L.W. v. Superior Court CA1/2

Filed 8/20/21 L.W. v. Superior Court CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
L.W.,
Petitioner,
v.
THE SUPERIOR COURT OF A162641
ALAMEDA COUNTY,
(Alameda County
Respondent;
Super. Ct. Nos. JD031935,
ALAMEDA COUNTY SOCIAL JD031936, JD031937)
SERVICES AGENCY,
Real Party in Interest.
L.W. (Mother) petitions this court for extraordinary relief from
dependency court orders terminating reunification services and setting a
hearing under Welfare and Institutions Code section 366.26 to select a
permanent plan for her sons T.P., R.P., and A.P. (collectively, Minors).1
Mother argues that the trial court erred in finding a substantial risk of
detriment to Minors if they were returned to her, and asks us to vacate the
court’s orders and direct the court to return Minors to her care immediately.
Further unspecified statutory references are to the Welfare and
1
Institutions Code.
1
We conclude that the dependency court’s findings are supported by
substantial evidence, and therefore we deny Mother’s petitions.
FACTUAL AND PROCEDURAL BACKGROUND
A. Petition and Detention
On August 21, 2019, the Stanislaus County Community Services
Agency (Stanislaus County Agency) filed a petition in Stanislaus County
Superior Court under section 300, stating that Mother’s children N.W., J.R.,
T.P., R.P., and A.P. (then ages 13, 7, 5, 4, and 2, respectively) had been
temporarily detained two days earlier.2 The petition alleged Mother’s failure
or inability to adequately supervise or protect the children (§ 300, subd.
(b)(1)) and also alleged that Mother was unable or unwilling to provide or
arrange for the children’s care. (§ 300, subd. (g))
The petition alleged that on August 15, 2019, R.P. and two other
children were seen swimming unsupervised in the pool at a Fairfield
apartment complex. R.P., then 4 years old, began drowning and was pulled
out by a bystander; Mother was not present. On August 16, 2019, the
children were again seen at the pool unsupervised. R.P. again nearly
drowned and again was pulled from the pool by a bystander. This time R.P.
appeared blue; chest compressions were administered; and he was taken to
the hospital. Fairfield police located Mother and reported that she was
2 Case number JD031935 pertains to T.P., JD031936 to R.P., and
JD031937 to A.P. Mother has a total of seven children. N.W. and J.R., both
girls, were detained with Minors but are not subjects of Mother’s writ
petition; we refer to them to provide information that sheds light on the cases
of T.P., R.P., and A.P. A sixth child, age 11 in August 2019, did not live with
Mother at the time of the incident that led to detention and does not figure in
the case at all. Mother’s youngest child was born in August 2020 while
Minors’ cases were pending. That child has apparently remained with
Mother and has not been a dependent of the juvenile court.
2
uncooperative and did not provide them with any information. That day,
Mother was arrested for a violation of Penal Code section 273a, subdivision
(a), Child cruelty: Possible injury/death.3 On August 17, 2019, Mother
reported smoking marijuana; the children reported that two days earlier,
A.P., then 2 years old, was drowning when a man pulled him out of the pool,
and that Mother was not at the pool that day; and J.R., then 7 years old,
reported that she had nearly drowned twice, but someone grabbed her arm
and she was able to get to the stairs. The petition alleged that the
whereabouts of the children’s alleged fathers were unknown.4
The Stanislaus County Agency prepared a detention report in advance
of a hearing scheduled for August 22, 2019. According to N.W., the family
had been living in Modesto, but they had been staying with a relative for a
few days until they found a new place to live. Mother told a social worker
that although she had not been at the pool on August 15, she was there on
August 16. She said when they arrived at the pool on August 16, she sat in
her car while the children were lined up at the pool gate. The apartment
manager told her the children would not go into the pool area without an
adult, so Mother turned off the car and went into the area with the children,
who, Mother said, do not know how to swim. After about an hour, when they
were getting ready to leave and the children were out of the pool, Mother took
A.P. and a cousin to the car, leaving 13-year-old N.W. to supervise the other
children in gathering their things. Mother reported that while N.W. had her
head turned away from the children because she was using an inhaler,
someone pushed R.P. into the pool.
3 The criminal matter remains pending.
4The whereabouts of Minors’ alleged father remained unknown
throughout the proceedings. We do not mention him further.
3
According to the detention report, 17 different reports had been
received by three separate counties from 2009 to 2017 alleging general
neglect, physical abuse, or emotional abuse by Mother. Six of the referrals
were “evaluated out,” four were considered “inconclusive,” and seven were
deemed “unfounded.” Among the reports identified as “inconclusive” were
allegations that Mother did not have proper medication for a child suffering
from uncontrolled asthma, and that at age 11 N.W. was left alone to
supervise siblings then aged 4, 3, and 2, as well as a 2-week-old newborn.
