Opinion
D073771
09-24-2018
In re H.T. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. K.H., Defendant and Appellant.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J515939AB) APPEAL from orders of the Superior Court of San Diego County, Michael J. Imhoff, Judge. Affirmed. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
K.H. (Mother) appeals from orders of the juvenile court declining to return her two children, H.T. and A.T., to her custody at the six-month review hearing and granting the children's foster parents de facto parent status. We conclude substantial evidence supports the juvenile court's finding that returning the children to Mother's care would create a substantial risk of detriment to their well-being and that the court did not abuse its discretion by granting the foster parents de facto parent status. We therefore affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has a long history of drug abuse and has been the subject of numerous child welfare investigations. In 2005, before H.T. and A.T. were born, Mother lost parental rights to an older child after becoming addicted to methamphetamines and leaving the child in the care of a family member with no plans to return. Between 2014 and 2016, when H.T. and A.T. were both small children, the San Diego County Health and Human Services Agency (the Agency) received approximately 10 separate complaints related to Mother's care of the children.
On February 21, 2017, when the children were three and five years old, law enforcement found them in a hotel room with Mother and a friend; inside the room, officers found a backpack containing over 150 grams of methamphetamine on a shelf and a needle used to inject drugs on the bathroom floor, within the children's reach. A couple of days later, law enforcement pulled over a stolen vehicle and discovered Mother and the children inside. There were no car seats in the vehicle and the children were wearing dirty clothing and looked like they had not been bathed for several days. The police arrested Mother and the Agency took custody of the children.
Initial Detention of the Children
The Agency filed juvenile dependency petitions for each child a few days later, alleging the children had suffered or were at substantial risk of suffering serious harm or illness due to Mother's failure or inability to supervise or protect them. The juvenile court found the Agency had made a prima facie showing on the petitions and placed the children in a licensed foster home.
In March, a worker from the Foster Family Agency (FFA) reported that the children's foster mother was concerned because Mother had told the children over the phone that she was going to take them the following day. The foster mother said the children were upset and crying for a long time after the call, and that Mother also told her, "I'm going to see my kids and you can't stop me." The FFA worker also raised concerns that Mother had previously told the children that the social worker and foster parents were preventing Mother from seeing them. Mother denied these allegations.
A few days later, the Agency conducted a social history interview with Mother. Mother asserted a social worker who had conducted previous investigations concerning her care of the children "just won't let it go." She denied any wrongdoing and said, "Right now, you have my children on allegations of things that I didn't do, because you couldn't take them on the other investigations." Regarding her history of substance abuse, Mother stated that she had not used drugs since H.T. and A.T. were born but refused to answer other questions regarding her history and refused to take a drug test. She did voluntarily submit to a drug test a couple of weeks later, and the results were negative.
Mother enrolled in a drug-free shelter on April 3, 2017 and tested negative for drugs on three separate occasions that month. She also attended a number of classes and parenting groups while there.
Jurisdiction and Disposition Hearing
On April 18, 2017, the juvenile court held a hearing on the Agency's petition. The court made true findings by clear and convincing evidence and sustained the petitions. The court found that there would be a substantial risk of danger to the children if they were returned to Mother's care and continued their placement in the licensed foster home. Finally, the court ordered the Agency to provide services to Mother consistent with her case plan and ordered Mother to comply with those services.
Mother's Progress Following the Jurisdiction and Disposition Hearing
Mother enrolled in the Incredible Families parenting education program in May. However, after a conflict at the facility with the children present, Mother was terminated from the program. Mother stated that she disliked being told what she could and could not say to her children and that authority was a "trigger" for her. The social worker referred Mother to another approved parenting program, but Mother did not like that there was a waiting list and did not enroll. After some resistance, Mother scheduled a counseling appointment with a TERM counselor. Mother attended two sessions but was terminated from that program as well for failing to comply with a policy regarding missed appointments. Mother also had conflict with the shelter staff and eventually left the shelter on her own accord.
