Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ112128. Christian F. Thierbach, Judge.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Julie E. Braden, under appointment by the Court of Appeal, for Minor.
OPINION
HOLLENHORST, J.
Appellant O.S. (mother) appeals from a juvenile court’s order terminating reunification services with regard to her son, Angel (the child). She argues that the order should be reversed because: 1) the Riverside County Department of Public Social Services (the department) failed to provide proper notice that it changed its recommendation; 2) the court failed to provide a factual basis for the order; and 3) there was insufficient evidence to support the order. We affirm.
Counsel for the child filed a brief on November 29, 2007, joining in the department’s arguments and requesting this court to affirm the juvenile court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
On May 16, 2006, the department filed a petition on behalf of the child, who was 21 months old at the time. The petition alleged that the child came within Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). Specifically, the petition alleged: 1) mother engaged in acts of domestic violence in front of the child with her live-in boyfriend (the boyfriend), which resulted in her arrest on May 14, 2006; 2) the child’s father (father) did not live with the child, had never seen him, and did not consistently pay child support; and 3) mother was currently incarcerated and was unable to arrange for the care and support of the child. A social worker who interviewed mother reported that mother was the aggressor in a fight with her boyfriend. According to mother, her boyfriend pushed her, and she fell down. She then scratched his back “really hard” because she was upset. Mother added that they had another incident about three weeks prior, when her boyfriend slapped her on the face. Both mother and the boyfriend minimized their fights and were not concerned about exposing the child to domestic violence. The social worker also spoke with father, who said he left mother when she was pregnant because they could not get along. He said she had a quick, hot temper.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
Father is not a party to this appeal.
At the detention hearing, mother’s counsel informed the court that mother was no longer incarcerated. The court thus found no prima facie evidence of the section 300, subdivision (g), allegation. The court detained the child in foster care and ordered reunification services pending further hearing.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on June 8, 2006, recommending that mother and father (the parents) be provided with reunification services. The social worker reported that mother understood she needed to complete a service plan, and that she was willing to attend a domestic violence program and a parenting class. The social worker attached mother’s case plan to the report. The case plan requirements included participating in a 52-week domestic violence program, participating in individual counseling, and completing a parenting education program.
The social worker filed an addendum report on August 8, 2006, noting that mother had recently begun her services. She had been on a waiting list for an anger management program since June 8, 2006, since there were currently no Spanish-speaking classes available. Mother started participating in individual counseling, and planned to start a parenting class on August 9, 2006.
A contested jurisdiction hearing was held on August 10, 2006. The department recommended reunification services be provided to the parents. The court found true the allegations in the petition under section 300, subdivision (b), but dismissed the subdivision (g) allegation. It then adjudged the child a dependent of the court and approved the case plan. The court also warned the parents that if it was unable to place the child with one of them at the end of six months, the court could set a hearing to terminate their parental rights and release the child for adoption.
Six-month Status Review
The social worker filed a six-month status review report on January 5, 2007, recommending that mother (and father) receive another six months of reunification services. The social worker noted that mother had completed a parenting class and anger management class, and was participating in individual counseling and a domestic violence program. Mother was diagnosed with a depression disorder, and was reportedly making progress in counseling. Mother admitted that she needed additional time to complete her case plan and was cooperative. However, the social worker was concerned by information received that mother remained involved with the same boyfriend.
In an addendum report filed on February 23, 2007, the social worker continued to recommend that services be extended for six months. The social worker attached a report from mother’s therapist regarding her concern about mother’s failure to take responsibility for the domestic violence. Mother did not understand the gravity of the effects of domestic violence on the child. In addition, two anonymous relatives reported that mother continued to be abusive toward her boyfriend, even though mother claimed she had not had contact with him for the past several months. The social worker expressed her concerns for the safety of the child if he were returned to mother’s care, based upon the serious issues at hand. The social worker stated that mother had difficulty controlling her anger and had denied her use of violence; mother also assumed the role of the victim.
