M.L. v. Super. Ct. CA6 ( 2021 )

Filed 4/21/21 M.L. v. Super. Ct. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Juvenile court, rule 8.1115(a), prohibits juvenile 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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
M.L., H048951
(Santa Clara County Super. Ct.
Petitioner, No. 18JD025518)
v.
THE SUPERIOR COURT OF SANTA
CLARA COUNTY,
Respondent;
__________________________________
SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN’S SERVICES,
Real Party in Interest.
I. INTRODUCTION
On December 7, 2018, the Santa Clara County Department of Family and
Children’s Services (Department) filed separate petitions under Welfare and Institutions
Code section 3001 concerning the minor, E.L. (born in February 2018). Petitioner M.L. is
the minor’s father. R.L. is the minor’s mother.2 The minor was removed from Mother’s
Further statutory references are to the Welfare and Institutions Code unless
1
otherwise stated.
2
The Department filed a separate petition involving E.L.’s half-brother, T.G.,
seeking to declare him a dependent child under section 300, subdivisions (b)(1) and (c).
care in January 2019 due to prior instances of domestic violence between Mother and
Father, that reportedly occurred between March 2016 and August 2018. The minor has
been a dependent of the juvenile court since May 2019.3
After a lengthy contested proceeding that was a combined 12-month and 18-month
review hearing, the juvenile court on December 1, 2020, terminated Father’s (as well as
Mother’s) reunification services. The court found that there would be a substantial risk
of detriment if the minor were returned to the care of Father; Father had “not exhibited
adequate insight and accountability regarding his actions,” including his denial of a
June 13, 2020 incident of domestic violence involving Mother and him; and Father had
failed to show substantial progress in the substance abuse component of his case plan.
The juvenile court set a selection and implementation hearing pursuant to section 366.26
for March 25, 2021 (hereafter, the 366.26 hearing).
Father seeks an extraordinary writ challenging the court’s order terminating
services and setting a 366.26 hearing. (Cal. Rules of Court, rules 8.452, 8.456.)4
Additionally, he seeks a stay of the 366.26 hearing. Father asserts that there was not
substantial evidence to support the juvenile court’s finding that returning the minor to
Father’s care would create a substantial risk of harm to the minor’s safety, protection, and
physical and emotional well-being. He argues further that the juvenile court denied him
(R.L. is T.G.’s mother; M.L. is not the father.) That petition, as later amended, was
sustained by the court on May 3, 2019. It is not at issue here.
3
Mother and Father filed separate appeals from the juvenile court’s May 2019
jurisdiction and disposition order finding the minor to be a dependent child pursuant to
section 300, subdivisions (b), (c), and (j). We affirmed that order in In re T.G., et al.,
(March 10, 2021, H046914) [nonpub. opn.] (In re T.G.).
4
All further rule references are to the California Rules of Court.
Father filed timely his notice of intention to file a writ petition pursuant to
rule 8.450(e). He did not, however, timely file his writ petition in accordance with
rule 8.452(c)(1). In the interests of justice, this court granted Father leave to file his
untimely petition.
2
due process by conditioning his proposed testimony upon his counsel first making an
offer of proof.
Mother filed a separate writ petition challenging the termination of services and
the setting of a 366.26 hearing. She also sought an immediate stay of the 366.26 hearing.
(Rules 8.452(f), 8.456.) On March 24, 2021, this court issued an order staying the
366.26 hearing, with reunification services to be provided to Mother during the stay. On
April 6, 2021, this court granted Mother’s petition for extraordinary writ directing the
respondent court to vacate its prior order terminating services and setting a 366.26
hearing, and directing that the court enter a new and different order finding that
reasonable services were not provided or offered to Mother and granting reunification
services to Mother for an additional period of at least six months. (See R.L. v. Superior
Court (Apr. 6, 2021, H048650 [nonpub. opn.] (R.L.).)
We conclude here that the juvenile court did not err in terminating Father’s
services. We will therefore deny Father’s petition for extraordinary writ.
II. FACTUAL AND PROCEDURAL BACKGROUND5
A. Initial Proceedings
In March 2018 (nine months before the petition’s filing), the San Jose Police
Department forwarded police reports concerning two domestic violence incidents
involving Mother and Father. On March 12, Father was arrested after he punched and
slapped Mother in the face and punched her in the stomach while she was holding their
newborn baby, E.L. On March 21, Mother was arrested after she punched Father in the
face. The minor was present in the vehicle when the incident occurred. During the
investigation of that incident, Mother told the police that Father was “addicted to cocaine
5
Because of Mother’s prior appeal and petition for extraordinary writ, we are very
familiar with the facts involved in this proceeding. We take judicial notice of the
opinions in In re T.G., supra, H046914, and R.L., supra, H048650, and we incorporate by
reference the underlying facts and procedural history recited in those opinions.
Additionally, we have taken judicial notice herein of the record filed in R.L.
3
and [she had] found several straws in the past in her apartment.” Mother also said that
Father had been fired because of his drug use, and that because of drug testing as a
commercial driver, Father had submitted urine samples of others to pass drug tests. The
Department later learned of a third incident involving the police in which Father, on
August 30, 2018, grabbed mother by the neck and by her hair and pushed her into the
window of a vehicle multiple times. Father’s contact was in violation of a criminal
protective order.
On December 7, 2018, the Department filed a petition seeking to declare the minor
a dependent child under section 300, subdivisions (b)(1), (c), and (j). The minor was not
removed from Mother’s custody at that time. After an incident in which Mother and
Father—in violation of a protective order—reportedly stayed with Father’s sister for
three days in January 2019 (with the minor and her brother, T.G. present), consuming
alcohol to the point of intoxication during the entire stay, the Department, by a protective
custody warrant, sought and obtained the removal of the minor from Mother’s care.
Father, who was inside the home when the warrant was served on Mother, was in
violation of the criminal protective order and was arrested. The minor was placed in the
care of her maternal grandparents. Mother and Father received frequent visitation with
the minor.
