J.People v. Superior Court CA5 ( 2022 )

Filed 8/19/22 J.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
J.P. ,
F084492
Petitioner,
(Super. Ct. No. 21CEJ300088-1)
v.
THE SUPERIOR COURT OF FRESNO OPINION
COUNTY,
Respondent;
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Real Party in Interest.
THE COURT *
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Elizabeth
Egan, Judge.
Juvenile Law Center and Olga B. Saito for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Sharise Grote, Deputy County
Counsel, for Real Party in Interest.
-ooOoo-
* Before Franson, Acting P. J., Smith, J. and DeSantos, J.
J.P. (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the
juvenile court’s orders issued at the contested 12-month review hearing (Welf. & Inst.
Code, § 366.21, subd. (f)(1))1 terminating reunification services and setting a
section 366.26 hearing for September 26, 2022, as to her now six-year-old daughter, N.P.
Mother contends the juvenile court erred in finding that the Fresno County Department of
Social Services (department) provided her reasonable reunification services and there was
not a substantial probability N.P. could be returned to her custody on or before the
18-month review hearing. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
Detention and Removal
In March 2021, then five-year-old N.P. was living with mother who had primary
custody. N.P.’s father, G.P. (father), had weekend visits. On March 6, 2021, father told
the police that N.P. disclosed that her seven-year-old male cousin (minor cousin) digitally
penetrated her vagina while they showered at mother’s home. Father also reported that
N.P. arrived at his home every week with scratches and bruises. She also had a bite mark
on her upper thigh.
The police placed a protective hold on N.P. at father’s home, contacted the
department and began making arrangements for a forensic interview. While there, the
police found a warrant for father’s arrest out of another county for domestic violence but
were unable to serve it because he barricaded himself inside his home and fled through
the back window.
The investigating social worker observed that N.P. had scabs on her legs and some
bruises on her right leg which were purple in color. She also had bruising on her knee
and thigh the size of a nickel, and there was what appeared to be a bite mark the size of a
child’s mouth. N.P. said she was bitten by another child who lived where her mother
1 Statutory references are to the Welfare and Institutions Code.
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lived. N.P. stated mother did not do anything when it happened because she was asleep.
N.P. said she was always picked on by the other children in the home and was bullied
because of her hair and told that she was ugly. The social worker took N.M. into
protective custody and placed her in foster care.
Mother said the maternal grandmother, maternal step-grandfather, three maternal
aunts and a maternal uncle lived in her home. She denied that the minor cousin lived in
her home and was never told that he was touching N.P. inappropriately. She said she
could keep him out of the home to protect N.P. Mother also denied any criminal history
and illegal drug use but admitted to past domestic violence with father.
The forensic interview was scheduled for March 16, 2021, and the police did not
want their investigation compromised by N.P. returning to mother’s custody.
Consequently, the department filed a dependency petition, alleging N.P. was a child
described under section 300, subdivisions (b)(1) (failure to protect) and (d) (sexual abuse)
because she was digitally penetrated by her minor cousin who was a member of the
household on or around March 6, 2021, and that mother knew or reasonably should have
known that N.P. was being sexually abused. The petition was amended to state that the
minor cousin was a member of the household as a frequent visitor and that mother was
informed of the sexual abuse but did not believe it occurred.
The juvenile court ordered N.P. detained and offered mother parenting classes,
mental health and domestic violence assessments and recommended treatment, offered
father random drug testing, and set the jurisdiction/disposition hearing for April 26, 2021.
Meanwhile, N.P. told the forensic interviewer her minor cousin touched her vagina
under her clothes and her eight-year-old aunt held her leg down while the minor cousin
bit her thigh. She said it happened in her home. During a meeting with social workers on
April 14, 2021, mother said she did not believe N.P. was sexually abused. She said N.P.
told law enforcement she was physically hit, which was not true. She showered N.P.
every time she went to visit father and she did not notice the bite mark when she
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showered her before the last visit. The minor cousin did not live in their home and was
rarely there. He lived a couple of apartments away. Mother did notice a bruise in N.P.’s
private area but N.P. stated she fell and it did not hurt. Asked how she would protect
N.P. from further sexual abuse, mother did not respond.
