Opinion
A152516
01-04-2018
SARAH F., Petitioner, v. THE SUPERIOR COURT FOR THE COUNTY CONTRA COSTA, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES, Real Party 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J16-00638 through J16-00646 & J17-00546)
Petitioner, the mother of 10 children (Mother), challenges juvenile court orders in related proceedings considered in a consolidated manner, setting a Welfare and Institutions Code section 366.26 hearing for all the children, on the grounds that (1) she should have been provided additional services to reunify with her nine older children; (2) she should have been provided reunification services for her tenth child, who was born while she was receiving reunification services for her older children; and (3) the juvenile court erred when it reduced the number of visits with the children after setting the section 366.26 hearing. For the reasons given below, we shall deny the petition.
All further statutory references are to the Welfare and Institutions Code.
Both parents were parties to the juvenile court proceedings. Because only Mother has filed a petition in this court, we shall focus on facts relevant to her, mentioning the father only when necessary for context.
FACTUAL AND PROCEDURAL BACKGROUND
Mother's 10 children were born between 2001 and 2017. On June 28, 2016, the Contra Costa Children and Family Services Bureau (the bureau) filed a detention/jurisdiction report regarding all of the children, other than the as yet unborn I.F., recommending that they be detained in an out-of-home placement. The family first came to the bureau's attention when Mother reported to the police that she had found two pictures of the vagina of her nine-year-old daughter (S.F.) on the father's phone. During the ensuing investigation, the police found their home to be in a "deplorable condition," with exposed electrical wires, infested with rats and roaches, and covered in mold. One child, who was initially mistakenly believed to be about eight years old, was sleeping with the youngest child in a garage closet. They appeared not to have changed their clothes in days. Mother reported locking the children in their rooms at night so they would be safe from an unidentified danger. Although she did not identify the danger, the officer indicated that the couple had a history of domestic violence and Mother was "very afraid" of the father.
A social worker made an unannounced visit to the family home. Outside the home she observed piles of trash, broken furniture and household items. Inside, there was a noticeable sour odor. Bugs were crawling on the floor and there were piles of trash, clothing and household items strewn about. Mother clarified that the lock on the girls' bedroom door was "to keep her husband out and then alluded to the reason being that he drinks alcohol."
Both Mother and S.F. identified the child in the two genitalia photographs as S.F. Mother identified the father's hand in one of the photographs. She indicated that she believed the photographs represented an "isolated incident," and was not sure they were inappropriate. She was worried about how she would manage financially without the father's income. She feared the father's potential reaction to the photographs—in part, because he had hit her in the past. She reported that in 2007 she and her husband had a domestic violence issue, but that was "no longer a problem because [father] took classes and has not been abusive towards her since." She also stated that the father "drinks about three to four beers on many occasions. She stated that she wonders if he had consumed alcohol on the night he took the photograph."
S.F. stated she did not know if she could trust her father because "he's the wrong kind of dad." She reported, without elaborating, that she locked her door at night because her father might come into the room. S.F. stated she is home-schooled and that none of her siblings attend "regular school." She also stated that Mother gives the children, including the nine-month-old, "sleepy pills" before their father returns home.
The juvenile dependency petitions for the nine children alleged, pursuant to section 300, subdivision (b), that Mother failed to provide them with adequate shelter, gave them "sleepy pills" to put them to sleep, and failed to provide adequate and consistent medical and dental care. The petition relating to S.F. also alleged, pursuant to section 300, subdivision (a), that she had suffered or there was a substantial risk would suffer serious, nonaccidental, physical harm due to, inter alia, Mother hitting her and leaving purple and blue marks from a belt on her buttocks, legs, and back of her arms, hitting her head and "cracking [it] open" causing a wound, and hitting her with a hammer, more than once, and scarring her right palm. The petition also alleged, pursuant to section 300, subdivision (d), that S.F. had been sexually abused or was at substantial risk of sexual abuse from which Mother failed to protect her, as evidenced by pictures on the father's phone of her vagina and of a male anus, and the father having repeatedly made her and her siblings watch pornography. The petitions relating to S.F.'s siblings alleged, pursuant to section 300, subdivision (j), that they were at substantial risk of abuse or neglect as evidenced by these incidents.
Mother believed the pictures of the man's anus were of the father.
