IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
December 16, 2010
IN RE N.P. A PERSON COMING UNDER THE JUVENILE COURT LAW.
M.G. ET AL., PETITIONERS,
THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, RESPONDENT; SAN FRANCISCO HUMAN SERVICES AGENCY, REAL PARTY IN INTEREST.
(City & County of San Francisco Super. Ct. No. JD08-3283)
The opinion of the court was delivered by: Pollak, Acting P.J.
In re N.P. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The father and mother of two-year-old N.P. each petition for review of an order denying them reunification services and setting a permanency planning hearing under Welfare and Institutions Code section 366.26.*fn1 Father contends the juvenile court erred in terminating reunification services, setting a permanency planning hearing and in denying his request for unsupervised visitation with N.P. Mother contends the trial court erred in refusing her an additional six months of reunification services and in setting the matter for a permanency planning hearing. We conclude that the court's findings are supported by substantial evidence and shall deny the petitions on the merits.
A dependency petition was filed in October 2008, three days after N.P. was born, alleging that N.P. was "at a substantial risk for serious physical harm inflicted nonaccidentally by the mother or the father who are currently involved in a relationship that is characterized by violence." The petition alleges that mother tested positive for marijuana at delivery, that she had a substance abuse problem for which she was receiving treatment, that mother had left father to stay at a domestic violence shelter "several times in the past," that mother's family had 30 child welfare referrals for allegations of abuse and neglect, that mother had extensive mental health history for which she was receiving treatment, and that father had anger management issues for which he was receiving treatment.
The report prepared for the detention hearing states that mother reported that father "pushed a sword against [mother's] chest and threatened to 'cut that baby right out of her stomach,' " that approximately one month before N.P. was born mother was observed by hospital staff to have "what appeared to be choke marks on her neck and reported that [father] choked her and dragged her across the room." Father reported that "his violent behavior is in reaction to [mother's] violence towards him. [Father] conceded that he choked and pushed the mother because she was trying to throw boiling water at him." The report also stated that mother had extensive psychiatric issues including severe depression, borderline personality disorder, post-traumatic stress disorder, manic depression with possible psychotic features, and auditory hallucinations. She was prescribed multiple drugs, but told the social worker that "medication does not work for her because she just feels worse, like a zombie, and she doesn't feel any relief from her painful depression, anger or anxiety." Mother was receiving anger management counseling.
On October 15, the court ordered N.P. detained and issued a mutual stay away order to father and mother. Another mutual stay away order was issued on November 12. A disposition report was filed on November 21 in which the social worker reported that mother had acknowledged that she often instigated the violence in her relationship with father, including having thrown boiling water at him in the incident described in the detention report.
At the time of the disposition report, mother was receiving services including "anger management, art therapy, detox acupuncture/holistic healing, women's empowerment, connecting/coping, and prostitution/domestic violence classes." She had completed two parenting classes. Mother's medical records from July 4, 2008, reflected that she had been experiencing auditory hallucinations for "the past few months," including hearing voices. On October 22, mother was receiving individual therapy and was on psychotropic medication. She had a medical marijuana card and was using marijuana "to treat anxiety, depression and her appetite."
Father was enrolled in a year-long "batterers intervention program to address domestic violence" and had completed a different domestic violence program.
N.P. was placed with a relative of mother. Mother and father both had a supervised visitation schedule.
The disposition report recommended that reunification services not be provided to father because he had not obtained presumed father status. It recommended services for mother, including that she continue to visit with N.P., that she complete substance abuse, domestic violence, and anger management programs, that she comply with the stay away order, and that she continue to receive mental health services.
On December 8, the court declared father to be the presumed father of N.P. An addendum report was filed recommending that father receive reunification services, including that he comply with the stay-away order, that he complete an anger management program, that he visit N.P. regularly, and that he participate in individual counseling.
On March 12, 2009, mother and father submitted to the allegations and the court found that a factual basis existed for the allegations. The court found that mother and father had both made moderate progress in their case plans and that N.P. could likely be returned to their custody by September 2, 2009. Services were offered for an additional six months and a hearing was set for September 2.
