A.D. v. Superior Court CA4/2 ( 2023 )

Filed 6/7/23 A.D. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
A.D., E080990
Petitioner, (Super.Ct.Nos. J295055 &
J295056)
v.
OPINION
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,
Respondent;
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Lynn M. Poncin,
Judge. Petition denied.
Law Offices of Inez Tinoco-Vaca and Inez Tinoco-Vaca for Petitioner.
No Appearance for Respondent.
1
Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for
Real Party in Interest.
In a prior dependency proceeding in Los Angeles County, petitioner A.D.
(Mother) and C.F. (Father)1 lost custody of their son, A.F. (born 2017), failed to reunify,
and ultimately had their parental rights terminated. In the present case, the juvenile court
removed A.F.’s younger sister, R.F. (born 2019), and half brother, B.D. (born 2022),
bypassed reunification services for both parents under subdivisions (b)(10) and (b)(11) of
the Welfare and Institutions Code2 section 361.5, and set a selection and implementation
hearing under section 366.26. Mother seeks review by extraordinary writ. Mother
contends that the juvenile court’s finding that Mother has not made a subsequent
reasonable effort to treat the problems that led to removal of A.F. is unsupported by
substantial evidence. In the alternative, Mother argues that if subdivisions (b)(10) and/or
(b)(11) of section 361.5 are applicable, she presented clear and convincing evidence that
reunification is in the best interest of the children under subdivision (c)(2) of
section 361.5. For the reasons set forth below, we deny Mother’s writ petition.
1 Father, who is the father of A.F. and R.F., did not file a writ petition and is not a
party to Mother’s petition. The father of B.D. is unknown.
2 All statutory references are to the Welfare and Institutions Code unless
otherwise specified.
2
FACTUAL AND PROCEDURAL HISTORY
A. 2017 LOS ANGELES COUNTY DEPENDENCY PROCEEDING
On September 29, 2017, a dependency petition was filed on behalf of A.F. in Los
Angeles County. On November 15, 2017, the Los Angeles County Juvenile Court found
true three of the petition’s allegations:
“b-1 [¶] On 09/09/2017, the child [A.F.] was born suffering from a
detrimental condition. Such condition consisted of a positive toxicology screen
for methamphetamine at the child’s birth. Such condition would not exist except
as a result of unreasonable acts by the child’s mother, [A.D.], placing the child at
risk of physical harm and damage. The mother’s substance abuse endangers the
child’s physical health and safety, and places the child at risk of serious physical
harm, damage and danger.
“b-2 [¶] The child [A.F.’s] mother, [A.D.], has a history of substance abuse
and is a current abuser of methamphetamine and amphetamine which renders the
mother incapable of providing regular care and supervision of the child. The
mother abused illicit drugs during the mother’s pregnancy with the child and had a
positive toxicology screen for methamphetamine and amphetamine on 09/09/2017,
at the child’s birth. The child’s father, [C.F.], knew of the mother’s substance
abuse and failed to protect the child. The child is of such young age requiring
constant care and supervision and the mother’s substance abuse interferes with
providing regular care and supervision of the child. The mother’s substance
3
abuse, and the father’s failure to protect the child, endangers the child’s physical
health and safety, and places the child at risk of serious physical harm, damage,
[and danger].
“b-3 [¶] The child [A.F.’s] mother, [A.D.], and the father, [C.F.], have a
history of engaging in violent altercations. On prior occasions, the mother and the
father pushed and shoved each other. Such violent conduct on the part of the
parents endangers the child’s physical health and safety, and places the child at
risk of serious physical harm, damage and danger.”
The Los Angeles County Juvenile Court sustained the petition, declared A.F. a
dependent child of the court, removed A.F. from the custody of Mother and Father, and
ordered reunification services to both parents. Reunification services for both parents
were terminated on November 14, 2018. On November 6, 2019, the court selected
adoption as A.F.’s permanent plan and terminated the parental rights of Mother and
Father.
