Opinion
A158532
01-15-2020
E.V., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. Nos. JD02985601, JD02985701)
E.V. (Mother) initiated this writ proceeding after her reunification services with her two daughters were terminated and the matter was set for a hearing under Welfare and Institutions Code section 366.26. The hearing is set for January 21, 2020. Both issues raised here—error in failing to return the children to Mother's care at the 12-month review, and error in failing to continue the case for six more months of reunification services—are subject to the substantial evidence standard of review. (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 419 [termination of reunification services]; In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400-1401 [substantial risk of detriment finding]; Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705 [setting of § 366.26 hearing at 18-month review].)
Undesignated statutory references are to the Welfare and Institutions Code.
As we shall explain, we find substantial evidence to support the juvenile court's findings and orders. The decision by the trial court was based largely on a determination that Mother's testimony was not credible, to which we defer. We will deny the petition.
I. BACKGROUND
Mother and Nicholas P. (Father) are the parents of two young girls, Sofia P. (now age three) and Samantha P. (now age 20 months). The children came to the attention of the child welfare authorities in mid-May 2018 when Father took Samantha, then six weeks old, to the hospital because she was having trouble breathing. The medical team concluded she was having seizures due to a non-accidental brain injury. There was bleeding in the skull and brain. The doctors believed Samantha may have been the victim of shaken baby syndrome. Mother was not home when Father took Samantha to the hospital or during the time immediately preceding the hospital visit.
On June 4, 2018, the Alameda County Social Services Agency (Agency) filed petitions on behalf of both children, alleging jurisdiction for Samantha under section 300, subdivisions (b)(1) (failure to protect), (e) (severe physical abuse of a child under age five), and (j) (abuse of a sibling). Sofia's petition alleged abuse of a sibling only. (§ 300, subd. (j).) On June 5, 2018, both children were ordered detained by the court and shortly thereafter were placed with their maternal grandparents.
Diana V., the children's maternal grandmother, had never seen either parent behave aggressively toward the children. She told the social worker, however, she was aware of an occurrence of domestic violence between the parents in August 2017. Father knocked out Mother's tooth during an argument in a BART station. Mother had just told Father she was pregnant with Samantha; he became angry and pushed her, and when she fell she knocked out her tooth. Or at least that was Mother's initial testimony. Upon further inquiry by the court, Mother admitted that Father's "fist hit [her] face" as they tussled, which is what knocked out her tooth.
After that incident, the grandparents asked Father to leave their home, where Mother, Father and Sofia apparently had been living, as they did not feel safe with him. Both parents left, evidently taking Sofia with them. Mother initially stayed with friends, and then both parents went to a shelter together, where they stayed for about six months before finding an apartment of their own. They did, however, at one point manage to rent a two-bedroom apartment that could accommodate the family if they were to reunify.
Though the parents maintained regular and appropriate visitation with their daughters during the dependency, their relationship with each other continued to be marred by domestic violence. One incident occurred on April 3, 2019 and was not reported to the Agency by Mother; Father did not report it until June 14, 2019. Both parents had engaged in violence during the incident, which will be discussed more fully below.
The parents also could not explain Samantha's injuries and continued throughout the dependency to insist her injuries were sustained accidentally. Mother suggested that Samantha's severe brain injury and bruises were caused by the hospital staff, toddler-aged Sofia, or from co-sleeping. This was true even though both parents said they were the only caregivers for Samantha. Father was responsible for the girls' daytime care, though he worked the graveyard shift and needed to sleep during the day. Father said the injuries were an accident and at one point admitted to holding Samantha too tightly, but he never admitted to shaking her, hitting her, or slamming her against something hard. The doctors, however, believed Samantha's injuries were the result of shaken baby syndrome.
In June 2019, Mother reported that she and Father were no longer a couple since April 2019, but they continued to live together until at least mid-September 2019. At the same time Mother expressed resentment toward the social worker, telling her it was pressure from the Agency that had caused her and Father to split up. Mother was inconsistent in stating her intentions with Father, at times saying she would never leave him and they would get back together as a couple, and at other times saying she realized they were better off apart. Mother still did not accept that Father had acted willfully in injuring Samantha and was resistant to even discussing the issue.
By the time of the 12-month review hearing, Mother had completed 44 of 52 domestic violence classes, first at Terra Firma and later at Peace Creations. The social worker continued to be concerned that Mother had not benefited sufficiently from the domestic violence classes, had not been "transparent" with the Agency about the domestic violence in her relationship with Father, and she worried that the relationship between Mother and Father was not fully resolved.
