Opinion
F085083
06-20-2023
In re E.T. et al., Persons Coming Under the Juvenile Court Law. v. L.P. et al., Defendants and Respondents. TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Appellant,
Katie Curtis, under appointment by the Court of Appeal, for Defendant and Respondent, L.P. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Respondent, C.K. Sarah Carrillo, County Counsel, and Maria Sullivan, Deputy County Counsel, for Plaintiff and Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tuolumne County Nos. JV8312, JV8313. Laura Leslie Krieg, Judge.
Katie Curtis, under appointment by the Court of Appeal, for Defendant and Respondent, L.P.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Respondent, C.K.
Sarah Carrillo, County Counsel, and Maria Sullivan, Deputy County Counsel, for Plaintiff and Appellant.
OPINION
THE COURT [*]
At a dispositional hearing in September 2022, the juvenile court adjudged then seven-year-old E.T. and one-year-old A.K. (collectively "the children") dependent children and ordered reunification services to their mother, L.P. (mother), under Welfare and Institutions Code section 361.5, subdivision (c)(2). Appellant Tuolumne County Department of Social Services (department) appeals from the court's order granting mother reunification services, contending the court abused its discretion when it found that reunification served the children's best interests. Finding no error, we affirm the juvenile court's order.
All further statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
On May 16, 2022, the department received a report that E.T. was hit by mother on the previous day. Officer Paulson from the Sonora Police Department responded to E.T.'s elementary school with department social workers. E.T. was observed to have dark bruises to both sides of her right ear. One of the social workers was recognized by E.T. from a previous referral investigation. The social worker asked E.T. how her weekend was, and she responded," 'Mmm_ ok. My mom hit me 11 times.'" E.T. moved her hair to reveal large red and purple bruises to the top and back of her right ear. She explained how mother smacked her "a bunch of times" because mother was upset at A.K. E.T. demonstrated the manner she was hit by making a slapping motion across her face with an open hand.
The social worker took a picture of E.T.'s ear, and E.T. stated," '[d]o not send the picture to my mom, she will smack me again.'" E.T. also claimed mother said," 'Thank God your dad passed away. He was not smart.'" E.T. did not feel safe with mother, but she felt safe with her dad prior to his passing. Mother lived with three other adults and a child. E.T. slept on the floor of the other child's room while mother slept on the couch with A.K. She indicated mother's roommate also hits her on the face. At the end of the interview, E.T. hid under a chair with a box over her face and stated," 'It makes me wish my Dad was here and he could take me away. I want to be taken from my mom.'" Paulson determined that he would place E.T. in protective custody, and the social worker intended to pick her up at the end of the school day.
The social workers and Paulson were unable to make contact with mother at her residence that afternoon. The homeowner acknowledged that mother lived at the home, but she was unable to provide mother's current whereabouts. The social workers observed mother arrive at the home in a pickup truck as they began to leave. However, mother drove off in the vehicle before the social workers could contact her.
The social workers were able to interview mother at the department's office later that afternoon. Mother acknowledged that she physically disciplines her children by "spanking them on the butt," but she denied any abuse of her children. She claimed E.T. was lying, and she denied hitting E.T. Mother had not noticed any bruising on E.T.'s ear despite frequently checking her for marks. E.T. attended counseling due to behavioral issues and grief due to her father passing away. Mother insisted E.T. was craving sympathy and attention, which she believed to result in dishonest behavior. She also suggested E.T. could have been injured during a fall or roughhousing with her roommate's seven-year-old son.
During the interview, mother disclosed recent alcohol use, but she denied using any illicit substances. She was attending Alcoholics Anonymous meetings, and she refused to submit a sample for drug testing. Paulson entered the social worker's office and informed mother that she was not free to leave. Paulson requested that mother provide a detailed account of the day E.T. claimed she was hit. Mother described their visit to a river where the child reportedly fell on a few occasions. She denied any physical discipline of E.T. on that day, but she admitted to becoming frustrated and yelling at E.T. for not listening. E.T. was continually described by mother as" 'dramatic'" and a" 'significant fibber.' "
Corporal Brickley entered the room, and mother stated," 'If I get arrested for nothing, I won't fight for her.'" Mother initially refused to provide the whereabouts of A.K. to law enforcement. She believed E.T. lied about being hit because E.T. hated mother for keeping E.T. from her father before he died. Mother continued to deny hitting the child, and she made numerous negative statements about E.T.'s behavior. Paulson placed mother under arrest, and she finally disclosed that A.K. was at their residence in the care of the homeowner. Social workers observed A.K. to be safe at the home, but the homeowner indicated she would allow mother to return to the residence once she was released from custody.
