Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Harry L. Jacobs, Commissioner. Super. Ct. No. JV27938A
William A. Davis, for Petitioner.
No appearance for Respondent.
James N. Fincher, County Counsel, and James B. Tarhalla, Senior Deputy County Counsel, for Real Party in Interest.
OPINION
Before Hill, Acting P.J., Kane, J., and Poochigian, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court’s order issued at a contested 12-month review hearing terminating her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her children, M., K. and P. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner and Alfredo, parents of M., K. and P., have a long history of domestic violence. In 2006, Alfredo, while under the influence of alcohol and crystal methamphetamine, beat petitioner with a thick belt and kicked her in the stomach after she tried to protect M. from him. At the time, M. was under the age of two and petitioner was pregnant with twins. According to petitioner, the assault caused her to miscarry one of the twins. The other twin, K., was born in early 2007.
Despite the miscarriage, petitioner stayed with Alfredo and in late 2007, she gave birth to P. In April 2008, she and Alfredo were married. In May 2008, Alfredo slapped petitioner in the face. She called the police but he cut the phone line. The police were dispatched to their home but did not arrest Alfredo. Petitioner stated the children were always present when she and Alfredo fought.
In June 2008, Alfredo was arrested for domestic violence after he hit petitioner twice in the face, resulting in a swollen lip. Again, petitioner was trying to defend M. after Alfredo shoved M. with his elbow and left a red mark on her back.
In August 2008, petitioner and then three-year-old M., one-year-old K. and seven-month-old P. were taken to a confidential women’s shelter. However, petitioner left the shelter with the children that same night and they were located at the home of a maternal cousin in Merced County a week later.
In the meantime, the juvenile court in Contra Costa County, where the family resided, ordered the children detained and issued protective warrants. The court also ordered petitioner and Alfredo to participate in individual therapy and domestic violence counseling and ordered Alfredo to participate in substance abuse treatment.
In September 2008, the Contra Costa juvenile court adjudged the children dependents and set the dispositional hearing for October 2008. At that time, petitioner and Alfredo stated they had no intention of continuing their relationship. Petitioner said she planned to live in Merced County where she has relatives and Alfredo said he had no intention of joining her there.
In December 2008, the juvenile court exercised dependency jurisdiction over the children, ordered them placed with a maternal relative in Merced County and ordered the case transferred to Merced County.
In January 2009, the Merced County juvenile court (juvenile court) accepted the case from Contra Costa County, ordered family reunification services to continue for both parents and set the six-month review hearing for July 2009. In May 2009, petitioner gave birth to Alfredo’s son, A.
In July 2009, the Merced County Human Services Agency (agency) reported on petitioner’s compliance with her court-ordered services. She was evaluated for but determined not to be in need of individual therapy. In addition, she was participating in weekly domestic violence counseling. However, she and Alfredo remained in contact and the agency opined she was conflicted about their relationship. Earlier in the month, petitioner told the social worker she and Alfredo argued at her home. They provided conflicting accounts of the circumstances surrounding his presence there. According to the agency, this was not the only incident suggesting they had contact.
The agency further reported petitioner demonstrated appropriate parenting skills during visitation and the children were attached to her. However, because of petitioner’s continuing contact with Alfredo and his lack of progress in his court-ordered services, the agency recommended the juvenile court not return the children to her custody but continue reunification services to the 12-month review hearing.
In July 2009, at the six-month review hearing, the juvenile court continued reunification services to the 12-month review hearing which it set for October 2009.
In its 12-month review of services, the agency recommended the juvenile court terminate petitioner and Alfredo’s reunification services and set a hearing to implement a permanent plan. The agency reported that, despite petitioner’s participation in domestic violence counseling, she allowed Alfredo to spend time with her in her home. When asked about the continuing contact, petitioner stated Alfredo had nowhere else to go and she did not want him to be homeless. For his part, Alfredo was challenging the need for the children’s detention and wanted paternity testing. He had heard one of the children was not his biological child.
The agency also reported there had been two incidents of domestic violence between petitioner and Alfredo since the six-month review hearing. In addition, petitioner was arrested in August for using credit cards that were stolen during a robbery involving her sister. She was charged with identity theft and unlawful use of a credit card and entered a plea of not guilty. As a result of petitioner’s arrest, A. was taken into protective custody and detained.
The 12-month review hearing was continued and conducted as a contested hearing in December 2009. Alfredo did not appear at the hearing. Petitioner’s position at the hearing was that there was no longer any threat to the children if placed in her custody because she and Alfredo were divorced and she had a permanent restraining order against him. Further, her attorney argued, she completed or could complete her domestic violence program by February 2010, the eighteenth month of reunification.
