Filed 9/11/17 R.D. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Frank Dougherty, Judge. (Retired Judge of the Merced Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

R.D., in pro. per., for Petitioner.

No appearance for Respondent.

Colleen Carlson, County Counsel, and Risé A. Donlon, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

R.D. (mother) seeks extraordinary writ review of the juvenile court’s orders issued at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)(1))[1] terminating her reunification services and setting a section 366.26 hearing as to her now 19-month-old daughter R.M. (Cal. Rules of Court, rule 8.452.)[2] Mother contends the appellate record contains false information and that her case was unfairly represented and adjudicated. She asks this court to independently review her case. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2016, the Kings County Human Services Agency (agency) became involved with mother and newborn R.M. after discovering that mother was homeless and intended to live with R.M.’s father, Jonathan M. (Jonathan), a registered sex offender on parole, who at the time was prohibited from having contact with children, including his own. Jonathan’s sex offender status resulted from a 2011 conviction for sexually molesting his nine-year-old stepdaughter. The agency allowed mother to keep R.M. in her custody under a plan of family maintenance as long as she prevented Jonathan from having contact with R.M. The juvenile court adjudged R.M. a dependent child, ordered family maintenance services for mother and denied Jonathan family reunification services.

In May 2016, the agency removed R.M. from mother’s custody after R.M. was admitted to the hospital and diagnosed with failure to thrive and severe malnourishment because mother was not adequately feeding her.

In June 2016, the juvenile court found that family maintenance was ineffective in protecting R.M. and ordered mother to participate in family reunification services. Mother’s services plan required her to participate in individual therapy and parenting instruction and to meet with the public health nurse to learn how to care for an infant. The court denied Jonathan reunification services and the agency placed R.M. with her maternal uncle where she remained.

Mother made significant progress in her services plan over the first six months and appropriately parented R.M. during their visits. However, she maintained a relationship with Jonathan and requested supervised visitation for him. She insisted that the agency made up the parole condition that prevented him from having contact with R.M. and expressed her dislike for her social worker and the social worker’s supervisor. In May 2016, mother refused to attend a meeting with her social worker and other agency staff to develop a safety plan to return R.M. to her custody under family maintenance. In light of her absence, the agency shifted the discussion to permanency planning with the maternal uncle who said he was willing to adopt R.M. if family reunification failed.

In its report for the six-month review hearing, the agency recommended the juvenile court terminate mother’s reunification services and set a section 366.26 hearing.

Mother’s therapist, Helen Machado, concurred that mother’s reunification services should be terminated. In a letter to the agency in June 2016, Machado opined mother had very limited insight into her problems. Mother perceived situations only in terms of how they affected her. She was also more interested in proving her points, which were “always anti CPS.” Machado reported, “[Mother] has not made enough gains in therapy that I can say, that at this time, or even in the next year, she will be able to take on the full responsibility of raising her child alone. [Mother] needs to do a lot more work on herself, before she will be able to put the interests of her child first.”

In November 2016, at the six-month review hearing, the juvenile court continued mother’s reunification services and set the 12-month review hearing for May 2017.

In its report for the 12-month review hearing, the agency again recommended the juvenile court terminate mother’s reunification services. Though mother made significant progress, including therapeutic growth according to Machado, and was consistent and appropriate in her visitation, she maintained an ongoing relationship with Jonathan. She stated on several occasions that he was the only person she could depend on and believed he was falsely accused. She viewed all men as a potential sex offender and did not want any male staff transporting R.M. to and from visits. She persisted in her request that Jonathan be included in supervised visits and was hostile and threatening to her social worker.

In June 2017, the juvenile court conducted a contested 12-month review hearing. Mother and her social worker, Maria Her, were the only witnesses. The court heard testimony about the suitability of mother’s home and her attention to R.M.’s weight, but the agency’s chief concern with respect to mother’s ability to reunify was her ongoing relationship with Jonathan.