At the June 28, 2016 detention hearing, the nine children were detained and placed in various foster placements of two or three children each. Initially no visitation was permitted but on July 14, the court ordered that Mother have a minimum of one hour per week of supervised visitation. On September 29, 2016, at the contested jurisdiction hearing, the juvenile court sustained the allegations in the petitions.
In a July 18, 2016 interview with the county social worker, Mother blamed her landlord for the safety issues in the house. She conceded that the children were not receiving dental care because she did not know how to obtain it through the county health care system. She denied that either she or her husband had ever hit the children with a hammer, that her husband had recently hit the children with a belt, and that she gave the children sleeping pills. She also denied that the father had engaged in sexually inappropriate behavior with S.F. Mother speculated that S.F. might have fabricated the allegations or been coerced to do so by the social workers, who wanted to remove the children from the home.
Mother's statements about this allegation were inconsistent. On July 7, 2017, she informed the social worker that once when she and the children were watching a movie about Jesus, the children asked what happened when Jesus was on the cross and to explain she "got out a hammer and lightly hit the children on their hands, not on the arm."
Mother's explanation of her daughter's genital pictures changed over time. In an interview documented in the November 3 disposition report she explained that a "homeless drug addict guy" whom they permitted to stay at their home, took the pictures.
At the December 8, 2016 disposition hearing, the court ordered that Mother be provided with reunification services. The November 3, 2016 disposition report reflected that Mother had reliably visited the children and engaged in therapy. She had completed a parenting class. Nonetheless, the bureau had serious concerns about the ultimate success of reunification because Mother denied the children's reports of abuse and neglect, was dishonest about her contact with the father, and insisted that because she had been in the foster care system as a child, she could not be a perpetrator of abuse or neglect. The report concluded that Mother "is not ready to acknowledge her role in the abuse and neglect that was taking place in the home before removal."
On October 19, 2016, the police went to the family home to serve a warrant on the father and found him "attempting to flee the home by hopping a back fence." He admitted that he had been staying in the family home since the beginning of the juvenile proceedings. Mother, however, gave the police "multiple names for the individual who fled from the back of the home, stating she had not seen [father] in months."
Mother's case plan required her to successfully complete individual counseling, participate in her children's mental health treatment as recommended by their therapists, and successfully complete anger management, sexual abuse, and domestic violence programs.
Mother timely appealed the juvenile court's December 8, 2016 orders declaring the children to be court dependents. After counsel filed a "No Issues Statement" and Mother failed to indicate there were any issues requiring appellate review, the appeal was dismissed.
Shortly after I.F. was born, a section 300 petition was filed on his behalf, alleging there were ongoing family reunification proceedings for his nine siblings. The bureau requested detention based in part on Mother's failure to demonstrate changes that led to the dependencies of her older children and on her dishonesty about her contact with the father during the reunification period. The juvenile court sustained the petition, as amended.
In a report filed May 24, 2017, requesting a four-week continuance due to the assigned social worker's protracted illness, it was reported that Mother's sessions with her therapist had terminated. A later report explained that her treatment had ended because she had met her goal of decreasing depression and anxiety. Furthermore, because she was taking domestic violence classes, she no longer felt she needed individual therapy. She was completing a parenting class geared towards younger children and was enrolled with the father in domestic violence classes.
The May 24 report also noted that Mother "continue[d] to lack insight or take accountability for the circumstances leading to [her] involvement with the bureau." Both parents denied exposing the children to pornography and denied that it was S.F.'s vagina depicted on the father's phone. Mother admitted she did not keep the house clean, but explained the children were always "messing it up." She conceded "giving up." She believed the bureau and law enforcement had treated her and the father unfairly, explaining that the picture of the vagina was "just a picture, not like it was porn." She denied that any physical, emotional, sexual abuse, or neglect occurred in their home. Mother regularly visited the children as scheduled (having missed only two visits after I.F.'s birth). Mother lied to the social worker about being pregnant. When confronted about the lie, she explained she was scared that the bureau would take the baby (as it did).
