Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK61470, Marilyn Mackel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
BOREN, P.J.
A.C. (Mother) challenges two dependency court orders relating to her son, P.G. She argues that: (1) the court erred by terminating her reunification services; (2) substantial evidence does not support the court’s finding that Mother failed to comply with the case plan; and (3) the court’s findings sustaining a subsequent petition are not supported by substantial evidence. We affirm.
FACTS
P.G. first came to the attention of the Department of Children and Family Services (DCFS) in November 2005, when he was 11 months old. A DCFS social worker went to a women’s shelter to investigate Mother’s mental health and ability to care for P.G. Mother described a history of domestic violence with P.G.’s father, M.G. (Father), who verbally and physically abuses her. Mother revealed that she had a psychiatric hospitalization when P.G. was three months old, and said “yes” when asked “if she had thoughts of hurting herself.” Mother recognized that she needed help, and assented to P.G.’s detention. P.G. was placed in foster care because Mother did not want him placed with her family.
A petition was filed alleging that P.G. was endangered by Father’s violent altercations with Mother and by Mother’s mental and emotional problems. The court found a prima facie case for detaining P.G. Mother and Father were referred for parenting and counseling and authorized to have monitored visits.
In a December 2005 report, DCFS described the familial situation. Mother was hospitalized in November 2005 for psychiatric treatment. This followed her prior hospitalization for postpartum depression and paranoia. Father began mistreating Mother in 2003, at one point holding a pillow over her face until she could not breathe. The maltreatment occurred “almost every day,” though it became verbal rather than physical after she gave birth to P.G. She had asked DCFS to take care of P.G. because she needed to be hospitalized for treatment. Mother began participating in parenting and domestic violence counseling. She blamed Father for her emotional imbalance, and said she did not intend to return to him due to his verbal and emotional abuse.
Father had a criminal record, which he denied. He also denied harming Mother, saying that they had only “altercations” or “disagreements.” Father believed that Mother’s psychiatric problems arose after she gave birth to P.G.
Both Mother and Father sought custody of P.G. During monitored visits with the child, the foster mother observed that Father was “manipulative” and “controlling” with Mother, telling her what to do and what not to do with P.G., and it appeared that Mother feared Father. Father was overly protective with P.G. and would not allow the child to play or walk. The DCFS social worker noted that Father seemed unusually obsessed with P.G. and behaved in a controlling manner during his interview.
In an updated report in January 2006, DCFS stated that Mother and Father had reunited and were residing together in hopes of helping Father gain custody of P.G. Father obliged Mother to sign a letter recanting her charges of verbal and physical abuse. Mother and Father met with several DCFS employees and accused the social worker of fabricating Mother’s claims of domestic violence. However, when confronted individually by DCFS, Mother admitted that Father convinced her to recant her claims of abuse so that they could get P.G. back. Mother conceded that, in fact, Father engaged in domestic violence. The couple separated. DCFS noted that “Mother has not been truthful with DCFS, and has continually changed her statements. She appears to be unstable and easily influenced by father. Father too has not been truthful.”
On January 25, 2006, after the parents waived their right to a trial, the court sustained two allegations: (1) the parents have a history of domestic confrontations that have caused Mother to move out of the family home, and the parental inability to handle conflicts endanger P.G.; and (2) Mother has emotional problems that resulted in two hospitalizations and this places P.G. at risk of harm. The court ordered the parents to undergo psychological evaluations.
In February 2006, DCFS reported that Mother had, once again, returned to live with Father. Mother had asked Father not to yell at her anymore, he had accepted his fault, and Mother was optimistic about their relationship. P.G. was living with his godfather. Mother underwent a psychological evaluation. The psychologist opined that Mother’s traumatic childhood rendered her apt to associate with people who treat her poorly, and to accept victimization and abuse. The dysfunctional marital relationship caused her to develop a significant depression. Mother’s future was doubtful if she remained with Father, though with treatment and separation from Father, she could improve and become independent. With Father, one could expect continued violence and abuse that place P.G. at risk. P.G.’s visits with Mother could become unmonitored, if she separated from Father.
In March 2006, DCFS reported that Father had left for Ecuador, without any plans to return. Mother was visiting P.G. regularly, feeding and bathing him, and putting him to bed. She continued to attend parenting education, domestic violence classes, and individual counseling. At a hearing, Mother indicated that she did not intend to resume a relationship with Father; was taking prescribed medications; had regular, parental-type visitation with P.G.; was in counseling; and wished to regain custody of P.G. Mother completed individual counseling in April 2006.
In April 2006, DCFS reported that Mother was continuing to parent P.G., spending several hours caring for him each day at the caretakers’ home, when they are away. Mother’s psychiatrist reported that Mother was doing better and had not demonstrated any psychotic behaviors in several months. However, it appeared that Mother had stopped taking prescribed medications without consulting the psychiatrist. P.G.’s caretaker expressed concern that Father was still manipulating Mother and was trying to have Mother move to Ecuador with P.G. At a court hearing, Mother denied having contact with Father. The court gave DCFS discretion to liberalize Mother’s visits, including overnights.
