SANDRA v. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY (2011)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 the juvenile court's orders 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 daughter, Trinity.   She challenges the sufficiency of the evidence to support the court's finding that it would be detrimental to return Trinity to her custody under section 366.22, subdivision (a).   We conclude substantial evidence supports the court's finding and will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner and Ray ² are an intact married couple with two children, Michael and Trinity.   Trinity is the subject of this writ petition.   When these dependency proceedings were initiated in May 2009, Trinity and Michael were ten and eight years of age, respectively.

Petitioner and Ray have a significant history of child welfare intervention dating back to 2001 when the Stanislaus County Community Services Agency (agency) was informed that petitioner tested positive for amphetamines at the time of Michael's birth.   Michael did not test positive for amphetamines, but the agency substantiated the referral for general neglect.   In May 2003, the agency received a referral that there were piles of trash approximately two feet high throughout petitioner's home and cat urine all over the place including the stove, which was turned on.   There were also needles and pipes lying around the house and the children were wandering the alley unattended.   The agency substantiated the referral for general neglect.

In September 2003, the agency received a referral from the Modesto Police Department requesting immediate assistance because petitioner's home was filthy and there was no food.   Petitioner told the responding social worker that she was suffering from depression and was not taking her medication.   She was taken to the Stanislaus Behavioral Health Center.   Petitioner received family maintenance services from September 2003 to September 2004.   The social worker who closed out the case opined that the children did not appear to be in danger, but that the probability the agency would receive future referrals was high given the uncleanness of the children and the home.   In fact, the following month, the agency received a referral that the home was extremely filthy with maggots, cockroaches, and trash on the floor.   There were drug pipes in the home and the reporting party alleged petitioner had mental health issues and was using drugs.   The referral was deemed inconclusive for general neglect.

In March 2005, the agency received a referral that the condition of petitioner's home was deplorable;  there was garbage, dirty clothes, and moldy food on the floor and flies everywhere.   In April 2005, the agency received a referral that Trinity had lice, was dirty, and had holes in her pants.   In addition, her shoes were too small and were tattered.   She missed nine days of school because of head lice.   A social worker investigated the referral and found garbage piled against the wall, old food on the floor, and moldy dishes on the counter and in the sink.   There was no food in the refrigerator, there were cockroaches in the cupboards, and the bathroom was moldy and dirty.   Petitioner was provided family maintenance services from May to September of 2005.   The case was closed in September because petitioner and Ray were not participating in their case plan or keeping their apartment clean.   During that period, the agency received a referral that petitioner was using drugs in front of Trinity and that there were drug pipes and animal feces on the floor of the home.

In May 2006, the agency received a referral that petitioner and Trinity were staying at a friend's residence and the friend sexually molested Trinity.   Petitioner left the residence with Trinity to protect her.   The agency substantiated this referral for sexual abuse.   In November 2006, the agency received a referral that Trinity and Michael were severely unhygienic and did not have appropriate clothing.   Michael reportedly had feces in his clothes and petitioner stated she did not have money for socks and shoes, but refused help.   In November 2007, the agency received a referral that Michael stated his family's male roommate threw him against a door in the home and tried to strangle him.   On another occasion, this man tied him to the bed and placed tape over his mouth.   Michael reported that Ray protected him.

The events culminating in these dependency proceedings began in late April 2009 when petitioner and Ray's home was found to be dirty.   The agency gave petitioner and Ray opportunities over the course of the ensuing two weeks to clean their home to no avail.   At one point, petitioner threatened to kill herself if the children were placed in foster care and had to be involuntarily committed for 72 hours.

The agency took Trinity and Michael into protective custody and placed them with a maternal relative.   The agency also filed a dependency petition on behalf of both children, alleging the family home was messy and unsanitary, the family had a history of unsanitary living conditions, petitioner had a history of mental health issues, and petitioner and Ray were reported to use drugs.

In May 2009, at the detention hearing, the juvenile court sustained the dependency petition.   In June 2009, the court exercised its dependency jurisdiction and removed the children from petitioner and Ray's custody.   The court also ordered petitioner and Ray to participate in reunification services, which required them to complete mental health and substance abuse assessments and participate in any recommended treatment, complete a parenting class, and submit to random drug testing.   The court also ordered weekly visitation.