The department recommended the juvenile court deny mother reunification
services under section 361.5, subdivision (b)(6) (severe sexual abuse) and deny father
placement because of his history of domestic violence and current criminal charges. N.P.
participated in a mental health assessment and was referred for individual mental health
treatment.
On April 26, 2021, the juvenile court sustained the petition, ordered N.P removed
from parental custody, and ordered parenting, domestic violence and mental health
services for the parents and random drug testing for father.
Reunification Efforts
By the six-month review hearing in October 2021, the parents were in compliance
with their services plan. Mother completed a parenting class and neither parent required
mental health services. Mother was enrolled in a 52-week child abuse intervention
program and father was enrolled in a 26-week domestic violence program. He generally
participated in random drug testing with negative results but missed a few tests and
refused to test once because he was unable to go to the bathroom. Mother had progressed
to unsupervised visits on Saturdays for four hours and father’s visits remained supervised
because he was incarcerated.
N.P. was participating in weekly therapy sessions and working on symptoms
related to sadness, difficulty following rules, poor boundaries, impulsivity and telling
lies. Her care provider said she was intelligent, had a sophisticated vocabulary and
expressed herself freely. However, she often fabricated lies such as saying she saw her
father in the store and adopted other people’s stories as her own.
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In October 2021, at the six-month review hearing, the juvenile court continued
reunification services to the 12-month review hearing set for April 2022.
In February 2022, N.P. was diagnosed with attention deficit hyperactivity disorder
(ADHD) and prescribed psychotropic medication. She was noted to be fidgety, noisy,
intrusive, and inattentive. She interrupted others, talked excessively in class and lost
items necessary for class.
In its report for the 12-month review hearing, the department recommended
terminating reunification services. Although the parents were actively participating in
their services, neither parent made significant progress in resolving the problems
necessitating N.P.’s removal. The minor cousin continued to be a frequent visitor to
mother’s home and mother did not believe N.P. was sexually abused, N.P. tended to “
‘lie.’ ” A maternal aunt who also lived in mother’s home did not believe N.P.
Mother’s visitation with N.P. remained unsupervised. Mother believed their visits
went very well. She and N.P. spent time at the park and went to movies and out to eat.
However, N.P.’s foster mother stated that N.P. often returned from visits very hyper and
had difficulty calming down. Mother stated she did not feel comfortable having N.P.
overnight because she did not have a bed for her and she wanted to get her own place
before starting overnight visits. Social worker Stefania Rodriguez agreed to do a walk
through to clear her home. However, she was unable to because mother was ill with
COVID.
In February 2022, N.P. refused to visit mother, stating mother hit her. She put
two fingers to her forehead and chin to demonstrate. Mother denied hitting her. N.P. was
also afraid to stay overnight with mother for the same reason. Father’s significant other
expressed concern about N.P. staying overnight with mother because the minor cousin
remained a frequent visitor in the home. Father had not progressed beyond supervised
visits because he had criminal cases pending and tested positive several times for
creatinine and alcohol.
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The department recommended the juvenile court terminate reunification services
at the 12-month review hearing and set a section 366.26 hearing to select a permanent
plan.
The Contested 12-Month Review Hearing on June 8, 2022
The juvenile court entered into evidence mother’s lease agreement effective
May 20, 2022, before taking testimony.
Rodriguez testified the department was concerned that mother had not learned to
be protective. As an example, N.P. reported that mother’s dog bit her. When mother was
asked about the incident, she said N.P. may not be telling the truth. Mother still did not
believe it occurred when Rodriguez told her she saw the scratches the dog made. Mother
did not assure Rodriguez that she would protect N.P. from dog bites in the future.