Shortly before the Department sought removal of the minor, on January 11, 2019,
Father agreed to a voluntary drug test; the results yielded a faint line for cocaine. Father
then attempted to withdraw his consent to testing. He denied cocaine use.
The Department submitted reports in connection with the jurisdiction/disposition
hearing. The reports included discussion of 14 reported incidents of domestic violence
between March 2016 and August 2019. Father was the aggressor in eight of the
incidents, and Mother was the aggressor in six of them; all but three of the reported
incidents involved physical violence. Father tested negative for drugs from February to
April 2019; he missed two tests in February, and two tests in April.
4
At the contested jurisdiction/disposition hearing, Father testified that he had never
used physical violence against Mother or had destroyed any of her property. He denied
that he had ever violated the three-year criminal protective order obtained by Mother that
was effective until 2021. Father also testified that he had never used controlled
substances, including cocaine. His occupation was commercial driver and, as such, he
was required to submit to drug and alcohol testing. Mother testified that she had been a
victim of domestic violence for “one short period” of time during her relationship with
Father. She denied having ever perpetrated physical violence upon him. Of the incidents
of physical domestic violence by Father that she had previously reported, Mother testified
that only one had occurred (the incident on March 12, 2018). And she testified that she
had lied to the police about Father, while they were driving, having strangled her, or
having grabbed her by the hair and twice slamming her head into the window.
After a lengthy evidentiary hearing, on May 6, 2019, the juvenile court found that
the minor was a child described under section 300, subdivisions (b), (c), and (j). In its
disposition order, the court found by clear and convincing evidence that the minor’s
welfare required that she be removed from the physical custody of Mother, because there
was a substantial risk to the minors’ physical health, safety, protection, or physical or
emotional well-being that could not be protected without such removal. The court found
further by clear and convincing evidence that placement of the minor with Father, as the
previously noncustodial parent, would be detrimental to her safety, protection, or physical
or emotional well-being. In reaching its decision, the court concluded that there was
“overwhelming evidence” of all different forms of domestic violence between Mother
and Father, and that both parties had “significantly minimize[d] the amount of domestic
violence that was in this case.” The court ordered reunification services for Mother and
Father, including visitation with the minor. Father’s case plan included completion of a
parenting orientation class, a parent class (nurturing fathers), a program of counseling or
5
psychotherapy, random alcohol/drug testing, attendance and completion of a 12-step
program, a substance abuse assessment, and a domestic violence assessment.
B. Contested Six-Month Review Hearing
Prior to the six-month review hearing, the Department reported that Father had
(1) completed a parent orientation class in February 2019; (2) completed in
November 2019 a 10-week nurturing fathers course; (3) completed a substance use
assessment in July 2019, with an assessment that no substance abuse treatment was
recommended; (4) commenced therapy services in March 2019 with an indication that he
had been “consistently engaged with his treatment goal”; (5) reported regularly attending
Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings; (6) received eight
negative drug tests since July 15, 2019, but had missed seven tests, and had received
negative tests in November and December; (7) completed (with Mother) a domestic
violence assessment; and (8) begun attending a batterer’s intervention program in
November 2019 and had attended five sessions. The professional conducting the
domestic violence assessment concluded that Father was “the primary aggressor and
[M]other demonstrated reactive violence.” The assessor stated that “the lethality of the
violence by both parents [was] very concerning.”6 The assessor recommended that both
parents receive substance abuse testing and complete a 52-week batterer’s intervention
course.
The Department reported that Father began unsupervised visits with the minor in
late October 2019. In an addendum report dated November 25, 2019, the Department
presented plans for multiple overnight unsupervised visits between Father and the minor.
6
Contrary to his previous denials to the Department and his testimony at the
contested jurisdiction/disposition hearing, Father admitted during the July 2019
assessment that both Mother and he had engaged in physical domestic violence with the
other; Father indicated that they had “both pushed the other and ha[d] both
choked/strangled the other”; and had “both caused bruises.”
6
In that report, the Department recommended that Mother’s services be terminated and
that Father and the minor receive family maintenance services.
At the initial six-month review hearing on December 2, 2019, Mother indicated
that she contested the Department’s recommendation. The court set the matter for a
contested proceeding, and it ordered that the minor transition to Father’s care on a
temporary basis with family maintenance services.
In its January 2020 addendum report, the Department advised that as of early
December, the minor “was fully transitioning home with [F]ather and she appeared to be
adjusting well with the placement and other family members living in the home.”
The contested six-month review hearing commenced on January 7, 2020. During
the second day, the Department requested a continuance based upon it having been
advised that day that Father had been arrested in November 2019. The Department
requested time to assess whether it needed to modify its original recommendations. It
advised that it was returning Father’s visits to a supervised basis and would be
temporarily placing the minor with paternal relatives. The Department also requested
that drug testing for Father be increased from once to three time a week, and that he
attend AA/NA meetings once a week. The juvenile court granted the Department’s
requests.
When the hearing resumed on February 13, 2020, the Department stated that it had
changed its recommendations; it requested that the court order further reunification
services for Mother and Father. During the hearing, the Department presented evidence
that Father had been arrested for driving under the influence of drugs on
November 10, 2019. After the assigned caseworker, Anh Nguyen, learned about the
November 2019 arrest on January 17, 2020, she asked Father about it and he admitted
that he had used drugs and had driven under the influence. Father also admitted to
Nguyen that he had permitted Mother to have an unsupervised visit with the minor in
October 2019. And Father admitted to Nguyen that he had falsified AA/NA meeting
7
attendance slips. Testimony and argument on the contested hearing concluded on
February 14, 2020. The juvenile court announced its decision on February 20, 2020. The
court found that returning the minor to the care of either Mother or Father would create a
substantial risk of detriment to the child’s safety, protection, and physical and emotional
well-being. The court noted further that it “truly [viewed] this case as one in which both
parents ha[d] the potential to succeed in reunifying with [the minor] in the foreseeable
future.”
