filed a petition in May 2008 alleging Cesar (born October 2005) and eight older siblingscame within the jurisdiction of the juvenile court under section 300, subdivisions (b) and (j). The petition alleged the children had suffered, or were at substantial risk of suffering, serious physical harm or illness because the parents' substance abuse rendered them incapable of providing regular care or supervising and protecting the children.

The siblings are: Hector (born February 1993), Arturo (February 1994), Angel (April 1995), Brisa (April 1996), Miguel (September 1997), Oscar (September 1997), Eduardo (October 1999), and Erica (November 2000). Two older siblings, half sister Yesenia, and Gabriel, Jr., were not named in the petition.

Specifically, the petition alleged the children had been exposed to acts of domestic violence, including a May 2008 incident where father, intoxicated from alcohol, pushed mother to the ground, and a March 2008 incident where father, again intoxicated, argued with mother, requiring two of their older sons to intervene. The petition also listed an October 7, 2007, incident where father engaged in a physical altercation with 17-year-old sibling, Gabriel, Jr. (born May 1991). The petition further alleged father inappropriately struck the children on the shoulders and backside and had a history of alcohol abuse, but failed to complete a substance abuse treatment program or batterer's program, and mother failed to protect the children from father. Finally, the petition alleged the family had an extensive involvement with social services and law enforcement dating to October 1990. In July 1997, SSA placed eight of Cesar's siblings into protective custody because father had physically abused several of the children. The family received 18 months of reunification services, and the children ultimately returned home.

Mother stated father pushed her to the ground during the May 2008 incident, and complained he drank beer daily and became intoxicated every weekend. Father acknowledged abusing alcohol, but denied hitting his children after they were taken into protective custody in July 1997. He claimed to have limited his domestic violence to verbal abuse and insults, which occurred once a month, usually when he had been drinking. He denied attempting to strike mother in March 2008. In May 2008, he came home drunk and began arguing with Gabriel, Jr. He did not recall details, but admitted grabbing mother by the arm, and that she fell down when he let her go.

Father was arrested and subsequently convicted for the 2008 domestic violence incidents. SSA maintained the children in mother's care on the stipulation father could not be in the home and mother would obtain a restraining order against him. SSA provided father with program referrals for domestic violence, substance abuse, random drug/alcohol testing, anger management, and parenting. SSA referred mother to a shelter and a personal empowerment program. The agency also offered in-home parenting aid. SSA recommended a plan of family maintenance services, with enhancement services for father.

At the jurisdiction and disposition hearing in July 2008, the parents pleaded no contest to the petition as amended. Various case plan activities and services, including counseling, already had begun. Father's drug tests had been negative, and he attended monitored visitation with the children two times a week. SSA had discretion to liberalize visitation.

In late November 2008, SSA took the six younger children into protective custody and filed a supplemental petition (§ 387) alleging the previous disposition had been ineffective. The parents had failed to comply with the family maintenance plan, including several instances where mother had failed to protect the children from physical assaults by the older children, primarily Arturo, who had recently spent time in juvenile hall. Mother acknowledged a previously undisclosed incident occurring around August 2007 where she armed herself with a steak knife and approached father and his friend, who were drunk and boisterous. Gabriel, Jr., and Hector stopped her before she could confront father. Mother also missed several therapy appointments and eventually stopped going, stating she had "'too much to do.'" She faced imminent eviction. Meanwhile, father tested positive on a drug/alcohol test and missed another test altogether.

SSA placed Brisa, Erica, Eduardo, and Cesar together in one foster home, and Oscar and Miguel in another. Eduardo was subsequently moved to a different home because of aggressive behavior towards Erica.

