Patricia L. v. Superior Court

Filed 10/24/06 Patricia L. v. Superior Court CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Patricia L. (Patricia) petitions for extraordinary relief from a juvenile court order terminating reunification services and scheduling a permanency planning hearing for her daughter.[1] (Welf. & Inst. Code, § 366.26.[2]) Patricia challenges the sufficiency of the evidence supporting the court’s order; she seeks return of the child to her custody and continuation of reunification services. Real Party in Interest Del Norte County Department of Health and Social Services (the agency) opposes the petition. We deny the petition on the merits.

FACTUAL AND PROCEDURAL BACKGROUND

On March 8, 2005, Patricia placed her 11 year old daughter in voluntary foster care. Patricia stated she could no longer care for the child because the child was “so out of control.” Patricia and her “live in” boyfriend, D.G., then left the state and did not return until May 25, 2005. While in foster care, the child disclosed that she had been sexually and physically abused by D.G., and that D.G. threatened to kill her pets and Patricia if the child disclosed the sexual molestation. The child also disclosed that she had seen D.G. hitting and raping her mother. When Patricia returned to California, she spoke with the agency social worker. Patricia did not believe the child had been sexually or physically abused by D.G. because Patricia never left the child alone with D.G. Because Patricia did not believe the child’s disclosures, the agency social worker placed the child in protective custody.

On June 1, 2005, the court detained the child. A jurisdictional hearing was scheduled on the agency’s petition to declare the child a dependent of the court based, in relevant part, on the child’s disclosures of abuse by D.G. and Patricia’s inability or unwillingness to protect the child from further harm if the child were returned to her care. At the jurisdictional hearing on August 19, 2005, the court adjudged the child a dependent of the court after sustaining the allegations in the petition. The court initially rejected the agency’s recommendation that reunification services not be provided to Patricia. At a continued dispositional hearing on November 4, 2005, however, the court adopted the agency’s case plan for reunification services for Patricia, which included her attendance and demonstrated progress in a domestic violence prevention program, participation in family counseling sessions with the child and a parenting class, and supervised visits with the child. Additionally, Patricia was required to show she would not permit others to sexually abuse the child by no longer living with D.G. or any other sexual predator.

Before the six-month review hearing scheduled for February 3, 2006, agency social worker James Marmon (Marmon) filed a report describing Patricia’s compliance with her case plan objectives. At that time, Patricia had completed the most critical objective of the plan by separating from D.G. and acquiring a new residence in a travel trailer. She was also participating in supervised weekly visits with the child at the agency, and reported that she was attending domestic violence counseling services at Harrington House and counseling services with the child. Marmon noted that Patricia appeared to be genuinely concerned for the child and motivated to make changes, having accepted that the child had been abused. Because of Patricia’s “dire” financial situation and her lack of reliable transportation, she had missed some service appointments and visits. Patricia agreed to participate in a “CalWORKs ‘linkages’ program,” and the agency provided her with a prepaid cellular phone. Marmon recommended that services be continued for another six months, noting that the child had benefited immensely by Patricia’s recent interest in regaining custody and Patricia’s continued progress would lead to reunification. The court appointed special advocate (CASA) for the child, Terri Levezow (Levezow), also recommended that the court continue to provide reunification services for Patricia. On February 3, 2006, the court continued Patricia’s reunification services and scheduled a 12-month review hearing.

Before the 12-month review hearing, Marmon filed a report on July 13, 2006, recommending that the court terminate Patricia’s reunification services and schedule a section 366.26 hearing to determine the child’s permanent placement. The recommendation was based on Patricia’s failure to comply with her case plan objectives, including: (1) accepting and supporting the child’s allegations that she had been sexually abused by D.G., (2) demonstrating that she would not permit other people to sexually abuse the child; (3) attending and demonstrating progress in a county certified domestic violence prevention program; and (4) obtaining and maintaining a stable and suitable residence for her and the child. Marmon reported that Patricia no longer accepted the child’s disclosure that D.G. had sexually abused her. According to Patricia, D.G. had taken and passed a polygraph test, which was verified by a police detective. However, Marmon noted the child still maintained that the abuse had occurred. Additionally, for several months the agency had assisted Patricia in maintaining her own home, but she had chosen to leave that home and since April 2006, she had been living in a small one room cabin with D.G. About a month later, on May 2, 2006, D.G. was arrested for assaulting Patricia. D.G. pleaded guilty to assault and was placed on probation. Additionally, although Patricia told Marmon on at least three occasions that she was attending Harrington House’s domestic violence prevention program, when Marmon contacted Harrington House on July 10, 2006, he was told the program workers had not heard of Patricia. In assessing the detriment to the child if returned to Patricia, Marmon concluded that Patricia was “in denial” regarding the circumstances that had brought her family to the court’s attention; she blamed the child and the child’s father but took no responsibility at all. The prognosis for returning the child was not good because the child would be subjected to an extremely violent environment and possible sexual abuse. The agency had assessed the child, and concluded that she would be at high risk of being sexually, physically, and emotionally abused. Although an assessment by a representative of the Humboldt Alcohol Services Program (HASP) determined that Patricia did not have an addictive personality, Patricia was taking 10 medically prescribed drugs. Marmon opined that because of Patricia’s prescription drug use and low self-esteem, she was unable and unwilling to protect the child from harm.

