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J. J. v. Superior Court of the City & Cnty. of San Francisco

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Jan 18, 2012
A133295 (Cal. Ct. App. Jan. 18, 2012)

Opinion

A133295

01-18-2012

J. J., Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY et al., Real Parties in Interest.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Francisco City and County Super. Ct. Nos. JD08-3241, JD08-3241A, JD11-3124)

J. J. (Father) seeks extraordinary relief from an order of the San Francisco Superior Court, Juvenile Division, entered September 7, 2011, that terminated or bypassed his reunification services and set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for three minor daughters, W.J. (born June 2006), G.J. (born Aug. 2008), and F.J. (born Mar. 2010). Father contends the juvenile court erred in denying reunification services to him as to his youngest daughter, F.J., under the bypass provisions of section 361.5, subdivision (b)(6), (7), and (10), and in suspending visitation with his older daughters, W.J. and G.J., in violation of section 366.21, subdivision (h). We conclude substantial evidence supports the denial of reunification services under section 361.5, subdivision (b)(10), as well as the suspensions of visitation under section 366.21, subdivision (h). Accordingly we deny Father's petition for an extraordinary writ on the merits.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. (§ 366.26, subd. (l)(4)(B).)

BACKGROUND

The San Francisco Human Services Agency (Agency) initially detained the older daughters, W.J. and G.J., on August 28, 2008, and filed a petition under section 300, subdivision (b), September 2. (Case Nos. JD08-3241 and JD08-3241A.) The precipitating event was that G.J. had been born testing positive for cocaine. There was additional concern that Father, who had sole custody of W.J., was not adequately caring for her.

Following the jurisdictional/dispositional hearing in April 2009, both minors were placed in foster care after the juvenile court sustained amended allegations including the following: A.F. (Mother) had a substance abuse problem for which she was receiving treatment; Mother had failed to reunify with W.J. in an earlier proceeding, which resulted in Father receiving sole legal and physical custody of W.J.; Mother had four older children born between 1997 and 2004 and none of them were in her care; Father had a substance abuse problem for which he needed assessment; both parents had a pattern of leaving W.J. with the maternal grandparents, both of whom had substance abuse problems; and, W.J. suffered from developmental delays and was under socialized. (§ 300, subd. (b).) As Mother had filed a waiver of reunification services, the court ordered them for Father only.

W.J., too, had been born testing positive for drugs.

The report for the six-month status review hearing, prepared in December 2009, noted W.J., now three years old, had multiple behavioral and emotional issues, including developmental delays, sensory disorder and attachment disorder, and her foster parent had reported an increase in W.J.'s tantrums, as well as the fact she had to wear a restraint on the school bus because she would not keep to her seat. Nevertheless Father had difficulty accepting W.J.'s need for a high level of care. G.J., in a separate foster placement, was experiencing developmental delays in her motor skills. At the conclusion of the six-month hearing in March 2010, the juvenile court continued Father's services.

The previous month, the juvenile court approved psychotropic medication that had been recommended to treat W.J.'s behavioral and emotional problems.

The report for the 12-month permanency hearing, prepared in May 2010, stated Father and Mother were now living together with their daughter F.J., who had been briefly detained after her birth in late March but returned to their custody in mid-April. W.J., whose behavioral problems included escalating tantrums, was receiving a number of special needs services including individual therapy, physical therapy, and visits with a behavioral specialist. G.J.'s motor skills continued to develop slowly, and she was receiving a number of services including occupational, physical, and speech therapies in additional to services focusing on fine motor skills. In June 2010, Mother filed a petition under section 388, seeking reunification services as to W.J. and G.J. In July 2010, the juvenile court concluded its 12-month hearing, at which time it continued Father's services and also granted Mother's request to receive them. At the end of that month the court adopted a case plan for Mother proposed by the Agency.

At this time the juvenile court also authorized the Agency to increase visitation. Thus during the ensuing review period, G.J. had at-home visitation with both parents between Sunday and Tuesday. G.J. even stayed with the parents for a few "extended weekly visits," but these were discontinued when G.J. began to miss her appointments for occupational and physical therapy. W.J. began to stay with both parents at home on weekends.