The court continued reunification services for petitioner and Ray at the six and twelve-month review hearings.   By the 12–month review hearing in April 2010, they had both completed a parenting class and residential and intensive outpatient substance abuse treatment and were residing at a sober living facility.   In addition, petitioner was meeting with her sponsor weekly and attending one meeting a week.   Ray was also meeting with his sponsor weekly and attending seven meetings a week.   In addition, Trinity and Michael were visiting petitioner and Ray at the sober living facility for daylong and overnight visits.   Michael enjoyed spending the night, but Trinity did not.   She spent all day Saturday and Sunday, but refused to spend the night.

At the 12–month review hearing, the court added family counseling to petitioner and Ray's case plan requirements and set an interim review hearing for July 2010 and the 18–month review hearing for September 2010.

In May 2010, petitioner and Ray moved out of the sober living facility and into an apartment.   Michael was placed in their care under a trial visit.   However, Trinity was still living with her maternal relative, Sabrina, and did not want to return home.

By the July 2010 interim hearing, petitioner and Ray had completed all of their court-ordered services and were participating in family counseling with Trinity and Michael.   At the hearing, the juvenile court ordered a specific visitation plan for Trinity whereby she would spend every other Sunday night with her parents and spend the day Saturday on the other weekends.   The court also ordered individual therapy for Trinity to assist her in communicating to her parents why she did not want to return home.   In addition, the court ordered Trinity to prepare a letter to her parents explaining why she did not want to live with them.

In its report for the 18–month review hearing, the agency recommended the juvenile court return Michael to petitioner and Ray's custody and set a section 366.26 hearing to consider a permanent plan of legal guardianship for Trinity with Sabrina.   The agency stated it could not professionally suggest that petitioner and Ray posed a risk of physical detriment to Trinity if she were returned to their custody, but believed it could place her at risk of emotional detriment.

The agency provided the juvenile court a copy of the letter Trinity wrote to her parents.   In essence, she explained that she knew Sabrina would take care of her, but was not sure that petitioner and Ray would.   She stated, for example:

“What is different about your house and Sabrina's house is here I know I will always get a meal, but at your house I'm not sure.  [¶] ․ [¶] ․ [¶] When I used to live with you, whenever I went to school I was getting made fun of and then when we got taken away to live with Sabrina I wasn't getting made fun of anymore at school.   Because when I lived with you I didn't take showers, and I wore the same clothes every day because my clothes weren't clean, and I didn't brush my teeth, and I would have to wear the same socks every day.  [¶] If I get head lice you probably won't take care of it, but Sabrina will.  [¶] ․ [¶] ․ [¶] ․ [¶] ․ [¶] ․ [¶] ․ [¶] ․ [¶] If I need to get to school and you or dad don't want to take me, then I will miss a day of school, and I don't want to do that.   In 5th grade I missed 60 days of school, but in 6th grade I only missed 2 days of school and my grades went up.   In 6th grade I had almost all As and Bs and no Fs. In 5th grade I had all Fs and had to go to summer school.   This year I didn't have to go.”

The agency also provided the juvenile court e-mails from Sabrina concerning Trinity's visits with petitioner.   Sabrina stated that on Trinity's first day visit at the end of July, petitioner asked Sabrina if she had any food to give Trinity and Michael for lunch because she did not have any.   On August 8, Trinity was scheduled for her first overnight visit, but refused to spend the night so petitioner contacted Sabrina to pick Trinity up.   Trinity told Sabrina she would run away if she was left there.   Sabrina also noted that a man named Paul was staying with petitioner and Ray. On August 14, Trinity had a day visit.   She later told Sabrina that they did not have any toilet paper and used old rags instead.   On August 16, Sabrina found bites on Trinity's legs, which she thought were caused by bed bugs.   She contacted petitioner who said she was trying to get rid of them.   On August 22, Trinity spent the night and found two bed bugs crawling on her bed.   When she went to take a shower, there was no soap.

