Opinion
F085127
01-27-2023
D.M., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest.
Keenan Perkins for Petitioner. Margo A. Raison, County Counsel, and Judith M. Denny, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. (Super. Ct. Nos. JD139242-01, JD141502-00) Susan M. Gill, Judge.
Keenan Perkins for Petitioner.
No appearance for Respondent.
Margo A. Raison, County Counsel, and Judith M. Denny, Deputy County Counsel, for Real Party in Interest.
OPINION
THE COURT [*]
Petitioner D.M. (mother) seeks extraordinary writ relief from the juvenile court's orders issued at a contested 12- and 24-month review hearing (Welf. &Inst. Code, §§ 366.21, subd. (f)(1) &366.25, subd. (a)(1)) on October 12, 2022, terminating reunification services and setting a section 366.26 hearing on February 9, 2023, as to her now two- and four-year-old daughters, L.D. and K.M., respectively. Mother contends the juvenile court erred in finding it would be detrimental to return L.D. and K.M. to her care. We find no error and deny the petition.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
Mother's Child Welfare History
These dependency proceedings were initiated in February 2019. At that time, mother had 11 children, ranging in age from 17 years to then eight-month-old K.M. Three of mother's eldest children lived with their father in Texas; the 17 year old was a dependent child in Texas. Living with mother were nine-year-old I.V., eight-year-old O.H., six-year-old J.E.M., five-year-old J.H.M., three-year-old L.M., 21-month-old A.M. and K.M. (collectively the seven youngest children). Mother also had a long history of physical neglect dating back to 2007 across several states. She struggled to properly care for the children because her house was filthy and unsanitary (dog feces, old food, piles of clothes), she and the children were poorly groomed and unhygienic (dirty, not changing diapers timely), the children lacked structure (children unsupervised, eating out of the trash, exposed to mother having sex outside on a mattress) and mother physically abused them (hitting and slapping the children). Mother's past also included domestic violence in her partner relationships and retreat to homeless shelters.
K.M. and Seven Youngest Children Removed in February 2019 but Not Detained
On February 22, 2019, after monitoring the condition of the family home and the children's safety for over a month, the Kern County Department of Human Services (department) took the seven youngest children into protective custody and filed dependency petitions on their behalf under section 300, subdivision (b). On two occasions within the previous two weeks, a social worker from the department found the home dirty and hazardous. There were broken toys, boxes and trash in the yard. Cardboard covered the top portion of the door where the glass had broken and a drape hung across the door for insulation. Food was all over the floor inside the home and the sink overflowed with dirty dishes. There were cigarette butts on the stove and kitchen floor within the reach of the children. The refrigerator was not working and there was no milk for the baby or snacks for the children. The floor was unclean and black with dirt. One of the rooms was blocked by clothes that were piled waist high. A cat was sleeping in the baby's crib and a pig was kept in an undersized cage in the home. Clothes were piled high and strewn all over the floor. The children were dirty and wore dirty clothes and their hair was matted and uncombed.
The detention hearing was continued and conducted in March 2019. In its report, the department chronicled the family's extensive history of child welfare intervention. Of note were references to mother's mental capacity of a 13 year old and involvement with E.M., the father of J.E.M., J.H.M., and L.M. In April 2014, child protective services substantiated an allegation that mother and the children were squatting in a home with no running water. During an open investigation which spanned the ensuing five years, there were reports that mother neglected the children, E.M. threw rocks at the neighbors and broke their windows, and he and mother engaged in ongoing domestic violence. E.M. reportedly snapped, became violent and intimidated mother and the children. He was described as a" 'crack head'" who used methamphetamine. In January 2015, he was reportedly" 'stoning'" other homes in the neighborhood because he got mad about something a few days before. He was seen with a butcher knife stabbing the ground.
The juvenile court did not detain K.M. and her siblings at the detention hearing in March 2019 but ordered the department to visit the home twice a month and set a jurisdictional hearing for April 17, 2019. Mother was unable to identify the identity or whereabouts of K.M.'s father. On July 25, 2019, the court dismissed the petition without prejudice.
