Opinion
F075391
07-10-2017
COREY M., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest.
David G. Duket for Petitioner. No appearance for Respondent. Mark Nations, County Counsel, and Bryan Walters, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD134256, JD134257, JD134258)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Raymonda B. Marquez, Judge. David G. Duket for Petitioner. No appearance for Respondent. Mark Nations, County Counsel, and Bryan Walters, Deputy County Counsel, for Real Party in Interest.
Before Gomes, Acting P.J., Poochigian, J. and Meehan, J.
-ooOoo-
Corey M. (mother) filed a petition for extraordinary writ (Cal. Rules of Court, rules 8.450-8.452), seeking review of the juvenile court's March 24, 2017, order removing her three daughters, now eight-year-old Hallie, six-year-old Mia and three-year-old Jasmine, from her custody pursuant to a supplemental petition (Welf. & Inst. Code, § 387) and setting a section 366.26 hearing. Mother contends there was insufficient evidence to support the juvenile court's finding family maintenance services had proven ineffective in protecting the children and its order removing the children from her custody. We deny the petition.
Rule references are to the California Rules of Court.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Joseph (father), married parents of Hallie, Mia, and Jasmine, have a long relationship marked by domestic violence, drug abuse and mental health problems. The family first drew the attention of child protective services (CPS) in August 2009, when father shoved mother, causing her to stumble backward and hit her back on a television. Mother grabbed then five-month-old Hallie and fled. Mother and father agreed to get help for domestic violence and father agreed to pursue mental health treatment for his bipolar disorder. CPS lost contact with the parents and considered them high risk. In April 2013, CPS in San Bernardino County located the parents living in a van with then four-year-old Hallie and two-year-old Mia after receiving a report they physically and verbally abused Hallie. Father was arrested for drug possession. The juvenile court removed the children and provided mother reunification services, including counseling for domestic violence. In December 2013, the court returned the children to mother's custody and dismissed its jurisdiction.
These dependency proceedings were initiated in March 2015, when mother, distraught and crying, contacted the Kern County Department of Human Services (department) and insisted the department take the children. The month before, the department responded to a domestic violence incident involving the parents. During an argument, father shoved mother in the chest with both hands, causing her to fall backward onto the couch. When she got up, he pushed her again. Mother left the residence with Mia and then nine-month-old Jasmine and contacted the police. Father was arrested for domestic violence and child abuse and mother was issued an emergency protective order. While investigating, the department learned the parents frequently argued and there was suspicion they were dealing drugs.
During her frantic call, mother said she could no longer handle the children and was afraid of what she might do to them even though she would "never hurt [them]." Mother explained she and father were having marital problems, causing her extreme stress, and she did not know what to do other than relinquish custody of the children. Mother had all the children's belongings ready in plastic bins and a social worker took them into protective custody and placed them in foster care. The department later learned that father had been arrested two days before for indecent exposure after he was found standing on the sidewalk outside of a school fence with his pants down to his knees exposing his genitals and masturbating. He was also in possession of methamphetamine and a glass smoking pipe.
The juvenile court ordered the children removed from parental custody at the dispositional hearing in October 2015 and ordered the parents to participate in reunification services, including domestic violence and mental health counseling. The court set the six-month review hearing for April 2016. Mother appealed from the juvenile court's jurisdictional findings and dispositional orders, which we affirmed.
On our own motion, we take judicial notice of our record and our opinion in In re Hallie R. et al. (June 10, 2016, F072976) [nonpub. opn.]). (Evid. Code, § 452, subd. (d).)
By February 2016, mother had completed domestic violence counseling and a 25-week course in learning to protect. She had also undergone a mental health screening and, according to her, did not require mental health treatment. However, she refused to sign a release of information for verification purposes. Her attorney petitioned the juvenile court to return the children to her under family maintenance, alleging she and father were separated and the children wanted to return to her custody. (§ 388, subd. (a)(1).) At a hearing in February 2016, the juvenile court granted the petition and ordered mother to participate in mental health counseling and consent to individual treatment for the children. The court set a family maintenance review hearing for August 2016.
