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In re Matthew C.

California Court of Appeals, First District, Fourth Division

March 17, 2017

In re Matthew C., A Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent,
STEPHANIE M., Defendant and Appellant.


         San Francisco City & County Superior Court No. JD15-3323 Hon. Susan Breall Hon. Robert M. Foley Trial Judges.

          Counsel for Appellant: Nicole Williams, Mariko Nakanishi.

          Counsel for Respondents: City Attorney, Dennis J. Hererra, Lead Attorney, Kimiko Burton, Gordon-Creed, Kelley Holl and Sugarman, Jeremy Sugarman, Ada Lau.

          REARDON, J.

         In these consolidated dependency actions, Stephanie M. (mother) contests the juvenile court's detention and dispositional orders temporarily denying her visitation with her young son-Matthew C. (born October 2015). Specifically, she argues that the juvenile court abused its discretion in suspending visitation between mother and son because there was no evidence that monitored visitation would have been contrary to the minor's safety. In addition, mother challenges by writ petition the juvenile court's October 2016 decision to terminate her reunification services with respect to Matthew and refer the boy for permanency planning pursuant to section 366.26 of the Welfare and Institutions Code.[1] In particular, mother disputes the evidentiary bases for the juvenile court's findings that she failed to participate regularly and make substantive progress in court-ordered treatment, that there was no substantial probability that Matthew could be returned to her care within statutory timeframes, and that reasonable services were provided to her. In the published portion of this opinion, we join the Third District in concluding that parental visitation may be denied during the reunification period if such visitation would be inconsistent with the physical or emotional well-being of the child. (See In re T.M. (2016) 4 Cal.App.5th 1214 (T.M.).) Using this standard, we affirm the juvenile court's challenged visitation orders. In the unpublished portions of this opinion, we consider and deny mother's writ petition.

         I. BACKGROUND

         A. Initial Dependency Proceedings

         On October 23, 2015, the San Francisco Human Services Agency (Agency) filed a dependency petition pursuant to subdivisions (b) and (j) of section 300, alleging that Matthew C.-the minor who is the subject of these proceedings- had suffered, or was at substantial risk of suffering, serious physical harm or illness due to his parents' substance abuse and domestic violence.[2] In addition, the petition alleged that mother had three older children, none of whom were in her care. Specifically, mother's daughter was in a legal guardianship with the maternal grandmother; her oldest son had an open dependency case in Santa Clara County where he was residing in a residential program under a permanent plan of long-term foster care; and the youngest of the three, also a son, had been privately adopted.

         In its detention report filed the same day as the petition, the Agency stated that the police-responding to a domestic disturbance call on October 20, 2015, at approximately 2:00 a.m.-found mother and father drunk. According to mother, after a few hours of verbal attacks, father had slapped her three times across the face. She had punched him on the cheek, leaving a mark. All of this occurred within three feet of newborn Matthew and despite the fact that mother had an active restraining order against father.

         When mother and father were interviewed by Agency social workers the morning after the domestic dispute, both parents still appeared to be under the influence. Moreover, as the social workers approached the residence, father was seen outside with a 40-ounce beer, yelling “ ‘take the baby away from her. She doesn't deserve it.' ” That same day, father was arrested for disorderly conduct and public intoxication. Mother reported that father had had a drinking problem for as long as she had known him (approximately two years), but claimed that she had been sober for about a year. Prior to that time, mother had convictions for misdemeanor public intoxication in November 2013 and July 2014. In addition, mother had previously been diagnosed with bipolar disorder.

         At the initial detention hearing on October 26, 2015, the juvenile court temporarily detained Matthew in foster care and continued the matter to the next day for further hearing. On October 27, the court confirmed the previous detention orders, made visitation orders, and authorized the Agency to release Matthew to mother at a residential treatment program, with the understanding that she would not leave the program with the child.

         In its combined jurisdictional and dispositional report dated November 12, 2015, the Agency recommended that Matthew be declared a juvenile court dependent and that he reside with mother in residential treatment under a family maintenance plan. The Agency also provided some additional background with respect to mother's drinking and mental health concerns. On the issue of mental health, mother reported that she was originally diagnosed with bipolar disorder when she was 15. Although she was prescribed medication, she did not take it as directed because she did not believe she needed it. Rather, she ascribed her out-of-control behaviors to teenage rebellion. After the petition in this matter was filed, mother entered the Jelani House residential treatment program on October 31, 2015, and discussed her mental health history with the staff psychiatrist there. According to mother, both she and the psychiatrist felt that a diagnosis of severe anxiety was more fitting, and thus mother was given a prescription to treat that condition.

