Opinion
NOT TO BE PUBLISHED
San Diego County Super. Ct. No. NJ13308B-C
McDONALD, J.
PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Michael Imhoff, Juvenile Court Referee. Petition denied.
Gloria O. seeks review of orders terminating her reunification services and setting a Welfare and Institutions Code section 366.26 hearing regarding two of her children, Karina C. and Jose A. C. She contends the evidence is insufficient to support the court's finding that returning the children to her custody would cause a substantial risk of detriment to their well-being. We deny the petition.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 27, 2006, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of eight-year-old Karina and five-year-old Jose A. under section 300, subdivision (b) on the basis of domestic violence between Gloria and the children's father, Jose.
The social worker reported that in November 2005 and in January 2006 the Agency had received referrals regarding domestic violence between Gloria and Jose. Gloria was instructed to seek a restraining order, but she did not do so. Years earlier when Gloria's older daughter, Imelda M., was seven she told Gloria that Jose had molested her. Although Gloria accepted Imelda's account, she allowed Jose to continue to live in the home and had since accused Imelda of having an affair with him. The court ordered the children detained.
Gloria subsequently obtained a restraining order and said she wanted to participate in services and wanted no contact with Jose. After a hearing on April 10, 2006, the court found the allegations of the petition to be true, declared the children dependents of the court, ordered them placed in foster care, and ordered Gloria to comply with her case plan, which included domestic violence and parenting classes, a homemakers' program, a psychological evaluation, counseling and substance abuse testing.
The psychologist who completed Gloria's evaluation on May 11, 2006, concluded Gloria had little insight into how she had contributed to the problems in the home, tended to act without thinking and had difficulty tolerating stress. The psychologist recommended a psychiatric evaluation, parenting and domestic violence classes and therapy, and said, although Gloria had mental health issues, after 12 months of services and medication she should be capable of adequately caring for her children.
The social worker suspected Gloria and Jose were continuing to have contact with each other. Gloria began counseling and a domestic violence class, but the social worker said she continued to deny responsibility for the children's removal from her custody, appeared to be extremely suspicious and had problems with mental confusion, anger and anxiety.
At the six-month review hearing on November 14, 2006, the court continued services.
Gloria underwent a psychiatric evaluation on January 24, 2007. The psychiatrists who evaluated her said she did not appear to have a psychiatric illness. They did not recommend psychotropic medication, but concluded Gloria had limited insight into the issues surrounding the safety and protection of children. They expressed concern that she did not see Jose as a threat and did not fully understand that domestic violence and inappropriate sexual behavior have traumatic effects on children. They said Gloria could benefit from parenting classes if she acknowledged her shortcomings, but an acknowledgment could damage her self-esteem and lead to depression. They recommended medical care for her thyroid condition.
In March 2007 the social worker reported Gloria was attending therapy and beginning to trust her therapist. She was attending domestic violence classes and had begun taking medication for her thyroid condition. At the 12-month hearing, the court found she had made substantive progress and continued services.
In July 2007 the social worker reported Gloria and Jose were still in contact with each other and Jose wanted them to reconcile. Gloria had stopped attending domestic violence classes in May, and the class leader said she had not shown any insight into how her actions had caused a risk to the children and she did not accept responsibility for them being removed from her custody. Her therapist reported she had made some progress in being more open during therapy sessions and sometimes appeared to have gained insight, but at other times she regressed. She continued to decline responsibility for not protecting the children from domestic violence and for having neglected their needs.
At the 18-month hearing on July 9, 2007, after considering the Agency's report, the social worker's testimony and counsels' argument, the court found the Agency had offered or provided reasonable services and Gloria had made some progress, but it would cause a substantial risk of detriment to return Karina and Jose A. to her custody. The court terminated reunification services and set the matter for a section 366.26 hearing.
Gloria petitions for review of the court's orders. (§ 366.26, subd. (e); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
I
Gloria contends the evidence is insufficient to support the court's finding that returning Karina and Jose A. to her custody would create a substantial risk of detriment to them. She argues information from the psychiatrists' report on which the court relied was faulty because the psychological evaluation on which it was based was performed more than one year before the 18-month hearing. The Agency argues Gloria forfeited this argument because she did not raise it at the hearing.
Although Gloria did not bring her present contention to the juvenile court's attention during the hearing, we exercise our discretion to consider her argument and conclude substantial evidence supports the court's finding.
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.) "[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.)
Section 366.22, subdivision (a) provides in part:
"The court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child."
The court is required to consider the parent's past conduct as well as present circumstances. (In re Troy D. (1989) 215 Cal.App.3d 889, 900.)
Gloria has not shown the evidence is insufficient to support the court's finding that returning Karina and Jose A. to her custody would create a substantial risk of detriment to their well-being. The court's finding was not improperly based on outdated information. Indeed, the concerns the psychologist pointed out in her May 2006 report were reflected in the current report from Gloria's therapist. The therapist stated Gloria continued not to take responsibility for not protecting the children from domestic violence, and she had not acknowledged that there had been problems in her past care of the children or that she had neglected their needs. This information was similar to what the psychologist had reported in May 2006 when she said Gloria lacked insight into how she had contributed to problems in the family and the children's removal. It also reflected the psychiatrist's opinion that she did not have insight into what is appropriate and important for success in raising children in contemporary society. Further, although as Gloria argues, her therapist wrote she was "often clear and able to discuss issues in her life coherently and with some insight[,]" he also said these gains were inconsistent and the insights she expressed in one therapy session were often forgotten by the time of the next session.
In addition, Gloria appeared to have gained little from the domestic violence classes she attended. She stopped attending class in May 2007 and her instructor said she appeared unable to internalize the lessons taught, apply them to her own life, or acknowledge how she had contributed to the problems that caused a risk to the children. She continued to divert blame from herself, telling the Home Start social worker just a short time before the 18-month hearing that the children were not in her care because of relatives who had written letters to the court against her.
Also, there was evidence that Gloria was not able at the time of the hearing to provide stable housing for herself and the children. In November 2006 she reported she was being evicted from her condominium because she was not making her mortgage payments. Her therapist reported working with her to stabilize her living arrangements and separate from Jose. At the time of the 18-month hearing, the social worker reported Gloria was renting a room in a house and trying to find full-time permanent employment so she could afford an apartment for herself and the children.
Substantial evidence supports the court's finding that returning the children to Gloria's care would create a substantial risk of detriment to their well-being.
DISPOSITION
The petition is denied.
WE CONCUR: BENKE, Acting P. J., AARON, J.