The report for the 18-month permanency review hearing, submitted in November 2010, reported concerns from G.J.'s service providers concerning the parents' "poor follow throw" with her appointments for occupational and physical therapy. The parents missed appointments, were not consistent in bringing G.J. on time, and neither parent seemed engaged with G.J. or the therapy, such that the therapist told them they were welcome if they wanted to observe and ask questions, but not if they spent the time "on the phone or sleeping." G.J.'s occupational therapist further reported she had seen a change in G.J.'s affect since the parents had begun bringing her to appointments—that when G.J. was around her parents she got "startled and crie[d] a lot," and "lately she [had] looked scared." W.J.'s foster parent reported W.J. continued to exhibit behavioral problems and tantrums, although the latter did not rise to the "psychotic level" they had earlier in the placement. W.J.'s tantrums, according to her teacher, had continued to escalate after the increase in her visitation, and her behavior had regressed "to the point of indiscriminate advances to strangers and self injurious behavior." The teacher was concerned about the Agency's plans to "go[] ahead with reunification." The social worker applauded the recent "great job" the parents were doing, but expressed concern whether they truly understood the severity of W.J.'s and G.J.'s special needs. Father for example, disbelieved W.J.'s tantrums because they had not occurred in his presence. Thus social worker recommended continued out-of-home placement, but also recommended continuing services beyond the 18-month hearing.

At the conclusion of the 18-month hearing, on December 8, 2010, the juvenile court continued services for six months, scheduling a 24-month permanency review hearing. On that date it also ordered an extended 30-day visit for G.J. at her parents' home, to commence on December 12.

In January 2011, the Agency filed a section 388 petition as to G.J., stating the parents had "continued to comply with services and ensur[e] [G.J.'s] needs [were] being met." The petition requested that G.J. be returned to her parents under a plan of family maintenance. On January 5, the juvenile court granted the petition, and set a six-month family maintenance review hearing for June 8, the same date as that set for the 24-month permanency review hearing now limited to W.J.

In late January 2011, the court ordered continuation of W.J.'s psychotropic medication, which it had initially ordered in November 2009. This medication was reportedly effective to treat her "severe affective and behavioral [dysfunction]" by improving her affect and cognitive functioning and regulating her behavior.

A report from G.J.'s occupational therapist prepared a few months later noted G.J., after her return to her parent's custody, had missed sessions in January and February 2011 and then did not come at all after February 15. Meanwhile, G.J.'s physical therapist reported that G.J., now about two and a half years old, continued to experience motor delays secondary to prenatal cocaine exposure. G.J. frequently fell during therapy, at home, and in the community. In particular, the therapist reported it was not safe for G.J. to negotiate a playground ladder alone.

On April 11, 2011, the Agency filed a supplemental petition under section 387 as to G.J. The report filed in connection with this petition stated the Agency had received a referral from San Francisco General Hospital (SFGH). On April 1, G.J. was brought to the SFGH emergency room with a large swelling of the brain that required immediate cranial surgery, leaving the child in critical condition. A doctor reported they had removed a part of G.J.'s skull and brain, and initially thought she was "not going to make it."

Mother reported to hospital staff that she had been at home, going to a bedroom on the second floor, ascending a stairway with one-year-old F.J. in her arms, as G.J. followed up the stairs behind her. Mother heard a noise and crying, turned around and saw G.J. lying at the bottom of the stairs. G.J. started having a seizure, and Mother ran to a neighbor to call 911 and G.J. was taken unconscious to the hospital.

The SFGH medical team felt Mother's explanation of the G.J.'s head injury was plausible, and regarded the injury as accidental. They had, however, also discovered a "horrible burn" that was "clearly old" in the area of G.J.'s vagina and buttocks. When asked to explain this area of "discoloration," Mother initially said it was the result of a "bad diaper rash." When asked if G.J. had been burned Mother "never really gave . . . a good explanation." G.J.'s aunt confirmed the burn area had not been there before G.J. was returned to the parents' custody. The medical team reported the burn area had healed sometime in the past month, but whatever the cause, G.J. should have been given medical attention. For one thing, the area of scarring had permanently lost the pigmented layer of skin, leaving an area "completely noticeable" due to G.J. dark skin tone.

