Opinion
A149933
02-23-2017
S.F., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; SAN FRANCISCO COUNTY HEALTH & HUMAN SERVICES AGENCY, et al. Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. JD16-3257)
S.F. (mother) has filed a petition for extraordinary writ relief from an order removing the minor from her home, bypassing reunification services, and setting a hearing under Welfare and Institutions Code section 366.26. Mother contends (1) the evidence does not support the findings of substantial danger to the minor if returned to the home and no reasonable means to protect her without removal; (2) the evidence does not support the ruling that reunification services should be bypassed; and (3) reunification services were in the minor's best interest. We will deny the petition.
All statutory references are to the Welfare and Institutions Code.
I. FACTS AND PROCEDURAL HISTORY
A. Petition and Detention
In August 2016, the San Francisco County Health & Human Services Agency (Agency) filed a dependency petition under section 300 as to the minor, who was born in September 2012. The petition alleged that mother allowed the minor and one of the minor's older siblings to be present during a fight and placed into a stolen car without a car seat or proper restraints; the car was then involved in a high speed chase with police and crashed, causing injuries to the minor including a broken nose and lacerations.
The Agency's detention report provided further details of the incident. Mother had been with her friend, her sister, the minor, and the sibling in a parking lot in Oakland, when the adults got into a physical fight with the sister's boyfriend. When police arrived, mother walked away and her sister and friend took the children into a stolen car driven by a stranger, who led police on a high-speed chase with the children in the car. The car crashed into two vehicles, including a police vehicle, and flipped under a cement truck. The minor was taken to the hospital and her sibling suffered severe injuries.
Mother admitted to the social worker that she had transported the children to the parking lot in a car without a car seat. She also admitted that she fought in front of her children, left the scene when the driver took off with them, and was arrested by police when she returned because her sister's boyfriend said she had sprayed him with mace. In a later conversation with a social worker, mother defended her decision to help her sister by participating in the fight.
The juvenile court temporarily detained the minor and ordered the matter transferred to Alameda County. The Alameda County court refused the transfer, however, and the matter was set for a hearing on jurisdiction and disposition. Mother was appointed counsel.
B. Jurisdiction/Disposition Report
The Agency's Jurisdiction/Disposition report, filed on September 9, 2016, recommended that the petition be sustained, the minor be declared a dependent, and mother be bypassed for reunification services under section 361.5, subdivision (b)(10).
The report set forth the details of mother's fight and the car crash that injured the minor. It also disclosed that mother was not supposed to have the minor's sibling in her care at the time; the sibling was out of mother's custody due to mother's failure to reunify with her in prior dependency proceedings, but the sibling's guardian had allowed her to visit with her father, who improperly let her visit unsupervised with mother.
The report also set forth mother's "extensive child welfare history." Mother had failed to reunify with four of the minor's siblings (including the one involved in the car crash), and reunification services were terminated by the court in April 2011. A 2009 status report advised of a psychological evaluation indicating that mother displayed signs of depression, evidence of anxiety disorder, and symptoms related to a personality disorder, including "high anger, irritability, uncooperativeness, externalization of blame, and poor insight." Mother was using marijuana supposedly as a coping mechanism, but it was suspected that her use was more extensive and she was possibly abusing marijuana.
In the present case, mother denied suffering from any mental health issue and claimed that she did not benefit from therapy. The social worker noted, however, that mother had failed to participate consistently in therapy and continued to appear depressed and unable to manage her emotions. Mother also denied having a substance abuse problem, and the social worker set up drug testing.
The Agency reported that mother was having trouble finding housing and employment, and she had supervised visits with the minor at a visitation center. Mother had completed a parenting class in the past but "failed to implement the tools that she learned with regards to ensuring her children's safety."
The social worker was "concerned about [mother's] ability to safely care for the minor," and mother's remorse about her decisions that led to the minor's injuries "does not excuse the fact that she continuously placed the minor in harm's way." The social worker thought mother "would be more mindful about situations and the environments that she places herself and her daughter in" since she "had four children removed from [her] care in 2008," but mother apparently did not benefit from the services in which she participated. The social worker concluded that mother would not benefit from additional services "because she has failed to incorporate her experiences in her parenting style in order to ensure that the minor [] is safe at all times."
