Opinion
A153575
04-10-2018
In re Z.M. and H.M., Persons Coming Under the Juvenile Court Law. R.M. et al., Petitioners, v. SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. MSJ16-00901, MSJ16-00902)
I.
INTRODUCTION
Petitioners F.G. (Mother) and R.M. (Father) each filed a petition for an extraordinary writ seeking review of the court order setting a hearing under Welfare and Institutions Code section 366.26 to consider termination of parental rights and a permanent plan for seven-year-old H.M and six-year-old Z.M Petitioners contend the court erred in denying them further reunification services after the 12-month review hearing and in reducing visitation. We deny the writ petitions on the merits.
All further statutory references are to the Welfare and Institutions Code unless otherwise identified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On September 27, 2016, the Contra Costa County Children and Family Services Bureau (the Bureau) filed two separate Juvenile Dependency Petitions under section 300 alleging H.M and Z.M were at risk in Mother's and Father's care because their half-sibling, J.H., had been sexually abused by Father on numerous occasions.
The detention report alleged that 16-year-old J.H. had been sexually abused by Father (her stepfather) and alleged general neglect by Mother. The abuse began in 2010 and consisted of oral copulation and attempted sexual intercourse. J.H. had reported the abuse to Mother and Mother told Father who stated J.H. was lying and "crazy" and Mother believed Father. Mother never contacted the police or sought treatment for J.H.
J.H. reported the sexual abuse to a friend and a counselor at school. When interviewed, Mother stated there had been prior allegations of sexual abuse and they had been investigated without any finding of abuse. Mother stated Father had never touched J.H. inappropriately. She stated J.H. was the product of incest between Mother and her father, J.H.'s grandfather, and J.H. was making allegations because she was confused. Mother admitted the Bureau, the school, and friends had all told her J.H. needed therapy.
J.H. has been raising allegations of sexual abuse for a decade. Her prior abuse allegations were deemed "unfounded" when investigated.
One year prior, J.H. had been committed under section 5150 for suicidal thoughts due to her stepfather's abuse. J.H. had been prescribed anxiety medication. Mother said J.H. took the medication for one week and stopped and Mother never took her for any follow up appointments with a doctor or therapist. Mother failed to seek care for her emotionally distraught child.
Mother refused to create a safety plan for J.H. to stay at a friend's home while the abuse allegations were investigated.
After holding a detention hearing, the court ordered both children detained. On November 9, 2016, neither parent appeared for the jurisdictional hearing. The court sustained the petitions as written and found that the sexual abuse had occurred.
A transcript of the November 9, 2016 hearing is not included in the record on appeal.
In the disposition report, the Bureau recommended family reunification services for Mother and Father. Both parents continued to deny any sexual abuse occurred. Mother was ordered to complete individual therapy, group therapy, couples therapy, and parenting education classes. Mother was also ordered to complete a mental health assessment. Father was ordered to complete individual therapy, group therapy, couples therapy, and parenting education classes as well as sex offender treatment. Both parents were authorized for weekly supervised visits with the children.
In the six-month status report, the Bureau reported that at a family therapy appointment with Mother and J.H., Mother behaved inappropriately. As J.H. attempted to disclose details of her sexual abuse, Mother was smiling and giggling. When J.H. made statements, Mother kept interrupting her and saying: "that did not happen" and Mother repeatedly accused her of lying. The therapist terminated the session. The report notes that Mother's victimization by grandfather may explain her inappropriate behavior and demonstrated the need for her to undergo individual therapy to be able to effectively parent her children.
Mother's individual therapist reported that she was in danger of being dismissed from therapy due to "no show" appointments. Father regularly attended individual therapy and both parents attended couples therapy. The parents attended 16 of the 22 scheduled visits with their children.
The Bureau reported it would be unwise to return the children to the parents because they had yet to address the issues leading to the dependency. Both parents continued to deny J.H.'s allegations of sexual abuse. Under these circumstances, there could be no safety plan to reduce harm to the younger children.
In the 12-month status report in November 2017, the Bureau recommended that the court terminate reunification services for both parents. Mother gave birth to another child in November 2017 without disclosing the birth to the Bureau. Mother continued to have excessive "no shows" and cancellations for individual therapy. Her therapist reported that "her engagement with the therapeutic process remains superficial and not fully honest." She is defensive and continues to defend her husband. "There are still concerns though about her ability to be a protective parent, as she seems to continue to be in denial about the abuse and prioritize her husband over her children."