In January 2009, the parents pleaded no contest to the amended allegations in the supplemental petition, but contested dispositional issues. Afterward, the parents continued to falter in their reunification efforts. Between January and August 2009, mother lost her residence, father lied about where he was living, and the social worker received anonymous information the parents were living together. Brisa and Erica stole cell phones and other items in their foster placement. SSA removed Miguel from his foster placement to Orangewood Children's Home (Orangewood) because of "uncontrollable behavior" and "being a threat to himself and others." Brisa threatened her foster parent with a kitchen knife to use the telephone to call mother, and SSA removed her from her placement. SSA's lawyer made an unannounced visit at the maternal grandmother's home in Riverside and a maternal aunt informed counsel mother was "lying and actually living with" father in Santa Ana. Father claimed he was living in Stanton, and was looking for a new apartment. The older boys who had remained with mother, Hector, Arturo, and Angel, had been arrested for gang activity occurring in February.

In late August 2009, the juvenile court found conditions justified the initial assumption of jurisdiction, and custody with the parents was detrimental to the children. But the court authorized SSA to return Erica and Cesar to their mother on a trial basis, which began on August 24, 2009.

Brisa, Miguel, Oscar, and Eduardo suffered from learning disabilities, mental health problems, and behavioral issues and remained in foster placements or group homes throughout the pendency of the case.

Unfortunately, the police received multiple "family disturbance" calls from mother's neighbors reporting "incidents of physical aggression between family members." In September 2009, police were dispatched to mother's apartment because the parents were "verbally arguing and that it sounded like the father was beating on the mother." Cesar reported father "'slept over.'" Mother and the children acknowledged father had been having unmonitored contact in violation of court orders. Erica reported her mother directed her not to talk to social workers. Angel (age 14) had been absent from school six times in the month since school began. One of the brothers brought Erica to school because mother was not home and he assumed Erica should be in school. In October 2009, Angel punched Arturo, who threatened his younger brother with a pocket knife. The maternal grandmother, who provided childcare while mother worked as a housekeeper at a convalescent home, locked herself in the bathroom with Cesar because she was frightened. A few hours later, adult daughter Yesenia and Arturo argued, and Arturo threatened to kill her and Angel with a knife.

During a home visit on October 19, the social worker smelled a foul odor, and saw cockroaches crawling on the floor. Angel and his clothes were unclean and Erica had severe head lice. Mother claimed her attorney told her it was okay for father to see the children without supervision, but father contradicted mother and the children's statements concerning unauthorized contact. According to the social worker, mother demonstrated "minimal progress in implementing learned parenting skills" and "continues to report that she is overwhelmed with [Arturo and Angel's] aggressive behaviors." On October 19, 2009, the social worker terminated the trial visit and took Erica and Cesar into protective custody.

In December 2009, the social worker imposed supervised visitation for mother at Orangewood once per week. Father continued to have monitored visitation at Orangewood once per week. Father's visits occurred at Orangewood because of his confrontational behavior towards one of the foster parents, concerns about his ability to redirect the children's aggressive behaviors, and because he allowed Hector to accompany him. Hector's history of threats and explosive behavior prompted the Orangewood visitation center to provide security to keep the children safe. Father had cancelled six visits during this period of supervision, sometimes at the last minute. Monitors, however, provided generally positive reports, stating both parents interacted well with the children.

The social worker expressed concern mother failed to meet the older children's basic needs and "negative behaviors at home and school had escalated during the time they were in" her care. The children displayed "physical aggression that the mother could not control." During the trial visit, mother failed to protect Erica and Cesar from "further violence in the home" and allowed father to have unmonitored contact. The social worker concluded mother would have difficulty supervising and ensuring the children's safety if they were returned to her care.

Father had been participating in case plan activities and demonstrating satisfactory progress, but the social worker expressed concern he did not report potentially violent incidents occurring in mother's home and ignored court orders against unmonitored contact with the children. Father struggled to supervise Hector, resulting in physical and verbal confrontations between Hector and mother.

The social worker noted additional time was needed to assess whether the parents were willing and able to follow the case plan. The case plan required counseling, and mother had only recently begun individual counseling sessions. Mother's therapist stated mother was punctual and compliant, but had a "flat affect," had difficulty expressing emotion, and had a learning disability. Father had completed the 52-week batterer's program and results of drug and alcohol testing had been negative. The social worker provided a referral for conjoint counseling in mid-January 2010, but the parents did not show up for the intake appointment.

