Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County No. DP015922, Jane L. Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Law Office of J. Michael Hughes and Lawrence A. Aufill for Petitioner D.P.
Deborah A. Kwast, Public Defender; Frank Ospino, Assistant Public Defender, Sean Raft and Paul DeQuattro, Deputy Public Defenders, for Petitioner A.Q.
No appearance for Respondent.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsels, for Real Party in Interest Orange County Social Services Agency.
Rebecca N. Captain for Real Party in Interest the Minor.
OPINION
ARONSON, J.
D.P. (mother) and A.Q. (father) pursue extraordinary writ relief challenging the juvenile court’s order setting a permanency planning selection and implementation hearing (.26 hearing) for their now two-year-old daughter, A., under Welfare and Institutions Code section 366.26. (All further statutory references are to this code.) Mother contends the juvenile court was required to return A. to her care immediately following the 18-month review hearing, and father joins her petition to the extent it forestalls potential termination of his parental rights. Minor’s counsel opposes the petition. As we explain below, given mother’s entrenchment in patterns of domestic violence, the juvenile court could reasonably conclude, “by a preponderance of the evidence, that the return of the child to... her parent... would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a).) We therefore deny the writ petition and deny the parents’ request for a stay of the.26 hearing, currently scheduled for September 14, 2009.
I
FACTUAL AND PROCEDURAL BACKGROUND
Anaheim police officers and an Orange County Social Services Agency (SSA) social worker detained nearly two-month-old A. in September 2007 after responding to a report of domestic violence at mother’s and father’s apartment. The pair, ages 18 and 19, respectively, had been living together for two weeks. They admitted engaging in a literal, physical “tug-a-war” with the infant during an argument over her care, with father snatching A. from mother’s arms and mother, in turn, pulling on A.’s legs so hard she cried as father turned away. Mother slapped father’s back and pushed him, causing him to stumble towards a closet door he claimed he and the baby hit. With A. still in his arms, father pursued and punched mother four or five times with a closed fist on her shoulders, and tripped her as she walked out the front door. Mother cut her lip on the concrete floor.
The parents continued their altercation outside, yanking A. and her carrier between them until father’s foster mother pulled up and separated the two. The foster mother observed “this is not the first time that the parents fought like this.” Other witnesses also noted the parents’ clash was not unusual; father had pinned mother to the ground just a few days earlier, and A. was often the focal point of their disputes. Father characterized mother as “a very violent person” and told one of the responding officers, “‘Every other day she hits me.’” Though she later denied any problem, mother admitted to the social worker “that she is aware that she is not able to control her anger and many times acts impulsively. She also admitted that she is prone to aggressive behavior and has frequently lashed out at... father and hit him.” Concluding father acted as the “dominant aggressor” in the present argument, the officers arrested him for domestic violence and child endangerment, and also arrested mother for child endangerment. SSA placed A. first at Orangewood Children’s home, then with her paternal uncle and, within two weeks, at an emergency shelter foster home.
SSA filed a dependency petition based on the parents’ recurring domestic violence problem and their failure to provide for A.’s support when they were booked into jail. (§ 300, subds. (b) & (g).) Reviewing the petition with a social worker, mother denied father hit, kicked, or tripped her on September 1st, blaming herself for falling down and cutting her lip. She also claimed A. “was sleeping the whole time.” According to mother, she attempted to kick father. She acknowledged the pair fought, but noted “the child was not always present.” Mother later corrected herself, advising the social worker she and father had only three arguments in their 18-month relationship. The juvenile court sustained the petition, and ordered mother and father to participate in counseling and domestic violence, anger management, and parent education programs. Among mother’s case plan objectives, the court specified: “Express anger appropriately and do not act negatively on your impulses.”
By October, father and mother had reunited and were sharing a rented room. They lived separately for awhile when they “were not getting along,” but paired up again. Unable to maintain employment, they moved frequently. Mother nevertheless completed her anger management and parent education courses by the end of the sixth-month review period, but she lagged in completing counseling. Both she and father had lost their grocery store jobs.