The juvenile court ordered continued reunification services for both parents. The
order included that Father receive drug testing twice a week, receive counseling, attend
AA/NA meetings at least twice a week, and complete a 52-week batterer’s intervention
program. Father was to receive supervised visitation with the minor of a minimum of
three times a week for two hours a visit. The court set the 12-month review hearing for
March 17, 2020, because of the amount of time that had passed since the court took
jurisdiction in May 2019.
C. Combined 12-Month and 18-Month Review Hearing
1. Scheduling
Due to the COVID-19 global pandemic, on March 4, 2020, Governor Gavin
Newsom declared that California was in a state of emergency7 and issued a subsequent
stay-at-home order on March 19, 2020.8 The Judicial Council of California issued
7
Executive Department State of California Proclamation of a State of Emergency
[as of Apr. 21, 2021], archived at < https//perma.cc/Q9FN-EJED>.
8
Executive Department State of California Executive Order N-33-20
[as of Apr. 21, 2021], archived at <
https//perma.cc/M563-ERYW>.
8
Emergency Rule 6(c)(6) on April 6, 2020, authorizing continuances for juvenile
dependency hearings due to the pandemic.9
The original 12-month review hearing scheduled for March 2020 was continued
three times and was eventually set for July 7, 2020. On July 7, the Department requested
a continuance so it could reevaluate its recommendations based upon a domestic violence
incident between Mother and Father that had occurred on June 13 (discussed in detail,
post).10 Because the case had extended beyond 18 months from the time the minor had
been taken into protective custody, the court set the matter for a combined 12-month and
18-month review hearing on July 31, 2020. Due to its contested nature, the hearing
ultimately commenced on September 28, 2020.
2. Department’s Reports
The Department filed two reports between March and June 2020 in connection
with the 12-month review hearing. Between July 7 and the commencement of the review
hearing on September 28, the Department filed seven additional reports. The Department
in its reports consistently recommended that the juvenile court terminate Mother’s and
Father’s reunification services and set the matter for a 366.26 hearing.
9
Judicial Council of California Amendments to the California Rules of Court
[as
of Apr. 21, 2021], archived at .
10
We acknowledge that Father repeatedly denied in interviews with the
Department that there was in fact an incident on June 13, 2020 of domestic violence in
which Father physically assaulted Mother. The juvenile court, however, concluded from
the evidence that the domestic violence incident occurred. As we note, infra, this finding
was supported by substantial evidence and, in deference to the juvenile court’s role as
factfinder, we will not reweigh the evidence or assess the credibility of witnesses. We
will refer herein to this incident as the June 13 domestic violence incident or as the June
13 incident.
9
a. Minor’s Placement
The minor was originally placed with the maternal grandparents. In mid-January
2020, the minor was placed with her paternal uncle and his family in San Jose. The
minor had reportedly adjusted well to her new placement.
b. Father’s Case Plan
The Department reported that Father had continued to participate in the 52-week
batterer’s intervention program, had completed 25 sessions, and he was actively engaged
and participated in class. But on July 29, he was terminated from the program due to the
June 13 domestic violence incident. He re-enrolled in the course. Father also continued
to participate in individual therapy and had completed 24 sessions. It was reported that
Father was motivated and was working toward behavior modification to avoid bad
decisions and unhealthy relationships.
Father had been attending multiple AA/NA meetings per week (with the exception
that he did not attend meetings between mid-March and early April), and his sponsor
reported that Father was doing well. Father attended 16 AA/NA meetings in June and six
meetings in July. Father produced screen shots showing attendance at three AA/NA
meetings in August and six meetings in September. On September 16, Father reported
that he had not been in contact with his sponsor.
Between February and late-June 2020, Father was drug testing regularly, and his
tests had, with one exception, been negative. On June 22, Father tested positive for
cocaine. Between June 29 and July 21, he tested negative on four occasions. Between
June 29 and September 21, Father missed eight scheduled drug tests. On September 15,
Father tested positive for cocaine.11 Father had three negative drug tests in October and
missed three tests that month. He missed a scheduled drug test on November 2.
11
The Department received written confirmation from Dr. Aaron Brown,
Scientific Director of Cordant Forensic Solutions, that neither of Father’s positive drug
tests (June 22 and September 15) was a false positive.
10
Father had his first unsupervised visit with the minor on March 7, 2020. Between
April and June, the Department discussed with Father and Father’s relatives, including
the paternal uncle (caregiver) regarding transitioning Father into the home with a safety
plan. Following the June 13 domestic violence incident, Father’s visitation with the
minor reverted to three times per week for two hours each visit, supervised by the
Department.
c. June 13, 2020 Domestic Violence Incident
The Department was advised that at approximately 6:00 a.m. on June 13, Father
left the house by car with the minor “and there was a high possibility that the child was
transported without a car seat.” It was reported that Father returned by car with the minor
at approximately 8:20 a.m., dropping off the child and leaving immediately. The minor
was dressed in her pajamas, had a soiled diaper, and looked exhausted. Father told the
caregiver that the minor was crying because she had not wanted to leave the home of the
paternal aunt.
Father initially told the Department he had taken the minor at approximately
6:00 a.m. to his sister’s home. He later stated that he had left the home at 7:30 to walk in
the neighborhood while attending his virtual AA/NA meeting. On June 17, Father told
social worker Nguyen that he had left the home with the minor the morning of June 13
and had taken her to breakfast. He later told Nguyen that he had not taken the minor to
breakfast, had not left with the child in his car, but had prepared a sandwich for her.
On June 13, Mother reported to the San Jose Police that Father and she were in his
car proceeding northbound on Highway 85 that morning when Father, who was driving,
punched her twice in the face. The police report indicated that Mother said that Father
stopped the car, exited, and opened the passenger side door and pulled Mother out of the
car by her hair.
Mother failed to attend her first in-person visit on June 13 with the minor and T.G.
Mother told the social worker that day that she was filing a police report against Father.
11
The next day, mother reported to the Department that she had been involved in a car
accident on June 13.
On June 17, Mother self-reported to the Department that at approximately
6:00 a.m. on June 13, she had an unauthorized visit with the minor and Father at the
home of Father’s cousin. Mother told the Department that after the visit, while Father
was giving her a ride to her boyfriend’s home, Father struck Mother in the face.
