J.K., Petitioner, v. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Children's Law Center of Los Angeles and Charles Aghoian for Minors.

J.K. (mother) petitions for extraordinary writ review ¹ of the orders made on August 2, 2011, at a hearing under Welfare and Institutions Code section 366.22 ² terminating reunification services and setting a permanent plan hearing (§ 366.26) for Jordan S., Justin S., and Ja. S. (the children).   She contends substantial evidence does not support the findings reasonable reunification services were provided and return of the children to her would be detrimental.   We deny the petition.

FACTS AND PROCEDURAL HISTORY

Jordan, born in 2004, Justin, born in 2007, and Ja., born in 2009, were born to mother and J.S. (father) ³ in Sweden, mother's country of origin.   The family moved frequently back and forth between Sweden and California, and within California.   In California, paternal grandparents' home was the children's home base.   Mother supported the family, and father and paternal grandparents provided most of the care for the children.

Parents exposed the children to ongoing domestic violence, emotional abuse, sexual abuse, and drug abuse.   From the beginning of their six-year relationship, parents frequently engaged in violent altercations and yelled in the presence of the children.   Parents called police to the home to intervene in their domestic disputes hundreds of time.   On one occasion, the family was removed from an international flight due to parents' fighting.

Mother bullied and physically abused father, inflicting injury.   When father tried to leave the relationship, mother threatened to take the children to Sweden and never let him see them again.

Parents engaged in inappropriate sexual conduct in the presence of the children.   Mother showed Jordan her vagina and nipples to teach him about the birth of babies.   Mother and father had sex, in Jordan's presence, in the bunk bed they shared with the children.   On a daily basis, father masturbated while in bed with Jordan, and mother knew but failed to protect Jordan.   She let the sexual abuse continue without contacting the authorities, because she felt “it wasn't the worst thing the kids were exposed to.”

When the family lived in Sweden, parents were investigated on four occasions by local child protection authorities.   In 2005, the family was required to live in a locked, monitored setting for six months, to protect the children from parents' domestic violence.   A Swedish social worker remained “very worried” about the children's safety in mother's care.

On November 4, 2009, the children were removed from parents' custody and placed in the paternal grandparents' home, following an incident wherein mother punched Jordan in the teeth.   A section 300 petition was filed.   Jordan stated he did not want to see her and that, not only did mother punch him in the teeth, but she regularly yelled at him.   Father separated from mother, and a custody battle ensued.

Jordan and Justin (the sons) displayed hyperactive and negative attention-seeking behaviors.   They had difficulty following directions of caregivers and coping with negative feelings.

Mother's visits in early 2010 were inappropriate and inconsistent.   Her relationship with the children was strained, and she exhibited little control.   She complained, argued, and was angry.   The children were fussy, loud, and disruptive but calmed down when mother was out of the room.   Pulling down mother's shirt, Jordan said, “I know what these are.”   Mother denied needing anger and domestic violence classes and hung up on the social worker because she did not like being counseled on what to do.

By February 2010, mother established a business selling herself as a “courtesan” or “escort” on an internet website that included sexually graphic photographs and explicit customer reviews.

On February 16, 2010, the children were declared dependents of the court based on sustained allegations under section 300, subdivision (b), that the children were at substantial risk of suffering serious physical harm or illness as a result of parents' failure to adequately supervise or protect them and mother's willful failure to protect the children from the conduct of father.   Custody was taken from the parents and given to the Department for suitable placement, and reunification services were ordered.   Mother was ordered to participate in individual counseling, parenting, and a domestic violence support group when recommended by her therapist.   Mother was granted monitored visits at least three times per week.

Mother visited once a week for three hours.   At times, she refused to cooperate with the requirement that only English be spoken during visits and failed to set appropriate health and safety boundaries.   Although mother was permitted to have weekly telephone visits with the children, she neglected to do so.

Mother participated in individual therapy and completed a parenting class in June 2010.   She insisted she was the victim in the case, believed all the family's problems were due to father's issues, and denied any of the rehabilitation programs the dependency court ordered were necessary for her to reunify with the children.   In her opinion, the paternal grandparents were “paying off” the Department and perhaps the court.   Mother indicated she wanted to take the children back to Sweden with her.

Mother was diagnosed with paranoid personality disorder, adjustment disorder with anxiety, and had “major personality issues.”  “[S]he is ‘overly sensitive to criticism[,] leans toward being a victim[,] [has a] definite distortion of reality[,] can't drop a subject or leave it alone[, and is] not straightforward.’ ”

In July 2010, mother's therapist terminated her individual therapy.   After reviewing mother's “alleged ‘escort’ website,” the therapist concluded mother was “untruthful and was intentionally misleading during the course of therapy [, which] further[ed][his] concern that much or most of the content she discussed in therapy is either not truthful or is highly distorted.”   In mother's view, the therapist terminated her therapy because he wanted to make more money.   Mother began individual therapy with a new therapist.

