Opinion
F087018
07-09-2024
In re D.T. et al., Persons Coming Under the Juvenile Court Law. v. C.T., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Kern County. Nos. JD120341-03, JD134630-02 Susan M. Gill, Judge.
Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant.
Margo A. Raison, County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appellant C.T. (mother) is the mother of D.T. and S.R. (collectively, the children), who are the subjects of this dependency case. Mother challenges the juvenile court's orders issued at a disposition hearing that resulted in the children being placed in out-of-home care with no family reunification services provided to mother pursuant to Welfare and Institutions Code section 361.5, subdivision (e)(1). Mother contends that the court committed reversible error when it denied her family reunification services. Finding no error, we affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Initial Removal
These dependency proceedings were initiated in June 2021, after the Kern County Department of Human Services (department) received a referral alleging mother cut the children and their sister, Sp.R., with a knife and burned them to ward off demons. Mother was arrested and the children were taken into protective custody. An investigating social worker responded to the Kern County Sheriff's Central Receiving Facility to speak with mother. Mother refused to come out of her cell for an interview, and she insisted that the children should stay with her at the jail. D.T., at 14 years of age, informed the social worker that mother cut his sisters' wrists, and he was afraid when mother did not take medications for her mental health. S.R. confirmed that mother had stabbed, burned, and "whooped" her, and she did not feel safe at home with mother.
The department filed original petitions alleging the children were described by section 300, subdivisions (b), (g), and (j). The petitions alleged that the children were at substantial risk of suffering serious physical harm as a result of mother's untreated mental illness. The petition further alleged that mother left the children without support while incarcerated and previously neglected the children and their siblings. (§ 300, subds. (g) &(j).)
The department's detention report set forth mother's child welfare history, which involved numerous referrals and three dependency proceedings over the years 2009 to 2021. In March 2009, D.T. and his older brother, Brian E., were taken into protective custody by law enforcement after mother was arrested for being under the influence of phencyclidine (PCP). A dependency petition was filed and sustained based upon mother's substance abuse, and mother was ordered to participate in reunification services. The services included substance abuse and mental health treatment, and random drug testing. In September 2010, mother's family reunification services were ordered terminated.
A guardianship was established for D.T. and Brian E. at a section 366.26 hearing held in January 2011. A section 388 petition requesting termination of the guardianship of D.T. was granted in July 2012, and mother was provided family maintenance services for D.T. Dependency jurisdiction over D.T. was dismissed with sole legal and physical custody to mother in January 2013.
In April 2015, the children and Sp.R. were taken into protective custody due to domestic violence between mother and S.R.'s father. A dependency petition was filed alleging the children and Sp.R. were at risk of suffering serious physical harm due to domestic violence and mother's untreated mental illness. A first amended petition alleged that the children were also at risk due to mother's substance abuse and physical abuse of D.T. The amended petition further alleged that mother hit D.T. with a closed fist, which caused an injury to his mouth. In June 2015, the amended petition was sustained, and the children and Sp.R. were returned to mother's custody under family maintenance in October 2015. Mother was awarded sole physical custody of the children, and dependency jurisdiction was terminated in April 2016.
In June 2017, mother was arrested after she was found under the influence while S.R., at three years of age, and Sp.R., at two years of age, were at home alone with the gas stove on. Allegations of general neglect, physical abuse, and caretaker absence were substantiated, and the children, Sp.R., and their younger brother, Tyler H., were taken into protective custody. At the dispositional hearing in January 2018, the juvenile court placed the children in mother's custody with family maintenance services, which required her to participate in mental health counseling and submit to random drug tests. In September 2018, the court terminated its dependency jurisdiction and awarded mother sole legal and physical custody.
A referral for general neglect was substantiated in March 2021. Mother was arrested after she led highway patrol on a high-speed chase with the children in the car. The children were released to an adult sibling, and mother was hospitalized pursuant to a psychiatric hold. The family was referred to mental health and differential response services.
Differential Response services are voluntary services provided in situations that do not call for the filing of a dependency petition. (See § 10609.9, subd. (a)(1)(D); see also <https://www.cdss.ca.gov/inforesources/child-welfare-protection/differential-response> [as of July 9, 2024].)
