B.J. v. Superior Court CA1/3 ( 2013 )

Filed 6/24/13 B.J. v. Superior Court CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
B.J. et al.,
Petitioners,
v.
THE SUPERIOR COURT OF SAN A138336
FRANCISCO COUNTY,
(San Francisco County
Respondent; Super. Ct. No. JD11-3075)
SAN FRANCISCO HUMAN SERVICES
AGENCY,
Real Party in Interest.
B.J. and K.U. (parents) petition this court for an extraordinary writ pursuant to
Welfare and Institutions Code section 366.26 and California Rules of Court, rule 8.452,
seeking review of the juvenile court’s order terminating their reunification services and
setting the matter for hearing to implement a permanent plan for their son, B.T. (minor).1
Parents seek this relief on the ground that the evidence in the record fails to support the
juvenile court’s findings that they failed to make substantial progress on their case plan
and that returning minor to their care would present a substantial risk of harm to his
physical or emotional well-being. We deny the writ petition, and deny as moot parents’
related request for a stay of these proceedings.
1
Unless otherwise stated, all statutory citations herein are to the Welfare and
Institutions Code, and all references to rules are to the California Rules of Court.
1
FACTUAL AND PROCEDURAL BACKGROUND
On March 10, 2011, a petition was filed in San Francisco County pursuant to
section 300, subdivisions (b), (c) and (g), alleging that minor, then five years old, had
suffered or faced substantial risk of suffering serious physical harm or illness as a result
of parents’ failure or inability to adequately supervise or protect minor, or as a result of
parents’ willful or negligent failure to adequately supervise or protect minor from the
conduct of the custodian with whom minor was left; had suffered or faced substantial risk
of suffering serious emotional damage as evidenced by minor’s severe emotional anxiety,
depression, withdrawal or untoward aggressive behavior toward self or others as a result
of parents’ behavior or failure to provide appropriate care; and had been left without
provisions for support necessary for his physical or emotional health and safety
(hereinafter, section 300 petition). Specifically, the section 300 petition alleged, among
other things, that parents had abandoned minor, who was found traveling from Mexico to
the United States on February 26, 2011, under the care of an adult male named Ewan
Brighting. Minor was described as “dirty and smelly, drinks out of a bottle, has rotten
teeth, is non-verbal, and has behavioral problems,” as evidenced by his acts of kicking,
spitting and scratching several people before attempting to run away. Although the San
Diego CPS (contacted by Homeland Security) found the situation “odd,” Brighting was
nonetheless permitted to take minor into the United States because minor seemed bonded
to him and Brighting had documents from parents authorizing him to do so.2
San Francisco Human Services Agency (agency) social worker Gomez and her
supervisor visited minor at Brighting’s San Francisco residence on March 3, 2011. They
observed that minor, who was dirty and smelled of urine, had speech and behavioral
2
The CPS worker also stated that minor was crying and non-engaging throughout
the interview, and that Brighting was unable to calm him down or control him.
Brighting, described as a close family friend who had lived with parents in Mexico for
several months before returning to the United States on February 26, 2011, later told the
agency it was parents’ idea for him to take minor with him. Father disagreed, claiming it
was Brighting’s idea, although they authorized it, and mother claimed to the CPS she
opposed the idea.
2
problems, including an inability to sit still, avoidance of eye contact and acting out by,
among other things, throwing items at them. Brighting confirmed these problems and
acknowledged minor had never been assessed for social services. Brighting also advised
that minor generally slept with him in his bed.
On March 8, 2011, the juvenile court ordered minor removed from Brighting’s
care and taken to the Child Protection Center (CPC). The CPC ordered an immediate
assessment of minor due to his “out-of-control” behavior, which included kicking,
spitting, and screaming. Eventually, minor calmed down, yet kept his right hand inside
his pants, touching his penis, prompting social worker Gomez to ask him whether anyone
had touched him there. Minor responded by identifying Brighting. A few days later, the
juvenile court found that a prima facie case had been made that minor came within
section 300, and thus ordered him detained and placed in foster care.
The juvenile court subsequently ordered a settlement conference for April of 2011,
prior to which the appropriate Mexican social services agency, DIF, conducted a home
study of parents’ residence in Mexico. This study revealed that parents’ home lacked a
working bathroom and was surrounded by piles of trash and other waste that, parents
advised, was awaiting recycling. In addition, it was noted that a report had been filed by
parents stating that minor had been physically or verbally abused in the home by his aunt
F.M.
When the agency’s social worker, Kristina Pock, later spoke to parents, mother
expressed disbelief at the agency’s description of minor’s poor condition when they
found him, and claimed his rotting teeth were simply from eating too much candy. She
admitted minor had not received dental care even though it was available and inexpensive
in Mexico. Father also confirmed he used to sell drugs and was now barred from
entering the United States after being thrice deported for various violations. Pock
concluded parents lacked the necessary parenting skills to care for minor, noting that
mother seemed more annoyed than happy to hear from him despite a two-month absence,
and that minor did not seem to recognize or be excited to speak to parents.
