Tiffany People v. Superior Court CA5 ( 2014 )

Filed 1/17/14 Tiffany P. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
TIFFANY P., F068147
Petitioner, (Super. Ct. No. 515877)
v.
OPINION
THE SUPERIOR COURT OF STANISLAUS
COUNTY,
Respondent;
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q.
Ameral, Judge.
Nadine Salim for Petitioner.
No appearance for Respondent.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County
Counsel, for Real Party in Interest.
* Before Gomes, Acting P.J., Franson, J., and Peña, J.
-ooOoo-
Petitioner Tiffany P. (mother) seeks extraordinary writ relief (Welf. & Inst. Code,
§ 366.26, subd. (l)1; Cal. Rules of Court, rule 8.452) from the juvenile court’s October 3,
2013, order made at the 18-month review hearing, in which the court terminated
reunification services and set a hearing pursuant to section 366.26 to consider termination
of parental rights and implementation of a permanent plan for mother’s six-year-old son
James P.2 We deny the petition on the merits.
BACKGROUND
On September 13, 2010, the Stanislaus County Community Services Agency
(Agency) filed a petition, which set forth nine allegations as to mother’s unfitness for
custody of her children James and Hailey, under section 300, subdivision (b). Mother
had been locking the children in a bedroom for long periods of time. The children were
removed from mother’s care; James was placed with his father; and Hailey was placed in
the home of a friend of mother’s. Mother was pregnant with her son Daniel at the time.
Several days after his birth, he was also removed from mother’s physical custody and
placed in the same home as Hailey.
A psychological assessment on mother found her to have an adjustment disorder
with depressed mood, a history of bulimia, and a personality disorder. Although mother
had already received three years of parenting instruction from Parent Resource Center,
including in-home mentoring, she was not able to translate the knowledge into
appropriate actions. An evaluation on James found that he fell into the mild to
moderately severe category of autism.
1 Statutory references are to the Welfare and Institutions Code; rule references are to
the California Rules of Court.
2 James is the oldest of mother’s six children and the only child at issue on this writ.
2.
At a joint jurisdictional and dispositional hearing in December of 2010 and
January of 2011, the juvenile court found that James, Hailey, and Daniel were persons
described by section 300, subdivisions (b) and (g) and that removal of the children from
mother’s physical custody was appropriate.
Mother filed an appeal from the section 300 disposition findings and orders. On
November 14, 2011, this court issued its opinion in the appeal (In re James P. et. al.,
(Nov. 14, 2011, F061732 [nonpub.opn.]) and ordered a new disposition hearing. We
found that the juvenile court “could have imposed stringent conditions, including
frequent unannounced in-home visits, for mother on her use of the lock to confine her
children, and on following the advice given to her by social workers and service
providers as to her parenting behavior and mental health.” James and Hailey were
returned to mother’s care. Daniel was released to the custody of both his parents, with
the primary residence being with his father.
Slightly more than a month later, on February 23, 2012, the Agency filed a section
387 supplemental petition seeking removal of the children from mother’s home. James
and Hailey were detained and Daniel remained in his father’s custody. The petition
described a series of issues that had arisen over the course of the six weeks since the
minors began extended visits in mother’s home and were subsequently returned.
A contested detention hearing began on March 1, 2012. Following the testimony
of various service providers, the parties agreed that Hailey would return to mother’s care,
but that James would continue in foster care and Daniel in his father’s care.
At the contested jurisdiction/disposition hearing, which spanned several days and
concluded on May 11, 2012, the juvenile court sustained the petition, finding that mother
was unable to safely care for all three children, or even two children, at the same time.
Specifically, the juvenile court found mother was not able to care full time for James at
that point. The court found that the number of injuries to the children, albeit small,
demonstrated by clear and convincing evidence that they were at a substantial risk of
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harm. The court noted that, although several of the service providers testified that mother
did okay supervising the children, it was always in a situation where there were other
adults present. The court found that mother’s testimony lacked credibility.
The juvenile court ordered that Hailey remain in mother’s care with family
maintenance services; that James be removed from mother and father’s care and placed in
foster care with reunification services; and that Daniel be removed from mother’s custody
but remain placed with his father and reunification services ordered.
Mother appealed the orders from the section 387 hearing removing James from her
care. On September 11, 2013, this court issued its opinion affirming the orders (In re
James P., et. al., (Sept. 11, 2013, F065284) [nonpub.opn.]).
