In re H.R. CA4/1

Filed 9/15/14 In re H.R. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re H.R., a Person Coming Under the
Juvenile Court Law.
D065355
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. CJ1111)
Plaintiff and Respondent,
v.
G.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Laura J.
Birkmeyer, Judge. Affirmed.
Andrea R. St. Julian, under appointment by the Court of Appeal for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Erica R. Cortez, Deputy County Counsel, for Plaintiff and Respondent.
G.R. (mother) appeals an order denying her request for placement of her son,
H.R., in her custody as well as her request for increased visitation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Importance of the Summary of Facts
We begin our discussion of the factual and procedural history of this matter in an
unorthodox manner by discussing the applicable standard of review. Here, the mother
raises a substantial evidence challenge to the juvenile court's order. In reviewing such a
challenge, we evaluate the evidence in the light most favorable to the trial court's
determinations, resolve all evidentiary conflicts in favor of the prevailing party, and
indulge in all reasonable inferences to uphold the trial court's findings. (Bickel v. City of
Piedmont (1997) 16 Cal. 4th 1040, 1053 (Bickel).) We do not reweigh the evidence,
evaluate the credibility of witnesses, or resolve evidentiary conflicts. (In re S.C. (2006)
138 Cal. App. 4th 396, 415.) The burden is on the party challenging the findings and
orders of the trial court to show there is no evidence of a substantial nature to support the
finding or order. (In re L.Y.L. (2002) 101 Cal. App. 4th 942, 947.)
Application of the "substantial evidence" test to the mother's case requires us to
review the whole record in a light most favorable to the juvenile court's judgment and
presume the existence of every fact the trier of fact could have reasonably deduced from
the evidence in support of its decision. (People v. Ochoa (1993) 6 Cal. 4th 1199, 1206.)
Our focus is on the whole record of evidence presented before the juvenile court and not
just on " 'isolated bits of evidence.' " (People v. Johnson (1980) 26 Cal. 3d 557, 577.) We
discuss the well-established substantial evidence review standard in such detail here to
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remind the parties of their obligation to this court when summarizing the facts. In
reading both the opening brief and the respondent's brief, we are left with the impression
that the parties are discussing two different cases. We are disappointed with the mother's
opening brief in that it focuses on only the evidence that supports the mother's desired
conclusion: the juvenile court should have given the mother custody of H.R. However,
the court did not so order, and the mother is required to provide the facts on which the
court made its determination and then explain why those facts do not support the court's
conclusion. Here, she has not done so. Instead, she focuses primarily on the facts
supporting her position only. This is neither helpful to this court nor appropriate under
the substantial evidence review standard. (See Bickel, supra, 16 Cal.4th at p. 1053.) The
mother's counsel appears to ignore that we must uphold the juvenile court's factual
findings if there is any substantial evidence, whether controverted or not, that supports
the court's conclusion. (In re Jason L. (1990) 222 Cal. App. 3d 1206, 1214.) As such, for
purposes of our review here, it is unimportant if evidence supporting the challenged
orders is controverted. Thus, the mother should have presented the facts supporting the
court's orders and then explained why that evidence is not sufficient. She did not do so.
B. H.R.'s Challenges and the Mother's Efforts to Care for H.R.
H.R. was born in 1997. Unfortunately, he has faced numerous and difficult
developmental challenges since birth. He has been diagnosed with depression, anxiety,
autism, and attention deficit hyperactivity disorder (ADHD).
H.R. initially lived in a home with both parents, and then later, with only his father
after his parents divorced in 2000. During this time, the mother struggled to care for H.R.
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For example, in 2002, the mother left H.R. unattended in the family home while the
mother went to the store. Also, in 2003, H.R. was hospitalized for overdosing on
clonidine while under the mother's supervision.
Such incidents along with H.R.'s severe behavioral problems, prompted the San
Diego County Health and Human Services Agency (Agency) to open and monitor a
voluntary case, wherein the father maintained primary custody, while the mother was
provided with supervised visitation. Additionally, as a result of H.R.'s autism and mild
intellectual and development disabilities, H.R. became a client of the San Diego Regional
Center (Regional Center) in May 2003 and has continued as a patient since that time.
This first voluntary case closed in October 2004 when H.R.'s behavior appeared to
stabilize under the father's care.
In October 2009, the Agency opened a second voluntary case when H.R. was held
at Rady Children's Hospital after experiencing a "psychotic break." The plan included
more involved services and goals for the mother than what were provided for in the
family's first voluntary case. For example, this case plan required the mother to undergo
a psychiatric evaluation, in which the mother was later diagnosed with personality
disorder, posttraumatic stress disorder (PTSD), and generalized anxiety. The psychiatric
evaluation also recommended that the mother receive medication management; however,
the mother disagreed with this recommendation. The case plan additionally required the
mother to become involved in parent support groups for children with autism and to
participate in Regional Center in-home behavior modification services in addition to
maintaining daily routines to provide structure for H.R. The mother failed to comply
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with these requirements. As a result, H.R. missed school, experienced crisis escalations,
and did not receive adequate medication management under the mother's supervision. By
January 2011, the mother had not made progress in complying with the case plan;
however, the father had adequately participated in the case plan and had demonstrated an
ability to meet H.R.'s needs. Therefore, the voluntary case was closed and H.R. remained
in the father's primary custody.