In late January 2010, SSA moved Erica to a different foster home at the foster parents' request after two severe temper tantrums, one of which injured Cesar. In March, the social worker reported Cesar had begun to display aggressive behaviors, biting another child in the foster home. He also threw tantrums during visits with the parents and siblings. The parents met with the conjoint therapist in late February and appeared motivated to participate. In early March, the juvenile court allowed mother two hours per week of unmonitored visitation with Miguel and Oscar, who continued to reside together in a group home.

Mother continued to work full time as a housekeeper. She left her previous residence without advising the social worker, and would not provide a current address. She denied living with father, but expressed a desire to do so, stating she needed his financial assistance, and it was a good time to live together because they did not have any children in their care. She believed father had changed and did not have any concerns about his drinking or domestic violence.

The parents attended conjoint therapy and were "adamant about wanting to be together" and to regain custody of their children. The social worker expressed concern the parents went into conjoint counseling "already indicating they wanted to reunite instead of taking the time to work on their goals and" assessing whether they "would be able to break the cycle of violence that has existed for the past 20 years of their relationship." Mother requested authorization to move back in with father, and the social worker suspected the parents were "already back together and in a relationship, although they deny that they live together."

In March 2010, SSA removed Hector from father's custody because of alleged physical abuse during a March 11 incident involving a verbal and physical confrontation. SSA placed Hector in a group home under a plan of long-term foster care. The social worker expressed concern "father struggled to adequately supervise" Hector, and the other children had a history of similar negative behaviors.

At the 12-month review hearing in April 2010, the juvenile court found continued supervision was necessary, returning the children to the parents would create a substantial risk of detriment to the children's physical or emotional well-being, reasonable services had been provided or offered, and there was a substantial probability the children would be returned within six months because the parents had consistently contacted and visited the children, and had made significant progress in resolving the problems that led to removal. The court continued the case for an 18-month review hearing on May 24, 2010, 18 months after the children had been removed from mother's custody on the supplemental petition.

In early May, mother told the conjoint therapist she had been overwhelmed caring for nine children and believed she could safely care for two to four children.

Father, however, wanted to reunite the entire family, but was "not always realistic with his goals." According to the therapist, it was difficult to assess whether the parents had "resolved their issues with domestic violence" since they were not currently living together. The social worker stated the "parents are verbally adamant about being involved in their children's lives" but had "poor follow through" and "usually comply with service providers" only after being urged to do so. Both continued to have weekly supervised visits at Orangewood. The social worker also allowed mother to have trial release visits with the twins Oscar and Miguel, but she missed several scheduled visits after the prior hearing. The parents received generally positive reviews concerning their visits, interacting well with the children.

The social worker noted the children had responded "well to having structure and stability in their respective placements, as well as being away from a violent environment." In contrast, the social worker noted the children's health and education suffered when they lived with the parents, and she believed the children's behavior and mental health needs would be beyond either parent's capacity to handle if the children returned to their care. The parents appeared unable to provide for the children's basic needs. They did not have a stable place to live and had limited financial and social support. The parents had a history of "poor follow through in getting the children to medical, school, and counseling appointments." Mother had been unable to provide adequate supervision, resulting in many violent sibling-on-sibling incidents.

In May and June 2010, father missed two random drug/alcohol tests. Father was aware a missed test was considered positive. After the May test, father told the social worker he believed testing had terminated in May, but the social worker advised him otherwise. Father also had not provided proof of attendance at Alcoholics Anonymous (AA) meetings.

In mid-June, mother informed the social worker she was now living with father and older daughter Yesenia. The parents continued in conjoint therapy, denying any current domestic violence. The social worker changed the weekly visitation schedule at Orangewood to accommodate the parents' request to visit the children together. But Hector was belligerent with Orangewood staff and father did not redirect him until advised to do so. The parents also failed to intervene in other altercations between the siblings. On one occasion, Cesar slapped Erica on the face. The older siblings laughed, and the parents did not intervene.

