Alexis M. v. Superior Court CA5

Filed 8/16/21 Alexis M. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
ALEXIS M.,
Petitioner, F082750
v. (Super. Ct. Nos. JVDP-000193,
JVDP-000194 & JVDP-000195)
THE SUPERIOR COURT OF
STANISLAUS COUNTY,
OPINION
Respondent;
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Ann Q. Ameral,
Judge.
Jill Smith, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
Thomas E. Boze, County Counsel, and Lindy Giocapuzzirotz, Deputy County
Counsel, for Real Party in Interest.
-ooOoo-
* Before Smith, Acting P.J., Meehan, J. and De Santos, J.
Alexis M. (mother) seeks extraordinary writ relief from the juvenile court’s order
setting a Welfare and Institutions Code section 366.261 hearing for August 26, 2021, after
it granted a section 388 petition filed by real party in interest Stanislaus County
Community Services Agency (Agency) and terminated her reunification services as to
her now eight-year-old son, L.P., six-year-old daughter, Li.P., and four-year-old
daughter, M.P (collectively, the children). Mother contends the juvenile court abused its
discretion in granting the petition because there is insufficient evidence of detriment to
return the children to her and, in any event, the juvenile court should have continued her
reunification services. Mother asks us to remand for either continued services or the
return of the children to her custody. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the Agency’s attention in April 2019, when it received a
referral that then four-year-old Li.P. told a mandated reporter the children’s father, John
P. (father), sexually abused her. When the Agency responded, mother made various
statements regarding father’s presence in California—she first said he was only visiting
from Missouri but later stated he moved from Missouri four months before to be with the
family. Mother denied she was aware Li.P. was being sexually abused, although she did
say Li.P. exhibited sexualized behaviors. Mother also disclosed drinking six 12-ounce
beers two or three times per week and smoking marijuana in the backyard while the
children were inside with their maternal aunt.
When interviewed by the social worker, Li.P. disclosed father touched her private
parts “a lot of times,” “my dad made me suck his private part,” and “[m]y dad has a huge
big pee pee and my dad peed in my mouth.” Mother was emotional and appeared
shocked when the social worker told her of Li.P.’s disclosure. Father denied being aware
of anyone sexually abusing Li.P. or that she disclosed being sexually abused. The
1 Undesignated statutory references are to the Welfare and Institutions Code.
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parents agreed to a safety plan which required father to remain out of the home and not to
have any contact with the children until the end of the investigation.
In May 2019, the family entered into a voluntary family maintenance agreement
(family agreement) to engage in services, in which they stipulated father would remain
out of the family home and would not be left with the children unsupervised. Father and
Li.P. were referred to Parents United for services related to the sexual abuse allegations.
At the July 2019 intake assessment, mother disclosed a previous incident in which Li.P.
was touched inappropriately by her stepuncle. When Li.P. heard mother use the phrase
“private parts,” she began talking about father asking her to “suck it” when he was in the
shower. Father denied the sexual abuse. Li.P. was referred to weekly group therapy.
Despite constant reminders of the family agreement, father was found at mother’s
home on three separate occasions and mother knowingly allowed him around the
children. The case was referred for a further emergency response assessment. The two
older children disclosed mother, father, and their grandparents all lived in the home.
Mother and father denied father was living there or staying the night. Mother told the
social worker she questioned father and Li.P. in order to see it “50/50” and she did not
“see that he’s lying to me.” She believed a five-year-old boy abused Li.P. and stated: “I
know molesters. I was molested, and in his eyes, I don’t see that he did it.” Some of
father’s belongings were found in the children’s room.
The children were examined. While L.P. did not have any marks or bruises,
two-year-old M.P. had marks and bruises on her shins, red marks near her left ankle, a
bruise on her right elbow, a red mark on her right lower back, redness on her torso near
her left underarm, and redness with a mark on her bottom. Li.P. had bruises and marks
on her feet, shins, torso, bottom, forearms, and shoulder.
The children were placed in protective custody and the Agency filed a petition
alleging the children came within the provisions of section 300, subdivisions (b)(1)
(failure to protect), (d) (sexual abuse), and (j) (abuse of sibling), based on the sexual
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abuse of Li.P. by father, mother’s denial and failure to protect after disclosure, possible
substance abuse by both parents, mother and father knowingly violating the family
maintenance agreement, and the marks and bruises found on the children. The girls were
placed together in a foster home, while L.P. was placed in a separate foster home. The
juvenile court detained the children on August 20, 2019.
The Jurisdiction/Disposition Hearing
The Agency’s report for the jurisdiction/disposition hearing recommended mother
receive reunification services but father be denied services under section 361.5,
subdivision (b)(6). The parents had child welfare histories in Kansas and Missouri for
neglect and lack of supervision or physical abuse. In the Kansas case, the two older
children were removed in December 2016 due to lack of supervision, returned to
mother’s care in April 2017, and the case was closed in October 2017.
In her social history, mother reported being molested as a child by three men who
were her stepfather’s friends, but she said it was “not that serious” and she did not receive
counseling. As a child, she was removed from her home by child protective services a
few times and reunified with her mother each time. She dropped out of high school
during her sophomore year and did not return after she became pregnant with L.P.
Mother worked as an in-home supportive services (IHSS) care provider.
Mother said she ended her relationship with father a month before he came to
California and they were not an intact couple. They tried to resume their relationship
when he arrived in California, but she did not feel connected to him and they never made
the relationship official. Ideally, she wanted to coparent with father and while they do
not live together, they saw each other outside of visitation, as it made sense to ride
together to meetings and programs. Mother denied having mental health issues and
maintained her childhood trauma had not impacted her adult life, although she was
“slightly depressed” being away from the children. She tried methamphetamine a few
times but mostly smoked marijuana until she quit when the family maintenance case
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began in April 2019. Mother did not accept Li.P.’s disclosures of sexual abuse. Mother
believed Li.P. was “confused,” and she used her own history of childhood sexual abuse to
further refute Li.P.’s disclosures.
