T.C. v. Superior Court CA1/2 ( 2016 )

Filed 8/24/16 T.C. v. Superior Court CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION TWO
T.C.,
Petitioner,
v. A148248
THE SUPERIOR COURT OF CONTRA (Contra Costa County
COSTA COUNTY, Super. Ct. No. J15-00801)
Respondent;
CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU
et al.,
Real Parties in Interest.
By this petition for an extraordinary writ (Cal. Rules of Court, rule 8.452),
petitioner T.C., the mother of minor I.J., seeks to vacate the order of respondent
Superior Court of Contra Costa County bypassing reunification services under
Welfare and Institutions Code section 361.5, subdivision (b)(10),1 and setting a
section 366.26 hearing to terminate her parental rights to I.J. T.C. contends that
the denial of services pursuant to section 361.5, subdivision (b)(10), was error
because she made reasonable efforts to treat the problems that led to the removal
of I.J.’s half-siblings. We agree, concluding the juvenile court’s order is
1
All statutory references are to the Welfare and Institutions Code.
1
unsupported by substantial evidence, and thus grant T.C.’s petition and direct the
court to order six months of reunification services.
FACTUAL AND PROCEDURAL BACKGROUND
The Family
T.C. is the mother of three girls. This dependency proceeding involves her
daughter, I.J., who was born in mid-July 2015. The alleged father of I.J. is G.J.2
I.J. was taken into protective custody when she was two days old.
T.C. also has two older daughters (six years, two months and one year,
three months at the time this proceeding was initiated), fathered by two different
men. Those two children were removed from T.C.’s care in July 2014 and were
the subjects of dependency proceedings that were ongoing when this case began.
T.C.’s reunification services as to her older daughters were terminated in
September 2015, two months after this case was filed.
T.C.’s relationships with all three men have been fraught with domestic
violence.
The Petition
On July 21, 2015, the Contra Costa County Children and Family Services
Bureau (Bureau) filed a section 300 dependency petition alleging that T.C. failed
to protect I.J. within the meaning of section 300, subdivision (b), because she had
“a serious problem with ongoing domestic violence in her interpersonal
relationship.” It identified three instances in December 2014 and March and April
2015 when G.J. physically abused her. The petition further alleged that T.C.
“continue[d] to exhibit poor impulsivity and lack of judgment,” citing two
incidents that month, one when she threatened the social worker in the
proceedings involving her two older children and one when she had an outburst
2
T.C. and G.J. were never married. G.J. failed to complete paternity
testing and was never elevated to presumed father status in this case. This writ
petition was filed only on behalf of T.C. Accordingly, facts regarding G.J. are
omitted, except where relevant to the issues before us.
2
upon being told I.J. was going to be detained. Both problems, according to the
petition, placed I.J. at serious risk of harm.
Detention/Jurisdiction Report
In a combined detention/jurisdiction report, the Bureau explained that the
dependency proceedings involving T.C.’s two older children followed an incident
in July 2014 in which T.C. took a picture of her infant daughter (then just a few
months old) and sent it to the father, telling him she had abandoned the child. T.C.
told the social worker in this case that the father (to whom she was still legally
married) had threatened to kill her, and she sent the picture so he would think their
daughter was no longer in her care. She recognized it was a “ ‘stupid mistake’ ”
and regretted doing it. She wanted to have her older children returned to her care
and was working hard to complete her reunification plan. She had completed a
parenting class, attended domestic violence treatment, completed a mental health
evaluation, and was seeing a therapist (Lisa Slater). According to the Bureau’s
report, the allegations in those proceedings were general neglect and caretaker
absence/incapacity.
The report also detailed the allegations concerning T.C.’s impulsivity and
lack of judgment. One incident involved threats T.C. made regarding the social
worker handling the ongoing cases. She admitted telling her therapist that she
would kick the social worker’s “ ‘ass’ ” and “ ‘over [her] dead body [would she let
the social worker] take [her] baby from [her].’ ” As T.C. explained it, she was
very upset that the social worker had recommended termination of her
reunification services. She claimed the social worker would not listen to her
concerns about the children being in the care of the paternal grandmother. She
also believed the social worker was retaliating because T.C. had reported her to
the ombudsman’s office.
The second incident occurred in the hospital when I.J. was taken into
protective custody. After the social worker explained to T.C. the reasons for the
detention and left the hospital room, T.C. “began to scream and threw over her bed
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tray. The police were called back into her room and assessed her for a 5150 hold.
