IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 19, 2011
IN RE N. B., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
D. E., DEFENDANT AND APPELLANT.
(Super. Ct. No. JD229364)
The opinion of the court was delivered by: Blease , Acting P. J.
In re N.B. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
D.E., the mother of 11-year-old N.B., appeals from an order of the Sacramento County Juvenile Court terminating dependency jurisdiction, awarding custody of N.B to her father in Alabama, and granting mother visitation.
On appeal, mother contends (1) there was insufficient evidence that returning N.B. to her care would create a substantial risk of detriment to N.B.'s safety and well-being, (2) the juvenile court abused its discretion when it failed to return N.B. to her custody and order family maintenance services, (3) in the alternative, mother was entitled to six more months of reunification services because the Sacramento County Department of Health and Human Services (Department) failed to provide reasonable services, (4) the requirement that mother pay for counseling services violated her constitutional rights, (5) there was insufficient evidence that it was safe to place N.B. with her father, (6) the juvenile court abused its discretion when it terminated its dependency jurisdiction, and (7) the court effectively denied mother visitation with N.B. when it ordered that the visits occur in Alabama and that she pay the cost of supervised visits. We shall affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2008, N.B. and her cousin E.E. reported that mother's then-boyfriend, L.J., had physically abused them. The Department substantiated the children's claim and advised mother that L.J. could not reside in her home or have contact with the children until he completed anger management classes. Mother agreed to have L.J. leave the residence.
In February 2009, N.B. told a social worker that L.J. often visited mother at their home. E.E. told the worker that L.J. lived in the home and shared a bedroom with mother.
In March 2009, mother refused a social worker's requests to enter mother's home and to have access to N.B.'s four-year-old half sibling, T.E. Mother later denied knowledge of the September 2008 investigation and denied remembering that L.J. was not supposed to be in her house. Two days later, mother stated she needed additional time to consider whether to accept voluntary family maintenance services. Two days after that, the maternal aunt (the mother of E.E.) reported to police that L.J. was in the family home. That same day, L.J. reported to law enforcement that the maternal uncle had assaulted mother. Police officers cited the uncle and mother for battery. Four days later, the uncle told a social worker that L.J. had never left mother's home.
On March 11, 2009, the Department filed a petition alleging that N.B. came within juvenile court jurisdiction in that mother failed to protect her from physical abuse by L.J.*fn1 (Welf. & Inst. Code,*fn2 § 300, subd. (b).) The petition alleged that the address of N.B.'s father, A.B., was unknown. The court detained N.B. and ordered that she have no contact with L.J.
Jurisdiction and Disposition
In a March 2009 interview for the jurisdiction and disposition report, four-year-old T.E. reported that mother and L.J. had physically abused her with a belt. She also reported that L.J. sometimes had hit mother and once had caused her forehead to bleed.
In a March 2009 interview, mother denied that she or L.J. had physically abused the children. She also denied any domestic violence between herself and L.J.
In March 2009, mother was given referrals to a parenting class, Women Escaping a Violent Environment (WEAVE) services, individual counseling, and drug testing. In April 2009, the social worker orally reiterated these referrals; in response, mother "just rolled her eyes" at the social worker. In April and May 2009, the social worker left messages for mother regarding her participation in services; she did not respond to either message. In May 2009, the social worker determined that mother had not begun drug testing and had not enrolled in a parenting class.
In a March 2009 interview, the maternal great-aunt, L.A., told the social worker that mother had left N.B. and E.E. in her care from September 2008 through February 2009, due to problems at mother's home. L.A. knew the children were not allowed to be around L.J. However, on three occasions prior to February 22, 2009, mother and L.J. attempted to return the children to their care by removing them from school or by abducting them as they walked home. On February 22, 2009, mother and L.J. succeeded in seizing the children as they walked. L.A. subsequently advised the Department that the children were back in mother's care and that she (L.A.) was concerned for their well-being because she had observed bruises on E.E. and because both children had advised her that L.J. had hit them with a belt.