On August 26, 2019, the Stanislaus County court issued orders of
detention.
B. Jurisdiction and Disposition – October 2019 through Early 2020
In a report prepared for an October 3, 2019 jurisdiction hearing, the
Stanislaus County Agency stated that as of September 30, it had not heard
from Mother, although she had been released from jail and had been in
contact with the relatives with whom the children had been placed. Mother
was not engaging in services or visiting with the children. In orders dated
October 9, 2019, the Stanislaus County court found the allegations of the
petition true and determined that the children were described by section 300,
subdivisions (b)(1) and (g).5
In a disposition report and addendum report prepared for a December
2019 hearing as to N.W. and Minors, the Stanislaus County Agency
5 The court ordered the matter transferred to Solano County, where the
family resided with relatives before the children were detained and where the
children had been placed with relatives. Although transfer was accepted for
all the children, the matter was transferred back to Stanislaus County for
N.W. and Minors in the absence of any legal address in Solano County for
Mother or the children’s fathers. J.R.’s dependency case, however, remained
in Solano County. In August 2020, the court granted full custody of J.R. to
her father and dismissed J.R.’s case.
4
recommended that the matter be transferred to Alameda County, where
Mother was currently residing, and that reunification services be ordered.
According to the report, Mother was enrolled in a parenting program through
the North Bay Regional Center, which was assisting her with housing
services. Mother did not understand why the children were removed from
her care and why she was arrested for an accident, which, she said, “could
have happened to anyone.” A visit between Minors and Mother occurred in
November 2019 and went well, according to the person who supervised the
visit.
On December 5, 2019, the court ordered reunification services for
Mother, which included a parenting class, Child and Family Team meetings,
and weekly visitation with Minors and N.W. The court also ordered the
matter transferred to Alameda County.
The Alameda County Social Services Agency (the Agency) prepared an
acceptance of transfer report in January 2020 and an addendum report in
February 2020. In late January, Mother informed the agency that she was
about to begin a new job, she would begin parenting classes in February, that
she wanted to get her children back, and she would need a housing referral.
Minors’ caregiver reported that she had taken Minors to the doctor in late
January; T.P. was up to date on immunizations but R.P. and A.P. were not.
T.P. and R.P. had multiple cavities and needed extensive dental work
including crowns and extractions for T.P.
The Alameda County court accepted transfer and set a six-month
review hearing for May 2020.
C. Six-Month Review – May 2020
In the status review report prepared for the May 2020 hearing, the
agency reported that a few months earlier, in February, Minors and N.W. had
5
been placed with K.J., a non-relative extended family member. The Agency
recommended that Minors and N.W. remain in out-of-home placement and
Mother continue receiving reunification services, and reported that Mother
agreed with the recommendations.
The report stated that in 2001, Mother, who has an intellectual
disability, was determined to be eligible for the services of the Regional
Center. The Agency reported that a case manager at the North Bay Regional
Center stated that Mother has a “significant and substantial developmental
disorder of mild intellectual disability.” Reports from Le Blanc Consulting
(Le Blanc), which teaches independent living and parenting skills to people
with developmental disabilities and which provided services to Mother on
behalf of the Regional Center, state that Mother had been diagnosed with
“Moderate Intellectual Disability.”
Mother was receiving 35 hours per month of independent living skills
services to assist her in meeting her “daily needs (health and medical, home
training skills, social skills).” Mother’s service provider, Ms. Ward from Le
Blanc, reported working with Mother to increase Mother’s ability to become
organized and manage communication with multiple providers in order to
support the well-being of herself and her children. The Agency stated that
Mother appeared “overwhelmed” with the number of service providers
working with her family, which “often causes her to be non-responsive for
periods of time.”
Mother was also receiving 20 hours per month of parenting support to
assist in areas including discipline and behavior management, time
management, the children’s educational, medical and health needs, child
development and child safety.
6
Mother reported to the Agency that she had recently lost her job
because of the status of her pending criminal case (that is, the case brought
under Penal Code section 273a, subdivision (a)), and that she was looking for
stable employment and housing. Mother had engaged in in-person parenting
classes during February 2020, but had difficulty maintaining her
participation because of her employment obligations. Ms. Ward reported that
Mother would benefit from consistent participation in the program, and that
until shelter-in-place restrictions were lifted, mother was expected to
participate in weekly Zoom parent groups.
In February 2020, Mother had visits with Minors and N.W. twice a
week for at least two hours per visit. The children’s caretaker, K.J., who
supervised the visits, reported that although Mother responded appropriately
to the children’s needs, she could benefit from support to ensure that she
could understand their developmental and supervision needs. Mothers’ work
schedule had apparently prevented visitation in early March 2020; then,
after shelter-in-place restrictions took effect in mid-March, Mother and the
children had telephone contact at least once a week.