Mother had attended about 82 percent of scheduled individual therapy sessions, which were focused on anger management. She claims she has learned alternative ways of managing stress, such as deep breathing, meditation, and walking or running. She readily engaged with her individual therapist and appreciated therapy as one of her coping mechanisms. She appears to have benefited from the therapy component of her case plan, but it is not clear she has incorporated the benefits into her daily life.
Mother also appears to have acquired some good parenting skills by attending parenting classes at A Better Way. She was consistent in appearing at scheduled visits with the girls, except when sick. She was appropriate with the girls and they were bonded with her. During visits she performed routine parenting functions, such as providing food, changing diapers, and tending to the girls' grooming, and she read books to them, cuddled with them, and played with them. The girls enjoyed visits with their parents and cried when their parents had to miss visits due to illness. By the time of the 12-month hearing the parents were visiting the girls separately and had been for several months because of the domestic violence between them and Mother's intention to evict Father from their home.
By early October 2019, Mother had finally found a new place to live. She had been staying with a friend in a one-bedroom apartment and sleeping on the couch, but just the day before trial she had secured a one-year lease to continue that arrangement. She claimed she had been physically separated from Father for about a month, but that appears to be an exaggeration. There had been times in the past when Mother had said they were broken up and then decided to work on their relationship.
Starting in September 2019, Mother had a new job working full-time in the office of a warehouse on the 5:00 a.m. to 1:30 p.m. shift. Father worked at the same warehouse but on a different shift. Mother was also attending Chabot College, taking real estate classes to get her license. She had finished one semester and was starting a second semester when the 12-month hearing occurred. Mother did not have a drug or alcohol problem. She claimed she had never been in another abusive relationship.
The continued 12-month contested hearing took place on October 2 and 3, 2019 before Judge Tara Flanagan. At that hearing, the court terminated reunification services for both parents, continued the girls as dependent children, and set a hearing under section 366.26 for January 21, 2020. Mother alone has filed a petition for extraordinary writ relief under section 366.26, subdivision (l) and California Rules of Court, rule 8.452.
References to rules, without further designation, are to the California Rules of Court. --------
II. DISCUSSION
The statutory presumption at the hearing was that the children would be returned to a parent unless the Agency could show by a preponderance of the evidence a substantial risk of detriment to the children if returned home. (§ 366.21, subd. (f)(1).) Mother claims this mandate was violated. Because she had by her own account separated from Father, Mother argues that custody of the children should have been returned to her at the 12-month hearing. She emphasizes her excellent participation in visitation, completion of a parenting class, good work in individual therapy, and near completion of a domestic violence program. She insists the court erred when it determined there was a substantial risk of detriment to the children if they were returned home to her and there was no substantial evidence to support that finding. She requests that we order their immediate return.
Alternatively, she contends the court should have continued the case for an 18-month review and continued reunification services until then. She asks that we order the juvenile court to vacate the orders of October 3, 2019 and to set an 18-month hearing because, she alleges, there was no substantial evidence to support a finding that there was no substantial probability the children could be returned to her during that period. She requests that we order the juvenile court to provide her with additional reunification services. A. There Was Substantial Evidence to Support the Court's Finding of a Substantial Risk of Detriment to the Children if They Were Returned to Mother
1. The statutory time limits on reunification
Mother finds herself up against the Legislature's fairly strict limits on how much time parents will be allowed to attempt to reunify with their children before permanency planning begins, especially for young children like Sofia and Samantha. Under section 361.5, subdivision (a)(1)(B), "[f]or a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under three years of age, court-ordered services shall be provided for a period of 6 months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months from the date the child entered foster care, as provided in Section 361.49, unless the child is returned to the home of the parent or guardian." (See also § 366.21, subd. (g)(4).) Both children fall within the under-age-three provision.
Section 361.5, subdivision (a)(3)(A) provides that services may be extended up to 18 months from initial removal "if it can be shown, at the hearing held pursuant to subdivision (f) of Section 366.21, that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period. The court shall extend the time period only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or guardian within the extended time period or that reasonable services have not been provided to the parent or guardian." (See also § 366.21, subd. (g)(1).) Mother does not contend that reasonable services were not provided; she challenges only the court's substantial-risk-of-detriment and no-probability-of-safe-return findings. Mother, as petitioner, must demonstrate the trial court's findings on these issues were not supported by substantial evidence. (In re M.F. (2019) 32 Cal.App.5th 1, 14; T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1238-1239; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
2. Status of the children
At the 12-month hearing, the children seemed well-adjusted in their grandparents' home, but the injuries to Samantha must not be understated. When she was first seen at the hospital, she was diagnosed with a skull fracture, seizures, and a "very serious brain injury with blood in her skull and brain, she continue[d] to have many seizures, and there were significant bruises on her back and her left leg." The bruise on her back appeared to be the size and shape of adult fingers. Samantha remained in the hospital for 45 days.