On March 15, 2011, the father voluntarily placed H.R. in a group home due to
H.R.'s increasingly negative behavior. The father was overwhelmed with H.R.'s behavior
and had difficulties dealing with H.R.'s diagnosis and emotional instability. At the time
of this placement, H.R.'s behaviors consisted of leaving the residence without permission,
self-injurious behavior (e.g., hitting himself, picking or scratching at his skin, and pulling
on his ears), uncooperative behavior (e.g., refusal to participate in essential routines),
disruptive behavior (e.g., tantrums, screaming, yelling, and pacing), and property
destruction. After placing H.R. in the group home, the father stopped participating in
services and ceased providing any financial and emotional support for him.
H.R.'s first group home placement was in a service level 4 community care
facility1 that was highly structured and staffed with professionals trained in behavioral
1 A community care facility is licensed by the Community Care Licensing Division
of the State Department of Social Services (Licensing) to provide 24-hour nonmedical
residential care to children and adults with developmental disabilities. A service level 4
facility provides care, supervision, and professionally supervised training for persons
with deficits in self-help skills, and/or severe impairment in physical coordination and
mobility, and/or severely disruptive or self-injurious behavior. (See
http://www.dds.ca.gov/LivingArrang/CCF.cfm as of Sept. 9, 2014.)
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strategies for special needs clients. After entering the group home, the frequency H.R.
exhibited his concerning behaviors decreased almost immediately.
At the beginning of H.R.'s placement in the first group home, the mother was
allowed supervised visits in the home. However, the visits gradually became disruptive
as the mother arrived up to half an hour late to some of the visits, interfered with the
group home kitchen when cooking for H.R., created safety concerns in the home by
leaving an unattended stove burner on in addition to leaving the home's front door open,
argued with staff about the level of care provided to H.R., took pictures of confidential
items and settings in the home, and called Licensing about the home instead of first
addressing her concerns with the home's staff. Each of the mother's medical concerns
regarding H.R. were evaluated and deemed unfounded.
In August 2011, the mother's visits were changed to unsupervised pursuant to a
family court order. The unsupervised visits presented a new set of concerns. The mother
would show up for visits unannounced. She would drop off H.R. between 10:00 and
11:00 p.m. after every visit, disregarding the terms of the court order, which required
H.R. to be returned by 7:00 p.m. on weeknights. When dropping off H.R. at night, the
mother also would go into the home and turn on all of the lights, sometimes waking other
children in the home. During the visits, the mother caused H.R. to miss taking
medications, which in turn made it difficult for H.R. to calm down. He would not be able
to fall asleep until 2:00 a.m. and then would struggle the following day.
Additionally, the mother continued to harass the staff at the group home and be
disruptive, even after being instructed to refrain from such communication and instead
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contact her attorney with concerns. For example, during this period, the mother came
into the group home and accused the staff of losing H.R.'s clothes. In December 2011,
after the mother was no longer allowed inside the group home, she called the sheriff's
department and was observed talking to a deputy sheriff outside the home, but the deputy
never came to the door or contacted staff at the group home.
H.R. observed the mother's contact with law enforcement, in addition to several of
the other disruptive incidents the mother instigated in the group home. By the end of
2011, H.R. was no longer improving. He was hospitalized because his anxiety was
unmanageable. In January 2012, H.R. was again hospitalized due to an increase in
obsessive-compulsive disorder and self-injurious behaviors. After his discharge, H.R.
was diagnosed with depression, anxiety, autistic disorder, and ADHD.
On March 26, 2012, H.R.'s first group home gave notice that it could no longer
care for H.R. The home noted that a primary reason for giving notice stemmed from the
mother's continued harassment of the home's staff as well as the mother's alleged assault
of one of the staff when returning H.R. to the home after a recent visit. The latter
incident prompted the sheriff's department to come to the group home to ensure that the
mother left the property. Also, when the mother would take H.R. for unsupervised visits
to her home, she would call the staff at his group home, and ask them to come get H.R.
because he was hitting her and she could not handle him. Prior to H.R.'s departure, the
group home indicated its notice was not caused by H.R. as he was "an awesome kid,"
with "unlimited potential" in a structured environment; rather, the notice was caused by
the level of difficulty in working with H.R.'s parents.
