Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Deborah A. Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition denied. Super.Ct. Nos. J208011, J208009 & J208010
Monica Cazares for Petitioner.
No appearance for Respondent.
OPINION
Gaut, J.
Ruth E. Stringer, Acting County Counsel, and P. Joanne Fenton, Deputy County Counsel, for Real Party in Interest.
Petitioner E.S. (mother), mother of T.B. (age 8), Christopher S. (age 6), and Yasmine S. (age 4), filed this writ petition challenging an order, rendered at a 12-month review hearing, setting a hearing for the selection and implementation of a permanent plan for the children at a 12-month review hearing. Mother contends the juvenile court abused its discretion in finding there was not a substantial probability the children could be returned to her custody within the next six months, and in finding that visitation was detrimental. We deny the petition.
BACKGROUND
On May 1, 2006, a social worker for the San Bernardino County Department of Children’s Services (DCS) was called to Key Stone Elementary School regarding suspected physical abuse of T.B., who came to school with a black eye swollen to the size of a tennis ball, and other bruising on his arms, lower and upper back, and legs. The bruises on his arm bore the shape of a hand print. T. was afraid to go home because he had received low marks for behavior at school and his stepfather Jason S. (the presumed father of Christopher and Yasmine) would “whoop” him. Christopher also had bruises to his back and legs, with a loop mark consistent with his description of being struck with a belt.
T. was later taken to the hospital for examination where the bruising on his body was described as excessive, including additional bruising found on his genitals. The parents provided explanations for the bruising which was inconsistent with the nature and extent of the bruising. T. indicated there had been blood in his urine and eventually disclosed that his stepfather beat him. Subsequent examinations and interviews revealed Christopher had also been beaten with a belt. All three children were detained.
The second amended dependency petition alleged mother and Jason S. physically abused all three children by striking them with their hands, fist, and belt (Welf. & Inst. Code, § 300, subd. (a) ), and failed to protect T. from abuse by Jason S., or obtain medical care for his injuries. (§ 300, subd. (b).) The petition also included an allegation that T.’s father was imprisoned and had left him with no provision for support. On June 29, 2006, after mediation, mother and father Jason S. submitted on the social worker’s report and true findings were made respecting the amended petitions. The children were removed from parents’ custody, placed in the custody of DCS, and maintained in their relative placement with the paternal aunt and paternal grandmother with supervised visitation for mother and all three children. Jason S. was found to be the presumed father of Christopher and Yasmine, and he was granted supervised visitation with them, but was ordered not to have contact with T.
All further references are to the Welfare and Institutions Code unless otherwise indicated.
The mother completed her case plan, and attended visits with her children. However, throughout the dependency, the children were fearful of the visits and afraid to return home. Mother blamed relatives for the children’s behavior problems. By February 8, 2007, the date of the six-month review hearing, DCS informed the court that visitation was not going well between mother and the minors, and the children’s fear resulted in an order that visitation occur in a therapeutic setting. Several visits took place during therapy which led to the therapist’s opinion that visitation was detrimental. The expert noted that while most children are forgiving of trauma sustained at the hands of parents, these children are not; they exhibited fear of both parents and stated a desire not to visit mother.
The therapeutic visits did not go well. After the first two visits, Christopher’s acting out at school escalated, and the episodes occurred every Monday for his family therapy session with his mother. His behavior, including throwing chairs across the classroom, made him a danger to be around. At the next visit, all the children confronted mother about her abuse of them and withdrew from interacting with her; mother’s response was to point out she did not get mad. Subsequently, each of the children informed mother they did not want to see her anymore. The therapist assured the children their request would be honored. Based on this information, on June 1, 2007, the court found visitation was detrimental, and suspended visits upon DCS’s ex parte request.
At the contested 12-month review hearing (§ 366.21, subd. (f)), mother’s reunification services were terminated, visitation was formally terminated, and the case was referred for a selection and implementation hearing. (§ 366.26.) The children had remained in the relative placement and their behavior had improved since the cessation of visits, although the children still needed therapy. Mother was still living with Jason S., and the children were still fearful of visiting with mother and stated they did not want to live with her. All parties stipulated that the court would conduct a hearing in 60 days to address the issue of the suspension of visitation as to the mother.
While DCS acknowledged that mother had completed her reunification plan, it also indicated she was still living with her husband, Jason S., who was responsible for the injuries to the children, and as to whom there was still a no contact order. Jason had not completed a service plan and his reunification services had been terminated at the six-month review hearing. However, on his own, he did take a parenting course, as well as a class in CPR. The therapist recommended against returning the children to the mother because the children were currently at the same place emotionally that they were in a year earlier and the probability of safely returning the children to the mother in six months was slim.
After terminating services and visitation (subject to the parties stipulation), the court found by a preponderance of the evidence that custody by a parent continues to be detrimental to the children and that return of the children to the mother would create a substantial risk of detriment to their safety protection or physical or emotional well being. While it found mother’s progress was moderate, it expressed grave concerns about the fact the mother and Jason remained together. The court also considered whether there was a substantial probability of return within the time frames. Since the statutory time for a further review hearing would have to occur in mid-October, approximately 60 days from the date of the 12-month review hearing, and given the finding of detriment as to visitation and mother’s lack of understanding of how her continued relationship with Jason S. impacts the children, the court determined there is not a substantial probability of return within the statutory time frames.
