Opinion
B297914
03-18-2020
In re R.A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MARGARET N., Defendant and Appellant.
Nicole Williams, under appointment by the California Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 17CCJP02529A) APPEAL from an order of the Superior Court of Los Angeles County, Thomas E. Grodin, Temporary Judge. Affirmed. Nicole Williams, under appointment by the California Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
* * * * * *
In July 2018, the juvenile court exerted dependency jurisdiction over a then-13-year-old girl and declined to place her with her mother after finding that doing so "would be detrimental" to the girl's "emotional well-being," but ordered the Los Angeles Department of Children and Family Services (the Department) to provide mother family reunification services. Mother appealed that ruling, but we affirmed. (L.A. Cty. Dep't of Children & Family Servs. v. Margaret M. (In re R.A.) (May 16, 2019, No. B291794) 2019 Cal. App. Unpub. LEXIS 3412 [nonpub. opn.].) Nearly a year after exerting jurisdiction, the court found that placing the girl with her mother would still be detrimental to the girl's "emotional well-being." Mother appeals this ruling, but we again affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
R.A. is the daughter of Margaret N. (mother) and Christopher A. (father). R.A. was born in 2005.
Mother's married name is Margaret M. To avoid confusion, we refer to mother as Margaret N. consistent with the juvenile court records in this case.
In 2010, the juvenile court exerted dependency jurisdiction over R.A. after finding that mother had abandoned R.A. and her brother and thereby "'failed to provide [them] with the necessities of life.'" The court then removed the children from mother, placed them with father and terminated its jurisdiction.
While in father's care, R.A. was subject to physical, emotional and sexual abuse. She was subject to physical abuse because R.A.'s stepmother would punch R.A. in the stomach and father would give her "'5 or 6 licks . . . with a belt.'" She was subject to emotional abuse because the stepmother would lock R.A. in her bedroom for hours and sometimes refuse to feed her. And she was subject to sexual abuse because she was sexually assaulted by father's friend and, after the stepmother left father, by father himself, who penetrated her with his penis and forced her to perform oral sex on him.
When father was sent to prison on child molestation charges arising from his sexual abuse of R.A., he sent R.A. to California to live with paternal grandmother. Paternal grandmother was homeless, suffering from bipolar disorder, regularly using marijuana and in a relationship with another homeless man who was on drugs, was "crazy," and regularly assaulted paternal grandmother.
These experiences left R.A. emotionally fragile. "'Sometimes,'" she explained, she found it difficult to "'stay[] positive'" because she would get "'angry'" at the "'events that have occurred.'" To cope, she would "'sing a song so she can finally cry.'"
II. Procedural Background
A. Initial assertion of dependency jurisdiction
In December 2017, the Department filed a petition asking the juvenile court to exert dependency jurisdiction over R.A. because (1) father's "sexual abuse" had placed R.A. at substantial risk of serious physical harm and created a substantial risk of sexual abuse (rendering dependency jurisdiction appropriate under Welfare and Institutions Code section 300, subdivisions (b)(1) and (d)), and (2) father had "'failed to make an appropriate plan for [R.A.'s] ongoing care and supervision'" by placing her with paternal grandmother, who has "'mental and emotional problems,'" who is a "'current abuser of marijuana'" and who associates with a man who engages in "'violent altercation[s],'" all of which had placed R.A. at substantial risk of serious physical harm (rendering dependency jurisdiction appropriate under section 300, subdivision (b)(1)).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The petition contained additional allegations but the juvenile court did not sustain them.
On December 27, 2017, the juvenile court detained R.A. and placed her with a foster mother.
In February 2018, the Department located mother in Oregon and informed her of the ongoing dependency proceedings. At that time, mother was married and had a son who "'require[d] 24/7 care'" because he suffers from "'severe[]'" autism, attention deficit hyperactivity disorder, hearing impairment and Global Development Delay. As a result of these conditions, the son has "hitting, biting, kicking and verbal outbursts up to 30 times a day to educators, family, and visitors to the home."
In July 2018, the juvenile court held a jurisdictional and dispositional hearing. The court exerted jurisdiction over R.A. on the allegations set forth above, removed her from father, and ordered reunification services for mother. The court declined to place R.A. with mother after finding, by clear and convincing evidence, that placing her with mother "'would be detrimental to [R.A.'s] safety, protection, or physical or emotional well-being and special needs'" because R.A. had been removed from mother's custody in the prior dependency case, mother had been absent for most of R.A.'s life, there had yet to be any face-to-face visits between mother and R.A., and the court had no information about the suitability of placing R.A. with mother in Oregon. The court ordered that R.A. remain with her foster mother, but ordered R.A. to begin individual therapy and ordered an examination of mother's home pursuant to the Interstate Compact on the Placement of Children (ICPC).
