A.H. v. Superior Court CA5 ( 2016 )

Filed 6/21/16 A.H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
A. H.,
F073440
Petitioner,
(Super. Ct. No. 14CEJ300181-2)
v.
THE SUPERIOR COURT OF FRESNO OPINION
COUNTY,
Respondent;
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent.
THE COURT*
ORIGINAL PROCEEDING; petition for extraordinary writ review. Mary Dolas,
Judge.
Elaine Henderson, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County
Counsel, for Real Party in Interest.
-ooOoo-
* Before Gomes, Acting P.J., Detjen, J. and Franson, J.
A.H. (mother) seeks extraordinary writ relief from the juvenile court’s orders
issued at a contested 12 and 18-month review hearing (Welf. & Inst. Code, §§ 366.21,
subd. (f)(1) & 366.22, subd. (a)(1))1 terminating her reunification services and setting a
section 366.26 hearing as to her now nine-year-old daughter M.L. Mother contends the
juvenile court erred in finding it would be detrimental to return M.L. to her custody and
in finding she was provided reasonable visitation. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
In October 2014, the juvenile court exercised its dependency jurisdiction over
mother’s two daughters, then 10-year-old J.H. and seven-year-old M.L., after sustaining
allegations that mother and her ex-girlfriend doused each other with lighter fluid during a
domestic altercation in the presence of the children. The court ordered mother to
participate in parenting, substance abuse, mental health and domestic violence services.
The court denied reunification services for J.H.’s alleged fathers and for M.L.’s presumed
father. The court also ordered a minimum of one weekly supervised visit for mother, J.H.
and M.L., and granted the Fresno County Department of Social Services (department)
discretion to advance to unsupervised and liberal visitation. At that time, J.H. was in a
group home and M.L. was placed with her paternal grandparents with whom she lived
intermittently from the age of three months.
The juvenile court also ordered that mother’s visits with J.H. be therapeutic
supervised visits because of an incident that occurred following a visit with mother in
August 2014. J.H. became upset over being in foster care, broke away from mother and
the social worker and ran to an underpass where she hit the wall and yelled at the
passersby to call law enforcement. She also screamed that the social worker was trying
to rape her. Back at her group home, she broke a pencil and stabbed her leg with it. She
said she wanted to kill herself and asked to be taken to the hospital. She was
1 Statutory references are to the Welfare and Institutions Code.
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involuntarily committed and evaluated by a psychiatrist who prescribed psychotropic
medication for her.
Over the ensuing months, J.H. continued to exhibit severe behavioral and
emotional issues. She was physically and verbally aggressive and threatened to harm
herself and the residents and staff at the group home. By March 2015, she had been
involuntarily committed 14 times, four of which resulted in hospitalizations exceeding
72 hours. Meanwhile, mother completed a parenting program. She was participating in
but had not completed any of her other services. She was interacting better with J.H.
during visitation, however, visitation was still a trigger for J.H.’s decompensation. Of the
14 involuntary commitments, nine of them followed a visit with mother or a cancelled
visit.
At the six-month review hearing in March 2015, the juvenile court continued
mother’s reunification services to the 12-month review hearing which it set for July 2015.
In May 2015, the social worker filed a section 388 petition asking the juvenile
court to change M.L.’s visitation to therapeutically supervised visitation because mother
was attempting to manipulate M.L. into lying about her paternal grandparents and M.L.’s
behavior was getting progressively worse. Mother told M.L. she could come live with
her sooner if she said her paternal grandfather physically abused her.
In its report for the 12-month review hearing, the department advised the juvenile
court that it would be detrimental to return the girls to mother’s custody. The department
cited a therapy session in June 2015 during which mother told the therapist that the
government was trying to kill everyone. Mother said the government wanted to cut her
children’s heads off and she was going to warn them. However, she also said that she
was going to suggest to them that they allow the government to cut off their heads so they
could go to heaven. Then she realized they would not go to heaven because they sinned.
Asked how they sinned, mother explained that the children did not listen to adults and
talked back to them. Mother’s therapist stated that she had never acted that way before.
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The department was also concerned that mother still required therapeutic supervision
during visitation and coached M.L. into saying that her paternal grandparents physically
abused her. The department recommended the juvenile court terminate mother’s
reunification services as to M.L. and set a section 366.26 hearing to establish a permanent
plan. As to J.H., the department recommended the court establish a plan of planned
permanent living arrangement because her special needs made her unlikely to be adopted.