B. CURRENT DEPENDENCY PROCEEDING
On November 12, 2022, San Bernardino County Children and Family Services
(the Department) received an immediate response referral alleging caretaker
absence/incapacity by Mother. A social worker responded to the emergency department
at Loma Linda University Medical Center, where she met one-month-old B.D. and
maternal aunts Teresa and Melissa. Maternal aunts explained that both Father and
Mother were in jail, and Mother had arranged for Father’s sister-in-law, Breanna, to care
4
for B.D. and R.F. in her absence. Breanna had called the maternal aunts two days before
because B.D. was having trouble breathing, and they urged Breanna to take the baby to
the hospital. The next day, when B.D. still had not been seen by a doctor, Teresa drove
to Breanna’s home and took B.D. to the hospital. He was diagnosed with a respiratory
syncytial virus (RSV) infection. Upon B.D.’s discharge from the hospital, no family
member was able and willing to care for him. Teresa stated that she was unable to take
care of the children because she was already caring for five children and the maternal
grandmother, who suffers from amyotrophic lateral sclerosis.
The social worker received a call from paternal aunt Breanna stating that she could
no longer take care of the children because she and her husband were moving. Breanna
told the social worker that R.F. was at the home of paternal aunt Carmen and provided
the address. The Department determined that both children would be detained because
they had no legal caregiver available, and the arrangements Mother had made for their
care were no longer adequate.
The social worker visited Father in jail, where he was awaiting trial on charges of
battery causing serious bodily injury (Pen. Code, § 243, subd. (d)), active participation in
a criminal street gang (Pen. Code, § 186.22, subd. (a)), and violation of parole (Pen.
Code, § 3056). Father stated that both he and Mother were arrested for the same incident,
although Father was arrested a few weeks before Mother. Father said he could not post
his $400,000 bail and would be going to trial. The social worker notified Father that R.F.
5
would be detained and provided notice of the detention hearing set for November 16,
2022.
The social worker visited Mother in jail, where she was awaiting trial on charges
of battery causing serious bodily injury (Pen. Code, § 243, subd. (d)), active participation
in a criminal street gang (Pen. Code, § 186.22, subd. (a)), and criminal threats (Pen.
Code, § 422). Mother stated that she was arrested October 31, 2022, on “ ‘false
charges,’ ” and was unable to post bail of $450,000. Mother was provided notice of the
November 16 detention hearing.
Mother requested that the children be placed with their maternal great aunt Delia.
Father also stated that Delia’s home would be a good placement. The Department took
both children into temporary custody and placed them together in the home of maternal
great aunt Delia.
On November 15, 2022, the Department filed section 300 petitions on behalf of
the children alleging they were at risk of harm or neglect due to both parents’ criminal
activity and Mother’s substance abuse, that both parents are incarcerated and cannot
arrange for the children’s care, and that in the sibling dependency proceeding both
parents had failed to reunify and had their parental rights terminated. Both parents were
still in custody and transported to juvenile court for the detention hearing on
November 16. The court detained the children and set a combined jurisdiction and
disposition hearing, which was set for contest and continued several times.
6
When interviewed for the jurisdiction/disposition report, Mother stated that she
had been arrested for being in the wrong place at the wrong time. She said that she has
been in an on-again-off-again relationship for roughly the last six years with her
boyfriend, Father. They were living together with the children at an apartment complex
in Adelanto. A neighbor at the apartment complex had accused her of assault, which was
not true. Mother also denied that Father had been involved in any fight with the neighbor
and denied that he was in a gang. She said Father has “ ‘a lot of tattoos and looks a
certain way where people judge him.’ ” She said Father had recently been released from
prison, had obtained employment, and they were doing “ ‘good.’ ” She denied any use of
physical discipline with the children by either her or Father and said that there is always
enough food to eat, and the utilities are always on.
Mother reported that her older child, A.F., was adopted by maternal grandmother.
