Filed 4/6/22 Alicia V. v. Superior Court CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Mary Kreber Varipapa, Judge. Petition denied.

Law Office of Juvenile Defenders and Donna P. Chirco for Petitioner Alicia V.

Martin Schwarz, Public Defender, Seth Bank, Assistant Public Defender and Brian Okamoto, Deputy Public Defender for Petitioner Dwayne E.

Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel for Real Party in Interest Orange County Social Services Agency.

No appearance for Real Party in Interest A.E.

* * *

INTRODUCTION

The grandmother of infant A.E. took her to a hospital emergency room because she appeared to be having a seizure. X-rays revealed bleeding in her brain requiring emergency surgery, as well as multiple bone fractures in various stages of healing.

A.E.’s father, Dwayne E., eventually pled guilty to felony child abuse. He was sentenced to four years in prison. Her mother, Alicia V., either refused to believe that Dwayne had injured A.E. at all or attributed the injuries to accidents. A.E. was removed from Alicia’s care, and custody was vested in Orange County Social Services Agency (SSA).

Over the next two years, SSA provided Alicia, who is deaf, with multiple services. The case workers and service providers communicated with her through American Sign Language (ASL) interpreters.[1]

Alicia seemed to be adept at hewing to the party line, solemnly promising never to have any contact with Dwayne again and agreeing that he was responsible for nearly killing A.E. In reality, however, she was communicating with him in jail, giving him money, and planning to reunite with him as soon as he was out of jail and SSA was out of the picture.

The juvenile court terminated Alicia’s reunification services and set a hearing under Welfare and Institutions Code section 366.26.[2] Alicia has petitioned this court for a writ to overturn the termination order. We deny the petition.

FACTS

Alicia’s mother took A.E., then three months old, to Children’s Hospital in late November 2019 after A.E. had a seizure at her home. A.E. had “multiple fractures throughout her body.” She was also bleeding into her brain and required immediate emergency surgery to repair the injury.[3] Alicia denied knowing how A.E. had been injured, and Dwayne suggested that A.E. had fallen out of an infant swing. He later admitted he had seen her fall multiple times during the preceding month. Medical personnel considered these explanations inconsistent with A.E.’s injuries.[4]

Dwayne had been arrested for domestic violence in New York before he moved to California in 2018, and he had served eight months in jail. Alicia also reported several incidents of domestic violence involving Dwayne hitting her, at times while she was pregnant with A.E. But she continued to insist A.E.’s injuries were the result of accidents and said she had known nothing about them until after A.E.’s hospitalization. Dwayne, for his part, contended he had dropped A.E. while bathing her in late October and had immediately informed Alicia of the incident. Neither of them had done anything about it.

A.E. was detained on December 4, 2019. The court allowed Alicia to visit daily according to hospital rules. It permitted Dwayne to visit 15 minutes per day, but he was not allowed to touch A.E. On December 6 and 13, SSA sought court permission for additional emergency operations for A.E., apparently because she had developed an infection.

A.E. went into foster care on January 2, 2020. SSA’s initial recommendation for the jurisdiction/disposition hearing was that both parents be bypassed for services.

Dwayne was arrested for felony child abuse on January 30, 2020. He later pleaded guilty and was given a four-year sentence, making him eligible for release in August 2022. A protective order was issued, preventing him from contacting A.E. until June 3, 2024.

By early February, it had been learned that Alicia was again pregnant with Dwayne’s child. She told SSA she did not want him to have contact with the new baby, but also admitted she had been accepting his phone calls from jail.

The jurisdiction/disposition hearing took place on March 11, 2020. The court bypassed reunification services for Dwayne.[5] At the time of the hearing, Alicia’s services were counseling, parent education, and a domestic violence program. She also received in-home parenting instruction.

The six-month review report, dated August 2020, recorded Alicia telling her case worker that she wanted to live with Dwayne when he got out of jail and raise their children together. She told A.E.’s foster mother that she knew she would not get her children back if the judge knew she was still in a relationship with Dwayne. Alicia’s solution was to wait until the case closed to allow Dwayne access to the children. By this time, Alicia had completed a Personal Empowerment Program and a parenting education class. She had also had months of counseling.

