Opinion
A151476
09-13-2017
T.T., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, ET AL., Real Parties 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J16-00064)
T.T. (mother) seeks extraordinary writ relief from an order terminating reunification services and setting a hearing under Welfare and Institutions Code section 366.26 with respect to A.T. (minor). Mother contends that (1) real party in interest, Contra Costa County Children and Family Services Bureau (Bureau), failed to offer her reasonable services; and (2) the evidence showed that the minor would be returned to mother's custody if reunification services were extended to the 18-month review. We will deny the petition.
Except where otherwise indicated, statutory references are to the Welfare and Institutions Code.
I. FACTS AND PROCEDURAL HISTORY
The seven-year-old minor advised the Bureau that on January 12, 2016, mother "whooped" her with a belt "all over [her] body," leaving bruises on her arms and legs, for "not being good at school." Mother also repeatedly slapped the minor, causing redness and bruising around her eye. The minor disclosed that mother had slapped her before. Her older siblings confirmed that mother disciplines the minor with a spatula or a belt and made one of them hold the minor down as mother beat her. A physician confirmed that the marks on the minor's arms and legs were consistent with being struck by a belt, and that it looked like someone had punched her in the face. Mother denied striking the minor with a belt, claiming that she had just grabbed the minor when the minor fell into a bush. Mother admitted that she disciplines the minor by spanking her with an open hand and using an "Easy Bake Oven spatula."
A. Jurisdiction
A petition filed under section 300 in January 2016 alleged that mother engaged in an ongoing pattern of inflicting serious physical abuse on the minor and failing to protect her from harm. In March 2016, mother submitted to jurisdiction under section 300, subdivision (a), with the petition being amended to read: "The child's mother has occasionally engaged in excessive physical discipline, the last incident occurring on or about January 12, 2016, which resulted in physical injuries to the child, placing the child at risk of harm."
B. Disposition
The Bureau's disposition report noted there had been prior referrals for mother's physical abuse of the minor's older sister. Mother continued to deny hitting the minor and did not feel the need for parenting or anger management classes. She displayed a "cold" affect when visiting the minor.
At the disposition hearing on May 2, 2016, the court removed the minor from mother's custody and ordered reunification services. Mother's case plan required individual therapy, anger management, parenting education, weekly visits, overnight visits upon Bureau authorization, and family therapy.
C. Six Month Review
In its November 2016 six-month review report, the Bureau recommended continuing reunification services to mother, noting that she was attending individual therapy, had completed a parenting class, and was enrolled in anger management classes. However, mother still did not acknowledge any need to change her parenting style. To the contrary, mother told the social worker: "There is nothing wrong with the way I parent my kids. . . . I am only doing these classes because I have to do them to get [the minor] back. I have no plans to change the way I parent and discipline [the minor]."
The Bureau's report also advised that the minor expressed a desire to be adopted by her foster mother. The minor had "recurring dreams of her returning to her [mother] who punches her in the head." The minor said she was afraid that, if returned to mother's home, she would not be able to take her toys and clothes and would no longer be able to see her therapist.
According to the minor's therapist, the minor said she was ready for overnight visits with mother, but she also disclosed that she felt she should be with family because mother had told her she should. Although the therapist had been opposing overnight visits, she agreed they could begin.
The court continued the six-month review for a contested hearing and ordered the Bureau to "explore family therapy" between mother and the minor.
By a memorandum to the court dated December 9, 2016, the Bureau reported that the minor's therapist and the therapist's supervisor agreed that family counseling was not appropriate due to mother's inconsistency with visitation and her statement to the Bureau that she had no plan to change her parenting style once the minor was returned to her care. Overnight visits had not occurred because the minor had only recently said she was ready for them. The Bureau was still concerned about overnights due to mother's avowed refusal to change her parenting.
At the contested six-month review hearing on December 12, 2016, the court found that the Bureau had provided or offered reasonable services and ordered continued reunification services. Overnight visits were authorized as long as mother proved to the Bureau that she was fully engaged in her case plan.
D. Twelve Month Review
In its report for the 12-month review, the Bureau recommended termination of services. Mother still saw no need to change her parenting style, she missed 54 percent of her scheduled visits with the minor, and mother's therapist reported that mother was unclear about the focus of her therapy.