Meanwhile, father was homeless and minimally compliant with his services plan and he perpetrated several incidents of domestic violence toward mother. On March 19, 2016, father kicked in mother's backdoor at 5:00 a.m. and set off the alarm. The children were in the apartment asleep and did not wake up. Mother contacted the police and pressed charges. On April 13, 2016, mother told social worker Tonya Austin that father went to her apartment and threatened to kill her. She contacted law enforcement several times but they did not respond. Austin recommended mother contact Alliance Against Family Violence (Alliance) to get a restraining order. On April 14, 2016, mother told Austin she woke up and her window was shattered. Father threw a rock through her window, thinking she had a boyfriend. Mother also said she had to pay back rent and repair bedroom doors.
In April 2016, at the six-month review hearing, the juvenile court terminated father's reunification services.
On May 2, 2016, Austin spoke to mother on the telephone about obtaining a restraining order. Mother said she planned to go to Alliance that day. Austin also asked if she talked to someone at the housing authority about relocating. Mother said she had inquired but that she was told she needed to take care of the problem or the problem would follow her. She asked Austin for a list of available section 8 housing so she could relocate. Austin also spoke to father about his recent violent acts, which father admitted. He said mother invited him to her apartment and he was there when Austin spoke to mother on the phone.
On May 8, 2016, mother and the children were walking home from the laundromat when father approached mother yelling and calling her names. He attempted to strike her with a pool cue that was broken in half. He threw a stick at her, forcing her to duck to avoid being hit in the head. He fled and a warrant was issued for his arrest. Mother declined an emergency protective order, stating she would apply for a permanent restraining order the following day. The next day, father broke into mother's apartment while she and the children were asleep and entered her bedroom. He had a large silver pole in one hand and a large piece of metal bed frame in the other, which he used to lock mother in the bedroom. He held the silver pole like a baseball bat and was getting ready to swing at mother when her neighbors intervened. Father fled and mother was issued an emergency protective order. The order expired on May 14, 2016.
On May 17, 2016, Austin asked mother if she had obtained emergency housing and a restraining order. Mother said she could not get emergency housing without the police reports and the police department would not release them to her because there was an open investigation. Austin asked mother for the name of the person to whom she spoke at the housing authority. As for the restraining order, mother said Alliance would not give her a restraining order unless she had a place to live. Mother told Austin that father continued to threaten her by text and calling from different numbers and she received a three-day eviction notice because of all the drama with father.
On May 17 and 18, 2016, social worker Trina Phillips went to mother's home to check on her. Mother did not answer the door either time but the second time, it was obvious that someone was in the home because Phillips heard the children playing in an upstairs bedroom and an adult voice speak to the children after which they became silent. The department made some inquiries and discovered mother had not requested a restraining order against father. In addition, there were 14 law enforcement service calls to mother's apartment from mid-March to mid-May 2016 for various reasons, including domestic violence, terrorist threats, vandalism and assault. On May 19, Austin took the children into protective custody and filed a supplemental petition.
The supplemental petition alleged family maintenance had been ineffective in protecting the children. As factual support, the department cited the multiple incidents of domestic violence since the childrens' return and alleged that mother invited father to visit and had not obtained a restraining order. The department placed the children in foster care.
On May 30, 2016, father was arrested on eight counts: first degree burglary, false imprisonment, threatening with intent to terrorize, willful cruelty to a child, and two counts each of vandalism and assault with a deadly weapon other than a firearm. He pled guilty to one count of assault, the court dismissed the remaining counts, and father was sentenced to two years in prison.