During the ensuing months, Alicia continued to deny having contact with Dwayne, stating she had visited him only once while he was incarcerated. She denied speaking to him through videoconferencing.[6] Yet SSA received screenshots of videoconferences between Alicia and Dwayne on November 10, 2020, and January 26, 2021. She continued to tell her therapist that she would not allow Dwayne to have contact with the children, yet A.E.’s caregiver reported that Alicia told her mother she wanted to have a son with Dwayne (after two daughters). She put money into Dwayne’s prison account, although she did not have enough money for diapers and groceries.

At the 6- and 12-month review hearing, on April 21, 2021, Alicia stipulated the services provided to her were reasonable. Services were extended to 18 months. The court increased her visitation to four hours per week, and SSA was authorized to increase visitation by two hours.

A.E.’s injuries had long-lasting, perhaps permanent, effects. She required immediate intensive physical and occupational therapy and then speech therapy. Her attention span was short, a few seconds, as is frequently the case with brain injuries. As of August 2021, her social/emotional development was below average (13th percentile). She tripped and fell frequently while walking or running, through poor attention to her environment. She also displayed “sensory seeking behaviors,” such as crashing her body into objects or on the floor. As of September 23, 2021, just before the 18-month review hearing began, she had three therapy appointments per week with a fourth appointment twice a month. She had to be closely monitored for seizures.

The 18-month review began on October 25 and concluded on December 20, 2021. By that time A.E. had been detained for more than two years, since December 4, 2019.

Alicia testified during the first three days. She admitted she had been in contact with Dwayne, and she was quite candid about lying to SSA and to her therapist. In her opinion, the only person with the authority to tell her what to do was the judge, through a written court order.[7] From her testimony, it appears that she expected the court to act as her case worker in directing her services day by day.

Alicia repeatedly asserted her intention to resume her relationship with Dwayne as soon as he had finished his “classes.” Although one of her therapy goals was to avoid all contact with Dwayne, Alicia testified that she had changed her mind and was going to have contact with him anyway.

The juvenile court terminated Alicia’s services on December 20, 2021. In addition to addressing the stipulation regarding their reasonableness only six months previously, the court noted the services that had been provided to her: Illumination Foundation for housing, food stamps, parent coaching, parenting classes, domestic violence classes, and counseling. The court also found SSA had shown it provided Alicia with reasonable services and reasonable opportunities for visitation by clear and convincing evidence.

As to detriment, the court found that Alicia “continues to manipulate in order to have contact with [Dwayne], to minimize the [domestic violence and child abuse] issues that have been brought forth, and very much not addressing the issues of domestic violence. [¶] . . . [T]here has been contact and there has been a concerted effort to reunify with [Dwayne] for the duration of this case; and . . . information provided to the therapist was, in fact, information that [Alicia] is smart enough to know [what] needs to be said but has a very different picture of her future – and that future definitely . . . includes [Dwayne].” It found returning A.E. to Alicia’s custody would be detrimental to A.E.

DISCUSSION

Section 366.22, subdivision (a), provides that, at the 18-month review hearing, the court must return a minor to his or her parent “unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.” Section 366.21, subdivision (g)(4), permits the court to set a permanency hearing under section 366.26 “only if . . . there is clear and convincing evidence that reasonable services have been provided or offered to the parents . . . .”

Alicia identifies two issues in her writ petition. First, SSA failed to show a substantial risk of detriment if A.E. was returned to her care. Second, SSA failed to provide reasonable services. The juvenile court found that SSA had carried its burden to show both detriment and reasonable services.

We review the juvenile court’s decision for substantial evidence, keeping in mind the higher standard of review for the provision of reasonable services. (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1238-1239; § 366.21, subd. (g)(1)(C)(ii).)

“Under that standard we inquire whether the evidence, contradicted or uncontradicted, supports the court’s determination. We resolve all conflicts in support of the determination, indulge in all legitimate inferences to uphold the findings and may not substitute our deductions for those of the juvenile court.” (Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856, 864-865.)

I. Detriment

The juvenile court based its detriment finding largely on the evidence of Alicia’s refusal to cut ties with Dwayne – even after learning he had nearly killed her baby – her professed intention to resume their relationship after his release from jail and even to have another child with him, her minimizing of domestic violence involving not just A.E. but also herself, and her lies to her therapist and others about her continuing involvement with Dwayne. In our view, this is substantially more than the necessary evidence of a substantial risk of detriment to A.E.’s safety and physical well-being.