However, when Rodriguez asked mother to be more protective, she said she would be.
The department was also concerned that mother took N.P. to see her new apartment and
made promises to her. Afterward, N.P. began displaying physical aggression toward the
foster mother. The department did not believe additional time would help mother reunify
because her behavior had not changed.
Rodriguez could not remember when N.P. started taking medication for ADHD
but remembered the foster mother was concerned that N.P. had excessive bruising.
Rodriguez was not sure the medication was the cause of the bruising but knew that the
foster mother took N.P. to the doctor for blood tests. The doctor advised N.P. to
discontinue the medication approximately a month before the hearing. Rodriguez was
not sure whether N.P.’s aggressive behavior correlated to her discontinuance of the
medication. N.P.’s mental health provider attributed N.P.’s aggressive behavior to the
trauma of being told she would return to mother’s custody. Rodriguez did not follow up
to get a specific cause of N.P.’s behavior or have it documented. N.P. was prescribed a
different medication but had not yet been instructed to take it. She continued to act out
aggressively. Mother was not offered any classes on how to care for a child with ADHD.
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Sometimes parents can work with the child’s therapist, but mother was not offered that.
Nor was she involved with the therapist’s work with N.P.
Mother was not able to progress to overnight visits because N.P. said mother hit
her. N.P. did not want to talk about mother hitting her. Rodriguez believed N.P. was hit
while in mother’s custody. Rodriguez did not have the report of N.P.’s follow up mental
health assessment where the therapist discussed her tendency to lie. Nevertheless, she
believed N.P., having worked with her for a year. Rodriguez denied that mother asked
her to assess her apartment. Rodriguez attempted to arrange a viewing but mother
became ill and had to quarantine. After that, mother said she did not feel comfortable
with N.P. staying overnight until she had her own room.
The department’s concerns about father were his involvement with law
enforcement. He had been arrested a few times during the case. He also tested positive
for alcohol. Rodriguez told father at the beginning of the case that alcohol was
considered a substance and he should not consume it. He completed a parenting class,
had three more classes to complete the domestic violence program and stated he was
attending Alcoholics Anonymous meetings. He regularly participated in substance abuse
testing and tested positive only for alcohol and creatinine on one occasion. He was
cooperative with the department, his visits with N.P. were appropriate and she did not
express any fear of him.
Mother testified that she could progress to overnight visits since she had an
apartment. She believed additional training regarding children with ADHD would help
her work more efficiently toward reunification.
The juvenile court found it would be detrimental to N.P. to return her to parental
custody, characterizing their progress as minimal to moderate. The court also found there
was not a substantial probability N.P could be returned to their custody following
continued services. Although they regularly visited her, they had not shown they had the
capacity or ability to resolve the problems requiring her removal. The court found the
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department provided the parents reasonable reunification services, ordered them
terminated and set a section 366.26 hearing.
DISCUSSION
Relevant Legal Principles and Standard of Review
At the 12-month review hearing, the juvenile court must order the return of the
child to the physical custody of his or her parent unless it finds the return would create a
substantial risk of detriment to the safety, protection, or physical or emotional well-being
of the child. (§ 366.21, subd. (f)(1).) If the court does not return the child, it may
continue the case for up to six months if there is a substantial probability the child will be
returned to parental custody within 18 months from the time the child was initially
removed. (§ 366.21, subd. (g)(1).) To find a substantial probability of return, the court
must find the parent regularly visited the child, made significant progress in resolving the
problem prompting the child’s removal, and demonstrated the capacity and ability to
complete the objectives of the case plan and provide for the child ’s safety, protection, and
well-being. (§ 366.21, subd. (g)(1)(A)−(C).) Otherwise, the court must terminate
reunification services and set a section 366.26 hearing to implement a permanent plan for
the child. (§ 366.21, subd. (g)(4).) Before the court may terminate services and set
a section 366.26 hearing, however, there must be clear and convincing evidence the
department provided reasonable services to the parent. (§§ 361.5, subd. (a), 366.21,
subd. (g)(4).)
