M.M. v. Superior Court CA4/3 ( 2021 )

Filed 10/20/21 M.M. v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
M.M.,
Petitioner, G060484
v. (Super. Ct. No. 19DP1029,
19DP1030)
THE SUPERIOR COURT OF ORANGE
COUNTY, OPINION
Respondent;
ORANGE COUNTY SOCIAL
SERVICES AGENCY et al.,
Real Parties in Interest.
Original proceedings; petition for a writ of mandate/prohibition to
challenge an order of the Superior Court of Orange County, Jeremy D. Dolnick, Judge.
Denied.
Donna P. Chirco, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County
Counsel, for Real Party in Interest, Orange County Social Services Agency.
No appearance for Real Parties in Interest, the Minors.
* * *
In this petition, the father, M.M., contends the evidence was insufficient to
support the juvenile court’s orders denying the return of minors his daughters to his care,
terminating his reunification services, and setting the case for a Welfare and Institutions
Code section 366.26 hearing. As discussed below, we deny the petition.
I
FACTUAL AND PROCEDURAL HISTORY
A. Removal of the Minors
On August 26, 2019, SSA sought a protective custody warrant for the
minors, requesting removal of the children due to Mother’s ongoing and unresolved
mental health issues and domestic violence issues and Father’s continuing relationship
with Mother despite being assaulted. Mother had threatened Father in front of the
children and stabbed a kitchen table with a knife, and on August 12, 2019, after a safety
plan had been developed for the parents, she had slapped Father twice in the presence of
two children and later punched him. The juvenile court granted the application, finding
continuing in the home would be contrary to the children’s welfare.
On August 28, 2019, SSA filed a petition alleging the minors came within
Welfare & Institutions Code section 3000, subdivision (b)(1), due to the parents exposing
1
them to domestic violence. The parents later submitted on, and the juvenile court
sustained, the amended petition. The parents stipulated they exposed the children to
domestic violence, Mother had been arrested for battery on the father, and Father had a
criminal history of disorderly conduct and inflicting corporal injury on a spouse.
At the detention hearing, the juvenile court found it was an immediate and
urgent necessity that the minors be detained from the care of parents. It granted the
1
All further statutory references are to the Welfare & Institutions Code, unless stated
otherwise.
2
parents eight hours a week, supervised visitation, and ordered SSA to provide
reunification services. As part of Father’s case plan, he completed a parenting class in
November 2019. On December 4, 2019, Father’s counsel informed social worker
Saldivar that Mother would move out by the end of the week and asked for a home
assessment. When Saldivar contacted Father on December 23, 2019, Mother had not
moved out yet.
At the January 7, 2020 disposition hearing, the court found continued
placement of the children was necessary and appropriate, and that the progress of the
parents to alleviate or mitigate the causes necessitating placement had been minimal.
B. Six-Month and 12-Month Reviews
In her June 4, 2020, six-month review report, Senior Social Worker Andrea
Guillen stated that Father and Mother continued to reside together in a one-bedroom
apartment. Father mentioned “he is in a relationship with the mother, however, he is also
thinking about possibly moving . . . because the mother is always angry with him.” Due
to the pandemic Father had video visits with the minors, but failed to call several times.
He explained he did not have the phone number for the video visits, and Mother did not
allow him to call. Guillen forwarded him the number. Guillen also encouraged Father to
seek medical attention after he reported his vision was blurry.
Mother told Guillen she did not love Father or want to be in a relationship
with him; she only resided with Father because he paid the rent. Mother contacted
Guillen several times and “left voicemails expressing uncontrollable anger and making
erratic comments that reflect that the mother has unresolved anger issues and that the
mother may be suffering from a mental illness that has not been addressed.” Guillen
expressed concern that the parents “continue to reside in the same household despite the
conflicts that are continually occurring.”
On June 10, 2020, Father reported he planned to move out later that month,
but would still help Mother with rent. In August 13, 2020, however, the parents were still
3
living together. On August 23, the minors’ caregiver wrote to Guillen expressing
concerns about Father’s vision problem that manifested during a visit. When Guillen
spoke with Father, he said he would call that week to schedule a vision appointment.
On September 1, 2020, Mother informed Guillen she had moved but still
received mail at Father’s address. Mother said she did not love Father but wanted to
coparent with him. Father said he wanted to be in a relationship with Mother. When
Guillen raised concerns about his vision, Father agreed he had trouble seeing, but stated
he would be seeing a doctor.
On September 15, 2020, Father reported that after he asked Mother to take
her cats with her when she moved out, Mother threatened to call immigration to deport
him. The following week, Mother reported she had taken Father to the hospital because
he was suffering severe abdominal pain. She also stated that ever since she moved out,
Father would tell her he wanted her to move back and that he loves her.
On October 15, 2020, the juvenile court held the combined six- and 12-
month reviews. It found reasonable services had been provided to the parents and that
they had moderate progress, and ordered reunification services be continued to the 18-
month review date, February 24, 2021. It ordered SSA to assess Father’s home and to
continue to assess the parents for liberalized visitation.
