Opinion
E070215
06-04-2018
W.B., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
John Vega for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Michael A. Markel, Deputy County Counsel, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J268113, J268114 &-J268115) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Annemarie G. Pace, Judge. Petition denied. John Vega for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Michael A. Markel, Deputy County Counsel, for Real Party in Interest.
Petitioner W.B. (Mother) is the mother of the three children who are the subjects of this writ—I.R., L.R., and A.R., who were ages three, four and six years old, respectively, on the date of the challenged order. Mother's sole argument is that the trial court erred in declining to extend her reunification services for an additional six weeks until the 18-month review hearing set for May 3, 2018. We deny the petition because substantial evidence supports the court's finding that it was not reasonably probable the children could be returned to Mother at the 18-month review hearing.
FACTS AND PROCEDURE
Voluntary Family Maintenance—September-November 2016
On the night of September 3, 2016, Mother hit her husband, the father of her three children (Father), while he was sleeping, and then attacked him with a knife during the ensuing fight. Father ran several blocks to the maternal grandmother's home and told its residents that Mother is "crazy, she is trying to kill me." Mother left the two children who were at home alone to chase Father. She arrived at her mother's home and pounded on the windows, demanding to be let in. She told the residents she was going to kill Father. Mother got inside the home by crawling through the window. Police arrived and arrested Mother. They found fresh blood in Mother's home. A witness took photographs to document Father's injuries. Mother spent four days in custody. The maternal grandmother called the maternal aunt to retrieve the children from Mother's home.
The reporting party contacted San Bernardino County Children and Family Services (CFS) to report Mother's arrest. CFS initially placed Mother on a voluntary maintenance plan to address her anger issues and domestic violence history.
Detention—November 2016
On November 2, 2016, CFS detained the children and placed them with a maternal aunt and uncle. Despite being instructed to have no contact with Father while participating in anger management and domestic violence services, Mother was contacting Father. CFS did not believe the children were safe in Mother's care because the September incident was quite serious and it appeared the violence between the couple was escalating.
On November 4, 2016, CFS filed petitions under Welfare and Institutions Code section 300, alleging as to Mother: failure to protect under subdivision (b), in that the children had been exposed to domestic violence on at least two occasions that resulted in law enforcement being called; and abuse of sibling under subdivision (j), in that a sibling was removed from Mother for general neglect and engaging in domestic violence.
Section references are to the Welfare and Institutions Code except where otherwise indicated.
Father was also named in the petitions and received services. Because he is not a party to this writ proceeding, Father is referred to only when necessary.
At the detention hearing held on November 7, 2016, the court ordered the children detained and granted Mother supervised visits twice a week. The children were moved together to a foster placement after three days when the maternal aunt and uncle could not be approved for emergency placement because of a CFS "hit."
Jurisdiction and Disposition—November 2016 to January 2017
In the jurisdiction and disposition report filed November 22, 2016, CFS described the prognosis for family reunification as "poor." Mother had a history of engaging in domestic violence in front of her children, minimized the serious nature of the violence, and was both uncooperative with law enforcement and untruthful in general. Mother was participating in services, but whether she was benefitting from them was unclear. CFS recommended Mother have a psychological evaluation because she had suffered head trauma from a car accident in 2003.
Mother and Father had a history of frequent domestic violence, with Mother as the aggressor. Mother had previously been arrested in New Orleans for stabbing Father. In another incident in December 2015, Mother stabbed Father in the back during a fight. Mother described this incident as "pok[ing]" Father with a pair of nail clippers. CFS received a referral in April 2016 that was closed as unsubstantiated. The reporting party stated the parents got into a fight and the children were crying hysterically. It was reported the parents frequently get into fights and Mother prevents Father from leaving the home. Family members have had to break windows to get the children, who were found crying.
