Filed 9/9/15 C.M. v. Super. Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
C.M.,
Petitioner, E063909
v. (Super.Ct.No. RIJ1301197)
THE SUPERIOR COURT OF OPINION RIVERSIDE COUNTY,
Respondent;
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Jacqueline C.
Jackson, Judge. Petition denied.
David A. Goldstein for Petitioner.
No appearance for Respondent.
1 Gregory P. Priamos, County Counsel, and Julie Koons Jarvi, Deputy County
Counsel, for Real Party in Interest.
At the 18-month review hearing, the juvenile court terminated petitioner C.M.’s
(Mother) reunification services and set the Welfare and Institutions Code section 366.261
hearing. Mother filed a petition for extraordinary writ in which she contends the juvenile
court erred in determining there was a substantial risk of detriment to H.G. (minor; born
July 2013) if returned to Mother’s custody and that it was in minor’s best interest to
extend services to Mother to enable her to obtain suitable housing. The petition is
denied.
I. FACTS AND PROCEDURAL HISTORY
On October 28, 2013, police arrested Mother on charges of felony infliction of
corporal injury after she hit Father2 numerous times, causing him to sustain injuries. The
police indicated the parents had a significant history of domestic violence requiring
police intervention on numerous occasions, including the arrest of both parents on
September 7, 2012. The parents lived with the paternal grandparents (PGPs) and the
paternal uncle. Mother had filed restraining orders against Father, the paternal
1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2 Father is not a party to the petition; however, the facts pertaining to Father are relevant to the instant petition because Mother chose to live with Father during nearly the entire pendency of the proceeding below.
2 grandfather, and the paternal uncle citing domestic violence, but later requested dismissal
of the orders and moved back into the PGPs’ home.
The paternal grandmother said that Mother could no longer live in the home after
her arrest. Father had apparently left the home. Mother said she had no other place to
live if the PGPs did not let her return.
Mother had been diagnosed with bipolar disorder. Father informed the social
worker Mother had stopped taking her medication. Father was on probation. There had
been two prior department referrals regarding the parents for general neglect; one had
been determined inconclusive and the other unfounded. The social worker took minor
into protective custody.
Attorneys for real party in interest, Riverside County Department of Public Social
Services (the Department), filed a juvenile dependency petition on October 30, 2013,
alleging the parents had failed to protect minor in that Mother had been arrested for
corporal injury to a cohabitant and the parents had engaged in domestic violence in the
home (b-1 & b-2), Mother suffered from unresolved mental health issues (b-3), Father
abused controlled substances (b-4), and the parents had criminal histories (b-4 & b-5).
On or about October 31, 2013, the juvenile court detained minor. An amended juvenile
dependency petition filed November 18, 2013, alleged Father also suffered unresolved
mental health issues (b-7).
In the jurisdiction and disposition report filed November 20, 2013, the social
worker indicated Mother had been released from jail “on or about October 29, 2013” and
3 had been granted 36 months’ probation. Nonetheless, Mother did not appear at the
detention hearing. The social worker made numerous attempts, to no avail, to arrange a
meeting with Mother in order to interview her. Initially the social worker could not find
Mother. Later, when contacted and a meeting was arranged, Mother failed to appear.
The social worker reported Mother “was not willing to provide me with her
address. She indicated she was living with her Father in Los Angeles, but again, she did
not want to disclose her exact location.” Later still, the social worker was no longer able
to contact Mother. The social worker noted that “as of this writing, it appears [Mother] is
living a transient lifestyle. It is clear she does not have the provision[s] or the ability to
adequately care for [minor] at this time.”
Father reported “‘it’s true I got a cut, and [Mother] was hitting me while the baby
was present. [Mother] kept hitting me, and I walked out of the room but [Mother] kept
following me and hitting me.’” Father admitted he had filed a restraining order against
Mother but had not followed through with completing the process.
