Gina D. v. Superior Court

Filed 7/24/07 Gina D. v. Superior Court CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

ORIGINAL PROCEEDING. Petitions for extraordinary writ (Cal. Rules of Court, rule 8.450) denied; petitions for writ of mandate dismissed as moot.

Los Angeles Dependency Lawyers, Inc., Law Firm of Timothy Martella, Eliot Lee Grossman and Thomas Hayes, for Petitioner Gina D.

Los Angeles Dependency Lawyers, Inc., Law Office of Alex Iglesias, Pamela Rae Tripp and Adam Reed, for Petitioner James E.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County

Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Real Party in Interest.

__________________________________________

Gina D. (mother) and James E. (father) have filed writ petitions pursuant to California Rules of Court, rule 8.452 challenging the juvenile court's order terminating their family reunification services with their son, Ashton E., and setting the underlying dependency proceeding for a hearing to consider the termination of their parental rights. (Welf. & Inst. Code,  366.26.)^[1] We find substantial evidence supports the juvenile court's order. We also reject mother's contention that the respondent court should be recused from hearing further proceedings in the case.

While this proceeding on the rule 8.452 petitions was pending, mother, father and the child, joined by the Department of Children and Family Services (DCFS), filed mandate petitions challenging the court's orders regarding the child's placement and visitation with his paternal aunt in Oklahoma. We issued an alternative writ of mandate directing the juvenile court to vacate these orders. The court complied with the alternative writ on June 29, 2007. Accordingly, we will dismiss the petitions as moot.

FACTS AND PROCEDURAL HISTORY

Ashton, who is now six years old, was made a dependent child of the juvenile court on the present petition filed January 6, 2006. However, the family had three prior cases with DCFS. In the first case, filed in June 2004, DCFS detained Ashton due to allegations that the parents engaged in domestic violence, father physically abused Ashton, and mother was unable to care for Ashton due to her mental and emotional problems. The first case was eventually dismissed after the parents signed a contract for informal supervision (Welf. & Inst. Code,  301).

A second petition was filed in August 2004, alleging the parents engaged in domestic violence. That petition was dismissed.

In May 2005, DCFS filed a third petition alleging neglect and failure to protect after mother failed to pick up Ashton at the school bus stop. The juvenile court terminated jurisdiction and awarded sole custody of Ashton to father with monitored visitation for mother.

Mother became pregnant during a short period when the parents reconciled. In December 2005, father called the police and reported that mother was using methamphetamine while pregnant.^[2] Father beat mother for doing so. The police found drug paraphernalia in the home. DCFS detained Ashton and filed the present petition on January 6, 2006. In the petition, DCFS alleged: the parents created a detrimental environment for Ashton by having illicit drugs and drug paraphernalia in the home within the child's access; both parents had a history of substance abuse; father left Ashton in mother's care knowing she was abusing illicit drugs; mother had mental and emotional problems that limited her ability to care for Ashton; and Ashton was exposed to violent confrontations between the parents. Ashton was placed in a foster home. On April 1, 2006, the court sustained the petition, as amended.

Since the inception of the case, Ashton has been evaluated and treated by a number of different medical doctors and mental health professionals, who have diagnosed him, at various times, as suffering from Attention Deficit/Hyperactivity Disorder (ADHD), Post-Traumatic Stress Disorder, "reactive detachment and mood disorders," Disruptive Behavior Disorder (NOS), and Asperger's Syndrome. Whatever their diagnoses, these individuals all agree that Ashton will require long-term therapy to address his severe behavioral and emotional problems. For example, shortly after Ashton was detained, he was placed in the home of a cousin, where he drowned five puppies and tried to strangle his young cousin. Beginning at the age of three, Ashton was discharged from or asked to leave several preschools, either because of behavioral problems or because the schools could not meet his needs. Available educational information indicates that Ashton has a history of behavioral problems at school including aggressive behavior towards peers, difficulty with attention span, and defiance toward authority. He has also made threatening statements concerning his baby sister.