At the detention hearing held on June 17, 2021, the juvenile court ordered the children detained. A combined jurisdiction and disposition hearing was set for July 26, 2021.
Jurisdiction and Disposition
The department's jurisdiction report, dated July 16, 2021, recommended that the allegations in the original petition be found true. Mother spoke with the social worker after the detention hearing. Mother denied that she had any mental health issues, and she claimed that she only smoked "weed." She acknowledged past domestic violence between herself and S.R.'s father. Mother was unable to visit with the children early in the proceedings due to a criminal protective order. The juvenile court ordered that supervised visitation was to begin if the protective order was modified.
The first supervised visit between mother, S.R., and Sp.R. occurred on October 12, 2021. S.R. and Sp.R. sat at a table without moving for most of the visit. Mother kissed and hugged them as the visit ended early. The children began refusing to attend visits with mother in the following weeks. S.R. indicated that she did not want to visit because seeing mother made her sad. S.R. informed the social worker that she wanted to be adopted by her current care provider. D.T. declined visits with mother, but he would not provide the social worker with a reason for his refusal.
At a continued jurisdiction and disposition hearing in November 2021, the juvenile court appointed a guardian ad litem for mother and continued the hearing to January 2022. A virtual visit took place between S.R. and mother on December 9, 2021, and they discussed various topics during the hour-long visit. After the visit, S.R. continued to refuse in-person visits with mother because she was scared. The social worker asked S.R. to explain further, and S.R. stated that she remembered all the things that mother did to her. However, S.R. continued to participate in virtual visits with mother.
The juvenile court conducted a jurisdictional hearing on January 19, 2022. The court sustained the allegations, adjudged the children dependents of the court and set the dispositional hearing for March 2022. The court appointed Drs. Gary Longwith and Carol Matthews to perform psychological evaluations of mother and determine whether she had a mental health disability that rendered her unable to benefit from reunification services. The evaluations were conducted in May 2022. Drs. Longwith and Matthews opined that mother was not likely to benefit from reunification services.
In a supplemental report prepared in June 2022 for the dispositional hearing, the department recommended the juvenile court deny mother reunification services under section 361.5, subdivision (b)(2) based on the results of her psychological evaluations and under section 361.5, subdivision (e)(1) because she was incarcerated and unable to reunify within the statutory timeframe.
Mother appeared out-of-custody at the contested dispositional hearing on November 15, 2022. The juvenile court did not order reunification services for mother or father, but there were no findings made pursuant to section 361.5 subdivisions (b) or (e)(1). The court ordered the children removed from mother's custody and set a section 366.26 hearing.
Prior Petition for Extraordinary Writ Relief
Mother filed a petition for extraordinary writ to challenge the order denying her family reunification services as to S.R. and Sp.R. We granted the writ in an unpublished decision after concluding the juvenile court erroneously denied reunification services to mother because it determined she exceeded the statutory limit on services prior to the disposition hearing. (C.T. v. The Superior Court of Kern County (Mar. 2, 2023, F085283).) Our writ directed the juvenile court to "conduct a new dispositional hearing and, after taking into consideration any new evidence or change in circumstances, make any appropriate orders." (C.T., F085283.) Mother also appealed the juvenile court's order denying family reunification services as to D.T. Pursuant to a joint stipulation for reversal, this court reversed the November 15, 2022 dispositional order and remanded the matter for a new dispositional hearing. (In re D.T. (July 7, 2023, F085285 [nonpub. order].)
Proceedings After Remand
On March 14, 2023, the juvenile court vacated its section 366.26 hearing, and a new dispositional hearing was set for May 8, 2023. On May 8, 2023, the disposition hearing was continued to June 30, 2023, due to the absence of a disposition report, and there was still an ongoing investigation into the family's circumstances by the department.
In its new disposition report, dated August 10, 2023, the department recommended that mother be denied family reunification services pursuant to section 361.5, subdivision (e)(1). Mother was incarcerated at the Central California Women's Facility.