E.T. was taken to the emergency room by the social workers, and she again reported that mother hit her. There were large lice moving on E.T.'s head, and E.T. informed the social workers she had them for a while. The social workers had to reassure E.T. that she was safe in her resource family home because she asked," 'Are you sure my mom doesn't know I'm here? Are you sure I am safe?'" After a few minutes in the home, E.T. was laughing and playing with the other children in the resource family home.
A protective custody warrant was obtained by the department for A.K. on May 18, 2022. When mother was informed that A.K. would be placed into protective custody she shouted," 'I do not want visits with [E.T.], I am not fighting for her'" and" 'I am not a child abuser, I did not hit my child.'" Mother requested that A.K. be placed with family and began providing names of family members to be considered for placement. Mother then slammed her head into a table, which caused her nose to bleed. Officers took mother to the ground and placed her into handcuffs for her to be evaluated by medical staff. The social workers subsequently executed the warrant at mother's residence and placed the child in a resource family home with E.T.
The department filed an original petition alleging the children were described by section 300, subdivisions (a) and (j). The petition alleged the children were at substantial risk of suffering nonaccidental serious physical harm inflicted by mother. The petition further alleged that the children were at substantial risk of neglect based upon mother's previous neglect of a half sibling that resulted in dependency proceedings in 2019.
At a contested detention hearing held on May 23, 2022, the department submitted a copy of a drug test recently completed by mother, which was positive for amphetamine, methamphetamine, and THC. The social worker testified that mother denied any use when confronted with the test, and a previous dependency case involving E.T. involved mother's substance abuse and domestic violence relationship. The juvenile court ordered the children detained from mother and set a jurisdiction hearing for June 13, 2022.
The department's jurisdiction report recommended the allegations in an amended petition be found true, and a request for judicial notice of mother's previous dependency cases was also included in the report. The amended petition included additional allegations that the children were at substantial risk of serious physical harm due to mother's substance abuse. The report included descriptions of mother's prior child welfare history. In April 2017, E.T. was declared a dependent of the juvenile court due to mother's substance abuse and failure to protect from domestic violence. Mother left residential treatment on multiple occasions and failed to make progress in her case plan. E.T.'s father was provided sole physical custody of E.T. upon termination of the dependency in October 2018.
In March 2019, the children's half sibling was removed due to mother's substance abuse during her pregnancy with the half sibling. Mother was not provided reunification services pursuant to section 361.5, subdivision (b)(13), and her parental rights to the half sibling were terminated on March 9, 2021. Since 2015, mother and her children were the subject of 16 child welfare referrals involving allegations of domestic violence, emotional abuse, substance abuse, and general neglect.
On May 24, 2022, the children's care provider informed the social worker that E.T. did not wish to attend her visit because she believed mother did not want to see her. E.T. later explained to the social worker that she was afraid of mother, and she stated," 'I don't know why she doesn't like me.'" Mother began crying when the social worker informed her that E.T. may not be attending the visit. Mother then asked the social worker to tell E.T. that she loved and missed E.T. The following week, E.T. eventually chose to attend her visit with mother after assurances that the social worker would stay in the room with her. E.T. ran to give mother a hug when she entered the visitation room, and E.T. allowed the social worker to leave as the visit went well. After the visit, the care provider was concerned that E.T. felt responsible for mother.
In June 2022, the social worker received a phone call from E.T.'s therapist. The therapist confirmed that she recently began working with E.T. She planned to work with E.T. on communication skills and "emotional attunement." E.T. was described as having significant trauma due to her recent removal and loss of her father. The therapist believed E.T. may feel more comfortable visiting mother with more exposure.