Social worker Nguyen learned through a detective with the Department that a
domestic violence report had been prepared involving a June 13 incident in which Father
had punched Mother twice in the face and pulled her out of the car by her hair. Father
left before police arrived and a warrant for his arrest was issued. The Department asked
Father to move out of the home where the minor was placed while the Department
investigated the incident.
A separate investigation of the June 13 domestic violence incident was conducted
by social worker Diane Hall with the Emergency Response division of the Department;
Hall was not the social worker assigned to the dependency proceeding. Hall generated a
lengthy report based upon her investigation.
The paternal uncle, D.L. (caregiver), advised Hall that when he and his partner
awakened at about 8:00 a.m. on June 13, the minor was not in her bedroom. D.L. called
Father, who said he was at his sister’s house with the minor. Father returned within
20 minutes by car with the minor; D.L. believed the minor was transported without a car
seat. Father quickly dropped off the minor, who was wearing pajamas and crying, and he
then left. Father did not return home until 11:00 a.m. the next day. D.L. reported that the
minor was exhausted and was nodding off as D.L. and his partner were getting her ready
for the day. D.L. reported that Father later contacted him “to say that he took the child
for a walk and did not leave with her in his vehicle, . . . inform[ing D.L.] that . . . it would
be [Father’s] word against [D.L.’s] word as to what took place.”
12
Father told Hall that on June 13, the minor awakened at 6:30 to 7:00 a.m., and that
he took her outside (in her pajamas) while he attended his virtual AA/NA meeting. He
could not provide proof of his attendance at the meeting. Father said D.L. called him,
and Father informed D.L. that he was outside; he brought the minor inside when the
meeting ended at 8:30 a.m. Father said that he attended a virtual batterer’s intervention
class that morning (after the AA/NA meeting) that went from 9:00 to 11:00.12 Father
denied that he traveled with the minor anywhere in a car. He also denied that he took the
minor to visit Mother, to the paternal aunt’s home, or to a McDonald’s. Father stated he
had neither seen nor spoken with Mother.
Although Mother told Hall that her attorney had advised her not to speak with Hall
because Mother had already self-reported the incident, Mother did discuss the incident
briefly with Hall. Mother said that Father began calling her on June 12, and that because
she had not seen the minor for three months because of the COVID-19 pandemic, she
was vulnerable. Father picked her up at about 6:00 a.m. on June 13, and the minor was in
the back seat in a car seat. He took Mother to an apartment she was unfamiliar with that
may have been where Father’s cousin lived. Mother stated that there were no verbal or
physical altercations between her and Father in the minor’s presence. She was not with
Father when he returned the minor to the caregiver’s home. The domestic violence
occurred at approximately 9:30 a.m. after Father returned from the caregiver’s home, and
she contacted the police at approximately 10:00 a.m.
Hall concluded that the allegation of general neglect by Father was substantiated.
Hall noted that, although Father had unsupervised overnight weekend visits, he had been
instructed by social worker Nguyen not to transport the minor. He gave inconsistent
accounts of what transpired, but he admitted at one point to Nguyen that he had
12
The facilitator of the batterer’s intervention course told Hall that Father had
logged into the class on the morning of June 13, but she could not confirm whether he
was continuously online for the entirety of the class.
13
transported the child in his car, and the caregiver witnessed him returning with the minor
in his car to the home. Hall also concluded that the allegation of general neglect by
Mother was substantiated because she was permitted only supervised visits and because
she engaged with Father, with whom she had an extensive history of domestic violence.
In the months after June 13, Father repeatedly denied to the Department that the
incident had occurred. On July 23, he told Nguyen that he had never left the house with
the minor on June 13, had not seen or spoken with Mother, “and that [M]other lied about
everything.” On July 28, Father spoke to Nguyen and said he felt the Department had
been disrespectful toward him because of “a bunch of lies” in the Department’s report.
He told Nguyen that she had never “asked him his side of the story.” Father criticized
Nguyen for not being “supportive transparent, and honest.” Nguyen indicated in her
report that Father had argued with her and “bec[a]me very offensive,” resulting in her
ending the conversation because Father made her feel “unsafe.” On September 16,
Father reiterated to Nguyen that his statement remained unchanged and that “[M]other
had made[] up lies about him and that none of the allegations [sic] happened on 6/13/20.”
3. Combined 12-Month/18-Month Review Hearing
The contested 12-month/18-month review hearing was held over four half-day
sessions between September 28 and November 9, 2020. Both Father and Mother
objected to the Department’s recommendations that services be terminated and that the
court set a 366.26 hearing. The court announced its decision on December 1. During the
hearing, the court heard from a number of witnesses, including Anh Nguyen (social
worker), Ross Matsushima (social worker’s supervisor), Mother, and C.S. (Father’s
cousin).
a. Social Worker Anh Nguyen
The social worker assigned to the case, Anh Nguyen, testified as an expert in risk
assessment and child welfare services. Nguyen testified that there were a combination of
factors that led the Department to change its recommendation from returning the minor to
14
Father with family maintenance services to the termination his reunification services.
These factors included the June 13 domestic violence incident, Father’s having missed a
number of scheduled unsupervised visits, his having missed a number of AA.NA
meetings, and Father’s positive drug test results. Nguyen noted that there had been an
additional positive drug test for cocaine in September, and Father had missed
approximately seven or eight tests. Nguyen acknowledged on cross-examination that in
an October 23, 2020 report from Father’s batterer’s intervention program, it was stated
that Father was in full compliance with his program.
Mother initially told Nguyen that she had been in a car accident on June 13.
Within days thereafter, Mother “self-report[ed],” telling Nguyen that there had been a
domestic violence incident in which the police responded, and she had made a report.
Nguyen testified that Mother had made different statements about the incident at different
times.
b. Social Work Supervisor Ross Matsushima
Ross Matsushima, Nguyen’s supervisor, testified as an expert in risk assessment
and child welfare services, as well as in intimate partner violence.