Mother acknowledged saying at one point that she relied on Jonathan for emotional support during the reunification process. However, more recently, she sensed he did not want her to reunify with R.M. because it would interfere with their relationship. Mother testified, however, that she would always choose R.M. over Jonathan. She denied she and Jonathan were in a relationship but acknowledged they remained in contact and hung out approximately twice a week. She could not remember the last time they had unprotected sex but admitted miscarrying his child within the reporting period. She last saw Jonathan the weekend before the hearing.

Mother believed Jonathan was falsely accused of molestation and that he was safe around children. She was aware of the nature of his conviction but denied knowing he could not have contact with his biological children. She was told he could not be around females between the ages of seven and 14. She acknowledged requesting visits for Jonathan twice, despite the court’s prohibition.

Ms. Her testified mother advocated for contact between Jonathan and R.M. throughout the reunification period and requested services for him in almost every conversation they had. The agency’s concern was that mother would not protect R.M. from Jonathan.

At the conclusion of the hearing, the juvenile court found it would be detrimental to return R.M. to mother’s custody. The court found detriment, despite mother’s compliance with her court-ordered services, because of her desire to remain in contact with Jonathan and the potential that he might also have contact with R.M. The court did not find credible mother’s testimony that she would not allow such contact. The court also found that the agency provided mother reasonable reunification services and ordered them terminated.

DISCUSSION

Mother asks this court to conduct an independent review of the juvenile court proceedings because she believes her case was mishandled and that the record contains factual errors. For example, she alleges that R.M.’s most recent medical report was changed by an unauthorized clinic staff member, that she was falsely accused of leaving R.M. at a shelter so that she could be with Jonathan, and that she yelled at and starved R.M. She has recently discovered that feeding R.M. on a schedule rather than on demand caused or contributed to her malnourishment. However, mother explains that she was instructed in that method of feeding her. Mother has also learned that she was not producing enough milk.

As a reviewing court, it is not our role to independently review the appellate record to identify juvenile court error. Instead, it is appellant’s burden to raise claims of reversible error or other defect and present legal argument, citing to the pertinent evidence in the record. (In re Sade C. (1996) 13 Cal.4th 952, 994 (Sade C.).)[3]

Here, mother asserts there are factual errors but does not cite the page(s) of the record containing the material relied on as error. Similarly, she contends in essence her attorney did not competently represent her and the juvenile court erred in ruling but does not provide record page citations or develop an argument. Normally, in the absence of any claim of error, we would dismiss the petition since there is no need for this court to “proceed to the merits of any unraised ‘points’ .…” (Sade C., supra, 13 Cal.4th at p. 994.) However, we have reviewed the pertinent parts of the record, though we are not required to do so, and find no error.

The juvenile court exercised its jurisdiction over R.M. because mother was unwilling to protect her from Jonathan, a registered sex offender. Mother was allowed to keep R.M. in her custody until a precipitating event, i.e., R.M’s hospitalization for severe malnourishment, required the court to remove R.M. from her custody. Mother received 12 months of reunification services, but never wavered in her desire to maintain her relationship with Jonathan. By the 12-month review hearing in June 2017, the juvenile court had to determine whether it could safely return R.M. to mother’s custody or whether it would be detrimental. (§ 366.21, subd. (f)(1).) The court determined it would be detrimental because, even though mother fully complied with her services plan, she remained involved with Jonathan and therefore still posed a threat to R.M.’s safety. The court’s decision properly focused on R.M.’s safety and the evidence supports it.

Further, having decided it could not return R.M. to mother, the juvenile court had no choice but to terminate reunification services and set a section 366.26 hearing unless it found there was a substantial probability mother could reunify with R.M. after another period of reunification services. (§ 366.21, subd. (g)(1) & (4).) Here, the evidence supports a finding that a substantial probability of return did not exist[4] because mother intended to maintain her relationship with Jonathan. There was no point in continuing services if mother was not going to make the necessary change to reunify.

Mother’s unwillingness to protect R.M. by separating from Jonathan determined the outcome in this case, not factual misrepresentations, attorney performance or erroneous juvenile court rulings.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.