Angela R. v. Superior Court

Filed 4/3/07 Angela R. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after reference to a Welfare and Institutions Code section 366.26 hearing. Julia Craig Kelety, Judge. Petition granted. Stay vacated.

Angela R., the mother of Aaron V. and Moises V., seeks extraordinary writ relief (Welf. & Inst. Code,  366.26, subd. (l); Cal. Rules of Court, rule 8.452);^[1]she challenges the juvenile court order that terminated reunification services after 18 months and set a section 366.26 hearing. Angela contends there was insufficient evidence that returning the children to her custody would create a substantial risk of detriment to the children.

We issued an order to show cause, the San Diego County Health and Human Services Agency (Agency) responded, and the parties waived oral argument.^[2] We review the petition on its merits and grant it.

FACTS

In addition to twin brothers Moises and Aaron, who were two years old when the dependency proceedings began, Angela is the mother of D.V. (D.) and Marco V.^[3] On April 29, 2005, Agency took the four children into protective custody after learning that Angela had hit Marco on his back with an extension. Marco, who was 12 years old, said Angela had hit him in the past and had spanked his siblings with her hands. Angela admitted she had hit Marco on the back several times with a television cord. Angela also admitted that in the past she had hit D., who was 13 years old at the start of these proceedings.

On May 3 Agency filed dependency petitions on behalf of Moises and Aaron, alleging they were at substantial risk of harm because their sibling (Marco) had suffered physical abuse. ( 300, subd. (j).)^[4]

Angela told the social worker that she grew up in a poor, small town in Mexico and was raised with a lot of physical discipline. Angela regretted hitting Marco. Angela admitted she felt differently toward Marco than the other children because Marco looked like his father, who had physically and sexually assaulted her. Angela wanted to participate in services, especially therapy, to help her deal with her resentment toward Marco. The social worker opined that Angela had accepted full responsibility for her actions and reunification was possible.

On May 24 Angela pled no contest to the petitions, which were sustained by the juvenile court. The court declared Moises and Aaron dependents of the court, removed them from Angela's custody and placed them in foster care. The court ordered Angela to comply with her case plan, which required her to participate in individual counseling, a psychological evaluation, an anger management course and a parenting course.

Over the next six months, Angela participated in all of her services. Psychologist Madeline Long, who evaluated Angela, reported that she understood how to parent her children. Further, Angela's intellectual limitations were the result of a lack of education; Angela did not have any thought disorders. Long opined that if Angela continued to participate in her case plan and was occasionally provided with child care assistance "the prognosis in reducing risk factors in order to safely parent is good." Angela was working full time and living with her brother and sister-in-law.

According to the social worker, Angela had demonstrated that she cared for Marco by asking him what he wanted and bringing those things to him during the next visit. D. told the social worker that Angela was trying to treat her and Marco equally; in the past, Angela had treated D. more favorably. The social worker recommended that Angela be allowed unsupervised visitation with D.

On November 7 the court found Angela had made substantive progress with the provisions of her case plan and substantial progress in alleviating the problems that led to the removal of the children from her home. The court authorized unsupervised visits between Angela and D. The court ordered six more months of services.

Agency reported that although Angela continued to regularly participate in her services, her progress in therapy had been extremely slow. On January 11, 2006, the court approved Agency's recommendation and ordered a psychiatric evaluation for Angela. The psychiatrist who conducted the evaluation diagnosed Angela as suffering from a bi-polar disorder. Angela moved to her own apartment and reported she was struggling with her financial situation. Angela was working two jobs.

On March 17 Agency placed D. with Angela.

On May 30, at the 12-month review hearing, the court found Angela had made some progress with the provisions of her case plan and moderate progress in alleviating the problems that led to the children's removal. The court ordered six more months of services.

Angela finished her anger management class and continued to participate in therapy with a new therapist. The therapist reported that Angela had "recognized that when the abuse occurred she was under a lot of stress and recognized that it was not the children's fault." Further, the therapist noted that Angela was taking her medication and appeared to be happy with having D. with her. Angela also was participating in conjunct therapy with the older children, and the social worker opined that this therapy improved the relationship between Angela and the children because it helped Angela to listen to her children about their feelings regarding the abuse and to share her own feelings with the children.

Angela did not complete her parenting course, but she began a child abuse course, as ordered by the criminal court. Marco told the social worker that he no longer was afraid of Angela because she seemed to have changed. Marco said he felt safe staying with Angela and had developed a safety plan to follow if there was any abuse. Marco related that Angela seemed to be nicer toward him, and talked and listened to him more. Agency approved a home visit for Marco with Angela.

