Opinion
A158248
11-27-2019
S.K., Petitioner, v. THE SUPERIOR COURT OF NAPA COUNTY, Respondent; NAPA COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. 18JD000075)
S.K. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court's order bypassing reunification services as to her daughter T.R. and setting a Welfare and Institutions Code section 366.26 hearing. Mother contends the court abused its discretion in denying her request for a bonding study and in bypassing reunification services. We find no error and shall deny mother's petition.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
Background
In September 2018, a section 300 petition was filed alleging that mother and her then-boyfriend had been involved in a domestic violence incident in front of mother's three children, including two-year-old T.R. At the combined jurisdiction and disposition hearing, the court found the allegations of the petition true, continued T.R.'s placement with mother and ordered family maintenance services. Mother's case plan required her to take steps to avoid becoming the victim of further domestic violence, and mother did obtain a restraining order against her boyfriend.
In May 2019, a subsequent dependency petition was filed alleging that mother and her boyfriend were involved in another domestic violence incident while T.R. was present. The petition alleged that, despite having obtained the restraining order, mother was spending time with the boyfriend and permitting him to be around her child. Following the incident, T.R. was removed from her mother's care and placed with a relative caregiver.
In June 2019, the Napa County Department of Health and Human Services (the department) filed a report recommending that the court exercise jurisdiction based on the allegations in the subsequent petition and that it bypass reunification services under section 361.5, subdivisions (b)(10) and (b)(11). The report explains that mother previously failed to reunify with two of T.R.'s older siblings and was bypassed for services with respect to a third sibling. A contested hearing on the petition was set for July 31, 2019.
On July 22, mother moved to continue the July 31 hearing and requested appointment of an evaluator to conduct a bonding study. Following a hearing on July 25, the court denied mother's requests.
The contested hearing was held over two days, during which the social worker assigned to mother's case testified that mother has had three children other than T.R. involved in dependency proceedings. In 2014, two of T.R.'s siblings were removed from mother's care as a result of domestic violence and substance abuse. Mother was provided reunification services to alleviate these problems but failed to reunify. Services were terminated and the children were placed in the custody of their fathers. In 2015, a third sibling was removed from mother's care because of her drug use while pregnant. Mother was bypassed for services and her parental rights were terminated. The social worker also testified that throughout the dependency proceedings mother had been dishonest about her relationship with her boyfriend. Contrary to what she had told the social worker, she had continued to have a relationship with him and allowed him around her daughter. The social worker reported that mother had previously been provided domestic violence prevention services but that they had failed to alleviate her issues. The social worker was concerned that T.R. was exhibiting unhealthy behaviors typical of children exposed to domestic violence.
Mother offered three witnesses. A Napa County public health nurse testified that mother participated in her breastfeeding and self-care support program after T.R.'s birth. Mother and T.R. participated in approximately 60 hour-long visits over a period of three years. She observed "positive interactions" between mother and T.R. and believed that they appeared to have a close relationship. A Napa County probation officer testified that he was mother's probation officer for a period of three years between 2014 and 2017. After T.R. was born in April 2016, he regularly observed T.R. with her mother and during that time he did not observe any inappropriate behavior. "They always seemed to really want to be with each other." He assisted mother obtain drug treatment after T.R.'s birth and opined that "[s]he was very determined not to use and to not lose her child." Mother's psychotherapist testified that she had treated mother "intermittently" for substance abuse and domestic violence issues since 2016 or 2017. Most recently, she had seen mother once in January 2019 and again in June 2019, during which visits they discussed mother's domestic violence issues with her boyfriend. The psychotherapist had witnessed "growth" and "progress" in mother since she first started seeing her. Each of the witnesses acknowledged, however, that mother had not disclosed to them that she began seeing her boyfriend again after he was released from jail in November 2018 or that in April 2019 she became pregnant.
Mother acknowledged that she lost custody of her two oldest daughters because of domestic violence and drug use. Their fathers stopped using and regained custody of the girls, but she did not. She was offered domestic violence prevention services, but did not take them. She testified that she had been sober since Stevenson placed her in drug treatment after T.R.'s birth. She admitted, however, that she uses marijuana to manage her anxiety because she cannot take other medications because she is again pregnant. She also acknowledged that in December 2018 she started seeing her boyfriend again. She explained that he "came over sporadically." She would not see him for weeks and then he would just appear. Gradually his behavior escalated to the point where she wanted to be done with the relationship but she was scared. She hid the relationship from her social worker because she was afraid the department would remove T.R. from her care. When her boyfriend attacked her again in May 2019, she called the police for T.R.'s protection, knowing that she would probably lose custody of her daughter.
The court found by clear and convincing evidence that the department established grounds to bypass reunification services under section 361.5, subdivisions (b)(10) and that mother had not met her burden of showing that reunification was in T.R.'s best interest. The court denied mother reunification services and set a section 366.26 hearing for December 3.
Discussion
"When a child is removed from the custody of his parents, reunification services must be offered to the parents unless one of several statutory exceptions applies. (. . . § 361.5, subd. (a).) If a parent is described by an exception, the juvenile court 'need not' provide him or her reunification services. (§ 361.5, subd. (b).) Under most of the exceptions, the juvenile court 'shall not' order reunification services unless it finds, by clear and convincing evidence, that reunification is in the best interests of the child. (§ 361.5, subd. (c).) Thus, ' "[o]nce it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]" ' [Citation.] The burden is on the parent to change that assumption and show that reunification would serve the best interests of the child." (In re William B. (2008) 163 Cal.App.4th 1220, 1227; see also Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1124-1125.)
