Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Super. Ct. Nos. JUV508802, JUV508803. Nancy Williamsen, Commissioner.
Nadine Salim, for Petitioner.
No appearance for Respondent.
Michael H. Krausnick, County Counsel and Linda S. Macy, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Vartabedian, A.P.J., Harris, J., and Cornell, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450, 8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner is the mother of four daughters, E., C., S. and R., and a son, A. R. and A., the subjects of this writ petition, are fraternal twins. Aaron, petitioner’s boyfriend, is the presumed father of all of the children except E.
Aaron did not file a writ petition.
Although petitioner and Aaron exposed the children to domestic violence and unsanitary living conditions, the most deleterious act committed and the one germane to the issues raised here, was petitioner’s refusal to act on allegations Aaron molested E. and S. The first allegation surfaced in 2001, when E.’s father had her medically evaluated after noting she had a black eye and observing her masturbating and playing with her doll in a sexual manner. E., then three years old, reported that Aaron punched her in the eye and stomach and touched her vaginal area, which, though noted to be red, revealed no signs of sexual abuse.
Petitioner refused to believe that Aaron sexually molested E. and accused E.’s father of making up the allegations. E. subsequently went to live with her father who obtained sole custody of her. The allegation of sexual abuse was not substantiated. However, in May 2004, E. reiterated her allegations during a counseling session in which she expressed concerns about the safety of her half-siblings.
In November 2005, the specter of sexual abuse was raised again when then four-year-old S., observed to have a red torn area on the upper part of her vagina, stated “dad hurts me” and “mom puts medicine on it and makes my pee pee feel better.” Aaron and petitioner denied any inappropriate contact and a forensic examination revealed redness but no findings of sexual abuse.
Following S.’s disclosure, the social services agency (agency) removed S., then four-year-old C., and the three-year-old twins from petitioner’s custody and filed a dependency petition on their behalf, alleging inter alia that Aaron sexually abused E. and S. and that petitioner failed to protect them. (§ 300, subds. (b) & (d).) At the time of the removal, the children were living with petitioner and Aaron was restrained from having contact with petitioner and the children by an order issued in 2004. However, petitioner admitted that Aaron spent the night in the home the night before the children were taken into protective custody.
The juvenile court ordered the children detained and they were placed in two separate foster homes; the twins in one and C. and S. in another. The juvenile court sustained the allegations as set forth in the petition and set the matter for disposition.
In its dispositional report, the agency recommended the court provide petitioner and Aaron reunification services but expressed its concerns about the family’s circumstances. The agency reported that petitioner steadfastly defended Aaron despite allegations from two of her children that he molested them. In addition, petitioner admitted being a victim of sexual molestation for which she had not received counseling. Further, the children appeared to have developmental disabilities which had not been adequately assessed and treated and the family had chronic problems either maintaining a residence or maintaining a sanitary residence.
At the dispositional hearing in February 2006, the juvenile court ordered reunification services for both parents. The court ordered petitioner to participate in sexual abuse counseling and complete a parenting program. The court also ordered the children to be assessed for mental health and/or other health services.
Sometime between February and May 2006, all four children were placed together in the same foster home. However, C. and S. had to be removed because they were acting out sexually with each other and with A. and R. The agency planned to reunite the children after C. and S. received counseling.
Meanwhile, petitioner found part-time employment and enrolled in school. She also completed a parenting program and was participating in individual parenting sessions. In addition, she began sexual abuse counseling in February 2006 but missed a significant number of sessions due to transportation problems. When the case worker confronted petitioner with the subject of her children’s sexual behavior, petitioner did not seem to understand their behavior or know if they had been abused. The case worker urged her to participate in sexual abuse counseling so that she could gain insight into their sexual abuse and sexual acting out. Petitioner also expressed concerns about being depressed and needing additional services. Consequently, the agency added a mental health assessment to her case plan.