In May 2006, DCFS reported that Mother had appropriate visits with P.G. every weekday between one and five o’clock in the afternoon, in the caretakers’ home. Mother’s psychiatrist opined that her prognosis was good, if she continued her prescribed medical regimen. The disposition hearing was conducted. The court found by clear and convincing evidence that a substantial danger exists to P.G.’s health, requiring removal from parental custody. DCFS had made reasonable efforts to enable reunification and Mother had made substantive progress. P.G. was declared a dependent of the court. Mother was given unmonitored and overnight visits. Father was denied reunification services.
In July 2006, DCFS reported that P.G. was healthy and developing well. Mother was employed as a nursing assistant, complying with court orders, and visiting P.G. regularly. DCFS received word that Father might be in Southern California, but Mother stated that she had not heard from him in months. Mother had a new roommate named Porferia. On July 13, 2006, the court ordered that P.G. be placed with Mother, under DCFS supervision. The court had Mother acknowledge that she cannot transport P.G. outside of California without DCFS approval, and could be subject to arrest and prosecution if she did so. Also, the court instructed Mother that she cannot leave P.G. alone with anyone who was not approved by DCFS, including Porferia.
Two months after obtaining custody of P.G., Mother was arrested by the INS. Mother called DCFS on September 11, 2006, to say that she was detained by federal authorities when she tried to smuggle an undocumented person into the United States. Mother explained that she wanted money from the smuggling to pay her bills. Mother advised DCFS that she left P.G. with her roommate, Porferia. The social worker interviewed Porferia, who admitted that she was with Mother and P.G. at the time Mother was arrested, and both women were involved in smuggling Porferia’s relative into the United States. At that point, P.G. was detained and removed from Porferia’s care. Mother had concealed that Porferia was with her when she was arrested. Soon after Mother’s arrest, Father showed up unannounced at the DCFS office, saying that he had just returned from Ecuador.
DCFS filed a subsequent dependency petition, alleging that (1) Mother endangered P.G. by engaging in illegal alien smuggling while P.G. was in her care, and (2) Mother is incarcerated and failed to make an appropriate plan for P.G.’s care, leaving him with Porferia, who participated with Mother in the smuggling attempt. The court found a prima facie case for detaining P.G.
In December 2006, DCFS reported that Mother was still incarcerated and was facing deportation. In an interview, Mother refused to answer any questions regarding her arrest; however, she stated that she knows she has problems and hopes to reunify with P.G. P.G., who was in foster care, was developing normally, was well-behaved, and displayed no emotional or mental problems. Father wanted custody of P.G. The court set the matter for a contested hearing.
Prior to the hearing, DCFS reported that Mother “has completed most court ordered services,” including parenting, individual counseling, and part of a domestic violence program; however, Mother “failed to keep the child safe” after P.G. was returned to her care and put the child “in a dangerous situation.” For his part, “Father has not acknowledged the seriousness of the domestic violence, which occurred [in] the presence of the child.” He was attending parenting classes. The social worker felt that P.G. cannot be returned to Father’s care. P.G.’s godparents expressed an interest in adopting him or becoming legal guardians. DCFS recommended that Mother’s reunification services be terminated because she is incarcerated and likely to be deported.
A hearing was conducted on January 11, 2007. First, the court conducted a hearing on the original petition. The court found that “there has been no compliance with the case plan by either parent” and that returning P.G. to parental custody would pose a substantial risk. Mother’s reunification services were terminated. Next, the court moved to the allegations in the subsequent petition. It sustained two counts against Mother, and vacated its prior order placing P.G. in Mother’s custody. Mother was granted monitored visitation. Father was given reunification services. The court set the matter for a permanency review hearing.
DISCUSSION
1. Termination of Reunification Services
Mother argues that the court made a procedural error by first conducting a hearing pursuant to the original petition, then adjudicating the subsequent petition. She maintains that the subsequent petition should have been adjudicated first. At the outset, we note that Mother’s counsel did not object to the court’s procedure during the hearing: when asked for argument, Mother’s counsel merely stated that Mother would submit. Absent any objection to the court’s procedure, appellant has forfeited her right to assert error on appeal. (In re Kevin S. (1996) 41 Cal.App.4th 882, 885.)
Mother claims prejudice because the court conducted a hearing on the original petition and terminated her reunification services. She reasons that if the court had adjudicated the subsequent petition beforehand, it “might have terminated the prior home-of-parent order and ordered [P.G.] suitably placed with family reunification services.” Mother believes that the court should have given her six additional months of reunification services after addressing the allegations in the subsequent petition.