The social worker met with mother on June 9, 2022, to discuss her current circumstances. Mother was attending 12-step meetings, and she continued to deny any recent methamphetamine use. She admitted to getting drunk after she was released from jail, but she insisted her last use of methamphetamine was shortly after the children's half sibling was removed during prior dependency proceedings. Mother also acknowledged that E.T. was trying to grow up too fast and take responsibility for mother's feelings because she was not processing her father's passing. Five of mother's drug tests were positive for THC and two of the tests were also positive for alcohol.
At a contested jurisdiction hearing held on July 20, 2022, mother was present and called her roommate to testify regarding his observations of her parenting. He testified that he never saw mother hit her children, and he denied ever harming E.T. The roommate was not present in the car when E.T. alleged she was hit by mother and had no knowledge about the injuries to E.T. Mother's friend also testified that he was with mother on the day E.T. claimed to be injured by mother. He denied seeing mother hit E.T. or observing any bruises on E.T. that day. He was unaware of mother's previous dependency case despite being with her almost every day in 2018 and 2019. After hearing argument from counsel, the juvenile court concluded that mother failed to provide a reasonable explanation for E.T.'s injuries. The court found the allegations in the amended petition true and set a disposition hearing for August 1, 2022.
The department's disposition report recommended that mother be denied family reunification services pursuant to section 361.5, subdivision (b)(11) and (13). The children remained placed with care providers that E.T. was previously placed with in her prior dependency proceedings. The care providers were committed to the long-term care of the children and were identified as a potential adoptive home for them. The children had no medical or developmental concerns noted. E.T. was struggling in many aspects of her education, but she demonstrated improvement in her third trimester of school. E.T.'s therapist did not believe it was in her best interest to allow mother to attend her counseling sessions.
During mother's interview for the disposition report, she disclosed her first use of marijuana as a teenager. She explained how her use of marijuana" 'slowed down quite a lot.'" She used marijuana for anxiety, and she drank alcohol excessively after the children were removed. Mother recently obtained a sponsor and claimed her last use of alcohol was on July 9, 2022. She entered an outpatient substance abuse program on June 10, 2022, and a report indicated regular participation and progress by mother.
Mother's counselor stated she was beginning to demonstrate accountability with her substance abuse, but she still had" 'a long way to go.'" Her weekly counseling sessions were focused on addressing her posttraumatic stress disorder, anxiety, and depression. Mother's primary goal was to reunify with her children. On multiple occasions, mother became upset with the social workers in relation to the scheduling of visits and placement of the children. Mother continued to test positive for marijuana, and she had no positive results for alcohol after July 9, 2022. Mother and the children shared in excitement during her weekly visits, and no concerns were noted during visits.
The department's assessment concluded that providing mother with reunification services for either child was not in their best interests. The social worker cited mother's continued denial of any physical abuse of E.T. and history of substance abuse and erratic behaviors. The assessment credited mother for her attendance of an outpatient program and counseling sessions. The social worker acknowledged that it was apparent that the children were bonded to mother through observation of their interactions at visits. Both children were described as having a need for stability and continuity based upon their suffering of" trauma, loss, change, and pain."
A contested disposition hearing began on September 14, 2022, with testimony from the assigned social worker. The social worker testified that mother did not complete a substance abuse program in her most recent dependency case. She was not aware of any substance abuse programs completed by mother despite multiple enrollments in the past five years. The social worker based her recommendation to deny services to mother on E.T.'s prior dependency case where mother failed to comply with multiple treatment programs. She also acknowledged that mother and E.T. loved each other, but she expressed concern that E.T. had tantrums around visitation times. Ultimately, the social worker opined that reunification was not in the children's best interests because mother had failed to achieve any stability in the last five years despite multiple opportunities to address her substance abuse issues.
Mother testified that she had a "really, really strong" bond with her children such that reunification services would be in their best interests. Mother articulated her belief that she would complete reunification services if they were provided in order to have the children return to her home. She believed E.T. had been affected by the recent passing of her father and grandfather, and she felt it would not be right for mother to be removed from her life as well. Mother stated she used marijuana for anxiety and an eating disorder, but she was open to alternate medications for those conditions.