TERM is an acronym for Treatment Evaluation Review Management. TERM psychologists and counselors are approved by the court and the Agency.
In an addendum report dated May 18, 2017, the Agency expressed concerns that Mother seemed to alienate all agencies and services designed to assist the children during dependency proceedings, and that Mother had refused to sign medical treatment authorization forms or to allow developmental assessments for the children. In addition, the children's foster mother continued to express concerns about the intimidating fashion in which Mother communicated with her and others at the children's school and medical offices. As a result, the FFA social worker started mediating communications between Mother and the foster mother.
Around the same time, the Agency placed the children with a respite caregiver for a few days and noted that Mother and the respite caregiver seemed to have a better rapport. Mother requested a change in placement for the children, and specifically asked if they could be placed with the respite caretaker. The Agency social worker initially thought a change might be appropriate, and stated that "Mother is difficult, but truly not as difficult as the current caregiver has made her out to be." However, the Agency social worker also noted that, statistically, placement changes typically had a negative effect on children. The minors' attorney disagreed with Mother's requested change, stating the children were doing fine in their current placement and that she believed Mother would have issues with anyone. In any event, the FFA "did not think a move to this placement was a good fit" and therefore denied the request to place the children with the respite caregiver. Thereafter, Mother asked the court to place the children in another foster home, but the court denied the motion.
In July, H.T. fell and broke her arm while playing at a park with her Court Appointed Special Advocate (CASA). The foster mother was not present at the time, but the CASA took H.T. to the foster parents' house immediately after the incident. The foster mother notified the FFA of the situation, and the FFA agreed to notify Mother. The foster mother examined H.T.'s arm and thought the arm looked broken so she took H.T. to the emergency room. Mother arrived at the hospital a couple of hours later and began to question H.T. about the incident, insisting that the foster mother was there when H.T. fell and stating that H.T. needed to tell her the truth. The foster mother called the CASA and the CASA explained what had happened to Mother over the phone. Despite the CASA's explanation, Mother continued to question H.T.
Thereafter, Mother demanded to be present at all medical appointments, but often demonstrated problematic behaviors at the appointments, including cursing and yelling at medical providers and staff in front of the children. Mother's outbursts caused the children to experience confusion and anxiety. In addition, Mother cancelled or rescheduled several appointments. The Agency held two meetings with Mother to address these issues, but Mother continued to interfere. In September, the Agency recommended that Mother be precluded from attending any medical or dental appointments for the children for a period of 90 days, to allow the foster parents to complete urgent and pending appointments that Mother had caused to be cancelled or delayed. The court granted the Agency's request.
The Agency's October Status Report
In a status report dated October 31, 2017, the Agency stated that Mother refused to acknowledge that her behavior was disruptive and thus made no discernable efforts to change. Mother was generally resistant to therapy and had told the social worker that therapy scared her and that she hated it. Mother also told the Agency that she had begun seeing a new therapist in October, but the therapist was not a TERM-approved therapist and did not return the Agency's calls, despite the social worker leaving at least three messages. Mother provided a letter from the therapist, but it was unsigned and undated and the Agency doubted its veracity and expressed concerns over its contents.
Mother also informed the Agency that she had completed an eight-hour parenting class through Stronger Communities. However, the class facilitator did not witness Mother's interaction with the children as the class was not one in which children participate, and the facilitator did not provide any notes or feedback regarding Mother's participation. Therefore, the Agency did not believe the class was adequate to address concerns regarding Mother's behavior.
The Agency noted that the social worker had asked Mother to write a letter to her children as part of her case plan and that instead of focusing on her own actions in the letter, Mother apologized for the actions of the Agency and law enforcement and said the "system" had taken the children away. The Agency concluded that Mother "does not accept that her actions led to the removal and therefore does not accept that she needs to do anything to addresses [sic] the circumstances that led to removal, because the removal was unwarranted and unnecessary."
