Filed 9/28/17 X.F. v. Superior Court CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Petitioner X.F., mother of two-year old U.M., challenges the Contra Costa County Juvenile Court’s June 21, 2017 order setting a Welfare and Institutions Code section 366.26 hearing and denying her reunification services.[1] Specifically, mother argues that the juvenile court erred when it concluded that mother failed to establish, by clear and convincing evidence, that it was in U.M.’s best interest that she receive reunification services. In addition, mother contends that the juvenile court erred when it reduced her visitation with minor at the time it set the section 366.26 hearing. Having reviewed each of mother’s contentions, we conclude they lack merit. Accordingly, and for the reasons given below, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On February 8, 2017, the Contra Costa County Children and Family Services Bureau (Bureau) filed a juvenile dependency petition alleging that U.M. (minor) was at risk of harm due to mother’s severe substance abuse problem and mother’s engagement in an act of domestic violence in the minor’s presence, resulting in her failure to provide a safe and stable living environment for him. The petition further alleged that mother had failed to reunify with two of U.M.’s half siblings resulting in termination of her parental rights regarding those children in August 2011 and April 2012.

In support of its petition, the Bureau’s filed a detention/jurisdiction report which set forth the following facts. Concord police officers were summoned to a local AM/PM Store in the early morning hours of November 25, 2016 by a store clerk. The clerk reported that mother entered the store and said that someone had hit her. When the police arrived at the store, mother was present and she told the police that she had been dating a man named Barajas-Cruz for approximately two years. On the evening of November 24, Barajas-Cruz picked her and U.M. up in Martinez to drive them to Antioch. In route to Antioch she fell asleep in the passenger seat. However, she was awakened when Cruz hit her, Cruz punched her multiple times with both fists before she managed to get out of the car and run into the AM/PM store. Mother told the officer that Barajas-Cruz had “gotten physical” with her many times in the past. When asked how many times, mother stated “a lot.” The officer noted that Mother was not under the influence of alcohol but “exhibit[ed] signs of being under the influence of a central nervous system stimulant.” Mother declined to have Barajas-Cruz arrested.

The Bureau’s report also set forth facts from a February 5, 2017 police report, received by the Antioch Police Department. According to the report, police received a call stating that a woman carrying a baby was running up and down the street yelling for help. An officer was dispatched and made contact with mother. The officer observed that mother had a bloody nose and was carrying U.M. U.M. was not wearing any shoes, his clothes were caked with mud and he was crying. The officer also noted that mother was dirty, had open sores on her face, and had what appeared to be recent needle marks on her hands and arms. Mother rambled incoherently during the interview. She was unable to explain to the officer the cause of her bloody nose, although she denied that she had been punched. While mother spoke with the officer, she was also talking to a man on her cell phone whom she identified as her boyfriend. The officer noted that the man mother was talking with was yelling and cursing loudly at her. Although the man, according to mother, was close by, he refused to come to their location. Mother was unable to explain why she was outside in the rain with a small child, who had no shoes and was dressed in filthy clothes. Mother also gave several different names when asked to identify the child’s father.[2] U.M. was taken into emergency protective custory.

The Bureau social worker spoke with the maternal great grandmother, who stated she was unable to take the child. She expressed concern that mother is a drug addict and often leaves U.M. in unsafe locations and with unsuitable people. The social worker also met with mother before the detention hearing and offered her domestic violence, substance abuse, and mental health counseling. Mother denied using drugs or alcohol, denied having a mental health diagnosis, and stated that there was no domestic violence in her life.

Mother appeared at the detention hearing but left before her case was called. The juvenile court detained U.M., finding that it was necessary for his welfare that he be removed from his mother’s custody and that reasonable efforts had been made to prevent or eliminate the need for removal.

In advance of the April 6, 2017 jurisdiction hearing, the Bureau requested the juvenile court to take judicial notice of documents related to juvenile petitions that had been filed regarding two of mother’s older children. Mother’s parental rights to each of those children had been terminated.

At the conclusion of the jurisdictional hearing, the juvenile court sustained the petition and found U.M. to be described by subdivisions (b)[3] and (j)[4] of section 300 and set the matter for a dispositional hearing.