In her testimony, Alicia repeatedly referred to Dwayne as a “first-time dad” or “first time father” as if inexperience accounted for multiple broken bones in various stages of healing and a life-threatening head injury in a three-month-old baby. She made no reference to his domestic violence history in New York. She testified during one day’s hearing that “it’s hard to tell” whether the injuries were intentional or accidental. But by the time her testimony was concluding, she was calling A.E.’s injuries accidental and opining that Dwayne just needed a parenting class on “how to handle children delicately,” thereby demonstrating how far into denial she was and how ill-equipped to protect A.E. from abuse. Her mindset was well demonstrated by her Facebook post wishing Dwayne – a man who had nearly killed his child – a happy Father’s Day.

Alicia argues that she was caring for A.E.’s younger sibling under a CRISP agreement (Conditional Release to Intensive Supervision Program), so she should be able to care for A.E. as well. Two circumstances militate against this argument. First, because of A.E.’s injuries, particularly her brain injury, she was far more fragile than the sibling and required far more complicated and sustained medical and therapeutic care, including close monitoring for potential seizures. The two children were not similarly situated at all. Moreover, Alicia downplayed the seriousness of A.E.’s condition and assured herself that A.E. was developing normally.[8] Second, Alicia had repeatedly demonstrated that she was unable to care for two children simultaneously. After A.E.’s sibling was born, on September 5, 2020, Alicia routinely left one child unsupervised during visits while she focused on the other one, at times placing the unattended child in immediate danger. In light of A.E.’s need for heightened vigilance, this neglect could have serious consequences. A CRISP agreement does not involve 24-hour monitoring. We conclude that substantial evidence supports the juvenile court’s detriment finding.

II. Reasonable Services

The heading of Alicia’s petition on this issue confusingly states, “The court erred in denying Father additional reunification services because he did not receive reasonable reunification services.” (See Cal. Rules of Court, rule 8.204(a)(1)(B).) Dwayne was bypassed for reunification services at the jurisdiction/disposition hearing. He never had any reunification services.

The body of this section discusses the services offered to Alicia, and we will assume that the argument portion refers to her. She argues that the visitation allowed by SSA was inadequate, that SSA did not provide a proper interpreter,[9] and that she was not allowed to attend A.E.’s physical occupational therapy appointments. In addition, she feels SSA should have provided more therapy and another domestic violence program.

The court addressed Alicia’s argument that she should have been provided with a CDI interpreter. The court noted that for over a year every service provider, SSA, and the court itself had been communicating with Alicia through an ASL interpreter. Even more importantly, she had participated in several court hearings and testified for several days during the 18-month hearing with this kind of interpreter – receiving questions and responding to them – with no indication that she could not understand the information. This is substantial evidence that the interpretation services provided to Alicia were reasonable.

Alicia’s dispute regarding reasonable services concentrates mainly on visitation. She argues that SSA should have liberalized visits instead of restricting them. The court was primarily focused on the shocking reality that Alicia had maintained her ties with Dwayne, that she continued to express her devotion to him, and – what baffled the court most of all – that even after being presented with all the evidence that he had nearly killed A.E. and had probably damaged her permanently, Alicia continued to defend him and to plan resumption of their relationship, all the while lying to SSA and to her therapist about her intentions. The court was clear, however, that SSA had presented sufficient evidence of reasonable visitation.

Substantial evidence supported the court’s finding that visitation was reasonable. At the time of detention, in December 2019, Alicia had daily visits at the hospital. She could not visit in person between March and July 2020 because of Covid restrictions. She had daily video chats instead. In July 2020, Alicia began visiting twice a week at her mother’s home and had unlimited FaceTime calls. Then Alicia and her mother quarreled,[10] and visits were moved to Orange County Children and Family Services (Eckhoff). In October 2020, SSA instituted a confirmation policy because Alicia was canceling visits with only minutes notice. Alicia had to text the visitation monitor two hours ahead of each visit. If she did not, the visit was canceled. As of November 2020, Alicia had two visits per week and unlimited videoconferences.

In April 2021, Alicia’s visits were increased to four hours per week, and SSA was authorized to increase them by two hours “if deemed appropriate.” Visitation was then increased to six hours per week. Some visits took place in Alicia’s home, with her mother or a case worker as monitor.