Prior to August 2010, mother conducted her business in her home.   In August 2010, mother established a separate apartment for her business.   She took Jordan there on several occasions, and she told him she had parties there.   Jordan understood mother lived in both the apartment where she had parties and the apartment where the children had their visits.   Mother sold her services between one hour and forty-eight hours.

The six-month review hearing (§ 366.21, subd. (e)) was held on September 20, 2010.   The dependency court continued the orders for suitable placement and reunification services.   Rejecting mother's arguments that the Department did not provide reasonable services, in that Jordan was not participating in counseling and the social worker was prejudiced against mother, the court found “by clear and convincing evidence” that reasonable services had been provided to mother.   Mother did not appeal this finding.   The court liberalized mother's visits by granting unmonitored visits for two hours.

The dependency court continued to liberalize mother's visits until, on January 10, 2011, mother was granted unmonitored overnight weekend visits on alternate weekends with the children and weekly visits alone with Jordan.

At the 12–month review hearing, held on February 16, 2011, the dependency court found reasonable services were provided and continued the suitable placement and reunification services orders.   Again, mother did not appeal.   The Department was ordered to enroll Jordan in therapy forthwith.   The visitation order was continued, and mother was granted visitation with the children on school holidays.

Mother bought the children toys that were not age-appropriate, such as pellet guns labeled “for adults 18 years of age and over” and compressed air party poppers labeled “not suitable for children under 16.   CAUTION!  This is not a toy!”   Some of the toys had small parts that Ja. could choke on.   The social worker cautioned mother on several occasions, but mother did not stop purchasing inappropriate toys.

Mother made the children feel unhappy, embarrassed, uncomfortable, uneasy, and neglected.   They were sad and upset because she did not allow them to take their toys, including the bear Jordan regularly slept with, back home with them to paternal grandparents' house.   During visits in her home, she frequently stayed out of sight and was detached from them for long periods of time, as she used the computer, received many telephone calls, and left them alone in the bathtub in water too deep for Ja. She walked around the apartment naked in the children's presence and usually left the bathroom door open when she took a bath.   Mother showed the sons her nipples and squeezed milk out of them, inviting the sons to taste it.⁴

Mother exposed the children to numerous male friends during visits, some of whom mother kissed in the children's presence.   One friend slept with mother in her bed in her apartment's loft, which had no door.   Male friends went on all activities with mother and the children.   Mother left the children at home with one of her male friends while she went shopping.   Justin saw one of mother's friend's penis when they were together in a bathroom, which made Justin uncomfortable.   Mother did not comply with social worker's requests that anyone having significant contact with the children get live-scanned.

Mother took the children for day-long outings, when they preferred to stay at her home and play.   She did not let the sons use the bathroom when they needed to relieve themselves on long car rides, and, consequently, they wet their pants.   She told Jordan to drink from an open bottle of vodka.   Mother frequently told the children they will live with her and never return to paternal grandfather's house.

The sons wanted to continue to reside with the paternal grandparents, rather than mother.   They did not even want to visit mother.   Jordan stated he only visited mother to get the toys.   He did not know if he would feel safe if he were returned to mother's care, but he was certain he would feel safe if he remained in the paternal grandparents' home.

Mother did not know if the children were familiar with the nature of her business or how to use the computer.   If Jordan were to discover mother's business, mother was without a plan of how to explain it to him.   She believed that what she did when the children were not around was irrelevant, and she did not believe her occupation could affect the children.

Jordan was evaluated for individual therapy.   The therapist stated therapy “would be helpful for Jordan in making the transition” to mother's home, but he did not meet the criteria for Medi–Cal because he was not acting out.

The 18–month review hearing (§ 366.22) was held on August 2, 2011.   The dependency court found the Department had made reasonable efforts to enable the children's safe return to mother but that such a return would create a substantial risk of detriment to the children.   Reunification services were terminated, and the matter was continued for a permanency planning hearing under section 366.26.   Mother's visitation was continued.

