S.L. v. Superior Court CA6

Filed 7/26/21 S.L. v. Superior Court CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Juvenile court, rule 8.1115(a), prohibits juvenile 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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
S.L., H048869
(Santa Clara County Super. Ct.
Petitioner, Nos. 19JD026015; 19JD026144)
v.
THE SUPERIOR COURT OF SANTA
CLARA COUNTY,
Respondent;
__________________________________
SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN’S SERVICES,
Real Party in Interest.
S.L. is the father (Father) of V.G. and M.B., who are aged three and one
respectively. V.G. was taken into protective custody in September 2019 due to domestic
violence between Father and the child’s mother, D.G. (Mother) and a report that Father
had physically abused the child’s maternal half-brother, J.M. Mother was pregnant with
M.B. at the time and when the child was born in October 2019, she was taken into
protective custody as well.
In February 2021, the juvenile court terminated reunification services, finding that
Father had not benefitted from the services offered and the continuing domestic violence
between the parents posed a threat to the children. The juvenile court set a selection and
implementation hearing pursuant to Welfare and Institutions Code section 366.261 for
June 3, 2021, which we ordered stayed.2
Father seeks an extraordinary writ (Cal. Rules of Court, rules 8.452, 8.456.),
arguing there is insufficient evidence that returning the children to his care would create a
substantial risk of harm to them. Father also asserts the Department failed to provide
reasonable services. Finally, Father argues the juvenile court erred when it did not allow
him to call a San Joaquin County social worker as a witness at trial and when it denied
his request for bifurcation.
For the reasons set forth below, we deny Father’s petition.
I. FACTUAL AND PROCEDURAL BACKGROUND3
When V.G. and M.B. were adjudged dependents in January 2020, the juvenile
court ordered Father to participate in reunification services that included psychological
and domestic violence assessments, individual therapy, a parenting without violence class
and a 52-week child abuser’s class.
Following the juvenile court’s order, Father began to participate in his case plan.
He completed the psychological evaluation and the domestic violence assessment. Father
scored in the “severe problem risk range,” in the domestic violence assessment indicating
that he could be violent and dangerous. Father also attended six sessions of the parenting
without violence class before it was postponed due to the COVID-19 pandemic in mid-
March 2020. The class resumed online in mid-May 2020, and Father completed the
1
Further statutory references are to the Welfare and Institutions Code.
2
The juvenile court’s jurisdiction and disposition order is pending appeal in case
numbers H047781 (Mother’s appeal) and H047793 (Father’s appeal). Father also filed
an appeal of the juvenile court’s order after the contested six-month review hearing in
case number H048549. We ordered the three appeals considered together for disposition.
Because our consideration of the issues raised in Father’s writ petition are in part
dependent on our assessment of the issues on appeal, we granted Father’s request for a
stay of the section 366.26 hearing to first resolve the issues on appeal.
3
We carefully considered the complete record in this case and include only those
facts that are relevant to the issues presented in this petition.
2
class. As of late June 2020, Father had completed 12 sessions of individual therapy.
Father also completed a conflict and accountability class. Father completed nine sessions
of the 52-week child abuser’s class and stopped attending in mid-May 2020. Father and
Mother continued to live together during this period.
1. Contested Six-Month Review Hearing
The contested six-month review hearing was held on October 1, 2020. The
Department recommended continuing reunification services for both parents. At that
time, the social worker believed there was a continued risk of harm to the children due to
the ongoing violence between Father and Mother. Both parents continued to deny that
Father had been physically abusive of J.M.
At the conclusion of trial, the court found that returning the children to their
parents’ care would create a substantial risk of detriment to their safety, protection, and
physical and emotional well-being. The court found the children were at risk in part
because of the parents’ denial of Father’s abuse of J.M.
The court ordered continued reunification services for both parents.
2. Contested 12-Month Review Hearing
The 12-month status review report dated November 25, 2020 recommended that
reunification services be terminated. The children were doing well living with their
paternal grandparents. The parents contested the recommendation and the matter was set
for trial.