Father claimed he had been sober, but did not have time to go to AA meetings, and missed another random alcohol test in early September. In early October 2010, the social worker learned Westminster police had been summoned to the parents' home in June. Yesenia reported "an altercation with her drunk father." Yesenia had given her mother's cell phone number to a male friend, and when he called, father became upset because he thought mother was cheating on him. Yesenia and father pushed each other, and he held her down on a sofa to restrain her from kicking and hitting him. According to officers, father had a moderate odor of alcohol, bloodshot and watery eyes, and slow, slurred speech. The incident appeared to violate father's protective order requiring only peaceful contact with mother. The parents did not report the incident to the social worker.

The social worker stated she was "doubtful that the mother would report any incidents of domestic violence to the police or the [social worker]; therefore, the mother would be unable to protect the children [if] they were in her care." The social worker expressed concern "the parents are not implementing the alternative discipline techniques . . . learned in . . . parenting and counseling classes. The parents fail to adequately supervise, set limits, and redirect the children during the family visits." They failed to face the issue of "domestic violence with each other, alcohol abuse, and the neglect of the children's needs have negatively impacted the children." Rather, they blamed foster care for the children's aggressive behaviors. "[N]either parent is capable of adequately and safely supervising the children if [they] were placed in their care. Both parents have been unsuccessful with previous Family Maintenance services . . . . The parents have had poor compliance in meeting their children's needs, such as ensuring that their children attended counseling and school. The parents struggled to adequately supervise the children when the children were placed in their care, as well as during the regular visitation. All of the children continue to display aggressive and defiant tendencies in the home, school, and during visitation with the parents. . . . [I]f the children were returned to their parents' care, their behavior and mental health needs would be beyond either parent's capacity to handle."

In December 2010, mother reported father had moved out of the home because they had been unable to work through their relationship issues and struggled with communication, control, and jealousy. She planned to get her own apartment near her work and live with Yesenia.

Father would not confirm where he was living and did not return the social worker's calls. During an unannounced visit in late January 2011, social workers saw a man — they could not tell if it was father — duck out the back exit of mother's residence. They also found clothing, toiletries, and tools suggesting father still resided in the home. The property owner initially stated mother and father continued to live together before retracting the statement and said she was not sure. Father later claimed to be living in a garage but planning to move because someone had reported his living arrangement to the city. He acknowledged he could not provide appropriate housing for the children.

In early April 2011, father missed another drug test. The parents did not appear for appointments with the social worker and did not return phone calls. Father had not provided a current address or proof of attendance at AA meetings.

In June, Erica disclosed Gabriel, Jr., molested her when she was seven years old. In mid-July, the social worker advised mother not to bring Erica to mother's residence during their weekly unsupervised visits because Gabriel, Jr., had recently returned from prison and was reportedly residing with mother. Erica subsequently informed the social worker mother did bring her to the residence while Gabriel, Jr., was present. Erica unconvincingly claimed she "'lied'" about the sexual abuse because she "'wanted to be like Brisa,'" who previously had accused Hector and Angel of sexually abusing her. She also stated mother told her to tell the social worker she lied. SSA arranged an interview with the Child Abuse Services Team (CAST). Mother said she "thought it would be okay to take [Erica] to her house" because Gabriel, Jr., was on his way out to visit friends. Mother did not believe her sons had abused either of the girls and did not know why Erica would make up the allegations.

According to Brisa's social worker, mother stopped showing up to conjoint therapy sessions and had not enrolled with the UCI Focus Program regarding sexual abuse. The "case . . . is at a standstill because the mother does not demonstrate growth therapeutically." The social worker stated the case "regress[ed] whenever" there is "liberalizing or increasing time with parents/family."

At the 18-month permanency review hearing, the social worker testified she recommended terminating reunification services and setting a section 366.26 hearing for Cesar because the situation had not improved since the children had been removed. She cited father's unresolved alcohol abuse and the inability of parents to resolve domestic violence and jealousy issues that negatively affected the children.