On May 18, father filed a request for a change in court order under section 388 asking that he be allowed unsupervised visitation with N.P. The request stated that father had engaged in supervised visitation since October 2008, that he had demonstrated that he knew how to care for N.P., that there were frequent problems with transportation such that N.P. was required to stay for long periods in a car, and that he would be willing to drive to where N.P. was placed to visit with her. A hearing was set for July 6. The record does not reflect a hearing on that date and father's request for change in order was not heard until the 18-month review in September 2010.
A status review report was filed on August 14, 2009, in advance of the six-month review hearing on September 2, 2009. The social worker reported that mother "is committed to reunifying with her daughter. She continues to be punctual to her scheduled visits. . . . [Mother] carries her own diaper bag and attends to her daughter's needs during the visit[s]." However, mother's supervised visits were cancelled as of June 26, 2009, because mother engaged in a physical altercation with her 11-year-old cousin and mother's grandmother was hit while trying to intervene. Mother had completed a 26-week anger management program and continued to attend an anger management group. She had a positive relationship with her therapist, whom she saw weekly. Mother was also attending a peer support group.
At the time that the report was written, father was incarcerated for a probation violation. Before being incarcerated, father regularly attended anger management classes and supervised visits.
The status review report states that mother had completed testing for her psychological evaluation on June 3, and that mother had last met with the doctor who prescribed medications in May 2009. Mother would not confirm that she was taking her medications and the doctor stated that she believed mother was not doing so. Nevertheless, the social worker reported that mother appeared "to be willing to give medication another try." Mother had been attending weekly therapy sessions and was reported as being in compliance with the condition that she remain under the care of a mental health professional. Mother had completed the required anger management program, had visited with N.P. regularly, and completed a substance abuse program.
Father was reported to be attending an anger management program, complying with the stay-away order, and visiting with N.P. regularly prior to incarceration.
Despite substantial compliance on the part of father and mother, the social worker concluded that "[t]here is a need for continuing court intervention and placement, and return of the child at this time would be detrimental to the safety, protection, or emotional or physical well being of the child, because the parent needs to continue to work on the initial concerns addressed by the court and the department that were detailed in the original petition. [Mother] needs to continue to work on her anger management and mental health issues and [father] has satisfied his warrants and legal obligations and continues to work on his anger management and has beg[u]n individual therapy." The social worker recommended an additional six months of services "because the parents have consistently and regularly complied with court-ordered services and demonstrate an ability to meet the objectives of the service plan if services are continued, in that both parents have made tremendous strides in addressing the department's concerns . . . , they have expressed an interest in reunifying with the minor and they are actively participating in services to alleviate the issues which brought them to the attention of the court and the department."
N.P. remained placed with the relative with whom she had been living since shortly after birth. She was described as "a 9-month-old healthy baby girl," and the social worker reported that the relative "takes very good care [of] her."
At the six-month review hearing on September 2, 2009, the court continued N.P.'s out-of-home placement while finding that the parents had made substantial progress in their case plans, and ordered that the permanent plan was the return of N.P. to their home. The court set a further hearing for March 3, 2010, and ordered another six months of services. The court also ordered that mother's unsupervised and overnight visits be increased.
On February 16, 2010, the social worker filed a status review report for the 12-month hearing recommending that N.P. remain in her out-of-home placement, that services to father be terminated, that mother's services be continued for an additional six months, and that the matter be set for an 18-month review on April 14, 2010. The report states that mother was engaging in services in an effort to reunify with N.P. and that she was seeing two therapists and a psychiatrist, though mother refused to provide the social worker with the name of the second therapist. Mother was keeping N.P. for unsupervised visits from Sundays through Wednesdays each week and, while the social worker reported that mother "appears to be doing well in general," "[t]here is a concern about [her] anxiety and how it effects how she cares for the minor."Mother had completed an anger management course and substance abuse assessment as ordered.
Mother was reported to have "stopped attending therapy sessions on a regular basis in November 2009," but resumed regular attendance in February 2010. Her therapist had expressed concern that mother needed to continue to attend regular sessions "to learn ways to make healthy decisions and control anxiety in positive ways." Mother had also violated the stay-away order by contacting father. The social worker expressed concern that, while mother was "very resourceful in finding services," she "may be hopping from program to program to avoid dealing with her issues." The social worker also noted that mother's service providers had observed that she "will need to be in therapy for a long time to help with her reality testing and to get control of her anxiety . . . ."