April Quigley (Quigley), the CASA advocate assigned to the child since March 17, 2006, also filed a report detailing the family’s circumstances as of July 6, 2006. Quigley reported that Patricia had “cleared out” the trailer in which she had been living because she was no longer staying there and it had been broken into in her absence. Patricia moved in with D.G. because she had no other place to live. Patricia also told the child about D.G.’s arrest for assaulting Patricia, and that Patricia had reported the incident to the police so that when D.G. was released “he would have go through Drug and Alcohol.” The child did not understand why her mother reported the incident to the police, and was concerned for her mother’s safety when D.G. returned to the house. Quigley also reported that HASP would not provide any services to Patricia, who had completed a “Self-Survey” indicating she did not have any addiction problems. The HASP representative reported that the “truth index” for Patricia when taking the survey was “high.” Quigley expressed concerns that the child appeared to take on the role of a parent when she was with her mother and there was no plan in place at that time to address Patricia’s apparent inability to provide a safe and stable home for the child. Nevertheless, noting that the hearing then scheduled was a “6 mo. Review,” Quigley recommended that the court continue Patricia’s reunification services.

At the 12-month review hearing, Patricia did not appear. Although her assigned counsel stated Patricia knew about the hearing, he did not know the reason for his client’s absence and he did not request a continuance. Without objection from counsel, the court granted the agency’s request that the hearing be held in Patricia’s absence.[3] The agency submitted the matter on its latest report to the court. The court also admitted into evidence the July 6, 2006, report filed by Quigley. Levezow, the child’s former advocate, was the CASA representative at the hearing. Levezow told the court that the CASA recommendation should have been to terminate reunification services because Quigley was under the mistaken impression that the scheduled hearing was a six-month review. According to Levezow, when Quigley was advised of her error, she agreed with the new recommendation. Patricia’s attorney called Marmon and Levezow as witnesses.

Marmon testified that to the best of his knowledge and having spoken with Patricia the day before the hearing, she was still residing with D.G. in his one-room apartment. The residence was not appropriate for the child because D.G. was still drinking, he had not participated in a court-ordered batterer’s intervention program, and there was reason to believe he was a violent person[4] and sexual predator based on the court’s earlier findings in this case. “For the most part,” Patricia contacted and visited the child. The child, however, was somewhat resigned that Patricia would not do what she needed to do to reunify with her. The child showed a degree of maturity, and although there had always been a strong bond between the child and her mother, Marmon did not know if it was a healthy bond. The child was “very parentified” in that she had played the mother’s role and still felt she needed to protect her mother from D.G. Disagreeing with the HASP assessment, Marmon opined that Patricia had an addictive personality. Marmon asserted the HASP assessment test given to Patricia basically relied on the client being truthful. Given Marmon’s knowledge of Patricia’s circumstances, he knew Patricia had not answered some of the questions correctly, and if she had answered the questions correctly, her score would have been a lot higher. Marmon noted that Patricia’s medications were either prescribed by medical professionals or over the counter medications for chronic back pain, a heart disorder, and sleeping problems. However, Patricia told Marmon that when one of her physicians took her off a certain medication, she attempted to find another doctor who would prescribe the medicine. When asked if he thought a continuation of services would lead to reunification, Marmon strenuously believed Patricia would not “embrace” services even though she might say she would to gain more time. Additionally, Marmon reiterated that Patricia had not established and maintained a safe and stable home for the child and she had failed to accept her daughter’s disclosure of sexual abuse.

Levezow testified regarding Quigley’s recommendation. Even though Patricia had not “really worked” at meeting her case plan objectives, Quigley had recommended continuation of services based on Patricia’s visits with the child and Quigley’s incorrect belief that the scheduled hearing was a six-month review. If Levezow had seen the CASA report before it was filed, there would have been a change in the recommendation.

