Y.R. v. Superior Court CA4/2

• Court: California Court of Appeal
• Decided: October 10, 2023
• Docket: E081720
• Status: Unpublished

Opinion

Filed 10/10/23 Y.R. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Y.R.,

Petitioner, E081720

v. (Super.Ct.Nos. J291079 & J291080) THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, OPINION

Respondent;

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Real Party in Interest.

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Cara D. Hutson,

Judge. Petition denied.

Friedman and Cazares, and Valeria Sosa-Sandoval, for Petitioner.

No appearance for Respondent.

1 Tom Bunton, County Counsel, and Pamela J. Walls, Special Counsel, for Real

Party in Interest.

The juvenile court terminated family reunification services for petitioner Y.R.

(mother) and set a Welfare and Institutions Code section 366.26 hearing.1 She seeks an

extraordinary writ, arguing there was insufficient evidence to support the court’s

conclusion that returning her children to her posed a risk of detriment to them. We deny

the petition.

BACKGROUND

Mother has three children, the youngest two of which are the subjects of this

dependency: K.R. (born 2005), A.O. (born 2018), and E.R. (born 2019). K.R. is not a

subject of this dependency because he turned 18 during the proceedings. Mother and

father began living together in 2001 and married in 2013.

Mother had two other dependency cases before this one; one from May to

October 2018, and another from August 2019 to July 2020. Both involved substantiated

allegations of substance abuse and family maintenance services.

In October 2021, mother was charged with possession of controlled substances. A

little less than two weeks later, mother led police on a high-speed chase with a stolen car,

driving 70-80 miles per hour and through red lights with E.R. in the car. Police followed

her to the motel where she was staying with father and her two youngest children.

Mother fled into the motel, leaving E.R. in the car. Police arrested mother. They also

1 Undesignated statutory references are to the Welfare and Institutions Code.

2 arrested father on suspicion he was involved in the theft of the vehicle. San Bernardino

County Children and Family Services (the department) received a referral alleging

neglect of all three children.

The department filed petitions under section 300 for all three children, though only

those pertaining to A.O. and E.R. are relevant here. The petitions alleged, among other

things, that mother was incarcerated and therefore unable to provide care, and she had a

substance abuse problem which impaired her ability to provide care. The court held a

detention hearing, found the petitions stated a prima facie case, removed the children, and

ordered supervised visitation for the parents whenever they were released from custody.

Mother pled guilty to the charges related to her high-speed chase and was

sentenced to a year-long child abuse prevention class. The department spoke to her in

November 2021, after her release, and she denied any drug use, despite her recent charge

for possession of controlled substances. The department recommended reunification

services but noted that “[mother] will need to fully engage and show benefit from the

treatment services,” because this was the third time the department had intervened due to

her substance abuse.

As of February 2022, father claimed to have moved into a new home, and mother

claimed she was not planning to move in with him. Mother started services but had not

started drug treatment and missed four of six drug tests. The parents participated in

mediation, where they agreed to certain reunification services and agreed not to contest

3 jurisdiction. At the jurisdiction/disposition hearing, the court ordered supervised

visitation and reunification services.

In March 2022 the children’s caregiver requested that the children be placed

elsewhere due to issues with father. The caregiver reported father would ignore the

caregiver, give the children candy, and be dismissive during visits. The children were

placed with a maternal relative, but the parents’ visitation issues became worse. The

parents argued in front of the children during visits, which eventually caused the

department to confront them. In particular, father yelled at mother, blaming her for the

dependency. The parents also made promises to the children about visits, but were not

consistent with visitation. The caregivers reported that the children were more defiant

after visits, and that after one visit A.O. defecated on herself for three days despite being

toilet-trained.

In June 2022 the department received a referral alleging father sexually abused

A.O.

As of August 2022, the department was still investigating father’s alleged sexual

abuse. Mother was living with father and had been terminated from her year-long child

abuse program. However, she completed her services as of July 29, 2022, and

consistently attended and tested negative at drug tests.