Regarding visitation, the Agency acknowledged that Mother had regular visits with the children and that she was engaged and affectionate with them during the visits. However, the Agency expressed concern that Mother often made age-inappropriate comments to the children and had to be reminded not to discuss the case with the children or to question them too aggressively. In addition, the Agency discovered that Mother had recorded a private conversation between the social worker and the children from outside a closed door on October 20, 2017 and, on October 27, Mother brought the children's father to her scheduled visit without first obtaining permission from the Agency and without preparing the children for this visit.
Overall, the Agency did not believe Mother had adequately addressed the issues that led to the removal of the children from her care. Mother had not completed her reunification services, completed the requisite parenting class or individual therapy, or progressed past supervised visitation. Mother refused to accept that she needed services and insisted the children never should have been removed in the first instance. Further, the Agency continued to have concerns over Mother's mental health. The Agency therefore recommended that the children remain in their current placement.
Foster Parents' Request for De Facto Parent Status
Also in October, the foster parents requested that they be granted de facto parent status for both children. Mother objected to the request. She asserted that the foster parents did not meet the criteria of de facto parents, and that allowing them to intervene would not be in the children's best interests because the foster parents had consistently interfered with reunification and the bond between Mother and the children.
Mother's Progress Leading Up to the Six-month Review Hearing
In January, the Agency reported that Mother had been referred to Community Services for Families (CSF) for approved parenting education, but that she had not yet been assigned to a service provider. In addition, Mother had begun therapy with a TERM therapist, Jeanette Abney. Mother attended three sessions with Abney in December 2017 and had another scheduled for January 2018.
Mother had also participated in a court-ordered psychological evaluation. The psychologist who conducted the evaluation determined Mother had limited insight into her own mental health and was unwilling to examine her own role in situations. As a result, Mother reacted erratically when faced with adversity, and her defensiveness was interfering with her ability to benefit from reunification services.
Regarding visits, the Agency noted that Mother was still having trouble setting and modeling appropriate boundaries during visits. As Mother had not yet completed, or even significantly engaged in, reunification services, the Agency concluded placement with Mother would not be in the best interests of the children and recommended that they remain with their current foster parents. Six-month Review Hearing
The juvenile court held the six-month review hearing on January 22, 2018. The Agency submitted its reports, which the court read and considered, and the current social worker testified regarding the reports.
Abney, Mother's current therapist, also testified and stated that she had seen Mother six times between December 2017 and the hearing. She opined that Mother had made great progress during those sessions, that Mother was not defensive, and said that she saw no therapeutic reason why Mother should not be reunified with the children. However, she admitted she had never seen Mother interact with the children and had not reviewed the police reports from the incidents leading to the children's detention, despite Mother telling her the charges were largely unfounded. In addition, she had not yet reviewed all the relevant reports, in part because the Agency had failed to provide some of them, and she had not developed a treatment plan for Mother.
The parties stipulated that, if called, H.T. would testify that if she could live anywhere, she would want to live with Mother. The paternal grandmother of Mother's older child, with whom Mother had retained a relationship, testified that Mother was living in her home, and could continue to do so with the children if the court were to return them to Mother's care. Mother's friend also testified that she was loving and attentive with the children but admitted that he had not seen the children in nearly three years.
At the conclusion of the hearing, the juvenile court found that any progress Mother had made toward alleviating or mitigating the issues which led to the removal of the children from her care had occurred primarily in the previous two months, and that it was too soon to determine the significance of that progress. The court acknowledged that Mother was currently engaging in her services but stated that she needed to make more substantial and continued progress. The court therefore found that returning the children to Mother's custody would be detrimental and continued the placement of the children with the foster parents.
Hearing Regarding De Facto Parent Status
In a subsequent hearing, the court made a prima facie finding on the foster parents' de facto parent request and set an evidentiary hearing for February 2018. At the February hearing, Mother objected to the request and testified that the foster parents did not know anything about the children that she did not know, that the foster parents were attempting to deter rather than assist with reunification and had interfered with Mother's attempts to help the children, and that the children's behavior was declining as a result.