         With respect to her drinking, mother had gastric bypass surgery in 2008 and began drinking excessively in 2009 in the wake of her divorce. She had a history of homelessness since that time. Mother admitted that she was aware that she was not supposed to drink alcohol after a gastric bypass because the body absorbs it in an unhealthy manner. Nevertheless, mother continued to drink, stating that the only times she made conscious efforts to reduce or discontinue her consistent use were during her two most recent pregnancies. Mother admitted, however, that, while pregnant with Matthew, she had relapsed a “couple of times.”

         Moreover, mother acknowledged that spending time with father was a catalyst for her drinking. In the early stages of her pregnancy with Matthew, she reported going to a five-day detox program, to Safe Harbor for a month, and then to a three-month program in Santa Clara County, which helped her maintain her sobriety by offering her housing stability. Mother conceded that, during this time, father was in and out of jail, which added to her ability to remain sober. Nevertheless, mother reunited with father once he got out of jail, in hopes that they could be a family.

         Mother also minimized the domestic violence occurring between the couple, despite the fact that, at the time of detention, there were four active restraining orders against father which named mother as the protected person. Further, although father had been convicted in March and June 2015 for restraining order violations, mother claimed not to remember the details of the incidents and downplayed their significance. Finally, father also had a history of domestic violence with other partners, with convictions in 2005 and 2012, as well as a conviction for willful cruelty to a child in 2008.

         On the other hand, once Matthew was detained, mother took quick steps to enter a residential treatment program to address her substance abuse and separate herself from father. Further, neither mother nor Matthew tested positive for any substances at the time of the minor's birth, mother had received consistent prenatal care for Matthew, and mother cared for the infant in the first days of his life. In addition, mother expressed her desire to abide by the terms of the restraining order, and, if necessary, to prioritize her son above her relationship with father. Finally, according to the social worker, mother acknowledged the seriousness of domestic violence in any relationship, and an “in-depth conversation” was had with mother “regarding the potential disastrous outcome of another domestic violence incident in the presence of her young child.” On this basis, the Agency recommended that Matthew be placed with mother under a family maintenance plan, on the condition that mother continued to reside in a residential treatment program.

         At the combined jurisdictional and dispositional hearing on November 17, 2015, the juvenile court-after making certain alterations to the petition-determined the allegations in the amended petition to be true and found Matthew to be a child described by subdivisions (b) and (j) of section 300. Thereafter, the court declared Matthew to be a juvenile court dependent and placed him with mother under a family maintenance plan. This in-home placement was expressly contingent on mother remaining at, and in compliance with, her residential program. Further, mother was ordered to engage in a service plan that, in addition to requiring completion of a residential drug treatment program, included participation in a domestic violence support group, individual therapy addressing trauma and domestic violence, and treatment by a qualified mental health professional. “Supportive services” were recommended for father as the non-custodial parent. A six-month review was set for May 2016.

         B. The Supplemental Petition

         Unfortunately, less than a month later, on December 3, 2015, the Agency filed a supplemental petition seeking detention of Matthew after mother left residential treatment with the minor in late November and never returned. According to the detention report filed that same day, mother had remained sober for approximately two weeks-from October 31 to November 19-in residential treatment at Jelani House, before transferring to another treatment facility, Women's Hope. Matthew was returned to mother's custody on November 17 under her family maintenance plan and both mother and son moved to Women's Hope on November 20, 2015. Shortly thereafter, mother was authorized by staff to take Matthew on a day pass for Thanksgiving (November 26) and never returned with the minor. According to staff, other residents at mother's treatment facility reported that mother was in a hotel in San Francisco and was drinking and using drugs. Mother had also reportedly stated that she was “sick of her son” and was not feeding him.

         Several days later, on November 29, 2015, six-week-old Matthew was found abandoned in a Starbucks at the Great Mall in Milpitas. He was left in a stroller which also contained a half full bottle of vodka, a few baby items, a journal, and a dependency drug court reminder with mother's name on it. Matthew's physical condition was “very poor.” He was not properly dressed for the weather, his diaper was soiled, and his clothes were soaking wet. He was also extremely hungry, immediately drinking two bottles when they were offered. After he was transported for medical evaluation, hospital staff assessed that Matthew had a diaper rash, a lesion in a fold on his upper leg, scalding burns on both of his legs which were determined to be non-accidental, and an adult human bite mark on his lower left leg.

         Apparently, mother and Matthew had reunited with father despite the active restraining orders precluding father from having contact with mother. At a different location on November 29, mother and father were stopped by the police, as they were intoxicated in public and had been arguing. Once it was determined that they were the parents of the abandoned baby, mother and father were interviewed separately. Each gave different stories regarding Matthew's whereabouts. Mother, for instance, claimed that, after she and father had argued that morning, she left the baby with him. She stated that father later told her that he gave the baby to his sister or possibly to his ex-wife. Mother then met up with father again about 1:00 p.m. and they started drinking until the police intervened. In contrast, although the police had not told father where Mathew was found, father averred that mother had called him earlier that day, stating that she had abandoned the baby at a Starbucks. Father was eventually taken to jail for violating the restraining order against him.