Four days after G.J. was initially brought to SFGH, the medical team and social worker confronted Mother about the fact that her explanation of the burn area was not plausible. Mother became tearful and explained "truthfully" that she had left G.J. in the care of Father's cousin about a month earlier. The cousin had given G.J. a cup of hot soup while she was in her high chair, and the soup spilled into her lap. Mother at first did not know what had happened because the cousin did not mention the incident when she returned. She noticed the burn only later when she took G.J. into the shower with her and G.J. began to cry. The parents treated the burn with Neosporin. G.J. then seemed to have no significant trouble and the area was healing, so they did not bring her in for medical treatment. Mother said she did not tell anyone about the injury because "she was fearful of [the child's] removal." She had not taken G.J. to her service provider appointments, at first, because of G.J.'s pain, and then G.J. and the other children got sick. A doctor stated G.J. was at risk to remain at home, because the parents failed to bring her in for medical attention, particularly for intravenous pain management, as G.J. would have been suffering "excruciating pain." She also expressed concern that hot soup had been left in front of the child, that Mother had lied for several days about the burn injury, and that Mother might not be able to provide the proper care for G.J., who would upon discharge from the hospital "need her brain to be protected for six months." The physical therapist, when asked if Mother had been made aware of the need to stand behind G.J. when she was negotiating stairs, said she had often emphasized to Mother that G.J. lacked consistent balance and coordination and especially needed to be supervised and assisted during such activities as climbing the playground slide.

The social worker concluded the near fatal injury due to G.J.'s fall could have been prevented with proper attention, and the parents should have promptly sought medical treatment for the burn injury. Thus, while the parents appeared to have been doing well with all their children, this incident was "shocking" and demonstrated their lack of parenting skills and poor judgment, such that it was unsafe for G.J. to continue residing with her parents, especially as she was a special needs child who would now require intensive care and attention for her brain injury. Accordingly the social worker recommended that the juvenile court sustain the section 387 petition—G.J.'s current placement at home was ineffective and her return to the parents would be detrimental to her safety, protection, emotional or physical well being.

Also on April 11, 2011, the Agency filed a petition under section 300 as to the youngest daughter, F.J. (Case No. JD11-3124.) The allegations were essentially that F.J. was at risk of physical injury due to the parents' neglect of G.J., their deception concerning G.J.'s burn injury, and their failure to obtain medical care for that injury. (§ 300, subds. (a), (b), (j).) The detention report submitted in connection with the petition largely restated the report submitted with G.J.'s section 387 petition, summarized above.

F.J. was detained on April 7, 2011.

On April 14, 2011, the juvenile court formally detained G.J. pursuant to the section 387 petition, and similarly ordered F.J.'s detention pursuant to the section 300 petition. The court initially ordered supervised visitation as to both children.

After the incident with G.J. on April 1, 2011, the social worker stopped W.J.'s unsupervised, overnight visits with her parents, permitting only supervised visitation. Later that month she filed a section 388 petition as to W.J., seeking to modify the current order as to W.J.'s visitation from unsupervised to supervised visits. The alleged change of circumstances were, again, the same as those set out in the report submitted with G.J.'s section 387 petition. The juvenile court granted this petition on May 25, 2011, ordering supervised visitation between the parents and W.J.

On May 23, 2011, the Agency filed an ex parte application seeking temporary suspension of the supervised visits with G.J. The social worker's supporting declaration indicated G.J. had been transferred from SFGH to UCSF hospital, and UCSF staff members had expressed concern about the visits, since G.J. met diagnostic criteria for reactive attachment disorder, and displayed increased aggressive behavior and irritability following the parents' visits. The staff reported the visits were too stressful and destabilizing for the child. The juvenile court granted the application pending a hearing on the matter. Following the hearing on May 31, the court ordered therapeutic visitation, reinstating supervised visits pending the beginning of therapeutic visits.