3
Meanwhile, the foster mother in San Francisco with whom minor was placed
reported that, when he arrived, he was not socialized, was unable to drink from a cup or
use the toilet, and could barely speak. Minor had also been abusive to the other foster
children, engaging in sexually aggressive behavior such as trying to touch his foster
brother’s penis and to passionately kiss other children on the mouth. While minor had
made significant progress since his arrival, learning to use a cup and the toilet, to follow
instructions and to play properly with the other children, he still exhibited speech and
language problems. The agency arranged for him to begin individual therapy for sexual
abuse and to complete a psychological assessment.
Social worker Pock filed addendum reports on August 11 and October 5, 2011.3
Among other things, these reports noted that federal officials were investigating
Brighting for suspected child trafficking and that “questionable nude pictures of [minor]
and other male children” had been found on his computer. Minor had received extensive
dental treatment and had become more socialized, but still exhibited sexualized and
aggressive behaviors. His vocabulary had improved, although his speech remained
delayed. Parents had been ambivalent about phone visitation, raising inappropriate topics
and concern about others listening in. Minor was unwilling to speak to father. The
agency recommended mandatory weekly therapeutic visitation via Skype in light of these
concerns.
On a positive note, parents had begun receiving family therapy to comply with the
case plan’s requirement of parenting education, and had begun paperwork at a school for
minor. DIF also confirmed parents’ installation of a bathroom and agreed to conduct
monthly home visits for six months for minor’s safety.
On October 21, 2011, the juvenile court sustained allegations in the section 300
petition with respect to subdivisions (b), (c) and (g). In addition, the court adopted the
case plan proposed by the agency, which required parents, with assistance from DIF, to
improve the sanitation of their home by removing waste materials from the yard and
3
Settlement conferences held on June 13, July 12, and August 18, 2011, were
unsuccessful.
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providing a working bathroom; to secure therapeutic services to address minor’s speech
and language deficiencies; to secure medical services to address his dental and other
health needs; to enroll in and complete a parenting class; and to adopt a safety plan to
ensure minor is not abused again by his aunt. Finally, the court adopted the agency’s
recommendation for supervised weekly therapeutic phone calls via Skype.
A status review hearing was held on April 19, 2012, after which six additional
months of services were ordered. The report and addendum filed in anticipation of this
hearing reiterated many of the concerns set forth in the August and October 2011
addendum reports. (See Status Review Report 4/19/12 filed April 17, 2012, supra, at
pp. 3-16.) For example, the report noted ongoing problems with parents’ case plan
compliance. Among other things, a second DIF home study was delayed due to father’s
request; father had participated in just two of ten phone visits; mother had begun family
therapy, yet insisted her therapist have no contact with the agency regarding this case;
trash in parents’ yard remained a problem; and, although parents had insisted a local
school could provide minor speech therapy, a letter from the school failed to mention it.
A DIF representative had spoken to social worker Pock and expressed concerns regarding
parents’ apparent pattern of lying and manipulation. This representative mentioned an
incident of mother secretly video-taping a DIF home visit, and explained that mother did
not appear to trust the agency or DIF. In addition, Pock advised that parents continued to
trust Brighting, to discuss the case with him, and to defend him. Father, in particular, had
told Pock that he did not believe the allegations in the section 300 petition, did not
believe there were any problems with his home, and did not consider it wrong to send
minor away with Brighting. Mother, in turn, appeared to defer at all times to father.
The agency’s report also stated, however, that minor was doing very well socially
and academically in kindergarten, was receiving speech and language therapy, was
participating in bi-weekly therapy sessions with Lydia Santiago, and had been
psychologically assessed by Brianna Coffino, Ph.D., at the Child Trauma Project. This
assessment observed that minor displayed symptoms relating to his uncertain home
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situation and unpredictable relationships, and to his possible traumatic experiences with
Brighting.
Following the August 2012 status review hearing, the juvenile court continued
reunification services with the goal of minor’s return to parents, and the matter was set
for an 18-month review hearing.
The 18-month review hearing occurred in March of 2013, a report for which was
prepared by social worker Pock. As before, this report noted ongoing concerns regarding
parents’ mistrust of the agency and its findings, and their continued trust of and reliance
on Brighting. The report also noted Pock’s frustrations with parents’ progress in meeting
certain case plan requirements, such as improving their parenting skills and recognizing
their role in minor’s dependency. For example, parents were not receptive or cooperative
with respect to services and did not believe minor needed therapy or had been mistreated.