Here, the trial court found that mother came within the meaning of section 361.5, subdivision (b)(10), under which reunification services need not be provided if the court finds by clear and convincing evidence that "the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling . . . and . . . , according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian." (§ 361.5, subd. (b)(10).) Mother does not dispute that substantial evidence supports the trial court's finding that section 361.5, subdivision (b)(10) is applicable. She argues that the court abused its discretion in finding that she had not met her burden of proving that reunification was in the minor's best interest. (Jennifer S. v. Superior Court, supra, 15 Cal.App.5th at pp. 1124-1125 ["We review a juvenile court's best interest determination in this context for abuse of discretion."].)
" ' "The concept of a child's best interest 'is an elusive guideline that belies rigid definition. Its purpose is to maximize a child's opportunity to develop into a stable, well-adjusted adult.' " ' [Citation.] Nevertheless, precedent supplies certain relevant considerations when making a best interests determination. For instance, '[t]o determine whether reunification is in the child's best interest, the court considers the parent's current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity.' " (Jennifer S. v. Superior Court, supra, 15 Cal.App.5th at p. 1124.)
Initially, mother contends the court abused its discretion by refusing her request for a bonding study. In denying mother's request, the court explained that it did not believe a bonding study would assist the court on any of the issues before it. "The juvenile court's discretion to order a bonding study arises from Evidence Code section 730, which provides, in relevant part: 'When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court. . . .' Thus, the reason for appointment of an expert is that the expertise is, or may be, required to resolve issues in the case." (In re S.R. (2009) 173 Cal.App.4th 864, 869.) As noted above, "the strength of the parent-child and caretaker-child bonds" is a factor the court may consider in evaluating whether reunification is in a child's best interest. (Jennifer S. v. Superior Court, supra, 15 Cal.App.5th at p. 1124.) The record here, however, established without conflict that T.R. had been raised by her mother since birth until she was removed from her custody in May 2019. Nothing in the record suggested that mother and T.R. did not have the typical bonded relationship one expects between a mother and her three-year-old child. Because that bond was not disputed, expert testimony was not required to establish its existence. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1341 [finding no abuse of discretion in denial of request for bonding study where "the undisputed evidence was that there was some bonding between the father and [his son]" so that it was "unlikely that a bonding study would have been useful to the juvenile court"].) Accordingly, the court did not abuse its discretion in denying mother's request for a bonding study.
The court denied the request without prejudice so that mother could request preparation of a study before the hearing on the termination of her parental rights. (See In re S.R., supra, 173 Cal.App.4th at p. 869 ["In a hearing to terminate parental rights in a dependency proceeding, the primary issue often is whether the parents can establish that the child would benefit from a continuing relationship with them and that termination of parental rights would therefore be detrimental to the child. [Citation.] In attempting to establish or eliminate this exception to the preference for adoption, the parties or the court may require a bonding study to illuminate the intricacies of the parent-child bond so that the question of detriment to the child may be fully explored." (Italics added.)].) We offer no opinion on whether a bonding study will be essential for the court to intelligently balance the competing considerations necessary to determine applicability of the exception to the adoption preference under section 366.26, subdivision (c)(1)(B)(i), at the permanency planning hearing, but observe that for that purpose a more thorough understanding of the strength of the parent-child bond may be necessary. --------
Mother also contends the court failed to consider the testimony of her witnesses and that its decision to bypass services resulted in a "clear and harsh injustice." We disagree. The trial court stated explicitly that prior to making its decision it "reviewed and considered the testimony that was provided at the hearings and reviewed the transcripts regarding the same." The court was not required to explain how it evaluated the witnesses' testimony or why it found their testimony insufficient to establish that reunification was in the child's best interest. (See In re Ammanda G. (1986) 186 Cal.App.3d 1075, 1081 [juvenile court is not required to prepare a statement of decision in dependency proceedings].) In any event, mother's evidence did not compel the conclusion that reunification was in the minor's best interest. While the testimony reflected mother's good intentions and a positive bond with T.R., it did not establish the elimination of the factors that were already producing negative characteristics in the young child, or that mother was not likely to resume her abusive relationship with her boyfriend, or that she is any more likely to reunify with T.R. than with her other children. Moreover, the testimony by mother's witnesses was undermined by their admissions that they too were kept in the dark about mother's continued relationship with her abuser. When the initial petition was filed in August 2018, mother had every opportunity to demonstrate that she had learned how to protect herself and her child from domestic violence. Instead, she engaged in dishonest behavior and continued to expose her daughter to domestic violence. Under these circumstances, the decision to bypass services did not result in a "clear and harsh injustice." (See In re William B., supra, 163 Cal.App.4th at p. 1229 [finding that a child's "bonds with the mother cannot be the sole basis for a best interest finding" and that the "best interests of the child are not served by merely postponing his chance for stability and continuity and subjecting him to another failed placement with the parent.")
The court did not err in bypassing mother for services and setting a section 366.26 hearing.
Disposition
Mother's petition for extraordinary writ is denied on the merits. (See Kowis v. Howard (1992) 3 Cal.4th 888, 894.) The decision is final in this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
POLLAK, P. J. WE CONCUR: /s/_________
STREETER, J. /s/_________
BROWN, J.