In August 2021, A.E. began speech therapy, which conflicted with the visitation schedule. Alicia agreed to visit at Eckhoff once a week for four hours. The first such visit ended, at Alicia’s suggestion after about two hours. When this happened again, Alicia said that she wanted the next visit to be for two hours, then reversed herself and said four hours. In any event the next visit was canceled altogether because Alicia did not inform the necessary people that she would be late until everyone else was assembled at Eckhoff. The next week’s visit was also canceled because Alicia had taken her younger daughter to a medical appointment and, after assuring the case worker that she would be on time for the visit, was still at the doctor’s office when the visit was scheduled to begin.

After Alicia complained that the visitation schedule interfered with A.E.’s naps, the schedule was altered to morning visits. Even so, Alicia continued to miss visits and to cut them short. As the record shows, Alicia did not make use of the opportunities for visitation she had.

The visits never went beyond “monitored” because the visitation monitors consistently witnessed Alicia’s inability to supervise both children at once. One of the children was repeatedly left unattended while Alicia took care of the other one. It was never safe to leave both children alone with Alicia.

Finally, Alicia’s argument that she should have been provided with more therapy and another domestic violence class is meritless. Leaving aside Alicia’s refusal in August 2021 to participate in more therapy – because she did not need it – it was clear from the evidence before the court that Alicia’s mind was made up. Despite almost two years of individual counseling, a parenting class,[11] and a domestic violence program, she was still refusing to acknowledge what Dwayne had done and draw the necessary conclusions regarding her future conduct. She simply told SSA and the service providers what she thought they wanted to hear, all the while maintaining her own, contrary, beliefs and goals. Nothing suggests that an additional round of therapy and domestic violence classes would change anything. We cannot find any basis for overturning the trial court’s decision.

DISPOSITION

The petition for writ is denied.

BEDSWORTH, ACTING P. J.

WE CONCUR:

GOETHALS, J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] There was some disagreement about whether Alicia was developmentally disabled as well as deaf. Her therapist, who communicated with her by signing, maintained that Alicia was very intelligent and that the contrary impression arose from the fact that her first language was ASL. English was her second language, and she was not fluent. On the other hand, her case worker at the housing service Illumination Foundation, who had experience working with deaf citizens, stated her strong belief that Alicia was developmentally disabled. Alicia could not understand simple concepts explained over and over, such as paying rent and utilities on time. She also did not understand that she put her housing at risk by allowing her brother to stay overnight, a serious rule violation.

[2] All further statutory references are to the Welfare and Institutions Code.

[3] A.E. required a second surgery a few days later to remove more accumulated fluid on her brain.

[4] Alicia’s mother had taken A.E. to an emergency room and to an urgent care center about three weeks before taking her to Children’s Hospital after noticing a serious change in her behavior. In each of the previous visits, A.E. was sent home without treatment.

[5] Shortly after the jurisdiction/disposition hearing, Dwayne requested to be excused from attending hearings in A.E.’s dependency case.

[6] Alicia cut off communications with her mother for a period of time because she blamed her mother for Dwayne’s incarceration. She called her mother a “snitch” and was angry with her for asking for a sentence of 10 years for Dwayne. When asked how she knew this, Alicia said a “friend” told her. This was not possible, because Dwayne’s hearing took place in a closed courtroom. The likely source – perhaps the only source – for this information was Dwayne himself.

[7] “I will not follow the social worker if it’s not in writing.” Referring to marijuana use, “The social worker can’t tell me what to do.” “It’s none of her business.”

Strangely enough, when the court ordered her to be present at the start of hearings, she did not obey these orders.

[8] A.E. made some progress in therapy. By December 2020, she was walking, but she often fell or walked into walls. She appeared to lack spatial awareness. Alicia, however, considered that the fact A.E. walked at all to be evidence that she was not seriously impaired.

[9] Throughout the case, SSA, Alicia’s service providers, and the court had communicated with her through an ASL interpreter. In April 2021, her therapist recommended that a Certified Deaf Interpreter (CDI) should be used in addition to an ASL interpreter for legal and medical communications.

[10] Alicia blamed her mother for A.E.’s detention and Dwayne’s incarceration.

[11] Alicia testified, “It was amazing. I learned so much. . . . [¶] . . . [¶] [N]ot to do . . . abuse or domestic violence in front of [children]. And I learned everything. I know what to do.”