While visitation via Skype was mostly appropriate, parents were in denial about their
son’s significant speech and language delays and his need to participate in a special
education program. In addition, parents had made clear they would not maintain a
relationship with minor’s foster family if he were returned.
Dr. Coffino, in turn, had submitted a 17-page report based on extensive interviews
with minor, parents, the foster family, and professionals who had been working with the
family. Like Pock, Dr. Coffino was concerned with parents’ ongoing denial of minor’s
past abuse and current impairments, and their ongoing support of Brighting. Dr. Coffino
also expressed doubts regarding parents’ ability to adequately care for and protect minor,
given their lack of concern or remorse for placing him in Brighting’s care in the first
place and lack of acknowledgement of his difficulties. Ultimately, Dr. Coffino advised
that minor continue receiving services and maintaining relationships with both parents
and his foster family, whether he stay in the United States or return to Mexico.
At the 18-month review hearing, the juvenile court heard testimony from social
worker Pock, Dr. Coffino, Dr. Lieberman (consulting therapist), and therapist Loveseth
(who supervised Skype visitation). In addition to the facts set forth above in the agency’s
report, the witness testimony revealed that the DIF had now closed its case in Mexico;
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parents had failed to secure speech therapy or a special school for minor (or even to
acknowledge his need for it); parents had failed to validate their own participation in
therapy; parents continued to defend Brighting and to refuse to agree to maintain a
relationship with minor’s foster family should he be returned; and father continued to
participate only minimally in visitation. Drs. Coffino and Lieberman, moreover,
confirmed minor still had significant emotional difficulties stemming from his severe
neglect, deprivation and “most likely also, actual abuse.” They strongly advised minor
not be returned to Mexico given the unacceptably high risk of relapse due to parents’
continued denial of any problem or concern, and given minor’s need of a structured,
nurturing and loving home environment with access to services.
On March 28, 2013, at the hearing’s conclusion, the juvenile court found by clear
and convincing evidence that the agency had offered reasonable services, but that parents
had failed to make substantial progress with the case plan. The juvenile court further
found that returning minor to parents’ physical custody would present a substantial risk
of detriment to minor’s safety or physical or emotional well-being. The juvenile court
thus terminated reunification services and set the matter for a selection and
implementation hearing on July 29, 2013.
Parents filed a timely petition and related request for a stay.
DISCUSSION
Parents challenge the March 28, 2013, order terminating reunification services and
setting the matter for a permanency planning hearing on the ground that the evidence was
insufficient to support the juvenile court’s findings that they failed to make significant
progress with the case plan and that returning minor would create a substantial risk of
detriment to his safety, protection or physical or emotional or well-being. The following
legal principles are relevant to their challenge.
When a child is removed from parental custody, the juvenile court must order
reunification services to assist the parents in reuniting with the child. (§ 361.5, subd. (a).)
Where, as here, a minor without siblings involved in the dependency system, and is over
the age of three at the time of his initial removal from the physical custody of the parents
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or guardian, “court-ordered services shall be provided beginning with the dispositional
hearing and ending 12 months after the date the child entered foster care as provided in
Section 361.49, unless the child is returned to the home of the parent or guardian.”
(§ 361.5, subd. (a)(1)(A).) “If the time period in which the court-ordered services were
provided has met or exceeded the time period set forth in subparagraph (A) . . . of
paragraph (1) of subdivision (a) of Section 361.5 . . . and a child is not returned to the
custody of a parent or legal guardian at the permanency hearing held pursuant to
subdivision (f), the court shall do one of the following: [¶] (1) Continue the case for up
to six months for a permanency review hearing, provided that the hearing shall occur
within 18 months of the date the child was originally taken from the physical custody of
his or her parent or legal guardian. . . .” (§ 366.21, subd. (g)(1).)
Following such a continuance, the juvenile court must “order the return of the
child to the physical custody of his or her parent or legal guardian unless the court finds,
by a preponderance of the evidence, that the return of the child to his or her parent or
legal guardian would create a substantial risk of detriment to the safety, protection, or
physical or emotional well-being of the child. . . . The failure of the parent or legal
guardian to participate regularly and make substantive progress in court-ordered
treatment programs shall be prima facie evidence that return would be detrimental. In
making its determination, the court shall review and consider the social worker’s report
and recommendations and the report and recommendations of any child advocate
appointed pursuant to Section 356.5; shall consider the efforts or progress, or both,
demonstrated by the parent or legal guardian and the extent to which he or she availed
himself or herself of services provided . . . .” (§ 366.22, subd. (a).)