The Agency stated that N.W., age 14, presented as “independent and
parentified.” T.P., age 6, presented as “an active, high energy and
explorative” child. R.P., age 5, presented as “hyperactive” and “interested in
exploring new experiences/games.” A.P., age 3, was described as a “very
active” child who “enjoys high energy activities.” The Agency reported that
N.W. had expressed concerns that returning to Mother’s care would mean
that she would have to watch her siblings “all the time,” and that she was
worried that something “bad” would happen to her siblings if she is
responsible for caring for them by herself. The Agency reported, “It appears
that [N.W.] and [T.P.] did not attend school regularly while in the care of
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their mother,” and that as a result they were experiencing academic
difficulties.
An updated case plan was prepared in light of a Child and Family
Team meeting held in mid-May. The plan identified three goals for Mother:
identify, apply for, and obtain suitable housing for her and her children;
demonstrate the ability to independently organize, supervise and arrange the
physical space to ensure the children’s needs are met, with appropriate age-
related expectations; and demonstrate the ability to use her support network
weekly to help with the supervision needs of the children.
At the six-month review hearing, the court found that Mother had
made “minimal” progress toward alleviating or mitigating the causes
requiring placement, and that out-of-home placement continued to be
necessary and appropriate. The court ordered continued reunification
services and gave the Agency discretion to allow unsupervised visits between
Mother and the children. A further review hearing was scheduled for
September 2020.
D. Twelve-Month Review – September 2020
In the status review report prepared for the September 2020 hearing,
the Agency reported that Minors and N.W. continued to live in the home of
K.J. The Agency recommended that Minors and N.W. remain in out-of-home
placement and that Mother continue receiving reunification services. The
Agency reported that Mother agreed with the recommendations.
According to the report, in late August 2020 Mother moved into a two-
bedroom apartment in the complex where the children were living with K.J.,
and the social worker had made a referral for financial support towards her
move-in costs. Mother had increased her level of participation in services
8
provided by the Regional Center to support her independent living and
parenting support needs.
Mother was receiving 35 hours per month of independent living
services and had increased her level of consistent communication with the
Regional Center providers. In-home services were to resume at the end of
September. Ms. Ward (from Le Blanc) would meet with Mother twice weekly
and help her create and maintain a monthly budget, which would assist her
in maintaining stable housing.
Ms. Ward described Mother’s participation in twice-weekly virtual
parenting classes during the reporting period as consistent and fully engaged.
The classes covered budget and finance, parenting tips, and developmental
milestones. Mother remained eligible for 20 hours of parenting support per
month, and in-home services, as with independent living skills, were to
resume at the end of September. Ms. Ward was to meet Mother twice per
week and work with her “to develop a safety plan regarding visitation and
strategies to meet the [children’s] emotional and academic needs during
increased visitation.”
Mother had supervised visitation with Minors and N.W. from May
through July 2020; K.J., the non-relative extended family member with
whom the children were living, supervised the visits. K.J. reported that they
went well overall. K.J. said she provided advice to Mother on how to
supervise all three Minors at the same time, and that Mother was initially
resistant to accepting the advice but became more receptive. Unsupervised
visits in K.J.’s home began in early August. In early September 2020, the
unsupervised visits moved to Mother’s home. The Agency was informed that
N.W. might have been asked to supervise Mother’s newborn baby during one
of the visits; Mother denied the claim.
9
The Agency expressed concern that Mother had not progressed to
overnight visitation or shown that she could ensure that Minors and N.W.
would always be cared for and supervised by a responsible adult. Mother
reportedly appeared fixated on the lack of supervision regarding the
drowning incident, instead of on the need to support the children’s safety and
well-being in all settings, including her home. The Agency was concerned
that Mother had not been able to involve the people she had identified as her
support network, beyond K.J. and Ms. Ward, in Child and Family Team
meetings or communicate with them about the children’s needs.
Mother’s case plan was updated in light of a Child and Family Team
meeting that was held by phone in mid-September and attended by the social
worker, Mother, and K.J. The updated plan identified two overall goals:
Mother would demonstrate the ability to use her support network weekly to
assist in the supervision of the children, and demonstrate that she can meet
the children’s needs, including supervision, during visitation.
At the 12-month review hearing, the court found that Mother had made
“partial” progress toward alleviating or mitigating the causes requiring
placement. The court maintained the children’s out-of-home placement and
ordered continued reunification services. The Agency was granted discretion
to increase unsupervised visits “up to and including a trial visit” in Mother’s
home, with three days’ notice to the children’s counsel. A further status
review hearing was set for February 2021.
E. Eighteen-Month Review and Contested Hearing
1. Status Report filed February 2, 2021
In the status report prepared for the February 2021 hearing, the
Agency recommended that Minors and N.W. remain in out-of-home
placement, that reunification services to Mother be terminated, and that a
10
section 366.26 hearing be set with the permanent plan of legal guardianship
with K.J., with whom the children had been living for the past year. Mother
disagreed with the recommendations, and wanted the children returned to
her care.