The juvenile court found that returning the child to Patricia’s custody would create a substantial risk of detriment to the child’s safety and physical and emotional well-being. The court based its finding on the circumstance that Patricia had failed to complete the primary objective of her case plan, namely, to disassociate herself from D.G. to accommodate the child’s concerns about D.G. The court terminated reunification services after finding, by clear and convincing evidence, that the agency had provided or offered reasonable services designed to assist Patricia in overcoming the problems that led to the initial removal and continued custody of the child, and further finding that Patricia’s progress toward alleviating or mitigating the causes necessitating the child’s out of home placement was “minimal.” The court scheduled a section 366.26 permanency planning hearing, but directed that visitation was to continue in the interim.

DISCUSSION

As a general rule, whenever a child is removed from a parent’s custody, the court must order reunification services for the parent. (§ 361.5, subd. (a).) For a child over the age of three at the time of removal, “court-ordered services shall not exceed a period of 12 months from the date the child entered foster care.” (§ 361.5, subd. (a)(1).) At the twelve-month hearing, the court must order a child returned to his or her parent “unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.21, subd. (f).) “The court shall also determine whether reasonable services that were designed to aid the parent . . . to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent. . . .” (Ibid.) “The failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (Ibid.) We review the juvenile court’s decisions for substantial evidence. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.)

Relying on isolated portions of the record, Patricia argues there was insufficient evidence to support the trial court’s finding of detriment if the child were returned to her custody. She refers us to several statements in the reports by the agency social worker, and then argues whether or not the statements are true. However, as an appellate court, “[o]ur authority begins and ends with a determination of whether there is any substantial evidence, contradicted or uncontradicted, which will support” the court’s decision. (Duffy v. Cavalier (1989) 215 Cal.App.3d 1517, 1539.) “We have no power to . . . resolve conflicts in the evidence” or determine where the weight of the evidence lies. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Instead, we must “accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]” (Id. at p. 53.)

There was substantial evidence before the court at the 12-month review hearing to support its finding that the return of the child to Patricia’s care at that time would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the child. Specifically, it was undisputed that Patricia had failed to maintain a stable and suitable residence for the child away from D.G. and she continued to expose herself to domestic violence. (See Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)

Additionally, before the juvenile court could continue reunification services for another six months, it was “required to find all of the following”: (a) that Patricia had consistently and regularly contacted and visited the child, (b) that Patricia had made significant progress in resolving the problems that led to the child’s removal from her home; and (c) Patricia had demonstrated the capacity and ability both to complete the objectives of her case plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs. (§ 366.21, subd. (g)(1).) Completing some of the conditions of a reunification service plan or participating in some services does not necessarily constitute significant progress in resolving the problems that led to the child’s removal or substantial compliance with the objectives of the reunification plan for the purpose of extending reunification services beyond twelve months. (See In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.) The court’s finding that Patricia’s progress was “minimal” is supported by the evidence that she failed to maintain a suitable residence for the child away from D.G. and she continued to expose herself to domestic violence despite any participation in a domestic violence prevention program. We decline to consider Patricia’s arguments that she is currently participating in services, has ended her relationship with D.G. and has established suitable housing for the child away from him. At issue is the sufficiency of the evidence supporting the court’s ruling at the 12-month review hearing. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Patricia failed to attend that hearing, and thus offered no explanation at that time regarding her living arrangements, her progress in resolving the problems that led to the child’s removal, or her capacity or ability to complete the objectives of her case plan if services were continued for another six months. Based on the record, we conclude the court did not err in refusing to continue Patricia’s reunification services for another six months.

DISPOSITION

The petition is denied on the merits. (§ 366.26, subd. (l)(1)(C); Cal. Rules of Court, rule 38.1(i)(1); see Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894.) Our decision is final immediately. (Cal. Rules of Court, rule 24(b)(3).)

_________________________

McGuiness, P.J.

We concur:

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Pollak, J.

_________________________

Siggins, J.

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[1] The child’s presumed father is not a party to this writ proceeding.

[2] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

[3] In her petition, Patricia notes that she went to court when she was told about it, but she does not argue that the court erred by proceeding in her absence, and she does not request a new hearing based on her absence.

[4] Additionally, without objection, the court took judicial notice of the following facts: (1) as recently as May 2006, D.G. had pleaded guilty to domestic violence and a protective order had been issued; (2) although D.G. had been ordered to complete a batterer’s intervention program and report to the court, he had not completed the program or appeared in court as ordered on July 11; and (3) there was a warrant outstanding for his arrest at the time of the hearing.