Opinion
E073651
02-05-2020
In re J.L. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.F., Defendant and Appellant.
Jack Love, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Svetlana Kauper, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J272342) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Jack Love, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
The juvenile court ordered that A.F.'s (Mother) four daughters remain in foster care, rather than return to Mother's care. (Welf & Inst Code, § 366.3, subd. (h)(1).) Mother contends the juvenile court erred by not placing the children in her care. We affirm the order.
All subsequent statutory references will be to the Welfare and Institutions Code unless otherwise indicated. --------
FACTUAL AND PROCEDURAL HISTORY
The four children are female. A.G. was born in July 2009. J.G. was born in September 2011. A.L. was born in June 2015. J.L. was born in May 2016. G.G. is the presumed father of A.G. and J.G. G.G. was incarcerated. L.L. was the father of A.L. and J.L. L.L. was incarcerated. P.B. (Boyfriend) was Mother's boyfriend.
Boyfriend called San Bernardino County Children and Family Services (the Department) and made various allegations concerning Mother abusing drugs and treating the children poorly. During an interview with the Department, Boyfriend said, " 'I did it. I made the allegations. It was all a lie because I was mad at her.' "
On August 4, 2017, Mother tested positive for methamphetamines. Mother admitted that she began abusing methamphetamines "a couple of weeks ago" to "help her with her stress." Mother said she does not abuse drugs in the presence of her children. On August 17, A.G.'s long hair "appeared dirty and ratted." A.G. did not recall the last time her hair had been washed and brushed. Mother said that Boyfriend "uses methamphetamine 'on and off' and he just got off probation for a drug charge, and he ha[s] to drug test regularly so he hasn't used in awhile."
The Department detained the children. J.L. and A.L. were placed together in a foster home. A.G. and J.G. were placed together in a second foster home. At the detention hearing, the children's attorney requested a no-contact order between Boyfriend and the children due to Boyfriend's history of drug abuse. The juvenile court granted the no-contact order.
On November 8, 2017, at the contested jurisdiction hearing, the juvenile court found true the allegation that Mother "has a history of using methamphetamines, which places the child[ren] at risk of abuse or neglect." (§ 300, subd. (b).)
In March 2018, "Mother completed individual counseling in which she 'did well and was proactive.' . . . Mother has also been 'compliant, has made progress in her substance abuse treatment program.' The Mother has tested negative throughout . . . . Mother had one no show on February 15, 2018, due to [a] conflict with her work schedule and counseling. The Mother tested at her substance abuse treatment on [that] day and [was] confirmed as negative. The Mother [was] due to graduate [from substance abuse treatment at] the end of March 2018. . . . Mother has been consistent with visitation and is currently visiting the children two times (2x) a week for two (2) hours. Visitation has been appropriate and beneficial for the children." The juvenile court authorized Mother to have unsupervised visits with the children in the community.
Also in March 2018, Mother requested the juvenile court terminate the no-contact order between the children and Boyfriend. Mother explained that she lives with Boyfriend and is pregnant with his child, so the no-contact order could hinder the children's return to Mother's care.
The Department "did not find any evidence suggesting that the no-contact order should remain." (Boldface and italics omitted.) The Department requested that "the no contact order be dismissed to prevent any delays in the future return of the children." (Boldface and italics omitted.) The Department explained, "The mother currently resides with [Boyfriend] in a two bedroom apartment home. The mother and [Boyfriend] are both employed. The mother and [Boyfriend] appear to be stable and the home is appropriate for any future return of the children. The mother is doing well in completing her case plan and has approximately 5 weeks of substance abuse classes left before completion. The mother has had all negative substance abuse tests. The mother has been consistent with visitation and visitation has been appropriate. During visitation, the mother and children are bonded and the mother has been able to demonstrate that she is capable of caring for them."
