In re N.B.

Filed 7/16/07 In re N.B. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Patricia B., mother of the minor, appeals from orders of the juvenile court placing the minor in long-term foster care. (Welf. & Inst. Code, 366.21, subd. (f), 395 [further undesignated statutory references are to this code].) Appellant contends substantial evidence does not support the juvenile courts findings that there was a substantial risk of detriment in returning the minor to her care and that she had not made substantial progress in services. We affirm.

FACTS

The minor was removed from parental custody in January 2005, due to allegations that the father sexually molested her for many years; appellant failed to protect the minor; appellant did not believe the minors disclosure of the molest; there was history of domestic violence; and the father threatened to kill the minor. When interviewed by a detective with the Sacramento County Sheriffs Department, the minor, who suffers from mild cerebral palsy, provided a detailed description of ongoing sexual, physical and emotional abuse perpetrated by the father. The minor told appellant of the abuse and appellant wanted to know if she could prove it. The minor was certain appellant knew of the abuse and provided the social worker specific facts from which such knowledge could be inferred.

Two months after removal, the minor reported appellant was applying pressure on her to lie in court in the fathers criminal case. Believing appellants promises about a life with just the two of them, the minor informed the social worker she intended to recant and lie about the molestation in court.

The court adopted a reunification plan for both parents.

The six-month review report stated appellant continued to deny the molestation had occurred and to visit the father in jail, thereby placing her marriage before the minor. The father was in custody and refusing services. In therapy, the minor would discuss the domestic violence but not the molestation. Visits remained supervised due to appellants failure to follow visitation rules. The court ordered further services.

The 12-month review report stated the father had been convicted of multiple counts of sexual abuse of the minor. Appellant blamed the minor and continued to visit the father weekly. Appellant stated she would not believe the minor was molested unless the minor told her directly that the acts had occurred; she believed the minors recanted testimony instead. The minor refused to discuss molest issues with the therapist because the therapist would have to tell the social worker. Appellant was making little progress in her individual therapy but she and the minor were making some progress in joint therapy, although appellant spent time in therapy challenging the social workers reports and defending the father. Appellant was excluded from the domestic violence program at WEAVE for her inability to focus on the issues. According to the report, appellant was not ready to address the domestic violence issues until she had addressed the molestation issues but would not, or could not, do so. Appellant had completed or engaged in significant portions of her case plan but had made little progress in believing the minor and maintained contact with the father, showing that her marriage continued to take precedence over the well-being of her child.

A subsequent addendum said appellant had been re-referred to therapy but was denied further services because she had completed two courses of treatment without substantial progress in the relevant areas. Appellants therapist was unsure that more therapy would help. Joint therapy continued to address problems between appellant and the minor but the minor persisted in refusing to discuss the sexual abuse and now maintained it had not occurred.

At the hearing, the social worker testified that appellant believed the minors recanted version of the facts, not the original disclosures of the sexual abuse. The social worker believed appellants ongoing support and frequent visitation with the father was potentially emotionally abusive to the minor and demonstrated appellants ongoing lack of ability to protect the minor or to meet her emotional needs. She disagreed with the therapist who recommended that the minor reunify with appellant and noted the therapist relied primarily on the parent-child bond in making her recommendation. The social worker believed appellant needed to acknowledge the molest occurred, terminate her association with the father and communicate to the minor where her loyalties lie.

Appellant testified the social workers had repeatedly told her that the minors return depended upon ending her association with the father and accepting that he had sexually abused the minor. Appellant had never believed the minor was molested by the father. She said she did believe the minor and pointed out that in joint counseling the minor denied the sexual abuse occurred. She felt the minor made the original accusations out of anger. Accordingly, in appellants view, maintaining a relationship with the father was not putting her marriage before the minor. Appellant now recognized that the father had been emotionally and financially abusive and felt her counseling had empowered her.