When the social worker advised the couple of an infant’s need for stability, they stated they would obtain housing with a friend who agreed to visitation at his apartment. SSA approved the arrangement and, because mother’s and father’s visits at the foster parent’s home had been satisfactory, SSA consented to unmonitored visitation at the apartment. SSA later learned the arrangement was a sham: mother met the foster mother there to pick up and drop off A., but she and father were really elsewhere, sometimes together and sometimes apart, depending on whether they were fighting. Mother attended her counseling sessions infrequently. At the sessions she did attend, she minimized her history of domestic violence. She claimed she “‘lied to the police about the severity of the abuse incident...’” leading to A’s dependency. The therapist terminated the sessions based on mother’s absences, reinstated her, and then terminated her again when she failed to show for scheduled appointments.
In March 2008, while attempting to pick up A. after a visit purportedly at mother’s and father’s apartment, the foster mother learned from the apartment owner that he had “kicked them out” weeks ago because “[t]hey are lazy and they didn’t pull their weight in the home.” As the foster mother was leaving, mother showed up with A. Mother’s face was swollen, she had a black eye, a “huge” bruise on her forearm, and a bruise on the back of her right arm. Mother explained she was late because she and father had gotten in an argument on the bus, after which father “ditched” her and the baby. Mother offered no denial when the foster mother voiced her suspicion “it was D[omestic]V[iolence],” but only started to cry. Mother did not know where father was living.
When the social worker called to discuss the incident, father answered the phone and explained “mother had gotten into a fight with some gang of girls on 5th Street in Santa Ana.” Mother confirmed father’s account when the social worker reached her later in the day. As this was before mother had been terminated from counseling, SSA learned from the therapist that mother reported “‘a girl from the apartments where I live at picked a fight’” and “‘there was nothing to do but to defend myself.’” Mother and father “were in discord” on their next visit with the social worker in April, concluding “the relationship was not working” and they “were not going to be together.” Father planned to move to San Diego. Two weeks later, the couple informed the worker they were moving to San Diego together. Mother soon desired to return to Orange County, but felt constrained to stay for her part-time job at a fast food restaurant. Father intended to remain in San Diego.
The social worker observed in her report for the 12-month review: “The father and mother have done some work on their case plan and have consistently visited the child. However, despite having positive visits, they have demonstrated no changes in their lifestyle or relating skills that would indicate any progress on addressing the issues which brought them into custody. [¶] Given that the parents have not made significant progress in addressing their issues with twelve months of services, that it does not seem likely that they will be able to address their issues given another six months of services, and that the one year old child has a right to permanency and is adoptable,” the social worker recommended terminating reunification services. Over the objection of minor’s counsel, however, the juvenile court continued the reunification period for a final six months.
By August 2008, mother had moved back to Orange County, finding a transfer job within her restaurant chain. The social worker initiated a new counseling referral for her. According to mother, she was no longer seeing father. Father declined separate visitation with A., wanting to continue to visit her at the same time as mother. He continued to use her cell phone. He moved back to Orange County from San Diego. Mother insisted to the social worker she was no longer in a relationship with father. At a visit at the foster mother’s home, mother’s siblings agreed mother should not be in a relationship with father, but mother “did not confirm or deny the extent of her relationship with father.”
At the urging of minor’s counsel, the juvenile court ordered separate visitation for mother and father. According to mother, she lived with her sister and her sister’s boyfriend, though the boyfriend told the social worker he rarely saw mother. Father’s maternal aunt confirmed months later that mother and father lived with her until mid-November 2008. They continued to engage in domestic violence. Mother hit and kicked father and tore his clothes. According to the aunt, mother would not leave father alone when he became angry. As late as January 2009, the aunt believed the pair were still together “and always will be, [since] they are very connected and she could not see them apart.” When the aunt attempted to take mother her mail at her job after she moved out, mother became “angry and screamed at [her] to leave her place of business and to get out of her face.” Mother’s return to therapy had peaked in December 2008 with three visits, but she made no appointments in January or February. The therapist’s letters to her concerning the missed appointments were returned “stating that the mother does not reside at that address.”
Nonetheless, in March 2009, before the scheduled 18-month review, SSA stipulated to a trial release of weekend overnight visits for A. with mother. The first visit went well, with mother returning A. afterwards “very clean and fresh.” While A. cried on much of the visit with mother, a potential bond seemed evident, as A. wanted to be held by mother during the visit and mother held onto A. during the transfer back to the foster mother, strapping A. into the foster mother’s car seat herself. The foster mother noted that after the next visit, however, mother handed A. off to the foster mother immediately instead of holding onto her and strapping her into her seat.