At the hearing on Mother's request to change a court order, the juvenile court explained it was concerned that, in the jurisdiction phase of the case, Mother indicated that Boyfriend "uses methamphetamine on and off" and that Boyfriend was not cooperative with the Department. The court explained that Boyfriend was not within the court's jurisdiction so the court could not make orders related to Boyfriend, but that it believed drug testing would be an appropriate service for Boyfriend. The court continued Mother's request to the next status review hearing.
Mother gave birth to her baby, A.B., in March 2018. The Department assessed the risk to A.B. in Mother's and Boyfriend's home. The Department found the home "had all provisions needed for the newborn as well as provisions for the older children to return home." The Department concluded that it did not need to take custody of A.B.
The next status review hearing took place in May 2018. The Department explained that it contacted Mother to ask if Boyfriend would be willing to drug test. Mother said Boyfriend was at work, but she would ask him. Mother and Boyfriend did not call the Department to inform it of whether Boyfriend would be willing to drug test. The Department wrote, "It should be noted that the mother is doing well and appears to be capable of caring for her children; however, [Boyfriend's] unwillingness to participate may be hindering the mother's reunification with her older children."
Mother missed two drug tests around the time she gave birth to A.B. Mother still had approximately five weeks of substance abuse treatment sessions to complete, due to an interruption in her treatment after giving birth to A.B. Mother's attorney asked the court to continue her request to change a court order because it remained unclear as to whether Boyfriend would submit to drug testing. The juvenile court continued the hearing on Mother's request to change a court order to June 29. The court ordered unsupervised visitation for Mother and the children in the community, without contact from Boyfriend.
On June 29, the juvenile court said, "My understanding is [Boyfriend] has refused to participate or test, and the Court's inclination is to deny the 388 which will clearly have ramifications going forward." Mother's attorney requested overnight and weekend visits be permitted at Mother's parents' home "until the no-contact order is lifted."
The juvenile court authorized overnight and weekend visits in mother's parents' home. The juvenile court also gave "authority to return with approval packet. That could occur if either mother finds housing without [Boyfriend] or if [Boyfriend] participates in some of the services authorized under mother's plan and the risk has been eliminated."
The Department submitted a status report to the juvenile court in October 2018. Boyfriend did not participate in drug testing and refused to submit to a Live Scan screening. Mother visited with the children "at the McDonald's in Rancho Cucamonga every other weekend for four hours, plus one day during the week for two hours." Mother had failed to appear for drug tests since June 22, 2018. Mother said she believed her case plan was complete so she no longer had to test. The Department wrote in its status report, "[Mother] presents as very angry, guarded and blaming towards [the Department] and this presents as a barrier to communication. Due to these concerns, [Mother's] case with her older four children has not been able to move forward." The Department recommended that Mother's reunification services be terminated. On October 16, 2018, the juvenile court terminated Mother's reunification services. The court ordered a planned permanent placement of "foster care with a permanent plan of adoption." The court authorized services for Mother under the permanent plan. The juvenile court ordered supervised visitation between Mother and the children.
On November 27, the Department referred Mother to individual counseling to address concerns of power and control in Mother's relationships and Mother's anger and frustration toward the Department related to Boyfriend's refusal to submit to a Live Scan screening and drug testing. The Department did not permit Mother to use her preferred counseling provider, and Mother "refused to be referred to any other agency." Mother claimed that she was living with her parents, but could not provide the Department with the street name for the residence. Mother said she received her mail at Boyfriend's residence. Mother visited her daughter, A.B., at Boyfriend's residence. Mother tested negative for drugs during the reporting period that ended in late January, but was a no-show on January 24, 2019.
In April 2019, A.B. remained in Boyfriend's care. Mother was residing with her parents in a two-bedroom apartment. Mother continued to be employed fulltime at a hospital as a medical assistant/receptionist. Mother continued to test negative for drugs. Mother did not attend individual therapy because she refused to go to the providers contracted with the Department; Mother wanted to go to the counseling agency of her choice, which the Department would not permit.