L.A. advised the Department that mother and L.J. used ecstasy and marijuana. The maternal aunt, D.E., confirmed that mother and L.J. smoked marijuana on a daily basis. Mother admitted that she had tried marijuana once at age 16 but she denied any subsequent use of unlawful substances.
In March 2009, the social worker interviewed M.B., the father of mother's child, G.E. He reported that he and the mother had battled over child custody for three years. During that time, mother had abducted G.E. from Sacramento and had taken her to Contra Costa County. With assistance from the district attorney's office, M.B. located G.E. and obtained full custody of her. Since that time, mother has not attempted to contact G.E.
In May 2009, an amended petition was filed alleging, in paragraphs (a)(1) and (b)(2), that N.B. was at risk of serious physical harm in that mother had physically abused T.E. (§ 300, subds. (a), (b).) The petition also alleged, in paragraph (b)(3), that mother and L.J. had a history of engaging in domestic violence in front of T.E.
In July 2009, the juvenile court sustained the amended petition, adjudged N.B. a dependent child, removed her from mother's custody, granted mother regular visitation, denied the father visitation until he came forward, and ordered reunification services for mother.
Department's Request for Services for Father
In September 2009, the Department filed a Request to Change Court Order (JV-180) seeking court-ordered services and visitation for father who had requested visitation and consideration for placement of N.B. in Alabama. Father told the social worker that mother knew of his whereabouts, in that she had removed N.B. from school in Alabama without his knowledge and had brought her to California in December 2007. He had been paying child support for four years and was adjudicated the father of N.B. in March 2009. In October 2009 the court granted the request for services and ordered the preparation of a request that Alabama authorities evaluate father for placement pursuant to the Interstate Compact for the Placement of Children (ICPC).
Six-month Pre-Permanency Review
In a January 2010 pre-permanency review report, the social worker noted that mother had attended five group counseling sessions and, upon the therapist's recommendation, had been referred for individual counseling.
Mother's therapist advised the social worker that mother had "never participated with honesty" and had "presented information [that] was misleading." The therapist opined that mother "engages in a pattern of errors of omission," and if "a question or comment gives her [an] opportunity to leave out information, she will." The therapist reported that mother "would contradict herself repeatedly." Thus, after denying that she currently used "spankings" to discipline the children, mother conceded that they sometimes "need a 'pop' on their butt[s] to get their attention." After claiming that she had "learned a lot" during domestic violence classes, mother could not give examples of what she had learned or state how domestic violence affected her children. Although mother did not "want to depend on a man," she allowed L.J. to return to her home following the removal of the children because she "was devastated and needed support." The therapist noted that mother "displays behaviors of lying, manipulation, and contradiction," "is evasive and avoidant during individual sessions," "maintains a constant affect no matter [what] subject . . . is being discussed," and "responds with restricted emotion." The therapist recommended that mother undergo a psychological evaluation.
The children reported that mother was continuing her relationship with L.J.; moreover, the social worker had seen him transporting her to visits with the children. Thus, mother was not authorized to have unsupervised overnight and weekend visits with N.B.
At the pre-permanency review hearing, the juvenile court continued mother's services for six months and scheduled a permanency hearing. Progress reports were scheduled for February 2010 and April 2010.
The February 2010 progress report explained that, during late 2009 and early 2010, the ICPC evaluation of father had been delayed for several reasons which were mainly the responsibility of the evaluating agencies.
The April 2010 progress report noted that father's ICPC evaluation still had not been completed. However, father and N.B. were making progress in their telephonic conjoint therapy sessions. The progress report noted that mother had completed a psychological evaluation.
At the time of the psychological evaluation (March 10, 2010), mother had completed domestic violence group counseling, parenting classes, alcohol and drug testing, and 13 individual counseling sessions. Mother reported that she had ended her relationship with L.J. in October 2009.