Mother said that A.F. had tested positive for methamphetamine at birth, child protective
services became involved, and she lost her parental rights. Mother reported that she first
used meth at age 16 and was a daily user by age 18. Mother stated that she has not used
any drugs since completing an inpatient treatment program “ ‘a few years ago.’ ” She
denied any drug use by Father and said they both drink alcohol occasionally.
Mother stated that she and Father get along “ ‘good’ ” and denied there was any
domestic violence. She disagreed with the allegation that the termination of her parental
rights over a sibling places the children at risk of abuse or neglect because A.F.’s case
was due to her use of substances, and she does not use drugs anymore.
7
On January 18, 2023, the Department filed with the juvenile court the police report
of the September 29, 2022, incident and minute orders from the preliminary hearing in
the parents’ criminal cases. According to the report, sheriff’s deputies responded to a call
of an assault with injuries at the apartment complex where the parents were residing.
Deputies found the victim incoherent and crying, with “blood spatter all over her face and
on the grey sweater [she] wore. [Her] entire face was swollen, with major swelling on
her upper right eyebrow, cheek bone areas and lips. [She] had pink in her eyes and
multiple lacerations on the right side of her face. [Victim] was transported by
[ambulance] to Victor Valley Global Medical Center for her injuries.” The victim said
that five people attacked her, her hair was pulled out in multiple areas, and she had been
kicked and punched in the face and head repeatedly. The victim reported that before the
attack, she had asked some people leaving a party in the complex to pick up their trash.
A resident named Elijah reportedly felt disrespected by her request and became very
angry, saying this was his “ ‘hood’ ” and something about Pomona, then started punching
the victim. Another resident tried to help the victim return to her apartment, but Elijah
grabbed the victim by her hair and dragged her from her apartment door down to the
parking lot, where he and others attacked the victim. The report states that a woman
“later identified as [Mother], who is a neighbor in apartment number 18, kicked [the
victim] an unknown amount of times,” and that Father “was striking [the victim] by
unknown means.” The victim later picked Mother, Father, and two other residents of the
complex out of photo lineups and identified them as her attackers. Father was arrested on
8
October 13, but Mother was not taken into custody at that time because she was caring
for two young children, including B.D. who was only a few days old.
On December 20, 2022, after the victim had testified at the preliminary hearing,
Mother and Father each pled no contest to a single felony count of assault by force likely
to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). Father also admitted that
he had one or more prior serious felony convictions (Pen. Code, § 1170.12). The
remaining charges and allegations were dismissed pursuant to their plea agreements.
Mother was granted two years of formal probation with a custody term of 101 days in
county jail, which was satisfied by time served. Father remained in custody with
sentencing set for January 31, 2023.
In the Department’s January 18, 2023, report to the court, the Department
acknowledged that Mother was no longer in custody and that she had tested negative for
all substances on January 6, 2023. The Department therefore amended its recommended
jurisdictional findings and asked the court to find not true the allegations concerning
Mother’s substance abuse and incarceration.
On January 31, 2023, during a Child and Family Team Meeting, the children’s
caregiver requested services for R.F. because “she had heard statements from the child
relating to the parents engaging in domestic violence.” The caregiver reported that R.F.
had mimicked “ ‘daddy hitting mommy’ ” and R.F. went on to say, “ ‘daddy hit mommy’
and ‘mommy fall and mommy cry.’ ”
9
Mother was interviewed again and asked about the September 2022 incident that
led to her and Father’s arrests. Mother stated that she and Father had been hanging out at
the pool that day, along with their codefendants, Kiara, whom mother described as “ ‘a
family friend,’ ” and her brother, Elijah. Mother acknowledged that the victim had
“ ‘pointed [her and Father] out’ ” as having attacked her, but Mother stated she and
Father “ ‘were not involved.’ ” Mother reported that Kiara and Elijah had been drinking,
but she and Father were not. Mother further stated that she was eight months pregnant at
the time, that she and Father were both identified as attackers by the victim, and that their
two codefendants were friends of theirs, but Mother again denied that either she or Father
had any involvement in the violence. Mother also stated that she was not drinking that
day because she was eight months pregnant with B.D., and she denied that Father was
drinking.