The court stated that it had listened carefully to Mother's testimony but concluded that the record did not support a finding that the foster parents had actively or frequently interfered to the extent that Mother stated. The court found that the foster parents had taken care of the children for the previous year and that the children were meeting their developmental milestones and overcoming some of the previously identified development concerns. The court therefore granted the foster parents' request for de facto parent status.
DISCUSSION
A. Substantial Evidence Supports the Court's Substantial Risk of Detriment Finding
Mother asserts there was insufficient evidence to support the juvenile court's finding at the six-month review hearing that returning the children to her care would create a substantial risk of detriment to their well-being.
At the six-month review hearing, the juvenile court "shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (Welf. & Inst. Code, § 366.21, subd. (e)(1).) In making this determination, the juvenile court reviews the social worker's reports and recommendations and considers the efforts or progress demonstrated by the parent and the extent to which the parent participated in the services provided. (Ibid.) Evidence that the parent has failed to participate regularly or make substantive progress in court-ordered treatment programs is prima facie evidence that returning a child to the parent's care would pose a substantial risk of detriment to the child. (Ibid.)
On appeal, we review challenges to the sufficiency of the evidence supporting a juvenile court's detriment findings for substantial evidence. (In re Mary B. (2013) 218 Cal.App.4th 1474, 1483; In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) We affirm the order of the juvenile court so long as there is substantial evidence in the record, viewed as a whole, from which a reasonable trier of fact could make the findings in question. (In re J.N., at p. 1022; In re Drake M. (2012) 211 Cal.App.4th 754, 763.) We do not reweigh the evidence or consider whether the court could have drawn a different conclusion. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 (Dakota H.).) Mother, as the appellant, bears the burden of demonstrating a lack of substantial evidence. (Ibid.)
Mother has failed to meet her burden here; there is sufficient evidence to support the court's finding that the children could not be safely returned to her care. Mother had a long history of drug abuse and criminal conduct that substantially affected her ability to safely parent her children. The petitions in this case were filed after law enforcement found Mother and the children in a hotel room with large amounts of methamphetamine on a shelf and a needle used to inject drugs on the bathroom floor, within reach of the children; and then, a few days later, discovered Mother and the children in a stolen car without age-appropriate car seats.
Mother refused to take responsibility for her own actions leading to the removal of the children and was resistant to participating in services. Shortly after the children were removed from her care, Mother began the Incredible Families program but was terminated after one session due to a conflict at the facility in the children's presence. Thereafter, Mother refused to enroll in another approved parenting program because she did not like that there was a waiting list. Mother started individual therapy but was terminated from the therapy program for failing to comply with the missed appointments policy. Mother later claimed she was seeing a new therapist and gave the social worker a letter from that therapist. However, the new therapist was not an approved therapist, the Agency was unable to reach the therapist despite repeated attempts, and the Agency had serious questions regarding the authenticity of the letter—which was not on letterhead and was not signed or dated. Overall, Mother was resistant to therapy and told the social worker that she hated therapy, did not like being told what she could say to her children, and did not like authority.
In addition, the Agency submitted several reports expressing longstanding concerns about Mother's willingness to engage in services and to accept responsibility for her role in the children's removal. The juvenile court stated it had read and considered these reports, as was required by the governing statute. (Welf. & Inst. Code, § 366.21, subd. (e)(1).)