On May 24, 2023, mother informed the social worker that she was sentenced to two years in state prison. Mother had 185 days of custody credits with 93 days for time served and 92 days for good behavior. The report indicated that mother still had one and a half years of her sentence to complete, but mother claimed she would be released in November 2023.
Mother wanted to receive family reunification services and reunify with the children. She continued to deny that she ever had any mental health issues or previously took psychotropic medication. Mother also stated that her involvement with the department was a big mistake, and she believed that she was being treated unfairly by the department. Mother insisted that she never stabbed any of her children, and she claimed that Sp.R. was the person who stabbed S.R.
On June 16, 2023, the department social worker spoke to a social worker at the state prison facility where mother was incarcerated. The facility social worker explained that inmates could not be offered any services until a 90-day evaluation period was completed. After the 90-day period, the inmates either remain at the facility or get transferred to another facility. There were self-help groups, substance abuse treatment classes, cognitive behavioral intervention, Alcoholics Anonymous/Narcotics Anonymous, alternatives to violence classes, and other classes. Mother would be assigned to different classes according to her needs once she was assigned to a correctional counselor. The department social worker spoke to a correctional counselor at mother's facility on July 20, 2023. The counselor indicated that the earliest that mother could be released from prison on parole was February 21, 2024.
The children and Sp.R. were placed in three separate resource family homes. The report noted that D.T., at 16 years of age, was developing on target and recently referred for mental health services. D.T. continued to refuse visits with mother, and mother was provided D.T.'s phone number to participate in comfort calls. Mother told the social worker that she was" 'extremely close'" with D.T., and she claimed that she spoke to
D.T. more than his sisters. However, D.T. denied that mother had called or wrote him letters. D.T.'s care provider explained that D.T. had an anger problem, and the care provider was interested in obtaining additional services for him.
S.R., at nine years of age, was receiving mental health services. Her mental health services were increased due to conflict between herself and her care provider. S.R. participated in an in-person supervised visit with mother in January 2023 without any noted concerns. S.R. declined any visits either at the jail or through virtual means after mother became incarcerated in February 2023. She informed the social worker that she was happy and got along with everyone in her current placement. S.R. enjoyed her occasional visits with Sp.R., D.T., and her grandmother.
In assessing the degree of detriment to the children should reunification services not be offered to mother, the department considered the children's age and degree of parent-child bonding. The report notes that, "there would be no detriment" if family reunification services were not offered to mother because she had not resolved the issues that brought the children into care. The assessment was listed in a section of the report entitled, "RISK OF DETRIMENT TO THE CHILD IF FAMILY REUNIFICATION IS NOT ORDERED-[MOTHER.]"
After multiple continuances, the juvenile court conducted a disposition hearing on October 5, 2023. Mother appeared while in custody by phone. Mother's counsel requested an additional continuance based upon representations that she could be released from custody sooner than originally anticipated. The request for a continuance was denied.
Mother's counsel proceeded to argue that mother should be provided reunification services because the department failed to prove that section 361.5, subdivision (e)(1) was applicable. She asserted that mother had the ability to participate in parenting classes and mental health services during her incarceration, and she argued that mother could continue services for two to three months after her potential release in February 2024.
Counsel for the children requested that the court order reunification services to avoid any further delays if mother pursued another appeal of the disposition. The department's counsel argued that it would be detrimental to the children to provide mother reunification services with citation to the factors set forth in section 361.5, subdivision (e)(1).
After hearing argument from counsel, the juvenile court explained that it must consider all of the factors listed in section 361.5, subdivision (e)(1), including the length of sentence. The court noted that the six-month review period would expire in
April 2024, and it did not have confidence that mother would reunify within that time period unless she accepted responsibility for her actions. The court then reasoned that: "We have [m]other not only not accepting responsibility for what she did to these little girls, but actually blaming one of the children for the injuries to the other child and the child themselves. So [m]other has not gained any insight in all the time that has passed so far. It is not likely she would be able to gain that insight and make the changes necessary within the period allowed to her, which is six months from today, with part of that time being in custody, possibly all of that time, and part of that time possibly being out of that custody. [¶] With respect to the degree of detriment to the children if services are not offered. The children are afraid of the mother. They're afraid of the mother because of what she has done to them and because of how she is-."