Mother filed a notice of intent to file writ petition.
The father of Christopher and Yasmine, Jason S., also filed a notice of intent to file a writ petition, but his counsel wrote a letter to the court informing us there were no issues on which to base a petition, so his petition was dismissed.
DISCUSSION
a. Standard of Review
Although mother frames her challenges as relating to an abuse of discretion in finding there was not a substantial probability of returning the children to her custody within the statutory time frame, and in finding that visitation was detrimental, she is actually asking us to review the sufficiency of the evidence to support the factual findings that are the basis for the court’s orders.
We review the juvenile court’s findings of fact under the substantial evidence test, which requires us to determine whether there is reasonable, credible evidence of solid value to support the order. (In re Brian M. (2000) 82 Cal.App.4th 1398; Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470.) In so doing, we must resolve all conflicts in support of the court’s determination and indulge all legitimate inferences to uphold the court’s order. If substantial evidence exists, we must affirm. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020-1021.) Whether the court made the correct decision based upon its findings of fact is reviewed under the abuse of discretion standard. (In re Brian M., supra, at p. 1401, fn. 4; In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068.)
b. Substantial Evidence Supports the Court’s Finding There Was Not A Substantial Probability of Return of the Children Within the Statutory Time Frame.
Section 366.21 requires that a permanency hearing be held no later than 12 months after the date the child entered foster care. If the child is not returned to the parent at this stage, the court may continue the case for up to six months “only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian.” (§ 366.21, subd. (g)(1).) Mother does not challenge the adequacy of reunification services, so we must determine if the court erred in impliedly finding there is not a substantial probability that the children will be returned to mother’s custody and safely maintained in the home within the extended period.
We start with the premise that “[t]he fact [a parent] satisfied the requirements of the reunification plan does not mean she was entitled to custody of the minor regardless of the substantial risk of detriment that reunification would have on the minor’s emotional well-being.” (In re Joseph B. (1996) 42 Cal.App.4th 890, 901; see also In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143 [“simply complying with the reunification plan by attending the required therapy sessions and visiting the children . . . is not determinative.”].) To the contrary, mother must establish that the children would be returned to her custody and safely maintained there within the extended period. Given her ongoing relationship with Jason S., and his failure to address the causes of the dependency, there is no reason to believe the children will be returned to mother’s custody within the extended period, and less reason to believe they could be safely maintained there.
The social worker’s reports acknowledged that mother had completed most if not all of the requirements of her reunification plan. However, the record is replete with references to the children’s fear of both mother and her husband, Jason. Jason did not participate in services during the regular reunification period, although he did complete a parenting and a first aid course after he was released from incarceration. However, there is nothing in the record to show he has addressed his propensity for excessive discipline, or to show he understands the affect of his violent tendencies on his young stepchildren, or to show that he has overcome any of the causes that led to the dependency. There was nothing in the record to support an inference the children could be safely returned to mother’s custody within the statutory time frames.
Mother’s argument that services should have been continued for an additional six months focuses on her regular visits and her progress in resolving the problems that led to the children’s removal. However, she does not acknowledge the risk to the children posed by her relationship with Jason, who had not resolved any of the problems that led to removal of the children. Mother was unable to protect the children from Jason prior to their removal; so long as mother remains in the same home with Jason, there is a substantial risk of serious physical and emotional harm to the children if they were returned to her care, and no evidence this risk would be abated within the next six months.
Thus, even if mother had made acceptable progress, the opinions of the therapist and social worker must be considered in light of the inherent risk of returning the children to a home that mother shares with the person responsible for beating her children. There is substantial evidence to support the court’s finding of detriment at the 12-month review hearing and the determination that the children could not be returned within an additional period of time. The termination of services and referral for selection and implementation of a permanent plan was not an abuse of discretion.
c. Mother’s Challenge to the Suspension of Visitation Lacks Merit.
Mother challenges the juvenile court’s finding that visits were detrimental. However, at the review hearing, the parties agreed that the issue would be reexamined 60 days hence, so the court was not required to rule on mother’s challenge. The issue appears to have been waived by the stipulation, or, at a minimum, rendered moot by the agreement to consider the issue at a later date. An argument not raised in the juvenile court is waived. (In re K.D. (2004) 124 Cal.App.4th 1013, 1018-1019.)
However, there are two additional problems with mother’s challenge: First, the actual finding of detriment and suspension of visits were made by an ex parte order entered on June 1, 2007, and no appeal was taken from that order. The minute order of the nonappearance review hearing indicates email notification was provided to all parties of the intended request to suspend visitation. More than 60 days has elapsed since the suspension of visits. (Cal. Rules of Court, rule 8.400(d)(1).)
Second, there is ample evidence in the record to support the trial court’s finding that visitation was detrimental. The therapist reported that the children consistently manifested extreme anxiety before, during, and after visits, and all of the children expressed a desire to stop the visits. While we do not subscribe to the theory that visitation may be dictated by the children (see In re Julie M. (1999) 69 Cal.App.4th 41, 51), we do feel the child’s desires, in light of manifested anxiety and emotional trauma, can be a dominant factor. (See In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138.) The record of the children’s fear of mother establishes substantial evidence to support the detriment finding necessary to suspend visitation. (See In re Mark L. (2001) 94 Cal.App.4th 573, 581.)
DISPOSITION
The petition is denied.
We concur: Hollenhorst, Acting P. J., Miller, J.