The mother said ‘why would I want to hurt myself . . . I want my children back.’
The mother was then escorted by security out of the hospital and put into a taxi.”
T.C. admitted that there had been domestic violence in her relationship with
G.J. The report outlined four altercations between T.C. and G.J. that had resulted
in police contact:
On December 5, 2014, T.C. called the police when G.J. kicked and punched
the bedroom door because he wanted to talk to her and then held her arms when
she attempted to leave the house.
On March 16, 2015, T.C., then 18 weeks pregnant, called the police after
G.J. punched her in the face. She obtained an emergency protective order
following that incident but did not follow through with obtaining a permanent
protective order.
On April 3, 2015, T.C. called the police from her bedroom after G.J.
verbally and physically assaulted her.
On April 16, 2015, the police responded to multiple hang-up calls from
T.C.’s residence. T.C., then 22 weeks pregnant, reported that she had told G.J.,
who was very drunk, to pack his belongings and leave her house. He started
yelling at her and calling her names and then slapped or pushed on her stomach
with an open hand.
T.C. filed for a second domestic violence restraining order on June 25,
2015, but she missed the hearing on a permanent restraining order because it was
scheduled for the day she gave birth to I.J. T.C. admitted she contacted G.J.’s
family when she went into labor because she wanted him to be present for the
birth of their child. According to T.C., G.J.’s family contacted him, and he went
to her house.
On July 21, T.C. thanked the social worker for having taken I.J. into
protective custody because there had been another altercation the previous night,
and I.J. could have been at risk if she had been in the home. T.C. explained that
4
G.J. somehow came into possession of a key to her apartment and entered it
uninvited. He was drunk, and when she asked him to leave, he refused, threw
juice at her, and then kicked and broke her television. She fled the apartment and
called the police. T.C. said she would be going to the courthouse that day to
finalize the restraining order. She wanted to relocate because she did not feel safe.
She had contacted her therapist, Lisa Slater, and scheduled an appointment.
The social worker spoke with Ms. Slater, who reported that she began to
see a decline in T.C.’s mental health after the social worker in the continuing
dependency proceedings recommended termination of reunification services. T.C.
made threats about that social worker to Ms. Slater, who told T.C. she would need
to report the threats. T.C. then fired Ms. Slater, saying she was done with therapy
and did not plan to attend any more sessions. Ms. Slater expressed concern that
T.C. was prone to postpartum depression and was not getting the mental health
support she needed at that time. She was also concerned that T.C. engaged in
relationships with abusive men and was minimizing the violence inflicted by G.J.
The Bureau reported that T.C.’s oldest daughter had been the subject of a
prior dependency in Washington state. According to a June 10, 2010 doctor’s
report, T.C. had abandoned the six-month-old child on a sidewalk. The doctor had
diagnosed T.C. with anxiety, depression, and PTSD, and had determined she was
unable to parent her daughter at that time. Allegations of neglect were
substantiated, and T.C. reunified with her daughter after 11 months.
The Bureau also summarized a psychological report prepared in the
ongoing dependency proceedings. The psychologist diagnosed T.C. with a major
depressive disorder, noting that while she did not meet the criteria for PTSD, her
traumatic history was likely still affecting her functioning. The psychologist made
the following recommendation: “ ‘[T.C.] has made progress and shown
commitment to engaging in the required work to reunify with her daughters by
completing this evaluation. While her progress has been slow to this point, it
appears that she has the potential to successfully and safely parent her daughters.
5
In light of her history, her current level of external support, and the impending
birth of her third daughter, [T.C.] may not be presently able to manage the stress
and challenges of parenting three small children without additional assistance. If
re-unification planning is to continue, it should occur cautiously through gradual
increases in visitation and responsibility. To ensure the safety of her daughters
and successful re-unification, [T.C.] must continue to work individually with a
therapist to address her internal emotional functioning while external supports are
implemented for her.’ ”
On July 9, 2015—after T.C. terminated her therapy with Ms. Slater and six
days before I.J.’s birth—the psychologist prepared an update in which he reported
that “ ‘given [T.C.’s] termination of individual therapy, there is no way to
guarantee she will achieve the psychological stability necessary to safely parent
her children. In light of the current instability and the possible negative outcomes
of her approaching dependency hearing, there is concern that she is at risk of
acting out against others or herself. As she is no longer in therapy there is no way
to monitor these domains.’ ”
Detention and Jurisdiction
On July 22, 2015, I.J. was ordered detained, and the matter was continued
for a jurisdiction hearing. On October 8, the court took jurisdiction over I.J. after
T.C. pleaded no contest to the following allegations: “On or about July 16, 2015,
the mother admitted having been in domestic violence altercations with [G.J.]
which places the child in serious risk of harm,” and “The mother continues to
exhibit poor impulsivity and lack of judgment which places the child at serious
risk of harm.”