Mother only attended 7 of 17 of her group therapy sessions and stopped attending altogether in July 2017.
Father had regularly attended his individual therapy sessions. He regularly attended monthly couples therapy but largely remained silent. The results of a risk assessment were that Father was "guarded and anxious" and uncomfortable revealing his sexual history or discussing sexual matters. Father participated in a polygraph test and it showed no signs of deception when he denied sexual abuse of J.H. The doctor who administered the polygraph stated "it is very possible that [Father] answered the assessment in a way that invalidates the results. Therefore, the results . . . should be interpreted with extreme caution." Both parents regularly attended their weekly visits with the children.
The report concluded Mother has not actively engaged in her case plan. She had not engaged in therapeutic services to address her own past trauma or her daughter's disclosure of abuse.
Father was found to be a low to moderate risk for sexually abusing the younger children "which is extremely concerning" given the assessment that he demonstrates hostility to women and justifies sexually abusive behavior.
The parents took no steps to seek medication or treatment for J.H. after she stated she wanted to commit suicide. They continue to state that J.H. is lying or crazy. The Bureau cannot identify any "learned insight or changed behaviors" regarding the issues leading to the dependency.
The court held a hearing on January 25, 2018. The social worker testified about an incident that occurred that month involving Father and H.M In a supervised phone call, H.M asked to speak to Mother and Father replied: "I got your mom right here, I beat her up and she's bleeding." The foster mother immediately terminated the phone call because it had a negative impact on H.M When the Bureau reached out to the parents, Mother stated that she cut her finger while cooking and it was a joke. The social worker attempted to contact Father by phone but he hung up on her.
Mother was supposed to attend weekly group therapy and weekly individual therapy sessions. The social worker reported that in August and September 2017, Mother did not attend any group therapy, she attended three groups in October and January, and only one group in November. As for individual therapy, Mother attended no session in September, three sessions in October, one session in November, and four sessions in December.
The social worker reported that the parents had recently divorced. Mother's group therapist did not believe the divorce was sincere but was done to regain custody of her children.
Mother testified she missed therapy sessions because she does not have insurance and she was pregnant and not feeling well. Mother stated she now believed J.H.'s allegations.
Both parents requested the continuation of services to the 18-month mark. The Bureau noted that it was only two months away, on March 28, 2018, and there was no substantial probability that the parents could safely parent the children in two months' time.
The court stated it had reviewed all the reports thoroughly and found the social worker's testimony to be credible. The court noted that the call where Father told H.M his Mother was bleeding was "bizarre" and it concerned the court that Mother described it as a joke. The court stated it believed the "divorce is a sham." Mother was still in a relationship with Father and they were "playing a game" for the court to think they were separated. The court found that Mother would not protect these children from Father and Father was not willing to admit his conduct and take responsibility. For a year and a half, Mother has said her daughter was lying "and now she comes out at the very last minute before this hearing, [to say] I believe her now." The court found Mother was not credible. Mother contradicted herself and did not tell the truth about why she missed therapy sessions.
The court found that the children were not safe with either Mother or Father. There was clear and convincing evidence it would be detrimental to return the children to their parents' custody. The court found there was no substantial probability the children could be returned by March 30, 2018 or even by May 2018 "given the level of deception, manipulation, lying, and lack of accountability for these children."
Both parents requested continued weekly two-hour visits with the children. The Bureau argued that once reunification was terminated for the sake of the children, the visits should decrease. The court stated it was concerned that the visits "will then become very difficult for the children because I don't trust what's going to happen with what Mother or Father are going to say to the children in the visits." The court said that given its finding it would be detrimental to return the children to the parents, as it moves to a permanent plan, it is best to start limiting visitation now. However, the court stated it would be open to increased visitation if it is beneficial to the children.
As the court advised the parents of their rights, Mother objected to the court's finding and "storm[ed] out" of the courtroom and refused to return. The court set the section 366.26 hearing for May 24, 2018.
III.
DISCUSSION
A. Mother Received Reasonable Reunification Services and Has Forfeited Any Argument to the Contrary
On appeal, Mother argues she was not provided with reasonable services. The Bureau contends Mother has forfeited this argument by failing to raise it before the juvenile court.
"A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 221.) The appellate court has discretion whether to excuse a forfeiture, but it "should be exercised rarely and only in cases presenting an important legal issue. [Citations.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
Mother failed to raise any claim about the reasonableness of the reunification services before the juvenile court. On appeal, she claims there is no indication in the record that she was referred for a mental health assessment. Even if we were to consider the issue on the merits, we conclude Mother was provided with reasonable services.