Despite petitioner’s progress, the agency concluded it would be detrimental to return the children to her custody and recommended the court continue reunification services for her. The court did so at the six-month review hearing in July 2006. At the same hearing, the court terminated Aaron’s reunification services.
Over the next six months, petitioner participated in parenting sessions with her children but was observed to be emotionally disconnected from them and seemed to have difficulty controlling their behavior. Concerned that petitioner may be unable to form a strong bond with the children, the agency referred petitioner to a psychologist who concluded she was capable of developing normal attachments.
Petitioner also participated in sexual abuse counseling but her attendance continued to be poor, resulting in her temporary suspension from the program. Meanwhile, C. and S. were receiving weekly sexual abuse counseling. Petitioner was asked to participate in their counseling sessions but only attended one of the three sessions scheduled.
In its 12-month status review, the agency reported that petitioner was making progress but needed more services. The agency also reported that petitioner was no longer employed. The agency was concerned because, even though petitioner claimed to have severed ties with Aaron, she was living with Aaron’s stepfather. In March 2007, at the 12-month review hearing, the juvenile court continued petitioner’s reunification services to the 18-month review hearing, which it set for May 2007.
The 18-month review hearing was continued until July 2007. Meanwhile, petitioner’s ability to supervise the children and respond to their needs had reportedly improved. However, the family counselor was concerned that she would not be able to provide full time care and supervision for “four extremely active children” who would “stress even the most mature and competent parent.” The family counselor further stated that were it not for Aaron’s stepfather, he would not have confidence that petitioner could provide the necessary care and supervision for the children. Nevertheless, he recommended that the court provide petitioner long-term supportive services if it decided to reunify petitioner with the children.
Petitioner had also reportedly progressed in her sexual abuse counseling from the Parent Support Group to the Adults Molested as a Child group, which she was attending regularly and in which she was actively participating. Having completed the Parent Support Group, petitioner was eligible for a recommendation of reunification and therapeutic support during the process.
However, the children’s circumstances had not improved to the point that they could be safely returned to petitioner’s custody. Despite continual therapeutic intervention, C. and S. were still acting out sexually with each other. To prevent sexual contact between the two, the foster parents had to constantly supervise them and force them to sleep in separate bedrooms with alarm systems on the bedroom doors. There was also concern that C. and S. might victimize their younger siblings after S. was suspected of touching R. in the bathroom during a visit at petitioner’s home. Finally, there was also evidence the children were being exposed to sexualized behavior in petitioner’s home. R. and A.’s foster parents observed them “bumping” their private parts together. When asked where they learned that behavior, both children replied “Grandpa and Mommy do it.”
In light of the high potential for sexual abuse among the children, the agency concluded all four children could not be placed in the same home. Further, because the agency concluded petitioner could not provide a safe home, the agency recommended the court terminate reunification efforts and pursue a permanent plan of adoption for all four children.
At the contested 18-month review hearing in July 2007, the court provided an indicated decision in which it would terminate reunification services for R. and A. and continue services for C. and S. The court explained that it would be detrimental to return all four children to petitioner’s custody because there was a substantial risk of them molesting each other and petitioner would not be able to prevent that, not because of her inability to supervise them but because they were so “damaged.” However, the court concluded petitioner had a better chance of reunifying with C. and S. because they were less dependent and, because they were of school age, petitioner would get respite while they were in school. Consequently, the court continued services to petitioner for C. and S. The court found petitioner was provided reasonable services, terminated them as to A. and R. and set a section 366.26 hearing to consider a plan of adoption for them. This petition ensued.
DISCUSSION
I. The juvenile court properly decided not to return A. and R. to petitioner’s custody.
Petitioner argues there was insufficient evidence that C. and/or S. would sexually abuse A. and/or R. if all four children were placed in her custody. Further, even if such a risk existed, she argues, there was insufficient evidence she could not protect A. and R. given the progress she made in sexual abuse counseling. Consequently, she argues, the juvenile court erred in not returning A. and R. to her custody at the 18-month review hearing. We disagree.