The matter was set for a disposition hearing on November 13, 2015.
Through no fault of T.C.’s, disposition was continued multiple times, finally
coming on for a contested hearing on April 19, 2016.
6
Disposition Report
On November 10, in anticipation of a November 13 disposition hearing, the
Bureau prepared a report in which it recommended that reunification services for
T.C. be bypassed under section 361.5, subdivision (b)(10). The Bureau had
“several concerns . . . , one of which is [T.C.’s] history of domestic violence with
each of the fathers of her children. Incidents between [T.C.] and [G.J.] are as
recent as July 17, 2015, the day [I.J.] was detained. Another concern is [T.C.’s]
lack of impulse control and her anger management issues, which seems to be a
consistent and prevalent pattern throughout her life. Both of these issues are
reflected in an incident that took place on July 28, 2015—when [T.C.] contacted
[the paternal grandmother and great grandmother of her middle child] by phone
several times, despite no contact orders for both women. Subsequently, both
women filed police reports. A final concern is around her mental health issues,
particularly PTSD, and the inconsistent treatment thereof.” T.C.’s reunification
services for her two older children had been terminated on September 24, 2015
after she failed to reunify with them, and the Bureau believed she had “made
minimal efforts to treat the problems that led to the removal of [her older children]
and there is no evidence that giving additional time would make a significant
impact.”
T.C. was being provided one-hour, weekly, supervised visits with I.J. She
had only missed three out of 18 scheduled visits, “mostly due” to
miscommunication between T.C. and the Bureau. When the missed visit was
T.C.’s fault, she communicated with the social worker. She was always on time or
early for her visits and had appropriate and positive interactions with her daughter.
In its “assessment/evaluation,” the Bureau summarized: “[T.C.] has had a
traumatic life and the pattern of abuse that was begun for her as a child has been
perpetuated into her adult years. As a child, she had little to no choice in the
things that happened to her, including being molested and raped. As an adult,
however, she has the power to choose differently, for herself and for her children.
7
As this point in her life, [T.C.] is not making wise choices—as is evident in the
men she has chosen to have relationships and children with. All three of them
have abused her and in the case of [one] father, she chose to marry him, even
while he was incarcerated for the physical violence he inflicted upon her. In the
year since her previous children . . . were removed from her, [T.C.] has not
seemed to take the time to examine and remedy why she was involved with
Children & Family Services. She has completed the services in her case plan, but
there has been little reflection of it in her daily life; no evidence that she has
learned from the situation or that she can provide safety for her children.
“This social worker has seen some progress, though, in that [T.C.] is
actively trying to relocate so that [G.J.] can no longer show up at her home when
he wants. She is working with her Housing Authority caseworker to move as
quickly as possible. Additionally, [T.C.] has also requested a notarized letter from
[G.J.’s] family to show that they contacted him and notified him of [T.C.’s]
hospitalization and resulting birth of [I.J.]. This letter would directly address the
allegation that she disobeyed her own restraining order to contact [G.J.] from the
hospital regarding [I.J.]—which resulted in [I.J.] being detained. [T.C.] has
remained steadfast in her admission of contacting his family and her denial of
contacting him herself. [T.C.’s] therapist supports this side of the story and has
stated that there have been some changes for the better in [T.C.] and that she is on
a path to healing. This same therapist, however, admits to having no way of
knowing how long that healing will take.
“In dealing with this social worker, [T.C.] has consistently been respectful,
polite, well-mannered and openly communicative. The issue, as it stands, is that
all of this progress has come too late and that it is not enough to ensure the safety,
health and well-being of her children. [T.C.’s] penchant for choosing men that
will perpetuate the abuse she has experienced throughout her life is of primary
concern and [T.C.] has done very little to show that these choices will not
continue, despite the time that she has been given.”
