Gloria I. v. Superior Court CA2/8 ( 2021 )

Filed 3/22/21 Gloria I. v. Superior Court CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
GLORIA I., B308024
Petitioner, (Los Angeles County
Super. Ct. No. 18CCJP02858A-B)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDING. Petition for extraordinary
writ. (Cal. Rules of Court, rule 8.452.) Debra Archuleta, Judge.
Petition denied.
Los Angeles Dependency Lawyers, Inc., Law Office of
Martin Lee, Bernadette Reyes and Brittany Boyle for Petitioner.
No appearance for Respondent.
Rodrigo A. Castro-Silva, County Counsel, Kim
Nemoy, Assistant County Counsel, and Melania Vartanian,
Deputy County Counsel, for Real Party in Interest.
***********
Petitioner Gloria I. is the mother of now 13-year-old A.I.
and eight-year-old I.M., both dependents of the juvenile court.
On September 29, 2020, the juvenile court terminated
reunification services and set a selection and implementation
hearing under Welfare and Institutions Code section 366.26.1
Mother filed a petition for extraordinary writ pursuant to
rule 8.452 of the California Rules of Court challenging the order,
arguing there was not substantial evidence it would be
detrimental to return the children to her care. We deny the
petition, finding substantial evidence supports the juvenile
court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
This family came to the attention of the Los Angeles
County Department of Children and Family Services in February
2018, following a referral that mother’s husband, R.M. (and the
father of I.M.) had been placed on an involuntary psychiatric
hold. He was not taking his psychotropic medications, and was
hearing voices. According to the reporting party, R.M. had
experienced auditory hallucinations in the past, telling him to kill
and eat I.M.
1 All further statutory references are to the Welfare and
Institutions Code.
2
A Department social worker visited the family’s home, a
converted garage. It was unkept with trash strewn about and a
foul odor, and there was limited food in the home. Mother
reported that father suffers from schizophrenia and had recently
been hospitalized because of his mental health. Father had
suffered from mental health problems for years, but stopped
taking his medication in December 2017. He did not consistently
receive mental health services, and had attempted suicide several
times, hitting himself in the head with a brick, stabbing himself,
hurting himself with a power drill, and jumping off a bridge,
resulting in significant injuries. Two of the suicide attempts
happened in the presence of the children. A.I. confirmed that he
twice saw father try to kill himself with “big and little kni[v]es”
and yelling that he wanted to kill himself.
According to mother, father never hurt her or the children.
Mother was aware father heard voices telling him to kill I.M, and
told the Department she did not leave the children alone with
father. However, a neighbor reported that he saw mother leave
I.M. home alone with father. Mother admitted it was difficult to
care for the children and father.
A.I. and I.M. have extensive special needs. A.I. was
diagnosed with ADHD and oppositional defiant disorder, and was
currently taking medication and receiving services. He has an
IEP and takes special education classes.
I.M. suffers from a severe speech disability and was
participating in speech therapy. She also has an IEP. At the
time the Department became involved with the family, she was
five years old but could only say a few words.
I.M.’s teacher was concerned she was being neglected. She
was often absent from school and exhibited poor hygiene, wearing
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the same clothes for days in a row. She often suffered from
incontinence, but mother failed to provide clean clothes for her,
and did not respond to the school’s calls home.
A.I.’s therapist told the Department A.I. is afraid to shower
because of the condition of the family home. There are roaches
and mice, and tree roots growing into the shower. He becomes
easily upset and throws tantrums, and the condition of the family
home is a trigger for his negative behaviors.
Father admitted he had undergone three psychiatric
hospitalizations, and that he was most recently hospitalized
because he was hearing voices telling him to kill himself. A year
earlier, father heard voices telling him to eat I.M., but he did not
want to hurt the children.
Mother and father agreed to a safety plan where father
would participate in mental health services and take his
prescribed psychotropic medications.
By April 2018, father had only attended one mental health
visit. He was taking multiple medications and appeared “out of
it” and looked to mother to speak for him and respond to the
social worker’s questions.
In May 2018, the Department obtained a removal order and
the children were placed in foster care. Mother could not
understand why the children were removed. She insisted they
were doing fine in her care.
The family has an extensive child welfare history dating
back to 2003. From 2016 and forward, there were three referrals
for neglect based on the poor condition of the family’s home
(including pest infestations, filthy conditions, and lack of running
water), and father’s untreated mental health issues, including
involuntary hospitalizations and suicide attempts. The referrals
4
were closed after the home conditions were corrected and father
engaged in services.
A 2013 referral was substantiated after mother left infant
I.M. home alone without any supervision. The family received
family maintenance services for 12 months before the voluntary
case was closed.
A 2009 referral was substantiated. Mother left nine-year-
old H.G. (now an adult) and one-year-old A.I. home alone several
times a week for hours at a time. H.G. was scared to be left
alone, and was exhibiting signs of depression and anxiety. The
family was referred to counseling services.