B. Prior appeal
Mother appealed. We affirmed the juvenile court's orders because substantial evidence supported the juvenile court's ruling. Specifically, we concluded that the record contained substantial evidence to support the finding that placing R.A. with mother would be detrimental to R.A.'s emotional well-being because (1) R.A. was "emotionally fragile" due to the "repeated[] victimiz[ation]" she had suffered at the hands of "her family and caregivers throughout most of her life," (2) mother was "not entirely blameless for R.A.'s emotional state" because mother had abandoned R.A. as a toddler and made no effort to contact her for nine years, (3) mother had not demonstrated the "emotional or financial resources to care for an emotionally fragile child, like R.A., given that mother is currently caring for her other child, who . . . 'requires 24/7 care,'" and (4) mother had yet to interact with R.A. in person, which made it "impossible to know whether she is able to provide R.A. with the emotional support R.A. keenly needs."
C. Reunification efforts
1. Six-month hearing
a. Progress
The Department arranged for R.A. and mother to have regular telephone contact, but had not been able to arrange any face-to-face visits with mother because mother had canceled a possible trip down to Los Angeles to visit R.A. "due to [a] lack of a caregiver for her seven-year-old son who[] is autistic."
In the last half of 2018, R.A. participated in individual therapy sessions to address "her depressive symptoms" as well as to "process her contact with [mother]"; R.A. was making "[m]oderate progress" in achieving her therapy goals. The Department also offered mother parenting classes and conjoint therapy with R.A., but mother declined because she was "not able to at [that] time due to not having adequate child care for her son."
The Oregon Department of Human Services completed its ICPC report on mother's home on December 11, 2018. The report recommended against placing R.A. in mother's home because (1) R.A., who has "high needs" due to her "history of trauma," needs "one on one time[] and a home that is predictable and free from violence," (2) mother's home is not such a home because R.A. would "likely" become a victim or witness of the physical violence engaged in by her half brother, which would "not assist [R.A.] in healing from past trauma," "could trigger additional mental health issues for her," and "would be detrimental to [her] development."
R.A. remained with her foster mother and family, with whom she had "well bonded."
b. Hearing
The juvenile court held its six-month progress hearing on January 24, 2019. The court found that mother had made "partial" "progress" toward "alleviating or mitigating the causes necessitating placement" outside mother's home, but found this progress was insufficient to remedy its prior concerns; "return of [R.A.]" to mother, the court concluded, would still "be detrimental to her safety and protection." The court also found by clear and convincing evidence that the Department had made reasonable efforts to reunify R.A. with mother.
R.A.'s attorney recommended that a "face-to-face" visit would facilitate reunification.
Mother filed an appeal of the juvenile court's ruling, but subsequently abandoned that appeal.
2. Twelve-month hearing
a. Progress
The Department continued to facilitate regular telephone contact between R.A. and mother. Further, the Department arranged for R.A. to fly up to Oregon to spend her week-long spring break with mother. Although R.A. was "extremely nervous" as a Department worker dropped her off at the airport for the visit, she was "extremely relaxed and happy" upon her return. R.A. was also excited at the prospect of a further visit, going so far as to ask a Magic 8 Ball toy she was holding, "Will I ever get to visit my mother again?" and repeating, "Please say yes" as she shook it for an answer.
R.A. continued with her individual therapy. However, R.A. reported being "mad" with mother because mother had made no efforts to locate R.A.'s full brother, whom mother had abandoned along with R.A. nearly a decade earlier. Mother had yet to participate in any conjoint therapy or parenting classes, but reported that maternal grandmother—who lives nearby—could act as a "[P]ersonal [S]upport [W]orker" in mother's home to care for R.A.'s half brother, and that she had applied for a "second Personal Support Worker."
Even after the spring break visit, R.A. remained torn over whether she wanted to live with her foster family or with mother.
b. Hearings
The juvenile court held its 12-month hearing on March 12, 2019, but continued it, at mother's request, until May 3, 2019 for a contested hearing regarding placement with mother.
Mother also filed an appeal of the March 12, 2019 order, but also abandoned that appeal.
The court again found that mother had made "partial" "progress" "toward alleviating or mitigating the causes necessitating" placement outside mother's home. The court also found by clear and convincing evidence that the Department had made reasonable efforts to reunify R.A. with mother.
At the hearing, R.A.'s court-appointed special advocate reported that R.A. would like to spend the "[first] half [of] the summer," but not "the whole summer" with mother, and doing so, the attorney explained, would enable R.A. "to make a decision" about her preferred placement.
