Opinion
D072170
09-19-2017
In re A.V. et al., Persons Coming under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. P.V., Defendant and Appellant.
William H. Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Patrice Plattner-Grainger, Senior 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NJ015113 A-D) APPEAL from an order of the Superior Court of San Diego County, Michael Imhoff, Judge. Affirmed. William H. Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Patrice Plattner-Grainger, Senior Deputy County Counsel, for Plaintiff and Respondent.
P.V. (mother) appeals from an order in which the juvenile court declined to return her children L.V., V.V., J.V. and A.V. to her custody after her 18-month review hearing (Welf. & Inst. Code, § 366.22) and found it was in the children's best interests that she be provided with an additional six months of reunification services. Mother contends the court's finding is not supported by substantial evidence; that the evidence shows returning the children to her custody would not be detrimental because she had actively participated in reunification services, was capable of meeting the children's special needs, and had resolved the issues that brought the children into the dependency system. We conclude the court did not err; that evidence of the children's special educational, developmental, and mental health needs, the social worker's conclusions as to mother's present inability to care for those needs, and mother's questionable judgment generally, supports the juvenile court's finding that returning the children to mother's custody would pose a substantial risk of detriment to their emotional and physical well-being, but that mother should be provided additional services. We affirm the order.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Jose. V. are the parents of children L.V., V.V., J.V. and A.V. (together, the children). Mother has another older son who lives with that child's father. In September 2015, the San Diego County Health and Human Services Agency (Agency) filed a petition on the children's behalf alleging they came within the juvenile court's jurisdiction under section 300, subdivision (b) after the parents admitted they had used drugs while caring for them, and Jose V. was under the influence of drugs while driving with V.V. and L.V. in his vehicle. Days earlier, police had arrested the parents in connection with a robbery. In addition to V.V. and L.V., police found methamphetamine, heroin and scales in the vehicle, and later found drug paraphernalia in their home. L.V., who was then age one, tested positive for amphetamine and methamphetamine, but mother claimed not to know how that had happened. Mother and Father differed on how much and when they had recently used drugs. Mother had a history of domestic violence in her relationships. A.V. and L.V. were detained in a foster home; J.V. was detained in a separate foster home, and V.V. was detained in a relative's home. A social worker recommended that mother and father have supervised visitation.
In October 2015, the court found the allegations of the petition to be true, declared the children dependents, and removed them from their parents' custody. It ordered mother to participate in reunification services consisting of a domestic violence program, a parenting program, an outpatient substance abuse program, random drug testing and a 12-step program.
In an April 2016 status report, an Agency social worker recommended the children remain dependents and that the parents receive six more months of reunification services. Mother had delayed enrolling in substance abuse and domestic violence programs, and had tested positive for alcohol in March 2016. She participated in parenting education and was doing well in various areas including visits and discussions, but was consistently tardy. The social worker reported that though A.V. and J.V. were developmentally on track, V.V. and L.V. both exhibited global developmental delays. V.V. exhibited limited vocabulary and behavioral concerns, including severe temper tantrums, which increased in frequency when he was presented with changes to his daily routine. He was described as emotionally reactive and showed attention problems, aggressive behavior, anxiety and depression. Mother was unable to address V.V.'s temper tantrums or calm him. L.V. also exhibited concerns in communication, motor skills, problem solving and personal/social skills. She was diagnosed with mild cerebral palsy, and needed weekly occupational and physical therapy.
As of April 2016, father was incarcerated. He was released in April 2017, shortly before the 18-month review hearing. He is not a party to this appeal.
The court held a six-month review hearing in April 2016, and found mother had made moderate progress in alleviating the causes of the children's dependency, but that returning the children to her custody would create a substantial risk of detriment to their physical and emotional well-being. It continued services another six months.
In October 2016, Agency reported Mother was sleeping on a friend's couch, and had put herself on a waitlist for housing. She was participating well in substance abuse and domestic violence programs, as well as parenting classes. She recognized the harm and danger to her children by her staying in the violent relationship with their father. Mother struggled, however, with visitation with A.V., J.V. and L.V. The foster mother expressed concern that due to the severity of J.V. and L.V.'s "melt downs," someone would "end up in the hospital." J.V. would throw items at mother or kick her, and then progress to hitting his own head on concrete, a brick wall, or a metal pole. Mother had a difficult time with them without a visitation coach present. She also had a difficult time handling V.V.'s behaviors during visits; though the foster mother made suggestions on how to handle his temper tantrums and aggression, mother did not listen and instead tried to distract him by offering food. The children had had unforeseen placement changes (with A.V. and L.V. changing placements in April 2016 and again in August 2016) due to issues with the foster parents, but A.V., J.V. and L.V. were placed together in the same foster home. Agency changed V.V.'s placement in September 2016; it was unable to locate a home for him due to his special behavioral and developmental needs.