The 18–month review hearing set for September 2010 was continued until January 2011.   Meanwhile, the agency filed its report for the hearing, updating the court on petitioner's home environment.   In August 2010, the social worker made an unannounced visit and Paul answered the door.   The social worker was told he was living in the home.   The house was cluttered with dirty clothes and dirty dishes, but the condition of the home did not cause the social worker concern.   She conducted a criminal background check on Paul and discovered that he had a history of arrests, but the nature of his offenses were not serious enough to concern her.

In December 2010, the social worker made another unannounced home visit at approximately 10:30 a.m. Paul answered the door and petitioner and Ray were asleep.   The kitchen area had dirty dishes in the sink and items cluttered on the counter tops, table and floor.   Michael's bedroom was a mess with things scattered on the bed, floor, and in the closet.

In January 2011, the juvenile court conducted the contested 18–month review hearing.   The case was presented by argument only.   Minors' counsel made an offer of proof that Trinity would testify that she enjoyed visiting her family during the daylong visits, even every weekend.   However, she did not want to spend the night because she did not sleep.   She was bitten by bed bugs and had seen the bugs themselves.   She showed one of the bugs to petitioner who denied it was a bed bug and said it was a cockroach.   Petitioner's attorney made an offer of proof that petitioner would testify that there were no bugs in the home and Trinity did not show her a bug.   Ray's attorney also made an offer of proof that there were no bed bugs and they had taken measures with the landlord to make sure there were no bed bugs in the home.   The parties accepted all three offers of proof.

During argument, county counsel asked the court to find that returning Trinity to an unclean home would pose a risk of emotional detriment given the many years she had to endure that environment and the harmful effect it had on her.   Minors' counsel agreed that returning Trinity to her parents would cause her emotional harm.   Petitioner's attorney argued the agency had not provided any evidence that returning Trinity to her parents would be detrimental.   Ray's attorney concur

red.

At the conclusion of the hearing, the juvenile court acknowledged that petitioner and Ray improved the condition of their home, but found that it would be emotionally and physically detrimental to Trinity to return her to their custody.   As to emotional detriment, the court opined that Trinity had suffered a form of emotional abuse when she was forced to go to school in dirty clothes and endure the taunting of her classmates.   The court found physical detriment in Trinity's inability to sleep because bugs were biting her and crawling on her at night.

The juvenile court also found that petitioner and Ray were provided reasonable services and that they made substantial progress.   However, the court did not find that their progress was sufficient to resolve the emotional and physical detriment to Trinity.   Consequently, the court terminated their reunification services and set a section 366.26 hearing to implement a permanent plan.   This petition ensued.

DISCUSSION

Section 366.22 governs the proceedings at the 18–month review hearing and, as relevant here, requires the juvenile court to return the child to parental custody unless it determines, by a preponderance of the evidence, that returning the child would create a substantial risk of detriment to the child's physical or emotional well-being. (§ 366.22, subd. (a).)  The agency bears the burden of establishing detriment.  (Ibid.) “The standard for showing detriment is ‘a fairly high one.   It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less than capable than an available foster parent or other family member.’  [Citation.]”  (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400 (Yvonne W ).)  “Rather, the risk of detriment must be substantial, such that returning a child to parental custody represents some danger to the child's physical or emotional well-being.   [Citations.]”  (Ibid.)

On review, we determine whether substantial evidence supports the juvenile court's finding of detriment.  (Yvonne W., supra, 165 Cal.App.4th at pp. 1400–1401.)  “In so doing, we consider the evidence favorably to the prevailing party and resolve all conflicts in support of the trial court's order.   [Citation.]  ‘Substantial evidence’ means evidence that is reasonable, credible and of solid value;  it must actually be substantial proof of the essentials that the law requires in a particular case.  [Citation.]  In the absence of substantial evidence showing such detriment, the court is required to return the minor to parental custody.  [Citation.]”  (Id. at p. 1401.)

Petitioner contends the evidence provided by the agency was insufficient to support the juvenile court's finding that Trinity could not be safely returned to her custody.   She cites this court to Yvonne W. in which the court of appeal concluded there was insufficient evidence to support the juvenile court's finding of detriment and reversed its order, made at an 18–month review hearing, continuing the minor's placement in foster care.  (Yvonne W., supra, 165 Cal.App.4th at p. 1399.)   Petitioner contends the facts of her case are on point and warrant the same disposition.   We disagree.

