Filed 12/7/05 Samantha A. v. Sup. Ct. CA4/1
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COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAMANTHA A., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; | D046970 (San Diego County Super. Ct. No. SJ10999D) |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest. |
Proceedings for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. William Lehnhardt, Judge. (Retired judge of the Imperial Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition denied.
Samantha A. seeks writ review of juvenile court orders at the delayed 12-month hearing terminating reunification services regarding her son, Diego A., and referring the matter to a Welfare and Institutions Code section 366.26 hearing.[1] She contends the juvenile court erred because there was insufficient evidence presented to show she had not made substantive progress in her case plan or that Diego would be at substantial risk in her care. She also asserts the court admitted inadmissible evidence about her past domestic violence with Diego's father, Marcos F.; the San Diego County Health and Human Services Agency (the Agency) did not provide reasonable services; and the court should have extended services beyond the 18-month date. Marcos joins in her arguments. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
On October 6, 2003, the Agency petitioned on behalf of infant Diego under section 300, subdivision (j), alleging he was at substantial risk because Samantha had subjected his half-sibling, S.A., to serious physical harm and she had a history of hitting his two other half-siblings, Jesus P. and Ashley B. The Agency had provided voluntary services to Samantha because of a referral of physical abuse to Jesus, but in October 2002, after Samantha held a knife to S.A. and threatened to kill her, the Agency took the children into protective custody. Samantha reported she used to beat Ashley as an infant when she cried because the crying reminded her of the children's maternal grandmother's whistling, which Samantha considered a form of punishment. By the time of Diego's birth, Samantha had completed drug treatment, parenting education and anger management classes, but she had not made sufficient progress even to allow unsupervised visits with her other three children.[2] The court detained Diego in out-of-home care and granted Samantha and Marcos liberal supervised visits. On December 4, 2003, the court found the allegations of Diego's petition true, declared him a dependent child, removed him from the parents' custody and ordered the parents to comply with their reunification plans.
A psychological evaluation completed in December 2002 stated Samantha held intense feelings of anger and anxiety, had a propensity to have angry outbursts and was extremely impulsive. The psychologist gave a poor prognosis because Samantha denied personal responsibility for her actions. Another evaluation in January 2004 showed a similar prognosis, stating Samantha had a low frustration tolerance and could erupt violently with little provocation. Another psychologist performed an evaluation in July 2004. She opined Samantha's mental state had improved because she was employed and she expressed feelings of guilt for abusing her children.
At the six-month hearing on June 1, 2004, the court continued services, finding the parents had made minimal progress. Subsequently, the date of the 12-month hearing was delayed several times. In the interim, the court held special hearings to address the parents' requests for unsupervised visits with Diego. It granted unsupervised visits in December 2004. At a hearing on July 5, 2005, the Agency reported there had been allegations of recent domestic violence and Marcos's use of alcohol during unsupervised visits. The court noted there were scratches on Marcos's neck.
The 12-month hearing was held on July 25, 26, August 1, 3, and 8, 2005. Evidence was offered to show Samantha's participation in elements of her reunification plan, including that she had successfully completed the Substance Abuse Recovery Management System (SARMS) program, with 48 negative drug tests, and that there were reports she was appropriate and loving during supervised visits with Diego. Samantha began therapy with a new therapist in August 2004. Her therapist reported that by January 2005 she had attended 17 therapy sessions. He testified she was making good progress and had accepted responsibility for the harm she had done to her children. He had observed her with Diego and said he did not see anything to cause concern. He said Samantha had remained sober, she was taking anti-depressants and her mood was better.
Samantha testified about her participation in individual therapy. She said she had started therapy about three years earlier. She reported her problems with anger had improved. She told about her unsupervised visits with Diego. She admitted having violent relationships in the past, but denied that she and Marcos had recently hit each other; she claimed that the scratch marks evident on Marcos's neck in July were caused by her sister when her sister and Marcos were wrestling. She testified she had a stable home and was prepared to have Diego live with her.