The dependency court stated its decision not to return the children to mother “has nothing to do with what the mother does.   While I recognize the problems in what the mother does for a living, we have a variety of illegalities going on in this court every single day of the week.  [¶] We're not here to moralize.   We're here to determine detriment and risk․  I need the mother to hear this clearly.   Her testimony was so removed and so aloof from any empathy, sympathy, or understanding of her children's needs, the most basic needs, up to the enormity of providing to your children the information that what you do for a living is not condoned by society.[ ⁵ ]  [¶] There's a disconnect between having the children and raising the children for the mother that is almost unseen in my court.   She doesn't get what her kids need.   When she's told what they need, she kind of fixes it for the moment.   But it is enormously important to me that at no time do we get anything other than a casual either ‘I don't know’ or ‘I guess I'll talk to my therapist.’   She's had these kids in two countries.   And there's no sense of what's appropriate in raising children, any children, let alone her own children.  [¶] It has nothing at all—- and let me make that clear.   I know the concern about the escort servicing and all the rest of the stuff.   That just hasn't been it for me from the beginning.   I've made it clear, and it isn't for me now.  [¶] The children don't want to be there.   They don't want to go someplace all the time.   They want to stay home.   They're not allowed to.   The mother is teaching something by ․ somehow expressing some liquid from her breasts[.]  [¶] [¶] The mother ․ fixes things as they come up.   These are things that don't really need to be told to a caring parent.   It's one thing if she had one six-month-old baby.   It's another thing when your children are six, four, and two.  [¶] Mother's first therapy was a complete and utter disaster.   The therapist ended up sending a letter to the court saying he was afraid for his life.   After saying that the mother was completely inappropriate with him and that ․ he was letting her go.”

The dependency court acknowledged it did not have an update concerning mother's therapist but assumed mother was in compliance with the therapy requirements.  “She has done what she has been asked to do and nothing more than that.   And anything more than that she doesn't seem to get for her children.  [¶] [Case law] talk[s] about ․ doing what the Department asks you to do was a prima facie first step.   This shows that we may start looking at you now.   This doesn't say you're getting your children back.”

Although the dependency court was concerned about the social worker, “nobody argued [that reasonable services were not provided], but I must say the mother was provided what she needed to be provided.”   The court found the social worker's testimony was not evenhanded and disregarded it.   The court stated it will never allow the children to be adopted, “so both of the parents can relax in the knowledge that you will not be losing your children unless something disastrous happens over the next four months, and I don't anticipate that.”   The court stated it will not allow mother to be cut out of the children's lives.

DISCUSSION

Substantial Evidence

Mother contends substantial evidence does not support the findings at the section 366.22 hearing that reasonable services were provided and return of the children would create a substantial risk of harm.   We disagree.

A. Standard of Review

We review the dependency court's findings that reunification services were adequate and return of the children to mother would create a substantial risk of detriment for substantial evidence.  (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762–763.)  “ ‘In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact.   All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.’ ”  (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

B. Section 366.22

Section 366.22 provides in pertinent part:  “(a) When a case has been continued pursuant to paragraph (1) of subdivision (g) of Section 366.21, the permanency review hearing shall occur within 18 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian.   The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child․  The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental․  [¶] ․ [¶] ․ [If] the child is not returned to a parent or legal guardian at the permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26․  The court shall determine whether reasonable services have been offered or provided to the parent or legal guardian․”

C. Reasonable Services

Mother contends substantial evidence does not support the finding reasonable services were provided, because the social worker was biased and such bias infected the manner in which services were provided.   The children and the Department argue mother forfeited the issue she was not provided reasonable services because she did not raise it in the trial court.

We conclude the issue was adequately raised below.   However, mother makes no showing that reversal of the finding would give her any relief.   She did not ask for further reunification services in the trial court;  nor does she contend on appeal that further services should be provided.⁶  The reunification period in this case was in excess of 18 months.   Reunification services may not be extended beyond a maximum period of 18 months unless there are “extraordinary circumstances ‘involv[ing] some external factor which prevented the parent from participating in the case plan.’ ”  (In re Denny H. (2005) 131 Cal.App.4th 1501, 1509–1510;  see also § 361.5, subds. (a)(1), (3).)   Mother does not contend she was prevented from participating in her case plan.   Moreover, any error in the finding at a section 366.22 hearing that reasonable services were provided is not prejudicial, because such finding is not a precondition for setting the matter for a section 366.26 hearing and developing a permanent plan.⁷  (In re Denny H., supra, 131 Cal.App.4th at p. 1511;  see In re Daniel G. (1994) 25 Cal.App.4th 1205, 1213.)