8
April 2016 Status Update
On April 14, 2016, in light of the passage of time since its original
disposition report, the Bureau provided the court with the following update:
“Since the Dispositional hearing on November 13, 2015, [T.C.] has had
weekly supervised visits with [I.J.] . . . . In the month of November, [T.C.] made
three out of five visits. In December, she made three out of four visits. In
January, she made two out of four visits. In February, she made three out of five
visits and in March, she made two out of three visits. Visits have been missed for
a variety of reasons, including transportation, scheduling mix-ups, not confirming
on time, no show, etc. At this point, [T.C.] is making about 60% of the scheduled
visits . . . . The visits have gone well. [T.C.] has remained appropriate—
interacting with [I.J.], feeding and changing her accordingly, bringing new clothes,
reading to her, etc.
“Since the November hearing, it has been confirmed that while a temporary
restraining order was put in place July 2015 by the Concord Police Department for
[T.C.] and [G.J.], . . . [T.C.] failed to follow up to put a more permanent
restraining order in place. This social worker sent a premises and records request
to the Concord Police Department on December 7, 2015. According to the records
faxed in accordance with that request, there have been no disturbances or domestic
incidents reported since October 11, 2015 . . . .
“ [T.C.] recently relocated and acquired a new cell phone number as well.
According to [T.C.], the new apartment is a 2-bedroom, in anticipation of [I.J.’s]
return and is prepared as such. In a conversation with this social worker on
March 22, 2016, [T.C.] was assured that her new address could be kept
confidential in future court reports in an effort to ensure that [G.J.] could not show
up unannounced. [T.C.] explained, however, that she did not fear [G.J.] and was
unconcerned about him having her new address. She explained that most of their
interactions occurred through his family and not directly. [¶] . . . [¶]
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“On March 22, 2016, this social worker sent an email to Lisa Slater,
therapist for [T.C.]. As there was no response to the initial email, this social
worker sent a follow up email on March 28, 2016, and Ms. Slater responded,
saying that [T.C.] has continued therapy with her. Ms. Slater stated that [T.C.]
attends regularly, that ‘she has been and remains appropriately engaged in her
treatment’ and that [T.C.] had met her previous therapeutic goals, so they currently
work on maintenance. Ms. Slater did not specify how often she met with [T.C.],
nor what the treatment goals were in the past or might be currently. [¶] . . . [¶]
“The Bureau stands by its previous recommendation to terminate services
to [T.C.] . . . .”3
Contested Disposition Hearing
Social worker Tandrea Thysell was the only witness at the April 19, 2016
contested disposition hearing. She testified as follows:
T.C. was having weekly, supervised visitation at that time. Visit reports
indicated that T.C. was appropriate in dealing with I.J., changing and feeding her.
“Perhaps one or two” of the missed visits were due to the Bureau canceling the
visit.
T.C. and G.J. were involved in a domestic violence incident on October 11,
2015. According to Ms. Thysell, as the October 11 incident was described in the
police report, T.C. was at a friend’s apartment when G.J. showed up with his
current girlfriend. T.C. had gone to the apartment to have the friend mediate the
situation between her and G.J. T.C. got into an argument first with the girlfriend
and then with G.J., who kicked her in the chest and stomach. The friend who lived
in the apartment held up a gun and told them to leave. T.C. was uncooperative
with the police when they responded and rejected their offer of domestic violence
3
The Bureau’s statement that it was standing by its recommendation to
terminate services was incorrect. T.C. had never been provided reunification
services in this case, which was still at the disposition stage where the issue before
the court was whether or not to order services.
10
assistance. G.J. later called her to taunt her about not having been arrested, and
T.C. told him she was not the one who had called the police.
On December 7, 2015, Ms. Thysell requested a report on police contact at
T.C.’s address. There were no reports of disturbances there since October 11.
Despite that the disposition hearing did not occur until April 2016, Ms. Thysell did
not check for any police contact at that address after December 7 or at a new
address where T.C. moved in February 2016. Ms. Thysell was aware that T.C.
had obtained two temporary restraining orders but had never followed through on
obtaining a permanent restraining order.
Ms. Thysell had e-mailed therapist Slater, who responded that T.C. was
seeing her weekly and was engaged in her therapy. According to Ms. Slater, T.C.
had met her previous therapeutic goals so they were working on new goals. While
Ms. Slater “wasn’t really clear” about what those new goals were and what they
were addressing, she indicated they were working on T.C.’s “behaviors and some
of her impulsivity.” Ms. Slater had mentioned to Ms. Thysell in the past that T.C.
lived with PTSD and depression.