Agency's social worker concluded that mother had not demonstrated she could meet L.V. and V.V.'s special needs and global developmental delays, which were observed to stem possibly from the past trauma of having parents under the influence of drugs and witnessing their ongoing volatile arguments and fights. Nor could mother alone meet the needs of A.V., who was compelled to act as a parent, or J.V., who struggled with controlling his anger and frustration; the social worker emphasized that the children's needs required a lot of time, energy and patience, and they required consistency, stability and permanence, which mother had shown she could not provide. Though mother had undergone 12 months of services, she was "coaxed, motivated, encouraged, and instructed to enroll . . . and consistently participate." According to Agency, mother "did not do much during the first six months" and had only decided to consistently participate in a substance abuse program a few months earlier. Agency, as well as the children's special advocates (CASAs), recommended that they remain dependents. Agency additionally recommended that mother's reunification services be terminated. The CASAs recommended that mother continue to receive services to the 18-month review date. In part based on Agency's and the CASAs' reports, the court set the matter for a 12-month review in December 2016.
In late December 2016, mother gave birth to her sixth child, who was born two months premature. Mother had not informed the social worker of her pregnancy and birth, and Agency generated another referral for her alleging general neglect. Mother stated she had no relationship with the child's father. As a result of mother's lack of disclosure about the event, her case manager discharged her from her family housing program (Solutions for Change), and mother moved in with her grandmother and the grandmother's children in an apartment home. She reported she had petitioned for divorce from Jose V.
The court held the 12-month review hearing in December 2016. It found mother had made substantial progress toward alleviating or mitigating the causes necessitating the children's placement, but that placement with her would be detrimental to the children because she needed to address her chemical dependency, nurture her relationship with the children, and provide stable and appropriate housing. The court set the 18-month review hearing for March 2017.
In March 2017, Agency's social worker again recommended that at the 18-month review hearing reunification services be terminated as to all of the children and the matter be set for a section 366.26 hearing. The social worker reported that Mother started participating in outpatient substance abuse services in June 2016 without any positive drug tests but stopped when she gave birth in December 2016 and restarted in January 2017. She had completed a domestic violence program as well as parenting assignments, including an assignment requiring her to describe each child's special needs and how she planned to meet those needs. The social worker reported that though mother had been permitted unsupervised visits in mid-December 2016, she did not begin those visits until the end of December given the unexpected birth of her sixth child and its complications. Mother visited with the children at least twice a week, but the foster parents reported that she was oftentimes very late, sometimes hours late, which had been a "constant issue." The foster parents were concerned about mother's inability to manage her time, schedule and transportation. The social worker observed one visit in which mother fed the children dinner and desert, encouraged their use of manners, and praised positive behavior. Mother attempted to be attentive to all of the children though it was very difficult for her to divide her time equally with each of them.
The social worker explained her recommendation: "The Agency was hopeful at the last hearing that the mother may be able to reunify by the [18-]month review hearing. However, during this reporting period, the mother was discharged from Solutions for Change and lost her housing and also gave birth to another premature baby. The children each have their special needs along with frequent weekly appointments to services. She sporadically attends her children's appointments. As a single parent who has suffered chronic trauma due to extensive domestic violence and abuse along with substance abuse issues, the mother requires a lot of support on a daily basis to be able to provide care and meet all of the children's needs. [¶] As a result, it is recommended that the parents' reunification services are terminated and that a [section] 366.26 hearing is set."