When the social worker addressed the sibling dependency case, Mother stated that
was only due to her substance abuse. When the social worker explained that in addition
to substance abuse, there was another sustained allegation that Mother and Father had a
history of engaging in violent altercations and read that allegation to her, Mother did not
acknowledge that to be true. The social worker tried to explain that the history of
violence reported in the sibling case and the violence that was reported in the present case
were troubling because the violence was occurring around the children and putting them
in danger. Mother became very defensive and asked to speak to a supervisor so she could
request that a new social worker be assigned to the case.
10
On February 22, 2023, the Department filed first amended petitions for both
children with additional allegations that Mother and Father “engage[] in ongoing violent
activity” that endangers the children. The new allegations specifically refer to the sibling
dependency case in which the court had found true that the parents had a history of
engaging in violent altercations that endangered the child, and also referred to both
parents’ December 2022 convictions for assault by means of force likely to produce great
bodily injury. The Department filed a report explaining the amendments to the petitions
and attaching the records from the 2017 sibling dependency case.
On March 29, 2023, the juvenile court held the further contested combined
jurisdiction and disposition hearing and heard testimony from Mother and from the social
worker. Mother understood that the Department’s recommendation was to deny her
reunification services. She acknowledged the 2017 dependency proceeding regarding
A.F. and stated that he had been removed from her custody due to Mother’s “substance
abuse problem and also domestic violence.” Mother also acknowledged that she was
provided reunification services in the Los Angeles dependency case, those services were
terminated, and her parental rights with respect to A.F. were terminated. Mother testified
that in connection with the 2017 sibling dependency case, she had started a domestic
violence program but did not complete it.
Mother understood that the Department’s recommendation to deny her services
was based in part on her previous denials and her lack of honesty in refusing to
acknowledge that she and Father had a history of domestic violence that, in addition to
11
her substance abuse, was another problem that led to A.F.’s removal. Mother stated that
she and Father were involved in a relationship at the time of the sibling dependency case
and that their relationship did involve domestic violence. Mother stated that she and
Father had ended their relationship sometime after the sibling dependency case around
December 2021, but they continued to share the apartment together until Father’s
September 2022 arrest, because the lease was in both of their names. Since the lease
ended in October 2022, Mother’s only relationship with Father has been co-parenting
R.F., although Mother conceded on cross-examination that she continued communicating
with Father after his arrest and sent him pictures, including while she was in custody.
Mother stated that the only domestic violence incident with Father had occurred
“around 2017,” and there had not been any domestic violence in the years since. She
acknowledged that Father was incarcerated in state prison for 13 months of that period,
from May 2021 through June 2022. Mother explained that she did not recognize the
domestic violence in her relationship with Father until her recent participation in the
domestic violence program where she heard other women talking about their experiences
which prompted her to realize that she had experienced domestic violence as well.
Mother felt that the domestic violence program was benefitting her.
Mother also admitted that she was abusing methamphetamine at the time of the
2017 sibling dependency case, but she stated she does not have any issue with substance
abuse today. Mother testified that she completed an inpatient substance abuse treatment
program and has not used since then. Mother submitted to random drug testing for the
12
Department in the present case and has tested negative. Mother felt that the treatment
program helped her with her drug abuse.
Mother testified that she was 19 years old when she lost custody of A.F. When
asked why she did not complete her services in the 2017 sibling case, Mother said she felt
the need to move away from Los Angeles County to get out of the environment where
she had engaged in her substance abuse. Mother also said that with “everything that was
going on and moving and stuff, [she] . . . just kind of, like, lost track.” Mother then said
she believed it was the domestic violence program that she had failed to complete
because she had to pay for those classes out of pocket and was not working at the time.