A later report dated June 19, but not filed until September 18, 2017, concluded: "The bureau has major concerns regarding the parents' denial and lack of insight. Both parents have consistently denied what the children have reported and state that the photos of [S.F.] on her father's phone were taken by someone else; even though Mother and [S.F.] confirmed that the hand in the picture is the father's. Both parents have been dishonest about father's whereabouts prior to his return in late October 2016. Mother denied that she was pregnant in March 2017. [¶] Both parents have stated to the undersigned that they are doing what is required on the Case Plan to get their children back, but cannot express behavioral changes that would provide safety to their children. It appears both parents are not ready to acknowledge their role in the abuse and neglect that was taking place in the home before removal. The parents have engaged in parenting and anger management classes, but only recently in domestic violence classes. Although the Mother has been consistently participating in sex abuse non offender groups at A Step Forward since April 10, 2017, the staff reports she is in denial about the father's sexual abuse and continues to blame others." The report also noted Mother's repeated untrue statements that the father was no longer in the home. Mother had then completed anger management classes and was finishing a two-part parenting class for younger children and for teenagers. She was regularly attending a "non-offenders class." She continued to claim that a stranger staying at their house, rather than the father, had photographed S.F.'s vagina. When asked what she had learned from her classes, Mother offered that giving up on cleaning the house—with the children regularly messing it up and no one helping her clean—was not a viable way to maintain the home. She also continued to deny giving the children sleeping medication, hitting S.F. with a hammer (although the child showed the social worker the scars on her hand from the hammer) or belt. Mother claimed to be home-schooling the children—but there was no evidence of a curriculum, consultation with an educator, or use of any academic materials. Most of the children said they had not been to school for four to five years, but Mother insisted it had only been a "few years." Mother stated she was very motivated to get her children back and was willing to live apart from her husband to do so. This report recommended that reunification services be continued for the seven older children, but terminated for the two-year-old and nine-month-old children.
The subsequent status review report prepared for the August 30, 2017 status review included an unconfirmed July 12, 2017 report that S.F. said she "used to pretend to be asleep when daddy did things to me." It further quoted her as saying at a sibling visit, "I know who took the pictures of me, it was mom. I closed my eyes when it happened." When this was investigated S.F. recanted and the investigation was closed as inconclusive. In addition, one of the older children instructed his siblings "not to tell anyone anything about Mom and Dad so that they don't get into trouble."
The report also documented numerous other psychological or emotional issues—especially with the older children. Following their detention and return to school, they were often behind in their schoolwork and struggled academically. They exhibited a variety of problems, including "parentified" behavior, feeling unreasonably responsible for siblings' situations, binge eating, vomiting (and not cleaning up), frequent masturbation (and not cleaning up), refusing to shower regularly, oppositional, defiant, and secretive behavior, and posttraumatic stress disorder.
The bureau's August 30, 2017 status report concluded that it had "major concerns" regarding Mother's denial and lack of insight. It pointed to Mother having recanted her statement that the pictures of her daughter had been taken by the father. It also referenced her lying about the father's whereabouts and her pregnancy. Despite Mother's regular participation in a sex abuse non-offender group, she was still in denial about the father's sexual abuse. She was still unable to articulate the necessary changes to safeguard her children. The report also referenced new information about S.F. having been molested years earlier and Mother's admission of the inappropriate use of a hammer on the children. The bureau recommended that the juvenile court terminate family reunification services for Mother.
Mother claimed that when S.F. was four years old and visiting at the home of the father's employer, the father observed his employer molesting S.F. Afraid that the father might lose his job, they did not report the incident, but never again brought S.F. to the employer's house. They also moved several months later, so that the employer would not know where they lived.
On August 30, 2017, the juvenile court held a combined six- and twelve-month contested review hearing for the older nine children and a contested disposition hearing for I.F. The case social worker testified that Mother had made no progress in her domestic violence class. According to the social worker, Mother was making very limited or minimal progress in her anger management and parenting programs, but the social worker acknowledged that no instances of inappropriate discipline had been noted during Mother's visits with the children. She also reported that Mother had completed an initial round of individual therapy, successfully decreasing her anxiety and depression. The social worker referred her for additional therapy, but to the best of the social worker's knowledge Mother did not attend the additional therapy. Mother was attending a non-offenders group for sexual abuse, but had not made any progress on that issue.
The social worker also testified that another social worker who had visited the family home around the time of I.F.'s birth reported that the home was "immaculate."