The Bureau explained that it had not authorized overnight or unsupervised visits because the Bureau and the minor's therapist concluded that mother "needs more time learning to manage her anger." The Bureau also recounted mother's visit with the minor on March 3, 2017, at which mother asked her inappropriate questions regarding the dependency proceedings. Mother told the minor they were not going to play because she had some questions, pulled out a "court report," and questioned the minor even though mother's visitation agreement prohibited such conduct and the social worker expressly told her not to do so.
In light of these events, the minor's attorney filed a report supporting the Bureau's recommendation that reunification services be terminated, and asked the court to order no visitation with the minor until the contested hearing, order the Bureau to immediately look for a concurrent placement for the minor, and order a Court-Appointed Special Advocate (CASA). The minor's attorney advised that "[v]isitation between [the minor] and [mother] is not appropriate," that mother had "secretly recorded" a visit with the minor, and that mother had questioned the minor about the court report and whether she had "ever peed on herself in bed" at the March visit that occurred at a "Starbucks." The minor's attorney observed: "I cannot imagine how embarrassed and uncomfortable [the minor] felt being asked that question, and others, in a public place." Counsel added: "it has become extremely clear that reunification is unlikely."
Meanwhile, the minor's therapist renewed her opposition to overnight visits because mother and minor were not ready for them. Although the minor had said she was ready, she began playing more aggressively when the overnights were discussed. When asked why she said she was ready, the minor told her therapist, "I don't know. I want the presents [mother] has for me and I want to see my dog." According to the therapist, the minor believed she should be with her family because mother told her she should, which made minor feel guilty about her desire to be adopted by her foster mother.
At a contested review hearing on May 24, 2017, the social worker testified that, since the 12-month review report in March 2017, both the minor's therapist and the foster mother had reported that the minor was fearful about returning to mother's care, the minor's therapist told the social worker not to talk with the minor about returning to mother's home, and the minor would become aggressive when the therapist spoke to her about overnight or unsupervised visits, to the point that when they played "school," the minor would yell at the therapist and make her sit in a corner. Moreover, the social worker testified that the minor had told her that she was not ready for overnight visits. Mother never accepted responsibility for the minor's removal from her home and displayed an attitude that it was mother who was the victim.
According to mother's petition, the social worker testified that "mother had complied with all aspects of her case plan." That is not true. The social worker testified that she met "the majority of the case plan requirements" but did not even show an understanding of "why the Bureau is involved." (Italics added.) Mother also represents that the social worker testified that the minor's "therapist had stated that she was in agreement with the plan to allow [the minor] to begin overnight visits with her mother." She omits the social worker's testimony, recorded on the same page of the reporter's transcript, that the therapist changed her mind based on her interaction with the minor.
At the 12-month review hearing, mother continued to deny hitting the minor and her older sister with a belt and having her then-girlfriend hold the children down while mother beat them, despite the children saying otherwise. Mother accused both children of lying about her discipline.
The court terminated reunification services and set a section 366.26 hearing for September 20, 2017. The court observed that the children had no motive to lie in describing how mother punished them, found the social worker credible, and agreed with the Bureau as to the reasons unsupervised visits had not commenced. The court found that it would be detrimental to return the minor to mother, and there was no substantial probability that the minor could be safely returned home if services were continued to the 18-month review.
Mother filed a petition for extraordinary writ relief. Based on the representations set forth in the petition by mother's appellate attorney, we issued an order to show cause as to why writ relief should not be granted, and the Bureau filed an answer to the petition.
II. DISCUSSION
We begin with our concerns about the inadequacies of the writ petition.
A. Failure to Comply With the Rules of Court
Rule 8.452 of the California Rules of Court requires a petition seeking review of an order setting a section 366.26 hearing to include a memorandum that "must provide a summary of the significant facts" and should "note any disputed aspects of the record." Mother's petition does not provide a summary of the significant facts or the evidence supporting the court's decision, setting forth instead the evidence mother apparently thinks is favorable to her cause. The petition is therefore inadequate and in violation of rule 8.452(b). This in itself justifies denial of the petition.