The psychological evaluation determined that mother is "rather assertive, self-centered and likely has a rather grandiose view of herself and her abilities." The evaluator opined that "the difficulties which resulted in the current dependency action seem related to rather ingrained personality traits and characteristics involving [mother,] which may not be effectively addressed with short-term counseling and parenting classes. Her aversive response to close relationships may make it difficult for [mother] to form a therapeutic alliance and achieve progress in therapy. [Mother] is fairly self-centered and further counseling may be of limited benefit." Despite this poor prognosis, the evaluator suggested that mother have more individual counseling with a different therapist, focusing on "two specific areas[,] child protection and parental responsibility." The evaluator opined that, should N.B. be returned to mother's care, the home should be monitored to "help assure that [mother's] parenting of the children has become more appropriate."
12-month Permanency Review
The report for the June 2010 permanency review hearing recommended continued services for both parents. The ICPC evaluation had not been completed because fingerprints of father and the paternal grandmother had not been obtained. However, after a preliminary assessment, the Alabama State Department of Human Resources indicated it had no areas of concern should N.B. be placed in father's care.
The review report stated that mother was no longer in a relationship with L.J. and was now in a relationship with D.T. Mother stated that she had always believed that L.J. had physically abused the children.
Even when prompted by the social worker, Mother was unable to articulate what she had learned from her services. Mother was given a list of counseling agencies that could address the two issues identified by the psychological evaluation.
At the June 2010 hearing, the parties agreed to continue services for mother and an 18-month permanency review hearing was set. The juvenile court advised mother that, during her visits with the children, she should focus on activities that allow her to demonstrate her parenting skills, rather than activities that were merely fun and playful. The court found a substantial probability that the children could be returned to mother's care.
18-month Permanency Review
The August 2010 report for the permanency review hearing recommended a permanent plan of adoption by the maternal aunt and uncle. This alternative was recommended because father's work schedule had prevented him from completing the Alabama ICPC evaluation, and because mother had not made substantial progress on her case plan, nor was she able to articulate what she had learned from her services.
As of late July 2010, mother had contacted a few of the therapists recommended by the Department and was scheduled for an intake appointment; her counseling sessions had not yet begun. Father had completed a parenting education program and his conjoint counseling with N.B.
Mother opposed placing N.B. with the maternal uncle because, she alleged, he had molested mother when she was a child. However, in a subsequent meeting with the social worker, mother declined to repeat this allegation. Mother preferred that the children remain in foster care if they were not to be returned to her. She recently had provided information needed to conduct a criminal background check of her fiance, D.T.
Mother requested a contested hearing. She wanted the children returned to her care under dependent supervision while she continued her individual counseling. Father and N.B. requested that N.B. she be placed with him in Alabama; the Department did not object to this request.
At the contested review hearing, mother indicated that she was "currently in ongoing individual counseling that wasn't started until recently" because she had been required to wait to begin counseling, until first, the psychological evaluation was completed; second, the social worker advised her of appropriate providers of the counseling that the evaluation had recommended; and, third, she accumulated funds to pay for the counseling.
At the hearing, the social worker opined that mother did not benefit from domestic violence counseling because, although she was able to describe the "physical violence" component of domestic violence, she could not describe its other component, "mental abuse."
The social worker testified that, after the psychological evaluation recommended individual counseling, she twice gave mother a list of individual counseling providers: in late March 2010, and again in June 2010. Thereafter, mother's first (intake) counseling appointment was in mid-July 2010, and her last appointment was in mid-August 2010. The counseling was not completed because mother stopped coming to the appointments. The therapist told the social worker that she "questioned . . . mother's level of investment in the therapeutic process," because mother "was not taking in the information" and her "focus was to just bad mouth CPS [Child Protective Services] and her social worker."
The social worker recounted a conversation with mother in which she had given the telephone to her fiance, D.T., who began yelling and screaming at the social worker. He later apologized for having yelled and screamed. The social worker evidently was concerned that mother would not recognize D.T.'s yelling and screaming, which was something "other than physical abuse," as being a form of domestic violence.