In July 2015, the juvenile court convened but continued the 12-month review
hearing and ordered the department to assess increasing visits with the girls. In an
addendum report prepared the following August, the department recommended the court
suspend mother’s visitation with J.H. and continue therapeutic supervised visitation with
M.L. The department’s recommendation as to J.H. stemmed from an incident in August
2015 in which J.H. became erratic and verbally and physically aggressive because mother
did not bring her a pair of new shoes as promised. Mother attempted to intervene, but in
doing so became verbally aggressive as well and threatened physical violence. J.H.’s
therapist recommended the department suspend mother’s visits with J.H. The following
week, mother was scheduled to have a visit with M.L. Mother was hostile to the
therapists and made veiled threats of violence. She told the therapists that in “L.A. some
social workers got acid thrown on their faces for taking away a parent’s child,” and she
was heard telling someone on the telephone that she needed an attorney in case she did
“something.”
In August 2015, the juvenile court set the matter for a contested 12-month review
hearing and the following month ordered the department to file a report for a combined
12 and 18-month review hearing (combined hearing) which the court scheduled in
November 2015. That same month, the department suspended visitation between J.H.
and M.L.
In its report for the 18-month review hearing, the department’s recommendations
as to J.H. and M.L. remained unchanged. The department reported that J.H. was in a
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mentor placement from June until October 2015. Her care provider reported that she was
erratic and unstable and that her mood changed from “happy to mad” without warning.
She displayed violent and aggressive behavior and threatened to make allegations about
the care provider to get her into trouble. After J.H. was removed from the mentor
placement in October and before the department prepared its report in November, she
was placed in 12 foster or group homes, was physically assaultive with staff, and was
involuntarily committed twice in October 2015. The department also reported that
mother’s last therapeutic visit occurred on October 8, 2015, because the supervising
services provider was no longer willing to supervise J.H. at their facility following an
incident with mother, J.H. and M.L., in which mother teased J.H. about her hair
extensions. J.H. required crisis intervention following five visits with mother from June
to October 2015.
In November 2015, the juvenile court continued the combined hearing and set it
as a contested hearing in January 2016. The court also granted the department discretion
to begin extended visitation between mother and J.H. The department informed the court
that in November 2015, after J.H. refused to enter foster care, the department placed J.H.
with mother on a liberal visit and placed them in emergency housing. Mother reported
that J.H. did well with her over the Thanksgiving holiday. The department also informed
the court that J.H. did not have a good relationship with M.L. and was verbally abusive to
her during visitation. Nevertheless, mother wanted to reunify with her daughters and J.H.
and M.L. wanted to reunify with their mother.
In December 2015, the juvenile court set the combined hearing for a contested
hearing. It was continued and conducted in March 2016.
Meanwhile, the department filed an addendum report recommending the juvenile
court continue J.H.’s extended visit with the goal of progressing to family maintenance.
Though J.H.’s out-of-control behavior continued, the department believed it was in her
best interest to remain with mother with departmental support. The department’s
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recommendation as to M.L. remained unchanged. The department reported that J.H. was
verbally abusive to M.L. and that mother was unable to de-escalate J.H. when the girls
were together and J.H. had an angry outburst.
In March 2016, the juvenile court conducted a contested combined hearing. J.H.,
then 11 years old, testified that she wanted to live with her mother and M.L. She
acknowledged that she had not asked to visit M.L., explaining that she had been “stressed
out” and had “a lot of stuff on [her] mind.” Nine-year-old M.L. testified that she wanted
to live with mother and J.H. She had been asking to visit J.H. and said her visits with
J.H. were good sometimes and not good other times. They were not good when J.H. got
mad and fought. M.L. said she had fun with mother. After J.H. and M.L. testified and
left the courtroom, M.L. cried because she thought she was going home with mother.
J.H. became upset also and the social worker had to leave the courtroom to help calm her.
Mother testified that despite J.H.’s behavioral issues, she had managed to keep her
in her home. She explained that she was authorized to stay in emergency housing until
mid-March. After that, she would remain there if it was approved or go live with her
sister in Sacramento. She believed that she could manage both girls in her custody.