A 2003 referral for H.G. was substantiated based on
domestic violence between mother and H.G.’s father. Mother was
referred to services and told to follow up with the family court.
At the May 24, 2018 adjudication and disposition hearing,
the juvenile court sustained allegations under section 300,
subdivision (b) that father’s mental illness, and mother’s failure
to protect, placed the children at risk of harm, removed the
children from mother and father, and ordered mother and father
to participate in family reunification services. Mother was
ordered to participate in parenting classes, individual counseling,
and a National Alliance on Mental Illness (NAMI) support group.
Father was ordered to receive mental health counseling,
individual counseling, to participate in a psychiatric evaluation,
and to take his prescribed medications.
Father again attempted suicide in September 2018, and
was placed on an involuntary psychiatric hold after mother called
police. Mother told the Department father had also tried to hurt
himself in July but she had not reported it to police.
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Nevertheless, mother said father was doing well, seeming to
minimize the extent of his illness.
A.I. continued to receive special education services for an
auditory processing delay. I.M. began receiving regional center
services, and was diagnosed with a mild intellectual disability,
and expressive language delay. She was also attending special
education classes.
Mother made good progress with her reunification services.
She completed a parenting class in August 2018, and started
individual counseling in May 2018. She was diagnosed with
adjustment disorder.
In October 2018, following his psychiatric hospitalization,
father was transferred to an inpatient, residential treatment
facility where he could receive long-term intensive care.
The August 2019 status review report noted that the
children were doing well in their placement, although A.I. would
sometimes isolate in his room, and hit his sister and foster
sibling. I.M.’s speech was unclear but was improving. Mother
had made progress with her counseling, and was attending NAMI
support group sessions. She had also started working at a
temporary job. She attended IEP meetings for the children, but
it had been difficult for teachers to contact mother to arrange the
meetings.
Mother’s progress began to falter. When the Department
social worker met with mother, she often seemed more interested
in talking on the phone with father than with discussing the case
with the social worker. She also had not found new housing and
continued to live in the converted garage. The home’s bathroom
had a visible mold problem, with a leaking shower and
condensation on the walls. According to mother, the landlord
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would not fix the many problems with the home. Moreover,
mother’s adult son was living in a room attached to the garage
and was believed to be using drugs.
The Department provided mother with housing referrals to
help her obtain new housing, but mother had not made any effort
to find new housing. She did not have a plan to make her home
safe if the children were returned to her.
Mother completed 15 sessions of individual counseling, and
had “gained awareness and confidence in the need to raise her
children alone.” She also completed NAMI group sessions.
Father attended the sessions with mother.
Mother and father were consistently visiting the children,
often together. The foster caregiver was concerned that they
were not spending quality time with the children as they would
let them play on their phones. In May 2019, mother’s visits were
liberalized to allow unmonitored visits, and A.I. reported they
went well.
The Department recommended that mother continue
individual counseling to address codependency and child
protection. At the August 2019 review hearing, the court ordered
that parents receive additional reunification services.
The Department’s February 2020 status review report
noted that A.I. and I.M. were thriving in their foster placement.
However, mother had made only marginal progress in
understanding why her children were detained. She also had
made no effort to obtain alternate housing, and much needed
repairs had not been made to her home. Mother canceled
meetings with the social worker and service providers, and had
absences from work because she was ill. She also did not return
calls from I.M.’s teacher so that her IEP could be approved.
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Therefore, much needed services could not be provided to I.M.
The Department informed mother she was likely ill because of
the mold problem in her home. She blamed the Department for
her financial circumstances, claiming she was too busy working
on case issues.
Mother’s visits were further liberalized to include eight-
hour unsupervised visits. However, the visits did not go well.
Mother did not plan activities for the visits, and the children
would return hungry because mother did not have money to feed
them. Her visits were reduced to four hours so the children could
eat before and after the visits. Mother would also join father for
his supervised visits.
In January 2020, mother moved into a homeless shelter so
she could obtain housing resources. There were concerns about
substance abuse, as she had lost a great deal of weight and
looked unhealthy. However, mother subsequently tested
negative for drugs. The shelter reported that mother could live
there for up to a year, and that there were other families living
there with their children.
The section 366.22 review hearing was continued a number
of times because of the COVID-19 pandemic and safer at home
orders.
A June 2020 last minute information for the court reported
that mother had resumed counseling in October 2019, and had
attended seven sessions, but was terminated from the program
after she failed to contact the provider for continued treatment.
She was addressing depression and communication skills in
counseling. Mother was residing at the L.A. Restoration Church.
The shelter could not be evaluated for placement of the children
because of strict COVID-19 rules. However, the Department
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social worker was able to briefly meet with mother and her case
manager at the shelter. The case manager reported that mother
was doing well and participating in various groups at the shelter,
but did not specify what services mother was receiving there.
