Marie F.-A. v. Super Ct.

Filed 10/10/07 Marie F.-A. v. Super Ct. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

In June 2007,^[1]the juvenile court sustained allegations of a supplemental dependency petition and found that removal of minors Amanda and Aaron A. from the home of petitioner Marie F.-A. was required. It denied reunification services and set an October 16 date for a permanency planning hearing. (See Welf. & Inst. Code,^[2] 366.26.) Marie petitions for review of the removal order. (See  387.) She challenges the juvenile courts finding that a substantial risk of detriment to Amanda and Aaron existed if the minors were returned to her care, contending that this finding was not supported by clear and convincing evidence. She also challenges the juvenile courts July order terminating reunification services, asserting that the juvenile court erred by failing to offer her continued reunification service once the supplemental petition was sustained. Finally, Marie seeks a stay of the scheduled permanency planning hearing. Real party in interest San Mateo County Human Services Agency opposes her petition. We deny the petition on the merits.

I. FACTS^[3]

A. Past History

In 1999, appellant Marie F.-A. married Miguel A.^[4] In April 2000 and August 2002, the couple had two childrenminors Amanda and Aaron A. The two children lived with their parents and Maries older daughter Kimberly D.,^[5]born in May 1990.

Marie and Miguel had regular verbal and physical altercations, sometimes in the presence of the minors. He was thought to have an alcohol dependency problem; she suspected that he was being unfaithful to her. In March 2005, Miguel was accused of molesting Kimberly.^[6] When Kimberly told Marie about the molestation, her mother told her not to worry about it and refused to allow the minor to move in with other family members.

In April 2005, Miguel was charged with a 1995 incident in which he allegedly molested a stepchild. The policeconcerned that Marie might not abide by an emergency protective orderremoved Kimberly, Amanda and Aaron from the home and placed them in foster care. When the social worker went to the home to remove the children, Marie was verbally abusive to Miguel in their presence.

That month, real party in interest San Mateo County Human Services Agency filed juvenile dependency petitions on behalf of Aaron and Amanda, alleging that Marie had failed to protect them from regular verbal and domestic violence in the home. (See  300, subd. (b).) The juvenile court approved their detention and issued a restraining order precluding Miguel from having any contact with Marie. In May 2005, the agency filed amended petitions for Amanda and Aaron, alleging sibling abuse. (See  300, subd. (j).)

In June 2005, Marie submitted the petitions on the basis of the social workers report and other documents. The juvenile court conducted an evidentiary hearing. Maries clinical psychologist testified that Marie suffered from personality and anxiety disorders that affected her judgment, kept her from being able to focus on the needs of others and distracted her from appropriate parenting. He opined that Marie would be unable to adequately protect her children if Miguel was living in the home. She needed time to resolve issues that she did not yet appreciate. Still, he did not believe that the children would be in substantial danger if they were returned to Maries care.

The childrens therapist came to a different conclusion. She found two-year-old Aaron to be aggressive and to have difficulty with limits. Five-year-old Amanda functioned as his caretaker. She seemed unused to having limits on her conduct, displayed signs of being an anxious child, and was uncomfortable with expressions of affection or warmth. The therapist concluded that both children needed individual therapy and family therapy with Marie. She opined that Amanda and Aaron were in substantial danger of emotional harm if they were then returned to Maries home.

Marie testified that she had completed half of her parenting classes, was in therapy and had filed for divorce.^[7] She told the court that she had no intention of allowing Miguel to return to the home. She disputed many claims of the childrens therapist and opined that her children would not be at risk in her home.

At the close of the hearing, the juvenile court sustained the amended petitions filed on behalf of Amanda and Aaron, finding both groundsfailure to protect and sibling abusewere true. It found that there was a substantial danger to the health or well-being of the children if they were returned to Maries home at that time.^[8]

In August 2006, a 12-month review hearing was held. The juvenile court found that return of the children to Maries custody would create a substantial risk of detriment to them. Thus, it ordered that the childrens out-of-home placement continue.^[9] Two months later, after the 18-month review hearing held in October 2006, the juvenile court returned the minors to Maries custody. The case plan required that Marie prevent any contact between Miguel and the minors.

B. Recent Events

In February, Kimberly was hospitalized and diagnosed with severe depression and anxiety disorder. This may have stemmed from Maries continued denial that Miguel molested her daughter. In early April, Kimberly advised the agency that Marie had taken Amanda and Aaron for an unsupervised visit with Miguel in violation of the juvenile courts order. There was also evidence that the younger children were becoming more traumatized while living in Maries home. The social worker opined that Maries act of allowing this unsupervised visit showed that she was still in denial about her responsibility to the minors and that she continued to put their safety at risk.