As of the 12-month status review report prepared for a hearing scheduled for July 2, 2019, Samantha continued to have many medical appointments. She was doing much better recently but still had delays in fine motor development and core strength. She had quickly moved from rolling over to crawling to standing. Recently she had started walking. Nevertheless, the social worker believed she would have persistent adverse effects that would require lifelong monitoring. She received regional center services, occupational therapy, and physical therapy. She was happy and well-bonded to both her parents and grandparents; there were no concerns about her emotional or mental status.
Sofia did not have any ongoing health concerns. She was behind in language development and was participating in speech therapy and mental health therapy. She was also being seen at the regional center. She had been seeing a therapist at A Better Way since February 2019. She was considered at risk of injury from her parents because she was cared for by the same parents who had injured Samantha, using the same parenting style, in the same circumstances. She had also possibly suffered emotional injury by seeing her sister being abused.
3. The court's orders terminating reunification services and setting a section 366.26 hearing were supported by the record
As set forth above, parents of children under age three receive 6 months of reunification services presumptively, 12 months maximum, and 18 months only upon proof that they can be expected to assume responsible custody over the child or children by the end of that time period. Thus, Mother has already received the presumptive maximum number of months of reunification services for a parent of such young children, absent a finding of likelihood of future successful reunification within the 18-month timeframe. The Supreme Court has referred to the period between 12 and 18 months as a "disfavored" period of reunification. (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 845.)
The gist of Mother's argument is that she complied or substantially complied with all the components of her case plan, and therefore the children should have been returned to her. She relies upon David B. v. Superior Court (2004) 123 Cal.App.4th 768, 798, in which the Court of Appeal granted a petition for extraordinary relief where it disagreed with the juvenile court's determination that petitioner received reasonable reunification services. In David B., unlike here, petitioner did "virtually everything [the county social services agency] requested of him, and then some." (Id. at p. 772.) Mother participated in many of the programs required of her, but she never came to terms with the fact that Father had been responsible for Samantha's injuries. Without that basic acceptance, the Agency and the court believed it was not possible for her to gain insight into how to protect her children from future abuse.
Mother's case is also distinguishable from Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, which granted extraordinary writ relief where the mother had completed a parenting course and individual counseling, missing no sessions. The mother was permitted daily, unmonitored visits with the children. (Id. at p. 1341.) The Court of Appeal found that the trial court's concerns regarding a "domestic violence" incident which amounted to a heated telephone argument, as well as some diluted and/or positive marijuana tests, were insufficient to find substantial risk of detriment. (Id. at pp. 1342-1346.) Here, Mother had not ameliorated or mitigated the causes for placing the children out of the home, as she still did not believe that Father's physical abuse caused Samantha's injuries. While Mother had completed a parenting course, she had initially resisted the domestic violence training and failed to complete the required number of classes. She also had missed nearly 20 percent of her individual counseling sessions. Finally, the crux of the Agency's concern about the April 3, 2019 domestic violence incident was that Mother never reported it to the Agency or her service providers.
Underlying Mother's position is a mistaken premise that satisfactory completion of a reunification plan will necessarily result in a return of the child to parental custody. A parent's compliance with the reunification plan is unquestionably an important consideration in deciding whether the child should be returned home. A parent's failure to participate in reunification services will support a finding that return of the child would be detrimental, as will a parent's lack of efforts or progress. (§ 366.21, subd. (f)(1)(C).) A parent's successful completion of the reunification program, on the other hand, does not guarantee return of the child. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1143; In re Joseph B. (1996) 42 Cal.App.4th 890, 899-901.) "The problem is not, as it were, quantitative (that is, showing up for counseling or therapy or parenting classes, or what have you) but qualitative (that is, whether the counseling, therapy or parenting classes are doing any good)." (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) On a qualitative scale, the Agency disagreed with Mother's assessment of her success in completing reunification services.