Thus, applying this statutory framework to the facts at hand, the juvenile court
found that returning minor to parents would create a “substantial risk of detriment to [his]
safety, protection, or physical or emotional well-being” due at least in part to “[t]he
failure of . . . parent[s] . . . to participate regularly and make substantive progress in
court-ordered treatment programs . . . .” (§ 366.22, subd. (a).) On appeal, we review the
juvenile court’s factual findings for substantial evidence. (Elijah R. v. Superior Court
8
(1998) 66 Cal.App.4th 965, 969, 971; Jennifer A. v. Superior Court (2004) 117
Cal.App.4th 1322, 1341.) In doing so, “we may look only at whether there is any
evidence, contradicted or uncontradicted, which supports the trial court’s determination.
We must resolve all conflicts in support of the determination, and indulge in all
legitimate inferences to uphold the court’s order. Additionally, we may not substitute our
deductions for those of the trier of fact.” (Elijah R. v. Superior Court, supra, 66
Cal.App.4th at p. 969; see also In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Ultimately, our task is to decide whether any reasonable trier of fact, considering the
entire record, could properly have made the challenged decision. (Kuhn v. Department of
General Services (1994) 22 Cal.App.4th 1627, 1633; see also In re Mark L. (2001) 94
Cal.App.4th 573, 580-581 [“on appeal . . . the usual rule of conflicting evidence is
applied, giving full effect to the respondent’s evidence, however slight, and disregarding
the appellant’s evidence, however strong”].)
Having considered the record as a whole and in a light favorable to upholding the
juvenile court’s March 28, 2013 order (Elijah R. v. Superior Court, supra, 66
Cal.App.4th at p. 969), we conclude substantial evidence does indeed support the juvenile
court’s underlying findings that parents failed to make significant progress with the case
plan and that returning minor to their custody would create a substantial risk of detriment
to his safety, protection or physical or emotional well-being. Among the many relevant
facts supporting this order, we highlight those we deem most significant.
First, with respect to the case plan, there is evidence in this record in the form of
agency reports and testimony from social worker Pock establishing that parents failed in
several significant regards to meet the court-ordered conditions for minor’s return.
Among other facts (which are described in much greater detail above): father had failed
to regularly participate in phone visits; mother had begun family therapy with a therapist
who was not adequately informed regarding minor’s circumstances; sanitation and safety
concerns remained with respect to parents’ home; and no evidence had been provided
that minor had been enrolled at a school with the capacity to provide him with much-
9
needed speech and language services or therapy (which parents continued to deny minor
needed).
Next, with respect to the substantial risk of detriment to minor’s safety, protection
or physical or emotional well-being should he return to parents’ physical custody, there is
ample evidence that parents remained incapable or unwilling to address the underlying
concerns that had led to his detention in the first place. For example, as set forth in
reports and testimony from minor’s case workers and professional service-providers,
parents continued to be uncooperative or mistrustful of those involved in minor’s case
and to deny his abuse or need for therapy and special education programs. Parents also
remained unwilling to agree to maintain a relationship with minor’s foster family and, at
the same time, to protect or isolate minor from Brighting (who they continued to defend
and rely on). Parents’ conduct in these regards runs contrary to the well-supported
opinions of Drs. Coffino and Lieberman that minor’s well-being required that he continue
receiving services and therapy and maintaining nurturing, stable and loving relationships,
whether he stay here or return to Mexico.
This record, we conclude, provides substantial evidence in support of the juvenile
court’s findings that parents failed to make substantial progress with their case plan, with
the result that a substantial risk of detriment to minor’s safety, protection, physical or
emotional well-being would be created should he return to their custody. As such, the
juvenile court’s decision to terminate services and set this matter for a permanency
planning hearing was proper. Even accepting parents’ argument that they have recently
accomplished many of the agency’s case plan goals, including the goals of improving the
sanitation and safety of their home and participating in supervised Skype visits and
therapy sessions, our role in this case requires consideration of all the evidence in the
record and in a light most favorable to the juvenile court to determine whether the
evidence supporting its decision is substantial. (Constance K. v. Superior Court (1998)
61 Cal.App.4th 689, 705, 708, fn. 4.) Having done so, we conclude the evidence in this
case is more than substantial. (Cf. Jennifer A. v. Superior Court, supra, 117 Cal.App.4th
1322, 1326, 1341 [granting writ petition and issuing a peremptory writ of mandate
10
directing the juvenile court to vacate its order terminating reunification services and
setting a permanency hearing where, among other things, there was “no evidence” mother
had a mental illness affecting her parenting skills or could not provide adequate living
conditions for the minors].) Accordingly, parents’ writ petition and request for a stay are
both denied.
DISPOSTION
The petition for extraordinary writ is denied on the merits (§ 366.26, subd. (l);
Rule 8.452(h).) The request for a stay is denied as moot. Our decision is final
immediately. (Rules 8.452(i) & 8.490(b).)
_________________________
Jenkins, J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
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