Opinion
A167190
06-06-2023
J.S., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Real Party in Interest.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. J21-00555)
BROWN, P. J.
J.S. (mother) petitions for extraordinary writ relief challenging the juvenile court's decision at the 12-month review hearing in the dependency case of her child, G.D. (minor), to set a hearing under Welfare and Institutions Code section 366.26.Mother argues (1) substantial evidence does not support the juvenile court's determination that the Contra Costa County Children and Family Services Bureau (bureau) offered her reasonable services; (2) the court should have extended services to the 18-month date; and (3) the court should not have reduced her visitation with the minor. We disagree and will therefore deny mother's petition.
Undesignated statutory references are to the Welfare and Institutions Code.
As the parties are already familiar with the factual and procedural history of the case and this opinion does not warrant publication, we need not recite the history here. (People v. Garcia (2002) 97 Cal.App.4th 847, 851.)
I. Reasonable Services
"[A]t the six- and 12-month status hearings, the court must find that the parent has been provided or offered reasonable reunification services before the court can proceed to set a hearing to decide whether to terminate parental rights and select a permanent plan for the child." (Michael G. v. Superior Court of Orange County (2023) 14 Cal.5th 609, 625.) Where an appellant challenges a reasonable services finding, we review the record to determine whether there is substantial evidence from which the juvenile court could have made the finding by clear and convincing evidence. (Serena M. v. Superior Court of Fresno County (2020) 52 Cal.App.5th 659, 674; Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
Mother begins with the established principle that reasonable services must be tailored to the needs of each family and designed to eliminate the conditions that led to the court's jurisdictional finding. (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420.) She then asserts that the minor was suffering from trauma and needed a consistent routine, and argues that the bureau should have provided a higher level of intervention by providing services that focused on the minor's "mental illness." The only service she argues the bureau should have provided, however, is increased visitation. We need not discuss each of the steps of mother's argument because we disagree with her ultimate conclusion that the bureau's failure to allow more visitation made its reunification services inadequate.
" 'Visitation is a critical component, probably the most critical component, of a reunification plan.' . . . [¶] To promote reunification, visitation must be as frequent as possible, consistent with the well-being of the child. (§ 362.1, subd. (a)(1)(A).) Visitation requirements exist '[i]n order to maintain ties between the parent . . . and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent.' (Id., subd. (a).) [¶] 'While visitation is a key element of reunification, the court must focus on the best interests of the children "and on the elimination of conditions which led to the juvenile court's finding that the child has suffered, or is at risk of suffering, harm...."' [Citation.] To that end, subdivision (a)(1)(B) of section 362.1 mandates that '[n]o visitation order shall jeopardize the safety of the child.' Thus, '[I]f visitation is not consistent with the wellbeing of the child, the juvenile court has the discretion to deny such contact .... "[W]ell-being" includes the minor's emotional and physical health."' [Citation.] In effect, the juvenile court may deny visitation by finding that forced contact with a parent is harmful to the child." (Serena M. v. Superior Court of Fresno County, supra, 52 Cal.App.5th at p. 673.)
Mother contends the minor, 18 months old at the time of the 12-month review, needed a consistent routine, so instead of cutting back services, the bureau should have allowed her to visit the minor daily and become part of the minor's routine. However, she does not mention the extreme distress the minor exhibited during visits, which caused the bureau to end some visits early and not make them more frequent. When visits began, the minor would cry uncontrollably until he vomited and appeared traumatized, with mother unable to console him. Visits improved somewhat over time, with the minor appearing more comfortable after a warm-up period at the beginning of each visit. But the minor continued to show adverse effects after visits.
After each visit or doctor's appointment at which mother was present, the minor would vigorously scratch his head, ears, and belly to the point of bleeding. If put down, he would bang his head into the floor or other objects until the caregiver picked him up. He needed to be held constantly to remain content. His sleep would also be disrupted, going from sleeping 12 hours during the night before a visit to sleeping only for 30 minute periods during much of the night after a visit and crying to the point of vomiting when waking up during the night. Given these extreme reactions, which are not consistent with the minor's physical and emotional well-being, juvenile court could find by clear and convincing evidence that the bureau reasonably decided to cut some visits short and not offer more frequent visitation.