Father stated during his social study he began living with mother and her family
when he moved to California in November 2018, but they ended their relationship three
or four months ago. He and mother, however, continued to share money and spend time
together, and he wanted to be in a relationship with her. At the end of the Kansas case,
he was not allowed back in the home due to failed urine tests.
L.P., who was in kindergarten, struggled with his behavior at school—he
displayed bullying behavior in the classroom and on the playground and exhibited
sexualized behavior by pulling his pants down. He was found eligible for mental health
services. Li.P., who was in transitional kindergarten, also struggled with her behavior—
she reportedly hit other children and had difficulty following directions. She was already
receiving mental health services and was set to resume services through Parents United.
She exhibited sexualized behaviors in her foster home and became violent in the home
and with the care provider, who gave a 14-day notice. As a result, the girls were moved
together to a new foster home. M.P. did not need mental health services and was being
potty trained, but she also exhibited sexualized behavior in the foster home by taking off
her diaper and using her fingers to play with her private area.
The parents were having supervised visits with the children. It was noted their
parenting skills needed improvement, as they struggled to redirect the children when they
misbehaved, and mother used guilt to try to control the children’s behaviors. Li.P.
exhibited sexualized and aggressive behaviors following visits, and told staff when she
saw her parents, she wanted to kill herself, and she hated herself. It was recommended
visits with father be suspended until Li.P.’s mental health could be stabilized through
individual counseling and at Parents United.
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Mother completed the parenting program she began during the voluntary case, but
she had an intake appointment scheduled for another program at Sierra Vista Child
Family Services (Sierra Vista), as she believed she could benefit from additional
parenting services. Mother was receiving services at Parents United and had transitioned
from a newcomer’s group to an “Adults Molested as Children” (AMAC) group. Father
was attending Parents United but continued to deny the abuse allegations. He had not yet
completed the intake appointment to begin therapeutic visits with Li.P., which were
previously ordered.
Mother’s proposed case plan included attending mental health treatment and
obtaining a medication evaluation; successfully completing a program such as Parents
United to process her childhood trauma related to sexual abuse, acknowledge and accept
Li.P.’s disclosures, and learn how to protect the children from further abuse; completing
individual counseling; completing a parenting program at Sierra Vista; and random
substance abuse testing.
The matter was set for a contested jurisdiction/disposition hearing, which was
continued several times and ultimately held on January 15, 2020, when the parties
reached a stipulated resolution. The juvenile court found the petition true, removed the
children from parental custody, and ordered reunification services for both parents,
approving mother’s proposed case plan. Additional case notes submitted prior to the
hearing stated a December visit between the siblings was “chaotic and out of control.”
Li.P. instigated matters by repeatedly touching her brother’s bottom and refusing to listen
to the visitation supervisor. The supervisor had to call coworkers to manage the situation,
as Li.P. was defiant, running around, yelling, and showing poor physical boundaries
which encouraged her siblings to follow suit. The juvenile court ordered Li.P. to undergo
“more intensive therapy.”
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The Six-Month Review Hearing
The Agency recommended continuation of the parent’s services in its report for
the six-month review hearing. The children were in individual placements separate from
each other. L.P. completed kindergarten and was doing better although he still displayed
some bullying behaviors. He was attending bi-weekly mental health counseling sessions.
Li.P. completed transitional kindergarten and her behavioral incidents were subsiding.
She was attending bi-weekly counseling sessions, but her Parents United group was
cancelled on March 23, 2020, due to Covid-19. Li.P. was doing well in her new
placement; she was no longer having tantrums, anger problems, or screaming. M.P. was
showing behavioral challenges that included daily tantrums and she regressed in her potty
training. She was scheduled for a new mental health assessment. An October 18, 2019
visitation note stated M.P. threw several tantrums, yelled, and was aggressive at a visit;
the parents appeared hesitant to discipline her and did not give her any consequences
when she misbehaved. L.P. asked visitation staff to impose a time out.
Mother’s services were all in progress. She had been diagnosed with moderate
major depressive disorder and was taking medication. In individual counseling, mother
was working on codependency and identifying father as the perpetrator of Li.P.’s sexual
abuse; she had not moved on to processing Li.P.’s experience as mother was still
processing her own. In Parents United, mother gained insight into why she was resistant
to believing Li.P.—she realized she had her own “daddy issues,” as her relationships with
her stepfather and biological father were not healthy, she believed a child should always
have a father, and she was confused that Li.P. was loving to father, as she believed a
sexual abuse victim had to hate her offender or express anger toward him. Parent/child
labs had not taken place due to Covid-19, but mother had attended two out of 10
parenting sessions; she was attentive and able to demonstrate knowledge by completing
homework assignments and role play.
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Father and mother had contemplated moving in together, but he ended up living
with mother’s grandparents. Therapeutic visits between father and Li.P. were suspended
due to Covid-19. Mother consistently visited the children. Due to the Covid-19
pandemic, in-person visits were suspended; instead, visits were conducted by video chat.
On July 7, 2020, the juvenile court followed the Agency’s recommendation and
continued services to the 12-month review hearing, which the court set for October 9,
2020.
The 12-Month Review Hearing
The Agency’s 12-month review report recommended services continue for both
parents and the juvenile court grant the Agency discretion to begin a trial visit at mother’s
home. L.P. was attending his first-grade class via distance learning and was still in
mental health counseling. Li.P. was continuing with bi-monthly mental health
counseling; her Parents United groups resumed as of August 17, 2020. M.P. was
assessed twice for mental health services but was found ineligible each time.
L.P. and M.P. were doing well in their homes, but Li.P. continued to have
behavioral issues. She threw tantrums, tormented the other foster child, and ran from the
care provider, who gave a 14-day notice. Li.P. changed placements again in September
2020.