Meanwhile the Agency filed its report for the 24-month permanency review hearing as to W.J., scheduled for June 8, 2011. While it restated the facts concerning G.J.'s injuries, it also included information specific to W.J. For example, W.J.'s teacher reported that W.J.'s behavior had begun to improve about a year before, such that she was on track to enter the general education kindergarten class. Her behavior began to deteriorate during the past school year, however, after W.J. began spending weekends with her parents and sisters. These behaviors included outbursts injurious to herself and staff. W.J.'s foster parent reported she was showing increased inconsistency in what she was capable of doing. The social worker believed that W.J.'s regressive behaviors were partly attributable to the weekends W.J. had been spending with Mother and Father, which had interrupted the routine and structure W.J. required and was otherwise given by the foster parent and service providers. The social worker further expressed difficulty believing Mother and Father after their deception and poor judgment relating to G.J.'s injuries. Despite the fact the parents had largely complied with their case plans, the social worker concluded they were nevertheless unable to meet W.J.'s special needs. Thus she recommended terminating their reunification services as to W.J. and setting the matter for selection of a permanent plan pursuant to section 366.26.

Some two weeks later, on June 3, 2011, the Agency filed an addendum report as to G.J.'s section 387 petition. In this report the social worker similarly concluded that, while Mother and Father had largely complied with the their case plans, they remained unable to meet G.J.'s special needs, and she again recommended that the juvenile court deny further reunification services as to G.J. and set a section 366.26 hearing as to her.

Also on June 3, 2011, the Agency filed its jurisdictional/dispositional report as to F.J.'s section 300 petition. In this report the social worker concluded F.J. continued to be at risk, and concluded, as demonstrated by their parenting of G.J., that the parents did not have the capacity to care adequately for F.J. She recommended that the juvenile court deny reunification services at to F.J. pursuant to section 361.5, subdivision (b), and set the matter for a hearing under section 366.26.

On June 8, 2011, the juvenile court continued the scheduled 24-month permanency review hearing for W.J., G.J.'s scheduled family maintenance review hearing and the hearing on her section 387 petition, and the jurisdictional/dispositional hearing on F.J.'s section 300 petition. A few days later the court set these continued matters for a combined hearing.

In early July 2011, the Agency filed a section 388 petition, seeking to suspend temporarily the supervised visits between G.J. and her parents, due to a medical need for G.J. to avoid trips and remain exclusively in the care of her foster parent. Later that month, it filed an ex parte application to suspend temporarily the supervised visits between W.J. and her parents. This application cited a report from W.J.'s therapist, who identified her visits with Father and Mother as a significant current stressor contributing to her "current regression to significant aggressive behaviors and affective dysregulation." In late July, the juvenile court granted both the section 388 petition and the ex parte application, suspending visits with both G.J. and W.J. pending the combined hearing.

An ex parte application by the minors' counsel, filed July 28, 2011, similarly sought to suspend visits with the youngest daughter, F.J., based on his declaration that F.J. was exhibiting "similar behaviors" to that of her sisters W.J. and G.J. The juvenile court denied this application, however.

In separate addendum reports filed August 4, 2011, the Agency recommended permanent suspension of visitation between the parents and W.J. and G.J., respectively.

The continued, combined hearing commenced on August 25, 2011. On September 7, following four days of testimony and the admission, among other things, of the Agency reports summarized above, the juvenile court heard closing argument. Afterwards, the court first sustained the allegations of G.J.'s section 387 petition, held that her previous placement with her parents had not been effective, and ordered a new disposition of foster care placement. The court directed Mother and Father receive no more reunification services as to G.J.

The court then sustained most of the allegations of F.J.'s dependency petition stated under section 300, subdivisions (a), (b), and (j), and declared F.J. to be a dependent of the court. It denied reunification services for Mother and Father as to F.J. pursuant to section 361.5, subdivision (b)(10), as well as pursuant to section 361.5, subdivision (b)(6) and (7).

As to W.J., the court held there was a risk of detriment to her safety, protection, or physical or emotional well being if she returned to her parents' care, and terminated Mother's and Father's reunification services as to her.

The court then set the matters as to all three minors for a hearing under section 366.26. As for visitation pending the section 366.26 hearing, the court continued supervised visitation with the youngest daughter, F.J., but as to W.J. and G.J. continued its orders suspending visitation, with a direction to their service providers to "weigh in on whether or not that order should be changed."