Mother testified that she was consistent in her visitation with the children, and the
only time she missed a visit was when B.D. was infected with COVID. Mother enjoyed
seeing the children and would sometimes bring paints or do activities with them.
Under cross-examination, Mother denied being directly involved in the
September 29, 2022, altercation that led to her and Father’s arrests. Mother said there
was a fight between the victim and another resident named Kiara. Mother said that she
“tried to separate” them to break up the fight, but that made it look like Mother was “in it
too.” Mother then stated: “I completely understand that I was there when I wasn’t
supposed to be there[,] and I take blame for my criminal behavior.” When pressed to
explain how her actions constituted criminal behavior, Mother said it was “being at the
wrong place at the wrong time” and “just being around, like, people I’m not supposed to
be around.” Mother further stated: “I kind of got in the middle so I feel like I had part of
13
it ‘cause I tried to stop it, but I got in the middle of it.” Mother also denied that Father
had taken part in the September 29 fight.
Mother testified that in the present dependency proceeding, she completed a 12-
hour parenting program on February 14, 2023, for which she submitted a certificate of
completion, enrolled in a domestic violence program in early March 2023 and completed
five classes, and started therapy which was scheduled for every other week and
completed her first session the week before the hearing. Mother stated that she was
unable to get referrals to these services from the social worker and had to contact the
probation department and Medi-Cal to find services she could access. Mother said the
social worker told her from the beginning that the Department was going to recommend
against reunification. Mother said the social worker was not communicating with her and
would not return her calls. Only after Mother complained to a supervisor did the social
worker call Mother “upset and . . . screaming at me,” “she said I wasn’t complying,”
“[a]nd then she kind of just hung up on me.”
The social worker testified that she had conducted two interviews with Mother;
one while she was in custody and the other after she was released. At the first, they
discussed Mother’s background and the allegations in the petitions, but they did not
discuss the Department’s recommendations because they were waiting for law
enforcement records. At the second interview, the social worker gave Mother a
community resource packet that included a list of available free services like parenting
classes, domestic violence programs, drug treatment, housing, and other assistance. The
14
social worker had not yet received the law enforcement records, so the recommendations
were not discussed at that meeting either.
The social worker had concerns given Mother’s history, that after failing to
reunify in the sibling case, Mother was denying any kind of domestic violence or that it
played any role in the prior case, and then was involved in a violent altercation while she
was pregnant. The social worker did not feel that Mother had addressed her issues with
domestic violence because at the first interview, Mother denied any domestic violence,
and at the second, Mother refused even to acknowledge that domestic violence was
alleged in the sibling dependency case. The social worker opined that Mother’s “not
acknowledging what happened regarding her arrest, not acknowledging the domestic
violence with father,” despite Mother having had time since the sibling case “to benefit
and show change, . . . I believe that places the children at risk.”
The social worker also testified that in her final telephone conversation with
Mother in February 2023, mother became upset, and “[t]he call was terminated not by me
but by mom, and after that she requested a new social worker.”
The social worker also testified that in her view, ending a domestic violence
relationship is “a good start,” but is not sufficient to resolve the issue. That requires
“education, recognizing what domestic violence is, how it has an impact on children, and
also just acknowledgement . . . which I did not get from mom . . . until this hearing.”
Finally, the social worker did not believe that Mother’s testimony regarding the
September 29 altercation accurately described her involvement, which was described in
15
the police report as a five-person attack on a single victim who picked Mother out of a
lineup, “a very bloody incident” that Mother participated in while she was pregnant.
The juvenile court dismissed without prejudice the allegation concerning Mother’s
substance abuse (designated as b-2 on both petitions) and the allegation concerning
Mother’s incarceration (designated as g-4 on B.D.’s petition and as g-6 on R.F.’s
petition), found true as written all of the remaining allegations in the first amended
petitions, declared both children dependents of the court, and ordered them removed from
the custody of Mother, Father, and all unknown fathers. After considering argument
from all counsel, the court found by clear and convincing evidence that section 361.5,
subdivisions (b)(10) and (b)(11), applied, and that Mother had not shown by clear and
convincing evidence that reunification would be in the best interest of the children under
subdivision (c)(2). The court denied reunification services to both parents and set a
section 366.26 hearing for July 27, 2023.