The minors therapist, who also did the joint therapy, testified that, while the minor and appellant had made progress on their separate and joint issues, there was still work they could do. The therapist believed reunification should occur only if there was no contact with the father and services continued. There was concern about the minor living with a parent who was allied with the offender but either way the decision went it would be hard for the minor. The therapist recognized that the social worker disagreed with her recommendation but believed the minor was not in danger with appellant as long as the father was out of the house. The therapist testified the minor remains closed about the molest and has made statements such as if I tell you, youll have to tell CPS but that the minor was able to talk about the physical and emotional abuse which occurred. The therapist had also observed that appellant still minimized the violence which occurred between her and the father.

The minor testified individual and joint counseling was beneficial and improved communication with appellant. The minor wanted to return to appellant.

The court expressed the belief that the minor had been victimized by both parents and recanted because it was the only way to be able to communicate with appellant again. The court concluded it was not safe to return the minor to appellants custody because neither the minor nor appellant had been able to deal with the fact of the molestation. The court terminated services and placed the minor in long-term foster care with a goal of guardianship as the permanent plan.

DISCUSSION

Appellant raises two related claims, challenging the sufficiency of the evidence to support the juvenile courts findings that appellant had not made significant progress in services and that return of the minor to appellants custody would create a substantial risk of detriment to the minors well-being.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) We assess appellants claims in light of this standard.

Appellant first argues that the evidence showed she had complied with the plan elements. Appellant then asserts that because she complied with the reunification plan and the minors therapist recommended that the minor return home, substantial evidence did not support the juvenile courts finding that returning the minor to her care would create a substantial risk of detriment to the minors well-being.

The juvenile courts decision whether to return a child home at a permanency hearing is guided by section 366.21, subdivision (f) which provides: The court shall order the return of the child to the physical custody of 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 . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. In making this finding, the court may consider that [t]he failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. ( 366.21, subd. (f).)^[1]

Appellant did attend services. However, due to her inability to deal with the fathers criminal conduct, she was unable to benefit from WEAVE and address domestic violence issues or to accept the fathers guilt of serious and long-term sexual abuse of the minor in order to rebuild an appropriate relationship with the minor. Appellant did address some domestic violence issues in therapy and was able to see that the father had also perpetrated financial and emotional abuse on the family. She had also attended a non-offenders group in which she was learning to identify signs of potential abusers. However, the key elements of avoidance of domestic violence and validation of the minors experience by believing the disclosure the minor made at the outset of the dependency and the criminal proceedings were still not in place. Appellants lack of progress in therapy is apparent from her own statements. It is disingenuous for appellant to maintain that she believes the minor when the only statement she believes is the recantation of the minors statement of long-term serious sexual abuse which was the result of pressure applied to the minor to lie in the criminal proceedings. Substantial evidence supports the juvenile courts finding appellant failed to make substantive progress in services.

This finding is prima facie evidence that return would be detrimental. The minors physical and emotional well-being remain at risk if the minor is returned to appellants care because appellant has made it clear by her actions that she will believe the minor when it is convenient to do so and when such belief will not threaten her own needs and security. Children must be able to trust that their parents will believe them when they report problems whether the problems are minor or serious. If such things cannot be reported, the parent cannot exercise the caretaking function which is central to the nurturing parent-child relationship. Appellant and the minor have yet to reach this level of trust.

In contrast to the social workers report and testimony, the minors therapist testified it would be safe to return the minor. The juvenile court resolved this conflict adversely to appellant. Ample evidence supported the juvenile courts finding that returning the minor to appellants custody would create a substantial risk of detriment to the minors well-being.

DISPOSITION

The orders of the juvenile court are affirmed.

NICHOLSON , Acting P.J.

We concur:

RAYE , J.

ROBIE , J.

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^[1] The hearing was also a permanency review hearing governed by section 366.22. The language relating to the courts decision to return the minor found in that code section is identical to that set forth above. ( 366.22, subd. (a).)