The social worker testified that she was concerned about D.T., because he had told her that "there was nothing to be found if [she] completed a background check on him," when in fact he had a 1999 domestic violence conviction. The social worker expressed "concern" that D.T. had "lied" to her. She told mother that she would not allow D.T. to visit the children due to his domestic violence history, and mother responded that D.T. would no longer be a part of her life.
Mother testified that she and L.J. ended their relationship somewhere around September 2009, in part because of the physical abuse of the children. She denied that L.J. had taken her to a visit and claimed she had taken the bus. She met her fiance, D.T., on light rail coming home from one of her WEAVE classes in November or December 2009. He had told her about his prior domestic violence. Mother had contacted D.T.'s ex-wife to hear her side of the story, and mother was satisfied with what she had heard, because both D.T. and the ex-wife had told her the same version of events. Mother deduced that D.T. would be an appropriate mate for her, because he had been "very honest" about the prior incident, even though he "didn't have to tell" mother about it since it was "really almost none of [her] business." Mother did not tell the social worker about D.T.'s conviction because she had said she would do a background check on him.
Mother testified that she had received a referral for individual counseling from the social worker's supervisor. She had been charged $25 per counseling session and believed her first session had been in August 2010. Mother had attended five sessions but stopped attending because she was unable to pay.
On cross-examination, mother stated that L.J. had physically abused N.B. and conceded that she had spanked her children. However, mother had not used a belt on N.B.
Mother did not recall whether she had made various statements during earlier portions of the case. She stated the reason she did not want N.B. placed with her family members was because she was trying to "set up appropriate boundaries," as she was being taught in her classes. But she could not explain why such a boundary should be set up.
Mother did not recall the details of the domestic violence incident between D.T. and his ex-wife. Specifically, she did not remember which of them had initiated or perpetrated the incident or whether the ex-wife had sustained any physical injuries. Mother did not recall whether D.T. had obtained counseling to address anger control or domestic violence. Mother denied that she had introduced D.T. to her daughters as their "new daddy."
At the conclusion of the hearing, the Department recommended terminating dependency and returning N.B. to her father. The court followed the Department's recommendation and ordered that mother have supervised visitation with N.B. twice a year in Alabama with the cost to be paid by mother.
Mother contends there was insufficient evidence that returning N.B. to her care would create a substantial risk of detriment to N.B.'s safety and well-being. We disagree.
"In reviewing the sufficiency of the evidence on appeal, we look to the entire record to determine whether there is substantial evidence to support the findings of the juvenile court. We do not pass judgment on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order, and affirm the order even if there is other evidence that would support a contrary finding. [Citation.] When the [juvenile] court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. [Citation.] The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order. [Citations.]" (In re Cole C. (2009) 174 Cal.App.4th 900, 915-916.)
At the 18-month review hearing, the juvenile court must return a child to parental custody "unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.22, subd. (a).) "The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental." (Ibid.) The juvenile court is required to "consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which . . . she availed . . . herself of services provided . . . . (Ibid.)
In this case, the court found "there is a substantial detriment to return" because mother "has not completed the individual counseling and more importantly in many respects has not made substantive progress." The court noted that, in her testimony, mother was not able to articulate what she had learned in services, which was consistent with the social worker's assessment. The court also noted the social worker's testimony that, in the second round of counseling, mother was still evasive and was not making progress. The court stated it had been impressed, at first, with mother's testimony that she had investigated her fiance's background; yet when pressed for details, mother was evasive or had memory failure. The court found further evidence of mother's lack of progress in her inability to explain what she would do differently with respect to the children. This evidence was troubling for the court, because N.B. had already experienced trauma associated with domestic violence.