         Mother next appeared at Jelani House late on the evening of December 1, 2015. Because she was drunk and reported being badly beaten and bitten by father, staff allowed her to stay the night before she was taken to the hospital for detoxification. Reportedly, she brought a bottle of vodka with her to the hospital under her jacket. When the social worker spoke to her in the emergency ward on December 2, however, mother stated that she was going to go into a program and get her baby back.

         At the detention hearing on December 4, 2015, mother was not present as she remained hospitalized. She had been in contact with her attorney, however, and agreed to submit to detention. The juvenile court detained Matthew. Thereafter, it refused to order visitation between mother and son, concluding that, at that point, it would be detrimental to the best interest of the child to have any contact with mother.

         In its dispositional report on the supplemental petition, filed January 25, 2016, the Agency again related mother's history of drinking and mental health issues. The Agency also stressed that mother had been court-ordered to complete a substance abuse program on at least two occasions as a condition of probation, but had failed to do so. In addition, most recently, she had been involved in Jelani House, Women's Hope, and the Avenues for treatment, but did not complete any of those programs. Indeed, although mother went to the Avenues, a mental health program, after Matthew was detained for the second time and could have stayed there for two weeks, she chose instead to leave in order to reunite with father upon his release from jail. Reportedly, mother told staff at the Avenues that she was going to return to father, despite the restraining orders, because she wanted to be a family with him. Moreover, while in the program, she showed “no openness nor willingness to engage in services.” Mother had not been in touch with the social worker since she left the Avenues. The Agency opined that mother needed to be sober before she could begin to face her domestic violence and mental health issues.

         In the meantime, when the minor came into shelter care after being rescued by the police, he was so hungry he drank three six-ounce bottles of formula in rapid succession. When his foster mother had to change the dressings on his burn and bite marks, he screamed in pain, leading the social worker to comment that the tiny infant had had a “tremendous amount of physical suffering to endure.” Moreover, when Matthew came into foster care, he was irritable, fussy, and unhappy. However, since that time, he had gained weight, grown quickly, and become calm and happy.

         Jurisdiction and disposition on the supplemental petition proceeded on January 26, 2016. Although noticed, neither parent was present. Mother's attorney asked for a continuance, reporting that she had received a message from mother, the day before, indicating that she was ill and could not attend. The court denied the request, noting that “it's time to proceed because the baby really needs an expeditious resolution to this matter.” Indeed, the court saw no good cause for a continuance and expressly found that the nonappearance of both parents was willful. After certain amendments were made to the petition, the juvenile court found the amended allegations true. The court also made dispositional findings and orders, which included the provision of reunification services for both parents. The reunification plan ordered for mother included: completion of a residential dual diagnosis mental health and drug treatment program; obtaining and maintaining suitable housing; participation in both a psychiatric and a psychological evaluation; compliance with a mental health professional's recommendations for therapy and medication; and compliance with the restraining order. The court, however, refused to authorize visitation between mother and Matthew as part of the reunification plan, reasoning that mother needed to show some type of progress on her many issues before it would be willing to change its detriment finding. A six-month review was set for July 2016.

         C. Mother's Section 388 Petition

         About three weeks later, on February 19, 2016, mother filed a petition pursuant to section 388, arguing that her situation had improved such that she should now be allowed supervised visitation with Matthew. Specifically, mother reported that she had been at healthRIGHT360, a dual diagnosis residential program, since February 3, 2016, and was compliant with the program. Prior to entering treatment, she had been in a related detoxification program from January 29 to February 3, 2016.[3] She was also in at least weekly contact with her case managers at the Homeless Prenatal Program (HPP) and cooperating with her Agency social worker. Moreover, mother asserted that she was attending weekly therapy through her treatment program and was compliant with her psychotropic medications. She also claimed to understand the negative impacts of domestic violence and stated her intention to abide by the restraining order put in place to protect her. Mother requested supervised visitation with Matthew a minimum of six hours per week. She argued that such visitation would be in the minor's best interests because it would help support a healthy bond and attachment and would help mother successfully reunify.

         On March 17, 2016, the juvenile court granted mother's section 388 petition and ordered supervised visitation between mother and Matthew a minimum of three hours per week, pending the start of therapeutic visitation.[4] The court also confirmed the six-month review date in July 2016. On March 25, 2016, mother filed a notice of appeal challenging the juveniles court's detention orders of December 4, 2015, and jurisdictional ...

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