For the past year, Ashton has been placed in the home of Mr. and Mrs. C., experienced foster parents who are trained to deal with difficult and/or troubled children. Ashton has made significant progress. According to DCFS, this is due in no small part to the "constant limit-setting and supervision foster parents provide for him." However, the foster father reported that Ashton still had to be closely supervised to prevent him from choking or hitting other children. Ashton also had nightmares in which monsters killed him or his mother. Ashton attends kindergarten at a local elementary school, then goes to a special after school therapy program provided by Almansor Clinical Services. Although Ashton had some behavioral problems at school, he also had good relationships with peers and a "best friend." He was also participating in conjoint counseling with mother.

Beginning on December 18, 2006, the juvenile court began a contested six-month review hearing ( 366.26, subd. (e)). The hearing continued over a number of court sessions and was completed as a 12-month hearing ( 366.26, subd. (f)) on March 26, 2007. The court received into evidence five DCFS reports with attachments and a letter from El Projecto del Barrio attesting to mother's participation in weekly therapy sessions. The court also took extensive testimony, summarized as follows:

Nancy Miller, the program manager at the Almansor Center who supervised Ashton's therapists, testified that initially Ashton had acted aggressively in therapy and had to be restrained. Often, he hit and bit the therapists, one of whom needed medical treatment after being bitten. Ashton also said that when he became angry, he wanted to kill his baby sister. One of the therapists stated Ashton did not express any type of remorse for his behavior, and in fact had a "look of satisfaction when he became aggressive with others." Ashton had been taking Adderall for two months and the Almansor staff had seen improvement in his behavior.

Mother testified that she had been participating in individual therapy, domestic violence counseling, drug counseling and random drug testing (with all negative drug test results). Mother was also participating in a 12-step program and attended approximately 10 meetings per week. She had been sober for 346 days. Mother had unmonitored visits with Ashton four hours per week, usually on Saturdays. She and Ashton had attended four joint counseling sessions, which focused primarily on "get[ting] Ashton to follow directions." Mother had also been working in her individual therapy sessions to prepare for the type of supervision Ashton needs. Mother did not leave Ashton and his baby sister, Ava, together unattended. Mother had been taking medication for anxiety. She no longer had a relationship with father. Mother wanted to regain custody of Ashton, but she understood that he needed special help and she needed assistance to place him in the proper environment. The counseling center Ashton attended had never given her a specific diagnosis, but merely told her Ashton was "expressing anger."

DCFS social worker Marabelle Vanranzow confirmed that mother had completed all of her programs and had visited with Ashton consistently. Although she had not observed any visits between mother and Ashton, she reported the foster mother's concern that mother had returned from some of the visits early, "seemingly overwhelmed" or "flustered" from having to care for both Ashton and her infant daughter Ava. Because mother was also supervising Ava, it was not as easy for her to go after Ashton when he ran off. Ms. Vanranzow had spoken with mother about increasing the length of Ashton's visits. However, mother declined the suggestion at that time. Mother had just started joint therapy with Ashton, but both mother and Ms. Vanranzow felt a more experienced therapist was needed. Thus, a licensed therapist was going to start working on the case the next week.^[3] Ms. Vanranzow was of the opinion that mother and Ashton needed intensive therapy, which would start when the licensed therapist came into the picture. DCFS recommended that mother received additional reunification services.

Mother's therapist, David Grill, testified that mother had improved her ability to manage and handle stress, and that he and mother had discussed Ashton's behavioral issues. Mother acknowledged responsibility for Ashton's behavior because of the domestic violence. When asked whether he would have any concerns for Ashton's safety should the court return Ashton to mother's care full time, Mr. Grill testified that he was "not clear" because he could not vouch for Ashton's behavior. When asked if mother could handle Ashton's care on a full-time basis, Mr. Grill replied, "As well as anybody."

