Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for a writ of mandate. Los Angeles County Super. Ct. No. CK62532. (Stanley Genser, Court Commissioner)
Law Offices of Alex Iglesias, Steven D. Shenfeld, and Michelle Robel for Petitioner.
No appearance for Respondent.
SUZUKAWA, J.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Real Party in Interest.
At the 18-month review hearing, the dependency court terminated reunification services and set the matter for a permanency planning hearing under Welfare and Institutions Code section 366.26. H.C., mother of the dependent children Mia W. and Michael W., has petitioned for extraordinary writ review of the order setting the section 366.26 hearing. (Cal. Rules of Court, rule 8.452.) She challenges the sufficiency of the evidence to support the factual finding that returning the children to her custody would create a substantial risk of detriment to their safety or well-being. (§ 366.22, subd. (a).) We conclude that the finding is supported by substantial evidence, and deny the requested relief.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
On February 25, 2006, Inglewood Police Officers responded to a suspected child abuse report at the home of H.C. and her boyfriend, Jerome W., where neighbors had heard a loud and violent altercation. Mia, age three, and Michael, age two, were taken to the emergency room for treatment of multiple bruises, cuts, and abrasions, both new and old, covering 80 percent of Mia’s body and 60 percent of Michael’s body. The police determined that Jerome had beaten the children with his hands and belt, and that H.C., who was also beaten by Jerome, had known about the abuse but failed to protect them. Both H.C. and Jerome were arrested. Jerome was convicted and sentenced for child abuse; H.C. was convicted of child endangerment and received a 180-day jail sentence. (Pen. Code, § 273a.)
Given that neither Jerome nor Michael W., the children’s biological father who is incarcerated, is a party to this appeal, we will not describe their involvement in this case.
The Los Angeles County Department of Children and Family Services (the Department) immediately detained the children, who were placed in the home of paternal relatives, Mr. and Mrs. S., where they currently reside and have resided for almost this entire case. On March 1, 2006, the Department filed a section 300 petition. On July 5, 2006, the dependency court sustained the amended petition under subdivisions (b) (failure to protect) and (g) (unable to care for the children). The dependency court ordered that the Department provide H.C. with reunification services, including a 52-week domestic violence program, parenting courses, individual counseling, and monitored visits.
After H.C. was released from jail on September 11, 2006, she began visiting the children. After the first two monitored visits, however, the children displayed major posttraumatic stress disorder symptoms that their therapist, Dr. Anita Gray, attributed to the fear aroused by their renewed contact with H.C. Dr. Gray recommended a temporary suspension of visitation because their “mother’s presence is a symbol of recall and reminder of certain aspects of the abuse and an increase arousal of fear, hyper-vigilance, hyper-arousal, i.e. recollections, painful memories, causing major impairment in the minor W[.] children’s day to day functioning.” The Department reported that, in addition to being beaten by Jerome, Mia had described being whipped by her mother and held down by her mother while Jerome was beating her.
Accordingly, the Department suspended H.C.’s visits from November 2006 to February 2007. The Department’s November 29, 2006 report for the six-month review hearing stated that the children “have been improving since the visits were suspended and mother only calls twice [a] week.”
The November 2006 six-month hearing was continued and, during the interlude, monitored visitation resumed in February 2007. On March 7, 2007, Dr. Gray reported that the visits were “much better” and the children were happy to see their mother. At the continued six-month hearing on March 16, 2007, the dependency court extended H.C.’s reunification services and set the matter for a combined 12- and 18-month review hearing on August 9 and September 13, 2007. (§§ 366.21, subd. (f), 366.22.)