Agency's social worker more fully described the circumstances as follows: "After the contested Twelve Month Review Hearing on 12/12/16, the Agency was hopeful that the mother would be able to successfully reunify. Her visitation expanded to unsupervised and a plan was made to further expand her visitation. However, she did not inform the Agency of her pregnancy and birth of the baby. In fact, her children were unaware, as well. When they were informed by the mother, the children expressed that they were angry and disappointed in the mother for not only keeping it a secret but for having another baby. The mother now has another baby who may have developmental issues due to her prematurity at birth. In addition, the mother does not have housing for the children. She resides with the maternal grandmother; however, the maternal grandmother resides in low income housing and is in a three-bedroom apartment where there is a maximum occupancy. She would not be able to accommodate all of the children in this home. The mother and the maternal grandmother are quickly trying to locate a larger home; however, they are running into financial barriers.
"[The children] all have special educational/developmental/mental health needs. Each week, the foster parents are bombarded with weekly appointments for each of the children. A single parent of five children would not be able to accommodate all of these appointments. [The social worker inserted a table of the children's appointments, including tutoring, optometry, and medical follow up for A.V.; individual therapy and therapeutic behavioral services for J.V.; speech, physical, and occupational therapy for V.V. and L.V.; KidStart Clinic, therapeutic behavioral services, [Comprehensive Assessment and Stabilization Services] and [Developmental Screening and Enhancement Program] for V.V.; regional center services and behavioral/mental health services for L.V.; as well as annual physical exams and sixmonth dental exams for each child.] [¶] . . . [¶] . . .
"The Agency remains concerned if the children were returned to the mother at this time. She lacks stable housing for the children. She would be unable to meet all of the children's needs. In addition, she continues to make poor choices such as having another child which becomes an added stressor. She also did not report this pregnancy and birth to this social worker so that a plan could be made and this would also allow the older children, [A.V. and J.V.], to prepare emotionally for their mother having another child while they remain in foster care.
"The mother has difficulty reaching out for help, which is one of the reasons this case came to the attention of the Agency. The mother has participated and attended her services; however, these children require a caregiver who is capable, reliable, can be an advocate for the children at times, and able to make sound decisions."
In a May 2016 addendum report, the social worker confirmed her prior recommendations despite some changes in mother's housing situation. She reported that mother continued to reside with her maternal grandmother, but had found a three-bedroom apartment that would be available in mid-May. Mother also had completed an aftercare program, had not had any positive drug test results, and regularly met with her sponsor. The children were doing well in their respective placements, but J.V. continued to exhibit aggression, especially in school, and was participating in individual therapy. V.V. was receiving trauma play therapy and L.V. was fitted for a brace and participated in physical and speech/language therapy. The social worker observed that though she had support, mother had not attended the children's medical, developmental and educational appointments; had "little knowledge" about their current services; and lacked appropriate housing.
At the May 2, 2017 contested 18-month review hearing, the court heard testimony from Agency social worker Minnie Balagtas, the maternal grandmother, mother's sponsor, A.V. and L.V.'s previous foster parent Emily B, and mother. The social worker described the children's special needs and their various required appointments. L.V. in particular had been referred to the Inland Regional Center (providing developmental disability services) for additional treatment, but mother did not respond to their numerous calls and the center closed L.V.'s case. Though Balagtas had suggested mother start becoming more active in the children's appointments, she had not done so, only attending a few dental appointments. Balagtas testified that mother had difficulty reaching out for help, and she did not have confidence that mother would get the help she needed if things got difficult. Even with genuine apology letters from mother to the children, Balagtas felt mother had not demonstrated in 18 months that she could provide for the children's needs; she had not attended their appointments, spoken to the service providers, or talked with any of the foster parents about how she could be involved. Though mother claimed to have a support network, Balagtas needed specifics about who would help mother with appointments, travel, childcare, and travel to and from school.
Mother testified about the anticipated sleeping arrangements in her new apartment where she planned to live with her own father and the children. She described the people in her support network, which included V.V.'s previous foster parents; Emily B., who had testified she was willing to help mother get the children to appointments and pick them up from school; a paternal uncle and grandmother; and mother's parents, brothers and sisters. On cross-examination, mother testified she had her network in place for a few months or longer. She confirmed she had not recently attended any of L.V.'s occupation or speech therapy appointments, but claimed she had attended them when L.V. was with Emily B.