Supervising DCFS social worker Jacqueline Do agreed that mother was in compliance with the case plan and agreed with the DCFS recommendation that mother be provided with additional reunification services. However, Ms. Do believed there was a substantial risk to Ashton if he were returned to mother because mother did not fully understand the severity of Ashton's problems, and was not capable of handling Ashton at that point. DCFS had not yet considered liberalizing mother's visitation to overnight visits because joint counseling with the licensed therapist had not begun.

The hearing testimony with respect to father was as follows: Ms. Vanranzow testified that during the month of December 2006, father had not visited Ashton at all, and prior to that time his visits had been inconsistent. Father's therapist, Dr. Ned Rodriguez, testified by telephone on March 6, 2007. Mr. Rodriguez had treated father in 18 sessions since May 2006. He knew that Ashton had severe psychiatric and behavioral difficulties, to which the parents' domestic violence had contributed; father's insight into these issues had improved during his time in therapy; and father had also addressed anger management issues (i.e., appropriate discipline) and general parenting skills. With respect to visitation issues, Dr. Rodriguez testified that father's visits with Ashton were difficult because they reminded father of his separation from Ashton and it caused father "a great deal of sadness, distress and turmoil" when Ashton said he wanted to come home.

Father also testified on March 22, 2007. Father stated he had attended approximately 20 sessions with Dr. Rodriguez, but had recently attended less frequently due to his work schedule or because of financial considerations. Father explained that he did not visit Ashton more frequently because he (father) became depressed and cried after the visits. He did not want Ashton to see him being "weak." On January 6, 2007 (a Saturday), father had begun taking acting classes that lasted all day, and it was hard for him to keep up the visits with Ashton. He asked the social worker if the visits could be changed to accommodate his class. It was father's opinion that Ashton acted out because he lacked any discipline and had no one to look up to. Father stated that if he had Ashton, "he wouldn't do that." Father said he would discipline Ashton by withholding privileges. Father opined that Ashton had killed the puppies because "he had a lot of ice cream and went crazy." Father said he would restrict Ashton's sugar intake.

Addressing Ashton's current status, DCFS social worker Estelle Berry testified that Ashton's behavior at school had deteriorated; he was biting, kicking, hiding under the table, and not able to function in the classroom. His behavior at the Almansor Center, which had been improving, had also deteriorated. The change in behavior coincided with mother's visit.

At the conclusion of the hearing on March 26, 2007, the juvenile court found, by a preponderance of the evidence, that continued jurisdiction was necessary because conditions existed that justified jurisdiction under section 300 ( 364.1). The court further found that returning Ashton to the physical custody of his parents would create a substantial risk of detriment to his safety, protection, and physical and emotional well-being; that the case plan for Ashton was necessary and appropriate; that DCFS had complied with the case plan; and that reasonable services had been provided to meet Ashton's needs. By clear and convincing evidence, the court found that the extent of both parents' progress toward eliminating or mitigating the causes necessitating placement had been partial; "failure to participate in and make substantive progress toward court-ordered treatment constitutes prima facie evidence that return would be detrimental."

The court found that father had not consistently and regularly visited Ashton, had not made significant progress in resolving the issues that led to Ashton's removal, and had "not demonstrated the capacity and ability to create the objectives of treatment, or provide for Ashton's safety and protection, physical and emotional health, and special needs."

The court found that mother had actually received a total of 22 months of reunifications services, taking into account the services she received in connection with the prior petitions that were dismissed. The court opined that even after 22 months of services, mother had no understanding of how her behavior and actions had brought Ashton before the court. The court terminated reunification services for both parents and set the matter for a section 366.26 hearing on August 27, 2007. The court selected permanent placement with Mr. and Mrs. C. as the permanent plan for Ashton.

THE PARTIES' CONTENTIONS

Both parents contend Ashton should have been returned to them at the time of the hearing because DCFS did not meet its burden of proving by a preponderance of the evidence that there was a substantial risk of detriment to Ashton's safety, protection, physical or emotional well-being. Both parents further contend that, even assuming DCFS did meet its burden, the court should have ordered additional reunification services. Mother further contends that the matter should be set before a different judicial officer for all further proceedings. Father further contends DCFS did not provide him with adequate reunification services. DCFS opposes father's claims but takes no position on mother's claims.