In an effort to respond to this evidence, Mother asserts she eventually began therapy with an approved TERM therapist in December and was making progress. However, she had only begun the month before the six-month review hearing, after several other failed attempts, and had only attended approximately six sessions. Although the therapist testified that Mother had made great progress during those sessions, she also admitted that she had not yet developed a diagnosis or treatment plan for Mother and that she had never seen Mother interact with the children. Moreover, the therapist's testimony regarding Mother's progress was in direct conflict with the results of a psychological evaluation Mother had undergone around the same time. The psychologist who conducted the evaluation determined Mother had limited insight into her own mental health, was unwilling to examine her own role in situations, and reacted erratically when faced with adversity. The psychologist further concluded Mother's ability to benefit from reunification services was hampered by her own defensiveness. Ultimately, the juvenile court gave the therapist's testimony minimal weight in comparison to the remaining evidence and concluded Mother's recent progress was not sufficient to alleviate the concerns that necessitated removing the children from her care. As already noted, we do not reweigh the evidence on appeal. (In re Dakota H., supra, 132 Cal.App.4th at p. 228.)
In sum, there was substantial evidence indicating Mother failed to make substantive progress in the therapy and parenting programs mandated by her case plan, and that failure was prima facie evidence that returning the children to her care would pose a substantial risk of detriment. (Welf. & Inst. Code, § 366.21, subd. (e)(1).) B. The Court Did Not Abuse its Discretion by Granting De Facto Parent Status
Mother contends that the trial court erred by granting the children's foster parents de facto parent status. The Agency asserts Mother lacks standing to challenge the order granting the foster parents de facto parent status, and that the juvenile court did not abuse its discretion in granting the status in any event.
1. Relevant Legal Principles
De facto parent status allows the juvenile court to recognize limited rights for individuals who have assumed the role of a parent during a dependency matter. (In re B.G. (1974) 11 Cal.3d 679, 692-693; In re Kieshia E. (1993) 6 Cal.4th 68, 70-71 (Kieshia E.); Cal. Rules of Court, rule 5.502(10).) In determining whether to grant a request for de facto parent status, the juvenile court considers the following factors: whether the child is psychologically bonded to the adult; whether the adult has assumed the role of a parent on a day-to-day basis for a substantial period of time and possesses information about the child that is unique from other participants in the process; whether the adult has regularly attended juvenile court hearings; and whether a future proceeding may result in an order permanently foreclosing any further contact with the adult. (In re Patricia L. (1992) 9 Cal.App.4th 61, 66-67 (Patricia L.); In re Ashley P. (1998) 62 Cal.App.4th 23, 27.) The court does not consider whether the de facto parent status itself would be in the child's best interests, but rather whether the adult possesses information that would be in the child's best interests for the court to receive. (In re Leticia S. (2001) 92 Cal.App.4th 378, 383, fn. 5 (Leticia S.).)
Courts apply the de facto parent status doctrine liberally "to ensure that all legitimate views, evidence, and interests are considered in dispositional proceedings involving a dependent minor." (In re Kieshia E., supra, 6 Cal.4th at p. 76.) On appeal, we review the juvenile court's decision to grant or deny de facto parent status for an abuse of discretion. (In re Leticia S., supra, 92 Cal.App.4th at p. 381.)
2. Standing
To have standing to dispute an order of the juvenile court, a party must have a legally cognizable interest that was injuriously affected by the order. (In re D.R. (2010) 185 Cal.App.4th 852, 858-859.)
As the Agency points out, courts have held that a parent in a dependency appeal does not have standing to challenge a court's de facto parent status ruling. (See In re Vanessa Z. (1994) 23 Cal.App.4th 258, 260-261 [father lacked standing to challenge juvenile court's refusal to grant father's relative de facto parent status]; In re Daniel D. (1994) 24 Cal.App.4th 1823, 1835-1836 [mother lacked standing to challenge juvenile court's refusal to grant de facto parent status to grandmother].) These courts reasoned that, given the limited rights granted to a de facto parent, a parent is not materially affected by a ruling on de facto parent status. (Vanessa Z., at p. 261; Daniel D., at p. 1836.)
"A grant of de facto parent status gives a person the right to be present at the dependency hearing, to be represented by counsel, and to present evidence. [Citations.] De facto parent status does not give the de facto parent the right to have the minor placed with him or her, nor does it entitle the de facto parent a right to reunification services." (In re Crystal J. (2001) 92 Cal.App.4th 186, 191.) --------
Mother attempts to distinguish Daniel D. and Vanessa Z., which involved court orders denying de facto parent status. Mother contends her rights are materially affected because this case involves an order granting de facto parent status to individuals who are interfering with her reunification efforts.