In an addendum report dated November 25, 2013, the social worker recommended
the parents receive reunification services. The social worker spoke with Mother on the
telephone on November 20, 2013. Mother admitted she and Father had a history of
fighting and admitted hitting him several times on October 28, 2013. She admitted being
arrested on September 7, 2012, for assault. Mother admitted withdrawing a restraining
order she had previously obtained against Father. Mother said she continued to
communicate with Father by telephone and text.
4 Father’s criminal history consists of several arrests and/or convictions for petty
theft, obstructing a peace officer, and trespass. Father had additional arrests and/or
convictions for vandalism and battery. Mother’s criminal history consists of convictions
for battery, petty theft, and corporal injury to a cohabitant, the offense for which the
instant matter was initiated.
The social worker noted Mother “is very unstable on many levels. She does not
have stable housing, she does not have transportation, and she has limited resources. In
addition, she has significant mental health issues which she is currently not in treatment
for. [Mother] has not yet addressed her probation terms and conditions due to her
domestic disputes with [Father]. Due to her instability, it is recommended that [minor]
remain out of her care.”
The addendum report filed January 9, 2014, focused on Father. Father had been
terminated from one substance abuse program and had inconsistent participation in a
subsequent program. Father continually tested positive for marijuana, failing to provide a
single negative test. He reported he was unable to enroll in a parenting class and resisted
enrolling in an anger management program.
The parents failed to show for the jurisdiction and disposition hearing on January
19, 2014. The juvenile court found the allegations in the petition true, sustained the
petition, found return of minor to the custody of the parents posed a substantial danger to
her safety, removed minor from the parents’ custody, and ordered reunification services
for both parents.
5 In a status review report dated June 20, 2014, the social worker noted Mother was
living with Father again in the PGPs’ home. Father had been arrested on January 8,
2014, for assault with serious bodily injury for biting the paternal grandfather. Mother
completed a 10-week parenting course, but the providers were unable to state whether she
benefitted from the program. Mother failed to follow through with counseling and
medical evaluation monitoring; she was discharged for chronic absences and
noncompliance. The social worker twice referred Mother to domestic violence services,
but Mother left the programs and was discharged for noncompliance. Father had made
appointments for services, but failed to show for them.
In an addendum report filed July 28, 2014, the social worker recommended that
the juvenile court terminate the parents’ reunification services. Father participated in
substance abuse services, but admitted continued use of marijuana. Father failed to
comply with counseling and medical health services. Father’s probation terms required
participation in domestic violence services; however, he had been discharged after failing
to show for appointments. On January 21, 2014, the parents arrived together at the
Department office. The parents stated they were back together. Father said they were
living together at a friend’s home. They changed the restraining order to provide only for
no negative contact because they wished to be together.
In an addendum report filed August 21, 2014, the social worker reported that
Mother was noncompliant with her visitation schedule with minor as she often missed
visits or cut them short. Mother had enrolled in a 16-week anger management program
6 and had seven sessions left to complete the program. Father had not completed, and was
no longer participating in, a substance abuse program. On August 19, 2014, Father
admitted smoking marijuana a week earlier. Father had enrolled in and dropped out of
several anger management programs. At the six-month review hearing on August 26,
2014, the juvenile court continued the parents’ reunification services for an additional six
months.
In the status review report dated December 5, 2014, the social worker again
recommended terminating the parents’ reunification services. The parents were still in a
relationship with one another and living with the PGPs. Father tested positive for
marijuana on September 28 and November 14, 2014. Father admitted using marijuana on
September 3, 2014, and the week previous to the preparation of the report. “When
discussing the Department recommendation to terminate services [the social worker]
explained to [Mother] it was a concern that [Father] was still using substances and it
would be inappropriate to place [minor] in that situation.”
Mother had just enrolled in a domestic violence class on November 10, 2014, but
brought Father to classes with her. Father brought his girlfriend3 to an anger
management class and almost got into a fight with another class member. Father was late
to visitation with minor and was observed to be emotionally abusive to Mother.