By the time of the six-month review hearing on December 12, 2012, mother was
living in a three-bedroom apartment with her roommate Brian H., Hailey and her new
baby, Aubrey, who was not a dependent of the court. At the six-month review hearing,
the juvenile court continued mother’s reunification services and terminated reunification
services for James’s father. The court authorized the Agency to begin James’s trial visits
in mother’s home.
The report prepared in anticipation of the 12-month review hearing recommended
continued services for mother with James, who was still in foster care, where he was
reported to be happy and thriving. The report addressed the issue of James’s extended
visits at mother’s and her failure to appropriately respond to necessary medical care for
James on a number of occasions. This eventually led to cancellation by the Agency of
overnight visits with James for a time. Mother also cancelled a number of visits with
James, including the time she took Aubrey to visit Aubrey’s father in West Virginia,
leaving Hailey with Brian and James with his foster family.3
3 Although mother claimed Aubrey’s father was a sperm donor, she now
acknowledged that she knew who he was and that he lived on the East Coast.
4.
During this reporting period, the Agency learned that mother was again pregnant,
this time with twins due in August of 2013. Mother planned to give the twins up for
adoption to her friend who lived in another state. Mother’s roommate, Brian, who was
the father of the unborn babies, agreed with the plan of adoption. Mother claimed she
and Brian had a platonic relationship. Mother was going to take Hailey and Aubrey with
her to the other state four to six weeks prior to her due date so that delivery could happen
where her friend lived. She would leave James with his foster family and “Skype” him
while she was gone. Because of her pregnancy, mother stated that she could not take at
least one of the medications she had been taking. Mother’s doctor subsequently
determined that she should not take any psychoactive medications while pregnant.
At the May 7, 2013, contested hearing, mother did not appear in court. Her
attorney requested a continuance, stating that mother had not returned from her trip out of
town. The juvenile court noted that, when the date was set, mother had said she would be
available. The court denied the request for continuance finding no good cause. After
argument, the juvenile court found, by a preponderance of the evidence, that return of
James to mother would create a substantial risk of detriment to his safety, protection, or
physical or emotional well-being. The court based its ruling on numerous factors:
mother’s failure to pay attention to James’s medical needs, including the times she failed
to pick him up from school when he was sick; the regression James exhibited after visits
with mother; the tendency for mother to use the foster mother as a babysitter for her
convenience; mother cancelling and changing visits with James at her own convenience;
the amount of time mother spent researching issues on Facebook, the Internet and writing
voluminous e-mails, time which would be better spent caring for her children; and
mother’s plan to leave James for six weeks while she went to another state to have her
twins. The court ordered continued services until the 18-month hearing. Mother
appealed from these orders and this court affirmed (case No. F067473).
5.
The report prepared in anticipation of the 18-month review recommended
termination of services and setting a section 366.26 hearing. The report indicated that
mother now admitted she and Brian were in a relationship and they no longer intended to
give the twins up for adoption, but would raise them together. The family became
homeless and was given a voucher for two weeks of housing at a motel through a county
homeless program. After that, the social worker lost track of the family until mother
came to the Agency on July 23, 2013.
That same day, the social worker received a call from James’s foster family stating
that mother was living in a home with many other people and had had a visit with James
there. According to mother, she had not contacted the Agency sooner because her phone
was stolen. Mother also claimed that she was no longer in the house with many others,
but was now renting a room in a different house. Mother was told that, until the adults in
the home could be fingerprinted, James was not to visit her there.
The social worker and mother met and agreed that visits would be in a local park
in the interim. While the social worker and mother were meeting, another social worker
reported that Brian, who was in the waiting room with Aubrey and Hailey, had
inappropriately forced Hailey to sit in a chair. Mother became incensed when told this
and refused to believe that Brian would do that. Mother stated that she had attended an
intake appointment for Section 8 housing and was waiting to hear from them.
The report stated that mother was not participating regularly in her case plan and
was making little, if any, progress. Mother, who was supposed to be in mental health
counseling, did not keep up visits when she became homeless. Mother was not taking
medication due to her pregnancy.
Mother made numerous requests for changes to her scheduled visits with James,
including on Mother’s Day when she asked the foster mother to pick James up early
because mother wanted to take the other children to the lake and there was no room for
James in the car.
6.
James was reported to be healthy and doing well in the foster home. He was
comfortable in that environment and benefitting from the guidance, patience and routine
his foster mother provided. James continued to have some behavior problems in school,
although it was eventually agreed to mainstream him into a regular Kindergarten class in
the Fall. James continued to receive intensive treatment with a support counselor who
met with him weekly in his foster home and at school.