Unlike the mere "failure to 'internalize' general parenting skills" described in Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, at page 1751, the juvenile court in the present case found that mother had failed to demonstrate "awareness" that the children should never see or hear acts of domestic violence. Mother also had failed to recognize that her choice of life partners interferes with her ability to make safe choices for her children. Contrary to mother's argument, the case against her does not "boil down" to a "fuzzy notion" that she does not "believe what she has been taught." (Ibid.)
Mother counters that her difficulties in counseling are attributable to the Department, not to her, because her first 13 counseling sessions were "insight oriented" therapy that was not appropriate for her; and she lacked funds to attend more than five sessions of appropriate "behavioral" therapy. However, the psychological evaluator's "impression overall" was that "the problems in the home which resulted in the present dependency [proceeding] are probably more related to rather ingrained personality traits with [mother] which may not be particularly amenable to short-term services and counseling." The juvenile court could infer that, even with 13 or more additional sessions of short-term behavioral therapy, mother's condition would not have been materially different than it was at trial.
In sum, there was sufficient evidence that returning N.B. to mother's care would create a substantial risk of detriment to N.B.'s safety and well-being. (In re Cole C., supra, 174 Cal.App.4th at pp. 915-916.)
Mother contends the juvenile court abused its discretion when it failed to return N.B. to her custody and order family maintenance services. We disagree.
At the 18-month permanency review hearing, the juvenile court had discretion to return N.B. to mother and to order family maintenance services. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 311.) However, mother's lack of understanding as to how fiance D.T.'s domestic violence history posed a threat to N.B., despite mother having received domestic violence counseling, parenting classes, group counseling sessions, 18 individual counseling sessions, and conversations with social workers over the course of the 18-month reunification period, supported a finding that mother lacked the capacity to gain any further insight into these issues. Such a finding is further supported by psychological evaluator's conclusion that mother's rather ingrained personality traits may not be amenable to short-term services and counseling.
Moreover, there was evidence that mother had failed to comply with the Department's safety plan by allowing L.J. to reside with, or have contact with, the children. This remained a concern at the 18-month review because D.T., like L.J., had a domestic violence history. As the juvenile court noted, mother became evasive or forgetful when she was probed about the subject at the hearing. The court was not required to speculate that mother would obey a no-contact order with respect to D.T. when she had not done so with respect to L.T.
Thus, on this record, the juvenile court had no duty to consider placement with mother and family maintenance services as an alternative to placement with father. Its failure to do so was not an abuse of discretion.
Mother contends that, in the alternative, she was entitled to six more months of reunification services because the Department failed to provide reasonable services. In particular, she complains that the Department (1) waited two and one-half months to follow up on the psychological evaluation's recommendation of further counseling, (2) required her to pay for the counseling, and (3) failed to provide counseling that could be beneficial and ignored her request for a different counselor.
"[O]ur sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered. [Citations.]" (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)
The social worker testified that, after the psychological evaluation recommended individual counseling, she twice gave mother a list of individual counseling providers: in late March 2010, and again in June 2010.*fn3 In its ruling, the juvenile court found that the social worker was "credible," in that she was "careful in her answers," "did not overstate her testimony," and "was respectful and appropriate."
Mother contends there was no "credible evidence" that the social worker provided the list of counselors in March 2010. However, "'"'[t]o warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.'"' [Citation.]" (People v. Friend (2009) 47 Cal.4th 1, 41, quoting People v. Barnes (1986) 42 Cal.3d 284, 306.) Here, mother does not claim it was physically impossible that she received the list in March 2010; rather, she invites us to infer or deduce from the surrounding circumstances that the social worker's testimony is false. We decline the invitation.
Mother complains that the Department required her to pay for counseling, failed to provide counseling that could be beneficial, and ignored her request for a different counselor. However, as noted, the psychological evaluator concluded that mother was not particularly amenable to short-term services and counseling. Thus, even if the Department had paid for the counseling and provided the behavioral counseling ultimately recommended by the evaluator, there is only a speculative chance that mother could have received sufficient benefit to allow reunification. Thus, the record supports the juvenile court's finding that reasonable services were provided or offered. (Angela S. v. Superior Court, supra, 36 Cal.App.4th at p. 762.)