On April 9, the agency obtained a protective custody order after the juvenile court found that Amanda and Aaron were suffering severe emotional damage requiring their removal from Maries home. Amanda and Aaron were again detained, removed from Maries care, and placed with relatives. On April 11, supplemental petitions were filed, alleging the facts of the unsupervised visitation. In addition, each minor was alleged to display symptoms of emotional problemsAmanda was alleged to be anxious and oppositional; Aaron was allegedly disruptive. (See  387.) The juvenile court later approved the detention.

On May 4, Kimberly was again hospitalized for a day because school officials feared that she was suicidal. In June, the juvenile court conducted a contested jurisdiction and disposition hearing on the supplemental petition. The agency recommended that reunification services be terminated and that a permanency planning hearing date be set for Amanda and Aaron.

In June, the juvenile court heard evidence from two experts opining that Amanda and Aaron would be at risk if returned to Maries custody. They opined that Marie did not recognize that the children were at risk from their father. These witnesses also expressed their concern about Maries consistent inability to set needed limits with the minors, who were emotionally traumatized.

Kimberly also testified that she believed that her siblings would not be safe with Marie. She told the juvenile court that Miguel had molested her and that Marie had ignored it. Kimberly also believed that Miguel posed a danger to her sister and brother, but that her mother had difficulty accepting this fact. Two other witnesses testified that Marie had shown improvement in setting limits with Amanda and Aaron during interactive therapy sessions and supervised visitation occurring since their removal from Maries care in early April.

At the conclusion of the June 21 hearing, the juvenile court sustained the allegations of the supplemental petition. (See  387.) It found that the welfare of the minors required removal from Maries custody for two reasonsbecause of a substantial risk of harm to the minors if they were returned home and because their sibling had been sexually abused by someone known to the parent. Concluding that the maximum time for reunification services had run, the juvenile court terminated Maries reunification services and set an October 16^[10]date for a permanency planning hearing. (See  366.26.)

On August 1, Marie filed a petition for extraordinary writ relief. She challenges the juvenile courts finding that the children cannot be safely returned to her and seeks a writ compelling that court to vacate the order issued after the contested jurisdiction and disposition hearing removing the children from her home.^[11] She also asks us to stay the October 16 permanency planning hearing. An order to show cause issued on August 1. The department opposes the petition.

II. REMOVAL FINDINGS

In her petition, Marie challenges the sufficiency of evidence supporting the findings underlying the juvenile courts June removal order. She argues that the agencys concerns could have been fully met by interventions and treatment that did not require an out-of-home placement.

Once a supplemental petition is filed, a bifurcated hearing is conducted. At the first phase, the juvenile court follows the procedures relating to jurisdictional hearings on a section 300 petition. At the close of this phase of the hearing, the juvenile court finds by a preponderance of evidence whether the factual allegations of the supplemental petition are true and about whether the previous disposition has not been effective in protecting the childs interests. If both of these findings are made, then a disposition hearing is conducted under the procedures applicable at the original disposition hearing. (In re Jonique W. (1994) 26 Cal.App.4th 685, 691.)

If the agency proposes that the minors should be removed from their home at this stage, the juvenile court applies the clear and convincing evidence burden of proof at the dispositional stage to determine whether removal is appropriate. (In re Henry V. (2004) 119 Cal.App.4th 522, 528-529.) A dependent child may not be taken from the physical custody of a parent with whom the child resided at the time that a supplemental petition was initiated unless the juvenile court finds that one of six statutory grounds for removal exist. The standard for making these findings is by clear and convincing evidence. ( 361, subd. (c); In re Paul E. (1995) 39 Cal.App.4th 996, 1003.)

This burden of proof is substantially greater than the preponderance of evidence standard applied at the jurisdictional phase. (In re Henry V., supra, 119 Cal.App.4th at pp. 528-529.) Removal of a child from his or her parents custody has been characterized as a critical firebreak in Californias juvenile dependency system. (In re Paul E., supra, 39 Cal.App.4th at p. 1003.) After removal, a series of findings made by a preponderance of evidence may result in termination of parental rights. Thus, due process requires that the findings supporting the initial removal order be made based on clear and convincing evidence. (In re Henry V., supra, 119 Cal.App.4th at p. 530; see In re Paul E., supra, 39 Cal.App.4th at p. 1001 [initial removal and removal on supplemental petition]; see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253-254, cert. den. sub nom. Dobles v. San Diego Department of Social Services (1994) 510 U.S. 1178.)