II. Extending Services
At the 12-month review hearing for a dependent child under three years old at time of removal, a juvenile court that does not return a child to the parent's custody must either schedule a hearing under section 366.26 (§ 366.21, subd. (g)(4)), order that the child remain in foster care (§ 366.21, subd. (g)(5)), or extend services for an additional six months until an 18-month review hearing (§ 366.21, subd. (g)(1)-(3)). To extend services to an 18-month review hearing where a parent like mother has received or been offered reasonable services, the juvenile court must find "a substantial probability that the child will be returned to the physical custody of their parent or legal guardian and safely maintained in the home within the extended period of time," which in turn requires findings that a parent has (1) "consistently and regularly contacted and visited with the child," (2) "made significant progress in resolving problems that led to the child's removal from the home," and (3) "demonstrated the capacity and ability both to complete the objectives of their treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1)-(3).)
Mother argues the juvenile court should have made these findings, which we construe as an argument that the evidence supports those findings as a matter of law. (See In re Raul V. (2022) 82 Cal.App.5th 290, 300 [" 'it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.' [Citation.] Rather, 'the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law' "].) Mother highlights the facts that she consistently visited the minor, the visits sometimes (though not always) went well, mother attended individual therapy and therapy with the minor, mother was attending a domestic violence class, and mother had separated from the minor's father.
Mother's recitation of the evidence is incomplete and inaccurate. While mother had separated from father, in the 12-month review report the social worker stated that mother had repeatedly confirmed that she had reunited with him. Father had previously engaged in domestic violence against mother. In the 12-month review reporting period, father did not appear for any drug tests and gave no indication that he had participated in any of the domestic violence, counseling, or parent education programs to which the social worker referred him. Mother also does not mention the social worker's statement that she failed to develop a domestic violence response plan to keep herself or the minor safe if father continued to be violent.
Mother is correct that some visits went well and others poorly, but she fails to note that the minor became dysregulated after every visit to the point of scratching himself until he bled. Mother attended therapy sessions and a domestic violence class, but she remained generally unable to console the minor during and after visits despite using the techniques she learned in the minor's therapy sessions.
Mother again argues that increased contact between her and the minor would have allowed her to become part of the minor's routine and reduced the trauma during visits, and she contends services should have been extended to allow the bureau to allow additional contact. Mother's assumption appears to be that if she had visited with the minor more, the minor would have been more comfortable with her and the techniques she learned in therapy would have worked better. This ignores the fact that during visits, the minor settled down quickly with the visitation monitor and sought her out for comfort more than mother, even though the monitor apparently had as little time with the minor as mother. In other words, lack of contact was not driving the minor's reactions to mother. Mother was either unable to use the techniques effectively or the techniques could not ameliorate the minor's negative reactions specific to mother. Either way, mother did not demonstrate that she had the capacity and ability to provide for the minor's well-being and special needs.
The record thus does not demonstrate that the juvenile court erred by refusing to extend services until the 18-month mark.
III. Reducing visitation
Even when a court terminates services at a 12-month review hearing and sets a hearing under section 366.26, the court "shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child." (§ 366.21, subd. (h).) "We review an order setting visitation terms for abuse of discretion." (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.)
Mother challenges the juvenile court's order reducing visitation from one hour per week to one hour per month. She implicitly acknowledges that the visits were traumatic for the minor and contrary to the minor's well-being, since she recognizes that on its face the reduction of visitation appears to be beneficial to the minor's stability. But she argues reducing visits will make mother more of a stranger to the minor and predicts this will make each visit more traumatic.
We are not persuaded. Mother's speculation that the minor's reactions to mother would improve with additional visits is contrary to the record. There was no apparent improvement in the minor's post-visit behavior during the review period, despite mother having visits for two hours per week. The minor continued to become dysregulated, scratch himself, cry to the point of vomiting, and have difficulty sleeping immediately following a visit. The minor's reactions to mother were worse than his reactions to relative strangers like the visitation monitor, but in general the minor reacted poorly to any changes in his routine. The juvenile court did not abuse its discretion in determining that reduced visitation would be more consistent with the minor's well-being.
DISPOSITION
The writ petition is denied. This decision is final as to this court immediately. (Cal. Rules of Court, rules 8.450(a), 8.490(b)(2)(A).)
WE CONCUR: STREETER, J. FINEMAN, J. [*]
[*] Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.