The jurisdiction and disposition hearing was continued to allow for mediation. The mediation and continued hearing were held on January 11, 2017. Mother waived her rights and admitted the allegations. The court took jurisdiction and ordered Mother to have supervised visits twice weekly, with authority to liberalize, and ordered a psychological evaluation for Mother. The court also ordered Mother to participate in the following services: domestic violence prevention, general counseling, and parenting class.
Both two-hour visits took place on Saturdays. The first was at a visitation center in Fontana and the second at the CFS office in Rancho Cucamonga.
Six-Month Review—January to August 2017
In the six-month status review report filed July 3, 2017, CFS recommended continuing reunification services to Mother. The children were placed back with the maternal aunt and uncle on January 17, 2017. Mother was visiting the children regularly, but CFS was concerned that she could not apply what she was learning in parenting class and could not parent all three children safely. During visits at public places such as parks, Mother would concentrate on one child and let the other two wonder away without noticing them. At such times, Mother would pretend the children were tired or ill to cut short the visit. Mother did not know how to handle I.R.'s temper tantrums, and would reportedly take toys away from the two older children to appease I.R., which would upset the older children. Mother would bring baby food to the visits and feed all three children, then ages two, three and five, with a spoon.
Although the court had ordered the parents to stay away from each other because of the domestic violence between them, they were seen arriving together to one of the children's birthday party, and Mother was seen dropping off Father for a supervised visit. The social worker suspected the parents either saw each other often or were living together. Both parents lied about this, and most of the extended family seemed to be covering for Mother and Father. The social worker believed that Mother was using Father's undocumented status to control him and instill fear into him. Mother had completed all of her services by early 2017, but the social worker opined that Mother was just going through the motions and was not benefitting from the services. Mother told the social worker that she believed the social worker and the caregiver were best friends, and were working together to keep her children from her. Mother's individual counselor reported she was not benefitting from counseling to gain insight into and address the triggers for abusing her husband.
The six-month review hearing on July 11, 2017, was continued because Mother retained new counsel and to allow the parties to participate in mediation regarding Mother's request to have the children returned to her on family maintenance.
In an additional information to the court filed July 27, 2017, the social worker reported the two older children had stated they were afraid of knives and one had nightmares about blood and knives. When confronted with this, Mother did not acknowledge that she caused this fear by stabbing Father in the children's presence on several occasions, but instead said the fear must come from the caregiver allowing the children to watch scary movies.
The mediation resulted in no agreement between the parties. At the review hearing held on August 3, 2017, the parties agreed to an appearance review in 60 days to discuss possible return of the children to Mother on family maintenance. The court ordered more individual therapy for Mother, and set the 12-month review date for December 29.
Twelve-Month Review and Challenged Orders—August 2017 to March 2018
CFS filed its addendum report for the appearance review on October 2, 2017. CFS recommended continuing reunification services. Mother visited regularly with the children but still was not implementing the lessons from her parenting classes. Mother received coaching before, during, and after visits, but ignored the offered advice regarding the youngest child's tantrums, time outs, encouraging the children to use their words and clean up after themselves, and redirecting the children's behavior. The social worker opined that Mother "does not fully understand her role as a mother to redirect the children's behavior" and seemed both unable and unwilling to apply new parenting skills.
At the 60-day appearance review, the court declined to return the children to Mother on family maintenance. The court set the 12-month review date for December 15, 2017.
In the status review report filed December 5, 2017, CFS recommended terminating reunification services and setting a section 366.26 hearing to consider a permanent plan of adoption or guardianship. Mother was retaking the services that she had completed earlier in the year, at the urging of her therapist. However, Mother continued to demonstrate during visits that she had not learned from her parenting skills class and that she was not interested in implementing the parenting techniques being offered to her. During one of the visits, Mother kept telling the monitor that "my children are being abused" in front of the children so that they could hear, despite being reminded not to coach the children or talk about the case with them. On October 28, Mother confronted the caregiver in the parking lot of the visiting center as the caregiver was attempting to drive away with the children. Mother was late in arriving for the visit but screamed and cursed at the caregiver and demanded that she be allowed to see her children. The caregiver filed a police report. Mother denied having yelled at the caregiver and shifted blame to the caregiver for the incident, despite the fact that several witnesses saw the incident.