A.G. and J.G. were meeting their developmental milestones. A.G. had a speech and language impairment for which she received 90 minutes of speech therapy per month. A.G. was "very responsible for her age and [her foster parents] still have to remind her that she is also a child and not responsible for the care of her younger siblings." When asked what was working well, A.G. said Mother was " 'starting to spend more time with us[] (instead of being on her phone all the time.)' " When asked what she wished for, A.G. said, " 'Find a better way to discipline us[] (instead of hitting and pinching, would prefer being put on a time out.)' " A.G. and J.G. had been in one foster home since their removal, but the home was not a potential adoptive home. A.G. and J.G. adjusted well to their foster home.
A.L. and J.L. were initially behind in their developmental milestones, but were making progress in catching up. A.L. was referred to speech therapy. A.L. could understand English and Spanish, but exhibited delays in verbal expression. J.L. received speech therapy. A.L. and J.L. had been in two foster homes since their removal. A.L. and J.L. liked their current foster home and said they felt safe and comfortable there. A.L. and J.L.'s foster home was not a potential adoptive home.
Mother and the children visited at a McDonald's in Ontario, under the supervision of the social worker or the foster parents. The visits occurred every other Saturday for up to four hours and one day during the week for two hours. The children looked forward to their visits, especially to seeing their siblings. "[D]uring a visit on October 17, 2018, the children were observed taking turns talking on their mother's cell phone to an unknown person. The children could be heard saying, 'Hi daddy,' 'I love you daddy' and 'I miss you daddy.' When the [social worker] later addressed this with [Mother], and she was reminded about the 'no contact' order between the children and [Boyfriend], she used the excuse that she made the call so the children could see their baby sister and because the baby resides with [Boyfriend], he had to hold the phone. She denied that he made any contact with the children." During a visit on March 16, 2019, "one of the children was reported to feel uncomfortable and afraid of [Mother]."
The Department recommended a "permanent plan of placement in foster care with a permanent plan of adoption" for the children. The Department explained that the children were bonded with their foster parents, but the foster parents "have been reticent about making [a long-term] commitment, due to [Mother's] insistence that the children will be returned to her care and custody." The Department asserted it would continue to explore permanency options with the foster parents. The Department also asserted that adoptive homes were available.
In May 2019, Mother began attending individual counseling sessions. Mother reported that she and her brother moved into an apartment. Mother's brother passed the Live Scan screening. The apartment had two bedrooms and two bathrooms. Mother would share the master bedroom with the children. Mother continued to test negative for drugs. The Department recommended that Mother be granted unsupervised visits with the children, with the authority to place the children on extended 29-day visits with Mother when appropriate. In June, the juvenile court granted Mother unsupervised day visits for up to eight hours. The court continued the no-contact order for Boyfriend.
Mother had unsupervised visits with the children (1) on June 18 for three hours; (2) on June 22 for eight hours; (3) on June 27 for seven hours; and (4) on July 1 for eight hours. On June 28, A.L. and J.L.'s foster parent told the social worker that A.L. and J.L. "have returned from their unsupervised visits with their mother very hungry and appearing angry. When [the foster parent] asked the children what they ate (during the visit), they state 'pizza.' However, that evening at dinner [A.L.] 'stuffed herself, and ate very quickly.' The foster [parent] also reported that [J.L.] had 'wet herself,' and stated that the children have not exhibited those behaviors 'since they were first placed with her.' The foster [parent] reported that she had asked the children who else was at the home during their visit with the mother, and both children said the father of their baby sister was there. When the foster [parent] asked them again, they both stopped and said, 'No, he wasn't there.' "
On June 29, the social worker observed that A.G. "appear[ed] uncomfortable when asked about the recent unsupervised visitations with her mother. Although guarded in her responses, [A.G.] did acknowledge that their mother had taken the children to '[Boyfriend's] house to visit their baby sister.' [¶] On July 1, 2019, the [social worker] received a text message from [Boyfriend] at 7:04 p.m. stating, 'I seen them myself during a visit.' "
On July 3, the foster agency reported to the Department that A.L. and J.L. "were exhibiting regressive behaviors as evidenced by [J.L.], who has been toilet trained since the age of 1.5 years old, wetting the bed at night and her pants during the day, and [A.L.] gorging herself with food, and then throwing it back up. Their foster [parent] has had to put [J.L.] back into pull-ups, and has to sit with [A.L.] while she eats to get her to slow down and reassure her that there is more food to eat and plenty to drink if she wants it. It was further reported that the oldest child, [A.G.], has become more emotional and appearing stress[ed], as evidenced by her crying and worrying that during visits their mother has not been attentive toward the younger siblings, resulting in [A.G.] being concerned for their safety."