The 18-month review hearing was originally calendared for May 2010. For various reasons, the review did not commence until May 2011, and concluded in October 2011. The review concerned only Eduardo and Cesar. The social worker recommended a plan of long-term foster care for Eduardo, who was not deemed adoptable because of his age and behavioral problems. The parents do not appeal the rulings concerning Eduardo.

The social worker also observed that the parents had not applied what they were taught in their various programs. Mother had a difficult time setting limits, guiding the children, and correcting their behaviors. Mother's individual therapist felt mother had "limited functioning as far being able to reach" her therapy goals and the therapist did not recommend continuing "because she felt that mother had made about as much progress as she could make."

Father still acted "out physically and aggressively." Mother always seemed fearful of father, she "defers a lot of her authority" and appeared to be "fearful of expressing any thoughts or saying anything . . . that would possibly go in a report because then he will end up telling her something afterwards or threatening her." Mother minimized and underreported domestic violence. The social worker believed mother would not protect the children from father or Gabriel, Jr.

A significant factor influencing the social worker's recommendation that returning the children to the parents would be detrimental was the earlier return of Hector to father under a plan of family maintenance, which ended up failing in March 2010 with a sustained supplemental petition. Father denied he hit Hector, and the social worker was concerned he "isn't taking responsibility for what had happened . . . . And that's kind of the same concern with the domestic violence is he often . . . either minimizes or he doesn't take responsibility."

Father declined to participate in individual counseling. He consistently stated he was busy and did not have time for more services. He did not regularly meet with the social worker.

The parents also had not been "forthright about their living situation and their relationship." Mother allowed father to have unauthorized access to the children during visits and became irate when the social worker admonished her. Family visits were frequently chaotic and disorganized, and the social worker often had to modify the visiting arrangements because of Orangewood's concerns the parents were incapable of adequately supervising the children. The parents had neglected the children's health and education when they lived with them under a family maintenance plan.

Based on the June 2010 incident, the social worker believed alcohol was a continuing problem for father. Father "completely denied everything in the police report" concerning the incident. He declined an outpatient substance abuse treatment stating he "does not drink." He skipped numerous AA meetings. The social worker did not feel return of Cesar was a safe option.

Mother testified she had an appropriate residence for Cesar and Eduardo. She had lived there a year and the boys could share a bedroom. Yesenia would assist in transporting the children to school and medical visits, and after-school care was nearby. She held the same job for over two years, and had income to support herself and the boys. Father moved out in December 2010, and no one lived with her currently. Gabriel, Jr., left her home in August 2011. She promised to follow SSA's directives to prevent father from having unauthorized contact. She had recently finished her seventh parenting course. She loved the boys "very much, and . . . want[ed] to be a good mom for them, and [] miss[ed] them quite a bit."

Father testified he had learned from a domestic violence program, parenting classes, and counseling to "step away" when he was "going to be involved in an argument," and not to argue in front of the children. He also learned that when he felt anger coming on, he should not involve the family and should "go out and take a walk." A therapist told him he was important to the family and his alcohol abuse caused harm.

Father claimed he did not currently have an alcohol problem, but accepted that he was an alcoholic. He had been sober since the argument with Yesenia the previous year. He had recently attended an AA meeting, had a sponsor, and normally went to meetings once a week, although he had not provided attendance cards to the social worker. He had taken a drug test the previous Friday, but did not know the result. He had missed one test in the previous six months because he simply forgot about the appointment.

He testified he had learned to be a "responsible parent," to help his children out with their homework, take them to doctor's appointments, and spend more time with them. He learned that when a child was misbehaving he should not hit or scream but to "simply speak to them and tell them that what they are doing is wrong . . . ." He had successfully employed these techniques with Cesar, did not believe he currently had an anger management problem, and claimed he could control his anger if the boys were returned to his care.