In the matter before us, the juvenile court found that removal was proper on two groundsthat there would be a substantial risk of harm to the physical or emotional well-being of the minors if they were returned home and that their sibling had been sexually abused. ( 361, subd. (c)(1), (4).) In the absence of any evidence of which standard of proof was applied by the juvenile court, we presume that it made these findings on the basis of clear and convincing evidence, as the statute requires.^[12] (See  361, subd. (c); Evid. Code,  664; see also Civ. Code,  3529.) For each of these two statutory grounds on which the juvenile court relied for its removal order, the statute also requires that it find that there was no reasonable means of protecting the child without removal. ( 361, subd. (c)(1), (4); see In re Henry V., supra, 119 Cal.App.4th at p. 528.) In addition to her overall challenge to the sufficiency of evidence of the juvenile courts findings, Marie also argues that there is insufficient evidence to support the finding that there were no reasonable means to protect the minors other than removal. She contends that without some threat of physical harm, removal of the minors was improper.

A threat of physical danger, not merely a threat to the minors emotional well-being, is required to support a finding based on subdivision (c)(1) of section 361. (See In re Isayah C. (2004) 118 Cal.App.4th 684, 698.) However, in this matter, the juvenile court ordered removal based on a second distinct statutory ground. On this second ground, removal is proper if there are no reasonable means by which the minor can be protected from a substantial risk of sexual abuse other than removal. (See  361, subd. (c)(4).) Assuming arguendo that the evidence before us is insufficient to support a finding that Amanda and Aaron would be in physical danger if not removed from Maries home such that we could uphold the removal based on the ground set out in subdivision (c)(1) of section 361, we would still uphold their removal if there was clear and convincing evidence to support removal based on the second ground set out in subdivision (c)(4) of that provision.

Marie does not appear to challenge the sibling abuse ground for the juvenile courts removal. Assuming arguendo that her challenge does extend to this ground, we would find that there is sufficient evidence to support the sibling abuse ground for removal. In 2005, the juvenile court sustained a petition filed on Kimberlys behalf alleging that Miguel had sexually abused the minor. (In re Kimberly D., supra, A110528.) It removed Kimberly from Maries home based on clear and convincing evidence of the need for removal to protect the minor. We have already upheld this earlier removal order on appeal, rejecting Maries challenge to the sufficiency of evidence supporting that finding. We mayand doconsider these established facts when we test the sufficiency of evidence supporting the juvenile courts findings that Amanda and Aaron were deemed to be at substantial risk of being sexually abused and that there were no reasonable means by which they could be protected from a substantial risk of sexual abuse without removal from Maries home. (See  361, subd. (c)(4).)

On appeal, we apply the substantial evidence test to determine if there was clear and convincing evidence to support the juvenile courts findings justifying removal. (In re Henry V., supra, 119 Cal.App.4th at p. 529.) When faced with a challenge to the sufficiency of evidence of a juvenile court finding, our standard of review is well settled. We must view the entire record in the light most favorable to the finding, indulging in all legitimate and reasonable inferences to uphold it. If substantial evidence supports the finding, we cannot disturb the juvenile courts judgment. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472; In re Misako R. (1991) 2 Cal.App.4th 538, 545; see In re Henry V., supra, 119 Cal.App.4th at p. 530.) When two or more reasonable inferences can be drawn from the facts, we have no authority to substitute our deduction for that made by the juvenile court. (In re Misako R., supra, 2 Cal.App.4th at p. 545; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) We have no power to reweigh the evidenceonly to determine if there is sufficient evidence to support the juvenile courts finding. (In re Jacqueline G. (1985) 165 Cal.App.3d 582, 585; see In re Heather P. (1988) 203 Cal.App.3d 1214, 1226-1227, disapproved on another point in In re Richard S. (1991) 54 Cal.3d 857, 866 fn. 5.) We must uphold the juvenile courts findings unless no rational fact finder could reach the same conclusion. (In re Athena P. (2002) 103 Cal.App.4th 617, 629.)

Marie would characterize the April unsupervised visit between Miguel and the minors as a single eventa momentary lapse in judgment. We disagree. As the California Supreme Court has acknowledged, sexual . . . abuse of a child by an adult constitutes a fundamental betrayal of the appropriate relationship between the generations. . . . [Citation.] When a parent . . . permits such abuse to occur in the household, the parent also abandons and contravenes the parental role. Such misparenting is among the specific compelling circumstances which may justify state intervention, including an interruption of parental custody. (In re Kieshia E. (1993) 6 Cal.4th 68, 76-77; see In re Henry V., supra, 119 Cal.App.4th at p. 531.)