The trial management conference was held on January 12, 2021. Father asked to
call the following witnesses: the children’s maternal half-brother, J.M.; the doctor who
examined J.M. when he was taken into protective custody; J.M.’s current caregivers; and
two social workers from San Joaquin County who had investigated referrals related to the
children’s half-siblings years earlier. Father argued the witnesses were relevant to show
that he had not abused J.M. Father conceded that the witnesses had no information about
the current case involving V.G. and M.B.
3
The juvenile court granted the Department’s motion in limine to exclude the
witnesses as irrelevant. In making this determination, the juvenile court found that the
proposed witnesses were not relevant to the issues before the court at the 12-month
review.
On the first day of trial on February 9, 2021, Father requested that the trial be
bifurcated so that Mother’s issues with the children could be considered separately from
his. The juvenile court denied the request as untimely, noting that Father had specifically
stated that he was not requesting bifurcation at the trial management conference in
January, and two trials would be inefficient given the overlap of evidence.
Julie Walker, the social worker for the case, was the sole witness at the hearing.
She reported that Father had completed part of his case plan at the start of the
reunification period, including the parenting without violence and conflict and
accountability classes. Father had not completed the 52-week child abuser’s class.
Ms. Walker testified that there had been three new domestic violence incidents in
the nine months leading up to the 12-month status review. The first incident was in May
2020 when Mother locked Father out of the house and he called the police. The second
was in September 2020, when the children’s maternal half-sister, J.S. called the police
because Father and Mother were physically fighting in the house while she was there.
The third incident happened in October or November 2020. As a result, the parents were
excluded from the 52-week child abuser’s class. Ms. Walker stated that under these
circumstances, she believed there was a likelihood of ongoing violence between Father
and Mother.
Ms. Walker testified that the parents had been dishonest and evasive with her
during the reunification period, including refusing to provide her with their address. She
believed the children would be at risk if returned to Father because of the continuing
domestic violence between him and Mother and the fact that he continued to minimize
the seriousness of the violence in the relationship. Ms. Walker further testified that her
4
evaluation of risk would be the same even if the parents lived apart because of Father’s
minimization of his participation in physical abuse.
3. The Court’s Order Terminating Reunification Services
On February 10, 2021, the juvenile court terminated reunification services for both
parents and set a selection and implementation hearing to choose a permanent plan
pursuant to section 366.26. The juvenile court found that the parents participated in
services at the beginning of the reunification period; however, they did not continue with
those efforts. Specifically, Father had not completed the 52-week child abuser’s class.
The juvenile court further found that the Department had provided reasonable services
and that the parents had not benefitted from the services demonstrated by their continuing
minimization of the domestic violence in their relationship.
Following the court’s decision to terminate reunification services and set the
matter for a section 366.26 hearing, Father filed this petition for extraordinary writ on
March 26, 2021. Father also sought an immediate stay of the June 3, 2021 hearing.4
II. DISCUSSION
Father argues the juvenile court erred when it terminated reunification services
and set the matter for a section 366.26 hearing. He claims the evidence is insufficient to
support the finding that returning the children to his custody would create a substantial
risk of harm and that the Department failed to provide reasonable services. Father also
asserts the juvenile court erred by failing to bifurcate the trial of the 12-month review
hearing, and by not allowing him to call a San Joaquin County social worker as a witness
at trial.
1. Standard of Review
Section 361.5, subdivision (a) provides in pertinent part: “For a child who, on the
date of initial removal from the physical custody of the child’s parent . . ., was under
4
See footnote 2, ante.
5
three years of age, court-ordered services shall be provided for a period of six months . . .
but no longer than 12 months from the date the child entered foster care. [¶] . . . [¶].
[C]ourt-ordered services may be extended . . . not to exceed 18 months after the date the
child was originally removed from physical custody of the child's parent . . . . The court
shall extend the time period only if it finds that there is a substantial probability that the
child will be returned to the physical custody of the child’s parent . . . within the extended
time period or that reasonable services have not been provided to the parent.”