Indeed, the petition's failure to disclose obviously material facts is troubling. The petition makes no mention of mother's stated refusal to admit there was anything wrong with her parenting style; mother's announcement that she was participating in classes just to get the minor returned; mother's statement that she had no plans to change the way she disciplines the minor; the minor's statement to the social worker that she was not ready for overnight visits; mother's public interrogation of the minor with embarrassing and inappropriate questions in violation of her visitation agreement and the social worker's warnings; the minor's attorney's concern with mother's conduct; and mother's refusal to accept responsibility for the minor's removal. This evidence was plainly germane to the issues mother raises in her petition. The failure to disclose evidence supporting the court's ruling precludes relief on the basis of a substantial evidence review. (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 52-53.) Moreover, as mother's attorney should know, we issue orders to show cause in these writ proceedings based on the representations made in the petition and memorandum.
This is not the first time that petitioner's attorney has failed to provide a summary of the significant facts and note disputed aspects of the record. (See, e.g., G.G. v. Superior Court (April 1, 2016, A147153) [nonpub. opn.].) If this occurs in a subsequent case, we may issue an order to show cause why sanctions should not be imposed. (See Los Angeles County Dept. of Children Etc. Services v. Superior Court (1995) 37 Cal.App.4th 439, 457 [counsel sanctioned for filing frivolous writ petition].)
An attorney's failure to abide by the rules requiring an adequate summary of the significant facts and notation of disputes has far-reaching consequences. We review the allegations of the petition and accompanying memorandum to determine if the petition raises an arguable issue. If we conclude it does not raise an arguable issue, the petition is subject to summary denial. (Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1514.) If we conclude it does raise an arguable issue, we order the superior court to show cause why the writ should not be granted, which prompts the real party in interest - the agency - to review an often voluminous record and respond to the petition, which in turn leads us to resolve the petition typically by a formal written opinion. If counsel's omission of the evidence favorable to the juvenile court's findings induces us to issue an order to show cause unnecessarily, the agency and this court devote time and resources that could have been more appropriately spent on petitions that legitimately do raise arguable issues. It also risks weeks or months of delay in the juvenile court proceedings, including potential postponement of the hearing under section 366.26.
Of course, we understand that an attorney for a parent in a juvenile dependency proceeding has an obligation to advocate zealously for the parent, and there are instances in which reasonable minds may differ on whether there was substantial evidence to support a juvenile court finding. Certainly counsel possessing a good faith belief that the evidence was insufficient may file the petition and make that argument; but in doing so, counsel must also candidly disclose the evidence that may reasonably support the court's finding (explaining it away, if appropriate). Zealous advocacy does not mean deceitful advocacy. (Bus. & Prof. Code, § 6068, subd. (d) [duty of attorney "never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law"]; Bus. & Prof. Code, § 6103 [violation of duties of an attorney constitutes cause for disbarment or suspension]; Cal. Rules Prof. Conduct 5-200 [in presenting a matter to a tribunal, attorney shall not seek to mislead the judge or judicial officer]; see also Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 579-584 [if counsel finds no arguable issue, counsel should not file a petition; if a petition is filed, counsel should be sanctioned or reported to State Bar].)
To underscore just how material counsel's omissions were in the matter before us, we next turn to the evidence in the record and conclude that the petition is utterly devoid of merit.
B. Merits
At a 12-month review hearing, the court shall order the return of the child to the physical custody of her parent unless the agency shows, by a preponderance of the evidence, that the child's return would create a substantial risk of detriment to the child's safety, protection, or physical or emotional well-being. (§ 366.21, subd. (f)(1).) There is no dispute in this proceeding that the minor should not have been returned to mother's custody at the time of the 12-month hearing. At issue here is whether, instead of terminating reunification services and setting a section 366.26 hearing, the court should have extended reunification services to the 18-month review.
Reunification services shall not be extended beyond the 12-month review hearing unless the court finds a substantial probability that the minor will be returned to the parent's physical custody and safely maintained in the home by the time of the 18-month review (assuming reasonable services were provided or offered). (§ 366.21, subd. (g); Cal. Rules of Court, rule 5.708.)
1. Reasonable Services
The agency must show, by clear and convincing evidence, that the parent was offered or provided reasonable reunification services. (§ 366.21(g)(1)-(2); Cal. Rules of Court, rules 5.708(c), 5.715(b)(1).) Services are deemed reasonable if they address the problems that led to the loss of custody, the agency maintained reasonable contact with the parent, and the agency made reasonable efforts to assist the parent in areas where compliance proved difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The question is not whether the services were the best that could be offered, but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) We review for substantial evidence. (Id. at p. 545.)