Father's petition followed. (§ 366.26, subd. (l).)

DISCUSSION

A. Reunification Bypass under Section 361.5, subdivision (b)

1. Introduction

Father challenges the juvenile court's denial of reunification services as to F.J., his youngest daughter, which the court based on findings made pursuant to the "bypass" provisions of section 361.5, subdivision (b), paragraphs (6), (7), and (10).

"Reunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence," that the parent is described in one or more enumerated paragraphs. (§ 361.5, subd. (b).) The "bypass" provisions of section 361.5, subdivision (b), reflect a legislative determination that in some cases it is "fruitless to provide reunification services." (See Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.) Once it is determined one of these provisions applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.)

Generally we review a finding under section 361.5, subdivision (b), by examining the evidence in the light most favorable to the juvenile court's order, drawing every reasonable inference and resolving conflicts in favor of the order, to determine whether the finding is supported by substantial evidence such that a reasonable trier of fact could have made the finding under the clear and convincing evidence standard of proof. (In re Harmony B. (2005) 125 Cal.App.4th 831, 839-840 (Harmony B.); Sheila S. v. Superior Court (2001) 84 Cal.App.4th 872, 880-881.)

2. Failure to Make Findings by "Clear and Convincing" Evidence

Father claims it was error for the juvenile court not to state expressly it had made its findings under section 361.5, subdivision (b), by "clear and convincing evidence." We must presume, however, that the juvenile court knew and applied the correct statutory law. (Evid. Code, § 664; see, e.g., Thompson v. Thames (1997) 57 Cal.App.4th 1296, 1308.) Nothing in the record rebuts the presumption, and accordingly we assume the court applied the clear and convincing standard of proof set out in section 361.5, subdivision (b).

3. Denial of Reunification Services Under Section 361.5, subdivision (b)(10) Among the parents described in section 361.5, subdivision (b), who "need not be

provided" with reunification services, is a parent as to whom the juvenile court has "ordered termination of reunification services for any sibling[ ] because the parent . . . failed to reunify with the sibling . . . after the sibling . . . had been removed from that parent . . . pursuant to section 361 . . . and that, according to the findings of the court, this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling . . . from that parent . . . ." (§ 361.5, subd. (b)(10).)

Father contends there was not substantial evidence to support the juvenile court's denial of services as to F.J. under this provision. He reasons, in particular, that notwithstanding his failure to reunify with W.J. and G.J., there was insufficient evidence to support a finding that he had not subsequently made a reasonable effort to treat the problems that led to their removal. Father cites the proposition that a "reasonable effort" to treat the problems leading to removal of a sibling does not require a showing that the parent has completely cured those problems. (See Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 97-98 (Cheryl P.).) He asserts, essentially, that he made reasonable efforts by completing his reunification plan requirements, yet the court improperly focused on a single mistake in judgment—his failure to seek medical treatment for G.J.'s burn injury.

The bypass provision of section 361.5, subdivision (b)(10), sets out two requirements for denial of services as to a minor: (1) the parent has failed to reunify with a sibling of the minor, resulting in the termination of services to the parent as to that sibling, and (2) the parent has not subsequently made reasonable efforts to treat the problems that led to that sibling's removal. (See Harmony B., supra, 125 Cal.App.4th 831, 840.) The first prong does not require any lapse of time between the termination of services as to the sibling of the minor and the denial of services as to the minor. (Ibid.) Thus, in this case, the juvenile court terminated reunification services as to the older siblings, W.J. and G.J., and simultaneously denied reunification services as to F.J. under subdivision (b)(10).

The second prong—the "no reasonable effort" clause—comes into play when some time has lapsed between the termination of services as to a sibling of a minor, and the dispositional hearing of the minor at which the juvenile court considers whether to deny reunification services under section 361.5, subdivision (b)(10). In such circumstances it is appropriate to require the court to take into account the parent's reasonable efforts during the interim. (Harmony B., supra, 125 Cal.App.4th 831, 842.) When, however, the termination of services as to the sibling of the minor and the denial of services as to the minor occur in "immediate proximity"—as they did here—the required finding under the second prong is a formality because the parent's circumstances necessarily have not changed. (Id. at pp. 842-843.)