The court first described in detail how Mother’s testimony “differs greatly” from
other testimony and evidence in the record, including discrepancies between Mother’s
account of trying to break up the September 2022 fight and the victim’s account in the
police report, Mother’s testimony regarding her last phone call with the social worker in
February 2023 which was contradicted by the social worker’s February 23, 2023, report,
and Mother’s claim that the domestic violence with Father had not recurred since 2017
yet R.F., who was born in December 2019, has a recollection of violence between Mother
and Father. The court concluded that Mother “was not honest and truthful and open”
16
about her history of violence with Father, its role in the 2017 sibling dependency, or her
participation in the violent assault on a neighbor for which she was convicted. The court
found that to the extent Mother’s testimony differed from the social worker’s reports, the
social worker was “more credible in her recounting of [Mother’s] prior statements.”
The court acknowledged that Mother had addressed her substance abuse problems
by completing a treatment program and participating in aftercare. Mother had started a
domestic violence program back in 2019 but failed to complete it, then did not take any
steps to address the “violent altercations involving herself and [Father]” until “a few
weeks prior to this contested hearing.” The court concluded that clear and convincing
evidence established that Mother “has not subsequently made reasonable efforts to treat
the problems that led to the removal of the [children’s] sibling or half-sibling.”
Addressing section 361.5, subdivision (c)(2), the court found that there had been
no testimony regarding whether reunification would be in the children’s best interest
“other than how the visits are going for the mother and children,” which does not rise to
the level of clear and convincing evidence that reunification would be in their best
interest, “especially given the fact that [R.F.] is recounting domestic violence that she
saw between her mother and her father.”
DISCUSSION
Mother contends that substantial evidence does not support the juvenile court’s
finding that Mother “has not subsequently made a reasonable effort to treat the problems
17
that led to removal of” the children’s sibling and half sibling, A.F. (§ 361.5,
subds. (b)(10)(A) & (b)(11)(A).) We disagree.
When a child is removed from parental custody under the dependency laws, the
juvenile court is generally required to provide family reunifications services. (§ 361.5,
subd. (a).) The provision of reunification services aims to “eliminate the conditions
leading to loss of custody and facilitate reunification of parent and child. This furthers
the goal of preservation of family, whenever possible.” (In re Baby Boy H. (1998) 63
Cal.App.4th 470, 478.) The statutory framework also furthers the legislative goal “that
the dependency process proceed with deliberate speed and without undue delay.”
(Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) “Thus, the statutory
scheme recognizes that there are cases in which the delay attributable to the provision of
reunification services would be more detrimental to the minor than discounting the
competing goal of family preservation. [Citation.] Specifically, section 361.5,
subdivision (b), exempts from reunification services ‘ “those parents who are unlikely to
benefit” ’ from such services or for whom reunification efforts are likely to be
‘fruitless.’ ” (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120 (Jennifer
S.).) If the court finds that one of these exceptions, commonly referred to as bypass
provisions, applies, “ ‘ “the general rule favoring reunification is replaced by a legislative
assumption that offering services would be an unwise use of governmental resources.
[Citation.]” ’ ” (In re William B. (2008) 163 Cal.App.4th 1220, 1227 (William B.).)
18
Specifically, section 361.5, subdivision (b)(10)(A), provides that a court may
deny services if there is clear and convincing evidence: “That the court ordered
termination of reunification services for any siblings or half siblings of the child because
the parent . . . failed to reunify with the sibling or half sibling after the sibling or half
sibling had been removed from that parent . . . and that, according to the findings of the
court, this parent . . . 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.” (§ 361.5,
subd. (b)(10)(A).)
