Opinion
A150942
05-25-2017
Andrea L., Petitioner, v. SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Real Party 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. J15-00222)
At a March 2017 dispositional hearing on a Welfare and Institutions Code section 387 petition, the juvenile court denied Andrea L.'s (mother) section 388 petition, modified her visitation, and set a section 366.26 hearing (.26 hearing). Mother petitions for writ relief, contending insufficient evidence supports the dispositional order, and that the court erred by modifying visitation.
All undesignated statutory references are to the Welfare and Institutions Code. Section 387, subdivision (b) authorizes the filing of a supplemental petition where "the previous disposition has not been effective in the rehabilitation or protection of the child."
We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Detention and Jurisdiction
In February 2015, the Contra Costa Children and Family Services Bureau (Bureau) filed a petition alleging J.J. — then two months old — came within section 300, subdivision (b) because mother had a substance abuse problem and had exposed J.J. to domestic violence. The Bureau alleged father strangled mother and dragged her around the house, "hit mother in the face with a closed fist and pulled mother's hair while [J.J.] was in mother's arms." Father also "trapped mother in the bathroom, held her down with his body, and poured water over her head. Father dragged mother outside the home and locked her out."
Presumed father (father) is not a party to this proceeding and is mentioned only where necessary.
Mother admitted using methamphetamine with father at their residence, while J.J. was "in the home." Mother attended a substance abuse treatment program in 2014, but relapsed in February 2015. Mother acknowledged the domestic violence with father and described the incident where father hit her, pulled her hair, and dragged her around the house. The court detained J.J., placed him in out of home care, and ordered visitation. At the jurisdictional hearing, mother pled no contest to the allegations of an amended petition and the court determined J.J. came within section 300, subdivision (b). Initial Disposition, and Review Hearings
According to the Bureau's disposition report, mother acknowledged using methamphetamine but did "not think that she need[ed] to be in the drug treatment program." Mother blamed herself for the domestic violence in her relationship with father. Father began using heroin at age 13 and methamphetamine at age 22. Mother and father used drugs together; mother periodically went to substance abuse treatment, but left treatment to be with father. In a supplemental report, the Bureau noted mother had left her inpatient drug treatment program in April 2015, because she "was 'stressed out' and 'overwhelmed with the drama.' " Mother visited J.J. regularly but visits were "stressful for both parties." At the dispositional hearing, the court ordered reunification services, and required mother to, among other things, complete a substance abuse treatment program and a domestic violence program.
In January 2016, the court continued reunification services. Father had completed a drug treatment program and visited J.J.: he "exceeded" the Bureau's expectations regarding his case plan. Mother completed a substance abuse treatment program in October 2015 and resided in a sober living facility. Mother's visits with J.J. were "rough for both the mother and son." At least one visit was terminated because of J.J.'s "excessive crying and upset."
The Bureau's 12-month review report noted father's "consistent progress" in his case plan: he was sober and had a full-time job. Mother, however, had been terminated from her sober living facility. She was often uncooperative, argumentative, and confrontational with the social worker, and reluctant to follow the social worker's recommendations. Mother was involved in an altercation with father in June 2016. She was also pregnant with father's child but did not tell the social worker about the pregnancy for several months. A psychiatric assessment indicated mother was "of borderline intelligence and was just capable of performing her activities of daily living at a minimal level."
In November 2016, mother gave birth to a son (the baby). --------
In September 2016, the court returned J.J. to father's care under a family maintenance plan and terminated mother's reunification services. Mother continued to receive services under father's family maintenance plan.
Supplemental Petition and Mother's Section 388 Petition
In December 2016, the Bureau filed a supplemental petition (§ 387) alleging father used heroin in November 2016, while J.J. was in his care. The court detained J.J., sustained the allegation in the supplemental petition, and determined J.J. came within section 300, subdivision (b). The court authorized overnight visits with mother "so long as she is living in her . . . sober environment" but cautioned mother that unsupervised or overnight visits would be discontinued if she allowed father to have contact with J.J. The court set a hearing date for disposition on the section 387 petition.