In closing argument, county counsel argued that T.C. had maintained a
relationship with G.J. despite the violence between them and had never followed
through on obtaining a permanent restraining order. Accordingly, “We’re really in
the exact same place we were back in the middle of last year . . . .” He continued,
“[I]t’s clear in this case that she’s lost, that her reunification services were
terminated for the two previous children. In order for her to overcome the bypass,
she has to show by clear and convincing evidence that she has overcome the
disability that caused her to lose those—to have the reunification services
terminated on those other children. And the disability then was her domestic
violence, in particular with [G.J.]. [¶] And what these reports indicate is that it’s
not changed. She hasn’t really made any change. She’s still going to see Ms.
Slater, but apparently that therapy has not made any difference in her life because
she continues the violent engagement with [G.J.]. And, you know, this police
11
report I think is pretty devastating to her, any argument that she could make that
she’s actually changed her life and that, therefore, she should be given services on
this new child.”
Counsel for T.C. argued that the police report on the October 11 incident
did not say how the situation began. All it indicated was that T.C. went to the
friend’s place, and G.J. and a female showed up, and the friend attempted to
mediate an argument. T.C. was then the victim of an ensuing altercation. And
there were no reports of domestic violence since then. Instead, T.C. had relocated
and kept her address confidential from G.J., and when they had encountered each
other at the courthouse, there were no inappropriate interactions.
Counsel for I.J. believed bypass of services was appropriate, arguing there
was “clear and convincing evidence for bypass in this case. Whatever may happen
in the future, to date there has been a failure to reunify with those two other
children. [¶] And I do not believe that there has been sufficient showing to assert
that those obstacles have been overcome at this time that should obviate the need
for the bypass.”
The court then ruled:
“There’s just too much violence here. There’s just been too much violence.
There’s been violence in both other children who I’ve had . . . . And now we
come again, more violence. I don’t know what’s going on because nobody’s
bothered to check in the last couple of months whether there’s any police checks
regarding mother.
“But when they’ve checked, they’ve found it. And I don’t think she’s made
sufficient progress. And I’ll tell you something that concerns me an awful lot.
She’s only made 60 percent of her visits. This is a young baby, 60 percent of the
visits, and she was given so many opportunities. There’s always an excuse. I read
that. Always an excuse why she can’t make the visits. And according to the
testimony, only two were something to do with the Bureau. So I just don’t find a
suspicion of change of circumstances here.
12
“And I’m sorry, because actually [T.C.] is better in this hearing than she’s
ever been. It’s just been the last part of the hearing that she can’t control herself in
talking and interrupting. But, frankly, she has been better. I do see a slight change
in her. But I don’t see a change that would warrant me risking the safety of her
child and her choices of violent people and her own violent behavior, because I
believe she was kind of part of that in the last police report.”
With that, the court ordered that T.C. be denied reunification services and
set a section 366.26 permanency hearing for August 9, 2016.
T.C. filed a timely notice of intent to file a petition for extraordinary writ,
followed by a timely petition.
DISCUSSION
Subdivision (a) of section 361.5 contains the general statutory mandate for
the provision of reunification services in a dependency proceeding. It provides in
pertinent part that “whenever a child is removed from a parent’s or guardian’s
custody, the juvenile court shall order the social worker to provide child welfare
services to the child and the child’s mother and statutorily presumed father or
guardians.” (§ 361.5, subd. (a); see also In re Baby Boy H. (1998) 63 Cal. App. 4th
470, 478.) Subdivision (b), however, identifies certain circumstances under which
reunification services need not be offered. (Renee J. v. Superior Court (2001)
26 Cal. 4th 735, 739, 744; Francisco G. v. Superior Court (2001) 91 Cal. App. 4th
586, 597.) One such circumstance, set forth in subdivision (b)(10), is when “the
court ordered termination of reunification services for any siblings or half siblings
of the child because the parent or guardian failed to reunify with the sibling or half
sibling after the sibling or half sibling had been removed from that parent or
guardian pursuant to Section 361 and that parent or guardian is the same parent or
guardian described in subdivision (a) and that, according to the findings of the
court, this parent or guardian has not subsequently made a reasonable effort to
treat the problems that led to removal of the sibling or half sibling of that child
from that parent or guardian.” (§ 361.5, subd. (b)(10).) It has been said that this
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calls for a two-prong analysis: (1) whether the parent previously failed to reunify
with the dependent child’s sibling(s) or half sibling(s); and (2) whether the parent
subsequently failed to make a reasonable effort to treat the problems that led to the
removal of the sibling or half sibling(s). (Cheryl P. v. Superior Court (2006) 139
Cal. App. 4th 87, 96 (Cheryl P.); but see In re Gabriel K. (2012) 203 Cal. App. 4th
188, 194 [using a four-part analysis].)