Matsushima testified that the minor would be at risk if she were placed in Father’s
care. He based this opinion on Father’s having been unable to address his substance
abuse issues, including missed tests and positive tests, and his interpersonal violence
issues. Matsushima testified that Father had “not been able to integrate what he’s
learning in his classes in his life and that unfortunately puts [the minor] at risk if [she
were] returned to his care.”13
c. R.L. (Mother)
Mother testified about the June 2020 domestic violence incident. Mother
explained that Father had called her and offered to arrange an unsupervised visit with the
13
Father’s counsel did not cross-examine Matsushima.
15
minor. She said she knew it would be wrong to do so, but she had accepted the offer
because she had not seen her daughter for three months. After the visit, when Father was
driving Mother back to her car, they had gotten into an argument. Father punched
Mother in the face twice while driving; he then stopped the car, came around to the
passenger’s side, and pulled her out of the car by her hair. The minor was not present
during the incident. The San Jose Police responded, and Mother reported the incident.
Mother testified that she had initially told the social worker by e-mail that she had
been in a car accident because she “was scared of the repercussions towards stating that
[she] was a victim in another domestic violence incident.” Within approximately three
days, Mother reported to the social worker in a fairly lengthy telephone conversation that
she had been a domestic violence victim in an incident with Father.
d. C.S. (Father’s Cousin
C.S. is Father’s cousin. She lives in San Jose. She was in her home on the
morning of June 13. She did not see Mother or the minor that morning. She testified that
she has never met Mother before.
4. The Court’s Order Terminating Reunification Services
On December 1, 2020, the juvenile court considered the evidence and ordered
reunification services terminated for Mother and Father and set a selection and
implementation hearing pursuant to section 366.26 for March 25, 2021.
The juvenile court found by a preponderance of the evidence that returning the
minor to Father would create a substantial risk of harm to the minor’s safety, protection,
and physical and emotional well-being.14 The court found that another instance of
domestic violence between Mother and Father had occurred on June 13. The court
reasoned that Father had “not exhibited adequate insight and accountability regarding his
actions, including the fact that he appears to deny that the June 13, 2020, incident even
14
The court made the same risk-of-harm finding regarding the minor’s return to
Mother.
16
took place.” It concluded further that Father, based upon his positive test for cocaine in
late June and his having missed many tests, had not shown substantial progress in
connection with the substance abuse component of his case plan. Further, the juvenile
court found by clear and convincing evidence that the Department had provided
reasonable services to Father. And the court concluded that there was not a substantial
probability that the minor would be returned to the physical custody of either Father or
Mother within 24 months of the initiation of protective custody.
III. DISCUSSION
Father presents two main arguments in challenging the juvenile court’s order
terminating reunification services. First, Father argues that the court erred in concluding
that there was substantial evidence that returning the minor to his custody would create a
substantial risk of harm to the child. He argues further that the juvenile court denied him
due process by conditioning his proposed testimony upon his counsel first making an
offer of proof.
A. Applicable Law
When the dependent child is removed from parental custody, the juvenile court is
ordinarily required to provide the parent with services to facilitate the reunification of the
family. (§ 361.5, subd. (a); see Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285,
303.) As explained by one court: “The importance of reunification services in the
dependency system cannot be gainsaid. The law favors reunification whenever possible.
[Citation.] To achieve that goal, ordinarily a parent must be granted reasonable
reunification services. [Citation.]” (In re Aryanna C. (2005) 132 Cal.App.4th 1234,
1242.)
Prior to the 366.26 hearing, there are periodic status reviews as ordered by the
court, but not less frequently than every six months. (§ 366, subd. (a)(1).) Under
section 366.21, subdivision (e)(1), at the six-month review hearing, the juvenile court
must return the child to the parents’ physical custody “unless the court finds, by a
17
preponderance of the evidence, that the return of the child to his or her parent or legal
guardian would create a substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child.” The agency bears the burden of establishing such
detriment. (Ibid.) “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.) Because they are conducted at a
stage when the juvenile court may deny further reunification services to the parent,
“[r]eview hearings are critical.” (In re Jesse W. (2007) 157 Cal.App.4th 49, 61.)
At the review hearing, the juvenile court may continue the case for up to six
months for a permanency review hearing as long as that hearing occurs within 18 months
of the child’s removal. (§ 366.21, subd. (g)(1).) The court may do so, however, “only if
it finds that there is a substantial probability that the child will be returned to the physical
custody of his or her parent or legal guardian and safely maintained in the home within
the extended period of time or that reasonable services have not been provided to the
parent or legal guardian.” (Ibid.) The court’s finding that there is a substantial
probability that the child will be returned to the home constitutes “a compelling reason
for determining that a hearing held pursuant to Section 366.26 is not in the best interests
of the child.” (§ 366.21, subd. (g)(1)(C)(i).) In any event, “[t]he court shall not order
that a hearing pursuant to Section 366.26 be held unless there is clear and convincing
evidence that reasonable services have been provided or offered to the parent or legal
guardian.” (§ 366.21, subd. (g)(1)(C)(ii).) The Department bears the burden of proving
by clear and convincing evidence that it provided or offered reasonable reunification
services to the parent. (§§ 366.21, subd. (g)(1)(C)(ii); 366.22, subd. (a)(3).)
Section 361.5, subdivision (a) provides in pertinent part: “For a child who, on the
date of initial removal from the physical custody of the child’s parent . . . , was under
three years of age, court-ordered services shall be provided for a period of 6 months . . .
but no longer than 12 months from the date the child entered foster care . . . .
18
[¶] . . .[¶] . . . [C]ourt-ordered services may be extended . . . not to exceed 18 months
after the date the child was originally removed from physical custody of the child’s
parent . . . . The court shall extend the time period only if it finds that there is a
substantial probability that the child will be returned to the physical custody of the child’s
parent . . . within the extended time period or that reasonable services have not been
provided to the parent.” Based on a child’s need for security and stability, the 18-month
review hearing is the cutoff date for family reunification services. (In re Elizabeth R.
(1995) 35 Cal.App.4th 1774, 1788.) “At this hearing, 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. [Citation.]” (Ibid.)