“When the sufficiency of the evidence to support a juvenile court’s finding or
order is challenged on appeal, the reviewing court must determine if there is substantial
evidence, contradicted or uncontradicted, that supports it.” (In re Albert T. (2006) 144
Cal.App.4th 207, 216.) “Under that standard we inquire whether the evidence,
contradicted or uncontradicted, supports the court’s determination. We resolve all
conflicts in support of the determination, indulge in all legitimate inferences to uphold the
findings and may not substitute our deductions for those of the juvenile court.”
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(Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856, 865.) When reviewing a
finding made pursuant to the clear and convincing standard of proof, we “attune [our]
review for substantial evidence to the heightened degree of certainty required by this
standard.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 997.)
Substantial Evidence Supports the Juvenile Court’s Finding Mother was Provided
Reasonable Reunification Services
Mother contends the services provided were not reasonable because the
department did not advance to overnight visits and did not provide her specialized
training to parent a child with ADHD. We disagree the services provided were not
reasonable.
Regarding visitation, there were valid reasons for not advancing to overnight
visits. First, mother herself stated she was not ready to have N.P. overnight because she
wanted to first obtain a residence where N.P. could have her own room. Mother had just
secured a lease agreement several weeks before the hearing. According to her own
wishes, overnight visits could not have occurred until then. In addition, Rodriguez
attempted to assess mother’s prior living arrangement but was unable to accomplish that
because mother was ill. More importantly, N.P. expressed fear of staying with mother
because mother hit her. The appropriate circumstances for advancing visitation were
simply not present.
Regarding specialized training to manage N.P.’s ADHD, mother fails to show how
the failure to provide such training prevented her from reunifying with N.P. The issue
requiring N.P.’s removal was mother’s failure to protect her from physical and sexual
abuse. Mother was provided child abuse intervention services to assist in safely
parenting and protecting N.P. During the course of the proceedings, N.P. was diagnosed
with ADHD. However, it was not N.P.’s diagnosis or mother’s failure to receive
individualized training on how to manage it that prevented her from reunifying. It was
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mother’s refusal to believe that N.P. was sexually abused and demonstrate that she could
be protective.
Substantial Evidence Supports the Juvenile Court’s Finding There was Not a Substantial
Probability N.P Could Be Returned to Mother’s Custody
It is undisputed mother regularly visited and maintained regular contact with N.P.
The question was whether she made significant progress in resolving the problem that
warranted N.P.’s removal and demonstrated the ability to protect her. The juvenile court
found that she did not and the evidence supports the court’s finding.
Mother makes much of the fact that she regularly participated in her services plan.
Technical compliance, however, is not determinative of a parent’s ability to safely parent
a child. The court must still consider whether the parent eliminated the conditions
leading to the child’s removal and whether the child would be safe in the parent’s
custody. According to the evidence, N.P. was an intelligent little girl who was able to
effectively express herself. She described in detail how her cousin sexually abused her
and how other children in the home mocked and hit her. However, mother refused to
believe her, opting instead to believe she lied.
Along that line, mother argues the evidence was insufficient to show she did not
believe N.P. was sexually abused because county counsel failed to ask her that question.
The evidence, however, before the court by way of the department’s report was that
mother did not believe N.P. Had mother wanted to present contrary evidence to the
court, her attorney could have asked her that question.
Further, though it seems trivial, as mother argues, mother’s refusal to believe that
the dog bit N.P. is just another example of her tendency not to believe N.P. when she
claims to have been hurt. Surely, erring on the side of believing one’s child, even a child
with a tendency to fabricate, demonstrates a desire and capacity to be protective.
We find no error.
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DISPOSITION
The petition for extraordinary writ is denied. This court’s opinion is final
forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).
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