The court here relied on section 361.5, subdivision (b)(10), to bypass
reunification services for T.C., finding she had not sufficiently changed her
circumstances. T.C. challenges that finding, contending the evidence showed she
had in fact made reasonable efforts to remedy the problems that led to the prior
dependency proceedings. We review the juvenile court’s order for substantial
evidence (D.F. v. Superior Court (2015) 242 Cal. App. 4th 664, 669; Cheryl P.,
supra, 139 Cal.App.4th at p. 96), and we conclude substantial evidence is lacking
here.
We begin our discussion with two preliminary observations.
First, T.C. contends the juvenile court applied the wrong burden of proof.
In support, she attributes to the court a passage from the dispositional hearing in
which the speaker stated, “In order for her to overcome the bypass, she has to
show by clear and convincing evidence that she has overcome the disability that
caused her to lose those—to have the reunification services terminated on those
other children.” As the reporter’s transcript confirms, that statement was made by
county counsel, not the court. And counsel was incorrect, as the burden of proof
when applying the section 361.5, subdivision (b), bypass provision is on the party
seeking bypass—here, the Bureau—who must establish that the section applies by
clear and convincing evidence. (In re L.S. (2014) 230 Cal. App. 4th 1183, 1193;
Cheryl P., supra, 139 Cal.App.4th at p. 98.) There is no evidence here the court
incorrectly placed the burden of proof on T.C., and the court is presumed to have
known and understood the applicable law. (People v. Braxton (2004) 34 Cal. 4th
14
798, 814; Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008)
169 Cal. App. 4th 116, 155.)
Our second observation is that “the problems that led to removal” of I.J.’s
half siblings (§ 361.5, subd. (b)(10)) are not entirely clear from the record. No
documents from the prior proceedings, which are often the subject of a request for
judicial notice below, are in the record before us. The Bureau’s detention/
jurisdiction report represents that the allegations in that proceeding were general
neglect and caretaker absence/incapacity, but the supporting facts alleged in those
petitions are not before us.
Despite this, the Bureau and the juvenile court operated on the
understanding that domestic violence was the problem that led to the removal of
T.C.’s older children. And the Bureau focuses its opposition here on the same
premise, arguing that “domestic violence was a substantial component of [T.C.’s]
service plan in the half-sibling’s case.” Assuming for argument’s sake that this is
correct, we must ask whether there is substantial evidence supporting the court’s
finding by clear and convincing evidence that T.C. had not made a reasonable
effort to address her history of engaging in abusive relationships. This question,
we answer in the negative.
The timeline in this case bears note. On September 24, T.C.’s reunification
services as to her older children were terminated. In its November 10 disposition
report, the Bureau recommended bypass in this case because T.C. had not made
sufficient efforts to remedy the problem that led to the removal of her older
children. Since termination of services with respect to I.J.’s half siblings had
occurred only six weeks earlier, T.C. had scarcely been afforded an opportunity to
address the problem. In Cheryl P., supra, 139 Cal.App.4th at pp. 98–99, the court
recognized that section 361.5, subdivision (b)(10)’s no-reasonable-efforts standard
necessarily contemplates the passage of sufficient time to allow the parent an
opportunity to improve his or her situation.
15
To a certain degree, however, this defect became moot due to the passage
of time between the Bureau’s November 10 bypass recommendation and the April
19 contested disposition hearing. This delay provided T.C. five additional months
during which to make a reasonable effort to address her domestic violence issues.
And, it appears from the record, she did.