In determining whether it can safely return a child to parental custody at the 18-month review hearing, the juvenile court must assess the degree of risk such a decision would pose to the child. (§ 366.22, subd. (a).) If the court concludes that the child’s return would create a substantial risk of detriment to the child’s safety, protection, or physical or emotional well-being, the court must order the child’s continued removal. (Ibid.) Given the juvenile court’s broad discretion in ruling at the 18-month review hearing, we will uphold the juvenile court’s finding of detriment if it is supported by substantial evidence. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) In determining whether substantial evidence supports the juvenile court’s finding, we view the evidence in a light most favorable to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court’s ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
In this case, the strong probability that C. and/or S. would sexually abuse their younger siblings if given the opportunity is far more compelling than any evidence petitioner could protect them. C. and S. had to be constantly supervised to prevent them from acting out sexually and there was strong suspicion that S. sexually abused R. Further, petitioner had a history of failing to protect her children from sexual abuse and she had difficulty controlling their behavior. Given the near certainty that sexual abuse would occur and the uncertainty that petitioner could prevent it, the court did not err in finding R. and A. would be at a substantial risk of detriment if returned with C. and S. to petitioner’s custody.
II. Petitioner was provided reasonable services.
Petitioner argues the agency should have provided her instruction or counseling on keeping her children safe from sexual abuse. Since, it did not, she claims, the court erred in finding she was provided reasonable services. We disagree.
Petitioner was provided parenting instruction. She was also provided child sexual abuse treatment services, which included components for parents of sexually abused children and adults molested as children. According to the record, the case worker urged petitioner to more actively participate in her sexual abuse counseling so that she could understand why C. and S. acted out sexually. In addition, C. and S. were provided extensive sexual abuse counseling as a result of their sexual acting out and petitioner was invited to participate in joint sessions. While, we do not know specifically what was addressed in the counseling sessions, we can reasonably infer that somewhere in that counseling, the issue of intra-sibling sexual abuse, signs of its occurrence, and means to prevent it was discussed. Consequently, we conclude, based on this evidence, petitioner was provided reasonable services.
III. The juvenile court properly terminated reunification services.
Petitioner argues the extent of her children’s emotional damage caused by sexual abuse established a “special need,” which, under the authority of In re Elizabeth R. (1995) 35 Cal.App.4th 1774 (Elizabeth R.), warranted continued services. Therefore, she claims, the juvenile court abused its discretion in terminating her reunification services at the 18-month review hearing. We disagree.
While the Legislature contemplated an 18-month limitation on family reunification, the juvenile court is not statute-bound to terminate reunification efforts just because 18 months have elapsed. (§ 366.22; Elizabeth R., supra, 35 Cal.App.4th at p. 1794.) Rather, the juvenile court retains discretion, albeit limited, to extend reunification services beyond the18-month limitation in a special needs case. (Elizabeth R., supra, at pp. 1793-1799.)
The cases in which courts have found special needs involved extraordinary circumstances through which some external factor prevented the parent from participating in the case plan. (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388.) In Elizabeth R., the “special need” was the mother’s mental illness. (Id. at p. 1792.) The court of appeal held that a juvenile court has discretion to order services beyond the 18-month hearing date where appropriate to help a “special needs” parent work toward reunification where a continuance serves the best interest of the child. (Id. at p. 1787, 1799.)
Even assuming without deciding that the extent of C. and S.’s emotional damage presented a “special need,” there is no evidence continuance of the 18-month review hearing would serve A. and R.’s best interests. According to the appellate record, they were both doing well in foster care and bonded to their foster family. Further, given the extensive therapy and counseling it would take to improve the situation, there is no reason to believe reunification could be achieved within even another six months. Consequently, we conclude the juvenile court did not abuse its discretion in terminating petitioner’s reunification services at the 18-month review hearing. We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.