Mother told the Agency that J.R. (who was then age 8 and whose
dependency case had been dismissed) was living with her. Mother informed
the Agency that J.R.’s father, who had full custody, had requested the
arrangement.6
According to the Agency’s report, Mother was no longer receiving
unemployment benefits but had completed an application for other financial
assistance. Mother was apparently behind on her rent, and although the
social worker had requested that Mother sign a consent-to-release form so the
agency could consult with the property management company, Mother had
not yet signed one.
N.W. and Minors had unsupervised visits with Mother at her home
three days a week, for up to four hours per visit. There were also at least two
unauthorized overnight visits. Mother initially denied that the overnight
visits had occurred, but later said she was not aware that overnight visits
required approval. The children’s caregiver, K.J., informed the agency that
although she was aware that overnight visits required approval, she and
6 J.R.’s father subsequently told the Agency that he had arranged for
J.R. to visit with Mother weekly to support his work schedule and had not
arranged for her to live permanently with Mother. He reported that it was
difficult maintaining remote school learning when J.R. is with Mother: the
background would be loud when J.R. logged on the computer, or J.R. would
not log on consistently. J.R.’s father stated that although he had no concern
about J.R. visiting with Mother, his family members have expressed concern
about Mother’s ability to meet J.R.’s needs.
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Mother were “living in the same apartment complex,” and she was trying to
avoid “verbal disagreements” with Mother.
During a visit in October 2020 that was observed by the social worker,
R.P., then age 5, placed an extension cord into an uncovered electrical outlet
in a wall. When the social worker encouraged mother to redirect R.P.’s
behavior, Mother referred to R.P. as “the bad child.”
K.J. had reported to the Agency that during December 2020, Mother
had left her home during visitation, leaving N.W. to supervise Minors and
Mother’s six-month-old baby. K.J. reported that on Mother’s return she had
expressed to Mother that the children should not be left alone. But later, at a
Child and Family Team meeting where Mother was present, K.J. said she
had no worries about the children being left alone in Mother’s home, and was
not aware that Minors had been left to be cared for by N.W.
The Agency could not determine the extent to which Mother had been
participating in independent living and parenting support services. Mother
reported that the providers visited her home consistently during the
reporting period, but the providers indicated otherwise. Ms. Ward had been
on leave in October, November and December 2020; her last in-person contact
was at the end of September, at which time she had observed scheduled
visitation at Mother’s home. Ms. Ward stated that at the visit, Mother
appeared overwhelmed in managing the children’s needs. The coordinator
who had been working with Mother in Ms. Ward’s absence, Ms. Freeman, had
met with Mother in person at least once in late November 2020. The Agency
encouraged mother to reach out to her network and the Regional Center
providers for additional support of her visitation program.
Minors were happy living with K.J. and visiting with Mother. N.W.,
however, who was then 15 years old, wanted to return to Mother’s care. At
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times, when N.W. felt the need to “take a break” from her siblings and K.J.,
she would leave K.J.’s home and go to Mother’s.
The Agency expressed concern that Mother appeared overwhelmed
during visits, relied on “yelling” at the children to redirect their behaviors,
and had not progressed to overnight visitation. The Agency also expressed
concern about the status of Mother’s housing, and concern that Mother had
not shown she could make use of her identified network in meeting her
children’s needs. Although Mother had acknowledged that the children
required supervision to make sure they are safe and not exposed to
hazardous situations, the Agency was concerned that Mother appeared
“fixated” on R.P.’s August 2019 near-drowning, which she continued to blame
on the child himself, and had not recognized the need to support her
children’s safety in all settings, including her home. Mother referred to R.P.
as the “busy or bad” child.
At a hearing on February 3, 2021, the court set the matter for a
contested hearing.
2. Addendum Reports Filed on March 19 and April 30, 2021
The Agency prepared addendum reports in advance of the contested
hearing, which was held on May 3, 2021.
The Agency reported on some positive developments: Mother’s rental
fees had been paid in full and Mother had completed the necessary
documents to apply for emergency rental assistance; in February 2021,
Mother’s visits with the children had increased in length to eight hours each;
and Mother was participating in virtual parenting education with in-person
follow ups that appeared to Mother’s instructor to be helpful.
The Agency reported concerns about Mother’s ability to supervise the
Minors and control her anger and frustration. In late February 2021, the
13
social worker went to Mother’s home to observe visitation, having confirmed
by phone that a visit would be observed and providing a text reminder the
day before the visit. R.P. opened the door for the social worker without
permission. The worker stayed outside until Mother gave permission for her
to enter; Mother appeared frustrated that the social worker was there.