The social worker testified petitioner had an ongoing relationship with Alfredo and had two incidents of domestic violence while participating in domestic violence counseling. In addition, the children’s aunt and caretaker (aunt) told her just before the hearing that petitioner had been with Alfredo the prior two weekends.
The aunt testified U.M., a woman with whom petitioner lived, told her petitioner spent the previous two weekends with Alfredo. She further testified petitioner asked her not to testify and disclose that petitioner was seeing Alfredo.
Petitioner testified and denied telling the aunt she did not want her to testify. She said she spent the prior two weekends with a boyfriend named James. Petitioner said she and Alfredo were divorced and that the divorce was final in October 2009. In addition, she obtained a permanent restraining order against him in November 2009.
Petitioner further testified she began domestic violence counseling in October 2008 and completed 42 domestic violence classes. She learned how to protect herself and her children and how to respond to potentially violent situations. She also described incidents in May and August 2009 during which she had contact with Alfredo. She saw him in May at the hospital where she delivered A. Shortly thereafter, Alfredo went to her house where he struck her, pulled her hair, dragged her out of a closet and slapped her because he thought she was seeing another man. Petitioner told her domestic violence counselor about the incident but did not call the police. She told her social worker a week later. Petitioner saw Alfredo again in August, the day she was released from jail. Alfredo and petitioner’s mother picked her up after she was released from jail. Her mother drove them to petitioner’s sister’s house where Alfredo was staying. Petitioner left the house so as not to be in contact with Alfredo.
Lorena Alcasar, petitioner’s domestic violence counselor, testified she met petitioner in October 2008 when petitioner began counseling sessions. Ms. Alcasar supervised approximately five of the 42 sessions in which petitioner participated. She testified petitioner made great improvement and openly discussed the abuse she experienced as well as steps petitioner took to distance herself from Alfredo, such as obtaining a restraining order against him.
Following Ms. Alcasar’s testimony, the parties accepted an offer of proof that U.M. would testify she did not tell anybody that petitioner was with Alfredo during the preceding weekends.
At the conclusion of testimony and argument, the juvenile court acknowledged petitioner made progress in counseling but expressed its concern about the violent nature of her relationship with Alfredo and her continuing contact with him. In light of that, the court did not believe petitioner made sufficient progress to eliminate the detriment she posed to the children’s safety or to support a finding they could be returned to her custody by the 18-month review hearing in February 2010. Consequently, the juvenile court terminated petitioner’s reunification services and set a section 366.26 hearing.
Following the 12-month review hearing as to M., K. and P., the juvenile court exercised dependency jurisdiction over A. and ordered him placed in petitioner’s custody under family maintenance. This petition ensued from the setting order as to M., K. and P.
DISCUSSION
Petitioner challenges the sufficiency of the evidence to support the juvenile court’s findings that the children could not be returned to her custody without exposing them to a substantial risk of detriment and there was not a substantial likelihood they could be returned to her custody by the 18-month review hearing. As to the first, she contends the agency failed to disclose that she filed for divorce and obtained a restraining order. As to the latter, she contends the agency failed to rebut Ms. Alcasar’s testimony that petitioner made great strides In recognizing the dangers of domestic violence.
“On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) On this record, we conclude substantial evidence supports the juvenile court’s findings with respect to detrimental return and substantial probability of return.
When the juvenile court made its detriment finding, it was aware petitioner was divorced and had a permanent restraining order against Alfredo. The fact that petitioner, rather than the agency, introduced this evidence does not affect the court’s ultimate finding. The court expressed its concern about the domestic violence in petitioner’s relationship with Alfredo. Undoubtedly, it decided the severity of the violence and petitioner’s continuing contact with him negated any protection their divorce and the restraining order might provide. That being the case, returning the children to petitioner’s custody would, as the court properly found, place the children at a substantial risk of detriment.
Further, Ms. Alcasar’s unrefuted testimony that petitioner made progress in domestic violence counseling does not undermine the juvenile court’s finding there was not a substantial probability of return. In assessing whether there is a substantial probability of return, the juvenile court must consider the parent’s capacity to meet the objectives of the case plan and provide a safe home for the child. (§ 366.21, subd. (g)(1)(C).)
In this case, the juvenile court had ample reason to question petitioner’s ability to provide for the children’s safety. Despite more than a year of domestic violence counseling, petitioner had contact with Alfredo throughout the reunification period with violent results. Further, though she initiated the divorce and a restraining order, she did so late in the process and, given her continuing contact with Alfredo, it appears she did so to bolster her case that she could protect the children. Finally, her testimony that she spent her latest weekends with James rather than Alfredo, was not credible in light of the aunt’s testimony she spent them with Alfredo. Given the volatility of petitioner’s relationship with Alfredo, her choice to continue it despite counseling and the potential dire consequences, there is no reason on this record to conclude the children could be returned to petitioner’s custody with continued services. Accordingly, we find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.