After entertaining argument, the court found that returning R.A. to her mother's custody "would create a substantial risk of detriment to [R.A.'s] safety, protection, or physical or emotional well-being . . ." The court explained that mother had been absent from R.A.'s life for eight years, and that R.A.'s wishes as to whether to be placed back with mother were "important," though "not controlling." To facilitate R.A.'s informed input, the court ordered the Department to facilitate a 29-day visit during the first half of R.A.'s summer vacation.
D. Appeal
Mother filed a timely appeal from the court's May 3, 2019 order.
DISCUSSION
Mother argues that the trial court erred in not returning R.A. to her custody. At the 12-month hearing to assess the progress of family reunification services, a juvenile court is required to return a child to her parent's custody unless it "finds, by a preponderance of the evidence, that the return of the child to . . . her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (f)(1); In re Heather B. (1992) 9 Cal.App.4th 535, 545.) This is a "fairly high" standard, and one on which the Department bears the burden of proof. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789 (David B.); § 366.21, subd. (f)(1).) We review a juvenile court's finding that such detriment exists for substantial evidence, asking only whether the court's ruling is supported by evidence that is "'reasonable, credible, and of solid value.'" (In re E.D. (2013) 217 Cal.App.4th 960, 966 (E.D.).)
Whether the placement of a child with her parent would be detrimental is to be examined by looking at the totality of the circumstances. (See A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1059 ["Detriment can be shown many different ways."].) Relevant circumstances include (1) the relevant parent's "[c]ompliance with the reunification plan" (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704 (Constance K.)), and, separate and apart from that compliance, (2) the "effect . . . return [to the parent's custody] would have on the child" (In re Joseph B. (1996) 42 Cal.App.4th 890, 894), which includes, as pertinent here, (a) whether that return will "sever[] [the child's] positive loving relationship with the foster family," thereby "caus[ing] serious, long-term emotional harm" (Constance K., at pp. 704-705), (b) the "failure of [the child] to have lived with the natural parent for long periods of time" (ibid.), (c) "the manner in which the parent has conducted . . . herself in relation to a minor in the past" (id. at p. 705), and (d) the child's wishes about where to be placed (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1265 (Patrick S.)).
Under this analytical framework, substantial evidence supports the juvenile court's finding that returning R.A. to mother would create a substantial risk of detriment to her emotional well-being. Although R.A. has made "moderate progress" in addressing her emotional fragility brought on by the horrific physical, emotional and sexual abuse she suffered in the past, she still remains emotionally fragile. Mother has also admitted that she still lacks the ability to give R.A. the one-on-one attention and emotional support she needs due to the "24/7" attention that her son requires. Mother conceded in January 2019 that she did not "have anyone to help her care for her son," and the Oregon ICPC report confirmed that, absent such support, R.A.'s return to mother's care "would be detrimental to [her] development." Although mother now asserts that she has one and possibly two "Personal Support Worker[s]" to assist her, she has only applied for the second and the first is maternal grandmother who lives outside the home and is thus not available 24/7 to assist. What is more, mother's progress on reunification has been "partial" because she has made herself available for some visitation but has been unable to participate in any counseling or classes; returning R.A. to mother will sever the strong bond she has developed with her foster family over the last two years; R.A. lived away from mother for nearly a decade; the reason for this long absence is mother's abandonment of both R.A. and her full brother, and R.A. continues to be "mad" at mother for not making any effort to locate her brother; and R.A. has yet to make up her mind as to where she wishes to spend the remainder of her childhood. The totality of these circumstances supports the juvenile court's finding that placing R.A. with mother at this time would continue to be detrimental to her emotional well-being.
Mother assails the juvenile court's finding with what boils down to five arguments.
First, mother asserts it is inappropriate to count her "partial progress" in completing family reunification services against her because the juvenile court and the Department did not do their duty in making those services available to her. As a general matter, the duty to provide family reunification services is discharged when the Department has (1) "identified the problems leading to the [parent's] loss of custody" and (2) "offered services designed to remedy those problems." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) Here, the Department identified that the primary impediment to reunifying R.A. with mother was their lack of interaction due to mother's earlier abandonment of R.A., and then took steps to remedy that lack of interaction—namely, by arranging regular telephone calls, by allowing for in-person visits for incrementally longer periods of time (first a week, then a month), by ensuring R.A. attends individual therapy aimed in part at "process[ing] her contact with [mother]," and by arranging conjoint counseling with R.A. and mother. What is more, the Department was able to execute all of those remedies except the last—and the last did not take place only because mother was unable to arrange for care for her son to enable her to attend. In a world where "[r]eunification services need not be perfect" (David B., supra, 123 Cal.App.4th at p. 793, citing Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969), the services provided in this case were sufficient.