A contested review hearing was held on February 27, 2007. There was a request to continue the matter since father’s attorney was not present in court. In addition, the department’s counsel informed the court that counsel for the child was requesting termination of services to mother. The court ordered all parties to return to court on April 9, 2007. The court informed parents that there was a possibility reunification services would be terminated at the next hearing. The court specifically addressed mother and said it was very concerned because she did not seem to understand the seriousness of her offense. The court noted that mother said she was not seeing her boyfriend, yet she was pregnant with his baby. The court then told mother that it would terminate her services (if the matter continued to be before it); however, mother would be before another court at the next hearing. The court warned mother that she had to make some substantial changes, or the next court would very likely terminate her services. Mother confirmed that she understood.
At the contested hearing on April 9, 2007, counsel for the department initially stated that it was submitting on its review reports filed on January 5, 2007, and February 23, 2007, and that it was recommending continued services for mother. The department’s counsel then said, “And at this time, Your Honor, the Department is changing its recommendation. . . . At the last hearing, minor’s attorney did put mother on notice that she was going to be asking for termination of reunification services.” The department’s counsel asked the court to terminate services for mother, but continue services for father. Mother’s counsel responded that it was her understanding that the child’s counsel was asking to terminate mother’s services at that time, but argued that mother had completed a parenting class, that she, at times, successfully participated in an anger management program, and that she was participating in individual counseling. Mother’s counsel concluded that mother had been consistently visiting the child and participating in services, and that she was pregnant; counsel then argued that, in those circumstances, the court could find a substantial probability that mother could benefit from her services within six months and perhaps share custody of the child. The department noted that, although mother was participating in her plan, she continued to have a relationship with the boyfriend with whom she had had domestic violence disputes. Counsel for the department explained that the department changed its recommendation because mother was not benefitting from services. Mother continually lied to her therapist and to the department’s counsel by denying her relationship with her boyfriend. However, the department had information that mother was pregnant with the boyfriend’s baby, that she lived with the boyfriend, and that he was appearing at visits with the child. Counsel for the child added that mother said that the boyfriend lived in Northern California, but then claimed she did not know where he was. The child’s counsel also stated that mother’s therapist said mother consistently lied in therapy, and saw herself as the victim, when she was the aggressor. Mother’s counsel responded that she was not asking for placement that day, but rather for continued services. She confirmed that mother did communicate with the boyfriend and was pregnant with his child, but she denied living with him. Based upon the social worker’s reports and the arguments presented at the hearing, the court found that return of the child to the custody of the parents would create a substantial risk of detriment to the child’s well-being. The court found that mother’s progress in her case plan was unsatisfactory, in that she failed to make substantive progress or complete the plan. The court continued father’s services, but terminated mother’s services under section 361.5, subdivision (a)(2).
ANALYSIS
The Court Properly Terminated Mother’s Reunification Services
Mother contends that the juvenile court’s order terminating reunification services should be reversed for several reasons. We disagree.
A. Any Error by the Department in Failing to Notify Mother of Its Changed Recommendation Was Harmless
Mother contends that the order terminating her reunification services should be reversed because the department failed to provide the required statutory notice of its changed recommendation. The department concedes that it did not comply with the notice requirements of section 366.21, subdivision (c). However, it argues, and we agree, that any error was harmless, since mother had notice that her services may be terminated.
Section 366.21, subdivision (c) provides, in relevant part, “[i]f the recommendation is not to return the child to a parent or legal guardian, the report shall specify why the return of the child would be detrimental to the child. The social worker shall provide the parent or legal guardian, counsel for the child, and any court-appointed child advocate with a copy of the report, including his or her recommendation for disposition, at least 10 calendar days prior to the hearing.”