Mother interrupted the juvenile court's ruling to assert that her children were not afraid of her, and she claimed that she spoke to her children weekly. The court admonished mother, and it concluded the ruling as follows:
"So I find that the evidence supports that the children are afraid of the mother, that the children love their mother, that they don't mind visiting with her, at least [Sp.R. and S.R.], but that they are happy in their home[s] and they want to be adopted. Now that's not a basis to bypass, but it's certainly something to consider with respect to the children's detriment, if Family Reunification Services are not provided to the mother. [¶] The- what's happened to these children was very traumatic and very serious, and as [department's counsel] points out, it's not the first time they've been subjected to abuse or neglect. So as tempting as it is to be somewhat safe and say, okay, fine, we'll give services to mother for six months, I don't believe that would be in accordance with the law, and I'm not going to do that. So I'm hoping that when [m]other appeals, because I have no doubt [m]other will appeal, that the Court of Appeal will recognize my intent to rule in accordance with the law."
The juvenile court then proceeded to deny family reunification services to mother pursuant to section 361.5, subdivision (e)(1), and a section 366.26 hearing was set for January 24, 2024.
DISCUSSION
Mother contends the juvenile court committed reversible error when it denied her reunification services pursuant to section 361.5, subdivision (e)(1). Mother asserts that the court based its determination on an incorrect assumption that she was only entitled to six months of reunification services. She also argues that the decision improperly focused on the "perceived futility" of providing services instead of the detriment posed to the children.
A. Applicable Law
As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to "the child and the child's mother and statutorily presumed father" (§ 361.5, subd. (a)). However, it is also the "intent of the Legislature, especially with regard to young children, ... that the dependency process proceed with deliberate speed and without undue delay." (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) Thus, the statutory scheme recognizes that there are cases in which the delay attributable to the provision of reunification services would be more detrimental to the child than discounting the competing goal of family reunification. (Ibid.) Specifically, section 361.5, subdivision (b), exempts from reunification services "those parents who are unlikely to benefit" from such services or for whom reunification efforts are likely to be" 'fruitless.'" (In re Joshua M. (1998) 66 Cal.App.4th 458, 470, 474.)
The statutory sections authorizing denial of reunification services are sometimes referred to as "bypass" provisions. (Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 821.) Reunification services need not be provided when the court finds by clear and convincing evidence that a parent is incarcerated and the provision of services would be detrimental to the child. (§ 361.5, subd. (e)(1).)
In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child's attitude toward the implementation of family reunification services, as well as "any other appropriate factors." (§ 361.5, subd. (e)(1).) "Section 361.5[,] subdivision (e)(1) does not require that each listed factor exist in any particular case, nor does it specify how much weight is to be given to a factor bearing on detriment, listed or not." (Edgar O. v. the Superior Court (2000) 84 Cal.App.4th 13, 18.)
B. Standard of Review
"A court reviews an order denying reunification services under section 361.5, subdivision (b) for substantial evidence." (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) Substantial evidence exists when the evidence is "reasonable in nature, credible, and of solid value," so that "a reasonable mind would accept [it] as adequate to support [the] conclusion." (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Under this standard of review, we consider the record as a whole, in the light most favorable to the juvenile court's findings and conclusions. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) "[W]e do not make credibility determinations or reweigh the evidence." (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1121.)
C. Analysis
Mother asserts that the juvenile court erred because it improperly applied section 361.5, subdivision (e)(1). First, she contends that the court wrongly believed that mother could only receive six months of services. The court must ordinarily order family reunification services for the parent and child upon the removal of a child from parental custody. (§ 361.5, subd. (a).) Section 361.5, subdivision (a)(1)(A) sets the standard for older children: "[F]or a child who, on the date of initial removal from the physical custody of the child's parent or guardian, was three years of age or older, court-ordered services shall be provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care as provided in Section 361.49, unless the child is returned to the home of the parent or guardian."