He visited Cesar three hours every Saturday with a monitor. Cesar was excited to see him, ran up to him, and gave him hugs and kisses. They played, read books, and ate. There had been no arguments during recent family visits. He denied arguing about mother's fidelity at Angel's April 2011 birthday party.

He could provide his children with housing, food, and would make sure they attended school, although he did not have a child care plan yet. He and mother no longer lived together. He had lived in a friend's garage for about five months, but as of October 2011, he was living at "places where [he was] not established." If the children were returned to him he "would immediately go to look to see where [he] could rent a secure place . . . ." He would not allow Gabriel, Jr., to move in with him. He worked and could afford to pay rent if he had the children.

Five-year-old Cesar testified mother took care of him during visits and he went to her if he had a stomach ache or scraped a knee. He felt safe and happy with mother and would like to live with her. He also enjoyed visits with father. He liked to watch soccer with him, felt happy and safe with father, gave him lots of hugs, and father made sure he did not hurt himself. He also would like to live with father.

Eleven-year-old Eduardo testified he enjoyed visits with mother. Father took care of him during visits, but he did not discuss with father problems at school, and he did not want to live with father.

At the conclusion of the 18-month review hearing in October 2011, the juvenile court found Cesar could not be safely returned to his parents. The court noted the parents "had virtually every service that is possible" and that "unusual services were given for an unusual amount of time," yet mother failed to comply with regular attendance at services, and exercised poor judgment by allowing Gabriel, Jr., to reside in the home. Parents had "difficulty working with and parenting and setting limits for their children" even "in monitored and controlled surroundings[.]" The court stated the couple's "problems [were] severe and ongoing" and resulted in "substantial detriment to all the children[.]" The court found continued supervision was necessary, return of the children to the parents would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being, and that reasonable services had been provided or offered. The court terminated reunification services and set a section 366.26 hearing for February 21, 2012.

II


DISCUSSION

A. Substantial Evidence Supports the Juvenile Court's Finding that Returning Cesar to His Parents Would Create a Substantial Risk of Detriment to His Well-Being

Based on their participation and progress with the case plan, the parents contend that returning Cesar to them posed no substantial risk of detriment to the child. We disagree. Substantial evidence supports the juvenile court's finding of detriment.

Section 366.22 provides that "the permanency review hearing shall occur within 18 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian. 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 social worker shall have the burden of establishing that detriment. . . . 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 making its determination, the court shall review and consider the social worker's report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided . . . ."

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, 12261227.) "[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.)

Mother argues she "put forth great effort to complete her service plan and visit with all her children including Cesar. [She] made great progress in her life and in her ability to safely parent Cesar. Mother decided to separate from father and had him move out of the home after really trying to work through their issues and maintain the family. Mother went through months of conjoint therapy with the father after he completed [his batterer's program]." She states she became "an independent person who no longer was one hundred percent dependent on father to meet her needs." She had a job, a suitable residence for Cesar, she would take Cesar to school and had created an after-school daycare plan. She also notes Cesar "wanted to return home to" mother and he felt safe and happy in her care.

Father argues he had only one positive test and missed only five drug tests over the life of the case, there was no evidence he abused alcohol after the incident with Yesenia in June 2010, and while his "performance of the service plan may have been less than perfect," there was "no substantial, credible evidence" Cesar would be at risk if returned to his care.

As recounted in great detail above, the record reflects a long family history of abuse, neglect, and chaos. The children had suffered physical abuse and neglect in their parents' care and unfortunately had a front row seat to the ongoing domestic violence between father and mother. All of the children, with the possible exception of Cesar, had learning disabilities, and substantial emotional and behavioral problems. Several had become involved in criminal activities. At the time of the 18-month review hearing, SSA was investigating sexual abuse involving the siblings.

Social workers attempted to leave the children in mother's care initially and provided her with abundant services to develop parenting skills and address domestic violence issues. But SSA was compelled to file a supplemental petition to remove the younger children after mother failed to protect them from further physical abuse. Both parents consistently denied or minimized physical violence committed in the home, and hid these incidents and other facts from social workers. Mother waited over a year to disclose the August 2007 incident where she attempted to frighten father with a knife. The parents lied to social workers about the location of their residences. In 2009, they reported to social workers they were living apart, but other family members verified they still lived together. Mother allowed father to have unmonitored contact with the children in violation of court orders.