Mother indicated in Parents United counseling that she now believed Li.P. and she
felt guilty about not accepting her disclosure. Mother reportedly was doing “amazing
work” and making positive progress. Mother’s Sierra Vista counselor noted mother now
understood she should have believed Li.P. from the start and was working on the “self-
hate and guilt” for not believing her. Mother was assigned a new counselor, Judi
Schardijn, in August 2020. She consistently tested negative on random drug tests.
Mother was working 65 hours a week as an IHSS provider.
Mother continued to consistently visit the children. Due to the pandemic, she was
restricted to video chat visits from June 12 through September 4, 2020, except for two in-
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person visits—one in July and once in August. During the July in-person visit, the
supervisor noted the children often disregarded mother’s redirection from inappropriate
behavior, and she appeared overwhelmed at times. At the August in-person visit, the
supervisor noted mother engaged with the children, talked to them frequently, and had
appropriate conversations. The children had to be transported separately to visits because
they were physically forceful with each other. Mother was told in August 2020 that, due
to the pandemic protocols, community visits could not be monitored; therefore, visits had
to remain at the Agency until she could begin a trial visit.
In assessing the current situation, the social worker noted that while both mother
and father had been cooperative and engaged in services, and they consistently visited the
children, “visiting is not parenting.” Neither parent had made themselves available for
the child family team meetings to discuss the children’s needs or taken responsibility for
why the children came to the Agency’s attention.
At the October 9, 2020 12-month review hearing, the juvenile court adopted the
Agency’s recommendations—it continued services for both parents and granted the
Agency discretion to begin a trial visit with mother only, which the social worker could
terminate if necessary. The juvenile court set an 18-month review hearing for
February 5, 2021.2 Mother’s updated case plan added requirements to complete at least
three parent/child labs and work weekly with a parent mentor who would help her
develop appropriate parent-child relationships, boundaries and rules, and implement
positive consequences.
The February 2021 18-Month Review Hearing
In its report for the 18-month review hearing, the Agency recommended
termination of father’s services, continuation of mother’s services, and a 90-day
continuance of the hearing in order to assess mother during the trial visit with M.P.,
2 Further references to dates are to the year 2021, unless otherwise stated.
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which began on December 18, 2020, and allow the older children, who remained in
separate foster homes, to begin trial visits with mother.
L.P. continued to receive mental health counseling and was on psychotropic
medication, which was being adjusted. He did not do well with other children in the
foster home, as he behaved aggressively toward them. The foster parents, however, were
committed to keeping him and chose to have the other children removed.
Li.P. continued in individual counseling and Parents United, where they were
working on her aggression and lack of boundaries. Li.P. had bonded with her current
care providers, but she continued having problems getting along with other children in
the home and had episodes of tantrums and aggression.
M.P. began preschool prior to starting her trial visit. Her behaviors there, which
included tantrums, fighting, being disruptive, and hitting other children and the teacher,
resulted in a two-week suspension from preschool. M.P. was assessed for mental health
services on December 28, 2020, and was found eligible on January 6. She was referred
to Leaps and Bounds and began a “Tots Group” with Parents United on January 4.
Mother was overwhelmed at the beginning of the trial visit with the transition and M.P.’s
high needs, but the social worker believed she was committed to M.P.’s needs. She
missed the first two visits with the two older children after M.P. was placed with her.
Mother continued to attend the AMAC group at Parents United, but the counselor
noted on October 27, 2020, she appeared to be “zoned out” and wondered if she might be
under the influence of something or very depressed. Her counselor was working with her
on, among other things, taking responsibility and being proactive. On January 12, it was
reported mother was making good progress in her AMAC group, but she was tired due to
M.P.’s trial visit.
In counseling, Mother continued to take responsibility for Li.P.’s molestation. She
did not have concerns about her interactions with the children or their behaviors; instead,
she believed “foster care” was the problem. Father, however, admitted in counseling the
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children’s challenging behaviors existed prior to being in foster care. Mother’s
counselor, Schardijn, retired, so she was transferred to a new counselor, Larinda Carrier,
on December 29, 2020. With respect to parenting, she had six individual parenting
sessions and three parent/child labs to complete, which were delayed due to Covid-19,
and she was recommended for more individual counseling sessions. Mother was working
with a parent mentor weekly. Mother reportedly was working as an IHSS provider
40 hours a week.
The social worker opined there continued to be detriment to the children if they
were returned to mother or father. There was no likelihood father could reunify with the
children, as he had not made substantive progress in his services—he continued to test
positive for substances, had sporadic and inconsistent engagement with services
providers, and refused services. Mother, however, had made progress in her services; she
stayed engaged and was consistent with visitation and attending services. The family
continued to partially visit via Zoom into November 2020. When mother was provided
in-person visits, it was noted her parenting skills were appropriate. L.P. and M.P. were
transported together to a visit in December 2020.
The social worker stated that while mother struggled with M.P. and was
overwhelmed at the beginning of the trial visit, she was committed to M.P.’s needs and
would be starting a trial visit with the older children soon. The social worker was slowly
transitioning the children to mother due to their behaviors and high needs and believed
reunification could be achieved if mother continued to make good progress and
demonstrate she could safely parent the children and be protective of them.
At the outset of the 18-month review hearing on February 5, the juvenile court
stated it made two attempts to reach mother by telephone, but both went to voicemail and
she did not appear at the hearing. County counsel explained a continuance was needed so
mother could learn how to successfully parent all three children at the same time and the
Agency could see how she did with the children in her home to assess whether there
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would be substantial risk of detriment if they were officially returned to her custody in 90
days. While the children’s attorney agreed with the 90-day continuance, she opposed the
Agency’s plan to place the older children with mother on a trial visit due to concerns
about mother’s ability to handle M.P., the children’s challenging behaviors, and father’s
continued contact with the children. The children’s attorney asked the juvenile court to
set a hearing in 30 days to see how M.P.’s trial visit was going and reassess at that time.