The court declined to follow Agency's recommendation to terminate mother's services, pointing out mother had complied with all the components of her case plan, and very much loved her children, with whom she had maintained regular and consistent contact. It observed mother had a very good support network, including foster parents, but underscored that mother had not followed through with L.V.'s regional center services and had given birth to another child without sharing that fact with Agency or her children, demonstrating an issue with her judgment. The court observed that there needed to be a very specific plan in place to arrange for the children's continued schooling in their respective districts until the school break. It found the facts did not compel a finding that the children should be returned to mother, but that it was in the children's best interest to provide mother with six more months of services, to include a plan to accommodate overnight visits with mother. Admitting Agency's six-month, 12-month, and 18-month reports into evidence, the court made the following findings: "The return of [the children] to the custody of the parents would create a substantial risk of detriment to said child's physical and emotional wellbeing by clear and convincing evidence. [¶] . . . [T]he parents have consistently and regularly contacted and visited with the child. [¶] . . . [T]he parents have made significant and consistent progress in the prior 18 months in resolving problems that led to the [children's] removal from the home. [¶] . . . [¶] . . . [T]here is a substantial probability that the [children] will be returned to the physical custody of her parent and safely maintained in the home within the extended period of time." In part, it ruled: "The extent of progress that has been made toward alleviating or mitigating the causes necessitating placement by the mother has been substantial. [¶] . . . [¶] The parents were actively involved in the case plan development. The county agency solicited and integrated into the case plan the input of the parents and the case plan is appropriate, reasonable and likely to be successful in alleviating the causes that brought this matter before the Court."
In its respondent's brief, Agency informed us that it anticipated this appeal would become moot because it is returning the children back to mother, and that it intended to request we dismiss the appeal in that event. No such request has been made as of this opinion's filing.
DISCUSSION
I. Legal Principles and Standard of Review
Section 366.22 provides that at the time of the 18-month review, "the 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 . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.22, subd. (a); In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400 (Yvonne W.).)
Agency has the burden of establishing detriment. (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1423-1424; Yvonne W. supra, 165 Cal.App.4th at p. 1400.) "The standard for showing detriment is 'a fairly high one. It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.' [Citation.] Rather, the risk of detriment must be substantial, such that returning a child to parental custody represents some danger to the child's physical or emotional well-being." (Yvonne W., at p. 1400; see also In re A.J. (2015) 239 Cal.App.4th 154, 160.) "In evaluating detriment, the juvenile court must consider the extent to which the parent participated in reunification services. [Citations.] The court must also consider the efforts or progress the parent has made toward eliminating the conditions that led to the child's out-of-home placement." (Yvonne W., at p. 1400.)
The juvenile court's finding of detriment is reviewed for substantial evidence, that is, evidence that is reasonable, credible and of solid value; " ' "substantial proof of the essentials that the law requires in a particular case." ' " (In re A.J., supra, 239 Cal.App.4th at p. 160; Tracy J. v. Superior Court, supra, 202 Cal.App.4th at p. 1424.) We review the record and evidence most favorably to Agency and indulge in all legitimate and reasonable inferences to uphold the court's ruling. (Tracy J., at p. 1424.) "The appellate court does not reweigh the evidence, evaluate the credibility of witnesses or indulge in inferences contrary to the findings of the trial court. [Citations.] The substantial evidence standard of review is generally considered the most difficult standard of review to meet, as it should be, because it is not the function of the reviewing court to determine the facts." (In re Michael G. (2012) 203 Cal.App.4th 580, 589.)
II. Substantial Evidence Supports the Court's Finding that the Children Would Be at
Substantial Risk of Detriment If Returned to Mother's Custody
Pointing to her successful completion of her case plan and its various programs; her preparation of a detailed report describing the children's special needs and how she planned to meet them; and other indications that she was progressing with visitation, housing, and protecting the children and herself from father; mother contends the juvenile court erred by failing to return the children to her custody. She seeks to draw similarities between her case and David B. v. Superior Court (2004) 123 Cal.App.4th 768, arguing that the juvenile court here, like the court in David B., deferred to Agency's social worker's opinion, which was assertedly unsupported by the record.