“Errors in notice of dependency proceedings do not automatically require reversal; instead, we assess such errors to determine whether they are harmless beyond a reasonable doubt. [Citations.]” (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1419 (Sabrina H.).) Here, the department recommended that mother’s reunification services be continued for another six months, in its reports filed on January 5, 2007, and February 23, 2007. A contested review hearing was held on February 27, 2007, and counsel for the department informed the court that there was a request to continue the matter since father’s attorney was not present in court, and that counsel for the child was requesting services to parents be terminated. The court ordered all parties to return to court on April 9, 2007. Significantly, the court informed mother that it was very concerned because she did not seem to understand the seriousness of her offense. The court noted that mother was pregnant with her boyfriend’s baby, even though she denied seeing him. The court then warned mother that she had to make some substantial changes, or the next court would very likely terminate her services. Mother confirmed that she understood. Thus, mother was made fully aware that counsel for the child was seeking termination of mother’s reunification services and that it was likely that her services would be terminated if she did not change.
At the continued hearing, which was held approximately six weeks later, the department orally changed its recommendation to termination of services. Mother’s counsel acknowledged that she knew the child’s counsel was going to request termination of services at that hearing. Thus, although the department failed to comply with the notice requirements of section 366.21, mother cannot demonstrate that she was prejudiced by the department’s noncompliance. She had notice from the previous hearing that her services could be terminated, and thus had more than the statutorily required amount of time to prepare her case accordingly.
Mother claims that the court’s warning at the February 27, 2007, hearing was “somewhat confusing” and that the court did not specify the nature of the substantial changes it thought she should make. However, the record shows that the court clearly warned mother of its concern that, although she claimed she was not seeing her boyfriend, she was pregnant with his child. The court then told her that she would have to make substantial changes or she was “very likely to have services terminated.” Rather than expressing that she was confused by the court’s warning, mother confirmed that she understood.
Mother further asserts that the department’s counsel never stated that the department was going to ask for termination of her services. We fail to see how that would have made any difference. Mother had notice that the child’s counsel was requesting termination of her reunification services, and the court warned her accordingly. Despite the notice and warning, mother continued in her relationship with her boyfriend. Mother apparently would not have acted any differently, even if the department had stated its intention to recommend termination of services.
Mother also claims that the court ordered the department to prepare another addendum report before the April 9, 2007, hearing, but the department failed to do so. She cites the clerk’s transcript to support this contention. While the clerk’s minute order from the February 27, 2007, hearing reflects that the court ordered the social worker to provide an addendum for the next hearing, the reporter’s transcript shows that no such order was made. It is well settled that when there is a discrepancy, the oral pronouncement prevails over the minute order. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Price (2004) 120 Cal.App.4th 224, 242.)
Additionally, mother contends we should deem noncompliance with section 366.21, subdivision (c) as structural error, requiring per se reversal. She cites Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 (Judith P.), in support of her position. In Judith P., the juvenile court, at a status review hearing, terminated the mother’s reunification services and denied her request for a continuance and a contested hearing. (Id. at pp. 543-544.) The appellate court held that the child welfare agency’s failure to serve the mother with the hearing status report at least 10 days before the status review hearing as required by statute “constituted structural error, requiring per se reversal because it prevented mother from preparing her defense. [Citation.]” (Sabrina H., supra, 149 Cal.App.4th at p. 1420, fn. omitted.)
The facts of Judith P. are distinguishable from the facts in this case. Judith P. involved an order terminating services and denial of requests for a continuance and contested hearing. The Court of Appeal stated: “It is fundamentally unfair to terminate either a parent’s or a child’s familial relationship if the parent and/or child has not had an adequate opportunity to prepare and present the best possible case for continuation of reunification services and/or reunification.” (Judith P., supra, 102 Cal.App.4th at pp. 557–558.) In the instant case, mother did not request a continuance based on the department’s changed recommendation, and the court accordingly did not deny her a contested hearing on the issue of the department’s recommendation. In fact, the court informed the parties that it was inclined to follow the amended recommendation, and that if mother wanted to contest that decision, it would be happy to accommodate her. Mother’s counsel stated, “She does wish to contest that, but it’s through my argument that she is contesting that.” Mother’s counsel presented her argument against termination of services, but did not argue that the department’s changed recommendation was without notice. Therefore, we decline to apply the Judith P. analysis here. (See Sabrina H., supra, 149 Cal.App.4th at p. 1420.)