At the disposition hearing, the Bureau recommended that mother not be offered family reunification services pursuant to section 361.5, subdivisions (b)(10),[5] (b)(11),[6] and (b)(13).[7] The disposition report summarized key issues identified in mother’s previous juvenile dependency cases, the efforts made by the Bureau to assist mother in overcoming the issues that lead to the filing of multiple dependency petitions, and the termination of her parental rights regarding each of her older children. In particular, the report noted that mother acknowledged she used drugs, tampered with her drug test to avoid detection of usage, did not comply with random drug testing regimen, violated an active restraining order prohibiting contact with the child’s father, failed to regularly attend psychotherapy sessions or take medication prescribed by her treating psychologist, engaged in acts of domestic violence, and failed to maintain regular contact with her social worker. In addition to the issues that arose with these two children, mother gave birth to a third child, who was exposed to methamphetamines and amphetamines at birth. That child was adopted through a private adoption.

The report also identified the services it offered to mother to assist her in overcoming the problems that led to U.M.’s removal. Between February and April she was offered four referrals for substance abuse programs and testing. She was also received four referrals for parenting classes and she received referrals for domestic violence counseling. Mother, however, informed the assigned social worker that she did not believe she had a substance abuse problem and refused to participate in services. She also repeatedly refused to be interviewed by the Bureau social worker.

U.M was described in the report as a “typical two-year-old male with lots of energy.” However, the Bureau’s worker was concerned that U.M. suffered from developmental delays in speech because he only has a limited number of words and was unable to articulate his concerns which lead to tantrums when he was frustrated. He scored very low in all developmental areas, aside from motor skill development and was on a waitlist to be formally assessed through the Regional Center of the East Bay. U.M underwent a mental health assessment, which indicated that he and his caregiver would benefit from therapy to learn new ways of dealing with his frustration and anger. The Bureau’s assessment of mother stated:

“[Mother] has come to the attention of the Bureau again for the exact same reasons as before; domestic violence and substance abuse issues. [U.M.] is [mother’s] fourth child and none of her children are in her care. [Mother] has serious mental health issues, as well as, extensive substance abuse dependency issues that continue to affect her ability to parent. There is no doubt [mother] loves [U.M.]; however, her inability to keep him safe and to make better choices in life is the reason the Bureau had to intervene. [U.M.] deserves to have permanency in his life. The Bureau is ready [to] carry out a concurrent plan for [U.M.] to ensure his safety.”

A contested disposition hearing commenced in June. The Bureau submitted on its social study report, which included a request for judicial notice of documents demonstrating that mother’s parental rights regarding two of her older children had been terminated. Mother presented the testimony of the social worker assigned to her case. The social worker testified that U.M. was initially referred to the Bureau at birth but that there had been no additional referrals until the present referral. Mother enjoyed visits with U.M. and provided him with clothes, U.M. was frequently excited to see her during their visits, and mother appropriately attended to his needs and engaged with him during those visits. Mother and U.M. have a “significant . . . mother-child bond.” Based on her review of the police reports in mother’s file, the social worker testified that mother had been the victim of domestic violence and U.M. was present during these incidents. When questioned about the incident where mother was observed running up and down the street with the minor, having sustained a bloody nose, the worker testified mother’s response was vague and that she changed her story as to what happened that evening. Initially, mother indicated that an unknown assailant emerged from a behind a bush and attacked her. On another occasion, mother claimed that she had an open wound on her nose that just started to bleed. Mother denied having a substance abuse problem.

The social worker also testified that she reviewed reports regarding mother’s children who had previously been declared dependents of the court. With respect to one of those children, T.T., mother had been offered family maintenance services. Mother demonstrated appropriate parenting skills vis-à-vis T.T., but was unsuccessful in achieving the goals of her family maintenance plan. The case plan for T.T. required that mother participate in drug and domestic violence treatment programs/counseling.

At oral argument minor’s counsel summarized the issues before the court. In counsel’s opinion, U.M. and mother shared a significant bond but, she acknowledged, the requirements necessary to bypass services to mother had been met; therefore — the juvenile court had discretion to determine whether to provide mother services, if doing so was in U.M.’s best interests. Minor’s counsel further acknowledged that mother had lost her parental rights to two prior children, but she argued that perhaps mother — “just needed one more chance[,] given the significant relationship [between U.M. and mother].” Minor’s counsel then observed that she was concerned that mother’s failure to participate in case plan activities indicates “a pattern,” and said she does not “have a lot of strong feelings that mom would follow through were she given services.” She also recognized the lack of “even a little scintilla of any kind of effort on [mother’s] part to do any kind of services.” When asked to take a definitive position, minor’s counsel responded: “And I’m not usually this wishy-washy, to be honest. This is one case that has me, being honest, on the fence, that’s why I have to submit. I usually am very, very clear about my position. This is one case I’m not because of the significant relationship that [U.M.] does seem to have with his mother. And so I don’t know that I can full-out say I support the recommendations for bypass. That’s why I’m submitting.”