SSA attempted to return Erica and Cesar in August 2009, placing them with mother on a trial basis. But as of October, the police had received numerous reports from neighbors concerning violence among family members. Mother failed to meet the children's basic needs. Arturo was medically underweight, and Angel missed school. Erica also would have missed school if her brother had not taken it upon himself to take her. Erica told social workers her mother told her not to talk to social workers. Mother's home smelled foul and the children's hygiene was poor. The children's negative behaviors at home and school escalated while they were in mother's care. Despite parenting classes and other services, mother made minimal progress. The social worker was compelled to terminate the trial visit.

In April 2010, mother left her residence and declined to provide the social worker with a current address. The social worker expressed concern over mother's desire to live with father and expressed skepticism the couple would be able to break a cycle of violence persisting for two decades. Father underscored the social worker's concerns by missing several random drug tests and failing to attend AA meetings. The trial court, based on the evidence, reasonably relied on the social worker's observation that the parents had poor follow through and usually complied with service providers only after being urged to do so. The children had responded well to the structure and stability of their new placements offered, and benefited from a peaceful environment. The children's behaviors were beyond either parent's capacity to handle if the children returned to their care.

As of June 2010, the parents were living together and denied any domestic violence. The social worker, however, later discovered that Yesenia had summoned police to the residence after a violent "altercation with her drunk father." The parents failed to report the incident to SSA.

Mother claimed that father moved out, but father would not return the social worker's calls or confirm where he was living. In late January 2011, a social worker conducting an unannounced visit saw a man sneak out of mother's residence at a time she claimed to have been living alone with Yesenia. Father's tools and clothing remained on the premises.

The parents regularly visited their children, but did not show concern or take appropriate action when their children acted out violently. According to the social worker, the parents failed to "adequately supervise, set limits, and redirect the children," and they did not implement alternative discipline and parenting techniques they had been taught.

In June, Erica reported older brother Gabriel, Jr., had sexually molested her sometime in the past. The social worker advised mother not to bring Erica to mother's residence during unsupervised visits because Gabriel, Jr., was staying there. Mother ignored the directive, and instructed Erica to tell the social worker she lied about the sexual abuse.

Meanwhile, mother stopped complying with services in Brisa's case, and delayed enrolling in a sexual abuse program. The social worker stated that while mother showed up for visits she did not "demonstrate growth therapeutically." The mother's incremental progress slowed to a halt whenever the social worker liberalized or increased time between the parents and children.

Here, despite years of services, including batterer's treatment, domestic violence and parenting classes, individual and conjoint counseling, alcohol monitoring, wrap-around services, personal empowerment classes, and parent coaching, the parents had been unable to resolve domestic violence and parenting issues. They did not recognize how domestic violence had negatively impacted the children and led to their aggressive behaviors. Social workers attempted to place children with the parents at various times during the case, but neither parent succeeded in maintaining custody despite family maintenance services. The parents remained secretive and their behavior engendered a lack of trust. Father never moved beyond monitored visitation. Although mother was allowed unsupervised access with the children, she ignored the social worker's reasonable admonishment to protect Erica by keeping her away from Gabriel, Jr., pending an investigation of the sexual abuse allegations. The juvenile court reasonably could conclude Cesar would be at risk in his parents' care if returned at the 18-month review hearing. Substantial evidence supports the court's finding return of Cesar to either parent's care would be detrimental. B. Substantial Evidence Supports the Juvenile Court's Finding Reasonable Services Were Offered or Provided to Father

Father contends the juvenile court erred when it found reasonable services had been offered or provided. Where a child is not returned to the parent at the permanency review hearing, "[t]he court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, . . . guardianship, or long-term foster care is the most appropriate plan for the child. . . . The hearing shall be held no later than 120 days from the date of the permanency review hearing. The court shall also order termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child unless it finds that visitation would be detrimental to the child. The court shall determine whether reasonable services have been offered or provided to the parent or legal guardian." (§ 366.22, subd. (a).)