We conclude the department’s failure to give timely notice of its intent to change its recommendation to termination of services was harmless beyond a reasonable doubt.
B. The Court Provided a Factual Basis for Concluding That the Child’s Return to Mother Would Be Detrimental to His Safety and Well-being
Mother next argues that the order terminating reunification services must be reversed because the court failed to state a factual basis for its conclusion that returning the child to her would be detrimental. We disagree.
Section 366.21, subdivision (e) provides, in relevant part: “At the review hearing held six months after the initial dispositional hearing, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. . . . The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social worker’s report and recommendations . . . . [¶] Whether or not the child is returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that the return would be detrimental or would not be detrimental.”
Here, the court properly stated that it based its decision on the information obtained through the reports and arguments presented at the hearing. The latest report stated that mother failed to take responsibility for the domestic violence, and that she apparently did not understand the gravity of the effects of domestic violence on the child. In addition, there was evidence that mother continued to be abusive toward her boyfriend, even though she claimed she had not had contact with him for the past several months. Moreover, mother had difficulty controlling her anger and had denied her use of violence; she also assumed the role of the victim.
At the contested review hearing, counsel for the department argued that mother continually lied to her and the therapist concerning whether or not she was seeing her boyfriend. The department’s counsel stated that mother denied having a relationship with him, yet she was pregnant with his child and was living with him. The child’s counsel added, “We gave mom ample time. Basically, she said the boyfriend lived in Northern California; she didn’t know where he was. She was fabricating all of this.” The child’s counsel also pointed out that, according to the therapist’s report, mother saw herself as the victim, when she was the aggressor. The child’s counsel concluded that the issue was not just participating in services, but benefitting from them; since mother was about to give birth to another child by the boyfriend, she clearly had not benefitted from her services. Immediately after hearing these arguments, the court stated, “based on information before me, it would appear, taking all this into consideration, it would be detrimental to the child.” The court then stated that it read and considered the social worker’s reports, as well as the arguments of counsel at the hearing. In view of the reports and arguments, the court found it clear that mother was not benefitting from her reunification services. The court concluded that mother had failed to make substantive progress or complete her case plan, and then terminated her services. Implicit in the court’s reliance on the reports and arguments was the factual basis for its conclusion that return of the child to mother would be detrimental.
C. There Was Substantial Evidence to Support the Termination of Mother’s Reunification Services
Mother finally contends that there was insufficient evidence to support the termination of her services since she regularly participated in her case plan and made substantive progress. The department concedes that mother participated in her case plan. Thus, the issue is whether she made substantive progress. We conclude that she did not, and that the court, therefore, properly terminated her services.
1. Standard of Review
We review a juvenile court’s order at a section 366.21 hearing for substantial evidence. (Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 397-398; In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) All conflicts must be resolved in favor of respondent on appeal and all legitimate and reasonable inferences indulged in to uphold the court’s findings. (Adoption of R. R. R. (1971) 18 Cal.App.3d 973, 983.) It is well settled that our review “is limited to whether the judgment is supported by substantial evidence. Issues of fact and credibility are questions for the trial court, not this court. [Citation.]” (In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1132 (Cheryl H.), superseded on other grounds, as stated in In re Katrina C. (1988) 201 Cal.App.3d 540.)