K.M. and Siblings Detained
In December 2019, the department received a referral that mother was living with the seven youngest children in an uninhabitable trailer for the previous 10 months and posted on social media that she did not have food for them. The trailer was extremely dirty with trash and miscellaneous items in the front yard. Mother stated she was looking for another residence and agreed to move the children to their maternal grandparents' home in the interim. On March 17, 2020, a social worker visited the home to make sure mother relocated to a new residence.
On March 17, 2020, K.M. along with J.E.M., then seven, J.H.M., then six, and L.M., then four, were taken into protective custody. A petition was filed under section 300, subdivision (b), alleging the home was trashed, smelled of urine and feces and was infested with flies, the toilet was full and overflowing, and there was no electricity or propane for hot water. The children were dirty and had head lice. The mattresses were black with dirt and stains and had no sheets. There was glass on the ground outside the house within reach of the children.
The remaining three children, then 10-year-old I.V., nine-year-old O.H., and two-year-old A.M., were living with their maternal grandparents.
The juvenile court ordered K.M. detained from mother's custody at the detention hearing on March 25, 2020, and set the jurisdictional hearing for May 21, 2020. Mother identified Josh A. as K.M.'s biological father. He appeared at the hearing on May 21 and was appointed counsel. The court continued the hearing to August 19, 2020. Meanwhile, at a status review hearing in June 2020, the court found Josh A. was K.M.'s biological father.
Although the juvenile court exercised its dependency jurisdiction over K.M. along with J.E.M., J.H.M., and L.M., and provided the parents reunification services, we now focus our factual summary on K.M. and L.D. since they are the subjects of this writ petition. Ultimately, the juvenile court terminated reunification efforts as to J.E.M., J.H.M., and L.M. at the 24-month review hearing on October 12, 2022, and ordered these children into long-term foster care.
On August 17, 2020, the department filed a first amended petition on behalf of K.M., adding an allegation under section 300, subdivision (j) (abuse of sibling) that mother's four older children were removed from her in 2008 in the state of Texas because she failed to provide them adequate food and shelter. She was provided reunification services but failed to reunify and her parental rights were terminated in September 2009.
On August 30, 2020, mother gave birth to L.D. who was initially allowed to remain in her custody. The department filed a dependency petition, alleging L.D. was a minor child described under section 300, subdivisions (b) and (j) for the reasons alleged in K.M.'s petition. Joshua D. was identified as her alleged father.
L.D. Removed and Detained in October 2020
On October 16, 2020, the department took L.D. into protective custody because mother was going to be evicted from her residence. The department placed her with K.M. in foster care.
On October 28, 2020, the juvenile court ordered L.D. detained and set a jurisdictional/dispositional hearing (combined hearing) on January 11, 2021, for K.M. and L.D. The hearing was continued and set as a contested combined hearing on February 9, 2021.
On February 9, 2021, the juvenile court ordered mother to complete a psychological evaluation and appointed Dr. Carol Matthews to perform the evaluation. The matter was continued to March 18, 2021. On March 18, the juvenile court sustained the dependency petitions and continued the matter of disposition to May 12, 2021.
On March 25, 2021, Dr. Matthews conducted a psychological evaluation of mother and concluded she suffered from an unspecified psychotic disorder. Mother presented as anxious and suspicious and reported auditory hallucinations. She did not acknowledge being involved with child protective services in Texas or that her parental rights were terminated. Given her extensive history of child welfare involvement and persistent pattern of behavior despite services, Dr. Matthews opined it was unlikely she could benefit from reunification services within the required timeframe.
On May 12, 2021, the juvenile court continued the matter and appointed Dr. Sheila Morris to conduct a second evaluation of mother. Dr. Morris evaluated mother in June 2021, and concluded she likely suffered from depression and anxiety. However, that did not explain her extensive child welfare history. Dr. Morris opined mother's behavior was consistent with neurodevelopmental delays and recommended she undergo a neurodevelopmental assessment.