In evaluating the case, the social worker noted that the concerns about mother and
her parenting skills with James remained the same as they were 18 months earlier. The
report noted mother’s mental health issues, her lack of parenting abilities, her lack of
supervision of the children and her relationship with volatile people. Mother was
overwhelmed caring for Aubrey and Hailey while being pregnant, even without James in
the home. Mother continued to make poor decisions and did not put James’ needs ahead
of her own. James appeared to be improving only because of the intense supervision,
attention and services he was receiving away from mother.
Attached to the review report were several police reports, including one in which
mother had called the police because Hailey was missing. She was found inside the
house. Another report was for a safety check requested by mother’s obstetrician, because
mother was expecting twins and had not been attending her appointments. Mother told
officers that she had changed doctors and was now seeing a doctor in Madera.
Also attached to the report was a visitation log from the foster mother and notes
from James’s school. There was also a transcript of a Facebook conversation between
mother and an anonymous individual, which took place on January 23 and 24, 2013.
Mother requested a contested hearing, which was set for October 1 and 3, 2013.
A supplemental report filed September 20, 2013, stated that mother had given
birth to twin girls on September 10, 2013, and had reported to the hospital staff that she
would not take her psychotropic medication because she wished to nurse the twins.
Mother continued to live in a single room with Brian, Hailey, Aubrey and the twins.
7.
Mother and Brian failed to provide necessary documents to the Housing Authority, which
resulted in denial of their Section 8 application.
After exhibiting difficult behaviors in mainstream Kindergarten, James was
returned to his autism class and was doing better.
Mother had not returned to see her counselor or case manager. She had not
contacted the social worker in some time, despite messages asking her to do so. The
social worker reported that mother only did what she wanted to do and did “not appear to
have any regard to her case.” Mother had had 10 visits since the last report, although she
had ended one early so she could go out to dinner and was late for another. Mother then
told James’s caregiver that “the visit arrangements were not going to work for her ….”
When mother appeared on October 1, 2013, she asked for a continuance because
she had been on bed rest and then had the twins and had not been able to meet to discuss
the case. The twins had been born three weeks early, via C-section, and mother was
unable to talk to her attorney, even by telephone. Mother’s counsel also filed a motion
seeking to strike the attachments to the original report. Following argument regarding
whether the attachments constituted hearsay and could be a part of a review report, the
trial court reviewed the case law and then denied the motion, stating that it would give
the documents the “appropriate weight.” The matter was continued to October 3, 2013.
At the October 3, 2013, hearing, the Agency made an offer of proof that, if called
to testify, the social worker would testify that she had not had contact with mother since
August 2, 2013; that mother had cancelled visits with James on September 22, and 25,
but had visited on September 29, 2013; that none of the adults who lived in the home
with mother had been live-scanned as requested by the Agency; and that mother had not
had any contact with her counselor.
Mother testified that she had received mental health services and had been
assigned a case manager, but she had not yet called her case manager and planned to do
so “today or tomorrow.” According to mother, her roommate would not let her use her
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phone and Brian’s car broke down. Mother claimed to have “tried” to have a medical
evaluation, but “it didn’t really process.” She had not seen her primary care physician,
who prescribed her medication, for seven months. Mother had not made another medical
evaluation appointment because she was waiting to hear from Cindy Ford, although she
knew Ford was no longer her counselor.
Mother testified to her homelessness and that she had provided part of the
documents needed for housing. She still had not gotten the remaining needed documents,
which included Brian’s tax return from last year and his birth certificate. Mother testified
that she, Brian and the children live in one room in a three-bedroom house and that there
are four other adults and a child living there as well. Mother said that she was told by the
owner of the house that she could not ask the other tenants to be live-scanned.
Mother acknowledged missing some recent visits with James, one because she had
a migraine, another because she had the recent C-section, another because she had to go
out of town to see her grandmother, and another because she was at the pharmacy getting
something for the twins. She also explained that she missed four visits in a row in July
because she thought the visits were suspended.
Mother claimed she had a support system through a church and her family. She
also claimed that her recent pregnancy did not affect her ability to care for Hailey and
Aubrey.
Mother asked for two additional months of services “just to give [her] a chance,”
because by then she could get housing, stop breastfeeding and resume medication.
Mother stated that she would start to meet with her mental health counselor again.
The social worker testified on rebuttal that she never told mother visits were
suspended in July. When the social worker met with mother on July 23, 2013, she told
her the visits would be in the park, but mother failed to show for the next four scheduled
visits.
9.