Samantha's physical injuries were apparent and confirmed by medical professionals. The only question was how they were sustained. The Agency and the court were convinced that Father had inflicted those injuries. The primary concern expressed by the social worker about returning the children to Mother was that the parents, including Mother, had never acknowledged the non-accidental nature of Samantha's injuries. The court expressed equal concern: "[I]f we don't know who or how those injuries occurred, we can't help this family. And the Court cannot have any level of confidence that this will not occur again." Because Samantha's injuries were severe, and the action that most likely caused them extremely dangerous, this was a well-grounded concern.
Mother had continued to live with Father for approximately 15 months of the 16-month dependency. She had only recently found a place to live without him, and she was sleeping on someone's couch. It was uncertain whether she would remain determined to separate from Father or whether she would reconcile with him. The staff at the domestic violence program (Terra Firma) had commented earlier in the dependency on the immature and co-dependent nature of Mother's relationship with Father. Given Mother's denial of Father's responsibility for Samantha's injuries, her minimization of the domestic violence in the parents' relationship, and her failure to disclose the April 2019 incident, the social worker was understandably worried that Mother would continue to expose the children to Father and that a flare-up in his violence would endanger the children.
Supporting evidence included the reports of the incident on April 3, 2019, which Mother never reported to the Agency, and Father did not report until more than two months after the fact. On June 20, 2019, the social worker received a police report from the incident. The police report named Father as the suspect, and he was arrested for domestic violence; Mother was listed as the victim and had a small knot on the top of her head and bruising to her left bicep area. The police report said the parents were arguing at their home when Father punched Mother two times with a closed fist in her shoulder. Mother threw a game controller at him and hit him in the back. Father then pushed her to the ground and she hit her head on the corner of a dresser. Mother then threw a plastic plug-in desk fan at Father. Sometime during the altercation, Mother called the police. The responding officer named both parents as combatants in the incident. Mother declined medical treatment, did not press charges, and did not request an emergency protective order. When Mother saw the child welfare worker the day after the incident, she said Father could not be there because he was working, when in fact he was in jail on a domestic violence charge.
Mother's willingness to minimize, overlook, and cover up Father's violence, and her own violent responses, did not bode well for her daughters. The social worker had a legitimate concern about whether Mother could protect the girls and keep them safe in light of Father's potential for violence. Thus, the juvenile court's orders were based on substantial evidence that the children remained at substantial risk of detriment. According to the social worker's report, Mother had formally separated from Father no more than two weeks before the 12-month hearing. Although she testified she would tell Father to get a court order if he wanted to see his daughters, it was not at all clear that Mother would prevent Father from having unsupervised contact with them if they were returned to her. B. There Was Substantial Evidence to Support the Court's Finding of No Substantial Probability the Children Could be Returned Safely by the 18-month Deadline
Mother contends, in the alternative, the court erred in refusing to set an 18-month hearing and to continue reunification services pending that hearing. The court terminated reunification services to both parents because there was not a substantial probability of return to the parents by the 18-month deadline, which would expire in early December 2019. (See Tonya M. v. Superior Court, supra, 42 Cal.4th at pp. 843-848.) To receive the additional months of reunification services, a parent must meet all three requirements in section 366.21, subdivision (g)(1)(A) through (C), namely "(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child. [¶] (B) That the parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home. [¶] (C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 177-178.)
The trial court concluded it was not reasonably probable that Mother could assume custody of the children by early December 2019. The court emphasized it was not the domestic violence per se that had brought the family into the child welfare system; it was the very serious injury to Samantha, which will cause her lifelong difficulties, that brought them into the system. The court was especially concerned that 16 months after the fact Mother still did not believe Father had injured Samantha. The judge summarized her thinking: "[S]haken baby syndrome . . . does not happen by accident." "Either Mother caused the injuries or the father did, and she's protecting him."
Specifically, the court found Mother's testimony was not credible and what she told the social worker was not credible. Judge Flanagan was in a superior position to ours to assess issues of credibility, and we defer to her findings. (Guidici v. Guidici (1935) 2 Cal.2d 497, 503; City of Glendale v. Marcus Cable Associates, LLC (2014) 231 Cal.App.4th 1359, 1385 [" 'An appellate court does not reweigh the evidence or evaluate the credibility of witnesses, but rather defers to the trier of fact.' "]; Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1319, 1323, 1325-1326 [attorney fees award significantly reduced by trial court was affirmed on appeal where trial court implicitly made adverse credibility finding as to attorney's billing].) Put otherwise, "[t]he Court of Appeal is not a second trier of fact . . . ." (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021; see also In re E.M. (2014) 228 Cal.App.4th 828, 851; see generally In re Zeth S. (2003) 31 Cal.4th 396, 405-407; Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 875-880; id. at p. 877 ["Credibility, or lack thereof, is for the factfinder, not the reviewing court, to determine."].)