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On May 25, 2012, H.R. was placed in a second group home and adjusted well to
his new surroundings. After only a few weeks at this placement, the mother began to
make similar complaints about the home. In time, the group home gave notice on several
occasions for similar reasons to those of H.R.'s first placement, which included: (1) the
mother dropping off H.R. late after visits despite the terms of the court's visitation order;
(2) H.R. missing medications while under the mother's supervision (which continued to
detrimentally affect H.R.'s ability to sleep and maintain a structured routine); and (3) the
Agency and Licensing visiting the group home because of the mother's complaints. On
November 14, 2012, H.R.'s second group home gave final notice to terminate H.R.'s
placement. Again, the home communicated that notice was not given due to H.R.'s
behavior, but instead, as a result of the father's unavailability and the mother's behavior
and unfounded allegations.
In September 2012, the Regional Center produced a report on H.R.'s progress and
behaviors within the group homes. It reported that H.R. had limited safety awareness.
For example, he did not safely cross the street and could not call 911. He required
supervision while in the community to make sure he was safe.
While H.R. was still placed in his second group home, social worker Azucena
Cisneros interviewed H.R.'s teacher, who had worked with H.R. on a daily basis
throughout H.R.'s group home placements. The teacher explained H.R. required a great
deal of consistency and structure to make meaningful progress; however, the teacher
indicated that although H.R. had made some progress in the past months, his behavior
fluctuated tremendously each day, making it difficult for him to meaningfully advance
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academically and socially. In a follow-up letter written by the same teacher, she
explained that H.R. "is very aware of social happenings around him and is influenced by
the conversations, actions, and interactions of others." The teacher also noted that
unnecessary changes in H.R.'s home or school would result in major setbacks for H.R.
because he requires a long time to adjust to new situations.
During that same timeframe, Cisneros also interviewed the mother at her
apartment. Cisneros indicated that the mother had racing thoughts, made incomplete
statements, and was difficult to follow throughout the conversation because she jumped
from one subject to another. At one point, the mother made incomplete statements about
her own mental health progress and provided a pharmacy's refill phone number when
asked for her doctor's contact information.
The mother's doctor indicated that he believed the mother was neglecting her own
mental health treatment because she was focusing too much on her son's care. The
mother also had difficulty understanding her medication recommendations and often took
the wrong dosage.
Based on the mother's diagnosis of depression and anxiety, her inconsistent
parenting, and her inability to adequately supervise H.R., the Agency recommended
further intervention services to assist the mother in caring for H.R. on her own.
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On December 18, 2012, the Agency filed a petition pursuant to Welfare and
Institutions Code2 section 300, subdivision (c) on behalf of then 15-year-old H.R.
alleging that since approximately January 2012, H.R. had an emotional disorder including
depression, autistic disorder and ADHD, requiring mental health treatment, which his
parents had both failed and were unable to provide. Further, the petition alleged that the
father had stopped participating in the family's voluntary case plan, Han's caregiver had
given notice to terminate placement, and the mother was not given custody by the family
court.
On December 19 to 20, 2012, the juvenile court held a detention hearing and
found that a prima facie showing had been made that H.R. was a child described under
section 300, subdivision (c), and that out-of-home detention was necessary to protect
H.R. from substantial danger. H.R. was detained in a licensed group home, and the
mother was given liberal supervised visits at least twice a week, with the Agency's
discretion to make the visits unsupervised.
Shortly after the detention hearing, social worker Monica Bonilla interacted with
the mother a number of times. During the first interview with the mother, the mother
indicated she did not understand why her son was not under her care and became
defensive. Later in the interview, when the mother was asked about taking her own
medications, she indicated that she was being seen for depression and anxiety, but was
2 Statutory references are to the Welfare and Institutions Code unless otherwise
specified.
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not able to articulate the need for her medications and stated that her psychiatrist never
told her the exact purpose of each medication.
In December 2012, the mother agreed to comply with an updated case plan, which
included objectives such as: (1) notifying the social worker in the event the mother had
concerns related to H.R.'s medical condition or placement; (2) attend services;
(3) maintain appropriate boundaries with H.R.'s substitute care providers; and (4) comply
with medical or psychological treatment provided to the mother.
A jurisdiction/disposition report dated January 9, 2013 stated that because H.R.
had extensive mental health issues, and the mother also needed to address her own mental
health issues, the mother, at the time, was not able to provide a safe, stable and structured
environment that H.R. needed to thrive. The report also indicated that the mother's
housing was stable, she could drive, and she had her own car, which allowed her to get a
job. The mother had a support network of friends and family as well as a strong bond
with H.R. However, the social worker observed that even though the mother wanted the
best for her son, cared for him tremendously, and had attended a Spanish autism parent
support group, she still needed assistance in advocating appropriately for his needs and
providing the structure and consistency required to keep H.R. safe.
On January 16, 2013, H.R. was moved to his third placement in a level 4 respite
home. At the beginning of this placement, the mother had supervised visitation and then
moved to unsupervised visitation shortly thereafter. Although the visits appeared to go
well, H.R.'s concerning behaviors did not improve. In January and again in early March
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of 2013, H.R.'s teacher echoed concerns when she reported that H.R.'s negative behaviors
were only increasing in the classroom.