After argument, the trial court stated that, because James had special needs, the
intent and plan was to slowly reintroduce James into mother’s home, but that mother had
not been able to provide the stability and regularity with schedules necessary for James.
The court noted that, even visits were not consistent and some of the reasons for the
missed visits were problematic. In addition, mother’s failure to follow through on the
Section 8 housing application when six people lived in one room was deeply concerning,
as was mother’s failure to address her mental health issues.
The trial court found, by a preponderance of the evidence, that return of James to
mother would create a substantial risk of detriment. It further found that reasonable
services were offered and there was no evidence to indicate that two additional months of
services would help. The trial court terminated services and set a section 366.26 hearing.
This writ followed.
CONTENTIONS
Mother contends that (1) the trial court erred in overruling her objection to the
attachments to the 18-month review report, and (2) substantial evidence did not support
the juvenile court’s finding of detriment if James were returned to her custody at the time
of the hearing. We disagree.
DISCUSSION
I. THE ATTACHMENTS TO THE REPORT WERE PROPERLY ACCEPTED
Mother argues that the trial court erred when it admitted various attachments to the
18-month review report, specifically documents titled “James Information and
Observations,” “James Visit Information,” and anonymous Facebook postings, as well as
several statements about her financial condition made by “Shannon” and “paternal aunt”
included in the report itself. Mother argues that the items were hearsay and lacked
foundation. We find no prejudicial error.
Dependency proceedings “need not be ‘conducted with all the strict formality of a
criminal proceeding.’ [Citations.] As this court has said, ‘[d]ue process is a flexible
10.
concept which depends upon the circumstances and a balancing of various factors.
[Citation.]’ [Citations.] [¶] One specific area of dependency jurisprudence where the
rules of evidence are relaxed is with respect to the reports and social studies prepared by
the caseworker assigned to the family. The reports and studies contain not only the
observations and recommendations of the caseworker, but also hearsay statements from
family members and other witnesses. Despite their hearsay content, such reports are
admissible to assist the court in its determinations. [Citations.] Due process generally
requires, however, that parents be given the right to present evidence, and to cross-
examine adversarial witnesses, such as the caseworker and persons whose hearsay
statements are contained in the reports, ‘i.e., the right to be heard in a meaningful
manner.’” (In re Lesly G. (2008) 162 Cal. App. 4th 904, 914-915.)
The social worker stated in her report that the document titled “James Information
and Observations” was prepared and provided by James’ teacher at his elementary
school. !(CT 1297, 1315-1318)! The relevance of the document was to assist the
juvenile court in understanding James’s autistic behaviors and how they changed from
day to day, often in proximity to visits with mother. Mother knew the identity of James’s
teacher and, had she wanted to challenge the veracity of the observations, she could have
subpoenaed the teacher.
The attachment titled “James’ Visit Information” was kept by James’s caregiver at
the social worker’s request to track the frequent changes and cancelations by mother of
the visits. At the hearing, mother testified at length about the various visits she had with
James and why she cancelled the ones she did. Had mother wished to challenge the
recorded observations, she could have subpoenaed the caregiver for questioning.
The Facebook postings between mother and an anonymous individual related to
events that occurred in the previous reporting period and, as acknowledged by
respondent, had little relevance to the current reporting period. These particular postings
were a major issue and discussed at length without objection in the 12-month review
11.
hearing. Nonetheless, if mother did not believe the postings were from her account, she
could have subpoenaed her own records from Facebook.
As for the statements by “paternal aunt” and “Shannon” concerning mother’s
financial situation contained in the social worker’s log note dated June 12, 2013, these
certainly fit within the acceptable parameters of “hearsay statements from family
members and other witnesses” contained in the report prepared by the social worker. (In
re Lesly G., supra, 162 Cal.App.4th at pp. 914-915.) Again, mother could have
subpoenaed the witnesses had she wanted to.
Mother asked for and received a contested hearing. The social worker was
present, but not called to be cross-examined by mother. Neither did mother call James’s
caregiver, his teacher, or those mentioned in the social worker’s report to be cross-
examined. There is no question mother was given an opportunity to be heard in a
meaningful manner. Due process was not offended by the trial court considering these
documents and “giv[ing] the objected items the appropriate weight that this Court feels
would be appropriate under the circumstances.” We assume the juvenile court did just
that. In any event, it is not reasonably probable that the result would have been different
had the evidence not been admitted. (People v. Watson (1956) 46 Cal. 2d 818, 836.)
II. SUBSTANTIAL EVIDENCE SUPPORTS THE JUVENILE COURT’S
FINDINGS
Mother contends that there was insufficient evidence to support the juvenile
court’s orders terminating reunification services and setting the section 366.26 hearing.