Thus, Father is mistaken in relying on evidence of reasonable efforts he may have made earlier in these combined proceedings so that he could reunite with W.J. and G.J. Despite these efforts, Father failed to reunify successfully with either child. At the conclusion of the hearing on September 7, 2011, the juvenile court accordingly terminated his reunification services as to both. At the same time the court addressed the issue whether to deny services as to F.J. under section 361.5, subdivision (b)(10). Under the second prong of that provision the court was required to find Father had made no reasonable efforts after the termination of his services as to W.J. and G.J. to address the problems that led to their removal. The court's implicit finding to this effect was a formality, since the rulings occurred at the same time and there was necessarily no evidence that Father had, subsequent to the termination of services as to F.J.'s siblings, made reasonable efforts to address the problems that led to their removal.

We conclude substantial evidence supports the juvenile court's denial of services as to F.J. under section 361.5, subdivision (b)(10).

Father raises additional objections to the juvenile court's denial of services under section 361.5, subdivision (b)(6) and (7). As we conclude the juvenile court correctly denied services under section 361.5, subdivision (b)(10), we do not reach the merits of these contentions.
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4. Failure to Order Reunification Services Under Section 361.5, Subdivision (c)

Section 361.5, subdivision (c), provides an exception when certain of the bypass provisions of section 361.5, subdivision (b), apply and would otherwise require denial of reunification services. Specifically, a juvenile court "shall not order reunification for a parent . . . described in paragraph . . . (10) . . . of subdivision (b) [among others], unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subdivision (c).)

Father argues there was substantial evidence to support a finding under subdivision (c)—that reunification was in the best interest of F.J.—and reasons, in effect, that the juvenile court erred by failing to make this finding.

Given the remedial nature of section 361.5, subdivision (c), a parent has the burden to establish affirmatively that reunification is in the best interest of a minor as to whom reunification services would otherwise be denied. (See Mardardo F. v. Superior Court (2008) 164 Cal.App.4th 481, 492.) In this case Father's counsel argued, at least implicitly, in favor of a finding under subdivision (c), urging that F.J. had been born drug-free and healthy, had spent "virtually . . . her entire life" in Father's care, during which time she had been well cared for without suffering any injury, and that, if reunification services were ordered, Father "could learn and utilize" them for F.J.'s benefit.

The juvenile court, nevertheless, declined to make a finding under section 361.5, subdivision (c). It is within that court's broad discretion to order reunification services on a finding it is in the minor's best interest. We reverse its determination only on a showing of abuse. (In re William B. (2008) 163 Cal.App.4th 1220, 1229; see also Cheryl P., supra, 139 Cal.App.4th 87, 96, fn. 6.)

In the addendum report for F.J. filed in August 2011, the social worker stated a visitation supervisor had reported that F.J. did "not show any emotions when she [left] her parents" at the end of visits, and this raised concerns because a "one year old who is attached to her parents would likely cry and have tantrums when leaving her parents." In addition, the trauma her siblings had suffered put F.J. at "high risk for harm," as to which she was vulnerable given her young age and inability to verbalize. For these reasons the social worker recommended denial of reunification services.

The juvenile court was entitled to weigh such evidence against that urged by Father's counsel in his closing argument, summarized above, when it considered whether Father had met his burden to show, by clear and convincing evidence, that reunification was in F.J.'s best interest. We conclude the court was well within its discretion in declining to make a finding to that effect under section 361.5, subdivision (c). B. Suspension of Visitation

When a juvenile court sets a hearing under section 366.26, as here, it must continue to permit the parents to visit the minor pending that hearing, unless it finds visitation would be detrimental to the child. (§ 366.21, subd. (h).) Father claims the court erred in this instance when it ordered a continuation of its prior orders suspending Father's visitation with his two older daughters, W.J. and G.J., pending the section 366.26 hearing, arguing there was not substantial evidence to support the requisite finding of detriment. In his view "virtually all" the witnesses who testified concerning their observations of his visits with W.J. and G.J. stated he had conducted himself appropriately and affectionately with them, and it was mere speculation to infer that his visits were causally related to W.J.'s and G.J.'s behavioral problems that reportedly occurred in their foster placements, at W.J.'s school, and elsewhere.