At the settlement conference on February 4, 2013, the mother submitted to the
section 300, subdivision (c) petition, and the juvenile court made a true finding. The
juvenile court continued to detain H.R. at his current respite home and ordered supervised
and liberal visitation with the mother. The juvenile court gave discretion to the Agency
to allow overnight visits and/or to place H.R. with the mother, with concurrence of H.R.'s
counsel. The contested disposition hearing was continued.
On March 11, 2013, the juvenile court held a special hearing on H.R.'s educational
rights. H.R. had been demonstrating behavioral outbursts that required more classroom
support and modification. At that point, the mother was progressing in that she
demonstrated knowledge of H.R.'s needs, maintained appropriate boundaries with H.R.'s
placement, and met time expectations for visits. The mother's therapist stated that she
was in a better emotional state and was compliant with her medications. The juvenile
court allowed the mother to retain educational rights for H.R. and found she was able to
make educational decisions on his behalf.
That same month, H.R. began yelling, slamming doors, and running up and down
stairs after being returned to his respite home, following an unsupervised visit with the
mother. He then became physically aggressive towards his foster mother and pushed her
son to the floor. Consequently, H.R. was taken to the hospital where he was physically
restrained and sedated. The mother began making claims that the foster family at the
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respite home abused H.R. H.R. was released from the hospital the next day and placed in
a new respite home, his fourth placement.
Two weeks later, the police were called and H.R. was again hospitalized overnight
due to H.R.'s screaming, punching holes in walls, destroying doors, and throwing objects
after a visit with the mother. Following another unsupervised visit with the mother, after
which she returned H.R. an hour and 15 minutes late, the police were once again called
and H.R. was hospitalized.
Throughout the mother's unsupervised visitation, the respite home reported that
there had been incidents where the mother was overheard telling H.R. that he would be
coming home to her soon. In April 2013, H.R.'s fourth placement gave notice that they
could no longer care for H.R. due to his severe and unstable behavior. During this same
time, H.R. also was showing difficult behavior at school, refusing to go into the
classroom, and in one instance, defecating in the bushes. The mother was part of the
decision to move H.R. to Stein Education Center.
On April 16, 2013, Bonilla met with Dr. Joseph Schmidt (a psychologist who has
known H.R. since he was a young child), Danielle Hazlehurst (H.R.'s case worker at the
Regional Center), Mary Kay (court appointed special advocate, or CASA), and Ruben
Vega (group home social worker). The team was concerned with the intensity and
escalation of H.R.'s negative behaviors, especially since they had been surfacing after the
unsupervised contact with the mother. They concluded that H.R. would benefit from a
more structured environment with increased supervision.
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After the meeting, Schmidt provided a letter addressing H.R.'s behavior and
special needs. Schmidt explained that because H.R. is severely autistic, he has "an
exceptional level of anxiety[,] which often becomes debilitating in response to
uncertainty and change." Schmidt also opined that the multiple placements, coupled with
the increased visits with the mother in facilitating possible reunification, "amplified the
behavioral intensity of an already highly disabled individual." Schmidt stated that
placing H.R. in another level 4 group home would be the best option for H.R.
Additionally, in addressing H.R.'s placement with the mother, Schmidt voiced
concern. Specifically, he indicated it is often difficult for a single parent to meet the
exceptional needs of a child like H.R. because the parent is often reluctant to enforce
limits "out of fear that the child will escalate uncontrollably." In turn, the parent only
reinforces the child's extreme behaviors and interferes with the child's development and
need for routine. Further, Schmidt explained that because H.R. has a history of not
sleeping through the night, the mother would need to be awake all night to provide proper
care, which would be difficult to maintain on a routine basis. Finally, Schmidt
questioned the mother's judgment regarding her son's needs, given the number of
unsubstantiated claims of abuse made about her son, which interfered with his
placements and regularly interrupted his need for consistency and structure.
After the settlement conference on April 24, 2013, H.R. went to his mother's home
for an extended 13-day unsupervised visit per the juvenile court's approval. As
conditions to the visit, the mother was directed to: (1) participate in wraparound services,
(2) take H.R. to school on time, and (3) cooperate with the assigned social worker.
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The next day, while H.R. was in the mother's care, H.R.'s new school reported that
the mother showed up an hour late to school and that H.R. refused to get out of the car.
The school also indicated H.R. was verbally abusive and threatened both the mother and
staff with violence. School staff reported that the mother did not seem to grasp H.R.'s
disability. The mother acknowledged that she was late in taking H.R. to school because
H.R. had made a mess in the bathroom when they needed to leave. She claimed this was
the first time H.R. acted in this manner under her supervision.
On April 26, 2013, the mother was again unable to make H.R. get out of her car
once at school. Later this same day, Bonilla visited the mother's home and observed H.R.
get in the mother's face when talking to her, pace back and forth through the apartment,
and go to his room and shut the door. During the visit, the mother commented that she
still thought that H.R. was on too much medication, and it was not addressing his
behaviors. The mother also stated her son had been returned to her "como mierda" (like
shit), she was the only one who understood her son, and she needed to be left alone by all
service providers.