The juvenile court found it would be detrimental to return the children to either
parent, the parents had been offered and provided reasonable services, there was not a
substantial probability the children would be returned to father’s custody but there was a
substantial probability they would be returned to mother’s custody, and mother made
significant progress in resolving the problems that led to removal. The juvenile court
terminated father’s reunification services but continued mother’s services. The juvenile
court stated it would set a review in 30 days, as it shared serious concerns about mother’s
ability to protect the children from father and her capacity to parent all three children.
The juvenile court authorized M.P.’s continued trial visit and directed the Agency to
“closely monitor” the situation; declined to authorize discretion for a trial visit with the
older children; and set a 30-day review hearing for March 5 and a continued review
hearing for May 3, finding extraordinary circumstances to continue services due to the
pandemic and the children’s serious behavioral issues.
The Agency’s Section 388 Petition
On February 23, the Agency filed a section 388 petition seeking, among other
things, modification of the order continuing mother’s reunification services to an order
terminating her services. As changed circumstances, the Agency alleged it terminated
mother’s trial visit with M.P. on February 17 due to safety concerns raised by various
service providers and because mother had not engaged with services at Sierra Vista since
December 2020. The Agency asserted it would be in the children’s best interest to
terminate mother’s services so they could have permanency, as they had been in
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placement since August 2019, L.P. had been with his current care providers, who were
committed to adopting him, since November 7, 2019, and M.P. was placed in a
concurrent placement on February 17.
The Agency filed a report in support of the petition in which it recommended the
juvenile court terminate mother’s services and set a section 366.26 hearing. While L.P.
and M.P. were in concurrent placements, Li.P. was in a foster home that was not a
concurrent home.
Contact logs submitted with the report detailed events that occurred after M.P.’s
trial visit began on December 18, 2020. Initially, mother missed two visits with the older
children, but community visits then began with Li.P. Mother reported on December 21,
2020, that M.P. had gotten a few scratches from mother’s cats but M.P. would not stop
picking them up. The social worker recommended she redirect M.P. and teach her
good/bad touches with the cats.
On December 28, 2020, mother informed the social worker M.P. had a mental
health assessment that day and she was told from the information she provided it looked
like M.P. would not need counseling. At a January 5 meeting for L.P., mother shared she
was having problems with M.P. and had been struggling with redirecting her, explaining
that M.P. had a “really big episode” the day before and she had not heard from the parent
mentor. Later that day, the social worker told mother she submitted another referral for a
mental health assessment for M.P. and explained mental health is inclusive of behavioral
health; therefore, if mental health is a concern mother, should answer “yes.”
A child family team meeting was held on January 15. Mother reported M.P. was
getting better with the cats. M.P. was found eligible for mental health services and a
child family team meeting would be set to decide which “path” M.P. would be eligible
for, and M.P. began services at Parents United. Mother started working with the parent
mentor and would meet with her weekly.
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A home visit was conducted on January 22. The social worker observed M.P.
constantly required mother’s attention and she was not redirected with the television or
tablet. Mother did not use a stern voice with her; it appeared mother needed additional
assistance to learn to be an authority figure. M.P. picked up the cats roughly, scooping
them up like they were dolls, and carrying them under one arm. Mother said she
attempted to attend her last appointment with Schardijn, but Schardijn was not there. The
social worker said she would set up mother’s parent/child labs, but mother was
responsible for engaging with her service providers and advised her to follow up with her
appointments.
At mother’s January 25 visit with the children, M.P. had a meltdown; she hit
mother and screamed at her and then bit mother’s arm. M.P. created chaos at the
visitation center by throwing chairs and overturning a table, disrupting the entire
department for 40 minutes. Mother had few, if any, skills for managing her. The parent
mentor removed M.P. once, but she continued to scream and run around. Finally, the
older children were able to comfort M.P. and she calmed down.
The next day, the parent mentor reported to the social worker that at her first
meeting with mother and M.P. a few weeks earlier, M.P. was screaming so much the
parent mentor eventually had to leave because mother was not able to calm her down. At
one point, M.P. fled from mother’s care while at a bus stop. The parent mentor told
mother she needed to contain M.P. and while mother would talk to M.P., she did not
follow through on consequences. M.P. had a Parents United session and visits with
mother and her siblings back-to-back on Monday afternoons, which the parent mentor
believed was too much for M.P. to handle and contributed to her behavior at visits.
Mother spoke with the Leaps and Bounds provider on February 2 and scheduled
the first session for the following week. The provider later told the social worker the
parent mentor and social worker provided her with M.P.’s behavioral challenges, while
mother reported differently. Based on what mother reported, the provider was going to
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work with M.P. and mother twice a month via phone, but once she spoke to the parent
mentor and social worker, she submitted a referral for a higher level of care.
On February 5, a social worker made an unannounced visit to mother’s home after
the 18-month review hearing. Asked if she had a court hearing that morning, mother
stated they called her twice, but she missed the calls because it was too early in the
morning. The social worker noticed M.P. was gentler with the cats and there were “big
improvements” in her behavior. The parent mentor also visited mother in her home that
day. Mother told the parent mentor M.P. was worse with the cats that morning, so she
was not permitting her to hold or play with them. The parent mentor asked if mother had
implemented anything they talked about the prior week, but mother did not remember
what they talked about. When reminded, she appeared to remember, but she had not
relayed the information about how to avoid and respond to tantrums to maternal aunt,
who babysat M.P. Mother did say she was able to get M.P. into her car seat willingly.
The social worker held a monthly compliance meeting with mother on February 8,
which the parent mentor attended. Mother stated her new Sierra Vista counselor, Carrier,
had not called her and she confirmed her last appointment was with Schardijn in
December 2020. The social worker reminded mother it was her responsibility to follow
up and schedule appointments. The social worker shared the conversation she had with
the Leaps and Bounds provider concerning the February 2 assessment and reminded
mother that minimizing the children’s behaviors could cause them to go without services.