On December 13, 2017, CFS filed an additional information to the court. On November 25, the visits had to be cancelled when Mother claimed she found head lice in L.R.'s hair. The children were checked at a doctor's office two days later, and no lice were found. The social worker was concerned that Mother continued to "expose the children to the mother's unrealistic reality and fabricating stories to fit her defiant motives." During a therapeutic exercise in which the children draw their idea of a "house of good things," five-year-old A.R. told the social worker that, in his house of good things, he and his siblings live with their aunt and uncle rather than with his mom. He also stated he does not want to talk with Mother on the telephone because he does not know what to say and it is boring.
On December 15, 2017, the court set the contested review hearing for February 7, 2018.
CFS filed an additional information to the court on February 7, 2018, to which it attached the final progress report from Mother's therapist. CFS concluded that, despite participating in multiple services, Mother had failed to learn how to control her violent impulses or gain insight into how her outbursts harm her children. The therapist indicated on the progress report that, "Client had a difficult time gaining insight into her unhealthy relationship and her reason for referral. Client was having a difficult time hearing how her actions [were] the cause for the removal of her children and her ability to have additional time with her children."
The contested 12-month status review hearing was held on February 7 and March 20, 2018. Regarding Mother, the court heard testimony from Mother, the visitation supervisor, the social worker, and Mother's therapist. Mother testified that she was not the perpetrator in the domestic violence between her and Father and that she had stopped having anger management problems about six months ago. Mother denied screaming and cursing at the caregiver in the parking lot the previous October. Mother denied ever stabbing Father in New Orleans or in San Bernardino. Mother believed her children were taken from her custody because she was negligent in leaving her children alone in her home while she chased Father.
The visitation supervisor testified that, while Mother was initially receptive to being instructed on parenting skills before, during and after visits, that changed in the last several months. For example, Mother initially did not know what a time out is and tried to understand when instructed on how to give a time out to the children. However, as the visits progressed, mother regressed and stopped giving the timeouts or would not give them properly. Mother would become frustrated when receiving guidance, and would just ignore the visitation supervisor and continue to interact with the children as she wished. In addition, Mother expressed anger in front of the children at least once every visit, sometimes multiple times. Mother would complain angrily about CFS not being fair to her about removing the children or allowing visits, or about how the visitation supervisor was too strict. When Mother expressed anger, the children would stare and appear confused. The visitation supervisor would try to work with Mother about being firm with the children, as when they would climb on the tables, throw toys, and run around in the bathroom, but Mother would ignore the supervisor and allow the children to do as they wished, until the supervisor was forced to intervene for the children's safety.
The social worker assigned to the case since March 2017 testified that Mother had a difficult time managing all three children when the visits took place "out in the community," and would sometimes cut short the visit. Most of the social worker's testimony echoed the information in the reports and the more detailed testimony from the visitation supervisor. The social worker opined that Mother had not benefited from the services that she had received, in that she continued to be a very angry person and continued to deny that the children were exposed to or harmed by domestic violence. The social worker believed Mother's biggest issue was that she continued to be unable or unwilling to suppress her anger in front of the children.
Mother's therapist testified that she began seeing Mother in July 2017. On cross-examination, the therapist testified that Mother denied having stabbed her husband. Other than having read the initial social worker's report, the therapist relied on Mother for facts about Mother's case and how visitation was going.
After hearing argument from counsel, the court concluded that there was not a substantial probability that the children would be returned to Mother by the 18-month time limit on May 3, and so it terminated Mother's reunification services and set a section 366.26 hearing for July 18. The court set the visits at once a week for two hours only.
Mother timely filed this writ petition.
DISCUSSION
Mother contends the court erred when it declined to extend her reunification services for an additional six weeks from the 12-month review hearing on March 20, 2018, to the 18-month review hearing set for May 3, 2018. We disagree.