On April 29, 2013, the mother again attempted to take H.R. to school, but H.R.
refused to get out of her car. The school reported H.R. became verbally abusive and
physically assaultive towards the mother once in front of the school. At one point, H.R.
broke the rearview mirror in the mother's car.
On April 30, 2013, the mother did not take H.R. to school because he refused to
leave her home. The mother indicated she wanted to wait for H.R. to go to school until a
school bus could transport him. Although Bonilla explained the mother would need to
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continue to take H.R. to school because it would take at least two weeks to secure bus
transportation, the mother did not attempt to take H.R. to school for the remainder of the
13-day visit. The mother also refused to participate in wraparound services, despite a
scheduled meeting with a care coordinator that same day.
A few days later, Bonilla made another unannounced visit to the mother's
apartment. During the visit, H.R. constantly yelled in Spanish, "[D]on't tell me to relax."
H.R. also slammed doors, grabbed and shook the mother, and put his hand towards the
mother's face and tried to slap her. The mother reported she felt overwhelmed in meeting
H.R.'s needs and her hands hurt from constantly rubbing H.R.'s back. When the social
worker explained that a new group home was interested in interviewing H.R. for
placement, the mother indicated this was "ok" and agreed to answer her phone to discuss
placement. Later that night (at 1:00 a.m.), Bonilla received a text message from the
mother indicating she wanted to wean H.R. off his medication because he continued to be
anxious and her head hurt from having to repeat everything to him.
At the May 6, 2013 hearing, the juvenile court terminated H.R.'s visit with the
mother and ordered the mother to produce H.R. to the social worker due to the number of
concerns arising out of the extended visit. H.R. was then detained in Polinsky Children's
Center, which was his fifth placement.
On May 21, 2013, the juvenile court declared H.R. a dependent, and removed him
from the custody of the father and found that placement with the mother would be
detrimental because, although she was aware of all of H.R.'s mental disabilities, she had a
history of "interfering" with or "sabotaging" efforts to keep him on appropriate
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medication management, keep him engaged in school, and to live peacefully and without
incident in various homes. The juvenile court set review hearings in due course. The
juvenile court also limited the mother's educational rights and ordered that H.R.'s CASA
hold education rights due to the mother's unwillingness to acknowledge H.R.'s need for
specialized services; however, the juvenile court ordered the mother be included in any
educational meetings for the child and to be updated on H.R.'s progress. The juvenile
court ordered the Agency to arrange supervised visitation with the mother outside the
confidential group home.
Following the contested disposition hearing in May 2013 were several 15-day
review hearings regarding H.R.'s placement. H.R. was still detained at Polinsky
Children's Center and the Agency was working with the Regional Center to find an
appropriate level 4 home that could meet H.R.'s needs. Placement with a "deflection"
group home was identified and efforts began to prepare H.R. for the transition.3 There
were also two requests to modify H.R.'s medication because he was observed responding
to internal stimuli, exhibiting self-harm behaviors, increased aggression towards staff,
property damage, and not sleeping through the night. H.R. was hospitalized at Children's
Adolescent Psychiatric Services (CAPS) on June 26, 2013 due to self-harm, trying to
attack staff, and breaking a television. This episode required four-point restraints on
H.R.'s body. By July 15, 2013, H.R.'s behavior had improved at CAPS. He was
3 A "deflection" group home is one that can provide a one-to-one ratio between the
residents and staff and where each resident has his or her own room. These homes have a
higher level of support when dealing with a resident's behaviors as well as his or her
disabilities.
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complying with general hygiene and eating. However, despite these gains, H.R. would
not leave his room and was still bothered by stimulation. On July 15, 2013, H.R. was
moved into the deflection group home called Home for Guiding Hands. That same
month, H.R. was observed and treated by Dr. Gregory Carinci, a clinical psychologist and
behavior analyst. Carinci developed a 14-page personal behavior intervention plan for
H.R. This plan specifically outlined the types of proactive and reactive measures that
caregivers and staff could use in anticipation and response to H.R.'s sometimes
aggressive and self-destructive behaviors. Carinci's suggestions to caregivers included:
have a predictable, consistent schedule with plenty of alternate activity choices for H.R.;
allow H.R. to express himself appropriately; never raise a voice at H.R.; give H.R. ample
time to process directions; constantly reinforce good behavior; give H.R. positive
attention at least every 30 minutes throughout the day; and pace his activities by giving
him breaks, then redirecting him to the task. Most importantly, Carinci advised that H.R.