In any event, mother had five weekend overnight visits with A. in March and April 2009. A.’s behavior deteriorated over the course of the visits, and the next-to-last visit raised alarms. Mother called the Friday morning the visit was scheduled to begin, stating she missed her train down to South County to pick up A. from the foster mother. Mother suggested her sister could drive her down, but mother was already on notice A. was to be transported only in preapproved vehicles and car seats inspected by SSA, so mother agreed to take the train the next morning. The foster mother met her at the station. Mother had a black eye. Mother explained to the foster mother she received it when a camera fell from a top closet shelf while she was looking for A.’s backpack. The foster mother reported that after this visit, A.’s aggression and temper tantrums, which had been increasing over the course of the visits, culminated in her striking another child in the head with a toy.
SSA terminated the overnights after a final visit the next weekend. The social worker explained in her report that she was “very concerned regarding the health and safety of this child. There are several indications that things are not all as they should be. The mother had a black eye which supposedly occurred when a camera fell on her eye. The child has returned to the home with an increased incidence of violent behavior such as hitting and throwing toys at other children. [¶] The child returns to the home exhausted and sleeps for an extended period apart from her normal sleep pattern. The child has begun to demonstrate extreme reactions to having her diaper changed[,] which is a strong departure from her usual cooperative toilet behavior.”
The worker elaborated: “The mother has not communicated well with the worker and did not inform the worker either that she was working over the weekend[s] or that she was using someone else to care for the child. The sister that the mother mentioned to the foster mother was previously ruled out as a caretaker. Further[,] the mother offered several times to have this sister drive her to pick up the child despite knowing that the sister is not allowed to drive the child.... She has not discussed any of the issues reported [to] the social worker or reported directly to the social worker about any of her visits. [¶] The mother has not demonstrated that she is ready to permanently care for this child.”
Due to a pending trial, the juvenile court continued the 18-month review hearing for two weeks, from late April to early May 2009, over the objection of minor’s counsel, who believed the child’s best interests were not served by additional delays. At the hearing, mother testified that while she completed an anger management class as part of her case plan, she did not believe “I ever had a problem with anger.” According to mother, in contrast with the paternal aunt’s information that mother and father had lived with her until mid-November 2008, mother testified she had last seen father in October 2008. She admitted she continued to engage in verbal arguments with him up to that time, but denied any physical altercations. Mother admitted she furnished her twin sister’s name instead of her own to a Metrolink conductor who confronted her for not paying her fare; she lied out of fear the incident would reflect poorly on her in A.’s dependency case. Mother could not remember whether she missed a meeting scheduled with the social worker to discuss the camera falling on her eye. Mother was not dating anyone at the time of the hearing, focusing instead on A.
The social worker testified that though mother had completed a parenting class and anger management and personal empowerment classes, the instructor for the latter two courses noted mother “had difficulty” with self-disclosure and in taking responsibility for her actions. The social worker remained concerned that, despite mother’s class attendance, issues of “[s]elf-disclosure, self-esteem, domestic violence, [and] anger management” remained problematic for mother and posed risks to A. The worker related that, even after months of conjoint therapy with father, the pair “still engaged in inappropriate, hostile conversation in my office in front of me to the point where we stopped the contact, and we had to separate her.” The worker worried, “[I]f it isn’t the father... that she would engage in a relationship with, it may be somebody else down the road.” Weeks before the hearing, the worker confronted mother about a bruise on her neck, which mother brushed off as a “hickey.” Mother had not disclosed any relationship to the worker. Mother did not report her first black eye in March 2008 to the worker, or the second one just before A.’s overnight visit in April 2009, and mother failed to show at a meeting scheduled with the worker to discuss the second black eye.
The worker opined that mother’s untruthfulness presented a risk factor for A. because “the agency cannot be there 24/7. We have to believe that when the child goes home with the parent, that the... child will remain in a stable, consistent home.” The worker noted the earlier occasion where SSA “actually went and verified the housing, but, in fact, three weeks later, [mother] was no longer [living] there but still meeting foster mother at that location.”