For the upcoming 18-month review hearing, Agency recommended the court: (1) terminate jurisdiction for D.; (2) return Marco to Angela and provide six months of family maintenance services; and (3) terminate services for Angela and set a section 366.26 hearing in the cases of Aaron and Moises. The social worker reported that Angela showed no attention or affection toward Aaron and Moises during visits with them. D.  not Angela acted like the parent during those visits, according to the social worker.

On November 28, at the contested 18-month review hearing, social worker Martha Jasso, who was assigned to the case 16 months earlier, testified that Angela had completed only half of her case plan because she did not complete her parenting course and was terminated from the child abuse class.^[5] Jasso further testified that the service providers reported that Angela was frequently falling asleep during her child abuse and anger management classes.

Jasso opined that Aaron and Moises were at substantial risk of detriment if returned to Angela because they were only four years old and they had a speech problem, which made it difficult for them to communicate with others. According to Jasso, Aaron and Moises had spent one-half of their lives out of the home and, therefore, Angela was not able to build a relationship with them as she had with the older children. Further, Angela spent only two hours a week with them, which was not enough time to spend with such young children. Angela did not request expanded visits.

Angela testified that she learned from her services "you are not supposed to hit children. . . .  Your children are the most important thing and that you have to take care of them." Rather than hitting the child, Angela said a parent should talk to the child and take away something the child likes. Angela testified that she did not finish her parenting course because she thought the child abuse course in which she was enrolled covered the same material.

The court followed Agency's recommendations. The court terminated services for Angela in Aaron's and Moises's cases and set a section 366.26 hearing. The court found Angela had made some progress in the provisions of her case plan, but not substantial progress. The court found returning Aaron and Moises to Angela would create a substantial risk of detriment to the two children. The court explained this finding:

"[Angela is] trying to [do] the best she can to support the two children, the teenagers that she has home with her. But the end result is that she is depressed, passive and withdrawn and, therefore, simply not able to muster the energy or the enthusiasm or the involvement that she needs to handle Aaron and Moises. [] . . . [Angela] is overwhelmed with what she has now living as a single mother and trying to do everything that's required. And at the end of the day, she simply has nothing left to give to the twins, these active four year olds. [] There's no doubt in my mind that four year olds are completely different than teenagers. Their needs especially at this age are tremendously great. They need discipline and redirection probably about every eight seconds. I'm very, very familiar with active children at that age and what they need. They need for someone to actively monitor their education, particularly, these children who have special needs. And not to say that a parent can't work and do that at the same time. They can, but I think [Angela] is at the end of her rope and simply does not have ability to provide the ongoing structure and support both emotionally and physically that the children need."

DISCUSSION

Angela contends the juvenile court erred by finding that it would be detrimental to return Aaron and Moises to her care. We agree.

The purpose of the California dependency system is to protect children from harm and to preserve families when to do so is safe for the child. ( 300.2; In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) "Up until the time the section 366.26 hearing is set, the parents' interest in reunification is given precedence over a child's need for stability and permanency." (In re Julia U. (1998) 64 Cal.App.4th 532, 543.)

At the 18-month review hearing, the juvenile court must order the child to be returned to parental custody unless the court finds, by a preponderance of the evidence, that the return of the child would create "a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." ( 366.22, subd. (a).) Agency bears the burden to establish such detriment. (Ibid.; Blanca v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) Further, at each review hearing there is a statutory presumption the child will be returned to parental custody, and the juvenile court must return the child unless there is evidence doing so will create a risk of substantial detriment to the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) This standard is "a fairly high one." (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789.) "It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member." (Ibid.)

In determining detriment, the court must consider whether the parent participated regularly, made progress, and cooperated or availed herself of the services provided in the reunification plan. (Blanca v. Superior Court, supra, 45 Cal.App.4th at p. 1748.) "[T]he court must also consider progress the parent has made towards eliminating the conditions leading to the children's placement out of [the] home." (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)

We review the record to determine whether substantial evidence supports the court's finding that Aaron and Moises will suffer detriment if returned to Angela. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763-764.) "Substantial evidence" means such evidence that is reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. (In re N.S. (2002) 97 Cal.App.4th 167, 172.)

There is no substantial support in the appellate record that the return of Aaron and Moises to Angela would be detrimental to the boys' physical or emotional well-being. Contrary to the social worker's opinion that Angela had completed just one-half of her case plan, the record shows that Angela did far more than that. She participated in individual therapy, attended parenting classes, finished an anger management course and underwent a psychological evaluation. The only requirement of her case plan that Angela did not fulfill was completion of a parenting course. However, Angela dropped out of her parenting course because she believed it to be duplicative of the child abuse course she was taking in connection with her criminal case. We also note that the psychologist who evaluated Angela opined that Angela understood how to parent children. Agency complains that Angela often fell asleep in her classes and, therefore, claims she should not be given credit for completing the anger management course. But the provider of that course, which was approved by Agency, saw fit to give Angela a certificate of completion, which indicates that Angela at least met the minimum requirements of the course. Agency would be more persuasive if it faulted the service provider rather than Angela, who was working two jobs. Further, Angela, who had accepted responsibility for abusing Marco from the beginning of the dependency cases, went beyond the requirements of her case plan by undergoing a psychiatric evaluation and participating in conjunct therapy.