required a high degree of supervision and monitoring concerning his whereabouts, and he
should rarely, if ever, be out of sight of a caregiver. Carinci concluded his intervention
plan with an overall summary for H.R. and his caregivers:
"[H.R.] is a complex child with multiple needs. Mitigating factors compound his
situation and interact to produce challenging, often volatile behaviors. One particular
aspect that is of critical importance is that of consistent responding across individuals
involved with [H.R.'s] care. It is necessary for all participants and caregivers to
understand and comply with a daily regiment . . . . All will need to follow through with
reinforcement schedules . . . . When this is done in an inconsistent manner, as has been
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done in the past, [H.R.'s] presentation will be increasingly erratic and compulsive,
rendering therapeutic . . . interventions ineffective . . . . A highly structured, organized
environment is significant to [H.R.'s] adaptation and development. Communication
between the home and school environment is essential . . . . "
The Agency's November 18, 2013 report for the six-month review hearing
reported H.R. still had some aggressiveness, trouble getting to and from school, and still
some instances of pulling at his ears and hitting himself on the head. The mother had
moved into a two-bedroom apartment, she was taking a ballet class to relax, she had quit
smoking, her overall health improved, and she was still being seen by the St. Vincent de
Paul medical clinic. However, the mother's psychiatrist at St. Vincent de Paul reported
the mother remained "quite symptomatic," confirming a diagnosis of major depressive
disorder and PTSD, and recommending an increase in her medication.
According to the mother's therapist, the mother was progressing in dealing with
her own mental health issues and how they affected her parenting. The mother also was
learning techniques on how to handle H.R.'s needs and practicing these techniques during
visitations. Her remaining obstacles included her unrealistic expectations for her
treatment, her mistrust of the system, her fears H.R. was being neglected or abused, and
her tendency to externalize blame. The mother continued to raise concerns about H.R.'s
group home placement and the fact that she still did not believe anything was wrong with
her. The mother expressed she felt she was being left out of decisionmaking for her son,
the Agency was acting like H.R.'s mother, and compared the Agency to the "mafia,"
fearing for her son's safety.
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Weekly supervised visits began between H.R. and the mother since his placement
at the new group home in July 2013. The visits were positive overall as the mother was
affectionate, asked H.R. questions, groomed him, read to him, and massaged him.
However, H.R. still displayed some yelling, obsessive-compulsive behaviors, and
difficulty with transitions. H.R. would be much more agitated after visits. Because H.R.
was having some trouble adjusting to his new group home, and the Agency was still
observing the mother for the desired behavioral goals in her case plan, the social worker
opined that it was not appropriate to place H.R. with the mother at that time. The social
worker stated specifically that, H.R.'s "behaviors are not stable and it would put [the
mother] in physical danger if she were to care for her son due to his increased
aggressiveness and property destruction." It was also concerning to the social worker
that the mother was not taking responsibility or acknowledging how her behavior
impacted H.R.'s stability.
Therefore, the Agency's recommendations at the six-month review hearing were
for H.R. to remain in the group home and for the mother to continue reunification
services. The mother set the six-month review hearing for trial on the issues of seeking
placement with her while she received respite care and also for increased visits.
A pretrial status conference was held on December 18, 2013. The Agency's
addendum report filed for this hearing gave a summary of the previous month. H.R.'s
special education teacher at his school indicated H.R. had multiple concerning behaviors
throughout the day; however, there was an increase in this behavior on Mondays, which
was the day after visits with the mother. Additionally, he came late to school on
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Mondays and had trouble with transitions. H.R.'s teacher also reported that H.R. was
acquiring a general sense of boundaries and expectations at school.
During this time, H.R. was adapting well at the group home and was observed as
being more calm and complacent. While H.R.'s behavior was far from acceptable, it was
controlled in a manner so that restraints were not necessary. H.R. appeared to respond
positively when he could anticipate upcoming events, but he still required monitoring 24
hours a day. H.R. also exhibited an increase of self-inflicting injury before and after
visits with the mother, including hitting and scratching himself (especially his eyes). The
day after visits with the mother, H.R. wet the bed and had a hard time getting up to go to
school.
The group home supervisor advised that H.R. needed to be more stabilized on his
medications before visits with the mother were expanded. She also believed that the
visits should be an hour and a half because two hours was too long for H.R. The house
supervisor said H.R. tended to be depressed after visits with the mother, going to sleep
for hours instead of eating. He even threw a plate of food on the ground, which the
supervisor said she had never seen him do before. He also would destroy property and
slam doors after visits, and five times he was heard saying, " 'I hate you mom.' "
Because these visits with the mother seemed to cause an increase in anxiety, self-
inflicting injury, and depression, the Agency continued to not recommend expanding
visits with the mother or placing him in her care. In an addendum report prepared for the
January 15, 2014 contested six-month review hearing, the Agency explained it did not
expand the mother's therapy sessions to twice a week because she had already been
21
seeing her therapist for seven years without any progress. The Agency suggested
changing therapists instead of increasing sessions with the current therapist. The Agency
questioned the therapist's therapeutic approach and wanted to see the mother focus more
on her anxiety about H.R.'s placements and learn to better cope with other service
providers, which meant a relinquishment of power to those who were helping the family.
The Agency also suggested that it was time the mother got some modeling of the
interventions Carinci had created for H.R.