The juvenile court makes a finding of detriment, for purposes of suspending visitation under section 366.21, subdivision (h), utilizing the preponderance of evidence standard of proof. (In re Manolito L. (2001) 90 Cal.App.4th 753, 761-762.) We review that court's finding of detriment to determine whether it is supported by substantial evidence. (See In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) Under this standard of review we view the evidence in the light most favorable to the court's order, resolving conflicts in its favor—in effect disregarding conflicting evidence unfavorable to the order such as that which Father emphasizes. (See Sheila S. v. Superior Court, supra, 84 Cal.App.4th 872, 880-881.)

The addendum reports filed August 4, 2011, which recommended a continuing suspension of visitation for W.J. and G.J., were based primarily on attached reports submitted by W.J.'s teacher, her therapist, Dr. Bonnie Taylor, and the therapist appointed to supervise G.J.'s therapeutic visits, Dr. Ivania Molina. W.J.'s teacher's report stated W.J. had recently been "acting out like I have never seen her with no provocation whatsoever except the time she spends with her parents." She felt, in other words, that it was detrimental for W.J. to be going "back and forth" between her parents' home and the "drastically different environment" provided by W.J.'s foster parent. During the combined hearing W.J.'s teacher testified that W.J.'s foster parent had been instrumental in getting W.J. "a lot of services," and that initially W.J. had improved a great deal.

Dr. Taylor's report agreed that while W.J.'s progress was at first "exceptional," her behavior began to regress as her visitation with her parents increased. During the period of increased visitation, her psychotropic medication was increased three times with little improvement in her behavior and affective regulation, yet these subsequently did improve during a period of time in April 2011 when visitation was temporarily stopped. During this time her attachment to her foster parent also became more stable. When visits resumed in May, however, W.J.'s aggressive and disruptive behavior and affective dysregulation again began to increase significantly. Dr. Taylor concluded the visitation was a significant stressor contributing to W.J.'s regression. Accordingly she recommended a suspension of visits. At the combined hearing Dr. Taylor appeared only for cross-examination, yet confirmed W.J.'s behavior "took a definite change for the better" during the period when visits stopped.

Dr. Molina's report described her observations of the two therapeutic visits that she observed in July 2011. During the second visit, which occurred immediately after surgery, G.J. was heavily sedated and not very responsive to anyone. During the first visit, however, Dr. Molina observed that G.J.'s heart rate spiked dramatically—an indication either of pain or anxiety. Afterwards she became very docile, not saying very much and not initiating interactions with her parents, in stark contrast with an earlier visit Dr. Molina observed between G.J. and her foster parent. G.J. also engaged in a self-soothing activity during the visit, bumping her head against the mattress. G.J. began crying about two minutes after the end of the visit, and expressed anger with her nurses and with her foster parent when she came into the room. UCSF staff reported they had previously observed increased heart rate and self-soothing behavior during visits with the parents, and agitation afterward. Dr. Molina concluded a continuation of visitation was likely to be detrimental to her health. Dr. Molina, too, appeared at the combined hearing only for cross-examination, yet she confirmed the visits she had observed were distressing to G.J.

This evidence, in our view, provides substantial support for the juvenile court's implied finding that it would be detrimental, within the meaning of section 366.21, subdivision (h), for W.J. and G.J. to have visitation with the parents pending the section 366.26 hearing.

DISPOSITION

The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Cal. Rules of Court, rules 8.454(a), 8.490(b)(3).)

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Dondero, J.

We concur:

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Margulies, Acting P. J.

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Banke, J.
J.J. v. Superior Court; San Francisco Human Services Agency, Real Parties in Interest, A133295


Summaries of

J. J. v. Superior Court of the City & Cnty. of San Francisco

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Jan 18, 2012
A133295 (Cal. Ct. App. Jan. 18, 2012)
Case details for

J. J. v. Superior Court of the City & Cnty. of San Francisco

Case Details

Full title:J. J., Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Date published: Jan 18, 2012

Citations

A133295 (Cal. Ct. App. Jan. 18, 2012)