On cross-examination, mother continued to deny that she hit E.T. Mother testified that she was taking steps to address any problems that she had. She believed "behavioral intervention" and inpatient treatment would be appropriate services for her to complete. Mother had not previously completed an inpatient treatment program, and she insisted her current circumstances were different than past cases because she had "grown up a lot." She insisted that she would do "whatever it takes" to reunify with her children. Mother's support network had improved, which consisted of her nieces, nephews, cousins, Alcoholics Anonymous fellowship, and the nonrelated family she continued to live with. She described the homeowners as filling the role of grandparents to E.T. Mother was working and trying to become more stable.
Counsel for the department argued that there was clear and convincing evidence that the bypass provisions of section 361.5, subdivision (b)(11) and (13) were applicable to mother. The juvenile court requested that the department's counsel go into more detail on that issue. Counsel for the department cited to this court's previous opinion in Tuolumne Co. Dept. of Social Services v. L.P. (Oct. 20, 2020, F081060) [nonpub. opn.] after the court previously agreed to take judicial notice of the decision regarding a section 388 petition filed by mother in the half sibling's dependency case. The court then requested that counsel address the children's best interests considering the factors of "the seriousness of the reason for the dependency and the reason the problem is not overcome, the relative strength of the parent/child bond, and the length of time the child[ren] [have] been in the system."
The juvenile court went on to cite the case of In re Aaliyah R. (2006) 136 Cal.App.4th 437 and stated, "The [c]ourt cannot deny the bond that's present with these children. The [c]ourt can't argue that the length of time that [A.K.] has been in the system has been significant at all. And the [c]ourt can't deny that your own witness testified that [mother] has made progress in 12 step, has improved her support network since her prior cases, all of which is important. [¶] The [c]ourt has attachments from her current service providers indicated that she has signed up for services herself; that she's an active participant. And this [c]ourt can't deny that she showed significant insight today, at least into her substance abuse problems."
The department's counsel then concluded by arguing that mother's current progress was no different than her past efforts such that she was unlikely to successfully reunify. Counsel for the children agreed with the department's recommendation to deny mother reunification services.
Mother's counsel argued that it was important that mother admitted to being an addict, and he emphasized that there was no evidence to contradict mother's testimony that she had grown up a lot. The juvenile court inquired of mother's willingness to take prescription medication for mental illness, and mother answered in the affirmative. At the conclusion of argument by all counsel, the court continued the matter for a ruling on September 19, 2022.
In its ruling, the juvenile court accepted that the department had proven the bypass provisions of section 361.5, subdivision (b)(11) and (13). The court began its best interest analysis by explaining how mother was not the same person that she was in previous dependency proceedings from 2017. The court made note of the different reasons for removal, lack of continuing methamphetamine use, consistent visitation, admission of substance abuse problem, and acceptance of responsibility in the present case. Although some anger issues and mental health concerns were still present, the court concluded that mother's bond with her children stood out in considering the children's best interest. The court proceeded to find that reunification services were in the children's best interests and ordered the department to provide family reunification services to mother.
DISCUSSION
The department contends there was not substantial evidence to support the juvenile court's finding that family reunification services were in the children's best interests. It argues that the court erred by believing mother had changed since prior dependency proceedings, confusing the reasons for the children's removal, and relying on the children's bond with mother in making its best interests determination.
As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to "the child and the child's mother and statutorily presumed father" (§ 361.5, subd. (a)). However, it is also the "intent of the Legislature, especially with regard to young children, ... that the dependency process proceed with deliberate speed and without undue delay." (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) Thus, the statutory scheme recognizes that there are cases in which the delay attributable to the provision of reunification services would be more detrimental to the [child] than discounting the competing goal of family preservation. (Ibid.) Specifically, section 361.5, subdivision (b), exempts from reunification services "those parents who are unlikely to benefit" from such services or for whom reunification efforts are likely to be" 'fruitless.'" (In re Joshua M. (1998) 66 Cal.App.4th 458, 470, 474.)