Accordingly, while the statutory scheme generally requires that parents be provided "court-ordered services" beginning with the disposition hearing and ending 12 months after the date the child entered foster care, the Legislature has limited those services to "a maximum time period not to exceed 18 months," which may be extended to 24 months under certain circumstances. The 18- and 24-month periods are calculated from the date the child was originally removed from the physical custody of the child's parent. (§ 361.5, subd. (a)(3)(A) &(a)(4)(A).) However, "[t]he reunification period may be as short as six months, and in some dependency cases there may be no reunification period at all." (In re Zacharia D. (1993) 6 Cal.4th 435, 446; see also § 388, subd. (c)(1)(A)-(B) [allows for early termination of reunification services where the action or inaction of the parent creates a substantial likelihood that reunification will not occur].)
In its ruling, the juvenile court discussed the "requirement to give [m]other six months of reunification services, unless there's a basis not to ._" It then concluded that it was not likely that mother would be able to "make the changes necessary within the period allowed to her, which is six months from today, with part of that time being in custody, possibly all of that time, and part of that time possibly being out of that custody." The children's initial removal occurred in June 2021. Six months from the disposition hearing, April 2024, would have been almost 36-months from the children's initial removal.
Accordingly, the juvenile court would have had the discretion to terminate mother's family reunification services at the six-month review hearing based upon the outer limits on reunification. (See In re Damian L. (2023) 90 Cal.App. 5th 357, 373, ["[T]he usual requirement of 12 months of court-ordered services in [section 361.5, subdivision (a)(A)(1)] is still constrained by the 18-month outer limit."]; see also In re Jesse W. (2007) 157 Cal.App.4th 49, 60 ["Because reunification services are a benefit, not a constitutional entitlement, the juvenile court has discretion to terminate those services at any time, depending on the circumstances presented."].)
To the extent that the juvenile court may have believed that it was required to terminate services after the six-month period, we would still affirm the court's order. On appeal, a trial court's determination will be upheld where the record supports the ruling even where the reviewing court upholds it for reasons other than those stated by the trial court for its decision. (People v. Zapien (1993) 4 Cal.4th 929, 976.) We do not review the reasons for the trial court's decision, but must affirm it if it is correct on any theory, even if its reasoning was erroneous. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330; J.B. Aguerre, Inc. v. American Guarantee &Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15-16.)
There was extensive evidence of detriment in the record considering the family's circumstances regardless of the length of mother's potential reunification period. The degree of parent-child bonding was minimal due to the children's consistent refusal to visit with mother in-person over the past two years. There were several aspects of treatment that mother needed to undergo to resolve the problems that led to the children's removal, and mother continued to deny that she had mental health problems or previously abused the children. Furthermore, D.T., at age 16, did not wish to return to mother's care.
Accordingly, the juvenile court's denial of reunification services was not an abuse of discretion.
Finally, mother argues that the juvenile court improperly focused on the futility of providing services instead of the detriment posed to the children with citation to In re Kevin N. (2007) 148 Cal.App.4th 1339. In Kevin N., the trial court denied an incarcerated parent reunification services with regard to his 12- and 15-year-old children based on a mistaken belief services were limited to six months and without making the required finding that services would be detrimental to the children. (Id. at p. 1341.) Instead, the trial court found services would be futile even if offered for 18 months because the parent would only get out of prison a month before that period would end. (Id. at p. 1344.) Because the trial court never addressed the issue of detriment, the order denying services had to be reversed. (Id. at p. 1345.) It was in this context the Kevin N. court observed that finding services would be futile is not the same as finding services would be detrimental to the children.
Here, the juvenile court properly identified and analyzed the detriment factors under section 361.5, subdivision (e)(1). Thus, the court expressly found providing services to mother would be detrimental to the children. It was undisputed that mother would need to both recognize and properly treat her mental health issues, and she also needed to repair her relationship with the children after perpetrating physical abuse on them. As previously discussed, there were multiple factors, including the lack of a parent-child bond, nature of treatment, and the wishes of D.T., supporting the court's detriment finding under section 361.5, subdivision (e)(1). At no point did the court solely rest its decision on the futility of providing mother services. Accordingly, we conclude the court adequately complied with the relevant provisions of section 361.5, subdivision (e)(1).
DISPOSITION
The orders appealed from are affirmed.
[*]Before Levy, Acting P. J., Poochigian, J. and Snauffer, J.