Father was reported to have been released from custody on February 7, 2010, but the social worker had not been in contact with him and did not know where to locate him.
N.P. was reported to be "a healthy, well-groomed and well-adjusted baby girl. She is developmentally on target and appears to be attached to her mother, caregiver and other extended family members."
The report recommended continuing services to mother for an additional six months "because the mother has consistently and regularly complied with court-ordered services and demonstrate[d] an ability to meet the objectives of the service plan if services are continued . . . ."
On March 3, 2010, the court continued jurisdiction over N.P., finding that mother had made significant progress and father had made moderate progress towards reunification. The court set April 14 as a likely date for return of N.P. and dissolved the stay away order.
Although no application or evidence of new violence appears in the record, on March 30 the court entered another mutual stay away order against both parents. On April 14, the court continued the 18-month review hearing to May 12. On April 23, the department filed a status review report recommending that N.P. be returned to mother under supervision of the department, and that reunification services for father be terminated. The social worker reported that mother "has addressed the issues which brought her to the attention of the court and the department. She has consistently engaged in services to alleviate the concerns which were outlined in the original petition." Mother had moved into a transitional substance abuse program and continued to engage in individual and group counseling, and was reportedly taking her prescribed medications.
The social worker reported that on February 10, father came to the department "unannounced stating he had come to check in." Father stated that "his sister had passed away on January 31, 2010. He stated he was no longer on probation and did not have any charges pending against him." Father had resumed counseling. On March 7, father left the social worker a voicemail message "stating he believes that [mother] is not taking her medication because she had a mental breakdown, called the police on him and had him arrested. Two hours later he left a voice mail message stating he was sorry and that he was really really having a bad day and nothing happened." Father told the social worker that he had spit in mother's face.
On March 22, father provided the social worker with a letter from a therapist stating that he "had been under her care and treatment for the past couple of months and recommended unsupervised visits with his daughter." The social worker was skeptical because she knew that father had been incarcerated and was only released on February 7 and she contacted the therapist. The therapist "admitted that she only saw [father] on March 18, 2010 and at that time he made a commitment to see her on a weekly basis."
The report also stated that father had gone to mother's home on March 7, "after clearly being told in court on March 3, 2010 that he was not to be around the minor while she was in the care of [mother]. He got into an altercation with [mother], reported the incident to [the social worker] and then turned around, two hours later, and stated nothing happened."
The 18-month hearing was continued to June 30. On June 15, father filed a request for unsupervised visitation.
On June 30, the department filed an addendum report. This report recommended that N.P. not be returned to mother. The social worker reported that on April 28, mother called to say that she had seen father on the street and that he had taken N.P. "and she did not know where he was." The social worker contacted father's attorney, who arranged for N.P. to be returned to mother. Father then told the social worker that mother "brought him the minor because she needed to go smoke. He states he had the minor for approximately one hour and took the minor to the park. [Father] stated he was . . . at the . . . Vet Health Center seeing his case manager, Carmen. He stated that [mother] came to the health center and gave him the minor."
On April 29, parents' couple's counselor contacted the social worker to report that mother said that N.P. "got into rat poisoning . . . and was crying. [The therapist] reported that mother had said that the minor had white stuff on her mouth and it was hard for her to respond to her child because she was on Valium and Oxycontin and was too tired to figure out what was going on with her." The therapist also believed mother was taking her medications but was not being seen by a psychiatrist.
On May 6, the social worker met with mother, mother's counselor and mother's therapist at the transitional housing. The counselor and the therapist believed that mother's placement there was inappropriate because she was using medical marijuana and psychotropic drugs and the house was a sober living environment. Mother told the social worker that she was prescribed Valium and Oxycontin when she went to the hospital to have a cyst removed. The counselor confirmed that N.P. had touched rat poison while in the house. Mother confirmed to the social worker that she had lied about father taking N.P. on April 28. Mother "admitted that she had made a mistake and then freaked out because [father's] phone was not on. [Mother] stated that she had made up the story because she did not know what else to do. She stated that she realized it should not have happened and she should have taken more responsibility and that it won't happen again. While talking about this incident, [mother] showed no emotion or remorse. [Mother] then talked about feeling as if she did not have time to do things for herself, such as attending school and that she needed childcare for her child."