C. Jurisdiction
At a hearing on September 15, 2016, mother's attorney represented that mother was enrolled in "Family Treatment Court," getting services through the Homeless Prenatal Program, and going to a parenting class and "other groups."
At a hearing on October 21, 2016, the parties informed the court that they had reached an agreement as to jurisdiction, by which mother submitted on an amended petition under section 300, subdivisions (b) and (j). As amended, the petition alleged that mother failed to protect the minor by allowing her to be transported in two cars without a car seat, with the ensuing car crash resulting in serious physical harm; and that mother abused and neglected the minor's sibling (by allowing her to suffer the same circumstances as the minor) and there was a substantial risk the minor would be abused or neglected. The court found the allegations of the amended petition to be true and continued the matter for disposition.
D. Disposition
A contested disposition hearing took place on November 9, 2016. The court admitted into evidence the Agency's Jurisdiction/Disposition Report. In addition, the Agency sought judicial notice of records pertaining to mother's prior dependency proceedings: section 300 petitions filed on behalf of mother's four older children, which indicated sustained allegations including mother's potential substance abuse and mental health issues; detention orders; minute orders on 18-month review hearings for three of the children, stating that mother's progress in reunification services had been "very minimal" and services were terminated; and orders after a section 366.26 hearing selecting legal guardianship as the permanent plan for two of the children. The only witness at the November 9 hearing was the social worker, Myeshia Grice.
The Agency maintained its recommendation that the minor be placed out of home and that mother be bypassed for services. Grice recounted that mother had failed to reunify with her other children and had not made reasonable efforts to address the issues presented in those dependencies. In light of the sustained allegations of possible drug abuse in the earlier cases, Grice had set up drug testing with mother in this case, but mother missed six out of ten tests. Grice acknowledged that mother had also begun services such as a parenting class, relapse prevention, seeking safety, and peer support classes about two months earlier in September.
Grice acknowledged that, as far as she knew, there were no reported concerns regarding the minor while in mother's care before the August 2009 car crash. After the incident, mother admitted to Grice that she made a mistake in allowing the children to get into a car without a car seat and expressed remorse for what happened. Mother told Grice that she tried to get the children out of the car during the altercation between her sister and the sister's boyfriend. Mother also claimed that before she could get into the stranger's car with the children and her sister and friend, the car sped off without her, and she did not know the car was stolen.
Grice testified that mother had supervised visitation with the minor twice a week, with transportation funds provided by the Agency. Mother missed one visit in October and was substantially late to three more. On one occasion, she arrived smelling strongly of marijuana and, although she did not appear impaired, spent the majority of the time on the phone instead of engaging with the minor. On other occasions she needed to be admonished to refrain from speaking with the minor about the case. The minor enjoyed seeing mother, however, and mother showed that she was able to provide the minor with comfort and support.
Grice further reported that, one month after the minor sustained a concussion in the car crash, mother brought her a scooter during a visit but did not bring a helmet. Mother then took the minor outside and allowed her to ride the scooter without a helmet. The social worker considered this a lack of good judgment.
Grice testified that mother's conduct in transporting the children to the parking lot in a car without restraints, and allowing them to get into a car with a stranger, also raised serious concerns about mother's judgment and her ability to keep the minor safe. Grice added that mother was not supposed to have the minor's sibling in her unsupervised care at the time of the car chase incident.
After argument by counsel, the court found by clear and convincing evidence that reasonable efforts were made to prevent or eliminate the need for removal, there is a substantial danger to the physical health, safety, protection or physical or emotional well-being of the minor, and there are no reasonable means by which her physical or emotional health can be protected without removal from mother's physical custody. The court declared a dependency, ordered the minor removed from home, and bypassed reunification services under section 361.5, subdivision (b)(10), based on a finding by clear and convincing evidence that mother failed to make reasonable efforts to treat the problems that led to the siblings' removal. The court set a section 366.26 hearing for March 7, 2017.
Mother thereafter filed her petition for extraordinary writ relief.