Even if this procedural argument were preserved for appeal, it would not succeed. A similar argument was made and rejected in In re Barbara P. (1994) 30 Cal.App.4th 926, 932, where the mother contended that her “rights were violated when the trial court terminated reunification services ordered pursuant to the original petitions on the same day that jurisdiction was found on the subsequent petitions. [Citation.] She argues that the trial court’s finding of jurisdiction on the subsequent petitions entitles her to [additional] reunification services . . . .” The appellate court disagreed, concluding that reunification services are mandatory only at the initial disposition on an original petition: a subsequent petition alleging additional bases of dependency jurisdiction in an existing case does not require additional reunification services. (Id. at p. 934.) “Failure to order additional reunification services after finding jurisdiction on a subsequent petition constitutes reversible error only if the particular facts of the case demonstrate an abuse of discretion . . . ” in light of “whether the services already offered were adequate, whether they addressed the concerns raised by the subsequent petition, and whether the objectives of the reunification plan—the reunification of the family—could be achieved with the provision of additional services.” (Ibid.)
Thus, contrary to Mother’s position, the court was not required to give her six months of additional services. Mother made no showing in the dependency court why she should be offered additional services. That being the case, the court did not abuse its discretion by following the DCFS recommendation that Mother’s reunification services be terminated.
2. Mother’s Compliance with the Case Plan
The court found that neither parent had complied with the case plan. The court’s determination regarding case plan compliance takes into consideration a number of factors: these include attendance at required therapy sessions; visitation; and a parent’s progress and capacity to meet the objectives of the plan. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.) Mere satisfaction of the reunification plan requirements is not enough, because the focus of the inquiry is on the well-being of the child. (In re Joseph B. (1996) 42 Cal.App.4th 890, 901.) The court’s determination will be upheld if supported by substantial evidence. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.)
In this case, Mother’s compliance with the case plan was inadequate. Although she completed the required counseling and classes, her visitation with P.G. dropped to zero between September 11, 2006, and the hearing on January 11, 2007, a four-month period, while Mother was in federal custody. Significantly, it appeared that Mother was going to be deported, so there was no way that she could comply with the case plan.
One of Mother’s difficulties—identified in her psychological evaluation—is her tendency to associate with people who victimize her. Despite having counseling, Mother came under the negative influence of her new roommate, Porferia, who convinced Mother to participate in the illegal act of smuggling one of Porferia’s relatives into the United States. To make matters worse, Mother released P.G. into Porferia’s care, knowing that Porferia was not a DCFS-approved caretaker, and in any event was not a suitable caretaker, having participated in the very act for which Mother was arrested. As DCFS wrote in its report, Mother lacks insight into how her actions endanger P.G., first by staying with a man who abused her and later by engaging in criminal activities.
The trial court could reasonably conclude that Mother could not comply with her case plan: she had not seen P.G. for four months while in custody; she was facing deportation; and she engaged in criminal activities while P.G. was in her care. Even if Mother were given reunification services, she would not be present to avail herself of them. For a child under the age of three, reunification services are limited to six months. (Welf. & Inst. Code, § 361.5, subd. (a)(2).) There was no reasonable possibility that P.G. would be returned to Mother’s care at any time in the foreseeable future, let alone within six months of his latest detention. Despite completing a parenting program and counseling, Mother included P.G. in an illegal endeavor, only two months after she obtained custody of the child. The trial court could not say, and neither can we, that Mother has complied with the case plan: by her actions, she demonstrated an inability to protect P.G. and provide him with a safe environment, which was the problem that occasioned DCFS intervention in November 2005.
3. Findings Made on the Subsequent Petition
Mother challenges the court’s findings on the subsequent petition filed after she was arrested by immigration authorities. She concedes that she was detained by immigration officials and remained in detention at the time of the hearing on the subsequent petition. Nevertheless, she maintains that no evidence supports a finding that she endangered P.G.’s physical and emotional health and safety, or placed him at risk of harm.
Mother’s decision to bring P.G. along on a trip to smuggle undocumented immigrants into the United States is enough to affirm the court’s decision to sustain the subsequent petition. Mother grossly endangered P.G.’s safety by involving him in a criminal enterprise, and the court expressly forbade Mother from removing P.G. from the United States at the time it returned P.G. to her custody.
Mother emphasizes that DCFS initially agreed to allow P.G. to remain with Porferia because the child seemed well cared for and comfortable with Porferia. However, DCFS soon discovered that Porferia—by her own admission—participated with Mother in smuggling undocumented persons, a detail that Mother concealed from the DCFS social worker. Unsurprisingly, DCFS detained P.G. as soon as it learned that Mother had released him into the care of her criminal accomplice. Mother showed a great lapse in judgment by releasing P.G. to Porferia: Mother should have told DCFS the truth and asked that P.G. be appropriately placed. The trial court justifiably found that Mother failed to make an appropriate plan for P.G. Mother receives no credit for making an inappropriate plan for her child.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.