Section 366.21, subdivision (g)(1), provides that if the maximum time for court-ordered services has not expired, and the child is not returned to the custody of the parent at the 12-month review hearing, the court shall "[c]ontinue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian." The court can do this "only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time." (§ 366.21, subd. (g)(1).)
"[C]ourt-ordered [reunification] services shall be provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care." (§ 361.5, subd. (a)(1)(A).) However, "court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian if it can be shown . . . that he or she will be returned and safely maintained in the home within the extended time period." (§ 361.5, subd. (a)(3)(A).)
In order to find a substantial probability of return to the physical custody of the parent, the juvenile court must make all three of the following findings: (1) the parent consistently and regularly visited the children; (2) the parent made significant progress in resolving the problems that led to the child's removal from the home; and (3) the parent demonstrated the capacity and ability to complete the objectives of the treatment plan and provide for the child's safety, protection, and physical and emotional well-being. (§ 366.21, subd. (g)(1)(A)-(C).)
The standard of review is substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
When it terminated Mother's reunification services, the court specifically stated, "I can't find that there's a substantial probability that the children will be returned by May 3rd, much less today." This finding is supported by substantial evidence under the three-part inquiry required by section 366.21, subdivision (g)(1). Under the first prong, there is no dispute that Mother consistently and regularly visited her children. However, she does not qualify for continued services under the second and third prongs.
The second prong requires a finding that Mother made significant progress in resolving the problems that led to the children's removal from her home. The court took jurisdiction over the children because Mother engaged in domestic violence against Father in their presence, thus subjecting them to the risk of abuse and neglect. However, Mother continued to, at a minimum, spend time with Father, despite the existence of a criminal protective order and the court's instruction that Mother not have any contact with Father because of the domestic violence. In addition, although Mother had participated extensively in services, to the point of taking the classes a second time, she continued to regularly subject the children to angry outbursts during visits and launched a profanity-laced verbal attack on the caregiver during the incident on October 28, 2017, while the children were in the vehicle with the caregiver. Mother's therapist reported at the end of 2017, less than three months before the court's ruling and more than one year into the dependency, that Mother was having difficulty gaining insight into why the children were removed and how her actions caused their removal. Mother showed she lacked insight into the harm she caused her children when she blamed their fear of knives on the caregiver for allegedly showing them scary movies rather than attributing this fear to the children having personally witnessed her attacking Father with a knife on more than one occasion. Finally, the social worker testified that Mother continued to deny that the children were exposed to domestic violence or were harmed by it, thus showing that Mother had not learned from her domestic violence prevention classes. This is substantial evidence that Mother had not made significant progress in resolving the issues that caused the children's removal.
Interestingly, the criminal protective order protects Mother, not Father.
As for the third prong, the record contains substantial evidence that Mother did not have the capacity and ability to complete the objectives of the treatment plan and to safely parent her children in the next six weeks. Mother's case plan included the objectives that she protect the children from emotional harm; express anger appropriately and not act negatively on impulses; not behave in a manner that is verbally, emotionally or physically threatening; show knowledge of age appropriate behavior for the children; be nurturing and supportive during visits; and consistently, appropriately and adequately parent the children. The record is very clear that Mother continued to express anger inappropriately and failed to protect the children from emotional harm, as discussed ante, in that she regularly spoke angrily in front of the children during visits and had a meltdown in the parking lot after being late for a visit. Even after Mother had participated in services twice over, the social worker still described her as an angry person and believed Mother's biggest issue was that she could not control her anger in front of her children. In addition, Mother was unable or unwilling to apply what she had learned in parenting class so she could adequately parent the children during supervised visits. Mother had difficulty handling all three children at once, and could not control their behavior, to the point that the visitation supervisor sometimes had to intervene for the children's safety.
The court did not err when it terminated Mother's reunification services after finding there was not a substantial probability the children would be returned by the end of the 18-month period mandated by section 361.5, subdivision (a).
DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. FIELDS
J.