Mother yelled at R.P. and T.P., telling them not to open the door, berating
them for having done the same thing at K.J.’s home, and telling them that if
they didn’t return to her home (at the conclusion of the dependency
proceedings) it would be their fault. The social worker tried to redirect
Mother to give the children safety reasons why it was not a good idea to open
the door. Mother continued to yell and use profanity, and “was unable to
contain herself” in the presence of the children and the social worker, to such
an extent that the social worker left.
While K.J., the caregiver with whom the children had continued to live,
was traveling out of state for about 10 days in early March 2021, Minors and
N.W. were placed together in a different home.7 The temporary caregiver
reported that Mother had spoken to her over the phone and started to yell
and curse at her to the point that the caregiver asked to hang up.
7 On March 3, when the social worker spoke by phone with K.J. to
confirm the arrangements for respite care, K.J. informed the social worker
that N.W. would not have her phone with her because Mother had broken it a
few days before, when she became angry with N.W. for not watching the
other children. On March 11, N.W. told the social worker that she had
broken the phone herself by dropping it, but on March 17, Mother and N.W.
admitted that Mother broke the phone when she became upset with N.W.
Mother said she had become upset when she saw an inappropriate post on
social media. She broke the phone even though she knew that N.W. used the
phone to complete school assignments.
14
On March 14, 2021, a different social worker went to Mother’s home to
observe visitation. Mother began speaking about the assigned social worker
and became upset; the social worker asked Mother to step outside “in efforts
to help regulate the mother in order to continue to observe the visit.” The
visit did continue, and at one point, R.P. grabbed a cord on a fan. Mother
yelled at R.P. to leave it alone, and told the social worker that R.P. is her wild
child and she always had to tell him multiple times not to do things he
shouldn’t.
On March 17, 2021, K.J. gave the Agency a 14-day notice for all the
children, indicating that she was no longer willing to provide their care. K.J.
stated that the previous day, March 16, N.W. had intervened in a conflict
between K.J. and one of K.J.’s two granddaughters (who also lived with K.J.),
which led to an argument between K.J. and N.W. According to the agency,
“Neither individual was able to contain themselves,” with the result that K.J.
asked N.W. to spend the night at Mother’s home; then Mother made threats
to K.J. over the phone that someone would harm K.J. as a result of N.W.
leaving the home and “the ongoing conflicts.”8 K.J. reported to the Agency
that Mother had left N.W. alone to supervise Minors and Mother’s then 8-
month-old baby, and that in her view Mother’s choices concerning men living
in her home was a distraction to Mother’s ability to care for her children.
Starting in late March 2021, Mother had much less visitation with her
children. On March 27 and 28, and again on April 2 and 3, Mother visited
with the children but did not keep them for the full eight hours. Mother told
K.J. the children were “acting up” and asked that they return to K.J.’s home.
Then, on April 4, Mother informed K.J. that she was leaving town; there was
There had apparently been ongoing arguments and conflict between
8
Mother and K.J. since September 2020.
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no visitation between then and May 3, 2021, the date of the contested hearing
(at which Mother appeared by video). On April 8, Mother left a voicemail for
the social worker stating that she was dealing with an urgent family matter
that required her to travel to Kentucky. On April 15, Mother informed the
social worker in a phone call that she would return to California on April 25.
The social worker left a voicemail for Mother on April 26 and spoke with
Mother by phone on April 29: Mother stated she had been dealing with car
and phone issues that had prevented her from returning to California, but
she was planning to return in the next few days. At the May 3 hearing, the
Agency’s counsel reported that the best information they had was that
Mother was still out of state.
Mother continued to receive 35 hours per month of independent living
skills support and 20 hours per month of parenting support, including in-
home services. Ms. Ward, Mother’s independent living skills coordinator,
stated in March 2021 that Mother’s parenting goals remained unchanged
since the last reporting period because Mother had not made enough progress
toward the goals. The Agency attached an independent living skills annual
report and a parenting annual report, both dated March 4, 2021 and
prepared by Le Blanc. The independent living skills report stated that
Mother had found affordable housing and shown “improvement with
mealtime and cooking full meals,” and continued to need assistance in
multiple areas including learning time management and keeping her
appointments with Le Blanc staff; budgeting and paying bills on time;
“communication with professionals in an appropriate [manner] keeping
herself calm”; learning to set and keep medical and dental appointments;
“learning to maintain healthy relationships without verbal outbursts”;
“learning that it’s ok to have differences of opinions and discussions without
16
chaos”; learning proper food storage and kitchen safety techniques; learning
emergency procedures and contact information; and creating an evacuation
plan. The parenting annual report stated that Mother needed support with
communication with her children’s doctors and teachers, with learning to set
and keep the children’s medical and dental appointments and keeping their
immunizations current. Mother would continue receiving support and
assistance with learning organizational skills to maintain her living space.