The social worker was concerned mother’s cats would attack M.P. because she
was picking them up roughly. Although mother said M.P. was “getting better” with the
cats, the social worker had observed mother failing to redirect M.P. when she picked
them up or telling her how to pick them up. In discussing M.P.’s trial visit, mother stated
M.P. was “much better,” had “made progress,” and the visit had been “great.”
Mother’s parent mentor asked mother to share with the social worker the two
things she advised mother to work on with M.P., but mother could not remember what
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they were and had to be reminded. The social worker reviewed the parent mentor’s
concern that M.P. had too many sessions scheduled on one day. Mother could not
remember what the parent mentor advised her to do when M.P. was having a tantrum and
time outs did not work, but when the parent mentor reminded her to be aware of why
M.P. was having the tantrum and give her options, mother responded she had been doing
that and she did not “know what you want me to do.”
The social worker had a conversation with the parent mentor after the meeting.
Among other things, the parent mentor observed mother had no follow through and she
believed mother was working 60 hours a week, which left her to wonder when mother
was seeing M.P. Mother was gone for long periods of time, leaving M.P., who continued
to have tantrums, with maternal aunt. While the mentor encouraged mother to spread out
M.P.’s appointments, mother insisted on keeping them all on Mondays due to work.
A child and family team meeting regarding Leaps and Bounds services for M.P.
was held on February 12 via Teams. Mother did not answer the first phone call, but she
answered when she was called from a different phone; mother thought the meeting was in
July, although she had been informed of this meeting date. Mother expressed only
minimal concerns with M.P.’s behavior, stating she shares well and there was no fighting
or yelling during Zoom visits. The social worker and parent mentor intervened to discuss
behavioral issues they either observed or been advised of, including mother struggling to
redirect M.P., who was still very rough with the cats.
On February 17, the social workers went to mother’s home to terminate M.P.’s
trial visit due to safety concerns, which the social workers reviewed with mother. Carrier
had made an appointment with mother for February 16, but mother did not attend the
session or contact Carrier to provide a reason for missing it. When the social worker told
mother about the missed appointment, mother responded, “[W]hat appointment”? The
social worker stated mother had not been compliant with counseling services since she
last saw Schardijn in December 2020; mother replied, “Judi was a piece of crap” and she
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had not “seen Larinda’s face” or talked to her. The social worker again reminded mother
she ultimately was responsible for engaging with the service providers. Mother became
defensive, stating “this is bull shit.”
Other concerns the social worker reviewed were mother twice jeopardizing M.P.
from receiving mental health services by minimizing her behaviors; mother’s
unwillingness to be flexible when the social worker and mental health providers
attempted to set up a child family team meeting to get M.P.’s services started; M.P.’s
continued interactions with the cats, which included “squeezing them around their
throat[s],” “pulling their skin,” and “picking them up by their paws”; and the January 25
visit where M.P. bit mother’s arm, as well as a February 8 visit where mother was
carrying M.P. down the hallway with M.P. kicking and screaming. In addition, the social
worker continued to receive reports about safety concerns from service providers when
they were trying to work with mother.
M.P. was placed in a concurrent foster home. The following day, her care
providers reported she had bruising on her thigh and bottom and an abscess on her foot.
Mother had not reported any bruises as required under the trial visit rules. On
February 19, the social worker received a report from one of M.P.’s mental health
counselors that mother told her one of the “interventions” she used when M.P. was acting
out was to put her in the closet and turn the light off, although “one of us” was in there
with her. Asked how effective this was, mother stated M.P. did not like it. Based on this
information, a suspected child abuse referral was made, and an investigation begun.
When M.P. was interviewed on February 22, she said she was put in “mommy’s closet”
and showed her bruises but not how she got them.
The social worker spoke with M.P.’s counselor to obtain more information about
her report of the use of the closet. The counselor explained when she asked mother the
current interventions she used to decrease M.P.’s aggression, mother casually answered
she put M.P. in the closet with the lights off, and M.P. “doesn’t like it” and “it’s not
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working.” When mother observed the counselor appeared concerned, she added, “one of
us is always in there with her.” The counselor believed this was mother’s “go to” for
attempting to decrease M.P.’s aggression.
Mother, when interviewed, explained M.P. “plays really hard”; she bruised her
forehead when she hit the coffee table while trying to get the cats and dove on the wood
panel flooring trying to catch them. Mother did not always see the bruises and was not
always with M.P., as maternal aunt cared for M.P. when mother was not there. Mother
admitted noticing the bruises and she “messed up” by not reporting them, but she denied
causing them. Mother explained she would sit with M.P. in the closet with the lights off
until M.P. calmed down. They then would talk about what M.P. did, and M.P. would
apologize and say she was sorry. She said it only lasted three to four minutes, and the
last time she used the closet was the prior Wednesday, which was the day M.P. was
removed. Mother found the closet to be the most effective form of discipline and when
M.P. got scared they would talk it out and she would tell her “it is not scary.” Mother
understood putting M.P. in the closet was “unusual” but M.P. would apologize when she
misbehaved. Mother did not use this form of discipline with the other children as they
were “pretty mature” and listened most of the time.
The Hearing on the Section 388 Petition
The juvenile court set an evidentiary hearing on the section 388 petition; a
contested hearing was held on April 30. The social worker testified about mother’s
failure to report any behavioral concerns to the provider during the December 2020
assessment and how M.P. was found eligible for a higher level of services only after the
Leaps and Bounds provider spoke to the social worker and parent mentor as mother had
not given the provider much information. M.P. was seeing a support counselor twice a
week and a mental health clinician once a week.
At a child family team meeting held two days before the hearing, mother shared
she was unaware of some of M.P.’s issues, such as grabbing food and overeating, and she
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believed her visits went well with no concerns about M.P.’s behavior. At a visit that
week, however, the visitation center reported mother’s parenting skills needed
improvement, as she was unable to control the children when they were roughhousing
and running around.