Moreover, Angela had resolved the issues that led to the dependency namely, the physical abuse of Marco, which was a complicated psychological matter for Angela and one that was peculiar to Marco because of his resemblance to his father, who had raped Angela. By the time of the 18-month review hearing, Angela had demonstrated she could safely provide and care for Marco as well as D. If Agency and the juvenile court were not satisfied with this fact, Agency would not have recommended, and the court would not have approved, placing Marco and D. with Angela. As to Aaron and Moises, there never was a protective issue in the case; their petitions were sustained on the basis of the physical abuse inflicted on their sibling Marco. ( 300, subd. (j).)

Agency recommended a section 366.26 hearing be set for Aaron and Moises largely because of an insufficient bond between Angela and the two boys, as indicated by Angela's laid-back behavior and demeanor during her visits with the boys. But the issues of bonding and whether parent and child bonded during visits were not relevant inquiries at an 18-month review hearing. (David B. v. Superior Court, supra, 123 Cal.App.4th at p. 788.) "The preference for maintaining family relationships does not depend upon [Angela's] ability to make [Aaron and Moises] feel bonded to [her]. . . . The issue at this point is whether placing [Aaron and Moises] in [Angela's] care represents some danger to [their] physical or emotional well-being. The existence of a parental bond takes on independent significance only after the reunification effort is terminated and the case is sent to the permanency planning stage." (Ibid.)^[6]

In finding detriment, the court essentially reasoned that Angela's plate was full because she was caring for two teenagers, and Angela, with her depression and passiveness, did not have the wherewithal to take care of two four-year-old boys with speech problems, in addition to Marco and D. This did not constitute substantial evidence of detriment; in our view, it represented speculation and the court's subjective view of Angela's capabilities. There was no expert evidence that Angela's depression,^[7]which was being treated with medication, would interfere with her ability to take on the added responsibility of caring for Aaron and Moises. The judge apparently interjected her own experiences of raising four-year-old children and concluded a more take-charge personality than that of Angela was necessary. The notion that Aaron and Moises would be too much for Angela was pure speculation. Furthermore, "the State of California is not in the business of evaluating parents and redistributing their offspring based upon perceived merit." (David B. v. Superior Court, supra, 123 Cal.App.4th at p. 789.) We

also note the availability of family maintenance services to assist Angela in taking care of Aaron and Moises.

As the Court of Appeal observed in Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 505, there must be substantial evidence that returning the child to the parent's custody would " ' create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.' [Citation.] In the absence of substantial evidence demonstrating such detriment, the court was obligated to return [the child] to [the parent's] custody." The appellate court further observed that to meet this standard cannot " 'mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.' It must mean what it says: that return presents a substantial risk of detriment to the child." (Ibid.)

Agency did not meet its burden of showing this. There was insufficient evidence to support the court's finding of detriment.

DISPOSITION

Let a writ issue directing the juvenile court to (1) vacate its findings and orders terminating reunification services for Angela and setting section 366.26 permanency planning hearings for Aaron and Moises, and (2) issue a new order directing Agency to

return Aaron and Moises to the custody of Angela under a plan of family maintenance services. The stay issued on March 12, 2007 is vacated.

This opinion is final immediately as to this court. (Rule 8.264(b)(3).)

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

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^[1] All statutory references are to the Welfare and Institutions Code. All rule references are to the California Rules of Court.

^[2] In response to this court's request, the Office of the Public Defender, which represented the children below, filed a letter brief.

^[3] Although dependency petitions were filed on behalf of the four children, only Moises and Aaron are subjects of this writ proceeding. A fifth child of Angela's lives in Mexico and was not involved in the dependency proceedings.

^[4] Marco's dependency petition alleged that Angela had subjected him to serious physical harm. ( 300, subd. (a).)

^[5] Angela re-enrolled in the child abuse class the following month and her participation improved.

^[6] The bonding issues would be relevant at the section 366.26 hearing as to whether the parent-child beneficial relationship exception to adoption ( 366.26, subd. (c)(1)(A)) applied.

^[7] The record indicates Angela was diagnosed as having a bi-polar disorder, not depression, as the court said.