3 The record does not specify whether Father’s “girlfriend” was Mother or another woman.
7 In the addendum report filed January 23, 2015, the social worker noted Father was
asked to drug test on December 19, 2014, after minor smelled of marijuana after Father
handled her. Father was told a failure to test would be considered as a positive result.
Father failed to test. Nonetheless, Father tested negative for drugs on November 25 and
December 4, 2014. Father had still failed to complete a substance abuse program. Father
had completed an anger management class, but did not appear to benefit from it. Father
completed a 16-week parenting class, but was recommended to complete a 32-week
course due to Father’s estimated high rate of substance abuse recidivism. Mother had
attended four sessions of therapy in three months, missing eight out of a total of 12
scheduled sessions.
On January 28, 2015, the court ordered Father to complete a hair follicle drug test;
Father failed to show. On February 26, 2015, the social worker filed an addendum report
in which she indicated Father was participating in an aftercare substance abuse program.
Father had been diagnosed with severe obsessive-compulsive disorder, attention deficit
disorder, and depressive disorder. Father had not seen his doctor since July 2014, when
he was given a supply of medication which would have run out in September 2014.
Father subsequently attended counseling on February 4, 2015, when he was given a new
prescription. Mother had completed 11 out of the 52 sessions of a domestic violence
class required for her probation.
In the addendum report filed March 11, 2015, the social worker noted that Mother
had improved her attendance in therapy. Father had a negative hair follicle drug test on
8 February 25, 2015. The social worker observed that the quality of Father’s visits with
minor was poor as he often expressed anger. On March 16, 2015, at the 12-month
hearing, the juvenile court terminated Father’s reunification services, but extended
Mother’s for an additional six months.
On April 23, 2015, the social worker filed the 18-month review report in which
she recommended that the court terminate Mother’s reunification services. Mother had
completed 16 out of the 52 weekly sessions of the domestic violence class required by
her probation. Mother’s therapist reported Mother was doing well.
On March 17, 2015, the social worker “gave [Mother] the number for shelters but
she was unable to write the number [down] so I asked her to come into the office the
following day. On March 18, 2015, I gave her the referral for shelters. I told her she
needed to move out as soon as possible. I spoke to her about standing o[]n her own[,]
being able to support herself[,] and not depending on the [PGPs].” On March 30, 2015,
Mother moved into a shelter, which required her to look for employment and participate
in codependency classes. On April 14, 2015, the social worker went to the shelter where
she was informed Mother had not been taking her medication.
In the addendum report filed May 22, 2015, the social worker noted Mother left
the shelter on April 30, 2015, said she was not sure if she was going to return, and asked
what would happen if she moved back in with Father. Mother had, in fact, already
moved back in with Father. Mother missed two sessions of counseling. During three
9 subsequent visits with Mother, two unsupervised, minor was injured. Mother appeared
overwhelmed by any visits with minor lasting over an hour.
On June 5, 2015, the social worker filed an additional addendum report in which
she noted Mother was participating in another parenting class. Mother had still only
completed 16 out of the 52 weekly sessions of the domestic violence program required by
her probation; however, Mother had completed 11 classes in another domestic violence
program. Mother still appeared overwhelmed during visitation with minor. During the
reporting period, the social worker had found Facebook picture postings of Father with
alcohol,4 drugs, and a gun.
In another addendum report filed June 23, 2015, the social worker reported Mother
had ended a visit with minor on June 5, 2015, after she unsuccessfully attempted to
redirect minor and minor became injured. Mother told the social worker Mother was
considering returning to the shelter. She said she left the shelter because she did not get
minor back. Mother inquired of the social worker how Father could get reunification
services reinstated. Mother said of minor, if “‘we lose her together we lose her.’”