The social worker summarized the problems resulting in the termination of the
trial visit: mother’s failure to engage in services at Sierra Vista after her prior counselor
retired; her minimization of M.P.’s mental health issues; M.P.’s safety with the cats in the
home; and the reports from service providers and the parent mentor. All the observation
logs documented concerns, but the most worrisome incident was the January visit where
M.P. was out of control. Both the social worker and parent mentor were concerned about
mother’s inability to contain M.P.
After the trial visit ended, the social worker learned about mother’s use of the
closet as a method of discipline, which was not an appropriate way to discipline a three-
year-old, and the bruises on M.P.’s bottom and legs. The bruises were a concern because
the children had bruises when they were initially removed, which indicated a pattern.
Since mother’s trial visit with M.P. was unsuccessful, she was unable to attempt a trial
visit with the other children; mother had run out of time and the Agency continued to
receive ongoing reports from different providers with the same concerns.
The social worker testified L.P. continued to have boundary challenges with
inappropriate and appropriate touching and he did not get along with other children.
Li.P. was in her sixth home because of her physical aggression and anger. She choked a
nine-year-old child in her last home. Li.P. told the social worker she was angry because
of what father did to her and she appeared to have self-hate, which were being addressed
with her in services. Li.P. was not in a concurrent home; she was in a home where there
were no other children. M.P. was placed in a concurrent home when the trial visit ended
on February 17.
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Mother had not completed any case plan component. Mother had not graduated
from her Parents United program; while the last report the social worker received that
week stated mother continued to engage, the social worker did not know mother’s
progress. Mother failed to implement what she was being taught, as demonstrated by her
failure to instruct M.P. on how to treat the cats despite a social worker and parent mentor
discussing the issue with her.
Mother testified her children were removed because she “broke a family plan” and
failed to protect them. Mother denied she refused Sierra Vista’s services when she failed
to attend them for about two months; rather, she “had a lot going on,” and “a lot of
appointments,” although she admitted that was no excuse. Mother was aware she was
ordered to participate in services during that time.
Asked why she did not intervene when M.P. was abusing the cats in front of the
parent mentor, mother responded she was “not very good” when other people were in the
room. Mother said she did not have a long time to work with M.P. regarding the cats;
mother claimed M.P. was getting better with them and she and maternal aunt were
showing her how to treat them. When asked why she did not follow up with the provider
who assessed M.P. in December 2020, mother responded M.P. was not having any
behavioral issues at the time.
Regarding visits, mother stated when M.P. was placed with her “she had a few
incidents where she had bit me on the arm, and it was—it was really hard to control her
in the room, so I think a few of those visits were pretty rough with M[.P.] and L[i.P.] too.
They like to bicker with each other. But other than that, I mean, I thought that my visits
were going pretty well.” When asked about reports she was having difficulty managing
and engaging with the children during visits, mother responded: “I don’t feel like that’s a
concern for me. I engage with all three of them pretty well.” Mother, however, admitted
it was “difficult at times” to manage their behaviors. Mother agreed her parenting could
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improve, but the children had been out of her home for so long it was hard when they
only had an hour or two to visit.
Mother did not mean to miss the first two visits with the older children when M.P.
was first placed with her, but M.P. was “a very energetic little girl” and “the center of
attention.” It was difficult for her to manage M.P. when visiting the older children.
Mother admitted it would be a challenge to manage all three children if they were
returned to her, but she had learned skills to help her manage their behaviors.
Through her Parents United services, mother had been able to accept that father
sexually abused her daughter. Mother admitted the parent mentor and a social worker
gave her techniques to teach M.P. how to interact with the cats, but she did not start using
them right away because M.P. “didn’t ever stop touching the kitties so I kind of spaced
out, and I forgot about the technique.” She started using the techniques when it started
“getting like pretty serious.”
When M.P. acted out, mother said either she or maternal aunt took M.P. into
mother’s walk-in closet and they sat in there with the light off. A few times M.P.
mentioned the dark was scary and there were monsters, but they would tell her “the dark
wasn’t a scary place,” “[m]onsters aren’t real,” and they were right there and would turn
on the light as soon as she calmed down. Mother said they were in there only about three
or four minutes, and M.P. was never alone. They went into the closet three or four times
a day, but not every day. She started using this method about a month after M.P. was
placed with her. She got the idea from Li.P.’s previous counselor, who put Li.P. in an
empty room with the lights on until she calmed down.
Regarding M.P.’s bruises, mother testified she “messed up” because she did not
take pictures of “every clumsy bruise she got by diving for the cats.” M.P. also had a lot
of toys all over her bedroom floor; she was “very clumsy” and would fall on her toys.
Mother denied giving M.P. the bruises.
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Mother testified about her understanding of each’s child’s behavioral issues. If the
children were returned to her, she could be “as calm as possible,” put the older children in
time-outs, and do a lot of redirecting and eye-to-eye contact with the girls. The juvenile
court asked mother “[h]ow difficult do you think it would be, honestly, to have all three
kids?” Mother replied: “It is probably going to be pretty difficult, yeah,” and “[i]t would
be a challenge.” Mother, however, thought she could handle it.
Asked about the children’s behavior before removal, mother stated the two older
children did a lot of “roughhousing a little bit like but in a playful way,” and “[t]hey were
very energetic.” She said they argued and were not able to share toys, but she believed
their behaviors had “gotten extremely worse since then.” If the children were returned to
her, she would continue the children’s services and maternal aunt would watch them
when she went to work. Mother agreed she was still having challenges trying to follow
through on discipline and consequences during visits, stating “[s]ometimes it is hard to
follow through.”
In closing arguments, county counsel argued the termination of mother’s trial visit
constituted changed circumstances warranting the termination of her services, she failed
to make the progress necessary to ensure the safe return of the children, and it was in the
children’s best interests to terminate services so they could be provided permanency.
County counsel noted this is an “outer-limits” case as the 18-month date was February 15
and the continuance was to assess the trial visit, which had ended. The children’s counsel
asked the juvenile court to follow the Agency’s recommendation.