Second, mother argues that there is no longer any substantial risk of detriment to R.A.'s emotional well-being from placing her in mother's custody. Mother primarily points to her efforts to line up additional support to help her care for her son, which she then argues sufficiently frees her up to spend one-on-one time with R.A. These efforts are commendable, but substantial evidence supports the juvenile court's finding that they do not entirely eliminate the substantial risk of harm to R.A.'s emotional well-being because, as noted above, mother has only secured one additional set of hands—maternal grandmother's—and those hands are not available at all times. For an emotionally fragile teen like R.A. who needs "one-on-one" attention, this is not enough. What is more, mother's son also continues to pose a risk to R.A.'s emotional well-being because his conduct in possibly striking R.A. or others may, as the Oregon ICPC report indicated, inflict further emotional damage upon R.A. Mother points to the Oregon social worker's prediction that mother "will pass" a follow-up ICPC, but that prediction was based upon mother's as-yet-untested representations about supplemental care and is, at bottom, a prediction about a report that has yet to be researched and prepared. Mother asserts as a subsidiary matter that the juvenile court's willingness to allow R.A. to spend one week and then one month with mother on unmonitored visits means that there is no risk to R.A. from being in mother's custody; otherwise, those visits would not be appropriate. This assertion rests on the premise that allowing any amount of visitation means that all amounts are fine. This "in for a penny, in for a pound" rationale ignores that the whole point of the shorter visits was to test the proverbial waters to see whether longer-term placement would be appropriate and non-detrimental; if dipping a toe into the waters inevitably means that a child must be thrown into the deep end, a valuable and reasonable tool in furthering reunification—namely, the gradual and incremental expansion of visitation—would be lost.
Third, mother contends that the juvenile court erred in giving R.A.'s wishes too much deference. But it is well settled that a juvenile court may "consider[]" a teenage child's "preference . . . in a placement decision" as long as it is not the "deciding factor." (Patrick S., supra, 218 Cal.App.4th at p. 1265.) The juvenile court properly acknowledged the proper weight to accord R.A.'s input, and took steps to make sure R.A.'s input was informed.
Fourth, mother argues that there is no evidence that she failed to grasp "important parenting concepts," and suggests that this means she is entitled to have custody of R.A. To be sure, at least one decision provides that, in applying the "substantial risk of detriment" standard, "the juvenile court should consider only whether the parent shows a 'grasp of the important parenting concepts—things such as a child's need for security, adequate nutrition and shelter, freedom from violence, proper sanitation, healthcare, and education.'" (E.D., supra, 217 Cal.App.4th at p. 965, quoting David B., supra, 123 Cal.App.4th at p. 790.) But to the extent that decision suggests that a "grasp of . . . important parenting concepts" alone negates all other risk of detriment, we reject it. To begin, that language is drawn from David B., which made its pronouncement about grasping important parenting concepts in the course of explaining why a parent's failure to know specific details about his child's preferences did not constitute a risk of detriment. (David B., at pp. 789-790.) David B. did not purport to define a "reset button" that wipes away all other detriment. And we decline to create one: Otherwise, a juvenile court would be required to return a child to a household where violence is an everyday occurrence as long as the parent can "grasp . . . the important parenting concepts" he is ignoring or unable to apply.
Lastly, mother analogizes her case to three other cases—Patrick S., supra, 218 Cal.App.4th 1254, David B., supra, 123 Cal.App.4th 768, and In re Yvonne W. (2008) 165 Cal.App.4th 1394 (Yvonne W.). None of these cases dictates a different outcome in this case. Patrick S. held that a juvenile court erred, at the time of disposition, in not placing a child with his natural father when the sole risk of detriment came from the child's anxiousness about moving into a different home when the child and parent did not have an established prior relationship, and when the father had regularly paid child support and had no prior child welfare history. (218 Cal.App.4th at p. 1262.) Mother's prior abandonment of R.A. and mother's inability to provide for R.A.'s special emotional needs make this case different, as we noted when we distinguished Patrick S. in our prior opinion. David B. held that the juvenile court erred in not returning a child to his parent when the parent had done "virtually everything [the Department] requested of him, and then some" and the sole potential detriment came from another adult living in the parent's household and the parent's inability to recite the details of the child's preferences. (123 Cal.App.4th at pp. 790-794.) Again, mother's prior history and R.A.'s special needs make this case different. And Yvonne W. held that the juvenile court erred in not returning a child to her parent simply because the parent lived in a shelter. (165 Cal.App.4th at pp. 1401-1403.) This case rests on far more potential detriment than a housing preference.
DISPOSITION
The juvenile court's order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P. J.
LUI /s/_________, J.
CHAVEZ