We acknowledge there are indications that mother progressed well with her services and was showing better insight and improvement in her decision making. But on appeal, it is not enough for mother to point to evidence in her favor. The question is not whether evidence supports a different conclusion from that reached by the court, but whether there is reasonable and credible evidence to support the findings it did make. We conclude the supporting evidence is ample, particularly the conclusions of social worker Balagtas, which the court was entitled to credit. (In re Casey D. (1999) 70 Cal App.4th 38, 53; see also In re T.W. (2013) 214 Cal.App.4th 1154, 1162 [reviewing court defers to juvenile court's finding that the social worker's testimony was credible].) Balagtas's reports and testimony demonstrate that mother—a single parent hoping to live with and care for her five children, including a newborn—had not yet demonstrated a concrete and consistent ability to care for all of her children's unique developmental, educational, and mental health needs, even though she identified individuals who claimed they would support and help her. The court was entitled to conclude from mother's secretive pregnancy and December 2016 birth she had not yet reached a point where she was comfortable getting help and could make appropriate decisions with respect to the children. Balagtas's observations and conclusions alone constitute substantial evidence supporting the juvenile court's finding that returning the children to mother at that time posed a substantial risk of detriment to them.
Mother's reliance on David B., supra, 123 Cal.App.4th 768, is unavailing. The father in David B. was a nonoffending parent who sought to reunify with his two-year-old daughter after the mother's drug use and mental health issues brought the child into the dependency system. (Id. at pp. 774-775.) The father had prior substance abuse issues, but had been drug free for 20 months when Agency first contacted him about his child, and never had a positive drug test leading up to the dispositional hearing. (Id. at p. 775.) The juvenile court in David B. refused to return the child and terminated reunification services at the 18-month point even though the father had done "virtually everything" requested of him in his reunification services, and more. (Id. at pp. 772, 775-776.) In part, the court reasoned that the father had not gotten a job, an apartment for himself, or looked into medical care, and the home father lived in with his sister and brother-in-law had "physical needs" that would put the child at risk if not met. (Id. at p. 787.)
The appellate court granted the father's petition for extraordinary relief, in part because the lower court had made unarticulated assumptions that were not supported by the evidence. (David B. v. Superior Court, supra, 123 Cal.App.4th at pp. 794-795.) In particular, there was no evidence that the father's shortcomings made it dangerous to return the children to his care. (Id. at p. 773.) The record lacked evidence that would permit the court to conclude that the home in the which father lived was physically insufficient, and nothing to indicate the father was ever informed of the Agency's concerns about his housing, making the Agency's generic advice insufficient as a matter of law. (Id. at p. 793.) There was no evidence allowing the court to conclude the Agency had provided the father with sufficient assistance to reasonably address its concerns about his housing. (Id. at p. 795.) And the court improperly deferred to the Agency's judgment, without requiring it to meet its burden to actually prove its contentions. (Id. at pp. 773, 796-797.)
Here, while mother did perform well in her services like the father in David B., supra, 123 Cal.App.4th 768, in contrast to the father in David B., mother had not yet demonstrated a present ability to effectively and consistently deal with her children's special needs, which required numerous weekly appointments with specialized providers. As stated, social worker Balagtas concluded that mother's deficiencies in this respect placed her children at risk if they were to be returned to her. Though mother's compliance with her case plan is commendable, it is not dispositive of the issue: "[S]imply complying with the reunification plan by attending the required therapy sessions and visiting the children is to be considered by the court; but it is not determinative. The court must also consider the parents' progress and their capacity to meet the objectives of the plan; otherwise the reasons for removing the children out-of-home will not have been ameliorated." (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.) Thus, unlike David B., here, substantial evidence supports the juvenile court's findings that returning the children to mother's care posed a significant risk of detriment. We accordingly affirm its order.
In her reply brief, mother points to the facts of other cases, distinguishing In re Mary B. (2013) 218 Cal.App.4th 1474, in which this court upheld a finding of detriment (id. at p. 1484), and comparing her case to In re E.D. (2013) 217 Cal.App.4th 960, in which the juvenile court found a risk of detriment despite the child's eagerness to live with his father and Department of Child and Family Services supporting the child's return. (Id. at p. 966.) In E.D., the appellate court reversed the juvenile court's detriment finding on grounds it had failed to "cite any evidence" that returning the child to the father's custody would create a substantial risk of detriment to the child. (In re E.D., at p. 966.) But unlike in E.D., Agency here did not support the children's return to mother, and as we have explained, substantial evidence in this record supports the juvenile court's conclusions that despite mother's progress in some respects, there remained a substantial risk of harm to the children. (Accord, Mary B., at p. 1483 ["while [the father] had exhibited positive change, it was too soon to say whether he had actually changed. As a result, there remained a substantial risk of harm to [the child] should she be returned to [the father's care"].) --------
DISPOSITION
The order is affirmed.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. NARES, J.