The department expressed concern that mother was the victim of domestic

violence. The department was informed that father did not allow mother to attend

services alone, that he had cameras in the home, and that he would not permit mother to

4 video call the children without him present, among other controlling behaviors. Mother

denied any domestic violence, but admitted father yelled at her and they struggled with

communication. Accordingly, at the six-month review hearing the court ordered separate

supervised visitation and domestic violence referrals. It also ordered the department to

separately assess the parents for unsupervised visits.

The department filed new petitions for the children in October 2022 alleging father

sexually abused the children and mother failed to protect them. A.O. showed a forensic

interviewer how father touched her genitals, explained that father touched her “ ‘pee-

pee’ ” hard, and said it hurt. A.O. said mother was home in another room and her older

sibling K.R. was not home when it happened. Mother speculated that the alleged abuse

could have occurred under a foster father, but A.O.’s story was clear that mother and

K.R. were living with them at the time, and she identified a photo of father as the

perpetrator. A foster father also reported seeing A.O. engage in sexualized behavior

once—touching another child on her private parts and trying to kiss her on the mouth.

The court held a detention hearing on this second petition, and found the petition

stated a prima facie case. It vacated the following review hearing and set a

jurisdiction/disposition hearing on the second petition for that date instead.

In November 2022 the court set a contested jurisdiction/disposition hearing for

January 2023. It also informed the parents that it would consider terminating

reunification services after the hearing.

5 At the contested jurisdiction/disposition hearing, the court modified the sexual

abuse allegation to allege only that father inappropriately touched A.O. causing her pain

and putting her at risk of sexual abuse. It then found the allegation true as modified, and

dismissed the allegations that mother failed to protect the children. Accordingly, the

court continued reunification services to both parents. It also ordered unsupervised

visitation for mother, but instructed mother that she was not to have any contact with

father during these visits.

According to mother, she and father started living separately sometime in

December 2022. In February 2023 father told the department he and mother were living

in the same apartment complex but in different apartments. However, they were

otherwise still together, and father said their plans were to reunite and live together again.

Mother had her first unsupervised visit the same month. After the visit E.R. told

the caregiver she saw father. A.O. initially disagreed but then admitted they did see

father. A.O. said mother had told them not to tell the caregiver. A.O. also told the

caregiver that father had promised to take her to get her nails done. Father told the

children not to behave at the caregiver’s home and promised they would be returning to

live with mother and father. Shortly after unsupervised visits started E.R. started

throwing tantrums and urinating on herself when she was upset. E.R. also woke up

crying and saying, “no daddy.”

6 In March the department spoke to mother, who acknowledged that she was not to

have contact with father during visits. She denied that they did. She said the children

were lying about seeing father, and that she talked to them about not lying. She also told

the department she was separated from father and planned to raise the children alone.

However, later that month the department received a report that mother took the

children to her home during a visit and that father was there as well. Mother denied this

and provided a receipt showing she had gone to a McDonald’s, a seven-minute drive

from where the caregiver had dropped her and the children off. Nevertheless, the

department temporarily transitioned back to supervised visitation. A.O.’s behavior

improved after the transition.

As of April 2023, mother was participating in services, had completed portions of

her case plan, entered a drug treatment program, and consistently tested negative for

drugs.

Despite mother’s progress on her case plan, the department recommended

terminating reunification services. The department made this recommendation in large

part because it believed mother was not following visitation guidelines, was giving father

access to the children, was not forthcoming with the department, and was generally

failing to protect the children.

7 The court held a contested 18-month status review hearing in July 2023. Mother,

father, and the social worker testified at the hearing. After hearing testimony and

argument, the court expressed concern about mother’s ongoing relationship with father

and the credibility of her testimony. Specifically, it understood “that [mother] and

[father] still love each other very much,” and that “[father] wants to get back together.”

The court found it hard to believe “that [mother] and [father] live within ten minutes of

each other, yet [mother] doesn’t even know where he lives,” saying that “defies

credibility.” Moreover, the court was skeptical of mother’s testimony and intentions

generally, saying “[mother] only wants her kids back so she’s saying whatever the Court

wants to hear in order to get the kids back,” and “if part of that plan involves reunifying

with [father] it will be an issue.” Finally, the court was “greatly disturb[ed]” by the

“external indicia by the children of the way their bodies are reacting and acting out.”