II. DISCUSSION
A. Substantial Risk of Harm and no Other Reasonable Means of Protection
To order a minor physically removed from parental custody, the court must find by clear and convincing evidence that the minor would be at substantial risk of harm if returned home and there are no reasonable means by which the minor can be protected without removal. " 'The jurisdictional findings are prima facie evidence the minor cannot safely remain in the home. [Citations.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citation.]' " (In re J.S. (2014) 228 Cal.App.4th 1483, 1492-1493.)
Substantial evidence supported the court's finding that returning the minor to mother's home would place her at substantial risk of harm and there was no reasonable means of protecting her without removal. Mother had repeatedly placed the minor in significant danger. First, she transported the minor to the parking lot in the back seat of a car lacking appropriate child restraints. Second, she engaged in a physical fight, possibly using mace, in the minor's presence. Third, when police arrived, she walked away from the minor, allowing her sister and friend to take the minor and her sibling into a car driven by a stranger, who led the police on a high-speed chase and crashed, causing the minor significant injuries and hospitalization. Fourth, even though the minor sustained a concussion from the crash, mother brought her a scooter and allowed her to ride it without a helmet.
In addition, mother was not always cooperative and truthful with social workers. At one point she admitted taking the children to the parking lot without a car seat, but later claimed to have walked. At first she told social workers she had no knowledge of any restriction on having unsupervised contact with the minor's sibling, and then later admitted she was not supposed to have her unsupervised in her care. A reasonable inference from this evidence is that mother was unlikely to cooperate in any safety plan the Agency might devise, just as she was unwilling to respect the court's order prohibiting unsupervised contact with the minor's sibling.
Mother contends there was no evidence she abused or neglected the minor previously, she expressed remorse for her mistakes, she did not know the fight would occur or the stranger's car was stolen and would crash, and she voluntarily engaged in parenting classes and other services. However, mother had participated in these services only for a couple of months, and she showed an inability to engage in services on a consistent basis: she agreed to substance abuse testing but then missed six out of ten tests, and she was granted visitation and provided transportation funds but missed one visit, arrived substantially late to others, and once reeked of marijuana and did not engage with the minor. But in any event, mother's recitation of evidence supporting her position is insufficient to carry her burden on appeal. It is not our role to reweigh the evidence, but to determine whether there was substantial evidence to support the findings of the court. As explained ante, there was.
Mother further contends the evidence showed there are reasonable means to protect the minor without removal and reasonable efforts were not made to eliminate or prevent the need for removal, because the Agency did not offer mother services such as helping her to create a safety plan, providing therapy, and the like. As discussed next, however, the court did not err in ruling that reunification services did not have to be provided (§ 361.5, subd. (b)(10)), and she provides no authority for the proposition that the Agency must provide services anyway.
B. Denial of Reunification Services
When a child is removed from the custody of her parents, the juvenile court must order reunification services to the parents unless a statutory exception applies. (§ 361.5, subds. (a) & (b).) One of those exceptions arises where the court finds by clear and convincing evidence that the parent failed to reunify with a sibling and reunification services were terminated, if the court also finds that the parent "has not subsequently made a reasonable effort to treat the problems that led to removal" of the sibling. (§ 361.5, subd. (b)(10); see In re William B. (2008) 163 Cal.App.4th 1220, 1227.) The phrase " 'problems that led to removal' " can include problems in the prior proceedings that were the subject of services, whether or not they were explicitly alleged in the prior or present petition. (In re Lana S. (2012) 207 Cal.App.4th 94, 108 (Lana S.).)
Here, substantial evidence supported the conclusion that mother failed to reunify with a sibling of the minor. Testimony from the social worker and documents from the prior dependencies indicated that mother failed to reunify with three of the minor's older siblings and that reunification services were terminated in April 2011. Indeed, these facts are not disputed.
Substantial evidence also supported the conclusion that mother did not thereafter make a reasonable effort to address the problems that led to the siblings' removal. The social worker testified (albeit in a conclusory manner) that she was aware of the issues in these earlier dependencies and mother had not made reasonable efforts to address them. The record supported her conclusion. For example, the original petitions in the prior dependencies included sustained allegations that mother may have substance abuse problems needing assessment and treatment; in the matter before us, the social worker set up drug testing with mother, but mother missed six out of ten tests and had stopped testing five weeks before the hearing.
