California Court of Appeal Jan 13, 2015 No. D066472Unpublished
Filed 1/13/15 In re Emmanuel E. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re EMMANUEL E., a Person Coming Under the Juvenile Court Law. D066472 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J518802A) Plaintiff and Respondent,
v.
ANGELICA C.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kimberlee
A. Lagotta, Judge. Affirmed.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
At the six-month hearing, the juvenile court granted the modification petition
(Welf. & Inst. Code, § 388, subd. (c))1 of dependent child Emmanuel E. and terminated
the reunification services for his mother, Angelica C. Angelica appeals, contending that
the court abused its discretion in granting the petition. We affirm.
BACKGROUND
In October 2013, the San Diego County Health and Human Services Agency (the
Agency) filed a dependency petition for eight-year-old Emmanuel. The petition alleged
that Emmanuel was exposed to violent confrontations between Angelica and his
stepfather, Jesse M. Despite the Agency's provision of voluntary services, Angelica
continued to argue with Jesse in Emmanuel's presence and intended to remain in a
relationship with Jesse.
At the detention hearing, the court ordered Emmanuel detained with Angelica "as
long as Jesse . . . is not around [Emmanuel] and as long as [Angelica] remains in the
maternal grandmother's home." One week later, the Agency received information that
Jesse had been having contact with Emmanuel and Angelica. Emmanuel was detained in
Polinsky Children's Center.
In November 2013, the court made a true finding on the petition, ordered
Emmanuel placed with the paternal grandmother and ordered reunification services for
Angelica and Emmanuel's presumed father, Pedro E. Angelica's case plan included
individual counseling, a domestic violence program and a parenting course.
1 Further statutory references are to the Welfare and Institutions Code. 2
In July 2014, Emmanuel's counsel filed a section 388 petition. The petition
alleged that Angelica had completed none of her case plan, had not enrolled in domestic
violence treatment and had attended therapy only sporadically, having canceled most of
the scheduled sessions. The petition alleged that visits were infrequent and Angelica did
"not engage with Emmanuel during the visits."
At the contested six-month review hearing in August 2014, the court granted the
section 388 petition and terminated Angelica's services. The court continued Emmanuel's
relative placement, continued services for Pedro and set a 12-month review hearing for
November 2014.
DISCUSSION
"[A] child who, on the date of initial removal from the physical custody of his or
her parent . . . , was three years of age or older" (§ 361.5, subd. (a)(1)(A)), may petition
for termination of reunification services before the 12-month review hearing (§ 366.21,
subd. (f)) under certain conditions. The condition relevant here occurs when "[t]he action
or inaction of the parent . . . creates a substantial likelihood that reunification will not
occur, including, but not limited to, the parent's . . . failure to visit the child, or the failure
of the parent . . . to participate regularly and make substantive progress in a court-ordered
treatment plan." (§ 388, subd. (c)(1)(B).) In such a case, "[t]he court shall terminate
reunification services . . . only upon a finding by a preponderance of evidence that
reasonable services have been offered or provided, and upon a finding of clear and
convincing evidence that . . . the condition[] in subparagraph . . . (B) of paragraph (1)
exists." (Id., subd. (c)(3).)
3
On appeal, we first determine whether the required factual findings are supported
by substantial evidence. (In re M.V. (2006) 146 Cal.App.4th 1048, 1059-1060.) If
substantial evidence supports the required findings, we then decide whether the juvenile
court abused its discretion in terminating reunification services based on those findings.
(In re Jasmon O. (1994) 8 Cal.4th 398, 415.) In the instant case, we conclude that there
is substantial evidence supporting the findings, and that the court did not abuse its
discretion in granting Emmanuel's modification petition and terminating Angelica's
services.2
The social worker referred Angelica to services at the outset of the case.
Throughout the case, Angelica failed to stay in contact with the social worker. In
addition, Angelica continued to have contact with Jesse. Her participation in services
was inconsistent, and she blamed others and made excuses for her failure to comply.
Angelica signed up for a domestic violence program in January 2014, but failed to
appear for her intake appointment. A second appointment was scheduled, but Angelica
again failed to appear. In July, she began attending a different domestic violence
2 Angelica contends that "the refusal to offer further services to assist [her] is contrary to [Emmanuel's] best interests . . . as well as the permanent plan of reunification . . . ." She cites section 388, subdivision (a), which allows modification of an order based on changed circumstances or new evidence, if modification would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) Here, the court cited section 388, subdivision (c)(B), but also found that there had been a change of circumstances justifying the termination of services. Under either subdivision (a) or (c) of section 388, the court properly granted Emmanuel's petition. "[W]e review the lower court's ruling, not its reasoning; we may affirm that ruling if it was correct on any ground." (In re Natasha A. (1996) 42 Cal.App.4th 28, 38.) 4
program. By the time of the hearing, she had attended only four domestic violence
classes, and had been late to three of them.
In January 2014, Angelica failed to appear for her therapy intake appointment with
Lorena Aguila, Ph.D. Angelica did attend an intake appointment one week later, but
failed to schedule a subsequent appointment and did not return Dr. Aguila's telephone
calls. In May, Dr. Aguila recommended a psychological evaluation. Angelica believed
that this meant that Dr. Aguila thought she was "crazy," and asked the social worker for a
referral to a different therapist. Angelica then claimed that she had begun individual
therapy with her domestic violence instructor, who had not been approved by the Agency
to provide individual therapy. The instructor scheduled a therapy appointment in July,
but Angelica failed to appear for the appointment. By the time of the hearing, Angelica
had attended six therapy sessions, all with Dr. Aguila, and had missed six. Of the six
sessions that she had attended, Angelica had been late to at least two.
By January 2014, Angelica had enrolled in a parenting program. She attended one
class and then quit. In July, Angelica returned to the program. By the time of the
hearing, she had attended four of 11 classes.
Angelica's visitation with Emmanuel was inconsistent. She often failed to appear
for scheduled visits. When she did appear, she was often late. During visits, Angelica
paid little attention to Emmanuel. Her inconsistent visitation upset him. At the time of
the hearing, Angelica had not spoken to Emmanuel on the telephone for more than a
month. Despite this, Emmanuel enjoyed visits with Angelica, loved her and Pedro and
wanted to go home with both of them.
5
Angelica argues that the court should have continued her services because "once
custody is granted to Pedro, Pedro and Angelica will need to co-parent." "As a practical
matter, . . . where a nonreunifying parent is likely to have some continued contact with
his or her child, further services to that parent may be in the child's best interests." (In re
Alanna A. (2005) 135 Cal.App.4th 555, 565, fn. omitted.) However, as the Agency
points out, there is no evidence that Angelica will be co-parenting with Pedro. Moreover,
"[t]he Legislature has recognized that in some circumstances, it may be fruitless to
provide reunification services. [Citations.] In such a case, the general rule favoring
reunification services is replaced by a legislative assumption that offering services would
be an unwise use of governmental resources." (Id. at p. 566.) Such is the case here.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
MCINTYRE, Acting P. J.
IRION, J.
6
AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court did not abuse its discretion in granting a section 388 petition to terminate reunification services for a mother who failed to participate regularly or make substantive progress in her court-ordered treatment plan.
Issues
Whether the juvenile court's factual findings supporting the termination of reunification services were supported by substantial evidence.
Whether the juvenile court abused its discretion in granting the section 388 petition to terminate reunification services.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“In the instant case, we conclude that there is substantial evidence supporting the findings, and that the court did not abuse its discretion in granting Emmanuel's modification petition and terminating Angelica's services.”