The " 'adequacy of reunification plans and the reasonableness of the [Bureau's] efforts are judged according to the circumstances of each case.' [Citation.] To support a finding reasonable services were offered or provided, 'the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . . [Citation.]' " (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426).
Mother's case plan included weekly individual therapy, group therapy, and monthly couples therapy along with parenting classes. It also recommended a mental health assessment. There is no evidence in the record that the Bureau failed to provide her a referral or that Mother attempted to secure a mental health assessment and was unable to do so. What the record reflects is Mother failed to regularly attend her individual therapy sessions. Her therapist reported that "her engagement with the therapeutic process remains superficial and not fully honest." She was defensive and continued to defend her husband.
Mother's resistance limited the Bureau's ability to provide her with the services she needed for reunification. (See In re Christina L. (1992) 3 Cal.App.4th 404, 417-418 [parent's resistance to participating in services supported conclusion agency made a good faith effort to provide services under the circumstances].)
Mother argues the Bureau should have done more to treat her mental health issues. Mother did not follow through with the mental health assessment so the Bureau could not have done more to address her issues. Further, Mother's criticism of the social worker's efforts does not establish a lack of substantial evidence supporting the juvenile court's finding. Even assuming the Bureau could have done more, the services the Bureau did provide were reasonable under the circumstances of this case. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
B. The Juvenile Court Did Not Err in Terminating Reunification Services After 16 Months
The purpose of reunification efforts is to "eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible. [Citation.]" (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) However, it is also the "intent of the Legislature, especially with regard to young children, . . . that the dependency process proceed with deliberate speed and without undue delay. [Citations.]" (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) In some cases, the delay attributable to the provision of reunification services would be more detrimental to the minor than discounting the competing goal of family preservation. (Ibid.)
"The applicable standard of review is sufficiency of the evidence. [Citation.] ' "If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed." ' [Citations.]" (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1346.)
Under section 366.21, at the 12-month review hearing, "[t]he court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . ." (§ 366.21, subd. (g)(1).) To find a substantial probability, the court considers whether the parent has consistently and regularly visited the child, whether the parent has "made significant progress in resolving problems that led to the child's removal from the home," and whether the parent has shown the capacity and ability to complete his or her treatment plan. (Ibid.)
Both parents argue that the court erred in terminating reunification services. Mother argues she consistently visited the children, finished a parenting class, attended couples counseling, and divorced Father. Father similarly argues he regularly visited the children, attended individual and couples therapy, and completed a domestic violence program.
Both parents contend the sexual abuse in this case was never proven. There are two problems with this argument. First, at the jurisdictional hearing, the juvenile court found the sexual abuse had occurred. Neither parent appeared at the hearing and we have no transcript in the record. Under these circumstances, we must defer to the juvenile court's finding under an abuse of discretion standard. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 ["The juvenile court's opportunity to observe the witnesses and generally get 'the feel of the case' warrants a high degree of appellate court deference. [Citation.]"].)
Second, even if we accept the parents' argument that the sexual abuse has not been proven, the issues leading to the dependency go beyond the abuse to the parents' lack of care for J.H. Mother and Father failed to address J.H.'s mental health issues. After J.H. was committed under section 5150 for suicidal thoughts due to her stepfather's abuse, Mother failed to take her to a doctor or a therapist. J.H. also stopped taking her prescribed anxiety medication after one week. Even if Mother did not believe the allegations of sexual abuse, she failed to seek care for her emotionally distraught child. Mother had been told by the Bureau, the school, and friends that J.H. needed therapy but she took no action. Additionally, Mother refused to create a safety plan for J.H. to stay at a friend's home while the abuse allegations were investigated.
Mother failed to benefit from her individual therapy due to repeated "no show" appointments. Her therapist reported that "her engagement with the therapeutic process remains superficial and not fully honest." Father's risk assessment showed him to be "guarded and anxious" and uncomfortable revealing his sexual history or discussing sexual matters. Father participated in a polygraph test and it showed no signs of deception when he denied sexual abuse of J.H. However, the doctor who administered the polygraph stated "it is very possible that [Father] answered the assessment in a way that invalidates the results. Therefore, the results . . . should be interpreted with extreme caution." Father was found to be a low to moderate risk for sexually abusing the younger children "which is extremely concerning" given the assessment that he demonstrates hostility to women and justifies sexually abusive behavior.