On June 10, 2016, the juvenile court conducted a contested jurisdictional hearing. Mother's attorney filed a request, asking the juvenile court to take judicial notice of a domestic violence restraining order issued on June 2, 2016, in Kern County and the docket in father's criminal case, showing his plea agreement and sentence. The court received the request for judicial notice into evidence.
Austin testified that in order to obtain emergency housing, mother needed to complete an application and participate in an interview with someone at the housing authority to process the emergency move. Austin explained the procedure and helped mother contact the housing authority but mother did not follow through. Austin also encouraged mother to obtain a restraining order and offered to babysit the children while she filed for one. Austin believed mother allowed father into her home because father told her he was there and he gave mother new dressers for the children.
At the conclusion of the hearing, the juvenile court sustained the supplemental petition. In doing so, the court struck the allegation that mother "invited" father into the home. Although the court found no evidence that mother invite[d] father into the home, the court believed she permitted him to be in her home. The court set the dispositional hearing for August 2016.
In its dispositional report for the August 2016 hearing, the department recommended against providing mother reunification services, noting that she received over 17 months of services yet continued her relationship with father and allowed him access to the children while he was continuing to engage in domestic violence. The department opined mother did not understand the severity of the danger associated with remaining in the apartment where father had assaulted her and the importance of relocating to protect the children. The department also informed the court that mother acted inappropriately with Mia during visits and that Mia was resisting contact with mother. Mia cried before visits and clung to her foster mother, who she referred to as her "new mommy." She also forced herself to throw up and pinched and flicked herself.
The juvenile court continued the dispositional hearing and the family maintenance review hearing multiple times and conducted a combined, contested hearing on March 24, 2017. Meanwhile, mother completed the domestic violence counseling the court ordered as part of her family maintenance plan and the department appeared to be leaning toward returning the children to her under family maintenance. However, there were new concerns. Hallie was exhibiting sexual behavior and her foster mother asked the department to move her. Also, mother's landlord asked her to move out by February 2017 and she had a boyfriend who had not been cleared by the department and who potentially had a criminal history.
In checking the Criminal Justice Information System for a match using the boyfriend's name, the department found 10 aliases and various arrests and convictions. However, none of the aliases matched the boyfriend's Social Security number and birthdate; they either matched one or the other. Consequently, the department did not know if the boyfriend committed the crimes or if someone using his identity had committed them.
In a supplemental report dated March 23, 2017, the department recommended the juvenile court place the children in mother's custody under family maintenance and impose conditions: that her boyfriend get a criminal clearance, that she ensure Hallie receive mental health services, and that she attend conjoint counseling and guided visitation with Mia. However, mother did not meet the conditions. Consequently, in a subsequent report, the department informed the court that mother was being evicted from her apartment and had not made any effort to obtain emergency housing. In addition, she did not follow through with conjoint counseling for Mia, and her boyfriend had not been fingerprinted and was not truthful with the department. The department changed its recommendation to termination of reunification services.
The department also informed the court that the children were appropriate for adoption planning, but that only Mia's caretaker was committed to adoption. Hallie and Jasmine's caretaker was willing to adopt Hallie but not Jasmine so the department was in the process of establishing a new preadoptive home for them.
At the contested hearing, mother's attorney asked the juvenile court to take judicial notice of an unlawful detainer action filed against her on March 14, 2017, and made an offer of proof that if called, mother would testify that she filed an answer to the unlawful detainer action and would have her current housing for 30 days. In addition, she would not allow her boyfriend contact with the children until he was cleared by the department and she would agree to both mental health and conjoint counseling for Hallie and Mia. In addition, she would testify that she was 12 minutes late for a conjoint counseling session on March 23, 2017, and the appointment was cancelled per the therapist's policy. The court took judicial notice of the requested material and accepted the offer of proof.