Juvenile Court Ordered Reunification Services for Mother for K.M. and L.D.
At continued hearings in September 2021, the juvenile court declared Joshua D. to be L.D.'s biological and presumed father and set a continued dispositional hearing on October 26, 2021, as to L.D. The court ordered mother to participate in parenting/child neglect and individual counseling services for K.M. and Joshua A. to participate in parenting and substance abuse counseling and random drug testing and set a 24-month review hearing (section 366.25) on February 17, 2022.
On October 26, 2021, the juvenile court ordered L.D. removed from parental custody, ordered reunification services for mother and Joshua D. and set a 12-month review hearing for December 15, 2021. Mother was ordered to participate in individual counseling and Joshua D. was ordered to participate in counseling for anger management and parenting/child neglect and submit to random drug testing. Mother was pregnant and due to deliver on November 16, 2021.
Juvenile Court Continued Reunification Services for K.M. and L.D.
The juvenile court continued the 12-month review hearing regarding L.D., originally set for December 15, 2021, to February 17, 2022. On that date, the court conducted a 12-month review hearing as to L.D. and a 24-month review hearing as to K.M., found mother made moderate progress and found exceptional circumstances warranted continuing the matter to April 25, 2022. The hearing was continued multiple times and conducted on October 12, 2022.
The October 12, 2022, hearing was also a jurisdictional hearing as to the youngest child, Joshua D., Jr., born on November 10, 2021. The court adjudged him a dependent child and continued the dispositional hearing to December 1, 2022.
Continued, Contested October 12, 2022, Review Hearing
Mother testified and acknowledged her children were removed in March 2020 because her living conditions were "deplorable." In December 2021, she moved into a homeless shelter where two of the children could be placed immediately and more as room became available. If the children were returned to her, she planned to get a nice place for them to live, a job and a car. She had not worked since 2005 but planned to look for a job while the children were in day care or school and apply for public assistance. In her parenting/neglect class, she learned to clean her house better and where to put her cleaning supplies. She learned that the children could help her clean and do chores. In her learning to protect class, she learned that possessiveness in a romantic relationship could negatively affect her children. She was not in a relationship and did not plan to live with Joshua D. if the children were returned to her care and would not allow him to have unsupervised or unauthorized contact with the children.
The juvenile court questioned mother about her relationship with Joshua D., pointing out that he said they were in a relationship but mother stated they were not. The court asked her when she decided she was "really done with him." Mother said it was after a call with the children two weeks before when they begged her to do whatever she needed to do to bring them home. She acknowledged Joshua D. had a "strong pull" on her and that she had decided to sever the relationship before and changed her mind but wanted a chance to demonstrate she could change. She did not want to have to tell the children goodbye forever.
Social worker Brenda Maldonado testified mother completed all of her case plan requirements. Mother's visits with the children went well. However, she was sometimes overwhelmed by the behavior of several of the children. Some visits were "good," others were "difficult," but she tried. Maldonado had not seen any evidence that mother was anxious, suspicious or having hallucinations. However, there were concerns about her relationship with Joshua D. Mother reported that he threatened her son, J.E.M. (then nine years old), that he was an alcoholic and she could not be with him because he was violent. She subsequently denied making that statement and said she would only leave him if the court ordered it. There were incidents during the children's supervised visitation when Joshua D. was inappropriate with mother's children and mother said she did not know how to protect them from him.
The juvenile court found it would be detrimental to return the children to mother's custody, terminated reunification efforts and set a section 366.26 hearing for February 9, 2023. The court commended mother on the efforts she made staying at the homeless shelter, following the rules, and completing her case plan. The court believed counseling had helped her tremendously in understanding that she and the children were living in an unlivable situation. However, the court did not believe she had been honest about her relationship with Joshua D. and believed there was tremendous risk to the children posed by domestic violence involving him. The court did not believe that after all that time, "a two-week resolve to end that relationship and protect the children, [could] sway the day."