Mother contends the juvenile court's requirement that she pay for counseling services violated her due process and equal protection rights. In particular, she claims she "lost a meaningful opportunity to reunify with her daughter because she could not afford to pay for counseling." We disagree.
As we have explained, the record does not support a reasonable inference that additional short-term behavioral therapy sessions would have resulted in reunification. The evaluator predicted that behavioral therapy could "increase [mother's] restraint and control," help mother "tolerate guilt and . . . accept a measure of blame for the difficulties she has caused at home," and "help counter her belief that a problem can always be traced to another person." But the evaluator did not predict that any of these therapies would, for example, ensure that mother avoid future relationships with persons having domestic violence history and propensity. On this record, it is entirely speculative whether mother's inability to pay for therapy caused her to lose any meaningful opportunity to reunify with her daughter. For this reason alone, mother's constitutional claim necessarily fails.
The juvenile court found that "there is no substantial risk of detriment to returning [N.B.] to her father and terminating dependency." Mother contends there was insufficient evidence that it was safe to place N.B. with her father. We disagree.
Mother acknowledges that father, as "a nonoffending parent," has "a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so, in the absence of clear and convincing evidence that the parent's choices will be 'detrimental to the safety, protection, or physical or emotional well-being of the child.' (§ 361.2, subd. (a) . . . ." (In re Isayah C. (2004) 118 Cal.App.4th 684, 697.) Mother further acknowledges that the burden of producing clear and convincing evidence of detriment is on the Department (In re John M. (2006) 141 Cal.App.4th 1564, 1569, 1571), and that an appellate court reviews a finding of detriment using the substantial evidence test. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1825.)
Unlike In re Luke M. (2003) 107 Cal.App.4th 1412, on which mother relies, the Department in this case did not try to meet its burden of producing clear and convincing evidence that placement with father would be detrimental.*fn4 Quite the opposite, the Department ultimately recommended that N.B. be placed with father and the dependency be terminated. Mother provides no argument or authority for the proposition that the juvenile court erred by failing to find that there was a risk of detriment, even though the party with the burden had opted not to argue detriment. Thus, the statute did not compel the court to make a finding of detriment.
Mother also relies on section 366.22, subdivision (a), which provides in relevant part: "When a case has been continued pursuant to paragraph (1) of subdivision (g) of Section 366.21, the permanency review hearing shall occur within 18 months after the date the child was originally removed from the physical custody of his or her parent . . . . The court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. At the permanency review hearing, the court shall consider the criminal history, obtained pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of the parent . . . subsequent to the child's removal, to the extent that the criminal record is substantially related to the welfare of the child or the parent's . . . ability to exercise custody and control regarding his or her child, provided that the parent . . . agreed to submit fingerprint images to obtain criminal history information as part of the case plan."
In context, section 366.22 plainly requires the juvenile court to consider whether there is a "substantial risk of detriment" in returning the child to the physical custody of the parent from whom she was taken, i.e., mother. Moreover, like section 361.2 above, section 366.22 places the burden of proving detriment on the social worker. Where, as here, the social worker chooses not to seek a detriment finding, the juvenile court cannot be faulted for having failed to make the finding on its own motion. Mother has not shown error under section 361.2 or section 366.22.
The record shows that father participated in conjoint counseling with N.B., visited with her while he was in California, came forward as soon as he became aware of the dependency in August 2009, and participated in parenting classes. Moreover, in January 2010, N.B. told a social worker that she wanted to live with father in a permanent placement.