In contrast, considerable testimony was presented to indicate that placing Diego with Samantha would put him at substantial risk. The social worker testified Diego appeared to have developed a great fear of Samantha. The social worker observed that on July 19, 2005, when she was at the foster home before Samantha arrived to take Diego for a visit, he had been happy, singing the alphabet and reciting numbers. But when Samantha appeared at the door, he screamed, ran to his foster sister, jumped into her lap, clung to her, cried and screamed, "mierdo, mierdo," signifying he was afraid. Samantha said Diego had been acting this way for about five weeks, but she did not know why. Also, the foster mother said that recently Diego had begun crying when Samantha came by to take him for visits. Samantha acknowledged that Diego did not want to visit.
Also, the social worker had received reports of domestic violence between the parents. Both parents denied domestic violence. The social worker asked Marcos about the scratches on his neck that appeared to be fingernail marks, but he said he had gotten them when laying carpet. Later, he said Samantha's sister had scratched him when they were wrestling. Samantha's sister-in-law told the social worker that Samantha's brother told her Samantha and Marcos had had a physical fight. The social worker also said the sister-in-law said Samantha fought with S.A. during visits and told S.A. she was stupid. In addition, the social worker was concerned because Diego refused to eat when Samantha tried to feed him. Samantha's brother testified he was present after Samantha had strapped Diego into his stroller as punishment when he would not eat and called her a bad name. Additionally, the social worker observed Samantha minimized her prior physical abuse of the children, and two of the siblings had had to be placed in group homes because of their behavior problems. The social worker believed Samantha had difficulty telling the truth and that she continued to have anger problems despite her anger management classes and therapy.
The court found reasonable services had been provided and Samantha had made good progress with the provisions of her reunification plan, but returning Diego to her would pose a substantial risk of harm to him. It continued him as a dependent, ordered supervised visitation, terminated reunification services and set a section 366.26 hearing.
Samantha petitions for review of the court's orders and Marcos joins in her arguments. (§ 366.26, subd. (l); Cal. Rules of Court, rule 38.1.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
I
Samantha contends the court erred in terminating her reunification services and referring the matter to a section 366.26 hearing because there was insufficient evidence she had not made substantive progress or there was a substantial risk of harm to Diego if he were returned to her custody. She argues she did everything the Agency asked of her, including completing her SARMS program and remaining drug free; successfully completing parenting classes and an anger management course; participating in therapy and making great progress in overcoming her problems; being employed and attending school; maintaining a clean, safe and stable home for Diego; and following all of the in-home parenting support worker's recommendations.
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Substantial evidence supports the court's findings that Samantha had not made substantive progress with the provisions of her reunification plan and Diego would be at substantial risk in her care. Although Samantha participated in the requirements of her reunification plan, she did not overcome the problems that caused a risk of harm to Diego. She had had many months of services, including voluntary services, then one year of reunification services for Diego's half-siblings before Diego's birth, and then more services to help her reunify with Diego, but she continued to minimize the abuse she had inflicted on Diego's siblings and still had issues with anger management.
Samantha's history of abusing Diego's half-siblings is chilling. She kicked six-year-old Jesus in the abdomen and dragged him down the street. She punched and pushed S.A. and held a knife to her and threatened to kill her. She beat Ashley as an infant when she cried. After many months of services she had not been able to improve enough to reunify with them or even to have unsupervised visits. The social worker testified Samantha continued to minimize her abuse of these children. She testified Diego showed great fear of Samantha when she arrived to take him for a visit, crying and clinging to members of the foster family. The social worker believed this showed something important had happened during an unsupervised visit. There was also evidence she had improperly disciplined Diego for refusing to eat. The foster father said Diego ran away and cried when he saw Samantha, saying he was afraid. He said if Diego saw Samantha when he was outside playing, he would stop, run to the door and try to get inside.
Evidence was presented that there had been a domestic violence incident between Samantha and Marcos. At the July 5, 2005, hearing the court took notice that Marcos had scratch marks on his neck. The foster father testified that a few days before July 5, when Diego came back from a visit, he said,"Papa, pow, pow" and made a kicking motion. Also, the foster father noticed Samantha had marks under her eyes. The social worker testified the foster mother also said that after the visit Diego said, "Papa, pow, pow" and threw himself down pretending to be injured. During the same time period, both parents said they were having problems with their relationship and Samantha said Marcos was jealous of her.