Her children could live there if they were released to mother.
A September 2020 review report noted that mother was
participating in domestic violence classes, anger management
classes, drug and alcohol counseling, and individual and group
counseling at the L.A. Restoration Church. She also had
two therapy sessions at St. John’s Well Child & Family Center.
She was diagnosed with adjustment disorder, and it was
recommended that she continue in therapy.
The Department was concerned about mother’s ability to
care for the children and address their special needs, so the
Department recommended that reunification services be
terminated.
The section 366.22 permanency review hearing was held on
September 29, 2020. The court found the parents had not made
substantial progress in alleviating the circumstances that led to
the removal of the children, and that it would be detrimental to
return the children to their parents. The court terminated
reunification services, and set a section 366.26 permanency
planning hearing. The court reasoned that “it does not appear
that mother, despite her completing a class plan, has made
substantial enough efforts to . . . provide for her own needs, she
appears to be completely dependent upon the L.A. Restoration
Church . . . .” The court recognized the children had special
needs and required significant support, and that mother had not
made sufficient progress to provide the support the children
needed.
9
Mother filed a timely notice of intent to file a writ petition,
and the present petition for extraordinary relief followed.
DISCUSSION
When a child over the age of three years is removed from a
parent, the child and parent are typically entitled to 12 months of
reunification, which may be extended to 18 months. (§ 361.5,
subd. (a)(1)(A) & (3)(A).) Pursuant to section 366.22, within
18 months after a dependent child is removed from the physical
custody of his or her parent, a permanency review hearing must
occur to review the child’s status. (§ 366.22, subd. (a)(1).) At the
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.” (Ibid.) We review
the juvenile court’s detriment finding for substantial evidence.
(Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322,
1341.) We construe the evidence and resolve all evidentiary
conflicts in the light most favorable to the juvenile court’s
determination. (In re R.T. (2017) 3 Cal.5th 622, 633; In re
David H. (2008) 165 Cal.App.4th 1626, 1633.)
A parent’s compliance with the case plan is not the only
factor the juvenile court must consider in deciding whether to
return a child to the parent’s care. (Constance K. v. Superior
Court (1998) 61 Cal.App.4th 689, 704; In re Dustin R. (1997)
54 Cal.App.4th 1131, 1139–1140.) Where the parent has
complied with their case plan, the question is not whether the
parent has participated in services, but whether the parent has
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benefited from those services. (Blanca P. v. Superior Court
(1996) 45 Cal.App.4th 1738, 1748.)
Mother contends she completed her case plan, and
benefitted from services, and that her “primary struggle was not
a failure to benefit from her programs but rather poverty.”
Relying on In re Yvonne W. (2008) 165 Cal.App.4th 1394 (Yvonne
W.), mother argues that the lack of suitable housing, alone, does
not constitute substantial evidence of detriment.
In Yvonne W., Yvonne was removed from her mother’s
custody based on mother’s marijuana use and arrest on drug
charges. (Yvonne W., supra, 165 Cal.App.4th at p. 1397.) Mother
enrolled in a residential treatment program, completed a
parenting class, participated in individual therapy, and
submitted to a psychological evaluation. Mother was
knowledgeable about positive parenting techniques and took
responsibility for her bad choices. (Ibid.) By the 18-month
review hearing, mother remained sober, had found housing at a
shelter, and was having unsupervised weekend visits with
Yvonne. (Id. at pp. 1398–1399.) Nevertheless, the juvenile court
found that returning Yvonne to mother’s custody would create a
substantial risk of detriment because Yvonne had expressed fear,
anxiety, and unhappiness with mother’s living arrangement.
(Id. at p. 1399.) The Court of Appeal reversed, finding that the
juvenile court’s detriment finding was based solely on mother’s
housing situation, which posed no risk of detriment to Yvonne.
(Id. at pp. 1401–1402.)
Here, the risk of detriment was not based solely on
mother’s housing situation, but instead on mother’s lack of
independence, and concerns about her insight and ability to care
for her special needs children. Mother received years of
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reunification services (including extensive services for her
previous voluntary case and prior referrals), but had made
minimal progress in changing her circumstances. She was at
times uncooperative with providers, delaying I.M.’s services to
address her special needs, and only recently sought new housing,
despite the Department’s repeated attempts to engage her with
services to address her housing situation. Moreover, mother was
still preoccupied with father, attending visits with him and
calling him when she should have been discussing the case with
social workers. While mother laudably engaged in many services,
there was scant evidence she improved her capacity to protect her
children.
DISPOSITION
The petition is denied. This opinion is final forthwith as to
this court pursuant to rule 8.490(b)(2)(A) of the California Rules
of Court.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
WILEY, J.
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