Combined Hearing on Disposition and Mother's Section 388 Petition
In its dispositional report, the Bureau recommended terminating reunification services and setting a .26 hearing. The Bureau noted father had used heroin while caring for J.J., and had driven mother and J.J. while he was under the influence of the drug. The Bureau believed mother lied when she claimed she did not know father was under the influence while driving. According to the Bureau, there was a "real concern" mother could relapse because mother and father "admittedly 'used' [drugs] together" and because they lied to "cover[ ] for the other during this case."
The Bureau noted mother's "good progress" with her case plan and commended her for being sober "for over a year now." The Bureau opined, however, that if mother were to have custody of J.J., she would likely reunite with father, "as they have planned." When mother and father were together, "it has turned 'toxic' for the couple and dangerous for their son . . . They have been involved in serious domestic violence incidents . . . . [T]his is not a healthy relationship." For these reasons, the Bureau opined it would not be in J.J.'s best interest to return to mother's care.
In February 2017, mother filed a section 388 petition (form JV-180) requesting family maintenance services. She noted she was "having 5 overnights every other week with [J.J.]," had "successfully completed all of her programs," and was "living in a sober living environment suitable for both of her children." Mother alleged J.J. "would benefit" from living with her and "would suffer an extreme loss" if separated from her.
The court held a combined hearing on disposition and mother's section 388 petition in February and March 2017. Mother's therapist testified she worked with building an attachment between mother and J.J., and helped mother with her parenting goals. The therapist did not discuss mother's relationship with father, but mother did tell the therapist that she was not in a relationship with father, was not happy with his decisions, and that she would not do anything to jeopardize losing her children.
Mother testified she participated in a domestic violence program and had completed a substance abuse treatment program. She was living in a sober living environment, where men were not allowed. She had five overnight visits with J.J. in a 14-day period and the visits were going well. Mother did not know father was under the influence of heroin when he drove her and J.J. in November 2016. Mother acknowledged her relationship with father was unhealthy and unsafe but she continued to communicate with him and had not sought custody of the baby in family court. In December 2016, mother posted a photo with father and the baby with the hashtags: "#BonnieandKlyde#MyRideorDie" and "#Myforever#Familyfirst . . . #MyHubby . . . #Iloveyou4ever." Mother ended her relationship with father in late January 2017, but she spoke to father in mid-February.
The social worker testified mother had complied with the services the Bureau had provided and was not using illegal substances. The social worker, however, believed mother was not being truthful about her relationship with father. Mother hid her pregnancy from the social worker, and did not tell the social worker father had relapsed. The social worker saw mother and father hugging, kissing, and holding hands in January 2017; the social worker believed they were in a relationship and that mother would not protect J.J. if she reunited with father. As the social worker explained, "[T]hey're both very good at justifying things and manipulating each other. . . . [Father] has said that [mother] will get [J.J.] back and then he can see them whenever he would like."
The social worker did not see a change in circumstances that would warrant providing mother with family maintenance services, nor a likelihood mother could reunify with J.J. if she received family maintenance services. The social worker based her opinion on mother and father's relationship history, mother's dependence on father, her desire to have father in her children's lives, and her failure to acknowledge that she knew father was using heroin in late 2016. Additionally, mother allowed father to hold J.J. in violation of a court order prohibiting father to have unsupervised visitation. In discussions with the social worker, mother had not acknowledged the role domestic violence played in the filing of the dependency petition, nor had she demonstrated any insight into the cycle of domestic violence in her relationship with father.
The Court's Ruling
At the conclusion of the combined hearing in March 2017, the court denied mother's section 388 petition, concluding she failed to demonstrate a change in circumstances or that receiving family maintenance services would promote J.J.'s best interest. The court opined mother's denial of her relationship with father was "unbelievable" and "incredible" and that mother had been "caught . . . time and time again . . . in a web of deceit." The court determined mother was not "credible" when she claimed she did not know father was using heroin in late 2016. Additionally, the court found mother "failed to demonstrate . . . any insight to the dysfunction of this relationship, the impact of this dysfunction, substance abuse and domestic violence" on J.J.