In addition, Carinci provided a letter dated January, 20144 stating that H.R. is a
danger to himself and others and therefore must be consistently supervised and monitored
at all times. H.R. required excessive prompting on almost all of his tasks, requiring an
intensely structured environment. Carinci wrote, "It is difficult to imagine [H.R.] living
without the structure and supervision that a group home can provide . . . ." He continued:
"Although it is a primary goal . . . to reunify [H.R.] with his family unit, [H.R.'s]
behaviors are currently highly unstable and fluctuating. A regression in skills and
behaviors could be anticipated with this type of transition." Also, Carinci opined that for
H.R. to be considered for a lower level of care, including a return to the mother's custody,
his self-injurious behavior needed to significantly reduce, and his management of his
emotions improve.
As before, the Agency continued to make the same recommendations that H.R. not
be placed with the mother and remain in the level 4 group home. The Agency asserted
4 The letter did not include a specific day. It merely was dated "January, 2014."
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the mother did not have the tools necessary to handle H.R.'s behaviors and did not
understand the reality of H.R.'s disabilities. For example, the mother did not think
medication for H.R. was beneficial, and she was certain that H.R. could ride the bus
without being strapped in, even after educational professionals advised otherwise.
B. The Contested Six-Month Review Hearing
On January 15, 2014, the mother and Bonilla were present for the six-month
review hearing. The juvenile court admitted into evidence the six-month review status
report dated November 18, 2013; an addendum report dated December 18, 2013; an
addendum report dated January 14, 2014; Bonilla's curriculum vitae; and a CASA report
dated November 18, 2013. Bonilla also was made available for cross-examination.
The Agency stipulated to a no reasonable services finding based on the mother's
agreement to change her therapist. Further, the Agency agreed to contact H.R.'s
behavioral specialist to set up an assessment to evaluate whether the mother was ready to
participate in H.R.'s therapy. The issue of placement with the mother was litigated.
1. Bonilla's Testimony
Bonilla stated that the mother was patient with H.R. and she would groom him.
H.R. would get irritable or act erratically with the mother, but this behavior was also seen
with group home staff and people other than the mother. Bonilla observed the mother to
be able to soothe or calm H.R. in the past. H.R. would respond to the mother and tell her
that he loved her, but he did not initiate telling her. Bonilla expedited the referral for the
wraparound services assessment before H.R. began his visit with the mother, but the
mother cancelled her appointment. Bonilla explained that the referral for the wraparound
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services is usually done three months prior to return of the child with the parent;
however, in this case, the mother was only getting supervised visits at that time.
Therefore, the referral for the in-home wraparound services was expedited the week
before H.R. was going to stay with the mother for the 13-day trial visit. The mother later
told Bonilla that she did not refuse the services, rather she was denied services. Bonilla
spoke about the anxiety the mother had about H.R.'s placements, and how H.R. himself
had stated that a man named Javier had punched him in the stomach. Bonilla found this
allegation to be unfounded after further investigation.
Bonilla stated that none of the service providers for H.R. have told her that H.R.
was ready to be released to the mother. She explained that H.R.'s current home provided
a one-on-one care to address H.R.'s autism and obsessive-compulsive disorder. When
asked about the mother's request for increased visits, Bonilla said H.R. continued to have
behavioral problems after visits with the mother, as evidenced by H.R.'s increased acts of
property destruction, self-inflicting harmful behavior, and not eating. H.R. also was
negatively affected by changes in his schedule. As such, Bonilla opposed an increase in
visitation.
2. The Juvenile Court's Orders
After considering the evidence and hearing argument by counsel, the juvenile
court found by clear and convincing evidence that the return of H.R. to the custody of the
mother would create a substantial risk of detriment to H.R.'s physical and emotional
well-being. The juvenile court found that there was no doubt that the mother loves and
cares for her son deeply, but the focus was on H.R.'s well-being. The court
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acknowledged that just one visit with his mother seemed to be causing H.R. to act out and
become agitated. This provided an indicator to the court that even in a very controlled
setting, increased visits or return to the mother would cause H.R. further detriment. The
court also continued the Agency's discretion to expand visits, but it did not order more
visits as the mother requested. However, the juvenile court did order the Agency to
inquire with H.R.'s service providers to see what they could do to get to the point of
expanded visitation.
DISCUSSION
I
SUBSTANTIAL EVIDENCE SUPPORTS THE COURT'S
ORDER DENYING THE MOTHER CUSTODY OF H.R.
The mother first argues that substantial evidence does not support the court's order
denying her custody of H.R. We disagree. On the record before us, we conclude
substantial evidence overwhelmingly supports the juvenile court's order that return of
H.R. to the mother's custody would create a substantial risk of detriment to H.R.'s
physical and emotional well-being. In reaching this conclusion, the court considered,
among other evidence, the letters from Carinci, the six-month review status report dated
November 18, 2013; an addendum report dated December 18, 2013; an addendum report
dated January 14, 2014; and a CASA report dated November 18, 2013.5
5 These reports provide the factual basis for much of the subsection entitled "H.R.'s
Challenges and the Mother's Efforts to Care for H.R."