The juvenile court may offer more than 18 months of reunification services if it
finds that reasonable reunification services have not been offered or provided. (In re
M.F. (2019) 32 Cal.App.5th 1, 21.)15 At the conclusion of the review period, “the court
shall order the return of the child to the physical custody of his or her parent or legal
guardian unless the court finds, by a preponderance of the evidence, that the return of the
child to his or her parent or legal guardian 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.” (§ 366.22, subd. (a).)
B. Standard of Review
We review the court’s findings here at the combined 12-month/18-month review
hearing for substantial evidence. (See J.H. v. Superior Court (2018) 20 Cal.App.5th 530,
535 [12-month review hearing]; Katie V. v. Superior Court (2005) 130 Cal.App.4th 586,
598 [18-month review hearing].) A finding by the juvenile court that the return of the
child to parental custody would be detrimental to the child is also reviewed for substantial
evidence. (In re Mary B. (2013) 218 Cal.App.4th 1474, 1483; In re Shaundra L. (1995)
15
Father does not assert that the juvenile court erred in finding by clear and
convincing evidence that the Department provided or offered reasonable services to him.
19
33 Cal.App.4th 303, 318.) In reviewing the challenged findings, we examine the record
in the light most favorable to the juvenile court’s order, to determine whether there is
substantial evidence from which a reasonable trier of fact could have made the requisite
findings. (In re Mary B., supra, at p. 1483.) We construe all reasonable inferences and
resolve all conflicts in favor of the court’s findings. (In re Jasmine C. (1999) 70
Cal.App.4th 71, 75.) Issues of fact and credibility are the sole province of the juvenile
court. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705 (Constance K.).)
C. Noncompliance With California Rules of Court
Father’s petition is replete with statements describing purported facts and
procedural background of the case that are unsupported by any citation to the record.
These unsupported statements include purported testimony of witnesses, accounts by
Mother to the police and social workers regarding the June 13 incident, accounts by
Father and others to social workers regarding the June 13 incident, and comments by the
juvenile court. By this court’s approximate count, Father presents over 70 references to
specific testimony, facts contained in the Department’s reports, and procedural matters
that are without any supporting citations to the record.16
The failure to provide proper citations to the appellate record—here, to either the
clerk’s or reporter’s transcript—supporting matters referred to in the court below violates
court rules. (See rule 8.204(a)(1)(C) [matters referenced from the record in appellate
briefs must be supported “by a citation to the volume and page number of the record
where the matter appears”].) “ ‘Any statement in a brief concerning matters in the
16
Father in his petition also asserts facts concerning his alleged compliance with
elements of his case plan after the termination of services. We will not consider these
purported facts both because they are unsupported by citations to the record (see
rule 8.204(a)(1)(C)), and because they are, by their very nature, matters outside of the
record since they allegedly took place after the entry of the order challenged in the
petition. (See Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102 [“Factual matters
that are not part of the appellate record will not be considered on appeal and such matters
should not be referred to in the briefs.”].)
20
appellate record—whether factual or procedural and no matter where in the brief the
reference to the record occurs—must be supported by a citation to the record.’
[Citation.]” (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958,
970, original italics.) The appellate court may disregard any contentions made without
citation to the record supporting them. (City of Lincoln v. Barringer (2002) 102
Cal.App.4th 1211, 1239; see also In re S.C. (2006) 138 Cal.App.4th 396, 406 [appellate
court is not required to search the record to discover support for litigant’s position].)
Although we do not minimize the importance of a party’s obligation to provide
proper citations to the appellate record in support of his or her position, and in this
instance we could choose to deem Father’s claims of error based upon his unsupported
argument forfeited, we will nonetheless, in the interests of justice, address Father’s first
claim of error, i.e., that the juvenile court erred in finding that return of the minor to
Father’s care would create a substantial risk of harm to the minor’s safety, protection, and
physical and emotional well-being.
D. Substantial Risk of Harm
The juvenile court concluded that returning the minor to Father would create a
substantial risk of harm to the minor’s safety, protection, and physical and emotional
well-being. Father contends that there was no substantial evidence to support the court’s
conclusion. His focus is on two matters relevant to the substantial-risk-of-harm finding
(detriment finding), namely, (1) Father’s role in the June 13 incident, and (2) Father’s
substance abuse issues.
1. June 13 Domestic Violence Incident
With respect to the June 13 incident, Father’s argument is founded entirely on the
premise that Mother’s account of the incident—the details of which as presented in the
petition by Father are almost entirely without supporting citations to the record—was not
credible and that the domestic violence she claimed Father inflicted upon her thus did not
occur. He emphasizes that Mother’s account of the June 13 incident varied, and that she
21
“told different stories to different people about the events of that day.” Father argues that
Mother is an untrustworthy witness, and that she “ha[d] a history of deception and
manipulation throughout the case.”17 He contends that the court in fact “characterized
her as a ‘dishonest person.’ ”18 Father in his petition contrasted Mother’s purported
“different stories” about the June 13 incident with his own denials to the Department that
he had had any contact with Mother on June 13. Father therefore challenges the juvenile
court’s decision to terminate his services that was based partially upon the June 13
incident.
Father’s position lacks merit. First, his argument ignores specific matters in the
record that are unfavorable to his assertion that the June 13 incident should have been
discounted because of Mother’s “different stories” and claimed lack of veracity. Father
himself—who did not testify under oath to specifically deny that he had physically
assaulted Mother on June 13—gave at least five different accounts of what transpired on
June 13. At various times, Father told the Department that on the morning of June 13, he
had (1) taken the minor to his sister’s home; (2) left his home with the minor on foot to
attend a virtual AA/NA meeting while walking around the neighborhood; (3) taken the
minor to breakfast; (4) not taken the minor to breakfast, had not left with the child in his
car, but he had prepared a sandwich for her; and (5) never left the house with the minor.