Mother contends the Bureau failed to offer her reasonable services because it did not provide unsupervised visits and family therapy. As the court found, however, the Bureau pushed for overnight (unsupervised) visits, and it was not unreasonable for the Bureau to consider the minor's behavior and the concerns of the minor's therapist in deciding not to exercise its court-ordered discretion to provide the visits. Nor was it unreasonable for the Bureau to decline to provide family therapy, since both the minor's therapist and the therapist's supervisor agreed that family counseling was inappropriate due to mother's inconsistency with visitation and her refusal to consider changing her parenting style if the minor were returned to her care. Mother provides no legal authority for the proposition that the Bureau must provide overnight visits and family therapy even though the child's therapist warns against them, mother denies responsibility for the beating she unleashed on the seven-year-old child, and mother refuses to alter her parenting style.
The petition contends "it is farcical for the agency to fail to provide the mother with family therapy services, and then take the position at the twelve-month hearing that the child cannot be returned to the mother due to the lack of family therapy - and seek the setting of a § 366.26 hearing, as well. The bar has never been set so low." Mother ignores the fact that it was her insistence on an abusive parenting style that led to the minor's therapist persuading the Bureau not to commence family therapy. It could reasonably be inferred that mother, by her own will, had not progressed to the point where meaningful family therapy could be provided. --------
2. No Substantial Probability of Reunification
The juvenile court has no authority to continue the case to the 18-month review unless it finds there is a "substantial probability that the child will be returned to the physical custody of his or her parent." (§ 366.21, subd. (g)(1).) To find a substantial probability of return, the court would have to find all of the following: (1) the parent has consistently and regularly contacted and visited the child; (2) the parent has made significant progress in resolving the problems that led to the child's removal from the home; and (3) the parent has demonstrated the capacity and ability both to complete the objectives of the treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs. (Id.) Substantial evidence - indeed, overwhelming evidence - supports the conclusion that none of those factors was met.
a. Visits
Mother contends in her petition: "In the instant case, the facts are uncontradicted that the mother . . . had regularly and consistently visited with her daughter, [minor], and the visits had gone well, with the minor asking when she was going to get to spend overnight visits with her mother."
Mother misrepresents the record. In the first place, while mother's visits had become more regular as time went on, she missed approximately 54 percent of her visits. Moreover, it was reasonable to conclude that the visits had not gone well. Mother fails to mention that she recorded a visit and interrogated the minor about a report - behavior so inappropriate that it prompted the minor's attorney to seek an end to visitation until the next hearing, a CASA for the minor, and a concurrent placement.
b. Significant progress
There is no evidence mother made significant progress in resolving the problems that led to the minor's removal from the home. To the contrary, the record suggests that mother did not make significant progress in this regard, in light of the social worker's report of mother's refusal to alter her parenting style or recognize the reasons for the minor's removal.
c. Capacity to complete plan objectives
Mother contends she demonstrated her capacity and ability to complete the objectives of the case plan by successfully completing a course of parent education and an anger management program, and engaging in individual therapy for seven months.
Mother's argument is meritless. As to her individual therapy, her therapist questioned whether mother was even clear about the focus of the therapy. As to her parenting and anger management classes, it could reasonably be inferred from the evidence that her attendance did not make a whit of difference. Mother fails to mention that, despite these classes, she did not acknowledge to the social worker any need to change her parenting, she told the Bureau she was going through the motions of taking the classes to get the minor back without any intent to change the way she disciplines her, she continually denied physically abusing her children with a belt even at the 12-month review hearing, and the social worker testified at the 12-month review that mother had never accepted responsibility for the minor's removal and continued to deny or minimize her abuse of the children.
Simply put, there was no evidence that the minor could be safely returned to mother's home within the two or so months before the 18-month review. The minor expressed fear and anxiety, and acted out aggressively, when the issues of overnight visits and return to mother's care were raised, and told the social worker she was not ready for overnight visits.
In light of the evidence in the record and the petition's failure to disclose it, we question whether mother's petition was filed in good faith.
III. DISPOSITION
The petition is denied.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.