In any event, substantial evidence supports the finding reasonable services were provided.  “The adequacy of ․ the [D]epartment's efforts are judged according to the circumstances of each case․  ‘[T]he focus of reunification services is to remedy those problems which led to the removal of the children․’  [Citation.]”  (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.)  “In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect.   The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.”  (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

The reunification plan called for mother to participate in rehabilitation services, including parenting and individual counseling, and to have visitation.   Mother does not contend she was not provided with services to enable her to comply with the reunification plan.   Her contention is services were not reasonable because the social worker did not communicate with her, failed to include her information in the report, reported unreliable information, and failed to place Jordan in therapy.   However, mother provided her information to the dependency court and had an opportunity to correct information she believed was unreliable at the hearing.   Moreover, Jordan's need for counseling to aid in transitioning to living in mother's home was not a substantial barrier to the children's reunification with mother.   The obstacle to reunification was mother's lack of progress in rehabilitation.

In the final analysis, the dependency court disregarded the social worker's testimony in reaching its determination.   Thus, any inadequacy in the social worker's servicing of the case did not prejudice mother's opportunity to reunify with her children or render the reunification services unreasonable.

D. Return to Mother Would Be Detrimental

Mother contends substantial evidence does not support the finding that return of the children to her custody would be detrimental.   She is incorrect.

“[S]ection 366.22, subdivision (a) [requires the dependency court to consider [ ] the efforts and progress of the parents towards remedying the causes requiring out-of-home care as well as their cooperation in availing themselves of the services provided.”  (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1142.)   A parent's compliance with the reunification plan is not determinative of whether reunification would be detrimental.  (Id. at p. 1143.)  “The court must also consider the parents' progress and their capacity to meet the objectives of the plan;  otherwise the reasons for removing the children out-of-home will not have been ameliorated.”  (Ibid.)

Although mother completed her court-ordered parenting program and the dependency court assumed she was in compliance with ordered therapy, the record is replete with evidence that mother nonetheless failed to make “substantive progress in ․ treatment” and, thus, that “return would be detrimental.” (§ 366.22, subd. (a).)  There was evidence she jeopardized her children's “safety, protection, or physical or emotional well-being” (§ 366.22, subd. (a)) by, for example, walking around her apartment naked, showing her children her nipples, sleeping with a male friend in a space open to the children, introducing Jordan to her “business” apartment, maintaining a website containing sexually graphic images of herself and her “courtesan” activities, exposing the children to men who made them uncomfortable, and giving her children “toys” that were dangerous and age-inappropriate.   Moreover, the sons were strongly opposed to a return to mother's care.   They preferred to remain in paternal grandparents' home—a place where they were provided with love and stability.

Mother's arguments that the record contains evidence she was a loving, safe, and appropriate parent, the Department's recommendation was based on unreliable information, and the dependency court was overly concerned about mother's line of work are but a request we reweigh the evidence.   This we will not do.  (See, e.g., Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465 [“When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment.”].) The conclusion reached by the dependency court that return of the children to mother would be detrimental is supported by substantial evidence.

DISPOSITION

The petition is denied.

KUMAR, J.*

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

FOOTNOTES

FN1. The writ petition was filed pursuant to California Rules of Court, rule 8.452..  FN1. The writ petition was filed pursuant to California Rules of Court, rule 8.452.

FN2. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN2. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN3. The dependency court found father to be the children's presumed father..  FN3. The dependency court found father to be the children's presumed father.

FN4. Mother explained she showed them her breasts to educate them about lactation..  FN4. Mother explained she showed them her breasts to educate them about lactation.

FN5. The dependency court ordered an expert evaluation of mother and her ability to empathize with and appropriately parent the children.   The court wanted “someone who's an expert to watch the interaction and see if that—what I've seen or heard here is something the children get when they're alone [with] their mom.”.  FN5. The dependency court ordered an expert evaluation of mother and her ability to empathize with and appropriately parent the children.   The court wanted “someone who's an expert to watch the interaction and see if that—what I've seen or heard here is something the children get when they're alone [with] their mom.”

FN6. In the form petition, mother has checked a box indicating she requests this court direct the trial court to continue reunification services.   However, in the brief supporting the petition, she does not request such relief or contend the trial court erred in failing to continue reunification services..  FN6. In the form petition, mother has checked a box indicating she requests this court direct the trial court to continue reunification services.   However, in the brief supporting the petition, she does not request such relief or contend the trial court erred in failing to continue reunification services.

FN7. However, the dependency court shall not terminate parental rights at the section 366.26 hearing if “[a]t each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided.” (§ 366.26, subd. (c)(2)(A).)   The court in this case made findings at the six-month and twelve-month review hearings that reasonable services were provided..  FN7. However, the dependency court shall not terminate parental rights at the section 366.26 hearing if “[a]t each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided.” (§ 366.26, subd. (c)(2)(A).)   The court in this case made findings at the six-month and twelve-month review hearings that reasonable services were provided.