At the conclusion of the parties’ arguments, the juvenile court determined that the Bureau met its burden of demonstrating by clear and convincing evidence that the bypass provisions applied. The court then acknowledged that bypassing services is not mandatory but optional; thus the court moved to the critical question “whether . . . [there was] clear and convincing evidence that reunification was in the best interest of [U.M.].”

The juvenile court then ruled as follows:

“. . . [G]iven [U.M.’s] age and his apparent attachment to his mother, the fact that she . . . continues to deny any issue, has failed to participate in any services whatsoever including mental health services is really troubling to the Court. So essentially what I would have to do is just hope that at some point mother would have an epiphany that she’s got a problem and she would get on board and she would deal with these issues, when she has demonstrated by a clear pattern with other children that she fails to engage in services, she has failed to address very significant issues. She’s already lost custody of two children in dependency proceedings, where her parental rights were terminated. She voluntarily relinquished a third child for an adoption. And here we are.

“And if ever there was a time to understand you have a problem, if you really want to make an effort at this point to get [U.M.] back in your care and custody, it would be now to have had all these months while this case has been pending, which is 4 months, to participate in services.

“And I know that the Department has repeatedly made referrals for mother to engage. And as recently as this month, mother has met with the Department and denied that she has a problem. That tells me there’s no evidence that would support a finding that offering reunification services with these issues and this history is in the best interest of this child. It is prolonging agony, as far as I can see, as it related to [U.M.]

“I know he’s attached to his mother, and I’m sure mother loves [U.M.]. But that is only one small part of the equation here the Court has to consider.”

Having denied services to mother, the court then set a section 366.26 hearing and ordered that mother have a minimum of one hour visit per month with U.M., affording the Bureau discretion to allow more visitation if such visits were in in U.M.’s best interests. On June 27, 2017, mother filed a notice of intent to file this writ petition.

DISCUSSION

Mother makes two arguments in support of her petition. She contends that: (1) the juvenile court erred when it determined that mother would not receive reunification services and (2) the juvenile court erred when it reduced her minimum number of monthly visits to one hourly visit per month and denied her request to set the minimum number of visits with U.M. at two per month. Mother’s first argument, that she was entitled to receive reunification services, has two aspects: (1) the juvenile court erred when it relied, in part, on section 361.5, subd. (b)(13) to support its bypass finding; and (2) because the central issue impacting mother’s ability to comply with her case plan related to mother’s mental health, the juvenile court erred when it failed to provide mother reunification services “with full mental health support.”

1. THE JUVENILE COURT DID NOT ERR WHEN IT DENIED MOTHER
   REUNIFICATION SERVICES.

Our review of the juvenile court’s decision to deny reunification services is pursuant to the substantial evidence standard. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.) In other words, all conflicts are to be resolved in favor of the lower court’s order. If multiple inferences can reasonably be deduced from the facts, we must accept those reached by the lower court. (Ibid.) Furthermore, section 361.5, subdivision (b) allows the juvenile court to bypass the general requirement to provide reunification services in those narrowly defined situations where the legislature created a presumption that reunification services would be an unwise expenditure of resources. (In re Lana S. (2012) 207 Cal.App.4th 94, 106-107.)

Mother contends that section 361.5, subd. (b)(13) (allowing the juvenile court to bypass services if the parent has an extensive history of substance abuse and has resisted court-ordered treatment for this problem within three years of the filing of the petition or has not complied with mandatory substance abuse treatment) is inapplicable because the cases involving termination of parental rights with mother’s other children did not occur within the three year statutory period. However, Mother acknowledges that the alternative sections support the trial court’s decision. In particular, sections 361.5, subdivisions (10) and (11) provide legal support for the juvenile court’s decision to forego service to mother. Where the juvenile court relies on more than one bypass provision to deny reunification services, if one provision is valid, it is unnecessary to review the applicability of all the provisions upon which the juvenile court relied. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 76.) Thus, mother’s objection to the juvenile courts reliance upon section 361.5, subdivision (13) is not dispositive of the issue before us. The law in this area is clear: if any of the bypass provisions apply, there is a legislative presumption that providing services would be an unwise allocation of resources and the burden shifts to the parent to rebut that presumption by establishing that it would be in the child’s best interests for the Bureau to provide such services. (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) To overcome the legislative presumption against providing services, mother must establish, by clear and convincing evidence, that there is a significant bond between U.M. and her, and, in addition, that it is in the minor’s best interest that services be provided. Here, mother successfully established that there was a significant bond between her and her son. On this record, however, mother failed to establish that it would be in U.M’s “best interest” if she were provided services because her track record does not suggest she would benefit from those services. As U.M.’s counsel observed, here was not “even a little scintilla of any kind of effort” by mother. Simply put, mother cannot show by clear and convincing evidence that it would be in U.M.’s best interest for the court to order the Bureau to provide them. (Id. at pp. 1228-1229 [minor’s bonds with the parent are not the sole basis for a best interest finding; a minor’s best interests are not served by prolonging reunification services when reunification is not possible].)