C. 18-Month Review Report
In her 18-month review report, Guillen recommended that reunification
services be terminated and a section 366.26 hearing be set to select a permanent plan for
the minors. Mother was living with her new boyfriend, who had a 2005 domestic
violence conviction. Mother again left voicemails for Guillen, which showed she
continued to struggle with her mental health and unresolved anger issues. Father was
living with his sister and her family.
Guillen spoke with Father’s therapist Vanessa Valdivia, who described
Father as intensely codependent on Mother. He had little insight, but had made some
4
progress on his goals and would benefit from further therapy. On February 5, 2021,
Guillen informed Father she had sent another referral for therapy. On February 9, Father
told Guillen he felt he needed further therapy and did not want his children adopted.
On March 4, 2021, Father reported that he had not seen an eye specialist yet
because he was too busy with work. Father also stated he had not contacted Mother, but
then apologized when Guillen informed him she was aware Mother was transporting
Father to visits. Guillen also informed Father she was not able to refer him to an SSA-
contracted counselor, and provided him with available resources for counseling such as
the local Family Resource Center (FRC).
On May 4, 2021, Father told Guillen he did not know how he would attend
therapy or more classes due to the visitation schedule and lack of transportation. He
declined a bus pass, but agreed to call Magnolia Park FRC and reenroll in therapy.
On May 5, 2021, Guillen received a call from the caregiver for the sibling,
Elisabel, who was upset after Father told her Mother had left with a man named Juan,
who does drugs. Elisabel expressed concern that Mother would relapse, and Guillen told
the child she would attempt to locate Mother. Guillen called Father, who stated he would
go to Mother’s home to check. The next day, Mother called Guillen and reported she was
with Father, who was taking her to court.
D. 18-Month Review Evidentiary Hearing
At the contested hearing on the 18-month review, Guillen testified she
recommended terminating Father’s services and setting a 366.26 hearing because the
problems leading to the minors’ removal had not been resolved. Specifically, Father
failed to show he could protect the children from exposure to domestic violence by
Mother. Guillen believed Father lacked insight and needed further therapy. When she
interviewed Father about addressing Mother’s domestic violence, he could not give an
explanation why he continued to be with Mother or why he could not leave her. Guillen
5
believed Father needed to be more independent, learn appropriate parenting during visits,
and address his vision problems. Guillen noted Mother still transported Father to visits.
Father testified Mother currently did not live with him and had never
visited his residence. His relationship with Mother ended on September 5, 2020. Father
initially testified he last contacted Mother in January 2021, before acknowledging he
asked Mother to drive him to three visits in February. Father explained he would have
missed the visits if he had taken the bus after work, but stated he no longer needed to rely
on Mother to transport him because beginning in March he received permission to leave
work earlier.
Father testified he missed a recent visit because he had gone to see an eye
specialist to address the caregivers’ concerns about his vision. Father, however, denied
telling Guillen he had vision problems or had lost sight of a child during a visit. He also
denied speaking to Elisabel about Mother.
During questioning by his counsel, Father stated he did not believe his
relationship with Mother was at any time an abusive relationship. He initially denied that
Mother was aggressive against him, but later acknowledged she had hit him in the face.
Father testified the children were removed because he failed to protect the children from
Mother’s aggression against them. He further testified he would protect the children by
calling the police.
Mother testified she was the person who ended the relationship. Initially,
Father could not accept the end of their relationship, telling Mother he still loved her.
Mother acknowledged she transported Father to his visits three times. She denied
attending video visits with Father in 2021.
Father’s therapist Valdivia testified Father gained some insight into his
codependent behavior and was taking “steps to be more independent and focus on the
safety of his children.” Valdivia did not recall telling Guillen Father was intensely
codependent or gained little insight. She recommended further therapy for Father, but
6
had told Guillen everyone could benefit from additional therapy, not just Father. After
Father completed therapy, Valdivia wrote a report where she concluded Father needed to
work on his conflict resolution and that he “has a lot of unresolved issues with self-
esteem and co-dependent behavior, and needs to continue working on his goals in order
to maintain and further support areas of therapy.”
After the evidentiary hearing, the juvenile court found by a preponderance
of the evidence that returning the minors to the parents would create a substantial risk of
detriment to the children’s well-being. The court found the parents were offered
reasonable reunification services. Father’s progress had been moderate and Mother’s was
minimal. The court terminated the Father’s reunification services, and set the matter for a
hearing pursuant to section 366.26.
The court stated the primary issue it considered in determining whether to
reunite Father with the minors was whether Father could protect them from Mother; it did
not consider Father’s vision problems an issue that would prevent return of the children.
It concluded that “[a]lthough the father may get passing grades in many aspects of his
case plan, he does not so when it comes to his ability to be protective of the minors from
the mother.” The court commended Father’s progress, but stated it was not convinced
Father would call the police if Mother appeared on his doorstep because he had not
demonstrated appropriate boundaries. Father continued to have contact with Mother and
involved a child in his problems with Mother. His therapist reported that Father had
unresolved issues with self-esteem and codependent behavior and needed to continue
working on those goals, but Father had arguably regressed following termination of his
therapy.