The social worker succeeded in finding an alternate placement for mother, who entered the new residential program on June 10, 2009. On June 16, a staff member contacted the social worker to inform her that mother "was refusing to participate in their program, stating that drugs were not an issue for her." The staff member also stated that mother "was being disrespectful to staff, was stating that she had been clean for two years, and was scaring other clients because she was threatening staff, stating that she would take everyone down and that she needed pain medication, and had gotten angry with her doctor when she refused to prescribe more pain medication." Mother was discharged from the new program. She told the social worker "that she was living here to there and had no direct address." Mother stated that she was living with a friend but when the social worker asked for an address, mother "stated she did not have to provide it." On June 28, mother completed intake for a different, nonresidential program. Mother's therapist believed that mother could not care for N.P. by herself "because she lacks focus, becomes very anxious, her decision making skills are not healthy, and she does not have a healthy support network."
On June 22, father's counselor informed the social worker that father had not attended counseling in a month. Father had tested positive for marijuana and reported that it was because "he ate a friend's birthday cake which had marijuana in it." Father acknowledged that he had been expelled from his treatment program "but does not know the reason why and could not remember the name of the house manager who told him to leave."
The 18-month review was continued to September 22.
On July 28, the social worker filed a request that the court require supervision for visits with both parents because mother had been allowing father to attend her unsupervised visits in violation of the stay-away order.
On August 12, mother filed a request for a restraining order, alleging that father forced her grandmother to write checks, had sent abusive voice and text messages, and had filed a false police report.
On September 22, 2010, at the 18-month review, the social worker testified to the continuing violence in the relationship. In one incident mother struck father because "she felt that father was following her and he wouldn't leave her alone . . . ." In another incident in March 2010, N.P. was in the arms of one of her parents when parents had an altercation. Mother was also involved in another "physical altercation with her 11-year-old cousin" on June 26, 2009, when N.P. was present. On another occasion mother entered a social services program, approached a woman who was using a computer and "attacked her from behind."
The social worker testified that when she had recommended reunification in the original report, mother "was in a program, a supportive environment and we were comfortable with placing the minor in her care. However, between writing the report and the status review report and the addendum report, mom was terminated from a program. And it was not recommended by her therapist at the time that she should care for the child full time." The social worker also testified that she was concerned about mother's "anxiety, her long history of trauma, her volatile relationships with men that she chooses. And [mother] has been demonstrating that these are still concerns" "because the parents had no contact orders and a restraining order at one time." She also testified that the parents' couples counselor had told her that "couples therapy . . . wasn't a good idea."
The court found that "both parents have made efforts to reunify with the child and, in some respects, have satisfied those requirements," but emphasized that the 18-month reunification period had lapsed and that "the domestic violence that has arisen is the central focus of the court's concern with respect to the child being returned to the mother and the volatile relationship between both parents." The court found that both parents had made minimal progress in their reunification services and set a permanency planning hearing under section 366.26 for January 26, 2011. Both parents have filed writ petitions challenging that order.
When a child is removed from a parent's custody, the juvenile court must order services with the purpose of reunifying the family. (§ 361.5, subd. (a).) If the child is under three years of age on the date of the initial removal, reunification services may not exceed 12 months . . . . (Id., subds. (a)(1)(B).) The court may, however, extend reunification services up to 18 months from the date of removal if find "a substantial probability that the child will be returned to the physical custody of his or her parent . . . within the extended time period." (Id., subd. (a)(3).) "[T]he juvenile court has the statutory authority, on a proper record and after conducting a hearing, to exercise its discretion and terminate reunification services at any time. In doing so, the court must consider all of the circumstances before it, and its determination must be based on a careful exercise of its discretion." (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1237.)
"Absent extraordinary circumstances, the 18-month review hearing constitutes a critical juncture at which 'the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children.' " (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 596.)
Each parent argues that the court should have returned N.P. to them. The court's finding that the parents continued to engage in a violent relationship with each other that poses a threat to N.P. was supported by substantial evidence, as the above recitation of the evidence clearly demonstrates.