Safety and community awareness remained a goal for Mother: Le Blanc
would “continue to support the client with education and instruction on
safety awareness in the home: keeping cleaning supplies put away, not
opening the front door, keeping sharp objects away from children’s reach.” In
addition, Mother would “continue to receive assistance with learning to keep
her children safe when at outings and events in the community, keeping
them within her eye sight and reach at all times, and providing another adult
to assist her when on outings.” And she would “continue to receive assistance
with learning emergency procedures with injuries, poison control, and first
aid.”
The Agency concluded that Mother had not demonstrated that she
could meet the children’s needs for safety and supervision, despite 18 months
of services facilitated by the Regional Center. The agency also expressed
concern that Mother’s struggle to regulate her emotions and behavior were
harmful to the children’s safety and well-being, as well as destabilizing to the
children’s placement.
In light of the 14-day notice given by K.J., who had been caring for
N.W. and the Minors since February 2020, the Agency revised its February
2021 recommendation. Rather than recommending K.J. as guardian, the
Agency recommended that another living arrangement be made with the goal
17
of legal guardianship.9 Mother continued to disagree with the
recommendations; she wanted the children returned to her care. N.W. also
disagreed with the recommendations and wanted to be returned to her
Mother’s care. Minors continued to report the desire to live with K.J. and
visit with Mother.
3. Contested Hearing – May 2021
At the May 3, 2021 contested hearing, the Agency rested its case-in-
chief after the court admitted the Agency’s reports into evidence. The
children’s counsel submitted with the statement that her clients wanted to be
returned to Mother. Mother called Ms. Ward as her single witness.
Ms. Ward testified that she had been Mother’s independent living skills
worker for about two years. She testified that Mother could receive Le
Blanc’s services indefinitely: as long as she continued to be a client of the
Regional Center, she would be a client of Le Blanc. The services were
voluntary, and Mother did not have to participate if she did not want to do so.
Ms. Ward said that it was “a struggle getting [Mother] to participate when
we first got her for a client,” but that began to change a couple of months in,
when Ms. Ward showed up at court with her in connection with the criminal
case arising from the near-drowning incident.
With respect to “Safety and Community Awareness,” which were
identified as goals in Le Blanc’s independent living skills and parenting
annual reports, Ms. Ward explained that safety awareness had been a goal
since she had started working with Mother, and it remained a goal especially
now that Mother had her own apartment. Safety awareness training
9As of a March 2021 Child and Family Team meeting, the children
were to remain with K.J. while one of the children’s relatives was being
assessed for placement.
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included things like keeping cleaning supplies put away from the children,
putting locks on cabinet doors, and being aware of her surroundings in public.
Ms. Ward testified that Mother’s goals had not been updated or
changed between September 2020 and February 2021. The reports, she
explained, “state[ ] what we’re continuing to work on with the client.” New
goals could be added, “[b]ut if they’re continuing to work on the same things,
then that’s what . . . we put there. We put what they have been working on
and what they will continue to work on.” When Mother’s counsel asked Ms.
Ward whether she had seen progress from Mother on her goals between
September 2020 and February 2021, Ms. Ward responded, “Um, I don’t know
how much. That’s just a couple of months. So I’ve seen progress that she’s
made during the time that I’ve been working with her, but as far as just
within these couple of months, I know that she’s, you know, communicating
more. She’s trying. She’s—she started going to—you know, attending the
parenting classes. She even called me and asked me to remind her; can I call
her and remind her right before the class starts. That’s how much she’s
trying to work on these things. I feel like that’s progress, you know, within
just these couple of months that she’s really trying to, you know, take care of
her responsibilities, and do what she’s supposed to do, if that’s what you’re
asking.”
Ms. Ward testified that in 2021 she had seen mother once a week in
person at Mother’s home, staying about three hours each time. In 2020 and
2021 she had in-person contact with Mother at least four times during
Mother’s visitation; she had been present in the home when N.W. and Minors
were there, and had not observed N.W. assisting with the care of Minors or
the baby.
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According to Ms. Ward, Mother had made progress in managing her
frustrations: she was getting better at communicating, even if she was
crying, and was less often “just blowing a fuse.” She stated that a specific
trigger for Mother was becoming “overwhelmed with having to have so many
different visits” from different service providers, including the social worker
and providers from Le Blanc. She had seen Mother “emotionally escalated,”
where she was upset and frustrated, and had seen her getting frustrated with
the children and yelling at them, but had never seen Mother hit any of the
children.
After Ms. Ward testified, the court heard argument.
Mother’s counsel argued that the court should return all the children to
Mother immediately, or alternatively, return N.W. immediately and continue
reunification services for Minors to the 24-month mark.