At the conclusion of the review period, “the court shall order the return of the
child to the physical custody of his or her parent or legal guardian unless the court finds,
by a preponderance of the evidence, that the return of the child to his or her parent or
legal guardian would create a substantial risk of detriment to the safety, protection, or
physical or emotional well-being of the child. The social worker shall have the burden of
establishing that detriment.” (§ 366.22, subd. (a).)
“[T]o find a substantial probability that the child will be returned to the physical
custody of his or her parent . . . and safely maintained in the home within the extended
period of time,” the court is required to find: “(A) That the parent . . . has consistently
and regularly contacted and visited with the child. [¶] (B) That the parent . . . has made
significant progress in resolving problems that led to the child’s removal from the home.
[¶] (C) The parent . . . has demonstrated the capacity and ability both to complete the
objectives of his or her treatment plan and to provide for the child’s safety, protection,
physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1)(A)–(C).)
We review the juvenile court’s order terminating reunification services for
substantial evidence. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688 [no
substantial probability child will be returned within extended time period]; In re Mario C.
(1990) 226 Cal.App.3d 599, 605 [reasonable reunification services]; see also In re
Jasmine C. (1999) 70 Cal.App.4th 71, 75 [substantial evidence review applies even when
trial court’s standard of proof is clear and convincing evidence].) We review the record
6
in the light most favorable to the juvenile court’s findings, and we draw all reasonable
inferences from the evidence to support the disposition. (In re R.T (2017) 3 Cal.5th 622,
633.) Issues of fact and credibility are the sole province of the juvenile court.
(Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705 (Constance K.).)
2. Substantial Risk of Harm to Children if Returned to Father
A parent’s substantial compliance with a reunification services plan does not
preclude a finding that the child would suffer detriment if returned to the parent.
(Constance K., supra, 61 Cal.App.4th at p. 704.) “[T]he court must also consider
progress the parent has made toward eliminating the conditions leading to the children’s
placement out of home.” (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)
Here, while Father participated in many aspects of his case plan, including the
psychological and domestic violence assessment, the conflict and accountability class and
the parenting without violence class, he did not make sufficient progress toward
eliminating the domestic violence that led to removal of the children from his home.
There had been three domestic violence incidents during the nine months leading up to
the 12-month review hearing. Father and Mother continued to live together despite the
volatility of their relationship and refused to provide the social worker with their address.
At the time of the hearing, Father still denied that he had ever physically abused J.M.,
even though the abuse was substantiated. Finally, Father did not complete the 52-week
child abuser’s class. The risk of harm to the children from the ongoing domestic violence
between the parents remained the same throughout the reunification period.
Father asserts in his petition that the social worker failed to assess whether the
children could safely be returned to him if he were living separately from Mother.
However, no such formal assessment had been requested by Father or was ordered by the
juvenile court. In addition, Ms. Walker testified that the children could not be safely
returned to Father even if he were living separately from Mother because of the ongoing
denial of his physical abuse of J.M.
7
We find substantial evidence supports the juvenile court’s finding by a
preponderance of evidence that Father had not made sufficient progress in eliminating the
conditions that necessitated the children’s removal, such that they would suffer detriment
if returned to him.
3. Reasonable Reunification Services
Whether the reunification services offered were reasonable and suitable is judged
according to the circumstances of the particular case. (Earl L. v. Superior Court (2011)
199 Cal.App.4th 1490, 1501.) “The standard is not whether the services provided were
the best that might be provided in an ideal world, but whether the services were
reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Father argues the reunification services were unreasonable in part because they
were designed to facilitate co-parenting and did not focus on his individual parenting of
the children. Father asserts that Ms. Walker encouraged the couple to continue to work
together and co-parent the children during the reunification period. Father argues the
social worker’s efforts to provide services forced him to remain in a relationship with
Mother during reunification, which was unreasonable and harmful to children.