On July 4, Boyfriend sent the social worker a text message accompanied by a photo. The message read, " 'That's proof she brought the girls so I could see them last Thursday visits [sic] that's her girls and my nieces.' " The photo showed A.G., J.G., A.L., and J.L. with two unknown children. The clothing worn by A.G., J.G., A.L., and J.L. in the photo was the same as that worn on their July 1 visit. The Department requested that Mother's visits with the children be supervised due to (1) Mother violating the order that there be no contact between the children and Boyfriend, and (2) the children suffering regressive behaviors. On July 24, the juvenile court ordered that Mother's visits with the children be supervised.
In August 2019, A.L.'s eating behaviors normalized and J.L. ceased wetting herself and her bed. Mother said she was experiencing difficulties with Boyfriend sending text messages to Mother. One of the text messages read, "Try ur luck bitch remember please make me show u I'll gladly go to prison lo[n]g as we both lose everything." Boyfriend also posted a review on the website of Mother's employer. A portion of the review read, "No one keep the baby from you just chose to abandon her so your parents wouldn't beat you again you talk about grow up." Mother requested a restraining order against Boyfriend, but the request was dismissed on July 16 due to a lack of prosecution. Mother filed another restraining order request against Boyfriend on July 30. A hearing on Mother's request for a restraining order was scheduled for August 21, 2019.
On August 12, the juvenile court held a hearing in the instant case and Mother testified. Mother denied taking the children to see Boyfriend during the unsupervised visits. Mother said she sent the photograph of the children with Boyfriend's nieces to Boyfriend, which is how Boyfriend obtained the photograph. Mother said the photograph was taken at Boyfriend's niece's home, which is five houses or apartments away from Boyfriend's home. Mother said she did not pursue the July 16 request for a restraining order because, when they went to mediation, Boyfriend said he would allow Mother to visit A.B. "whenever [Mother] wanted to." Mother said she again sought a restraining order against Boyfriend due to his text messages and the post on her employer's website.
At the August 12 hearing, Mother requested the children be returned to her care. Mother asserted she completed "multiple rounds of services" and was seeking a restraining order against Boyfriend. The children's attorney requested the court continue supervised visits for Mother due to Mother continuing to contact Boyfriend, such as with the photograph of the children. The Department asked the court to order the permanent plan of foster care due to Mother's story not being credible in light of the children's statements that they visited Boyfriend.
The juvenile court said, "I will order the permanent placement in foster care with a plan of adoption as appropriate which means I am not in agreement with return home at this time. [¶] I think it's been clear throughout the case that mom continues to minimize both the concerns of the Court, the risk that's been presented by her relationship with [Boyfriend] from the start of this case. Litera[lly] the information before the court today is almost identical to the information as to the reasons why the children were removed in the first place."
The court explained, "I don't find mom's testimony to be credible. The children indicate that they were taken to [Boyfriend's] home, and I have no reason not to believe that the children's statements are accurate and is corroborated [sic] by mom's lack of cooperation in this specific regard to [Boyfriend] since and throughout the beginning—throughout the life of this case." The court permitted Mother to continue having supervised visits with the children. The court scheduled a postpermanent plan review hearing for February 7, 2020.
