E.E., Petitioner, v. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES (2010)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court's order issued at a contested 18-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 ¹ hearing as to her daughters A.B. and T.B. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner has a long history of using phencyclidine (PCP) to the detriment of her children.   In 2000, police had to force their way into petitioner's home to help her then 13-year-old son and his girlfriend who had overdosed on PCP. While they were lying motionless and struggling to breath, petitioner refused to let the police in the home and blocked their efforts to enter by a window.   It was only when the police brought a fire truck to cut through the metal screen door that petitioner finally opened the door.   Petitioner's daughters, then seven-year-old A.B. and four-year-old J.B., witnessed the entire event.

Petitioner was arrested for child endangerment and obstructing a police officer.   Her son, A.B. and her daughter, J.B. were taken into protective custody.   Though J.B. is not a subject of this writ, the facts concerning her are germane and will, to the extent relevant, be included.

In June 2000, the juvenile court exercised its dependency jurisdiction over the three children and ordered petitioner and the children's father to participate in reunification services, which included substance abuse treatment.   Petitioner completed her court-ordered services and, at the 12-month review hearing in June 2001, the juvenile court dismissed dependency jurisdiction and granted petitioner sole legal and physical custody.

Over the ensuing years, the Fresno County Department of Children and Family Services (department) received reports that petitioner and her children were abusing drugs and petitioner was abusing alcohol.   However, none of the reports were substantiated.

In November 2007, then 11-year-old J.B. contacted the police and reported that petitioner was very high and intoxicated and was not taking care of her.   Police responded and found petitioner drunk and incoherent.   Family members took custody of petitioner's three daughters, J.B., 15-year-old A.B. and four-year-old T.B., for the evening.   J.B. admitted she called the police because she was angry, not because she was in danger.   Consequently, the police did not find sufficient evidence to warrant criminal charges.

In March 2008, police again responded to petitioner's home after an anonymous caller reported petitioner was intoxicated with children in her care.   When the officer arrived at the home, he found J.B. outside.   J.B. told the officer petitioner drank heavily and drank to intoxication nearly every day.   She said this had been going on for eight years but had intensified in the past two years.

Petitioner was arrested and the department took A.B., J.B. and T.B. into protective custody.   Two days later, petitioner tested positive for PCP.

In May 2008, the juvenile court exercised dependency jurisdiction over A.B., J.B. and T.B. and ordered petitioner to participate in parenting classes, complete domestic violence, substance abuse and mental health evaluations and participate in any recommended treatment, and submit to random drug testing.   The court also ordered mental health assessments for petitioner's three daughters and set the six-month review hearing for October 2008.

As a result of her assessment, J.B. was diagnosed with depressive disorder.   During the assessment, she revealed she had her aunt call the police in March 2008 and expressed remorse for having done so.

All three children were placed with their maternal grandparents.   However, in July 2008, J.B. was placed in a group home because of her out-of-control behavior.   Within two weeks, she had to be involuntarily committed for suicidal ideation.   She became increasingly depressed and suicidal, cutting her arms, standing in traffic and running into busy streets.   As a result, she was involuntarily committed multiple times and placed on psychotropic medication.   In September, she was enrolled in a program that provided her mental health services at the group home.

In its report for the six-month review hearing, the department recommended the court continue services rather than return the children to petitioner's custody because, though compliant with her services plan, petitioner had not completed her case plan requirements.   Additionally, the department was concerned about J.B.'s conduct following visits with petitioner.   In September 2008, J.B. asked to terminate a visit, stating petitioner made her angry and was filling her head with lies.   She said petitioner told her not to take her medication and not to trust anyone including the social worker, and told her that all the staff intended to harm her.   Upon returning to the group home, J.B. punched several holes in the garage wall.   Petitioner admitted J.B.'s behavior was a problem but stated she was committed to reunifying with her children.

In October 2008, at the six-month review hearing, the juvenile court continued reunification services, granted the department discretion to arrange liberal visits and set the 12-month review hearing for April 2009.

In April 2009, petitioner began liberal visits with all three daughters.   They spent Friday evening through Sunday evening with petitioner and, according to petitioner, visits went well.   All three minors stated they enjoyed their time with their mother.   In addition, J.B.'s behavior had stabilized, allowing her to be placed in the home of petitioner's pastor.

By the 12-month review hearing, which was continued and conducted in May 2009, petitioner had made significant progress in her case plan requirements but had not completed the domestic violence component of her case plan.   The juvenile court ordered reunification services to continue, granted the department discretion to arrange extended visitation and set the 18-month review hearing for August 2009.

By July 2009, the girls were spending 12 nights with petitioner and one night at their care provider's home.   Petitioner told the caseworker that J.B. refused to take her psychotropic medication because it caused nightmares.   J.B. denied refusing to take her medication, stating petitioner would not let her take it because of the nightmares.

Also in July, the social worker received a call that, three days prior, petitioner left A.B. and J.B. alone to attend an anger management class.   J.B. ran away and did not return for two days.   While gone, she drank alcohol, smoked marijuana and had sex with a man.   Petitioner contacted the police but not J.B.'s foster parents or the social worker.   J.B. said she ran away because petitioner yelled at her.