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Carinci's letters detailed the challenges H.R. faces, which cause him to be a danger
to himself and others. Because of this, Carinci concluded H.R. must be consistently
supervised and monitored at all times. Carinci also noted that H.R. requires excessive
prompting on almost all of his tasks, necessitating that H.R. be placed in an intensely
structured environment. In addition, Carinci opined that for H.R. to be considered for a
lower level of care, including a return to the mother's home, his self-injurious behavior
needed to significantly reduce, along with an increase in managing his emotions.
The various reports considered by the juvenile court detailed the struggles the
mother had in caring for H.R. Moreover, they made clear that H.R. struggled to adjust to
his facility when he returned from visits with the mother. These reports all support the
court's order here:
"At this time it would not be appropriate to place [H.R.] with his
mother as his behaviors are not stable and it would put [the mother]
in physical danger if she were to care for her son due to his increased
aggressiveness and property destruction."
"The Agency is not in agreement with expanding supervised visits
for [the mother] or placing [H.R.] under her care at this time."
"I have watched [H.R.'s] mental health deteriorate since I have come
on the case in January 2013. I feel a great deal of this is due to the
instability in placements and the fact that [the mother] does not fully
understand [H.R.'s] disability."
"I am concerned that [H.R.'s] behavior will become more erratic if
visits with [the mother] were to be unsupervised or extended for
longer periods of time. . . . [¶] [The mother] loves her son and
wants to care for him; however, I do not believe at this time that is
possible."
"[The mother] has a history of neglect towards [H.R.]-she has left
him alone and he overdosed on his medication while under her care-
26
and a longer history of making CPS allegations against all of
[H.R.'s] care providers. . . . [The mother] does not have the tools
necessary to address his behaviors and there is concern by the
undersigned about her understanding the reality of [H.R.'s] mental
health."
In short, the reports are replete with examples explaining why the mother was not capable
of providing H.R. with the type of environment and structure he needs. Bonilla's trial
testimony supported this conclusion. Such evidence essentially compelled the juvenile
court to find returning H.R. to the custody of his mother would be a detriment to him.
The mother's attorney, however, fails to explain why this evidence is insufficient.
Instead, she largely ignores this evidence and focuses on other evidence she believes
supports her client's position that H.R. should be returned to her custody. This is not
proper for a substantial evidence review. (See Bickel, supra, 16 Cal.4th at p. 1053.)
Also, we may not reweigh evidence or resolve evidentiary conflicts during a substantial
evidence review. (In re S.C., supra, 138 Cal.App.4th at p. 415.) In essence, this is what
the mother is asking us to do.
We acknowledge the significant obstacles facing both H.R. and the mother here.
H.R. confronts severe challenges simply trying to interact with others and engage in basic
life skills without injuring himself or others. Although the record makes clear that the
mother loves and cares for H.R. deeply, she has her own limitations that prevent her from
providing H.R. with the kind of stability and 24-hour care he needs. And while we note
the circumstances presented here are nothing short of tragic, on the record before us, we
do not view this as a close case. There is an abundance of evidence supporting the
juvenile court's order.
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II
THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE
MOTHER'S REQUEST FOR EXPANDED VISITATION WITH H.R.
As a threshold matter, we note that the parties disagree regarding what standard of
review we apply to the mother's challenge to the order denying her increased visits with
H.R. The mother argues we should employ a substantial evidence review. The Agency
argues an abuse of discretion is the appropriate standard. We agree with the Agency
because the court did not deny all visitation, but instead, exercised its discretion to
maintain the same level of visitation. (See In re Brittany C. (2011) 191 Cal. App. 4th
1343, 1356.) However, under either standard we affirm the juvenile court's order.
A court defines the rights of the parents to visitation by balancing the interests of
the parents in visitation with the best interests of the child. (In re Jennifer G. (1990) 221
Cal. App. 3d 752, 757.) During the reunification period, visitation must be as frequent as
possible, "consistent with the well-being of the child." (§362.1, subd. (a)(1)(A); see
Tracy J. v. Superior Court (2012) 202 Cal. App. 4th 1415, 1426; In re Alvin R. (2003) 108
Cal. App. 4th 962, 972.) The court may limit a parent's contact with a child upon finding
that such limitation is in the child's best interest. (In re Cheryl H. (1984) 153 Cal. App. 3d
1098, 1133.)
Here, we note that the court did not deny the mother visitation with H.R.
altogether or limit existing visitation. Instead, the juvenile court elected not to increase
visitation. There was plenty of evidence before the court regarding H.R.'s need for a
stable environment and 24-hour care. Further, evidence was presented that H.R. had
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trouble adjusting after he returned from visits with his mother. Against this backdrop, we
are satisfied the court did not abuse its discretion in maintaining the same level of
visitation. There is nothing in the record that leads us to believe that the court's decision
was arbitrary, capricious, or patently absurd. (In re Stephanie M. (1994) 7 Cal. 4th 295,
318.)
DISPOSITION
The order is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.
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