DISCUSSION
Mother contends the juvenile court erred by not returning the children to her care.
Section 366.3 requires a six month status review hearing for a child who is in foster care. (§ 366.3, subds. (d).) At the hearing, "for a child in foster care, the court shall consider all permanency planning options for the child including whether the child should be returned to the home of the parent, placed for adoption, . . . or appointed a legal guardian, placed with a fit and willing relative." (§ 366.3, subd. (h)(1).) A court may only order that a child remain in foster care, without holding a hearing to terminate parental rights, if the court determines there is a compelling reason for not holding the termination hearing. (§ 366.3, subd. (h)(1).)
Generally, when the juvenile court makes a custody determination, this court reviews that order under the abuse of discretion standard of review. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) The substantial evidence standard applies when reviewing a juvenile court's finding that a child would be at substantial risk of detriment if returned to the custody of a parent. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763) Mother applied the substantial evidence standard in her appellant's opening brief, but she does not directly dispute the Department's assertion that the abuse of discretion standard is the appropriate standard of review in this case. Under either the abuse of discretion standard or the substantial evidence standard, we arrive at the same result.
In late June and early July 2019, Mother had unsupervised visits with the children. After the visits with Mother, the children displayed regressive behaviors. A.L. ate food until she vomited, which required her foster mother to sit with A.L. while she ate. J.L. urinated on herself and her bed, which required her foster mother to place J.L. in pull-ups. A.G. cried and was worried about the safety of her younger siblings. When the visits with Mother reverted to supervised, the children's behavior improved.
Mother testified that the children did not visit Boyfriend during the unsupervised June and July visits, which means the children's regressive behaviors were due solely to spending time with Mother. The children's regressive behaviors indicate that Mother is not capable of caring for the children because the children deteriorated emotionally when left in her care for short periods of time.
At the hearing on August 12, 2019, Mother requested the children be placed in her care. Mother did not demonstrate how her care of the children had improved between July 2019 and August 12, 2019, such that the children's mental and emotional states would not again deteriorate if returned to Mother's fulltime unsupervised care. (§ 366.3, subd. (f) [burden is on the parent].) In sum, given that (1) less than two months passed between (a) the children exhibiting regressive behaviors after spending short periods of time in Mother's care, and (b) Mother requesting full care and custody of the children; and (2) Mother did not provide evidence concerning how her care of the children had changed between July and August, there was substantial evidence supporting the finding that returning the children to Mother's care would create a substantial risk of detriment to the emotional well-being of the children. Because there is substantial evidence supporting a finding of a risk of detriment, it was not an abuse of discretion to deny Mother's request for the children to be placed in her care. In sum, the juvenile court did not err.
Mother contends the children's regressive behaviors "did not amount to being in substantial danger if returned to mother's custody." A.L. ate to the point of vomiting, J.L. urinated on herself, and A.G. cried with worry after spending eight hours with Mother. Given the children's reactions to spending one-third of a day with Mother, one can reasonably conclude from that evidence that spending 24 hours a day in Mother's care for multiple days would present a risk of substantial detriment to the children's emotional wellbeing.
Mother contends she was drug-free and the Department concluded Boyfriend did not present a risk to A.B., so the juvenile court should have returned the children to Mother's care. When applying the substantial evidence standard, this court must look at the evidence in the light most favorable to the juvenile court's ruling. (In re H.B. (2008) 161 Cal.App.4th 115, 119.) Under the abuse of discretion standard of review, when differing findings could be made from the evidence, this court cannot substitute its decision for that of the juvenile court. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Mother is focused on the evidence that is favorable to her, rather than the evidence favorable to the court's ruling. Because Mother's argument is not focused on evidence favorable to the juvenile court's ruling, we find Mother's argument to be unpersuasive under the substantial evidence and the abuse of discretion standards of review because this court cannot reweigh the evidence under either standard.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.