Also, Samantha hid information from her therapist. She did not tell the therapist that Diego would not eat when he was at her home and that he was afraid to go on visits with her. She also hid information from the social worker. She denied having a violent incident with Marcos and told the social worker she did not know why Diego was afraid of her.
Although Samantha had participated in all aspects of her case plan, the court reasonably concluded that important questions remained about Diego's safety in her care. Substantial evidence supports the court's finding she had not made substantive progress and there was a substantial risk of harm to Diego in her custody.
II
Samantha asserts the court erred in admitting inadmissible hearsay evidence regarding a past domestic violence incident involving herself and Marcos. She points to the social worker's testimony that another social worker talked to Samantha's sister-in-law, who said Samantha's brother told her Marcos told him that he and Samantha had had a domestic violence incident in front of Diego. She acknowledges that some types of hearsay evidence are allowed in dependency hearings, but argues this evidence involves multiple hearsay, which is not permitted.
Even if we were to assume this evidence should not have been admitted, any error was not so prejudicial that it would require reversal. There was considerable additional evidence about the parents' domestic violence. At the July 5, 2005, hearing the court observed that Marcos had scratch marks on his neck. He told two different stories about how he had gotten them, and the parents admitted they had been having problems at that time and Samantha said Marcos was jealous of her. The foster mother told the social worker that on July 4, 2005, Samantha had a red bump on her forehead, Marcos had scratch marks on his neck and Diego had appeared more aggressive after he returned from an unsupervised visit. Even without the testimony about what the social worker said Marcos told Samantha's brother, there was evidence of recent domestic violence for the trial court's consideration. There was no prejudicial error in admitting the hearsay evidence.
III
Samantha also maintains the court did not provide reasonable services. She argues even though the social worker testified and the court stated that the risk of domestic violence was a key reason that reunification was not possible, domestic violence courses were not offered.
In determining the sufficiency of reunification services, the role of the appellate court is to decide "whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Samantha has not shown she was not provided reasonable services. Early in the case, there was no evidence of domestic violence between Samantha and Marcos, and they denied having any violent incidents. Then, by the six-month hearing, Marcos had moved out of their home and ended the relationship. The record does not show that he was living with Samantha again until May 2005. There was no evidence of domestic violence until July. More importantly, although Samantha had not attended a domestic violence program, she had completed an anger management course. The accounts of the domestic violence between Marcos and Samantha did not indicate which one of them was the aggressor, but suggests that she had not internalized what she had been taught during the services designed to help her deal with problems with anger management. Samantha has not shown her services were not reasonable.
IV
Samantha asserts the court erred in not extending her services beyond the 18-month date. She claims she complied with everything the Agency asked of her and was willing to continue with whatever services it would provide. She also argues because she should have been offered domestic violence treatment, the court should have ordered six more months of services.
Samantha has not shown error by the court not extending services beyond the 18-month date. Diego was taken into protective custody in October 2003 and declared a dependent child in December 2003. By the time of the 12-month hearing in July and August 2005, the case was past the 18-month date. In Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1507-1508, after the 12-month review hearing had been continued past its original date and 22 months after the children had been removed from the father's custody, the court denied the father's request for additional services, finding there was no substantial probability of return within the 18-month period. The appellate court affirmed, concluding, in the absence of extraordinary circumstances, extending services for six more months beyond the 18-month period would be outside of the dependency statutory scheme. (Id. at p. 1511.) Here, there were no extraordinary circumstances to justify extending services beyond the 18-month date. The court did not err in terminating services.
V
Marcos did not file a separate writ petition, but seeks to join in Samantha's petition and to incorporate all of her arguments into his writ petition. The Agency argues his petition must be dismissed because he did not raise any error in his own case and he lacks standing to raise Samantha's issues. We have found no merit in the issues Samantha raises and deny her petition on this basis. Thus, Marcos's arguments also fail.
DISPOSITION
The petition is denied. The stay issued December 6, 2005, is vacated.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
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[1] All statutory references are to the Welfare and Institutions Code.
[2] During visits Samantha sometimes had trouble controlling herself, became upset, hit herself and scratched her face. She verbally abused S.A. and told her she did not love her and would send her away.