Once we accept Judge Flanagan's finding that Mother is not credible, we can place little or no weight on her promises or predictions of how things might unfold in the future. Even as to past events, the judge found Mother's "stories and descriptions of things very inconsistent and very self-serving." For instance, Mother initially testified that Father had merely pushed her in August 2017 and she broke her tooth when she fell to the ground. Judge Flanagan's finding, despite Mother's reluctance to cooperate, was that Father actually "punched [her] in the face."
The court was unimpressed with Mother's work on domestic violence, noting that 16 months into the dependency Mother had been unable to complete 52 weeks of domestic violence classes. Mother had initially resisted the domestic violence program because she felt she was being pressured to split up with Father. Mother's actions to date gave the court "no level of confidence that the problems that led to these children being before the Court have been alleviated or mitigated." The judge believed, "to this day, [Mother had been] minimizing the level of violence" in her relationship with Father and had not been "truthful about what happened to Samantha." Mother's efforts and progress in availing herself of the services provided were deemed only "partial." The judge did not believe that Mother had truly integrated into her life the knowledge she had gained in domestic violence classes and therapy.
The judge also expressed concern because there was "some level of ongoing contact" between Mother and Father. She did not believe Mother was being "truthful" with the court or with the Agency about the level of their involvement. The court evidently worried that Mother would relent and let Father have contact with the children, thereby inviting potential physical abuse.
The judge was further concerned about what the Agency referred to as a lack of "transparency" in that Mother "hides information" and "withholds" it from the Agency, which the court considered a "very dangerous situation for the children." The judge worried that Mother's own anger could flare up into violence against the children if her particular "triggers" were set off. The court also found unbelievable Mother's claim that the parents' domestic violence had never happened in front of their daughters. And the judge did not believe there had been only two incidents of domestic violence in the four years the couple had been together. The court's concerns were evidence-based and not irrational.
Judge Flanagan found the Agency had met its burden of showing by a preponderance of the evidence that the children could not safely be returned to Mother immediately, and Mother had failed to make the showing required to justify extending services to the 18-month mark. In fact, the court characterized the evidence as "overwhelming" in favor of the Agency's request to terminate reunification services and set a hearing under section 366.26. Although Mother had made efforts, the judge did not see "the level of significance" to rebut the Agency's showing.
We have reviewed the record and find the court's stated reasons for concern are supported by substantial evidence. Considering all of the record evidence, we are therefore constrained to affirm, given the level of deference we must give to Judge Flanagan's credibility findings. We must say, however, that while overall there is enough evidence of ponderable legal significance to support denial of writ relief in the sense that it is sufficiently reasonable, credible and of solid value to meet the test of substantiality, we do not read the record as overwhelmingly favoring the Agency here.
Quite to the contrary, we are troubled that, even though Mother was not physically responsible for Samantha's injuries, it appears she is being expected to admit something potentially incriminating about Father while lacking direct knowledge of the circumstances. We also find it troubling that, while a key factor in the court's detriment finding was Mother's ongoing relationship with Father, ending that relationship was not in Mother's case plan and no one from the Agency appears to have warned her that if she did not definitively separate from Father, she faced termination of services at the 12-month review hearing, even if she complied with the case plan.
If, given the passage of time as the section 366.26 hearing approaches, Mother remains separated from Father and can make a persuasive case for changed circumstances, the court may wish to entertain a section 388 petition for modification of the order terminating services in light of Mother's conduct and behavior since October 2019. Establishing materially changed circumstances may be a challenging burden for Mother to meet, but if it has become clear her relationship with Father has ended, perhaps she can make a credible case to have her children returned to her or to reinstate reunification services.
We leave it to Judge Flanagan to make the call should such a petition be made, but we make the observation as a way of underscoring that our denial of relief is not altogether without reservation.
III. DISPOSITION
The petition for extraordinary relief is denied on the merits. (§ 366.26, subd. (l)(1)(C); Rule 8.452(h); In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) Our decision is final as to this court immediately. (Rule 8.490(b)(2)(A).)
/s/_________
Streeter, J. We concur: /s/_________
Pollak, P. J. /s/_________
Tucher, J.