On September 18, 2017, the juvenile court found that although Mother had been "really good at checking off boxes in terms of the services engaged in," she failed to develop any insight into the problems that led to the filing of the petitions. The court opined that Mother exhibited "buyer's remorse"—reporting her daughter's abuse to the police, but then recanting her allegations. The court considered the initial unsanitary conditions in the house to be "symptomatic of some profound disturbances" in the family dynamics. It characterized Mother's explanation of beating the children with a hammer to demonstrate Jesus' experience on the cross to be "ridiculous." The court also considered the pathology in the family to be more widespread than simply affecting S.F., causing the other children to manifest "profound issues." Despite widespread and severe family problems, Mother was "entrenched in denial." She repeatedly lied to the court and to the authorities. Although the court recognized that Mother loved her children, it was "not even a close case for any of the children." Mother's home was "completely unsafe." The court could not find that there was a substantial probability of returning the children to Mother if services were continued to the 18-month, or even the 24-month, mark.
With respect to I.F., the court bypassed reunification services. It reiterated its findings that Mother demonstrated "a complete lack of capacity to safely parent" in light of the facts concerning I.F.'s siblings. The court stated she had more than one year to engage in services and still manifested "a complete lack of understanding" as to why the juvenile court had become involved with her family.
The court set a section 366.26 hearing for January 10, 2018 and reduced the minimum number of Mother's supervised visits with her children to one per month.
Mother filed a timely notice of intent to file a writ petition and timely filed her petition on October 27, 2017. The bureau filed its opposition on November 20, 2017, and oral argument was waived.
DISCUSSION
Mother contends that the juvenile court erred by refusing to extend reunification services beyond the 12-month hearing, by denying reunification services for I.F., and by reducing visitation to a minimum of once per month.
Our review is to determine whether substantial evidence supports the findings underlying the court's orders terminating reunification services and denying reunification services. (Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1028; In re Harmony B. (2005) 125 Cal.App.4th 831, 839.) All conflicts in the evidence must be resolved in favor of the respondent and all legitimate and reasonable inferences necessary to uphold the juvenile court's order must be made. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) We must uphold the juvenile court's decision unless no rational finder of fact could reach the same conclusion. (In re Heather B. (1992) 9 Cal.App.4th 535, 563.)
I. Substantial evidence supports the juvenile court's order terminating services and setting a section 366 .26 hearing.
For children who are three years or older when removed from their parents' physical custody, reunification services normally are to be provided for 12 months from the dispositional hearing. (§ 361.5, subd. (a)(1)(A).) For children who are younger than three, reunification services typically are to be provided for between 6 and 12 months from the dispositional hearing. (Id., subd. (a)(1)(B).) When placing a sibling group removed from their parents' home at the same time in a permanent home if reunification efforts have failed and one member of the sibling group was younger than three years old when removed, the more limited period may be applied to the entire sibling group. (Id., subd. (a)(1)(C).) Regardless of the child's age, a parent's failure to make substantive progress in court-ordered treatment programs constitutes prima facie evidence that returning the children to parental care would be detrimental. (§ 366.21, subds. (e)(1), (f)(1)(B).)
Here, despite the awful impact of removing 10 children from their parents' care, we are constrained to uphold the conclusions of the juvenile court. Despite significant danger to the children, evidenced by the need to lock bedroom doors to protect them from their father, Mother remained in denial as to the nature and extent of the problem. There were significant unacknowledged problems in educating and in obtaining health care for the children. Over the course of the reunification period, Mother backtracked on her initial accusations concerning sexual abuse of S.F., and was never forthright about her abusive disciplinary methods. Mother did make significant progress in keeping the house clean, but there is no evidence that she made any progress in correcting the other profound issues necessary to safely return the children to her care.
The court acknowledged that the two older boys wanted to return home. But, the court asked rhetorically, "What kind of future would they have in the care of these two parents who have demonstrated absolutely no insight into the damage they have inflicted on their children in the manner in which they lived? [¶] For these boys to binge eat, vomit and to masturbate all over the floor and leave it, to be so profoundly behind in their education, if these were two parents who got it, who were trying to engage in services and show that we understand our children have these issues, we are responsible, we are going to participate and help them recover and be healthy young people, we'd had a whole different case. [¶] But we don't have that. We have two parents entrenched in denial. Neither parent has any credibility. Mother has lied repeatedly to the court, to the authorities, lied about father physically being in the home when he's seen jumping over the fence in the backyard. She lied about being pregnant and gave birth the next month. [¶] You can't believe what comes out of mom. . . . [¶] And then you have this history of living in Los Angeles, repeated issues going on with domestic violence and referrals, and then they move to Contra Costa County, and then they quote, unquote home-school the children, so they kept them away from public view and cloistered up in this home. These are really astounding issues. [¶] I think it's not even a close case for any of these children in terms of these parents."