The petitions in the earlier dependencies also included sustained allegations that mother may have mental health issues needing assessment and treatment. In the current case, the social worker noted that mother had not participated consistently in therapy, and mother continued to appear depressed and unable to manage her emotions and may be suffering from untreated mental health issues despite her denials. --------
Mother points out that the earlier dependencies were based not only on mother's possible substance abuse problem, but also on mother's failure to maintain the children's special education and psychological services and possible mental health needs. She argues that the problems necessitating removal in the earlier dependencies were therefore different than the problem necessitating removal in the current case, so her failure to make a reasonable effort to treat the earlier problems cannot support a bypass of reunification services here. For this proposition, mother relies on In re Albert T. (2006) 144 Cal.App.4th 207 (Albert T.).
Albert T. did not suggest, much less hold, that the bypass provision of section 361.5, subdivision (b)(10) applies only if the problems that led to the removal of the sibling are identical to the problems that led to removal in the current proceeding. In Albert T., neither the juvenile court nor the agency had identified the problem that the parent had purportedly failed to address; although on appeal the agency argued she did not make reasonable efforts to treat domestic violence, the record did not show that domestic violence was part of the reason for the child's removal or continued dependency. (Albert T., supra, 144 Cal.App.4th at p. 219.) Moreover, there was no evidence that the parent had failed to make reasonable efforts to address the domestic violence issues; to the contrary, the record showed she had. (Id. at pp. 220-221.)
Here, by contrast, the record does show that the prior dependencies were based in part on sustained allegations that mother may have a substance abuse problem requiring assessment and treatment, and there was evidence that mother thereafter failed to make reasonable efforts to address that issue by failing to show up for most of her drug tests set up in this case. And while mother argues that she began to participate in some services two months before the disposition hearing , it was not unreasonable for the court to conclude that this did not amount to reasonable efforts to address the potential substance abuse issues. Substantial evidence supports the court's findings under section 361.5, subdivision (b)(10).
C. Reunification Would Not Be In The Minor's Best Interests
Where a bypass provision applies, a court may not order reunification services unless the parent establishes by clear and convincing evidence that services would be in the minor's best interests. (§ 361.5, subd. (c); In re Lana S., supra, 207 Cal.App.4th at p. 109.) We review for an abuse of discretion. (Ibid.)
"To determine whether reunification is in the child's best interest, the court considers the parent's current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity. A best interest finding requires a likelihood reunification services will succeed; in other words, 'some "reasonable basis to conclude" that reunification is possible.' " (In re Allison J. (2010) 190 Cal.App.4th 1106, 1116; see In re Lana S., supra, 207 Cal.App.4th at p. 109 [in deciding whether services would be in the minor's best interests, the court may consider the "failure of the parent to respond to previous services"], quoting § 361.5, subd. (c)(4).)
Here, as to mother's current efforts, she missed six out of ten drug tests and had not tested in the five weeks prior to the disposition hearing, and despite being provided transportation funds she missed one visit with the minor, was late to others, and once showed up smelling strongly of marijuana and spent the majority of the time on her phone. As to mother's fitness, she violated a court order prohibiting her from unsupervised contact with the minor's sibling and was less than forthright about the incident that brought the minor to the Agency's attention. As to mother's history, her participation in reunification services for her other children was found to be "very minimal" and reunification services were terminated. And the problem that led to the dependency in this case was serious, in that it exposed the minor to transportation by a stranger in a stolen car without a car seat or restraint and resulted in significant injury. It was not unreasonable for the court to conclude that reunification services were not in the minor's best interest.
Mother argues that she participated in services without the Agency's assistance, visited the minor, admitted she made a mistake, expressed remorse and, in her view, cooperated with the Agency. In addition, mother and the minor had a strong bond, while a strong relationship had not yet developed between the minor and the current caretaker. Certainly the bond between the minor and mother is a consideration, and the other matters mother raises may be as well. The question, however, is not whether there was evidence to support a finding that reunification services would be in the minor's best interest, but whether there was evidence to support the court's finding that mother had not made the required showing. Mother fails to demonstrate an abuse of discretion.
III. DISPOSITION
The petition is denied.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.