2. The Evidence Was Sufficient
The child was removed from mother’s care because mother engaged in acts of domestic violence in front of the child with her boyfriend. Mother was the aggressor in the fight with her boyfriend that led to her arrest and consequent removal of the child. At the time of detention, mother completely minimized the fights between her and the boyfriend and was not concerned about exposing the child to domestic violence. Mother told the social worker, “‘It’s not like he abuses me, and I sometimes lose my temper, but it’s not like really bad.’” When asked if she thought about leaving him, mother stated, “‘No, not really, [h]e is not that bad. I just got very upset today.’” After having completed parenting class and anger management programs and regularly attending a domestic violence program, there was no apparent change in mother’s perspective. By the time of the report filed on January 5, 2007, mother’s therapist reported that mother needed more therapy to help her “gain[] insight into her having choices other than remaining in an abusive relationship.” Not surprisingly, the social worker reported that mother was still involved with her boyfriend. By the time the addendum report was filed on February 23, 2007, mother had still failed to take responsibility for the domestic violence, according to her therapist. Mother continued to be abusive toward her boyfriend, with whom she claimed she had not had contact with for the past several months. The therapist said that mother still needed to understand the gravity of the effects of domestic violence on the child.
At the review hearing, counsel for the department stated that mother’s relatives had informed her that they saw the boyfriend regularly at mother’s residence. Moreover, the department’s counsel informed the court that she spoke with mother’s therapist that morning; the therapist said that mother was consistently not being truthful in therapy, and that she saw herself as the victim, when she was really the aggressor. Mother’s counsel confirmed that mother did communicate with the boyfriend, that mother was pregnant with his child, and that he supported her financially.
Although mother was participating in the services, she clearly was not benefitting from them, in that she had not made substantive progress. Mother was lying to her therapist about her relationship with her boyfriend, she was still in the same abusive relationship with him, and she failed to understand the gravity of the effects of domestic violence on the child. In sum, there was no indication that the circumstances would be any different in mother’s home, if the child were to return there. Therefore, the evidence supported the court’s decision to terminate mother’s services.
Mother points out that the social worker’s report included an anonymous statement that she continued to be abusive with the boyfriend, but failed to specify the nature of the abuse. She further asserts that the report “does not state why the anonymous information was somehow more credible than mother’s statement.” First, “[i]ssues of fact and credibility are questions for the trial court, not this court. [Citation.]” (Cheryl H., supra, 153 Cal.App.3d at p. 1132.) It is not our position to determine credibility or delve into the facts of the type of domestic violence involved. Second, it is not clear which of “mother’s statements” she is referring to, since she did not deny that she was abusing her boyfriend. In fact, mother’s counsel confirmed with the court that mother was the aggressor in the domestic violence between her and her boyfriend, and that she was essentially still in a relationship with him.
Mother then contends that “[f]indings grounded solely in inadmissible evidence are not based upon substantial evidence, and any order dependent on such findings should be reversed.” “[O]ur role as a reviewing court is not to reverse judgments where they may have been based in part on excludable evidence. Rather our duty is to strip away the inadmissible evidence and ask whether enough admissible evidence remains to sustain the court’s finding.” (Cheryl H., supra, 153 Cal.App.3d at pp. 1132-1133.) Mother never objected to the evidence of the anonymous information in the social worker’s reports as inadmissible. Moreover, there was other evidence before the court that corroborated the information that mother was still in a relationship with the same boyfriend with whom she was abusive. Mother’s counsel confirmed that mother still communicated with the boyfriend, that she was pregnant with his child, and that he financially supported her. Furthermore, mother’s therapist recommended that mother “‘continue in therapy to address issues of child endangerment if the use of violence continues in her life.’” (Italics added.) This recommendation implies that mother currently had issues with domestic violence. Moreover, we note that, although she had the opportunity to do so, mother never disputed the evidence that she was currently abusive toward her boyfriend. Thus, there was no reason for the court not to believe the statements of mother’s relatives, albeit anonymous, that she continued to be abusive.
Finally, mother argues that “the unsworn statements of counsel at the hearing were not evidence” and, as such, the court erred in considering them. However, the statements of counsel were simply arguments based on the evidence provided in the social worker’s reports. The attorneys were assuming the role of advocates, not witnesses, and were making arguments based on evidence that the court was required to review and consider. (§ 366.21, subd. (e).)
DISPOSITION
The order is affirmed.
We concur: RAMIREZ, P.J., GAUT, J.