Mother insists that because the central issue here (and in the half-siblings’ cases) related to mother’s mental health, the juvenile court “should have given reunification services with full mental health support in place to see if this time the mother could reunify with the child which is always in the child’s best interest.” We disagree. The record before us is devoid of any indication that mother requested and was denied mental health services; thus, the issue is waived. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641; In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) Again, the governing law is clear on this issue. If a matter is committed to the juvenile court’s discretion, the parent is responsible to request that the court exercise its discretion favorably to the parent. Parents may not remain silent below and then contend on appeal that the juvenile court erred. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)

Assuming the issue were not waived, however, we would find no basis to reverse the juvenile court’s finding on this ground. First, Mother is incorrect when she asserts that she was not previously offered mental health services. Our record establishes just the opposite. We note that in T.T.’s prior dependency case, the May 10, 2017 disposition report notes that mother failed to comply with her psychological treatment as required by her case plan: she was not taking prescribed medication, not attending therapy, and failed to meet with her psychiatrist. Moreover, in the current matter, the record clearly establishes that when asked, mother denied that she had received a mental health diagnosis and likewise denied any problems with domestic violence and substance abuse). Finally, and in direct contradiction to the argument mother makes here, the Bureau offered mother mental health services but she declined to avail herself of those services. Thus, given this record, we find no basis to reverse the trial court’s denial of services on this ground.

2. THE JUVENILE COURT DID NOT ERR WHEN IT REDUCED MOTHER’S
   VISITATION.

We review the juvenile court’s visitation order pursuant to a deferential “abuse of discretion” standard. (Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 299.) Thus, if there is a reasonable basis to conclude that the visitation order was in child’s best interest, it should be affirmed. (Ibid.)

Here, the juvenile court adopted the Bureau’s recommendation regarding visitation — that mother receive a minimum of one hour supervised visitation, once per month. Mother requested at least two visits per month, because the visits had been going well. The juvenile court determined that any change in visitation, such as time, place, and/or frequency could be determined by the Bureau upon consideration of the child’s wishes, input from both U.M.’s counsel and therapist. Last, the juvenile court noted that it was reducing the minimum visitation because the case was now on a permanency track and it directed the Bureau to begin immediately to look for a concurrent placement for U.M.

In challenging the court’s visitation order, mother relies on In re Hunter S. (2006) 142 Cal.App.4th 1497 In re Hunter S. concerned a visitation order that permitted the minor unilaterally to choose whether or not to visit the parent. The appellate court determined that that court’s delegation of visitation to the child was an abuse of discretion as mother was potentially deprived of any chance to show that her bond with her child was salvageable. (Id. at p. 1508.) We find In re Hunter S. inapposite.

The legislature has determined that when the juvenile court sets a section 366.26 hearing, reunification services are to be terminated. (§ 366.21, subd. (h).) Absent a finding that visitation with the parent would be detrimental to the child, parental visitation should continue. (Ibid.) Notably, the court may make “any other appropriate orders” for the child to maintain important relationships “consistent with the child’s best interests.” (Ibid. [italics added].) Consistent with the legislature’s prescription regarding visitation in termination of parental rights cases, the juvenile court, in the exercise of its discretion, set a minimal amount of visitation but allowed the Bureau discretion to increase the frequency and length of visits. Thus, we find the juvenile court’s order regarding visitation was well within the broad discretion afforded the court by the legislature to enter visitation orders consistent with the minor’s best interest. Accordingly, the juvenile court’s visitation order stands.

DISPOSITION

For the reasons given above, the petition for an extraordinary writ is denied. Our decision is immediately final as to this court. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)

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_________________________

Jenkins, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

X.F. v. Superior Court, A151741