In May 2007, however, H.C. suffered mental health problems that required brief hospitalization for depression and her claim she was hearing voices. A July 17, 2007 letter from her physician stated that she was diagnosed with “Major Depressive Disorder, Recurrent, and Polysubstance Dependence,” for which she was prescribed “Zoloft/Sertraline 100 mg., Risperidol 3 mg., Trazdone 50 mg.” A September 12, 2007 follow-up letter stated that H.C.’s “treatment and progress are characterized by a general instability involving depressive and psychotic symptoms. These symptoms have subsided, and she appears to have achieved stability over the last two months, August and September 2007. Miss C[.] did experience one emergency episode on May 14, 2007. [¶] It is strongly recommended that Miss C[.] continue treatment and compliance with medication regimens. She should participate in treatment regularly with her current case manager . . . .”
Before the August 9, 2007 12-month review hearing, H.C. informed the social worker that despite beginning unmonitored visits in July 2007, she still needed more time and was not ready to regain custody. According to the Department’s August 9, 2007 report, “during the months of May and June, mother stated to CSW Mangold that she needs more time and feels that she and the children need more therapy. Mother has not had the children in her care for over a year. The children have a history of behavior problems and flashbacks after family circumstances have changed. Mother recently started unmonitored visitation with the children on 7/21/2007. Mother’s visitation was suspended for a period of time due to the children’s behavior regressing and having flashbacks. Visits were reinstated on 3/16/2007. Mother’s visitation with the children was gradual to attend to the children’s needs. Since visitation was reinstated, the visitation has gone well and the children’s behavior has been normal, despite the anxiousness while speaking on the telephone. The children need to have more unmonitored visits and eventually over night visits before the Department can recommend that the children be returned to mother.”
Before the September 13, 2007 18-month review hearing, the Department informed the dependency court that because reunification would pose a “high risk” of detriment to the children, reunification services should be terminated at the 18-month review hearing and a permanent plan hearing date should be set under section 366.26. The Department based this recommendation on Dr. Gray’s August 8, 2007 report stating that the children should be placed in a permanent home because of H.C.’s inability to care for them. Dr. Gray reported that although H.C. had made a “good effort” to reach out to her children, H.C. was plagued by personal issues and “has not developed the insight, level of appropriate parenting skills, and the basic knowledge concerning the severity of the child abuse that has impacted her minor children.” H.C. “has been unable to, and has not demonstrated the emotional stability, stamina, and strength to properly care for the minors all by herself. Also, [H.C.] has had some fluctuating thoughts on her ability to take a full time mother-child role. [H.C.] appears to have good intentions regarding her children’s well being, but it will be extremely difficult for [her] to manage or proceed alone with her children one-on-one with the young children[’s] overwhelming needs.”
On September 6, 2007, Dr. Gray provided an updated assessment, which stated that H.C. “is not stable enough, nothing has changed. Michael doesn’t really want to be with her.” Dr. Gray reported that H.C. was not utilizing her parenting course training and that no overnight visits should be allowed until after Dr. Gray has talked with the children. According to Dr. Gray, H.C. “did not respond appropriately to Michael” and “cannot answer simple questions.” Dr. Gray stated that the children fight with and hit H.C., who still “has a lot of anger in her. She needs to stay in parenting and do conjoint visits. Mother has stated that maybe she should wait till the kids are 9 and 10 years old to get them back.”
By the September 13, 2007 18-month review hearing, H.C. had not started overnight visits with the children. She was regularly attending weekly visits that were unmonitored, but lasted only four hours. The social worker who handled this case since March 2006 testified that it would be unsafe for H.C. to regain custody because she “has only been stable for the last two months, as reported in the report from the psychiatrist.”
H.C., on the other hand, requested that the children be returned to her custody. She testified as follows. She sees her psychiatrist, attends therapy three times a week, and consistently takes her medications. She visits the children once a week for four hours and speaks with them on the phone every day. She lives at Haviland House, a sober living facility, where the children may visit and stay overnight but only on weekends. If the children were returned to her, they could live with her at Ocean View Sober Living. On cross-examination, H.C. first denied but then admitted bringing Eric, whom she met at an Alcoholics Anonymous meeting, to a recent visit with the children.