The September 2010 permanency review report states that N.B. had told a social worker she "would like to divide her time between her mother and father." The same report states that N.B. and her sister had "expressed that if they could not return to their mother's care they would like to live with their uncle and aunt." The report does not attempt to reconcile the two statements. Viewing them in the light most favorable to the juvenile court's order (In re Cole C., supra, 174 Cal.App.4th at pp. 915-916), we conclude N.B.'s omission from the latter statement of a reference to living with father was an oversight by N.B. or the authoring social worker.
As the Department notes, the possibility of placing N.B. with father had been under consideration for almost a year prior to the section 366.22 hearing.*fn5 During that time, N.B. participated in placement planning but did not express hesitancy about the placement, either because of the impact upon her sibling relationships or because of her relationship with mother. The juvenile court could infer that, at age 11, N.B. was capable of expressing concern for her sibling relationships if they had been an issue for her. Contrary to mother's argument, the court was not required to conclude that placement with father would be detrimental simply because N.B. would not be able to divide her time between father and mother as evenly as she evidently would have liked.
Mother cites 12 factors the juvenile court could have relied upon to support a finding that placement with father was detrimental. These include the fact that Alabama had been unable to complete its evaluation of father, due in part to his employment out of the area following the 2010 oil spill disaster in the Gulf of Mexico. But these factors "'only tend to establish a factual context which, had it been credited by the trial court, might have led to a different decision.'" (In re Charmice G. (1998) 66 Cal.App.4th 659, 664.) Mother's argument is meritless in light of the standard of review in this court. (Ibid; see Angela S. v. Superior Court, supra, 36 Cal.App.4th at p. 762; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)
Mother contends the juvenile court abused its discretion when it terminated its dependency jurisdiction. She relies on the following passage from In re Austin P. (2004) 118 Cal.App.4th 1124: "[W]hen a nonoffending non-custodial parent requests custody under section 361.2, subdivision (a), he or she is requesting sole legal and physical custody of a child. However, the court may not immediately grant that parent sole legal and physical custody. The court must first determine whether it would be detrimental to the child to temporarily place the child in that parent's physical custody. If there is no showing of detriment, the court must order the Agency to temporarily place the child with the nonoffending non-custodial parent. The court then decides whether there is a need for ongoing supervision. If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody. If there is a need for ongoing supervision, the court is to continue its jurisdiction." (Id. at pp. 1134-1135.)
Mother's reliance on Austin P., supra, 118 Cal.App.4th 1124 is misplaced because it involves section 361.2, which applies to a disposition hearing; the case did not consider the juvenile court's obligations at a permanency review hearing. Because conditions requiring the juvenile court's continued oversight were not shown at the permanency review hearing, the termination of court jurisdiction was not error under Austin P.
Mother contends the juvenile court effectively denied her visitation with N.B. when it ordered that supervised visitation occur in Alabama and that mother pay the cost of supervision. Mother claims the order violates her equal protection rights, evidently because she cannot pay the required costs. In mother's view, the constitutional violation could have been avoided by ordering father to bring N.B. to California twice a year.
The Department responds that mother is not treated unequally because, having twice abducted N.B. (from father and from the great-aunt) and having once abducted sibling G.E., she now poses a unique risk of fleeing again with N.B. We agree with the Department.
"The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d 522, 530.) Mother has not satisfied this prerequisite because she is not situated similarly to parents who have no history of absconding with children.
In this case, the juvenile court identified "the prior absconding issues" as a reason supporting its award of sole legal custody to father in Alabama. The court could deduce that, even though mother previously had succeeded in abducting N.B. from Alabama, the risk of further similar incidents would be minimized if mother's access to N.B. were limited to supervised visits in a different state.
Mother has not shown that she is situated similarly to parents who have no history of abducting children from lawful placements. Rather, mother's history makes her uniquely likely to engage in further acts of child abduction. The order that she pay for supervision of visits properly takes mother's unique history into consideration. She has not shown a violation of her equal protection rights.
The October 7, 2010, order placing N.B. with her father and terminating dependency jurisdiction is affirmed.
We concur: NICHOLSON , J. DUARTE , J.