Accordingly, the court found the department had provided reasonable reunification

services, that both parents were actively involved in their case plans, but that returning

the children to their custody would be detrimental and that the extent of the parents’

progress was minimal. The court terminated reunification services, set a permanent plan

of adoption, and set a section 366.26 hearing.

DISCUSSION

Mother contends that the juvenile court erred in terminating her services and

setting a permanency planning hearing because there was no evidence of risk of

detriment to the children. We are not persuaded.

8 When a court removes a child under the age of three from the physical custody of

their parents, the court must order reunification services for at least six months from the

dispositional hearing, but no longer than 12 months from the date the child entered foster

care, unless the child is returned to the parent’s home. (§ 361.5, subd. (a)(1)(B).)

However, services may be extended up to 18 months from the date the child was removed

from the parent’s physical custody if the court finds a substantial probability that the

child will be returned to the parents’ physical custody within that time, as was the case

here. (See § 361.5, subd. (a)(3)(A).)

At an 18-month review hearing a court must return the child “unless the court

finds, by a preponderance of the evidence, that the return of the child to their parent or

legal guardian would create a substantial risk of detriment to the safety, protection, or

physical or emotional well-being of the child.” (§ 366.22, subd. (a)(1).) “We review an

order terminating reunification services to determine if it is supported by substantial

evidence.” (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688.) “In making

this determination, 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.” (Id. at pp. 688-689.) “[A]ll conflicts are to be resolved in favor of

the prevailing party, and issues of fact and credibility are questions for the trier of fact.”

(In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.)

“Though usually the case, a parent’s compliance with the case plan is not a

guarantee the child will be returned to the parent.” (In re Jacob P. (2007) 157

9 Cal.App.4th 819, 830.) Indeed, courts considering whether to terminate reunification

services can consider a wealth of other factors. Most importantly for our purposes, these

factors include “whether the natural parent maintains relationships with persons whose

presence will be detrimental to the ward,” and “the manner in which the parent has

conducted himself or herself in relation to a minor in the past.” (Constance K. v.

Superior Court (1998) 61 Cal.App.4th 689, 705.)

Substantial evidence supports the juvenile court’s finding that mother was

maintaining a relationship with father, and therefore that returning the children to mother

posed a substantial risk of detriment. The court found true the allegations in the second

section 300 petition that father inappropriately touched A.O., and so father posed a

genuine risk of harm to the children. Nevertheless, there is ample reason to believe that

mother allowed father to have contact with the children during her unsupervised visits in

violation of court orders. Both children reported seeing father during visits with mother,

and even provided detailed stories about promises father made to them and statements he

made instructing them to misbehave at their placement. E.R. also started misbehaving

after transitioning to unsupervised visits, urinating on herself and crying out “no daddy”

in her sleep. When they transitioned back to supervised visits with mother, there were no

further reported issues with E.R. and the caretakers reported A.O.’s behavior improved.

All this evidence suggests that not only was there a risk that mother would allow contact

between father and the children, but that she had already done so.

10 There was also substantial evidence to allow the court to conclude mother would

continue to allow father access to the children. While mother claimed to be separated,

she always lived near father—at some points in the same complex—was still married to

him, and generally appeared to still have a close relationship to him. Meanwhile, father

was clear that he believed they were still together and that they had plans to reunite.

These facts alone are sufficient to conclude that mother would continue her relationship

with father and otherwise give him access to the children despite the risk of danger he

posed.

Mother argues this evidence is not sufficient because there is no independent

corroboration of the claims that she allowed father to see the children aside from what the

children told the department. That may be so, but that is a factual and credibility dispute

which the juvenile court has already decided and which we cannot reconsider. The

question on review is not whether the trial court’s factual determinations are compelled

by the record, only whether they are sufficiently supported. On that question we agree

with the juvenile court that the children’s statements, father’s statements, the children’s

behaviors, and the circumstantial evidence that mother and father lived near each other,

were sufficient to conclude returning the children to mother posed a risk of detriment to

the children.

Accordingly, we conclude the juvenile court’s decision to terminate reunification

services and set a section 366.26 hearing was supported by substantial evidence.

11 DISPOSITION

We deny the writ petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL J. We concur:

McKINSTER Acting P. J.

FIELDS J.