Similarly, subdivision (b)(11)(A) provides that the court may deny reunification
services to a parent if it finds by clear and convincing evidence that the parent’s
“parental rights . . . over any sibling or half sibling of the child had been permanently
severed, . . . and that, according to the findings of the court, this parent 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 the parent.” (§ 361.5, subd. (b)(11)(A).)
Once the juvenile court determines that either subdivision (b)(10) or (b)(11)
applies, it “shall not order reunification for [the] parent . . . unless the court finds, by clear
and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5,
subd. (c)(2).) In other words, “section 361.5, subdivision (c), provides that denial of
reunification services is mandatory, not discretionary, with respect to nearly all of the
bypass provisions, unless the court makes certain countervailing factual findings.” (In re
A.E. (2019) 38 Cal.App.5th 1124, 1141.) “The burden is on the parent to . . . show that
19
reunification would serve the best interests of the child.” (William B., supra, 163
Cal.App.4th at p. 1227.)
“We review an order denying reunification services under subdivision (b) of
section 361.5 for substantial evidence. [Citation.] Under such circumstances, we do not
make credibility determinations or reweigh the evidence. [Citation.] Rather, we ‘review
the entire record in the light most favorable to the trial court’s findings to determine if
there is substantial evidence in the record to support those findings.’ [Citation.] In doing
so, we are mindful of the higher standard of proof required in the court below when
reunification bypass is ordered.” (Jennifer S., supra, 15 Cal.App.5th at pp. 1121-1122.)
Where the juvenile court made a finding by clear and convincing evidence, we “must
determine whether the record, viewed as a whole, contains substantial evidence from
which a reasonable trier of fact could have made the finding of high probability
demanded by this standard of proof.” (Conservatorship of O.B. (2020) 9 Cal.5th 989,
1005.)
It is undisputed in this case that: A.F. is the sibling of R.F. and the half sibling of
B.D., A.F. was removed from Mother’s custody and declared a dependent of the Los
Angeles County Juvenile Court on November 15, 2017, reunification services were
ordered terminated by that court on November 14, 2018, because Mother failed to reunify
with A.F., and Mother’s parental rights over A.F. were permanently severed on
November 6, 2019. Mother challenges the juvenile court’s finding that she has not
subsequently made a reasonable effort to treat the problems that led to A.F.’s removal.
20
Mother contends that A.F. was removed due to her substance abuse and domestic
violence, whereas R.F. and B.D. were removed due to her arrest and conviction for
assault by means of force likely to produce great bodily injury. Mother avers that she had
addressed the problems that led to A.F.’s removal because she no longer has a substance
abuse problem, and she ended her relationship with Father.
“The reasonable effort requirement focuses on the extent of a parent’s efforts, not
whether he or she has attained ‘a certain level of progress.’ [Citation.] ‘To be
reasonable, the parent’s efforts must be more than “lackadaisical or half-hearted.” ’
[Citation.] However, ‘[t]he “reasonable effort to treat” standard “is not synonymous with
‘cure.’ ” ’ [Citation.]” (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914 (R.T.).)
“We do not read the ‘reasonable effort’ language in the bypass provisions to mean
that any effort by a parent, even if clearly genuine, to address the problems leading to
removal will constitute a reasonable effort and as such render these provisions
inapplicable. It is certainly appropriate for the juvenile court to consider the duration,
extent and context of the parent’s efforts, as well as any other factors relating to
the quality and quantity of those efforts, when evaluating the effort for reasonableness.
And while the degree of progress is not the focus of the inquiry, a parent’s progress, or
lack of progress, both in the short and long term, may be considered to the extent it bears
on the reasonableness of the effort made. [¶] Simply stated, although success alone is
not the sole measure of reasonableness, the measure of success achieved is properly
21
considered a factor in the juvenile court’s determination of whether an effort qualifies as
reasonable.” (Id. at pp. 914-915.)