DISCUSSION

Because the parents challenge the sufficiency of the evidence, we apply the substantial evidence standard of review. Upon review of a dependency order for substantial evidence, we view the evidence in a light most favorable to the dependency court's findings. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Substantial evidence is evidence that is "reasonable, credible and of solid value" that would allow a reasonable trier of fact to reach the same conclusion as the juvenile court. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) Where there is any substantial evidence to support the court's order, contradicted or not, we must affirm the juvenile court's decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)

The order from which the petitions are taken was made following the 12-month permanency hearing pursuant to section 366.21, subdivision (f). That section provides that at the 12-month hearing, the juvenile court must order the return of the child to the physical custody of his or her parent or legal guardian 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 child's safety, protection, or physical or emotional well-being. The court must also determine a permanent plan for the child, including a determination of whether the child will be returned to the parents and, if so, when. The parent's failure to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.

Section 366.21, subdivision (g), provides that if the child is not returned to the parent's legal custody at the 12-month hearing, the court has two options: First, the court can continue the case for up to six months for a permanency review hearing (provided that hearing occurs within 18 months of the date the child was originally detained). ( 361.5, subd. (a)(3).) The court may continue the case 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, or that reasonable services have not been provided to the parent or legal guardian. In order to find 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, the court must find that the parent or legal guardian: has consistently and regularly contacted and visited with the child; has made significant progress in resolving problems that led to the child's removal from the home; and has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs The court's second option is to order that a hearing be held within 120 days, pursuant to section 366.26. If the court orders that a section 366.26 hearing be held, it must terminate the parent's reunification services. ( 366.21, subd. (h).)

In the present case, substantial evidence supports the juvenile court's conclusion that Ashton could not safely be returned to either parent at the time of the 12-month hearing, and it was not likely he could safely be returned to them by the time the 18-month statutory time period expired.

Both the juvenile court and those who had participated in Ashton's treatment concluded he was one of the most seriously emotionally disturbed children they had ever encountered, and would need intensive, long-term therapy. Although some of Ashton's problems were probably hereditary, there was a consensus that the domestic violence between the parents played a major role in either causing or aggravating these problems. Certainly it contributed significantly to Ashton's aggressive tendencies.

The record with respect to father reveals that father attended 20 therapy sessions over a period of approximately 12 months, but had not come to grips with the fact that his behavior contributed to Ashton's problems. Father blamed others, particularly mother, for Ashton's behavior. Although father professed his love for Ashton, father's approach to the case plan was completely self-centered. For example, in an interim review report prepared in May 2006, DCFS reported that father appeared to be emotionally immature: Father stated "that he was having headaches and couldn't stand being alone and that he needed Ashton with him. [H]e stated that when he visits Ashton at McDonald's on Saturdays, he doesn't want to say goodbye, so he just goes to the bathroom and then leaves." When the social worker asked father if this might not be the best way to handle his parting with Ashton, father replied that the paternal grandmother, who also attended the visits, would remain for another 10 minutes, and father felt that was sufficient. (Father later referred to this social worker as "dysfunctional.") Father did not visit Ashton consistently (due to the emotional strain on father), and did not visit Ashton at all during the month of December 2006.

Father failed to comply with those aspects of the case plan with which he disagreed. For example, although the court ordered father to undergo random drug testing because he had tested positive for drugs in February 2006, father stopped testing because he had three clean tests in a row and, even though he had once tested positive it did not mean he was a drug user "or used drugs around my son." (Father attributed the positive test to his having had sex with mother, or to mother putting drugs in his food.) Father complained to the social worker about the inconveniences the court's orders placed on his lifestyle. Prior to the 12-month hearing, father wrote a letter to the court complaining about the cost of therapy and stated that he had lost job opportunities because he had to attend domestic violence classes

Despite attending therapy sessions and domestic violence classes, father still had not learned to control his temper. In October 2006, after a telephone conversation with Ms. Vanranzow, father wrote her a letter, apologized for being rude on the telephone, and said he "had a temper" and did not feel he could communicate with her in person. The letter itself is an emotional outburst, replete with exclamation points and sentences in which every word is in capital letters.