The Department argued against returning the children to H.C., contending that according to Dr. Gray, H.C. lacks the stability to care for them and meet their special needs. The Department pointed out that H.C. was recently hospitalized in May 2007 for a psychotic episode that involved hearing voices. The attorneys for both the children and their biological father agreed that the evidence was sufficient to show that H.C. was incapable of caring for the children.
H.C.’s attorney replied that H.C. was ready to resume custody because of her participation in court-ordered programs for domestic violence, individual counseling, and parenting, and her regular and successful visitation with the children. Counsel argued that H.C. “has been stable. She has a place to live with the children. The children are comfortable enough during the visits.”
The dependency court determined that, based on the evidence, there was a substantial risk that it would be detrimental to return the children to H.C. at this time and that, because the maximum reunification period had expired, no further reunification services could be granted. The dependency court stated: “Court has reviewed the reports from the Department as well as from the Mother’s treating doctors. Although Mother is participating in the treatment program, I don’t believe she’s emotionally or mentally ready to care for the children. The reports indicated that she’s not stable yet. And it would be detrimental to the children to return them to her care full time at this time and we’ve run out of time. So, although Mother is in substantial compliance with participation [in] the treatment program, it would still be detrimental to return the children to her care in light of Mother’s history and current reports on her current mental status.” The dependency court terminated reunification services and set the matter for a section 366.26 permanency planning hearing.
DISCUSSION
H.C. challenges the sufficiency of the evidence to support the dependency court’s factual determination that returning the children to her custody would create a substantial risk of detriment to their safety and well-being. The contention lacks merit.
Under the statutory scheme, the dependency court must return a child to the parent at the 18-month review hearing unless it finds, by a preponderance of the evidence, that this would create a substantial risk of detriment to the child’s safety, protection, or physical or emotional well-being. (§ 366.22, subd. (a).) Given the statutory presumption that a child will be returned to the parent at the 18-month hearing, the Department bears the burden below to establish a substantial risk that returning the child would be detrimental to the child’s safety and well-being. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789.) H.C. points out that this “standard, while vaguely worded to be sure, must be construed as a fairly high one. It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.” (Ibid.)
At the appellate level, we apply the substantial evidence standard in reviewing the dependency court’s factual finding of detriment. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) “When we review a sufficiency of the evidence challenge, we may look only at whether there is any evidence, contradicted or uncontradicted, which supports the trial court’s determination. We must resolve all conflicts in support of the determination, and indulge in all legitimate inferences to uphold the court’s order. Additionally, we may not substitute our deductions for those of the trier of fact. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re John V. (1992) 5 Cal.App.4th 1201, 1212.)” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
In this case, the record contains substantial evidence to support the dependency court’s determination that because H.C. had suffered from depression and psychotic symptoms shortly before the 18-month review hearing and had not attained sufficient stability to care for her children, there was a substantial risk that returning them to her custody would be detrimental to their safety and well-being. H.C.’s brief does not address this pivotal issue or attempt to refute the evidence, particularly Dr. Gray’s reports, supporting the dependency court’s determination on this point. Instead, H.C. attempts to recast the dependency court’s concern by arguing that “[t]he primary issue in this case seems to be the distress the children might experience if returned to Petitioner at her sober living home.” That was not the case. The primary issue, both below and in this writ proceeding, is not whether the children would be unhappy if returned to their mother, but whether H.C. is sufficiently stable, both mentally and emotionally, to safely take custody of them. Although H.C. has made serious efforts to comply with the reunification program, the evidence is overwhelming that, at this time, she lacks sufficient emotional and mental stability to adequately care for her children’s needs. Accordingly, the finding that returning the children would create a substantial risk of detriment to their safety and well-being is supported by substantial evidence.
DISPOSITION
The petition is denied.
We concur: EPSTEIN, P. J., WILLHITE, J.