In an addendum report filed for the 18-month review hearing, the department recommended the juvenile court terminate petitioner's reunification services and implement a permanent plan of long-term foster care for J.B. and guardianship for A.B. and T.B. with their maternal grandparents The department reported A.B. and J.B. suffered emotionally as a result of petitioner's parenting and were both on psychotropic medication.   A.B. had been diagnosed as severely emotionally disturbed and J.B. had been diagnosed with depressive disorder with psychotic features.   Additionally, there was a concern the girls were protecting petitioner.   A.B. would not disclose damaging information and J.B. stated petitioner coached the children to keep things in the family and to say what the professionals wanted to hear.   The department also reported that while with A.B. at the fair in September 2009, petitioner told J.B. she needed to “stop fucking up” because she was ruining her chances of reunifying with A.B. and T.B. The department found this incident consistent with petitioner's pattern of covering up her daughters' behavior over the years.   The department opined petitioner had not benefitted from her services and recommended the court find she made moderate progress in alleviating the problems requiring the children's removal and that it would be detrimental to return them to her custody.

Petitioner challenged the department's recommendations and the juvenile court conducted a contested 18-month review hearing in November 2009.   By that time, petitioner had completed all of her case plan requirements.

At the contested hearing, petitioner agreed J.B. should be placed in long-term foster care but disputed the department's opinion A.B. and T.B. could not be safely returned to her custody.   Rather, she argued, she made substantial progress toward reunification.   To that end, petitioner offered the testimony of her father as well as letters from her adult daughter, V.B., her landlord of six years and an employee of the substance abuse program she attended all attesting to her positive life turnaround.   Further, petitioner argued the department's conclusion she could not safely parent A.B. and T.B. was based on its misperception of J.B. who, she claimed, was manipulative and untruthful.

Petitioner testified she did not blame J.B. for reporting her to the police and credited her with saving her life.   She said she loved J.B. and wanted to reunify with her when J.B. was ready.   She denied telling J.B. that J.B.'s behavior was ruining her chance of reunifying with A.B. and T.B. She also said liberal visitation was going well.   She admitted yelling at her children but addressed that in her anger management class.   She also testified that J.B.'s problems began when she was placed in the group home.   She did not believe J.B. was impacted by her son's overdose in 2000 because she was only four years old at that time.   She denied J.B. used drugs while in her care, claiming she first used drugs at the group home.   She said she was aware J.B. admitted during her drug assessment that she had been using drugs for three years, since she was ten years old but petitioner stated she did not believe it.   When asked if J.B. currently had a substance abuse problem, petitioner responded “I think [she] needs to finish her program.”   She then, she admitted J.B. had a problem.

A.B. testified that petitioner never told her or her siblings to keep secrets.   She denied that petitioner told J.B. to stop ruining things for the other children.   She said she was with J.B. most of the time at the fair and J.B. and petitioner were not alone.   She stated she felt safe with petitioner and wanted to live with her.

Petitioner's father testified he had never heard petitioner tell the children to keep secrets or to lie.   He testified petitioner and J.B. were never alone at the fair and he did not hear petitioner tell J.B. she was ruining the case.   He said he had known J.B. to be untruthful “lots of time.”   He said on the day of the fair she told him she faked a lot of things, like getting high for attention.   He said he believed J.B. was responsible for some of the problems the family was having.   He also testified the visitation schedule for the previous four months was 13 days with petitioner and one day with him.

The social worker testified she did not know if petitioner could provide her daughters a safe and stable home because of the prior dependency case, the nature of the intervening referrals and her behavior during the 18 months of reunification.   As to the intervening referrals, the social worker testified she saw a pattern of the children protecting petitioner's behavior.   She recalled two incidents in 2005.   In one, petitioner and the children's father were engaged in a physical altercation and their son tried to protect petitioner.   The father pushed the son to the wall and the police were called.   Petitioner minimized the situation and stated the bruising she had was caused by the children.   She said her son was out of control and lied.   As a result, the referral was classified as unfounded.   In the other incident, the police were contacted and a social worker went to petitioner's home.   J.B. answered the door and said petitioner was in the shower.   Instead, petitioner was in a car in the driveway.   The social worker was struck by the fact that J.B. would automatically say petitioner was in the shower when she did not really know where petitioner was.

The social worker also testified petitioner blamed J.B. for J.B.'s behavior instead of recognizing how her own drug use affected her children.   This blaming behavior, she opined, placed petitioner at risk of relapse and the children at risk of an unstable home environment.   In addition, she considered A.B. and J.B. special needs children based on the severity of their emotional problems.

The social worker also testified she was unsure what occurred in petitioner's home and she was the last to know about major incidents involving J.B. In addition, she questioned the maternal grandfather's honesty.   She testified she told both him and petitioner in September 2009 that she was reducing petitioner's visitation to weekends only.   Prior to maternal grandfather's testimony, she did not know the children were still visiting petitioner for 13 days at a time.   On cross-examination, both petitioner and her father denied being told visitation had been reduced.