We need not address whether this distinction is material, or whether Mother is otherwise sufficiently aggrieved by the court's order, because we are rejecting her argument that the court erred in granting the foster parents de facto parent status on the merits.
3. Merits
Mother does not dispute that the foster parents had assumed the day-to-day role of caring for the children or that they generally meet the remaining criteria for de facto parent status. Mother nonetheless contends the court should have denied the foster parents' request because they acted in a manner fundamentally inconsistent with the role of a parent by interfering with her ability to reunify with the children. (See In re Merrick V. (2004) 122 Cal.App.4th 235, 257 (Merrick V.).)
Mother's arguments were considered and properly rejected by the juvenile court. The record supports the juvenile court's determination that the foster parents did not actively or frequently interfere with Mother's relationship with the children. Although Mother and the foster mother had a contentious relationship, much of that was the result of Mother's own actions, which she continually refused to accept or address. For example, Mother asserts the foster mother refused to communicate with her, making it difficult to arrange visits and telephone calls, but the foster mother only began using the FFA worker as a mediator after Mother created conflict by regularly speaking to the foster mother in an intimidating fashion.
Rather than acting in a manner "fundamentally inconsistent with the role of a parent" (Merrick V., supra, 122 Cal.4th at p. 257), the evidence demonstrates the foster parents were trying to protect the emotional and physical well-being of the children. For example, Mother complains that the foster parents took the children to the dentist against her wishes, but Mother was so disruptive at dental and medical appointments that the court precluded her from attending such appointments so that the foster parents could obtain necessary treatment for the children. While we agree with Mother that reunification is one of the primary objectives of the dependency system, when possible, the system is also meant to protect children during dependency. Here, the foster parents' attempts to obtain medical and dental care for the children and to maintain consistency in their daily lives were consistent with that goal and, similarly, with the role of a parent.
Mother compares this case to several other cases in which caretakers were denied de facto parent status based on conduct "fundamentally inconsistent with the role of a parent." But those cases are not instructive here as each involved conduct that directly and substantially harmed the child at issue or directly violated a court order regarding the care of the child. (Leticia S., supra, 92 Cal.App.4th at p. 383; see In re Kieshia E., supra, 6 Cal.4th at pp. 76-78 [caretaker molested child]; Merrick V., supra, 122 Cal.App.4th at p. 257 [caretaker left children with unstable mother]; In re Jacob E. (2004) 121 Cal.App.4th 909, 920-921 (Jacob E.) [caretaker provided inadequate care and failed to cooperate with the Agency]; In re Michael R. (1998) 67 Cal.App.4th 150, 156-158 [caretaker allowed unauthorized visitation and refused to acknowledge children's father abused them].) By contrast, the foster parents here did not harm the children and did not violate any court orders—they attempted to protect the children from Mother's often inappropriate and potentially detrimental outbursts.
Mother also asserts the information the foster parents might offer about the children would not be neutral or objective but would be biased due to their desire to adopt the children. This is largely irrelevant, though, as the juvenile court was not required to accept any evidence offered by the foster parents without question. The court instead retained the ability to determine the appropriate weight to give to any evidence presented by the foster parents. (See Jacob E., supra, 121 Cal.App.4th at p. 919.)
In sum, the juvenile court carefully evaluated the factors relevant to the foster parents' request for de facto parent status—which deal primarily with the relationship between the caregiver and the children as opposed to the relationship between the caregiver and a parent of the children—and determined it was appropriate to grant the request. (See Patricia L., supra, 9 Cal.App.4th at pp. 66-67; Leticia S., supra, 92 Cal.App.4th at p. 383, fn. 5.) We conclude the juvenile court did not abuse its discretion in making that determination.
DISPOSITION
The orders are affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. DATO, J.