Social worker Lucina Rojas testified mother completed all of her court-ordered
services. She said that M.L. wanted to live with mother but was also indecisive because
she loved her mother and her paternal grandparents. More recently, she expressed a
preference to live with mother. Rojas believed it would be detrimental to M.L. to return
to mother’s custody because J.H. was verbally abusive to her and mother was unable to
effectively intervene. In addition, mother’s housing situation was unstable and mother
had not progressed beyond therapeutically supervised visits with M.L. She said mother’s
sister had a place for mother and both girls in Sacramento.
Following testimony, the parties stipulated that mother’s sister was willing to
allow mother and the girls to live with her for an undisclosed period of time.
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At the conclusion of the hearing, the juvenile court ordered J.H. returned to mother
under family maintenance and set a family maintenance review hearing. The court found
it would be detrimental to return M.L. to mother’s custody, terminated mother’s
reunification services and set a section 366.26 hearing to consider a permanent plan of
legal guardianship with the paternal grandparents. In ruling, the court explained that
M.L. was younger and more at risk of being harmed by J.H. and that mother was not able
to protect her.
This petition ensued.
DISCUSSION
Mother contends there is insufficient evidence to support the juvenile court’s
findings that it would be detrimental to return M.L. to her custody and that she was
provided reasonable visitation. On a challenge to the sufficiency of the evidence, we
review the record to determine whether there is substantial evidence to support the
juvenile court’s findings. The appellant has the burden of showing the finding or order is
not supported by substantial evidence. (In re L.Y.L. (2002) 101 Cal. App. 4th 942, 947.)
The purpose of reunification services is to reunify a family. In fact, the
dependency statutes presume that a dependent child will be returned to parental custody
at each review hearing unless the juvenile court finds that return would be detrimental to
the child. (§§ 366.21, subds. (e) & (f), 366.22, subd. (a)(1).) In addition, visitation is a
critical component of a reunification plan and the department has an obligation to make
reasonable efforts to facilitate reunification even under difficult circumstances.
In this case, J.H.’s extreme behavior and mother’s inability to redirect her
impacted M.L.’s safety in the home and the family’s ability to maintain a visitation
schedule. The record is replete with descriptions of J.H.’s volatility and potential for
aggression and violence. She required numerous crisis interventions and routinely
targeted those closest to her, including M.L. J.H. was also determined to be with mother
and, in the end, mother was the best suited to take care of her.
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Mother argues that the juvenile court’s decision not to return M.L. to her custody
is unfair to M.L. She states, “The way this case has been structured, [she] was destined
to lose one of her children no matter what she did. This is untenable.” (Writ petition at
p. 19.)
The juvenile court’s decisions, however, are not driven by fairness. Rather, the
juvenile court’s focus and primary consideration must always be on the best interest of
the child. (In re Chantal S. (1996) 13 Cal. 4th 196, 206.) In this case, the juvenile court
had to determine what was best for J.H. and M.L. The court rightly determined that it
was in J.H.’s best interest to be placed with mother. Having made that decision, the
question then became whether M.L. could be safely returned to mother’s custody or
whether returning M.L. would be detrimental to her. The court properly determined that
it would be detrimental to M.L. given J.H.’s extreme behavioral problems, mother’s
inability to protect M.L. from J.H., and M.L.’s younger age and inability to protect
herself.
Mother also argues the department acted unreasonably in not implementing the
court’s visitation orders. Specifically, she faults the department for not advancing her
beyond therapeutically supervised visitation with M.L., not complying with the sibling
visitation order and not arranging family visitation. Mother fails to show, however, why
the department’s failure to strictly comply was unreasonable under these circumstances.
According to the record, it was mother who in April 2015 requested
therapeutically supervised visits with M.L. She said she preferred it even though the
social worker told her that it signaled a regression and was not positive for her case.
Thereafter, mother threatened the therapists during a visit in August 2015, demonstrating
that a heightened level of supervision was warranted in her case.
The record further reflects that J.H. and M.L. had sibling visits prior to the August
2015 incident. However, the department suspended them after the incident because,
according to M.L.’s grandparents, M.L. was becoming increasingly defiant and
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aggressive after contact with mother and was beginning to emulate J.H.’s behavior.
Under those circumstances, it was not unreasonable for the department to suspend sibling
visits until it was safe and beneficial to resume them.
In our view, the department was attempting to reunify mother and her daughters
under very difficult circumstances and made reasonable efforts to promote visitation to
the fullest extent possible.
We conclude substantial evidence supports the juvenile court’s findings regarding
detriment and reasonableness of services and deny the petition.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.
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