Both parents' conduct during the phone call with H.M was concerning to the Bureau and the court. Father told his young son: "I got your mom right here, I beat her up and she's bleeding." Mother stated that it was a joke and Father hung up on the social worker when she called to discuss it. The juvenile court found this conduct to be "bizarre."
Both parents cite to Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 (Blanca P.) to argue a parent's denial of the sexual abuse does not provide a basis for denial of further reunification services. In Blanca P., there were allegations of excessive corporal punishment by the mother and sexual abuse of the three-year-old child by the father. (Id. at p. 1742.) Both parents denied the sexual abuse throughout the reunification period. At the hearing on the petition the juvenile court mistakenly believed the sexual abuse allegation had already been decided against the father. (Id. at p. 1744.) Then the court-appointed psychologist discredited the allegation. (Id. at p. 1745.) At the 18-month review hearing, another juvenile court judge found it would be detrimental to return the children to the parents because of the mother's steadfast denial that any improper touching had occurred. (Id. at p. 1747.)
The parents do not address the primary issue in Blanca P. of whether a finding made at a jurisdictional hearing, without a sufficient record, remains binding at the 18-month review hearing. (Blanca P., supra, 45 Cal.App.4th at pp. 17454-1755.) The appellate court granted the writ in Blanca P. because the intervening evidence cast doubt on the court's original molestation finding and the charge needed to be fully litigated. (Id. at p. 1759.)
As noted above, the parents have failed to provide this court with a transcript of the jurisdiction hearing where the juvenile court found true the allegation of sexual abuse by Father. Given the appellate record, we have no basis to conclude this finding was in error.
In contrast to Blanca P. the juvenile court's findings were supported by substantial evidence in the record. The court found the parents had not changed their behavior regarding the issues leading to the dependency. The only evidence that contradicted the juvenile court's finding of sexual abuse was the polygraph examination that showed no signs of deception when Father was asked about abusing J.H. However, the doctor who administered the polygraph said this result should be taken with "extreme caution" because of the way Father answered the questions.
Unlike Blanca P., neither parent contested the finding of sexual abuse before the juvenile court. At the January 2018 hearing, Mother stated she now believed J.H. that the sexual abuse occurred. The juvenile court found Mother not credible. For a year and a half, Mother has said her daughter was lying "and now she comes out at the very last minute before this hearing, [to say] I believe her now." Furthermore, the juvenile court found that the "divorce is a sham." Mother was still in a relationship with Father and they were "playing a game" for the court to think they are separated.
The court found that Mother would not protect the children from Father and Father was not willing to admit his conduct and take responsibility. The court found that the children were not safe with either Mother or Father. There was clear and convincing evidence it would be detrimental to return the children to their parents' custody. The court found there was no substantial probability the children could be returned with an additional two months of services, "given the level of deception, manipulation, lying, and lack of accountability for these children."
Even though the parents regularly visited the children, the court found that neither parent had made significant progress in resolving problems that led to the children's removal from the home and Mother had failed to complete her treatment plan. We conclude there was substantial evidence supporting the juvenile court's judgment.
C. The Court Did Not Abuse Its Discretion by Reducing Visitation
Both parents argue that the court should not have reduced their weekly visitation to once a month pending the section 366.26 hearing.
The Bureau recommended decreasing the number of visits to once per month. However, the recommendation stated the Bureau should "consider the child's wishes and input from the child's counsel and child's treating therapist in establishing the frequency, time, place, and length of visits[.]"
The court stated it did not trust what the parents might say to the children in the visits and that visitation would become increasingly difficult for the children. The court adopted the Bureau's recommendation of once per month visits, but requested the children's counsel to return to court after the children began therapy if he felt it would be beneficial for the children to have increased visitation.
"After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability[.]' [Citation.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Even after reunification services have been terminated, visitation must continue unless the court finds it would be detrimental to the child. (§ 366.21, subd. (h); In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504.)
Here, the court adopted the Bureau's recommendation and reduced visitation given the parents past behavior, including the recent phone call, but also instructed the children's counsel to seek increased visitation if it is in the children's best interest. There was no abuse of discretion.
IV.
DISPOSITION
The petitions for writ of mandate are denied on the merits. (§ 366.26, subd. (l)(1)(c); Cal. Rules of Court, rule 8.452.) The request for a stay is denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------