The children’s counsel said that she shared the Agency’s concerns
regarding Mother’s ability to parent. Mother had not been able to
demonstrate that she could use the services she had received in her daily
interaction with the children. Mother’s ability to care for the children
remained at issue. The children’s counsel thus could not agree that the
children should return to Mother’s care.
After argument, the court explained that the question was whether all
the children could return to the home because there was no substantial risk
of detriment, whether just N.W. (then 15 years old) could return because
there was no substantial detriment to her, or whether none of the children
could return because of the substantial risk of detriment. As to the
possibility of continuing services, the court stated, “I don’t know what the
basis would be for extending services to 24 months, which would just be three
months from now anyway or so. . . . [I]t’s not as if reasonable services have
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not been offered. They have. . . . [T]he Regional Center continued to infuse
services into mother’s life, whether they be virtual and/or in-person even
during the pandemic.” The court expressed concern that Mother continued to
talk about R.P., the child who almost drowned, as “just busy” and “a bad kid,”
as if “this is his fault,” and not taking responsibility for “the part of this that
is hers, which when you have a child that young, it’s all yours. It’s your
responsibility to supervise your children.” And the court expressed concern
that as recently as March, when R.P. opened the door for the social worker,
Mother told the children that if they were not returned to her it would be
because of them.
The court announced its decision at a hearing on May 11, 2021. The
court noted that N.W. would turn 16 in a few months, and was able to care
for herself to the extent that there was not a substantial risk of detriment to
her and ordered her returned to Mother’s care with family maintenance
services. But as to Minors, then age 7, 6, and 4, the court found that their
return to Mother would create a substantial risk of detriment to their safety,
protection, or physical or emotional wellbeing. In part, that finding was
based on Mother not making substantial progress in complying with the case
plan and not alleviating or mitigating the causes necessitating out-of-home
placement. The court terminated reunification services and set a hearing to
select a permanent plan for Minors under section 366.26. Mother’s petitions
timely followed.
DISCUSSION
A. Applicable Law and Standard of Review
As provided by section 366.22, within 18 months of a child being
removed from his or her parent’s care, the dependency court “shall order the
return of the child to the physical custody of his or her parent . . . unless the
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court finds, by a preponderance of the evidence, that the return of the child
. . . 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).) The
Agency has the burden of establishing that detriment. (Ibid.) A showing of
detriment does not “ ‘mean merely that the parent in question is less than
ideal, did not benefit from the reunification services as much as we might
have hoped, or seems less capable than an available foster parent or other
family member.’ [Citation.] Rather, the risk of detriment must be
substantial, such that returning a child to parental custody represents some
danger to the child’s physical or emotional well-being.” (In re Yvonne W.
(2008) 165 Cal.App.4th 1394, 1400 (Yvonne W.).)
In making its findings, the dependency court is to “review and consider
the social worker’s report and recommendations and . . . the efforts or
progress, or both, demonstrated by the parent . . . and the extent to which he
or she availed himself or herself of services provided.” (§ 366.22, subd. (a)(1).)
If the child is not returned to his or her parent, the court must “specify the
factual basis for its conclusion that return would be detrimental.” (§ 366.22,
subd. (a)(2).)
Under section 366.22, “ ‘if a child may not safely be returned to the
child’s parents within a maximum of 18 months from removal from the
parents’ care, the trial court must terminate reunification efforts and set a
section 366.26 hearing.’ ” (In re Andrew L. (2004) 122 Cal.App.4th 178, 190-
191.)
We review dependency court orders under section 366.22, subdivision
(a), for substantial evidence, considering the evidence in the record favorably
to the prevailing party and resolving all conflicts in support of the trial
court’s order. (Yvonne W., supra, 165 Cal.App.4th at pp. 1400-1401.)
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“ ‘Substantial evidence’ means evidence that is reasonable, credible and of
solid value; it must actually be substantial proof of the essentials that the law
requires in a particular case.’ ” (Id. at p. 1401.)
B. Analysis
There was substantial evidence before the dependency court to support
its finding that returning Minors to Mother’s care would create a substantial
risk of detriment to Minors’ safety, protection, or physical or emotional well-
being. (§ 366.22, subd. (a).)
Minors came to the dependency court’s attention because Mother left
her children unattended at a swimming pool when none of them knew how to
swim. This happened on two consecutive days, and on both days one of the
children nearly drowned. In addition, the children reported other incidents of
near-drowning. Further, the record reflects that Mother’s school-age children
did not attend school regularly while under Mother’s care, and that both T.P.
and R.P. had extensive untreated dental decay, and that neither R.P. nor
A.P. were up-to-date on their immunizations. All of this reflects Mother’s
inability to adequately supervise Minors. Appropriately, then, starting with
the six-month review, the primary goal of the case plan was that the
children’s caregiver could “provide supervision, attend to their needs, and [be]
able to assess potentially hazardous situations (preventing drowning) to
ensure physical safety of the children.”