At the section 366.22 hearing on June 24, 2015, Mother testified she had
participated in parenting classes and counseling. She was still living with the PGPs. The
shelter Mother had previously resided in allowed children, but she did not wish to return
there. She had only received one referral for housing from the social worker. Mother
4 Father was under the age of 21 at the time.
10 testified she could live with a friend of Father. She was ready to be minor’s Mother
again.
The court exposited that minor was only three months old when detained and was
now almost two years old: “That is an incredibly long time for parents to have had the
opportunity to reunify on a six-month case by statute.” “And so my concerns with
Mother’s [request] that [family maintenance services] be afforded to her is that I cannot
return her to a household where services have been terminated to Father. It’s an
inappropriate household for [minor] to be returned to.”
The court reasoned that a shelter would have been a good option if Mother had
stayed; however, Mother chose to return to the PGPs’ home: “It’s really Father’s
residence as well and that creates issues that cannot be overlooked.” The juvenile court
found that the return of minor to Mother’s custody posed a substantial risk of detriment to
minor, terminated Mother’s reunification services, and set the section 366.26 hearing.
II. DISCUSSION
A. Detriment
Mother contends insufficient evidence supports the juvenile court’s determination
there was a substantial risk of detriment to minor if returned to Mother’s custody. We
disagree.
“Until reunification services are terminated, there is a statutory presumption that a
dependent child will be returned to parental custody. [Citation.] As relevant here,
section 366.22, subdivision (a) requires the juvenile court at the 18-month review hearing
11 to return the child to the custody of the parent unless it determines, by a preponderance of
the evidence, that return of the child would create a substantial risk of detriment to the
child’s physical or emotional well-being.” (In re Yvonne W. (2008) 165 Cal.App.4th
1394, 1400.) “We review the evidence most favorably to the prevailing party and indulge
in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.]
‘“Substantial evidence” is evidence of ponderable legal significance, evidence that is
reasonable, credible and of solid value. [Citation.]’ [Citation.]” (Tracy J. v. Superior
Court (2012) 202 Cal.App.4th 1415, 1424.)
“[O]ngoing domestic violence in the household where children are living, standing
alone, ‘is a failure to protect [the children] from the substantial risk of encountering the
violence and suffering serious physical harm or illness from it.’ [Citations.]” (In re
M.W. (2015) 238 Cal.App.4th 1444, 1453-1454; accord, In re D.P. (2015) 237
Cal.App.4th 911, 919 [evidence that the mother remained in a relationship with alcoholic
father who committed domestic violence was sufficient to support juvenile court’s
finding of detriment].)
Here, Mother continued to live in a home where Father kept using drugs and
where there had been ongoing domestic violence issues not only between Mother and
Father, but between Father and the paternal grandfather and Mother and the paternal
grandfather and the paternal uncle. The initiating incident in the instant case was
domestic violence between Mother and Father for which Mother was arrested and
12 convicted of corporal injury to a cohabitant. Father reported that Mother was hitting him
while minor was present and continued to hit him as he walked out of the room.
After the Department initiated the proceedings in the instant case, Father was
arrested for assault with serious bodily injury for biting the paternal grandfather. Father
also nearly got into a fight with a class member in his anger management class. Father
displayed anger during visitation with minor and was observed to be emotionally abusive
to Mother. In a later report, the social worker attached a picture of Father from his
Facebook page in which he posed holding a gun.
Mother and Father had both previously been arrested for domestic violence.
Mother admitted she and Father had a history of fighting. Police reported intervening on
numerous occasions at the PGPs’ home in response to incidents of domestic violence.
Mother had obtained a restraining order against Father, the paternal grandfather, and the
paternal uncle; however, she later had the order withdrawn. Likewise, Father had filed
for a restraining order against Mother, but did not complete the process to obtain the
order.
Although there were a number of incidents of domestic violence in the home, the
parents failed to complete services directed at ameliorating the problem. Father’s
probation terms required participation in domestic violence services; however, he had
been discharged after failing to show for appointments. Father had enrolled in and
dropped out of several anger management programs. The juvenile court later terminated
Father’s reunification services.