Following argument by counsel, the juvenile court concluded it could not safely return A. to mother’s care, terminated reunification services, and set the.26 hearing, which mother now challenges, joined by father.
II
DISCUSSION
Mother contends the juvenile court erred, at the conclusion of the 18-month review hearing, in scheduling a.26 hearing instead of returning A. to her care because “[t]here is not substantial evidence to show mother is in a current domestic violence relationship.” Father joins mother’s argument, asserting, “Nothing in the record supports a finding that mother is presently or potentially involved in a domestic violence relationship that places the child at risk.” The issue, however, was not proof mother was in the throes — or on the verge — of another domestic violence relationship. If that were the case, a parent who had exposed a child to domestic violence could simply avoid relationships during the period of supervision and regain custody of the child, only to repeat the cycle of violence upon entering a new relationship. Instead, the standard is whether the juvenile court reasonably “finds, by preponderance of the evidence, that the return of the child... would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a).) SSA bears “the burden of establishing that detriment,” but a parent’s failure to make “substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (Ibid.) The evidence amply supports the juvenile court’s finding it could not safely return A. to mother’s care.
Mother contends it is “undisputed” she “substantially completed her court order[ed] reunification plan.” She notes she was not required to repeat any of the classes she completed. But “simply complying with the reunification plan by attending the required... sessions and visiting the children... is not determinative. The court must also consider the parents’ progress and their capacity to meet the objectives of the plan; otherwise the reasons for removing the children out-of-home will not have been ameliorated.” (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.) Here, while mother completed much of her case plan by attending her required parenting, anger management, and empowerment classes, the juvenile court could reasonably conclude she failed to internalize the content of those classes. Specifically, her March 2008 black eye bore strong indicia of domestic violence, as she had just argued with father, he failed to accompany mother when she returned A. to the foster mother, and she burst into tears instead of denying the foster mother’s concern she had been injured in another domestic violence incident with father.
Mother maintains the injury occurred during a fight with another girl, A. was not present during the altercation, and SSA approved overnight stays with mother despite the incident. SSA’s approval, however, does not entitle a parent to whitewash all conduct preceding that approval, which, in retrospect, may have been granted in error. Even assuming the incident was “only” a street fight in response to catcalls, it demonstrated mother’s continuing inability to control her anger despite the classes she completed. Viewed in conjunction with the incident in the social worker’s office in which she had to be physically separated from father and the aunt’s information that mother hit, kicked, and tore at father in fights through November 2008, the juvenile court could reasonably conclude mother failed to learn to control her temper. Indeed, in the face of this evidence, the juvenile court could reasonably view mother’s denial that she “ever” had an anger problem as definitive proof she gained no insight in the classes she attended.
Mother’s lies also furnished the juvenile court with ample reason to doubt her actual progress on her case plan and to fear risk of harm to A. Mother protests her lie to the Metrolink conductor is no reason to declare her an unfit parent, but her untruthfulness was more pervasive than that, and directly linked to her care and custody of A. She lied about where she lived, which undermined SSA’s responsibility to ensure A. lived in a safe environment. She lied about not dating father after August 2008, when other evidence showed she continued to live — and physically fight — with him. She lied by minimizing the initial detention incident in which she and father engaged in a tug-of-war with A.’s limbs and pushed and tripped each other while holding A.
By lying this way, mother raised ample concern that in failing to grasp the seriousness of domestic violence or her own anger problems, she would not protect A. from either — just as she had failed to do so in the initial detention incident. Of particular concern, just as mother had skipped meeting with the social worker to discuss what any reasonable observer could conclude was domestic violence in March 2008, mother also missed her meeting to discuss her black eye allegedly caused by a camera. While SSA was not required to prove mother was engaged in a current domestic violence relationship, her pattern of lies, angry outbursts, and poor relationship choices furnished ample basis for the juvenile court’s observation “mother might be having a relationship with the person that could affect the child.” In sum, ample evidence supported the juvenile court’s conclusion mother had not made substantial progress on her case plan, justifying the court’s determination returning A. to mother’s care would be detrimental.
III
DISPOSITION
The petition challenging the juvenile court’s order setting the.26 hearing is denied.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.