Based on the record before us, we cannot say that the juvenile court erred in declining to extend rehabilitation services.
Mother's reliance on Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 is misplaced. That case did not turn on "a parent's failure to internalize aspects of a treatment plan" as Mother asserts, but on the juvenile court's mistaken assumption that the father had been found to have molested his three year old daughter when in fact there had been no such determination. Here, the father started a sexual abuse assessment, but abruptly stopped the evaluation when he was scheduled for a polygraph examination, a critical part of the assessment. His evaluation suggested he "present[s] some sexual threat to his children, although his measurable level of risk is difficult to estimate due to limited data in this regard." In all events, the direct concern here is with Mother, and there is no evidence to overcome her denial of the problems described by the social workers and the court.
II. Substantial evidence supports the decision to deny services to reunify Mother with I.F.
The juvenile court is empowered to bypass reunification services in certain situations. (§ 361.5, subd. (b).) If the court finds by clear and convincing evidence that the court ordered termination of services for a sibling because the parent failed to reunify with the sibling and the parent did not subsequently make a reasonable effort to treat the underlying problems that led to the initial removal, services need not be provided to reunify the parent with the second child. (Id., subd. (b)(10).) Mother contends that because services with respect to the older children were terminated only minutes before the court denied services for her to reunify with I.F., she was deprived of the opportunity to demonstrate reasonable efforts to address the underlying problem. In In re Harmony B. (2005) 125 Cal.App.4th 831, 842-843, the court explained that when time has elapsed after termination of services to one child, the court must weigh the parent's reasonable efforts to correct the underlying problem before it denies services to reunify with another child. However, when the two proceedings occur contemporaneously, there is no requirement to further delay the proceedings concerning the second child. (Id. at p. 843.) When the bypass proceeding occurs contemporaneously with the initial termination decision, the "no-reasonable effort" clause becomes a formality. (Ibid.) The law is intended to allow the juvenile court to consider new evidence regarding a parent's circumstances and ability to parent. Where no new evidence exists because both proceedings occur contemporaneously, there is no need for further delay.
Mother relies primarily on two cases to support her claim that she should be given services to reunify with I.F. In Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, the appellate court reversed an order bypassing services for reunification with a second child, listing various elements of the parents' case plans that the parents successfully completed. (Id. at p. 98.) Mother here points out that she too participated in her case plan. But the parents in Cheryl P. did more than just participate. Unlike the present situation, those parents "complied with their case plans and demonstrated progress." (Ibid., italics added.) And in Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464, the mother "had made significant changes in her lifestyle since the removal of her other children." (Ibid.) After some initial problems, her conduct was "nearly flawless." (Id. at p. 1456.) She participated in in-patient drug treatment, attempted to find a sober living home that would allow her to live with her child, was successfully living in a sober living home, drug testing, attending 12-step meetings, and working part time. Based on input from the director of her sober living home and probation officer, the court indicated that she is doing everything, as far as it could tell, "perfectly." Unfortunately, nothing about Mother's response to the issues that necessitated the juvenile court's intervention in this case puts her in the same category or demonstrates such progress. Substantial evidence supports the juvenile court's decision to bypass services with respect to I.F.
III. The juvenile court did not abuse its discretion when it modified Mother's visitation.
We review the juvenile court's visitation order for abuse of discretion. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.) We must refrain from disturbing the juvenile court's discretion in making visitation orders unless the court exceeded the bounds of reason. (In re S.H. (2011) 197 Cal.App.4th 1542, 1557-1558.) Here, after setting the section 366.26 hearing, the juvenile court allowed continued visitation but reduced the minimum number of visits to one per month. In setting a minimum number of monthly visits, the court merely established a floor of at least one visit per month, but allowed the bureau discretion to provide additional visitation.
Once reunification services are terminated, a child's needs for permanency and stability become the focus of the juvenile court's intervention. (In re Celine R. (2003) 31 Cal.4th 45, 52.) Given the shifting focus of the juvenile dependency cases after the setting of a section 366.26 hearing, we cannot say that the juvenile court exceeded the bounds of reason in reducing the minimum to once monthly.
DISPOSITION
The petition for an extraordinary writ is denied. Our decision is immediately final as to this court. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
Pollak, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.