In making its bypass order, the court stated multiple times that there had
been “too much violence.” But while there may have been “too much violence” in
the past, there was no evidence T.C. continued to subject herself to abusive
relationships. The last documented incident of domestic violence occurred on
October 11, 2015. The disposition hearing occurred on April 19, 2016. There was
thus no evidence that T.C. had been the victim of any abuse for the six months
preceding the disposition hearing. Because the Bureau’s last check for police
contact occurred on December 7, 2015, we cannot know whether or not there were
in fact altercations after that date. But it was the Bureau’s burden to show a lack
of reasonable efforts, and the absence of any evidence that T.C. was involved in an
abusive situation in the six months leading up to the disposition hearing
undermines this showing. Quite simply, given this six-month, apparently abuse-
free period, county counsel’s claim at the disposition hearing that T.C. “continues
the violent engagement with [G.J.]” was specious.
The court’s observation about T.C.’s recent abuse history failed to
recognize this gap in the evidence. The court conceded that it did not “know
what’s going on because nobody’s bothered to check in the last couple of months
whether there’s any police checks regarding mother,” yet it went on to say that
“when they’ve checked, they’ve found it.” But what “they” had found occurred
six months earlier.
In contrast to the lack of evidence of ongoing domestic violence, there was
affirmative evidence that T.C. had made efforts to improve her situation. She had
relocated to housing suitable for her and I.J. and had changed her telephone
number. She had engaged in weekly individual therapy and achieved her initial
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therapeutic goals, and was working toward additional goals. Her therapist
reported that she had seen “some changes for the better” in T.C., who was “on a
path to healing.” The social worker described her as consistently “respectful,
polite, well-mannered and openly communicative,” suggesting an improvement
over the “poor impulsivity and lack of judgment” alleged in the petition. The
court likewise recognized her progress when it observed at the disposition hearing
that T.C. was “better in this hearing than she’s ever been.”
In addition to its “too much violence” finding, the court expressed concern
about T.C.’s visitation record: “She’s only made 60 percent of her visits. This is a
young baby, 60 percent of the visits, and she was given so many opportunities.
There’s always an excuse. I read that. Always an excuse why she can’t make the
visits. And according to the testimony, only two were something to do with the
Bureau. So I just don’t find a suspicion of change of circumstances here.” We fail
to understand what T.C.’s visitation record had to do with the court’s
determination under section 361.5, subdivision (b)(10). This was not a review
hearing to assess her progress on a case plan; this was a disposition hearing at
which the court was considering whether T.C. had made a reasonable effort to
address the abusive situation that led to the removal of her older children.
There was much discussion at disposition about T.C.’s failure to obtain a
permanent restraining order against G.J. But as case law instructs, “the
‘reasonable effort to treat’ standard” of subdivision (b)(10) “is not synonymous
with ‘cure.’ ” (Renee J. v. Superior Court (2002) 96 Cal. App. 4th 1450, 1464.)
Thus, for example, the “mere fact that [the mother] had not entirely abolished her
drug problem would not preclude the court from determining that she had made
reasonable efforts to treat it.” (Id., at p. 1464.) Accordingly, in order to be
entitled to reunification services, T.C. was not required to take every conceivable
step to address her domestic violence history. And certainly her failure to obtain a
permanent restraining order standing alone was not substantial evidence to support
the court’s finding.
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As we have stated, we cannot know whether T.C. was the victim of
domestic violence in the six months leading up to the disposition hearing. The
Bureau’s failure to update its search for police contact at her addresses prior to the
hearing was a significant oversight in this regard. But if domestic violence was
the basis for the removal of I.J.’s half siblings, and there was no evidence of
domestic violence in the six months before the dispositional hearing, we cannot
conclude there is substantial evidence supporting the court’s finding by clear and
convincing evidence that T.C. had not made a reasonable effort to remedy the
problems that necessitated the removal of her older children. Our conclusion is
consistent with the goals of the dependency scheme. “[F]amily preservation, with
the attendant reunification plan and reunification services, is the first priority when
child dependency proceedings are commenced.” (Renee J. v. Superior Court,
supra, 96 Cal.App.4th at p. 1464.) “If the evidence suggests that despite a
parent’s substantial history of misconduct with prior children, there is a reasonable
basis to conclude that the relationship with the current child could be saved, the
courts should always attempt to do so.” (Ibid.)
DISPOSITION
Let a writ issue directing respondent Superior Court of Contra Costa
County to: (1) vacate its order denying reunification services to T.C. and setting
the matter for a section 366.26 permanency planning hearing; and (2) issue a new
order directing the Bureau to provide six months of services to T.C.
Our decision is final as to this court immediately. (Cal. Rules of Court, rule
8.490(b)(2)(A).)
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_________________________
Richman, Acting P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
A148248; T.C. v. Superior Court
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