Opinion
F080740
05-28-2020
T.A., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest.
T.A., in pro. per., for Petitioner. No appearance for Respondent. Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. JD138661-00, JD138662-00, JD138663-00, JD138723-00)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ. Marcos R. Camacho, Judge. T.A., in pro. per., for Petitioner. No appearance for Respondent. Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Real Party in Interest.
Before Detjen, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
T.A. (mother), in propria persona, seeks an extraordinary writ from the juvenile court's orders issued at an 18-month review hearing (Welf. & Inst. Code, § 366.22) terminating her reunification services and setting a section 366.26 hearing on June 3, 2020, as to her now 11-, nine- and two-year old daughters, T.L., T.A. and E.A., respectively, and 22-month-old son, D.A. Mother contends the court erred in not giving sufficient weight to evidence she completed her services plan. We deny the petition.
Statutory references are to the Welfare and Institutions Code.
Mother included her now 17-year-old son, P.P., as a subject of these writ proceedings. However, writ proceedings do not apply to him because the court did not set a section 366.26 hearing in his case. (Cal. Rules of Court, rule 8.450.) P.P. was taken into protective custody with his siblings and mother was provided reunification services to reunify with him. However, he was not available to participate in the 18-month review hearing and the court did not issue any orders as to him. --------
PROCEDURAL AND FACTUAL SUMMARY
In May 2018, the Kern County Department of Human Services (department) took then nine-year-old T.L., seven-year-old T.A. and 11-month-old E.A. into protective custody amid allegations mother and David A., E.A's father, engaged in domestic violence in the children's presence. The department monitored the family situation for nearly two months before intervening. In April, the parents were yelling and hitting each other and mother threw a chair at David. He attempted to punch mother, then pregnant with D.A., in the stomach and pushed her to the ground. While trying to hit mother, David struck E.A. near her eye. When T.L. attempted to remove E.A. from the situation, David grabbed T.L. by the hair and pulled E.A. away from her by the arm. E.A. suffered a scratch on her leg in the process. The event precipitating the children's removal occurred on May 26 when the parents were involved in a physical altercation. David struck and broke a window and kicked the front door. Mother hit him in the head with a wrench, causing a large knot.
The department filed an original petition on the children's behalf under section 300, subdivision (b) based on mother and David's ongoing domestic violence. Mother identified Joel L. (deceased) as T.L.'s father and David A. as E.A.'s father. She identified a man named "David" as T.A.'s father but had no other identifying information about him. His whereabouts were unknown. The department placed T.L. and T.A. together in a foster home and E.A. in a separate foster home.
The juvenile court ordered the children detained pursuant to the original petitions and set the jurisdictional/dispositional hearing for July 17, 2018. Meanwhile, David was arrested in June 2018 for possession of methamphetamine and possession of controlled substance paraphernalia and mother gave birth to D.A. and tested positive for methamphetamine. D.A. tested negative.
The department took D.A. into protective custody and filed a dependency petition on his behalf based on mother and David's ongoing domestic violence and her use of methamphetamine and regular contact with David. The department filed first amended petitions as to T.L., T.A., E.A., and D.A., adding allegations mother and David used methamphetamine.
In August 2018, the juvenile court sustained the first amended petitions and ordered mother to participate in domestic violence counseling as a perpetrator, substance abuse treatment, parenting instruction and random drug testing. The court ordered the same services for David. The six-month review hearing was set for February 2019.
In the original status report prepared for the six-month review hearing, the department recommended the juvenile court terminate reunification services because the parents were not meaningfully engaged in their services. Mother waited until January 2019 to enroll in domestic violence counseling and she and David engaged in domestic violence incidents in August 2018, which resulted in his arrest, and in October 2018 in front of the children during a supervised visit. Meanwhile, E.A. and D.A. were placed with a paternal aunt who wanted to adopt them, T.A.'s foster mother wanted legal guardianship of her and T.L.'s foster mother was committed to long-term foster care.
The six-month review hearing was continued to May 2019. In the interim, the department changed its position and recommended the juvenile court continue reunification services because the parents were making progress. Mother began outpatient substance abuse counseling in January 2019 and completed it in early May. She began domestic violence counseling as a perpetrator in January 2019 and was making good progress. In March 2019, she completed a parenting class and began mental health counseling. She had also been testing negative for drugs since November 2018. David was enrolled in domestic violence counseling as a perpetrator, parenting and outpatient substance abuse counseling. He was making satisfactory progress in substance abuse counseling and excellent progress in parenting.
The juvenile court continued reunification services at the six-month review hearing in May 2019 and ordered mother to participate in mental health counseling and conjoint counseling with T.L. The court set the 12-month review hearing for July 2019.