Father’s arguments are belied by the record. The evidence shows that Father
remained in the relationship willingly, stating at the six-month review hearing that he and
Mother were living together peacefully and had no issues. Father represented that he
stayed with Mother because they had much in common and she was a good mother;
Father did not state that he was being forced to stay in the relationship by the social
worker.
The services provided in this case were reasonable and were designed to address
the domestic violence between the parents that led to the removal of the children. The
Department provided Father with a domestic violence assessment, parenting classes
related to domestic violence and a child abuser’s treatment program. The domestic
violence classes informed Father of the danger domestic violence poses to children and
8
would have discouraged any continuation of a volatile parental relationship. There is no
evidence that the services encouraged Father to remain in a violent and destructive
relationship with Mother.
In addition to his argument that the Department provided unreasonable
reunification services designed to keep him and Mother together, Father makes a blanket
assertion that he did not receive the full 12 months of services because of gaps caused by
the COVID-19 pandemic. Other than to state the classes were delayed and restarted on
Zoom, Father offers no specifics showing the COVID-19 pandemic limited his services.
Moreover, because of the delay caused by the pandemic, Father had a longer
reunification period. By the date of the 12-month review hearing and the order
terminating services in February 2021, Father had been receiving services for V.G. for 17
months, and for M.B. for 14 months. The record shows the Department provided
reasonable services for Father in this case.
4. Trial Proceedings
Father raises two additional arguments about the proceedings during the trial of
the 12-month review. First, he asserts that he was denied due process at the trial because
the juvenile court did not allow him to call San Joaquin County social worker Robert
Pimentel as a witness. Second, Father argues the juvenile court erred when it refused to
bifurcate the trial so that his issues could be considered separately from Mother’s. Both
of Father’s arguments are without merit.
Regarding the court’s refusal to allow Father to call Mr. Pimentel as a witness at
the hearing, “[t]he due process right to present evidence is limited to relevant evidence of
significant probative value to the issues before the court. [Citations.] . . . A defendant’s
right to present relevant evidence is not unlimited, but rather is subject to reasonable
restrictions. [Citation.]” (In re Jordan R. (2012) 205 Cal.App.4th 111, 133.) Here,
Father sought to call Mr. Pimentel to challenge the allegation of the children’s maternal
half-brother, J.M. that Father had physically abused him. However, J.M.’s credibility
9
was not relevant to whether “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.” (§ 366.22, subd. (a).) J.M.’s allegations that Father
physically abused him were alleged and substantiated at the contested jurisdiction and
disposition hearing in January 2019 when the children were detained. The credibility of
the allegations was determined at that hearing and was not relevant at the 12-month
review. The court thus properly excluded the evidence and did not violate Father’s due
process rights.
As to Father’s bifurcation argument, Father cites no legal authority for his position
that the court erred in refusing his request. Father’s request to bifurcate was untimely.
At the trial management conference prior to trial, Father’s counsel specifically stated that
Father was not requesting bifurcation. However, on the first day of trial, Father’s counsel
requested that the hearing be bifurcated so that the issues related to him could be
considered separately. The juvenile court denied the request as untimely and found that
two trials in this case would be inefficient given the overlap of the evidence as to both
parents.
The juvenile court’s denial of Father’s untimely request to bifurcate the trial was
within its discretion to manage dependency proceedings under section 350, subdivision
(a)(1), which provides: “The judge of the juvenile court shall control all proceedings
during the hearings with a view to the expeditious and effective ascertainment of the
jurisdictional facts and the ascertainment of all information relative to the present
condition and future welfare of the person upon whose behalf the petition is brought.”
The juvenile court did not err when it denied Father’s request to bifurcate the trial.
III. DISPOSITION
The petition for an extraordinary writ is denied. The temporary stay of the section
366.26 hearing is lifted. Our decision is immediately final as to this court. (Cal. Rules of
Court, rules 8.452(i), 8.490(b)(2).)
10
_______________________________
Greenwood, P.J.
WE CONCUR:
_________________________________
Grover, J.
________________________________
Danner, J.
S.L. v. Superior Court
No: H048869