We find ample evidence supports the juvenile court’s finding that Mother has not
subsequently made a reasonable effort to treat the problems leading to A.F.’s removal.
We recognize that Mother has apparently overcome her methamphetamine addiction and
maintained her abstinence from drugs since completing an inpatient treatment program.
Once Mother was released from custody, submitted to random drug testing, and tested
negative, the Department promptly recommended that the court find not true the
petition’s allegations that the children were at risk due to Mother’s incarceration and
substance abuse. The court dismissed those allegations and appropriately acknowledged
that Mother had completed drug treatment, participated in aftercare, and “has clearly
overcome” her substance abuse problem. Without in any way diminishing Mother’s
achievement with regard to her methamphetamine addiction, that alone does not
constitute a reasonable effort to treat the problems that led to A.F.’s removal, because the
removal was also due to the failure to protect A.F. from “violent altercations” involving
Mother and Father that “endanger[ed] the child’s physical health and safety, and place[d]
the child at risk of serious physical harm, damage and danger.”
Mother’s attempt to characterize the September 2022 assault as somehow different
from the domestic violence that was a concern in A.F.’s 2017 dependency is
unpersuasive. The danger to a child is the same regardless of whether the child is
exposed to domestic violence between Father and Mother or is placed at risk because
22
Father and Mother are coordinating the infliction of violence upon a third person. The
evidence showed that Mother, along with Father and at least two others, engaged in a
bloody, unprovoked attack on a neighbor that resulted in significant injuries just a few
days before giving birth to B.D. Although Mother testified that she was attempting to
break up the fight, the court did not have to believe her account, which stood in stark
contrast to the victim’s report identifying Mother as having kicked her repeatedly while
three others were punching, striking, kicking her in the face, and pulling out her hair.
The juvenile court had ample basis for its express adverse credibility finding
against Mother. As the court pointed out, Mother’s testimony was contradicted again and
again by the Department’s contemporaneous reports, by the law enforcement records in
her criminal case, and by the testimony of the social worker which the court found to be
more credible. Although Mother contends that she had ended her relationship with
Father in December 2021 and that terminating that relationship was a reasonable effort to
address their history of domestic violence, they continued living together with the
children after Father was released from prison until he was arrested again for the
September 2022 assault. Mother conceded that she continued writing to Father and
sending him pictures even after her arrest on October 31, 2022. In addition, Mother’s
testimony that there had been no domestic violence with Father since 2017 was belied by
R.F., who the caregiver reported was reenacting scenes of “ ‘daddy hitting mommy’ ”
and was heard to say, “ ‘daddy hit mommy’ and ‘mommy fall and mommy cry.’ ” In
light of Mother’s continued denial and minimization of domestic violence, the juvenile
23
court properly concluded that Mother’s belated enrollment in a domestic violence
program just a few weeks before the contested hearing “was simply too little, too late.”
(R.T., supra, 202 Cal.App.4th at p. 915.)
Finally, Mother argues that she presented clear and convincing evidence that
reunification is in the children’s best interest under section 361.5, subdivision (c)(2). We
disagree. As the juvenile court pointed out, no testimony on this issue was presented at
the hearing, other than Mother’s testimony that she had been consistent in her visitation
with the children and was not aware of any issues regarding those visits. Mother argues
that reunification is in the children’s interest because she was successfully able to parent
R.F. for two and a half years without the Department’s involvement and without any
evidence that “the children were at risk under her care.” The argument overlooks the
caregiver’s report in February 2023 that R.F. was heard mimicking “ ‘daddy hitting
mommy’ ” and saying “ ‘daddy hit mommy’ and ‘mommy fall and mommy cry’ ” which
indicates that R.F. had witnessed domestic violence between Mother and Father. In light
of the child’s exposure to domestic violence and Mother’s continued denial and
minimization, her consistent visitation with the children is inadequate to establish by
clear and convincing evidence that reunification is in the children’s best interest.
24
DISPOSITION
The petition for extraordinary writ is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.
25