The parents continued to progress in their reunification services. Mother participated in conjoint counseling and domestic violence as a perpetrator counseling and was making good progress. Father continued to participate in domestic violence, substance abuse and parenting counseling. They continued to test negative for drugs and regularly visited the children with positive interaction.
The juvenile court conducted the 12-month review hearing in July 2019 and continued services to the 18-month review hearing in November 2019.
By the 18-month review hearing, David completed domestic abuse counseling but was not communicating with the department, drug testing or participating in substance abuse counseling. He participated in supervised visits but was minimally engaged. Mother continued to participate in services but was unwilling to separate from David so that the children could be placed with her under a plan of family maintenance services. The department recommended the juvenile court terminate reunification services.
The parents appeared with their attorneys at the 18-month review hearing in February 2020 and made offers of proof which were accepted by the juvenile court. Mother's offer of proof was that she and David were not in a romantic relationship. David's offer was that he lived with the paternal grandmother, not mother. They addressed an incident in which David was found at her apartment. They claimed he was there to repair a plumbing problem.
Mother's attorney argued for the children's return to mother's custody under family maintenance. David supported placing the children with mother and was willing to abide by a stay-away order. Minors' counsel informed the juvenile court T.L. and T.A. wanted to return to mother's custody but advocated for terminating services because mother continued to allow David in her home.
The juvenile court found the children could not be returned to parental custody without placing them at a substantial risk of harm. It also found the department provided the parents reasonable reunification services, found mother's progress was moderate and David's minimal and terminated reunification services. The court expressed concern that mother did not appreciate the significance of domestic violence in her relationship with David and the harmful effects on the children of being in his presence. The court set the section 366.26 hearing for June 3, 2020.
DISCUSSION
Mother contends the juvenile court erred in not acknowledging she completed her reunification services. She does not ask this court for an order returning the children to her custody; instead she asks for additional time to reunify.
Since mother's argument she fully complied with her services plan relates more to the juvenile court's decision not to return the children to her custody, we construe her writ petition as a challenge to the sufficiency of the evidence to support the juvenile court's findings it would be detrimental to return them. Since she requests additional services, we also construe the petition as challenging the court's orders terminating her reunification services. We conclude substantial evidence supports its findings and orders.
The 18-month review hearing generally marks the maximum allowable period of reunification services afforded a parent under the dependency statutes. (§ 361.5, subd. (a)(3)(A).) At that hearing, the juvenile court is required to return the dependent child to parental custody unless the court finds by a preponderance of the evidence that the return of the child would create a substantial risk of detriment to the child's safety, protection, or physical or emotional well-being. (§ 366.22, subd. (a)(1).) A parent's failure to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return would be detrimental. (Ibid.)
If the juvenile court finds it would be detrimental to return the child, it must set a hearing under section 366.26 to select a permanent plan. (§ 366.22, subd. (a)(3).) Section 366.22, subdivision (b), provides exceptions, none of which apply here, that permit the court to continue services. Those exceptions pertain to parents who are residents of a court-ordered substance abuse treatment program; or recently discharged from incarceration, institutionalization, or the custody of the United States Department of Homeland Security; or who were a minor or nonminor dependent parent at the time of the initial hearing. The court must also find the parent is making significant and consistent progress, there is a substantial probability the child will be returned, and that it is in the child's best interest to continue services to the parent. The court may continue services up to 24 months from the date the child was initially removed from parental custody. (§ 366.22, subd. (b).)
Another possible exception that would allow the juvenile court to continue services beyond the 18-month review hearing is the case where the court finds the parent was not offered or provided reasonable reunification services. (See § 366.22, subd. (a)(3).) However, mother does not claim she was not provided reasonable services.
On a challenge to the sufficiency of the evidence to support the juvenile court's finding, the question is not whether a contrary finding might have been made, but whether substantial evidence supports the finding made by the court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order." (Ibid.) If the finding or order is supported by substantial evidence, it will be upheld. (Ibid.)
Here, the juvenile court acknowledged mother completed the technical requirements of her services plan but found that her progress overall was moderate because she did not understand how harmful domestic violence and her relationship with David was to her children. On that evidence, the juvenile court properly found that returning the children to her custody would create a substantial risk of detriment to their physical and emotional well-being.
Further, because mother had received more than 18 months of reunification services and there were no exceptions warranting continued services, the juvenile court had no choice but to terminate services and set a section 366.26 hearing and mother has not persuaded us otherwise. Consequently, we affirm the court's orders terminating reunification services and setting a section 366.26 hearing.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.