The evidence demonstrates Maries continued failure to acknowledge that Miguel molested one of her children and that Amanda and Aaron were in danger from him. This ongoing unwillingness to appreciate the risk to her children, combined with recent evidence that she brought Amanda and Aaron to see Miguel in an unsupervised visit in violation of a court order not to do so, provides substantial evidence supporting the juvenile courts finding by clear and convincing evidence that the minors were at substantial risk of sexual abuse if left in Maries care. ( 361, subd. (c)(4).) Thus, regardless of whether there is substantial evidence to uphold the juvenile courts findings pursuant to subdivision (c)(1), we find substantial evidence supports all necessary findings that that court made pursuant to subdivision (c)(4). As such, we find that the juvenile courts removal order was proper.

III. REUNIFICATION SERVICES

Marie contends that when Amanda and Aaron were removed from her custody, the juvenile court failed to consider whether reunification services should resume. By the time that the minors were removed from Maries custody in April, they had received more than 18 months of reunification and family maintenance services. The juvenile court found that the minors had been in an out-of-home placement for 18 months from the time they were taken from Maries custody. It found that the services that had been offered to Marie were reasonable when it concluded that very extensive, reasonable efforts had been made for more than 26 months in order to prevent the need for placement. Thus, the maximum statutory period for such services had run by the time that the juvenile court sustained the supplemental petition. (See  361.5, subd. (a), 366.21, subd. (g).)

Despite this, Marie argues that the agency failed to provide reasonable reunification services by not offering her an opportunity to participate in interactive therapy earlier in the reunification period. She reasons that if the agency had recommended a different type of therapy at an earlier stage of the reunification period, she would have made better progress in learning to set limits for her children. Even if we assumed that this claim had some merit and that with such therapy Marie would have been able to demonstrate an improved ability to set limits for her children, she still has not addressed the underlying concern that she seems to be unable to accepteven after all the services that she did receivethat her husband molested one of her children and that putting the minors in his presence posed a substantial risk of harm to them. It would be appropriate for the agency to see more concrete evidence that Marie appreciated this most basic reason for the dependencies of her children before investing even more time and effort in reconnecting this family. In light of her overriding inability to acknowledge the risks to which she exposed the minors, we are satisfied that any agency failure to provide interactive therapy earlier in the reunification period did not render the services that were offered unreasonable. As we find substantial evidence to support the juvenile courts finding that reasonable reunification services were offered to her, we reject Maries challenge to the removal order and the resulting orders terminating her reunification services and setting a date for a permanency planning hearing.

IV. REMITTITUR

The petition for writ of mandate is denied on the merits. ( 366.26, subd. (l); Cal. Rules of Court, rule 8.452(i); In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) The request for a stay of the October 16, 2007 hearing is denied. Our decision is final immediately. (Cal. Rules of Court, rule 8.264(b)(3).)

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Sepulveda, J.

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^[1]All subsequent calendar dates refer to the 2007 calendar year unless otherwise indicated.

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

^[3]Many of these facts are taken from earlier opinions about Marie and her children. (In re Kimberly D. (Dec. 15, 2005, A110528) [nonpub. opn.].); In re Amanda A. (Aug. 9, 2007, A114866) [nonpub. opn.].)

^[4]The father is not a petitioner in this matter. We include information about him to the extent that it is relevant to our determination of the issues that Marie raises in her petition.

^[5]Kimberlys birth father died in March 1999. Her juvenile court matternow pending dismissalis not before us in this appeal. We discuss the facts relating to Kimberlys case only as they bear on the juvenile courts ruling with regard to Amanda and Aaron that are now before us.

^[6]Later records show that Miguel was charged with child annoyance. (See Pen. Code,  647.6.)

^[7]In December 2005, the marriage was dissolved.

^[8]In December 2005, we affirmed the juvenile courts jurisdictional findings of sibling abuse in Amanda and Aarons petitions and rejected Maries challenge to its removal of all three children from her home. (In re Kimberly D., supra, A110528.)

^[9]Marie appealed from this order, but we concluded that her appeal was rendered moot by the October 2006 order returning Amanda and Aaron to her custody. (In re Amanda A., supra, A114866.) In her writ petition, she asks us to reverse the August 2006 order. It appears that this is a clerical error, as the issues she cites in her discussion ending in this request pertain instead to the June 2007 order. To the extent that she intends such a request, that issue is moot.

^[10]In its reply brief, the agency stated an inconsistent date for the permanency planning hearing. The actual date is October 16.

^[11]Apparently, Marie also seeks a writ vacating the order terminating her reunification services and setting a permanency planning hearing date.

^[12]Immediately before the juvenile court made these findings, Maries attorney reminded it that the findings were required to be made by clear and convincing evidence.