Following testimony and argument, the juvenile court found it would be detrimental to return the children to petitioner's custody.   The court also found petitioner was provided reasonable services and ordered them terminated.   The court ordered J.B. into long-term foster care and ordered weekly one-hour supervised visits for her and petitioner.   The court set a section 366.26 hearing as to A.B. and T.B. and ordered supervised third-party visitation as to them with petitioner, with discretion for unsupervised visitation with A.B. only.   This petition ensued.

DISCUSSION

A. Reasonableness of Services

Petitioner contends, without argument or citation to legal authority, the juvenile court erred in finding she was provided reasonable services.   Such a contention is deemed to be without foundation and to have been abandoned.   (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120.)   Consequently, we consider it waived for appellate review.

Notwithstanding waiver, we conclude petitioner's contention is meritless.   She claims the department used the circumstances of the 2000 dependency matter to persuade the court she engaged in a continuing pattern of behavior that warranted terminating her services.   If the department was so concerned about the 2000 incident, she contends, it should either not have offered her services or offered her services to break the pattern.   To argue the services offered were unreasonable because they should never have been offered is a non sequitur requiring no further comment.   To argue petitioner was not provided services to address her cycle of deceptive behavior is not supported by the evidence.   Rather, the appellate record reflects petitioner was provided a full array of services designed to manage her emotions and successfully parent her children.   Were we to reach the merits of petitioner's claim, we would find no error in the juvenile court's finding she was provided reasonable services.

B. Detrimental Return

Petitioner contends the juvenile court erred in finding it would be detrimental to return A.B. and T.B. to her custody, citing evidence she completed her case plan requirements and was granted increased visitation.   She attributes the court's finding to J.B.'s troubled behavior rather than actual detriment to A.B. and T.B. and argues it was an abuse of discretion.

At the 18-month review hearing, the juvenile court is required to return a dependent child to parental custody unless it finds to do so would create a substantial risk to the child's safety. (§ 366.22, subd. (a).)  Though parental failure to regularly participate in court-ordered services is prima facie evidence of detriment, completion of court-ordered services is not a guarantee the child will be returned. (§ 366.22, subd. (a);  In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)   Rather, the juvenile court must determine if the child can be safely returned to parental custody.  (In re Joseph B. (1996) 42 Cal.App.4th 890, 901.)

On a challenge to the juvenile court's finding of detrimental return, we determine whether the court's finding is supported by substantial evidence.   (In re Alvin R. (2003) 108 Cal.App.4th 962, 974-975.)   Substantial evidence is evidence which is “reasonable, credible and of solid value-to support the conclusion of the trier of fact.”  [Citations.]  In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact.  [Citations.]”  (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)   Further, we do not reweigh the evidence in assessing the sufficiency of the evidence.  (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Petitioner attributes the juvenile court's finding of detriment to J.B.'s troubled behavior, ignoring the harmful family dynamics that contributed to her behavior.   In 2000, petitioner risked her son's life to cover drug use in her home.   J.B., then four, witnessed her older brother's overdose.   According to the record, she told the social worker her brother “died with the weed, but was alive ․” Over the next eight years, petitioner and her children used drugs but denied it to authorities.   The children attempted to protect and cover for petitioner until an older J.B. initiated contact with the police in 2007 and 2008.   Notably, she did so anonymously, apparently in keeping with the family practice of guarding family secrets.   Further, during the 18 months of reunification, petitioner continued her practice of denial and minimization.   She denied the severity and longevity of J.B.'s drug use, failed to contact the department after J.B. ran away and denied accusing J.B. of ruining her chances of reunification.   Though these instances involved J.B. only, that does not mean that petitioner does not employ this behavior with A.B. and T.B. It only means that petitioner's pattern of behavior is most pronounced in response to J.B. As seen in 2000, the consequences of petitioner's secretiveness, denial and minimization can be dire.   Consequently, we conclude based on this record substantial evidence supports the juvenile court's finding of detrimental return.

C. Supervised Visitation

Petitioner contends the juvenile court abused its discretion in changing the visitation order from liberal to supervised visitation.   We disagree.

The juvenile court is accorded broad discretion in fashioning visitation orders in keeping with its duty to protect the welfare and best interests of the child.  (See, e.g., In re Julie M. (1999) 69 Cal.App.4th 41, 48;  In re Elizabeth M. (1991) 232 Cal.App.3d 553, 569.)   In this case, petitioner fails to show how the juvenile court abused its discretion in ordering supervised visitation.   Further, the juvenile court explained its rationale, citing petitioner's testimony when she discussed T.B.'s future placement with T.B. despite the court's admonishment not to do so.   Petitioner's disregard for the court's advisement warranted increased supervision at least as to T.B. With respect to A.B., the court granted the department discretion to arrange unsupervised visitation.   On this record, we find no abuse of discretion.

DISPOSITION

The petition for extraordinary writ is denied.   This opinion is final forthwith as to this court.

FOOTNOTES

FOOTNOTE.  

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.