The court found by clear and convincing evidence that placing J.J. with mother would be detrimental to his safety, protection, or well-being. The court ordered supervised visitation for mother and set a .26 hearing. Mother petitioned for writ review (Cal. Rules of Court, rule 8.452).
DISCUSSION
I.
Substantial Evidence Supports the Court's Detriment Finding
Mother claims insufficient evidence supports the court's finding that it would be "detrimental to return" J.J to her care. This claim fails because it presents a distorted view of the record, focusing only on the evidence favorable to mother. " 'A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient.' " (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) Because mother ignores the ample evidence in the record favorable to the Bureau, we may treat the substantial evidence issue as waived and presume the record contains evidence to sustain every finding of fact. (Arechiga v. Dolores Press, Inc. (2011) 192 Cal.App.4th 567, 572, overturned by statute on other grounds, Stats. 2012, ch. 820, § 1, p. 6519.)
Mother's claim also fails on the merits. " ' "At the dispositional hearing, and at each review hearing prior to permanency planning, there is a statutory presumption that the child will be returned to parental custody . . . . At 6-, 12-, and 18-month review hearings the juvenile court must return the child to the custody of the parent unless it determines . . . that return of the child would create a substantial risk of detriment to the child's physical or emotional well-being." ' " (In re E.D. (2013) 217 Cal.App.4th 960, 965; see also §§ 361 subd. (c)(1); 366.21, subd. (f).)
The record contains substantial evidence supporting the court's determination that returning J.J. to mother's care would create a substantial risk of detriment to J.J. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.) The Bureau's dispositional report on the section 387 petition expressed a concern for mother's sobriety because father had used heroin, and because mother and father used drugs together and lied to protect each other during the dependency. The Bureau's reports also chronicled the "toxic" interactions between mother and father, including "serious domestic violence incidents." At the dispositional hearing on the section 387 petition, the social worker testified mother was in contact with father, and was likely to reunite with him. In discussions with the social worker, mother had not acknowledged the role domestic violence played in the filing of the dependency petition, nor had she demonstrated any insight into the cycle of domestic violence in her relationship with father. Instead, she allowed father to have contact with J.J. in violation of a court order.
This evidence overwhelmingly supports the court's detriment finding. Mother's reliance on her testimony — which the court characterized as "unbelievable" and not "credible" — does not alter our conclusion. When reviewing the juvenile court's detriment finding for substantial evidence, we will not "reweigh the evidence or express our independent judgment on the issues before the [juvenile] court." (In re Jasmon O. (1994) 8 Cal.4th 398, 423.) This case is not, as mother claims, like Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 (Jennifer A.), where there was no evidence mother's marijuana use created "a substantial risk of detriment to the physical or emotional well-being of the children in light of the factors in this case militating in favor of their return." (Id. at p. 1346.) Here and in contrast to Jennifer A., there was ample evidence mother's failure to address her issues with domestic violence negatively impacted her ability to care for and protect J.J.
We commend mother's progress in alleviating certain issues that led to the dependency, but we conclude the evidence — when viewed most favorably to the Bureau — supports the court's detriment finding. (In re Mary B. (2013) 218 Cal.App.4th 1474, 1483.)
II.
The Court Did Not Abuse Its Discretion by Modifying Visitation
Mother also contends the court erred by modifying visitation. The trial court has wide discretion to decide the terms and conditions of visitation, and its determination will not be disturbed in the absence of a manifest showing of abuse. (In re Marriage of Murga (1980) 103 Cal.App.3d 498, 504; In re Daniel C.H. (1990) 220 Cal.App.3d 814, 839.) We are not persuaded by mother's claim that the order modifying visitation is "entirely inconsistent" with the evidence and "is contrary to the best interest of the child." The evidence discussed at length above supports the order modifying visitation. (In re Julie M. (1999) 69 Cal.App.4th 41, 50.) The only case cited by mother — In re Brittany S. (1993) 17 Cal.App.4th 1399 — does not apply because it concerned the adequacy of a case plan providing no visitation.
DISPOSITION
Mother's petition seeking extraordinary relief from the juvenile court's March 22, 2017 order is denied on the merits. This decision is final immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.