17
Father, again in violation of rule 8.204(a)(1)(C), makes this sweeping statement
without a reference to the record that supports the assertion. We acknowledge, however,
as we noted in In re T.G, supra, H046914, that Mother had made various inconsistent and
contradictory statements about incidents of domestic violence between 2016 and August
2018 (before the filing of the dependency petition), including her admission at the
jurisdiction and disposition hearing that she had lied to the police about having been
physically assaulted by Father in August 2018.
18
Father does not cite to the record where the juvenile court supposedly made this
statement. (See rule 8.204(a)(1)(C).) But we are aware that the court, when it announced
its decision on May 3, 2019, after the jurisdiction/disposition hearing, observed that it felt
that “ ‘[Mother] is herself not a truthful person,’ ” and it had “ ‘trouble giving any
credibility to [Mother].’ ” (In re T.G., supra, H04914 [pp. 27, 28].)
22
And we note that of the five accounts given by Father, the first one—that he had taken
the minor by car to the house of Father’s sister on the morning of June 13—was
corroborated by the paternal uncle, D.L. D.L. told the Department that, after finding the
minor absent when he awakened on June 13, he called Father, who said he was at his
sister’s house with the minor; D.L. said that Father returned by car within 20 minutes to
drop off the minor.19 Father, in challenging the sufficiency of the evidence, “was not free
to ignore facts that support” the juvenile court’s detriment finding. (In re A.R. (2014) 228
Cal.App.4th 1146, 1152 [appellate court finds mother waived argument concerning the
jurisdictional finding that she had not provided adequate medical care to children by her
failure to present evidence that supported the finding]; see also James B. v. Superior
Court (1995) 35 Cal.App.4th 1014, 1021 “[[e]vidence not favorable to the petitioner
cannot be simply ignored as if it does not exist”].)
Second, and more fundamentally, Father’s challenge to the juvenile court’s
reliance upon the June 13 domestic violence incident to support its detriment finding is,
implicitly, an attack upon the court’s assessment of the evidence and the credibility of the
witnesses. The juvenile court, in making its detriment finding as to Father, specifically
found from its consideration of the evidence that the June 13 domestic violence incident,
in fact, occurred. The court concluded that it believed Mother’s testimony that she was
the victim and not the aggressor in the incident. The court found that Father had “not
exhibited adequate insight and accountability regarding his actions,” including the fact
that he had denied that the June 13 incident had occurred. The juvenile court observed
that “[Father’s] inconsistent accounts of what happened that day as well as his alibi that
he was attending his 52-week class . . . lack credibility and [Father] has not presented any
19
We also note that D.L., who would seemingly have no reason to be untruthful,
reported to Department social worker Hall that Father had contacted him later on June 13
“to say that he took the child for a walk and did not leave with her in his vehicle, . . .
inform[ing D.L.] that . . . it would be [Father’s] word against [D.L.’s] word as to what
took place.”
23
plausible, alternative explanation for what happened.” These findings were supported by
substantial evidence, and it is readily apparent that the juvenile court based its
conclusions from its assessment of all the evidence, including an assessment of the
credibility of the witnesses, finding that Mother’s testimonial account concerning the
June 13 incident to be more credible than Father’s reports about it to the Department. It
is not within our purview to reweigh the evidence or to assess the credibility of the
witnesses. (See Constance K., supra, 61 Cal.App.4th at p. 705; In re Joseph B. (1996) 42
Cal.App.4th 890, 901 [appellate court defers to juvenile court’s witness credibility
determination relative to detriment finding].)
2. Father’s Substance Abuse Issues
Father also challenges the juvenile court’s reliance upon Father’s ongoing
substance abuse issues as a basis for its detriment finding. He argues that “the law does
not require perfect parenting before a parent may regain custody of a dependent child,”
and that, while it would have been better had Father never used cocaine at all, there was
no showing that he used or was under the influence of drugs in the minor’s presence.
Father asserts further that his “single positive test for cocaine during the reporting period
does not provide substantial evidence of detriment.”
Initially, we observe that Father has twice misrepresented the record in his
petition. He argued that there was a “single positive test,” and that since he tested
positive for cocaine on June 22, 2020, “[t]here have been no further positives between
that date up to December 1.” This argument ignores the fact that Father also tested
positive for cocaine on September 15, 2020, less than two weeks before the
commencement of testimony in the 12-month/18-month review hearing.
Moreover, Father’s contention erroneously assumes that the substance abuse issue
of concern to the court was limited to positive drug tests. Based upon the collective
testimony of Nguyen and Matsushima, the Department’s concern about Father’s ongoing
substance abuse issues included, in addition to the positive tests, a pattern of Father’s
24
missing scheduled drug tests, and his inconsistent participation in AA/NA meetings.
Father reportedly attended only 15 AA/NA meetings in the three months between July
and September 2020. And Father reported in mid-September that he had not been in
contact with his sponsor. Additionally, Department reports indicated that, between June
29 and November 2, 2020, Father had missed 12 scheduled drug tests. The evidence of
two positive tests for the same drug (cocaine) that resulted in Father’s arrest in
November 2019 for driving under the influence, coupled with missed tests, caused the
juvenile court to conclude that Father had not made substantial progress with respect to
the substance abuse component of his case plan.20
Based upon the record, we reject Father’s claim that the juvenile court improperly
concluded that Father’s ongoing substance abuse issues presented a reason for its
detriment finding. There was substantial evidence to support the court’s conclusion that
Father had not made substantial progress with respect to this element of his case plan.
3. Conclusion Concerning Detriment Finding
A parent’s substantial compliance with a reunification services plan does not
preclude a finding that the child would suffer detriment if returned to the parent.
(Constance K., supra, 61 Cal.App.4th at p. 704.) “[T]he court must also consider
progress the parent has made toward eliminating the conditions leading to the children’s
placement out of home.” (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)
Here, while Father is to be commended for the significant efforts made in
complying with his case plan, his participation as the aggressor in the June 13 domestic
violence incident—an incident that the juvenile court found to have, in fact, occurred—
was a significant basis for the juvenile court’s detriment finding. This is particularly true
20
We acknowledge that the juvenile court in the announcement of its decision
referred only to the June 2020 positive drug test. The fact remains that the record shows
that Father tested positive for cocaine a second time in September 2020, shortly before
the commencement of the combined 12-month/18-month review hearing.