Parents also argue that the trial court erred in setting the permanency planning hearing because reasonable services had not been provided. "At the critical juncture of the 18-month hearing, the authority of the juvenile court to set a section 366.26 hearing is not conditioned on a reasonable services finding." (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1511.) In any event, both parents were offered services and for the most part completed them. The court based its decision to terminate services and set a hearing under section 366.26 largely on the fact that mother and father continued to have a volatile relationship characterized by violence. Father argues that he and mother were not offered couples counseling to address the domestic violence. It is true, as father notes, that the social worker testified that she did not provide a referral for couples counseling because of the stay away order, and that the stay away order provided an exception for counseling. Nonetheless, there was substantial evidence, which the court cited when making its order terminating services, that encouraging the parents to stay together through counseling would not have been in the child's best interests. The couples counselor recommended that the parents not receive couples counseling because of the violent nature of their relationship. Mother called her pastor and mentor, Toni Dunbar, to testify at the 18-month review hearing. Reverend Dunbar testified that she had counseled mother to "abide strictly with" the stay-away order and "that she begin to work on ways to separate from [father]. Even though he is very important to her and to [N.P.], as a father of the child, it is difficult for her to separate from him. He's . . . he's very compelling to her." The court cited Dunbar's testimony that the parents needed to separate and observed that, "the two parents who are sitting here in front of me have . . . the kind of relationship that's been marked with violence. And to suggest that a program is going to materially change that would seem a bit overly optimistic and that to me is what the real rub is. [¶] . . . [I]t's not that mom hasn't done a lot of things. That's not really being disputed. It's not that the father hasn't done a lot of things. It's just that . . . when the two of them are around . . . one another, good things do not happen. And that has the effect potentially on the child. And it seems to me that is the overriding concern that exists."
The social worker testified that she had never completed home visits for father because she "completed a background on his roommate, and based on that, I didn't feel safe." She testified that the roommate had "[a] history of assaults, domestic violence." Father argues that the department should have informed him of its concerns about his roommate and provided him with housing referrals. However, father was not denied further reunification services because of these issues. The social worker testified that although father had completed an anger management program, he continued to engage in a violent relationship with mother and that she "believe[s] he has a lot to do with instigating what's going on between the two of them." She testified she believed that both parents' inability to control their anger would be detrimental to N.P. if she were returned to the care of either parent. Father also violated the stay away order by attending mother's visitations and failed to engage in services after he was released from incarceration. The court found that father's progress on his services was "minimal." "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." (§ 366.22)
Finally, father contends that the court erred by not considering his seven-month period of incarceration during the reunification period. However, his inability to participate in services during that seven-month period was not a significant factor in the decision to terminate his services. As just indicated, there was evidence that his participation and progress over the entire 23 months that the proceedings were pending, including the seven months between the time of his release and the 18-month review hearing, was minimal. Section 361.5 sets the time for reunification services at six months if the child is under the age of three at the time of detention. Services may be extended only if there is a substantial probability of reunification and then they may be extended only to 18 months. "[A]t the 18-month benchmark, the focus of a dependency proceeding, shifts to the child's needs for permanency and stability." (Denny H., supra, 131 Cal.App.4th at p. 1510.) In this case, not only was the six-month period extended but the 18-month review was not held until 23 months after N.P. had been detained. The court was under no obligation to further extend services to father.
Similarly, the court did not abuse its discretion when it denied father's request for unsupervised visitation. " 'The [party] requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is preponderance of the evidence. [Citation.]' [Citation.] Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld." (In re S.R. (2009) 173 Cal.App.4th 864, 870.)
There is no doubt that both father and mother love N.P. and made positive strides in their reunification plans. Nevertheless, after almost two years, the focus must be on creating permanency and stability for a young minor. Here, sadly, the parents were not able to rectify the conditions that led to dependency even within an extended time period. The record reflects that N.P. is happy and well adjusted in her placement, that the relative with whom she has been living is the likely permanent placement, that this relative is amenable to continuing contact between N.P. and her parents, and that the department is advocating for continuing visitation. We can discern no abuse of discretion in the juvenile court's disposition of these delicate matters.
The petition for extraordinary relief is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894.) Since the permanency planning hearing is set for January 26, 2011, our decision is immediately final as to this court. (Cal. Rules of Court, rule 24(d).)