13 The social worker twice referred Mother to domestic violence services, but Mother
left the programs and was discharged for noncompliance. Eighteen months after Mother
had been granted probation, she had completed only 16 out of the 52 weekly sessions of
domestic violence classes required by her probation. Thus, substantial evidence
supported the juvenile court’s determination that return of minor to Mother’s custody in
the PGPs’ home posed a substantial risk of detriment to minor.
Moreover, Father’s continued drug use added additional support to the court’s
determination of detriment. Father’s abuse of a controlled substance was an allegation in
the original petition which the court found true. However, Father continually tested
positive for marijuana, admitted marijuana use, and failed to complete a substance abuse
program. The Facebook pictures from Father’s profile included in one of the later reports
included photographs of marijuana and defendant posing with a bottle of vodka. Even
though Father had some negative drug tests, he was estimated to have a high rate of
substance abuse recidivism. Thus, Father’s use of alcohol and marijuana also supported
the court’s determination of detriment.
B. Housing Services
Mother essentially contends the court erred in determining the Department had
provided reasonable services because social workers had not offered services directed at
helping Mother find suitable housing. She argues the court should have given Mother an
additional six months of services directed at helping Mother find housing away from the
PGPs. We disagree.
14 “At the 18-month review hearing, the court may continue the hearing under
section 352 if it finds that reasonable family reunification services have not been offered
or provided to the parents. [Citation.]” (Tracy J. v. Superior Court, supra, 202
Cal.App.4th at p. 1424.) “We review the evidence most favorably to the prevailing party
and indulge in all legitimate and reasonable inferences to uphold the court’s ruling.
[Citation.] ‘“Substantial evidence” is evidence of ponderable legal significance, evidence
that is reasonable, credible and of solid value. [Citation.]’ [Citation.]” (Ibid.)
If the social worker contends a parent’s failure to provide suitable housing forms
the basis for a determination not to return a minor to a parent’s custody, the social worker
must establish the department provided reasonable services directed at helping the parent
ameliorate the problem. (In re P.C. (2008) 165 Cal.App.4th 98, 106; In re G.S.R. (2008)
159 Cal.App.4th 1202, 1215-1216; David B. v. Superior Court (2004) 123 Cal.App.4th
768, 793, 795.)
Here, the social worker’s recommendation to terminate Mother’s reunification
services was based not on her failure to obtain suitable housing, but, in part, on her
choice to reside in a home which posed a substantial risk of detriment to minor. Early on,
Mother left the home of the PGPs and said she had no other place to live. The social
worker noted that Mother was living a “transient lifestyle” without “stable housing” and
could, therefore, not adequately provide for minor. However, the social worker
repeatedly attempted to contact Mother and meet with her, to no avail. It is difficult to
15 envision how the social worker would have provided housing services at that point when
Mother failed to make herself available for such services.
Nevertheless, soon thereafter Mother moved back into the PGPs’ home with
Father, where she apparently continued to reside until after Father’s reunification services
were terminated. Although Mother testified the social worker gave her only one shelter
referral, the social worker’s report indicates that the referral contained information on a
number of shelters. Mother moved into a shelter which allowed her to live with minor;
however, Mother chose to move back into the PGPs’ home after only 30 days.
Likewise, although Mother testified at the section 366.22 hearing that she could
live with a friend of Father, she had yet to do so. It is evident from the record that
Mother preferred, and intended to continue, to live with Father at the PGPs’ home.
Mother testified she did not want to return to the shelter. She also indicated an intention
to remain with Father even if that meant she were to lose custody of minor permanently.
Thus, sufficient evidence supported the juvenile court’s determination that the
Department provided reasonable services.
III. DISPOSITION
Mother’s petition for extraordinary writ is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING J.
We concur: 16 McKINSTER Acting P. J.
MILLER J.