Overall, the record supports the court's conclusion that father had not substantially complied with the case plan and, had not even begun to grasp his role in the events that gave rise to Ashton's detention, and would not do so even if granted additional reunification services.

Father contends the reunification services (about which he had complained so vociferously) were inadequate, and he should be given six additional months of services. Father did not raise the issue below, and has therefore forfeited the right to raise this claim. (In re Dakota S. (2000) 85 Cal.App.4th 494, 502.)

Although mother complied with all aspects of the case plan, substantial evidence supports the juvenile court's conclusion that mother had not made significant progress in resolving the problems that led to Ashton's detention, and there was not a substantial probability that Ashton could be returned to mother even if reunification services were extended.^[4] Although mother had made considerable progress in addressing her own emotional and substance abuse problems, at the conclusion of the 12-month reunification period she was still nowhere near a point at which she could care for Ashton full time and see to his needs. Mother was barely able to complete her once-weekly, four hour visits with Ashton, and conceded she was not ready for DCFS to liberalize visitation to overnight or extended visits. Although mother faults DCFS for failing to arrange conjoint therapy sooner (and therefore claims the reunification services provided were inadequate), the failure to commence these sessions sooner was because Ashton was not yet ready for them.

Finally, we reject mother's contention that further proceedings should be held before a different bench officer. Code of Civil Procedure section 170.1 provides that a judge should be disqualified if, for any reason, "[t]he judge believes his or her recusal would further the interests of justice" (Code Civ. Proc., 170.1, subd. (6)(A)(i)) or "[t]he judge believes there is a substantial doubt as to his or her capacity to be impartial." (Code Civ. Proc.,  170.1, subd. (6)(A)(ii).)

Mother contends the respondent court exhibited bias against petitioner because the court stated it was the parents, not Ashton, who had caused Ashton's problems, and because mother, after receiving 22 months of reunification services, still had "absolutely no clue why we're here." (The latter comment was a response to mother's testimony at the hearing below where, in response to the court's question, mother stated she was in court "this time" because she had not picked up Ashton from the school bus.) Mother also points to the respondent court's orders placing Ashton with out-of-state relatives, which orders the parties challenged by way of their mandate petitions.

Mother suggests all of the court's rulings have been made to punish the parents, when its primary focus should instead be "to save troubled families." (In re Albert T. (2006) 144 Cal.App.4th 207, 218.) In fact, it is abundantly clear from the record that the court's focus has always been Ashton. While it is true that the court has occasionally exhibited frustration with the parents and DCFS, we cannot say that this frustration amounts to judicial bias that would warrant recusal.

DISPOSITION

The parents' petitions for extraordinary writ (Cal. Rules of Court, rule 8.452) are denied. The mandate petitions challenging the juvenile court's placement and visitation orders are dismissed as moot. Pursuant to California Rules of Court, rule 8.264(B)(3), this opinion is made final forthwith as to this court.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ARMSTRONG, J.

We concur:

TURNER, P.J.

KRIEGLER, J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Mother has since given birth to a girl, Ava. Both mother and Ava tested clean for drugs. Because mother remained sober and had been making progress with her case plan, DCFS did not detain Ava. DCFS filed a non-detained petition to insure the child's protection. In October 2006, the parents signed a voluntary contract regarding Ava.

^[3] Ashton was initially assigned to a therapist who was under the supervision of a licensed therapist.

^[4] Respondent court found mother had actually received 22 months of services; mother claims services should be extended because she only received 17 months. We need not address this contention because we find mother was not entitled to any services past 12 months.