The dependency court’s decision to terminate reunification services was
made in the face of substantial evidence that, despite the services that had
been provided, Mother could not adequately supervise Minors, three very
active children aged 4 to 7, or assess situations that were hazardous to them.
As a result, returning them to her care would pose substantial risk to their
physical safety and well-being.
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The evidence included the fact that after more than a year of services,
Mother had not progressed to overnight visits. Even more important, after
Mother’s visits with Minors were increased from four to eight hours in
February 2021, Mother showed herself unable to supervise Minors during the
extended visits. In the week before her abrupt April 4, 2021 departure from
California, Mother cut short four visits because she could not manage the
children “acting up,” and she had not seen them at all in the month preceding
the contested hearing.
There was further evidence in Mother’s independent living and
parenting annual reports and the testimony of Ms. Ward. Mother’s goals,
including those pertaining to family safety and community awareness had
not changed from September 2020 to February 2021. Mother continued to
need instruction on safety awareness in the home, and she needed to learn to
keep her children safe on outings and in the community, to keep them within
her sight and reach, as well as learning emergency procedures with respect to
injuries, poison control and first aid.
There is more evidence in Mother’s apparent failure to recognize the
hazards associated with a small child grabbing a cord attached to a fan, or
plugging in an extension cord, or opening the front door without permission.
Her response to those situations was to criticize Minors, rather than
recognizing her responsibility for supervising and instructing them.
In addition, there was evidence that Mother continued to require her
older daughter N.W. to supervise Minors, even after the events that led to the
dependency proceedings. Although K.J. retracted one of her statements
about Mother leaving N.W. to care for her younger siblings, and although
Mother denied that she had done so, the dependency court could have
concluded K.J.’s original statement was true. K.J.’s retraction was made at a
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meeting where Mother was present; as the Agency observes, in light of
“Mother’s tendency to become emotionally escalated and confrontational, and
[K.J.’s] interest in minimizing conflict with Mother, it is not surprising that
[K.J.] changed her story.” In addition, K.J. later reported that Mother had
broken N.W.’s phone in anger over N.W. not watching her siblings. Mother
points out that “[s]upervising younger siblings, within reason, is what elder
siblings do, particularly in large families.” (First italics added.) True, and
the reasonableness of such supervision depends upon the circumstances.
Here, there was evidence that Mother herself could not adequately supervise
Minors. Two adult caregivers (K.J. and the substitute caregiver with whom
Minors stayed in March 2021) reported challenges in supervising Minors,
particularly in regard to R.P. and A.P.’s rough-housing, fighting, and kicking.
K.J. reported that N.W. often had difficulty concentrating and completing
tasks, and appeared “confused” when given directions, and N.W. herself had
expressed concern about having responsibility for her siblings. In these
circumstances, the dependency court could conclude that leaving Minors
under N.W.’s supervision was evidence of Mother’s failure to adequately
supervise Minors, and evidence that returning Minors to Mother’s care would
expose them to substantial risk to their safety and physical well-being.
Minors’ safety and physical well-being were not the only risks from
returning Minors to Mother’s care. There was evidence that Mother’s
inability to take responsibility for supervising Minors and her blaming them
for the results of her lack of supervision created substantial risk of detriment
to their emotional well-being. Mother failed to acknowledge her own
responsibility for supervising her children: she persisted in blaming R.P. for
the near-drowning, continued to refer to him as a “bad child,” and told T.P.
and R.P. it would be their fault if they did not return to her. As the
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dependency court remarked at the contested hearing, Mother’s “lack of
insight is really disturbing and does create emotional straining for children,
that they carry for the rest of their lives if they feel like they’re responsible
for what would be considered the wors[t] thing that ever happened in their
lives, when the mother’s lack of supervision and support is what caused the
problem in the first place.”
Mother argues that she participated regularly and made substantive
progress in reunification services. Mother’s efforts are to be commended: she
persevered with reunification services in the face of her developmental
disability, the COVID pandemic, the birth of her seventh child, and the
challenges of interacting with multiple service providers. And we recognize
that Mother made some progress: Mother found stable housing, and,
according to Ms. Ward, was learning to manage her frustrations and
communicate with her service providers. Despite Mother’s efforts, however,
there was ample evidence to support the dependency court’s findings that
Mother’s progress had not been substantial; that the issues that brought the
case to court had not been resolved; and that returning Minors to Mother’s
care created a substantial risk of detriment to their safety, protection, or
physical or emotional well-being.
DISPOSITION
The petitions are denied. Our decision is final as to this court
immediately. (Cal. Rules of Court, rules 8.450(a), 8.490(b)(2)(A).)
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_________________________
Miller, J.
WE CONCUR:
_________________________
Kline, P.J.
_________________________
Richman, J.
A162641, L.W. v. Superior Court
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