Mother’s attorney argued the concerns at the outset of the case regarding mother’s
inability to accept the sexual abuse and her substance abuse were no longer issues, and
now the problem in the Agency’s eyes was her parenting style. Mother’s attorney urged
the juvenile court to apply the standard for an 18-month review hearing—the court must
return custody of the children to mother unless it finds a substantial risk of detriment by a
preponderance of the evidence—and argued there was insufficient evidence to keep the
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children out of mother’s care. The attorney asked the juvenile court to deny the section
388 petition and either return the children to mother with family maintenance services or
extend her services beyond the 18-month mark on a finding of extraordinary
circumstances.
In ruling, the juvenile court believed mother’s testimony was credible and she
loved her children, but she had over 20 months of services and even if it found
extraordinary circumstances to continue to the 24-month juncture, she would not be in a
position to take care of the children within the next three and a half months. The juvenile
court found, based on a preponderance of the evidence, there would be a substantial risk
of detriment if the children were returned, although it recognized that was not at issue
since this was not an 18-month review hearing. The juvenile court stated even if it had
the authority to order return of the children that day, it did not see how it would be
beneficial for them to be returned to mother given their extreme behaviors and inability to
get along with each other.
The juvenile court found there was a significant change in circumstances in that
the trial visit did not work and there was no evidence mother was able to properly care
for all three children, noting even one-hour visits were problematic as mother was unable
to redirect the children appropriately and safely. The juvenile court further found
granting the section 388 petition would be in the children’s best interests. The juvenile
court terminated mother’s reunification services, found that reasonable services were
offered or provided to mother, and set a section 366.26 hearing for August 26, 2021.
DISCUSSION
There is a statutory presumption at each review hearing that the child will be
returned to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) That is
unless the juvenile court finds by a preponderance of the evidence that doing so would
“create a substantial risk of detriment to the safety, protection, or physical or emotional
well-being of the child.” (§ 366.22, subd. (a)(1).) If the court finds it would be
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detrimental to return the child, it has the option of continuing reunification services up to
the 18-month review hearing. At that point, the court must either return the child to
parental custody or set a hearing under section 366.26 to select a permanent plan. (Id.,
subd. (a)(3).)
There is statutory authority to extend reunification services to 24 months when a
parent is: a resident of a court-ordered substance abuse treatment program; recently
discharged from incarceration, institutionalization, or the custody of the United States
Department of Homeland Security; or a minor or nonminor dependent at the time of the
initial hearing. (§ 366.22, subd. (b).) The court must also find the parent is making
significant and consistent progress, there is a substantial probability the child will be
returned to parental custody, and it is in the child’s best interest to continue reunification
efforts. (Ibid.) None of these situations, however, apply here.
There are court-created exceptions, however, that allow a juvenile court to
continue reunification services beyond the 18-month review hearing: (1) when the court
finds the parent was never provided reasonable reunification services (In re M.F. (2019)
32 Cal.App.5th 1, 21); or (2) in a special needs case where there are extraordinary
circumstances that prevented the parent from participating in the case plan (Andrea L.
v. Superior Court (1998) 64 Cal.App.4th 1377, 1388; In re Elizabeth R. (1995)
35 Cal.App.4th 1774, 1777).
Here, the juvenile court relied on the latter exception to extend mother’s services
to May 3, finding extraordinary circumstances existed, namely, the pandemic and the
children’s behaviors. A little over two weeks later, the Agency brought the section 388
petition to terminate to mother’s services, asserting termination of the trial visit
constituted changed circumstances and it would be in the children’s best interest to
provide them permanency.
Any party may petition the court to modify or set aside a prior order on the
grounds of change of circumstances or new evidence. (§ 388, subd. (a).) As the
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petitioner, the Agency had “the burden of showing by a preponderance of the evidence
(1) that there is new evidence or a change of circumstances and (2) that the proposed
modification would be in the best interests of the child.” (In re Mickel O. (2011)
197 Cal.App.4th 586, 615.) Whether the juvenile court should modify a previously made
order rests within its discretion, and its determination may not be disturbed unless there
has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The
appropriate test for abuse of discretion is whether the trial court exceeded the bounds of
reason. (Id. at pp. 318‒319.) All conflicts in the record must be resolved in favor of the
juvenile court’s decision and all legitimate inferences indulged in to uphold that decision.
(In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court. (In re Stephanie M., at p. 319.)
The juvenile court here found everything needed to grant the section 388 petition
and terminate mother’s reunification services. Specifically, the juvenile court found a
significant change of circumstances, namely, that the trial visit did not work, there was no
evidence mother was able to properly care for all three children, and it was in the
children’s best interest to terminate mother’s services.
Mother appears to contend the juvenile court was required to return the children to
her because its detriment finding at the February 5 hearing was inconsistent with its order
granting mother a trial visit with M.P. As real party in interest points out, this finding
was not appealed; therefore, it is final and may not be attacked in this writ proceeding.
(Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811‒812.) Moreover, the case
mother relies on, Savannah B. v. Superior Court (2000) 81 Cal.App.4th 158, is
inapplicable here. There, the appellate court held the juvenile court’s dispositional orders
removing the minor from the parent’s custody but simultaneously placing the minor back
with the parent for a 60-day visit were a “legal fiction” and inconsistent. (Id. at pp. 160‒
162.) In contrast here, we are not dealing with disposition, but a situation where the
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children had been removed from mother’s custody for over 12 months when the juvenile
court modified the visitation order to allow for an extended visit at the social worker’s
discretion. This was a permissible delegation of power over visitation to the social
worker. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.)
Mother does not contend the Agency failed to establish changed circumstances or
best interest. Instead, she argues the juvenile court was required to conduct the April 30
hearing in a manner consistent with section 366.22 and make a detriment finding. She
further argues there was insufficient evidence of detriment because termination of the
trial visit was unwarranted, she did not pose a safety threat to the children, and she made
substantial progress with her services.
Mother, however, does not cite any authority for the proposition that the juvenile
court was required to make a detriment finding when ruling on the section 388 petition.