In Yvonne W., the juvenile court exercised its dependency jurisdiction over 11–year–old Yvonne because her mother, Celeste, used marijuana and was arrested on drug charges in Yvonne's presence.  (Yvonne W., supra, 165 Cal.App.4th at p. 1397.)   During the first six months of reunification, Celeste participated in her court-ordered services and she and Yvonne had overnight and weekend visits.  (Ibid.) In addition, Celeste gave birth to a baby who remained in her care and Yvonne was placed in a group home until a suitable foster home could be found.  (Id. at pp. 1397–1398.)   While in the group home, Yvonne experienced emotional and behavioral problems and was provided individual therapy.  (Id. at p. 1398.)   She also completed a psychological evaluation, which revealed that she loved Celeste and felt emotionally connected to her, but felt a “great deal of rage toward her.”   The evaluator recommended she continue in therapy.   At the 12–month review hearing, the court found it would be detrimental to return Yvonne to Celeste's custody and continued reunification services for another six months.   By the 18–month review hearing, Yvonne was living in a foster home where she was doing well emotionally.   Celeste was in compliance with her services and she and Yvonne had unsupervised weekend visits.  (Ibid.) However, Yvonne complained that she sometimes felt uncomfortable visiting Celeste at the shelter and often felt sick after her visits.  (Id. at pp. 1398–1399.)   She also expressed her fear of being homeless.  (Id. at p. 1399.)   Celeste reported that Yvonne had a negative attitude toward the other residents of the shelter.   The social worker opined that Yvonne would be at risk if returned to Celeste's care prematurely.   At the 18–month review hearing, the court found it would be emotionally and physically detrimental to return Yvonne to Celeste's custody because “Yvonne had expressed fear, anxiety and unhappiness with Celeste's living arrangement.”  (Ibid.) At all times during the reunification period, Yvonne expressed her desire to live with Celeste.  (Id. at pp. 1398–1399.)

On review, the Yvonne W. court found no evidence that conditions at the shelter posed a risk of harm to Yvonne in any “identifiable way,” pointing out that Celeste was successfully raising her other child in that environment.   (Yvonne W., supra, 165 Cal.App.4th at p. 1401.)   The only reported problem, the court concluded, was Yvonne's dislike of the shelter and its residents, which was insufficient to support the court's finding of detriment.   The court stated, “A child's dislike of a parent's living arrangement, without more, does not constitute a substantial risk of detriment within the meaning of section 366.22, subdivision (a).”  (Ibid.) The court also pointed to the fact that Yvonne wanted to reunify with Celeste and that nothing indicated that Celeste was incapable of adequately parenting Yvonne.  (Id. at p. 1402.)   Finally, the court concluded the agency failed to present any specific or objective evidence to show that Yvonne would suffer detriment, “including serious psychological or emotional injury, if she were placed with Celeste at the shelter.”  (Ibid.)

Though we recognize the many factual similarities in Yvonne W., we nevertheless find it distinguishable in several significant respects.   Unlike Trinity, Yvonne wanted to return to her mother's custody.   She just did not like the shelter environment.   Trinity, on the other hand, refused to return to petitioner's custody.   Further, Trinity's refusal was not based on a mere dislike of or apprehension about petitioner's living arrangement.   It was based on much more.   Trinity suffered years of physical neglect in petitioner's care, which she so poignantly described in her letter;  i.e. hunger, lack of clean clothing, and poor hygiene.   As a result, she was scorned by her classmates.   In addition, she missed a significant portion of the school year, which caused her to receive failing grades.   Finally, unlike Yvonne W., this case presents objective evidence that, at the very least, Trinity would be at a substantial risk of emotional harm if returned to petitioner's custody.   Trinity complained of the lack of toilet paper and soap while with petitioner and the bugs in her bed and threatened to run away if she were left with petitioner.   Given the deprivation she had already endured and the precarious environment awaiting her at petitioner's home, we conclude substantial evidence supports the juvenile court's finding that Trinity would be at risk of detriment if returned to petitioner's custody.   We find no error on this record.

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.

FN2. Ray also filed a writ petition (F061697)..  FN2. Ray also filed a writ petition (F061697).