The parties presented their cases by argument only. Mother's attorney acknowledged that mother was "out of time" with respect to reunification services but argued that the juvenile court could and should return the children to her custody under a plan of family maintenance. He argued they would not be at risk in mother's care because father was in custody and there was an order restraining him from having contact with her and the children. Mother's attorney also pointed out that mother completed her court-ordered services and regularly visited the children. Hallie and Jasmine were not in a preadoptive home. Minors' counsel joined county counsel's recommendation to terminate reunification efforts, citing mother's lack of assertiveness in enforcing a restraining order and supporting mental health counseling for Hallie and Mia.
The juvenile court ordered the children removed from mother's custody and set a section 366.26 hearing, noting that family reunification services were not an option because the time had run out.
DISCUSSION
"When [the department] seeks to change the placement of a dependent child from a parent's care to a more restrictive placement, such as foster care, it must file a section 387 petition." (In re F.S. (2016) 243 Cal.App.4th 799, 808; see rule 5.560(c).) The petition must allege facts that establish the court's previous disposition order was ineffective (§ 387, subd. (b); In re F.S., at p. 808), but it need not allege any new or additional grounds for dependency because the juvenile court already has jurisdiction over the child based on its findings on the original section 300 petition. (In re T.W. (2013) 214 Cal.App.4th 1154, 1161.)
" 'The ultimate "jurisdictional fact" necessary to modify a previous placement with a parent or relative is that the previous disposition has not been effective in the protection of the minor.' " (In re A.O. (2010) 185 Cal.App.4th 103, 110.) If the court finds the factual allegations are true by a preponderance of the evidence, it must conduct a dispositional hearing to determine whether removing custody is appropriate pursuant to the same procedures as apply in an original dispositional hearing. (In re F.S., supra, 243 Cal.App.4th at p. 808; rule 5.565(e).)
Thus, before a minor can be removed from the parent's custody, the court must find, by clear and convincing evidence, "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's ... physical custody." (§ 361, subd. (c)(1).)
We review the juvenile court's jurisdiction and disposition findings for substantial evidence. (In re T.W., supra, 214 Cal.App.4th at p. 1161.) We conclude such evidence exists in this record.
Here, the juvenile court exercised its dependency jurisdiction over the children in October 2015, because mother and father engaged in ongoing domestic violence and mother failed to protect the children from it. Though she subsequently separated from father and was able to regain custody of them under family maintenance, she was slow to obtain a restraining order and made no effort to relocate. As a result, father perpetrated a series of violent assaults against her while the children were present. In addition, the juvenile court imposed certain conditions as part of the family maintenance plan, with which mother did not comply. Under the circumstances, the juvenile court could find family maintenance services had been ineffective. Further, even though father was in custody and not a present danger to her, the court could find that mother's history of domestic violence, laxity in protecting the children, and willingness to expose them to a man without knowing his criminal background would place them at a substantial risk of harm if returned to her custody. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136 [court need not wait for a child to be harmed before finding a substantial risk of physical harm].)
Further, the juvenile court, having decided it could not return the children to mother's custody, had no choice but to terminate reunification services and set a section 366.26 hearing. The maximum period of reunification services is 18 months from the date the child entered foster care, including the time the child was in the parent's custody under family maintenance. (§§ 361.5, subd. (a)(3), 366.22, subd. (a)(3).) Since mother's children entered foster care on May 6, 2015, she had received more than 18 months of services by the hearing in March 2017.
A child is deemed to have entered foster care 60 days after the child is initially removed from the physical custody of his or her parent or the date of the jurisdictional hearing, whichever is earlier. (§ 361.49.) In this case, May 6, 2015 (60 days from the initial removal date of March 6, 2015) is the earlier date (the jurisdictional hearing was conducted on October 22, 2015.)
The parties submitted a stipulation requesting that we grant the petition and direct the juvenile court to vacate the section 366.26 hearing and provide mother an additional six months of reunification services. We reject the stipulation because the law does not permit what the parties are requesting. --------
DISPOSITION
The petition for extraordinary writ is denied. Our opinion is final forthwith as to this court.