DISCUSSION
Mother challenges the juvenile court's detriment finding. She contends there was no evidence of detriment in returning K.M. and L.D. to her care. We disagree.
Risk of Detriment
California's dependency system is designed "to protect children from harm and to preserve families when safe for the child." (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1424 (Tracy J.).) During the reunification period of a dependency case, the primary focus is on preserving the family by addressing the issues that led to dependency jurisdiction. (Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 507.) That means until reunification services have been terminated, "family reunification is the goal and the parent is entitled to every presumption in favor of returning the child to parental custody." (Tracy J., at p. 1424.)
At each review hearing following disposition, "there is a statutory presumption that the child will be returned to parental custody." (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) A court must return the child to his or her parent's custody unless it finds by a preponderance of the evidence that doing so would "create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (See § 366.21, subd. (f)(1) [governing the 12-month review hearing] &§ 366.25, subd. (a)(1) [governing the 24-month review hearing].) The burden is on the department to prove that the child would face some actual, nonspeculative risk if he or she were returned to parental custody. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400.) "In evaluating detriment, the juvenile court must consider the extent to which the parent participated in reunification services. [Citations.] The court must also consider the efforts or progress the parent has made toward eliminating the conditions that led to the child's out-of-home placement." (Ibid.)
We review a juvenile court's detriment finding for substantial evidence. (Tracy J., supra, 202 Cal.App.4th at p. 1424.) In so doing, we consider the evidence favorably to the prevailing party and resolve all conflicts in support of the juvenile court's order. (In re Yvonne W., supra, 165 Cal.App.4th at p. 1401.)"' "Substantial evidence" is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. [Citation.]' [Citation.] 'Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. [Citations.]'" (Tracy J., at p. 1424.)
We have no difficulty concluding that substantial evidence supports the juvenile court's detriment finding. Mother had a very long history of engaging in domestic violence and neglecting her children. Despite extensive services related to this case, she allowed Joshua D. contact with her children even though she knew he was inappropriate with them and acknowledged that she could not protect them from him. She was also dishonest about the nature of their relationship when asked. Given mother's longstanding pattern of subjecting the children to neglect and domestic violence, the juvenile court could properly find that returning K.M. and L.D. to mother's custody would be detrimental and that her completion of her services plan and two-week resolve to terminate her relationship with Joshua D. did not compel a contrary finding.
Mother analogizes this case to Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856 and contends the juvenile court's concern that she would expose the children to domestic violence with Joshua D. was an insufficient basis for finding detriment to return. In Georgeanne G., the juvenile court made a finding of detriment based on the mother's lack of insight in living with her boyfriend, Arthur, who had a prior forcible rape conviction against his ex-wife. (Id. at pp. 859, 861, 863-864.) Mother had completed her case plan, including domestic violence services based on her prior domestic violence relationship with the father of her child and had no domestic violence incidents with Arthur in the 22 months they lived together. (Id. at pp. 862, 868.) The appellate court found substantial evidence did not support the finding of detriment because there was no evidence of risk to the child based on mother's relationship w ith Arthur. (Id. at pp. 868-869.)
In mother's case there is evidence Joshua D. posed a risk of harm to her children. According to the record, he did not participate in court-ordered reunification services and was verbally aggressive to mother's children during visitation, which she did not acknowledge. On one occasion, she texted the social worker that he smelled like alcohol and threatened to" 'slap the sh[**]'" out of one of the children. However, she later denied making that statement. She also chose to continue their relationship until two weeks before the October 12, 2022, hearing despite his abusive behavior and knowing that it would prevent her from reunifying with K.M. and L.D. She acknowledged to the juvenile court at the hearing that Joshua D. exerted a "strong pull" on her and admitted having difficulty severing their relationship. Such evidence in light of mother's child welfare history supports the juvenile court's finding of detriment. We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).
[*] Before Meehan, Acting P. J., Snauffer, J. and DeSantos, J.