If the juvenile court finds a parent falls within certain paragraphs of the bypass statute, including section 361.5, subdivision (b)(11) and (13), "[t]he court shall not order reunification for [that] parent ... unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).) At this stage, "the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources." (Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)
"A juvenile court has broad discretion when determining whether further reunification services would be in the best interests of the child under section 361.5, subdivision (c)." (In re William B. (2008) 163 Cal.App.4th 1220, 1229 (William B.).) The court abuses this discretion when there is insufficient evidence to support the court's finding or when the court fails to apply the correct legal standard in making the best interest determination. (See Id. at pp. 1228-1229.)
"The best interest of the child is the fundamental goal of the juvenile dependency system, underlying the three primary goals of child safety, family preservation, and timely permanency and stability." (William B., supra, 163 Cal.App.4th at p. 1227; accord, In re Ethan N. (2004) 122 Cal.App.4th 55, 66 ["The concept of a child's best interest 'is an elusive guideline that belies rigid definition. Its purpose is to maximize a child's opportunity to develop into a stable, well-adjusted adult.' "].) The factors to consider include "a parent's current efforts and fitness as well as the parent's history"; "[t]he gravity of the problem that led to the dependency"; the relative strength of the bonds between the children and the parents and between the children and the care providers; and "the child[ren]'s need for stability and continuity." (Ethan N., at pp. 66-67 [citing cases].) When a juvenile court bases its best interest finding on factors that are not relevant to the primary goals of the dependency system, the court applies the wrong standards and abuses its discretion. (See Id. at p. 68; William B., at pp. 1228-1229.)
The case of William B. is instructive, the reviewing court concluded the juvenile court "did not apply the correct standards when deciding whether reunification services would be in the children's best interests." (William B., supra, 163 Cal.App.4th at p. 1228.) There, the court found the offending mother had a history of chronic drug use and had resisted court-ordered treatment for the problem, but the court nonetheless concluded reunification would be in the dependent children's best interests because "the boys had both testified they loved [mother] and wanted to be with her." (Id. at p. 1226.) The William B. court concluded this was error, explaining: "Most significantly, the juvenile court did not consider the children's need for stability and continuity. The children had been removed from both parents' custody three times and from mother's custody an additional time. Under these circumstances, at least part of the best interest analysis must be a finding that further reunification services have a likelihood of success. In other words, there must be some 'reasonable basis to conclude' that reunification is possible before services are offered to a parent who need not be provided them. [Citation.] But the juvenile court's own comments confirm our reading of the record: There is no substantial evidence to support the conclusion that [the children] will reunify with their mother, thereby achieving permanency and stability throughout the remainder of their childhoods." (Id. at pp. 1228-1229.)
The department's specific contention is that substantial evidence does not support the juvenile court's finding that reunification services to mother would be in the children's best interests. The department's contention is without merit as it primarily asks us to focus on mother's prior history and its belief that mother had not changed since previous proceedings. However, "[w]e do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
The juvenile court's finding is supported by substantial evidence. Although substance abuse was one of the bases for the court's assertion of jurisdiction, the primary reason for the department's intervention was the report of physical abuse that triggered its investigation. The rational distinctions drawn between mother's prior cases and the present case are far from "arbitrary" or "capricious" such that the court was unable to find that mother's current efforts and fitness had improved. The department primarily cites to mother's past failures to complete substance abuse treatment programs and the children's need for stability and permanency. In doing so, the department appears to be asking us to reweigh the evidence, which is not our role on review.
The juvenile court expressly considered each of the relevant factors impacting the children's best interests. It placed considerable weight on mother's strong bond with the children, long-term sobriety from regular methamphetamine use, consistent visitation, and acceptance of responsibility. We cannot say that such facts provide no substantial evidence to support the conclusion that reunification with mother is a possibility. (William B., supra, 163 Cal.App.4th at p. 1228.)
The juvenile court clearly weighed all the evidence in determining it would benefit the children for mother to be provided reunification services. To the extent the department is arguing the court did not do so, we disagree and find no abuse of discretion. We are to view the evidence and make factual inferences in the light most favorable to the outcome below. In doing so, we find no error. The court's finding was supported by substantial evidence and the court did not abuse its discretion in ordering reunification services be provided to mother.
DISPOSITION
The juvenile court's order is affirmed.
[*] Before Smith, Acting P. J., Snauffer, J. and DeSantos, J.