25
in light of the fact that the existence of substantial domestic violence involving the
parents was the principal reason the minor became a dependent child. The court’s finding
was supported further by Father’s ongoing issues with substance abuse, including
numerous scheduled tests that were missed and two positive tests for cocaine less than
three months apart. The juvenile court’s finding that the return of the minor to Father’s
care would create a substantial risk of detriment to the minor was supported by
substantial evidence. (In re Mary B., supra, 218 Cal.App.4th at p. 1483.)
E. Due Process
Father argues that he was denied due process because at the end of the
proceedings, the juvenile court required that his counsel present an offer of proof as to the
nature of Father’s testimony were he to take the stand as a witness. He asserts that in the
last 15 minutes set aside for testimony, when counsel proposed calling Father as a
witness, but first asked to speak with his client, the juvenile court denied that request and
“demanded an offer of proof as to what the testimony would be.” Father asserts that his
counsel, faced with having to respond to the court’s request that he confirm that he
wanted to call his client to testify without first consulting him about it, “finally told the
court that he would submit on the record, not wanting to further antagonize the court.”
Father’s due process argument—again, in violation of rule 8.204(a)(1)(C)—
includes no citations to the relevant record.21 The reporter’s transcript of the four half-
days of testimony consists of approximately 400 pages. It is not this court’s obligation to
review the entire record to confirm that the petitioner’s statements made concerning the
proceedings are accurate. “When [a petition for extraordinary writ] makes no reference
to the pages of the record where a point can be found, an appellate court need not search
21
Father’s petition includes one citation to the record, which is to a matter not
relevant to his due process argument—involving the court’s having commented on
Mother’s witness, Michelle Ho, taking “ ‘well over an hour’ ” rather than the 15 minutes
originally estimated.
26
through the record in an effort to discover the point purportedly made. [Citations.] We
can simply deem the contention to lack foundation and, thus, to be forfeited.” (In re S.C.,
supra, 138 Cal.App.4th at pp. 406-407.)
Moreover, “[a] party forfeits the right to claim error as grounds for reversal on
appeal when he or she fails to raise the objection in the trial court. [Citations.]” (In re
Dakota H. (2005) 132 Cal.App.4th 212, 221-222; see also Bettencourt v. City and County
of San Francisco (2007) 146 Cal.App.4th 1090, 1101 [“constitutional issues not raised in
earlier civil proceedings are waived on appeal]; People v. Benson (1990) 52 Cal.3d 754,
786, fn. 7 [failure to assert evidentiary objection below on basis that admission of
evidence violated defendant’s constitutional rights forfeited].) A key rationale for the
forfeiture doctrine “ ‘is simply that it is unfair to the trial judge and to the adverse party
to take advantage of an error on appeal when it could easily have been corrected at the
trial.’ [Citation.]” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-
185, fn. 1 (Doers), original italics.) This principle that claims unpreserved at the trial
level are forfeited on appeal “has been applied in dependency proceedings in a wide
variety of contexts.” (In re G.C. (2013) 216 Cal.App.4th 1391, 1398.)
Father did not raise an objection below that the juvenile court, in purportedly
requiring his counsel to make an offer of proof in lieu of Father’s testimony and
purportedly conditioning such testimony upon an offer of proof, violated his right to due
process.22 Had he done so, the juvenile court could have readily addressed whether it
was, or was not, proceeding fairly in addressing counsel’s equivocal request to call Father
as a witness within the last 15 minutes of the fourth day set aside by the court for the
22
We have reviewed the transcript from the fourth day of the hearing to confirm
that Father did not assert a due process objection below. Additionally, in stating that
Father contends that the juvenile court conditioned allowing his testimony upon first
presenting an offer of proof, we only acknowledge that this is Father’s argument; we do
not necessarily agree that the record supports that assertion.
27
evidentiary hearing in the instant dependency proceeding.23 It is thus apparent that a
defect, if any, “ ‘could easily have been corrected at the trial.’ [Citation.]” (Doers,
supra, 23 Cal.3d at pp. 184-185, fn. 1.) Therefore, Father—aside from having forfeited
his contention by failing to provide supporting citations to the record (In re S.C., supra,
138 Cal.App.4th at pp. 406-407)—has forfeited the argument in his petition by not
asserting it below. (In re Dakota H., supra, 132 Cal.App.4th at pp. 221-222.)
F. Conclusion
As a result of the filing of R.L., supra, H04850, the juvenile court has been
directed to vacate the 366.26 hearing and to provide Mother with additional reunification
services.24 We observe that—depending on the current circumstances, including the
extent to which Father, since December 1, 2020, has demonstrated a commitment to
addressing the issues that caused the juvenile court to have found the minor to be a
dependent child—the law may permit, either through a stipulation or the filing of a
petition under section 388, an additional period of services to Father. But based upon the
record before us, the juvenile court here did not err in terminating Father’s services at the
12-month/18-month review hearing.
IV. DISPOSITION
The petition for an extraordinary writ is denied.
23
The juvenile court originally reserved three days for the hearing. But after
commenting on several occasions about the pace of the testimony, at the end of the
second day, the court added a fourth day of testimony. At that time, the court asked that
Father’s counsel submit a list of witnesses with time estimates. It did so because Father’s
counsel had not previously filed a witness list, as had counsel for the Department and
Mother At the end of the second day, as well as the end of the third day, Father’s counsel
expressed uncertainty as to whether Father would even be called as a witness to testify.
And toward the end of the third day, in response to the court’s question as to whether he
planned to call any witnesses, Father’s counsel stated, “I have another witness [C.S.], and
possibly my client.” After C.S.’s short testimony was completed, Father’s counsel stated,
“I think I would like to call my client.”
24
Therefore, to the extent Father has requested in his petition that a stay issue and
that the 366.26 hearing be vacated, the petition is denied as moot.
28
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
GREENWOOD, P.J.
ELIA, J.
M.L. v. Superior Court
H048951