Moreover, mother ignores the juvenile court essentially made such a finding when it
stated if it were conducting an 18-month review hearing, it would find there would be a
substantial risk of detriment if the children were returned to mother that day. Finally, we
note that in ruling on the section 388 petition, the juvenile court made a finding
equivalent to detriment when it found mother had over 20 months of services, there was
no evidence she was able to properly care for the children, and even if it extended
mother’s services to the drop-dead date of 24 months, she still would not be in a position
to take care of all the children. (See, e.g., In re J.P. (2014) 229 Cal.App.4th 108, 126
[“[a] finding that … there is a substantial likelihood reunification will not occur because
of the action or inaction of the parent, is equivalent to a finding of detriment”].)
Even if a detriment finding were required, substantial evidence supports it.3
Although mother had made progress in accepting Li.P. was sexually abused, the children
3 We review the juvenile court’s findings and orders for substantial evidence. (In re
Brison C. (2000) 81 Cal.App.4th 1373, 1378–1379.) In so doing, “we review the record
in the light most favorable to the court’s determinations and draw all reasonable
inferences from the evidence to support the findings and orders. [Citation.] ‘We do not
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all had behavioral problems that were beyond mother’s ability to handle despite receiving
20 months of services. Mother did not recognize the severity of the children’s problems
and did not take their emotional and behavioral issues seriously, which led to her failing
to prioritize their needs for treatment, and she dismissed her own failures as insignificant.
Mother had a habit of acknowledging she “messed up” and apologizing, but then would
turn around and repeat either the same or similar behavior. After 20 months of services
from multiple providers, mother failed to learn skills to control even one of her children.
Despite the parent mentor’s hands-on coaching, mother admittedly did not put the
techniques she was being taught into practice “right away,” although she did so
“eventually” once she remembered the techniques and things got “pretty serious.”
Mother’s inability to handle the children created a substantial risk of detriment to
them if they were returned to her. This was demonstrated by mother’s inability to control
M.P.’s behavior with respect to the cats, which mother admitted led to M.P. sustaining
bruises, as well as with M.P. running away from mother at the bus stop. Given mother’s
lack of insight into the children’s problems and her ability to control them, the children
were at risk of harming themselves or each other should they be returned to her.
Mother asserts the reasons the Agency terminated mother’s trial visit did not
create a safety risk for the children. She claims her minimization of the children’s
behaviors was not a problem because M.P.’s provider at Leaps and Bounds was aware of
her tendency and M.P.’s services had been adjusted. Mother’s minimization, however,
was not a one-time occurrence; rather it was an ongoing problem—she repeatedly
minimized their behaviors to the point where she believed visits with them were going
well. While mother asserts the cats were no longer a problem because she addressed the
issue, M.P.’s bruises, which mother said were caused by M.P. diving after the cats, show
reweigh the evidence or exercise independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.’ ” (Kevin R. v. Superior Court
(2010) 191 Cal.App.4th 676, 688–689.)
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the problem persisted. The other concerns involved mother’s failure to alter her behavior
and her continued lackadaisical approach to services, both of which placed the children at
risk because she was not applying the skills necessary to control the children, which
placed them at risk.
Mother asserts the juvenile court failed to consider the progress she and the
children made and instead focused on their struggles. While the children had made
progress, the older children still could not get along with other children and M.P.
continued to have tantrums and exhibit out-of-control behavior. It is true mother was
processing her own molest issues and believed Li.P.’s disclosure, but she did not fully
acknowledge the children still exhibited sexualized behavior and did not demonstrate in
services or visitation she was able to deal with the children when they were acting out.
Mother asserts there were less drastic means to address the deficiencies the
Agency cited, namely, returning the children to her custody and ordering family
maintenance services under court supervision, citing In re Yvonne W. (2008)
165 Cal.App.4th 1394, 1403. This ignores, however, the substantial evidence of
detriment as demonstrated by mother’s inability or unwillingness to use the skills she
learned through her programs and the parent mentor in attempting to control M.P.’s
behavior. While, as mother points out, she is not required to complete the entire
reunification plan in order to have the children returned, detriment existed as it was clear
mother was not going to change in the very near future and was not capable of safely
parenting one child, much less three difficult children with differing needs.
Finally, mother contends if there is substantial evidence of detriment, the juvenile
court should have denied the section 388 petition and extended her services to 24 months.
She asserts under section 352, subdivision (a), there was good cause to continue the
hearing because the children were bonded to her and each other, only L.P. and M.P were
in concurrent homes, and the Covid-19 pandemic created a difficult situation that
negatively impacted the quality of the family’s visits and services. Mother argues the
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juvenile court, rather than recognizing the family’s unique circumstances and the
extenuating circumstances the pandemic posed, abused its discretion when it terminated
her reunification services.
As real party in interest points out, mother did not miss any of the extended
services that were ordered at the 18-month review hearing on February 5, as she
continued to receive services between the filing of the section 388 petition and the
April 30 hearing, which occurred only three days before the May 3 continued review
hearing date. At the April 30 hearing, the juvenile court conceded it could find
extenuating circumstances to continue the hearing until the 24-month “drop-dead date” of
August 15, but it did not believe mother would be able to take the children at that time.
That finding, which mother does not address, was supported by substantial
evidence. Mother failed to learn and make changes in her parenting after receiving
approximately a year of services in Kansas, three months of family maintenance services
before the dependency petition was filed in this case, and 20 months of family
reunification services. Mother simply does not have the will or ability to develop
necessary skills to safely parent her children and even after exceeding the statutory
allotment of services, she still could not recognize, much less correct, the deficiencies in
her parenting to become even a minimally sufficient parent.
In sum, the juvenile court did not abuse its discretion in granting the Agency’s
section 388 petition, terminating mother’s services, and setting a section 366.26 hearing.
DISPOSITION
The petition for extraordinary writ is denied. This court’s opinion is final
forthwith as this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).
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