"Family preservation is the priority when dependency proceedings commence. [Citation.] 'Reunification services implement "the law's strong preference for maintaining the family relationships if at all possible." [Citation.]' [Citation.] Therefore, reasonable reunification services must usually be offered to a parent. [Citation.] SSA must make a '"'good faith effort'"' to provide reasonable services responsive to the unique needs of each family. [Citation.] '[T]he plan must be specifically tailored to fit the circumstances of each family [citation], and must be designed to eliminate those conditions which led to the juvenile court's jurisdictional finding. . . .' The adequacy of SSA's efforts to provide suitable services is judged according to the circumstances of the particular case. [Citation.]" (Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1501.) We review the juvenile court's finding of reasonable services for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)

Father complains his "visitation never increased beyond weekly supervised visits of three hours duration. . . . The social worker exercised her discretion to increase visitation by only one hour over the minimum required by the juvenile court. . . . Given Father's capable parenting of Cesar . . . , the social worker failed to provide reasonable services by maintaining a de minimis level of visitation for such a protracted period of time." He also argues his missed drug tests triggered his participation in a drug treatment program and "[t]he social worker . . . merely 'offered' a drug treatment program to Father, rather than informing him such treatment was required."

Concerning visitation, father does not elaborate whether he believes the social worker should have provided unsupervised visits, or simply more days or hours of visitation. We only consider the period after the 12-month review hearing in April 2010 because father stipulated, and the court found, reasonable services had been offered or provided up to that point. Father never requested additional visits during the period under review. We may infer, given his employment and commitments with the case plan and otherwise, weekend visits were all he could handle. Lengthier visits had previously proven ineffective because the children became antsy. Also, given the April 2011 texting incident, his missed drug tests and failure to attend AA meetings, and father's refusal to provide an address, unsupervised visits were unwarranted. Father's denials about the texting incident were also troubling because they showed a continuing lack of candor and insight. Finally, we note father's "capable parenting of Cesar" only occurred in the controlled setting of supervised visits at Orangewood, a group home, or SSA's offices. By the date of the 18-month review hearing, father had not demonstrated he could safely parent Cesar outside of this environment. The social worker's failure to liberalize visitation for father did not result in a failure to offer or provide reasonable services.

Concerning alcohol treatment, the case plan in effect during the current review period informed father that a missed drug or alcohol test would be considered a positive test and that if father tested positive for drugs or alcohol "a substance abuse treatment program will be required." The social worker stated she offered to refer him to a program. Father argues the social worker did not recognize substance abuse treatment was a part of the court-ordered plan, and should have clearly informed father of this obligation. Given father's statements he did not have an alcohol problem and did not have time for additional services, it is questionable father would have availed himself of a program had the social worker required his participation. Also, the underlying issues were undoubtedly touched upon in father's batterer's program, AA meetings, counseling, and other service areas and it is unlikely one more program would have resolved the family's entrenched issues within the statutory reunification period. As the court noted, SSA expended extraordinary efforts on behalf of this family over the long history of the case. The social worker's failure to direct father into alcohol treatment did not negate the court's finding reasonable services were offered or provided to father.

III


DISPOSITION

The petition from the order terminating reunification services is denied, as is the request for a stay of the section 366.26 hearing set for February 21, 2012.

ARONSON, J.

WE CONCUR:

O'LEARY, P.J.

BEDSWORTH, J.


Summaries of

Carolina C. v. Superior Court of Orange Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Feb 17, 2012
No. G045961 (Cal. Ct. App. Feb. 17, 2012)
Case details for

Carolina C. v. Superior Court of Orange Cnty.

Case Details

Full title:CAROLINA C. et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Feb 17, 2012

Citations

No. G045961 (Cal. Ct. App. Feb. 17, 2012)