The court found that SSA continued to make efforts to encourage and assist
Father in additional therapy, but “Father did not do his part and admitted as much. [He]
conveyed a need and desire to have therapy, but did not express any barriers to further
enrollment nor expressed any need for assistance from the social worker.” The court
7
found no good cause to extend reunification services to the 24-month date, which was six
weeks away. It granted funding for additional therapy for Father pending the 366.26
hearing.
II
DISCUSSION
A. Substantial Evidence Supports the Trial Court’s Finding of Detriment
Section 366.22, subdivision (a)(1), provides that at the 18-month review
hearing, the juvenile 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.” In
making its determination, the juvenile court shall consider “the efforts or progress, or
both, demonstrated by the parent or legal guardian and the extent to which he or she
availed himself or herself of services provided . . .” (§ 366.22, subd. (a)(1).) If “the
child is not returned to a parent or legal guardian at the subsequent permanency review
hearing, the court shall order that a hearing be held pursuant to Section 366.26.”
(§ 366.22, subd. (a)(3).)
The juvenile court’s finding of detriment is reviewed under the substantial
evidence standard. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400.) In reviewing
for substantial evidence, “[w]e do not pass on the credibility of witnesses, attempt to
resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw
all reasonable inferences in support of the findings, view the record most favorably to the
juvenile court’s order, and affirm . . . even if other evidence supports a contrary
conclusion.” (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)
Father argues the evidence was insufficient to support the juvenile court’s
finding of detriment because he participated in parenting classes and counseling, was no
8
longer in a relationship or living with Mother, was bonded and appropriate with his
children during visits, and had resources to support the minors’ needs. We disagree.
While some evidence could support a contrary finding, there was ample evidence in the
record to support the juvenile court’s finding of detriment. As the court noted, although
Father had made some progress, he failed to demonstrate he would protect the minors
from Mother. Mother remained a risk because she still had not resolved her mental
health and anger issues. Father has not demonstrated he would turn Mother away or call
the police if Mother appeared, uninvited, at his home. For example, in response to his
counsel’s questioning, Father stated his relationship with Mother was never abusive,
before acknowledging she had physically assaulted him. Mother testified Father could
not accept the end of their relationship, and repeatedly called her to say he still loved her.
Although Father moved out, he kept in regular contact with Mother, including asking her
for rides to visits and giving her a ride to court. In sum, substantial evidence supported
the trial court’s finding that return of the minors to Father posed a substantial risk of
detriment to their safety, protection, or physical or emotional well-being.
B. Father Was Provided Reasonable Services
Father also argues the juvenile court erred in denying him additional
reunification services because he was not provided reasonable services. Specifically,
Father complains his visits were not liberalized to unmonitored visits due to misplaced
concerns about his vision, and SSA failed to ensure he could participate in additional
therapy despite his stated desire for additional therapy.
We review the juvenile court’s finding that SSA had provided reasonable
services for substantial evidence. (Melinda K. v. Superior Court (2004) 116 Cal.App.4th
1147, 1158.) The adequacy of “SSA’s efforts are judged according to the circumstances
of each case.” (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) “The
standard is not whether the services provided were the best that might have been
provided, but whether they were reasonable under the circumstances.” (Elijah R. v.
9
Superior Court (1998) 66 Cal.App.4th 965, 969.) Furthermore, “‘[r]eunification services
are voluntary . . . and an unwilling or indifferent parent cannot be forced to comply with
them.’” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365.)
Here, substantial evidence supported the trial court’s finding that SSA
provided reasonable services. Father does not provide any record citations showing he
requested unmonitored visits in the months preceding the 18-month review. Even if he
had, SSA would have acted reasonably in denying unmonitored visits because Father had
not demonstrated he would protect the minors from Mother, who was present nearby at
multiple visits. As to the additional therapy, the record shows Guillen encouraged Father
to enroll in additional therapy and provided him referrals to local resources. She also
offered a bus pass, which he declined.
Finally, Father has not shown good cause to extend reunification services
beyond 18 months. The juvenile court generally lacks jurisdiction to extend reunification
services past 18 months from the date of the children’s removal from the parents’
custody. (Los Angeles County Dept. of Children etc. Services v. Superior Court (1997)
60 Cal.App.4th 1088, 1091-1093.) The court has discretion to extend these services, for
up to six months, upon a showing of good cause. (Mark N. v. Superior Court (1998)
60 Cal.App.4th 996, 1016 (Mark N.), superseded by statute on another ground as stated in
Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1504.) In exercising that
discretion, the court should consider: “the failure to offer or provide reasonable
reunification services; the likelihood of success of further reunification services; whether
[the children’s] need for a prompt resolution of [their] dependency status outweighs any
benefit from further reunification services; and any other relevant factors the parties may
bring to the court’s attention.” (Mark N. supra, at p. 1017.) Here, Father was provided
reasonable services. Moreover, with the 24-month date only weeks away, providing
more reunification services would not have been meaningful. Lastly, we note the trial
court did authorize funding for additional therapy until the section 366.26 hearing.
10
III
DISPOSITION
The petition is denied.
ZELON, J.*
WE CONCUR:
FYBEL, ACTING P. J.
GOETHALS, J.
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
11