We disagree.
“When a child is removed from a parent’s custody, the juvenile court ordinarily
must order child welfare services for the minor and the parent for the purpose of
facilitating reunification of the family. (§ 361.5, subd. (a).)” (Tonya M. v, Superior
Court (2007) 42 Cal. 4th 836, 843.) But “[c]hildhood does not wait for a parent to
become adequate” (In re Marilyn H. (1993) 5 Cal. 4th 295, 310) and, in the interest of
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allowing children “to get on with the task of growing up” (In re Beatrice M. (1994) 29
Cal. App. 4th 1411, 1419), the Legislature has set 18 months as the maximum period of
reunification services, except where reasonable services have not been provided.
(§ 361.5, subd. (a).) Accordingly, “‘[a]bsent extraordinary circumstances, the 18-month
review hearing constitutes a critical juncture at which “the court must return children to
their parents and thereby achieve the goal of family preservation or terminate services
and proceed to devising a permanent plan for the children.” [Citations.]’ [Citation.] At
this point, ‘the focus of a dependency proceeding shifts to the child’s needs for
permanency and stability.’ [Citation.]” (V.C. v. Superior Court (2010) 188 Cal. App. 4th
521, 529.)
At the 18-month review hearing, “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 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
detriment.” (§ 366.22, subd. (a); rule 5.720.)
“The standard for showing detriment is ‘a fairly high one. It cannot be merely that
the parent in question is less than ideal, did not benefit from the reunification services as
much as we might have hoped, or seems less capable than an available foster parent or
other family member.’ [Citation.] Rather, the risk of detriment must be substantial, such
that returning a child to parental custody represents some danger to the child’s physical or
emotional well-being. [Citations.]” (In re Yvonne W. (2008) 165 Cal. App. 4th 1394,
1400.)
In determining whether it would be detrimental to return a child to the parent at
the 18-month review hearing, the juvenile court must consider whether the parent
participated regularly in and made substantial progress in a court-ordered treatment
program, the “efforts or progress” of the parent, and the “extent” the parent “availed
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himself or herself of services provided.” (§ 366.22, subd. (a); Jennifer A. v. Superior
Court (2004) 117 Cal. App. 4th 1322, 1341.) “The failure of the parent … to participate
regularly and make substantive progress in court-ordered treatment programs shall be
prima facie evidence that return would be detrimental.” (§ 366.22, subd. (a).)
This court reviews the records to determine whether substantial evidence supports
the juvenile court’s finding that a child would be at substantial risk of detriment if
returned to the parent’s custody. (In re Yvonne W., supra, 165 Cal.App.4th at pp. 1400-
1401.) “[W]e consider the evidence favorably to the prevailing party and resolve all
conflicts in support of the trial court’s order. [Citation.]” (Id. at p. 1401.) Moreover,
“[i]t is the trial court’s role to assess the credibility of the various witnesses, [and] to
weigh the evidence to resolve the conflicts in the evidence. We have no power to judge
the effect or value of evidence, to weigh the evidence, to consider the credibility of
witnesses or to resolve conflicts in the evidence or the reasonable inferences which may
be drawn from that evidence. [Citations.]” (In re Casey D. (1999) 70 Cal. App. 4th 38,
52-53.) “The appellant has the burden of showing there is no evidence of a sufficiently
substantial nature to support the finding or order. [Citations.]” (In re Dakota H. (2005)
132 Cal. App. 4th 212, 228.)
Mother argues that the Agency did not demonstrate there was a substantial risk of
detriment to return James to her care. We disagree. We find that substantial evidence
supports the trial court’s finding that mother had not made substantive progress in
alleviating the concerns that first brought her to the attention of the court. At the
beginning of the case, mother was overwhelmed and unable to care for her two children
without assistance. Some three years later, mother was still overwhelmed and unable to
care for her now six children, four of whom were in her care, without substantial outside
assistance of all manner - physical, financial and emotional. Mother did not follow
through on help offered and did not take responsibility for her actions. Within the latest
recording period, mother failed to follow through on finding appropriate housing; she
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failed to obtain a medication evaluation and follow the prescribed medication regime to
alleviate some of her mental health symptoms; and she found numerous excuses for
cancelling visits with James.
Having determined that substantial evidence supports the juvenile court’s finding
of detriment, we conclude that the juvenile court did not err in terminating mother’s
reunification services and setting a section 366.26 permanency planning hearing for
James.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.
15.