S.M. v. Superior Court CA4/2 (2022) · DecisionDepot
S.M. v. Superior Court CA4/2
California Court of Appeal Jan 10, 2022 No. E077990Unpublished
Filed 1/10/22 S.M. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
S.M.,
Petitioner, E077990
v. (Super.Ct.Nos., J280252, J280254, J280255 & J281229) THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, OPINION
Respondent;
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS for extraordinary writ. Steven A. Mapes, Judge.
Petition denied.
Tim L. Guhin for petitioner.
No appearance for respondent.
Steven O’Neill, Interim County Counsel, and David Guardado, Deputy County
Counsel, for Real Party in Interest.
1
The juvenile court terminated petitioner S.M.’s (mother) reunification services and
set the Welfare and Institutions Code section 366.26 hearing. 1 Mother has filed a petition
for extraordinary writ contending insufficient evidence supported the juvenile court’s
determination that it would be detrimental to return the children to mother’s custody. We
On November 15, 2018, personnel from real party in interest, San Bernardino
County Children and Family Services (the department), received a referral alleging
physical abuse of J.J. (born Dec. 2017) by mother. The reporting party alleged that
mother hit J.J. with an open hand on the face and slapped him on the back. On
November 23 and December 7, 2018, the social worker attempted to meet with the family
at their home; she knocked several times but received no answer.
On February 6, 2019, the social worker obtained information regarding mother
from a benefits eligibility worker. Mother had reported being homeless. The information
reflected that S.M. (born Jan. 2012) was attending a specific elementary school. On
February 8, 2019, the social worker went to the elementary school and met with S.M.
1All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2
S.M. reported the family was staying at a motel. S.M. said mother and D.M. (father)2
would fight with their hands and words. Father would slap mother in the face. S.M.
would try to get in between them to help mother. S.M. reported that mother would hit
S.M. with objects, which would leave bruises.
Mother contacted the social worker that day; mother was irate at the social worker
for contacting S.M. at school; mother directed profanity at the social worker. Mother
reported the family was living at a local motel. Mother said she was bipolar and suffered
from anxiety. The social worker thereafter made several unsuccessful attempts to contact
the family at several motels.
On March 6, 2019, the social worker again made contact with S.M. at school;
however, S.M. was closed-off and quiet during the interview. On March 14, 2019, the
social worker obtained a detention warrant. The warrant was served on mother at S.M.’s
school. Mother became irate, cursing, yelling, screaming, and balling her fist; mother
punched some metal filing cabinets. S.M. reported that mother had told her to lie and say
they were living in a motel. S.M. again reported domestic violence between mother and
father. At that time, the social worker had no information regarding where mother’s three
other children were living.
2 All four children who were the subjects of the initial juvenile dependency petitions had separate fathers. Father is the father of J.J. and N.J., who was born during the pendency of the proceedings. Father is the only father who participated in the proceedings other than F.M.’s father, who obtained custody of F.M. and had the petition dismissed as to F.M. None of the fathers are a party to this petition for extraordinary writ.
3
F.M.’s (born Oct. 2016) father said F.M. had been living with him for the last two
weeks. He said F.M. had lived with him previously for six months. He had been trying
to obtain legal custody of her. Paternal relatives of A.M. (born Apr. 2014) reported
having custody of A.M. but refused to give their address. Father had an extensive
criminal history, including numerous possession of marijuana, domestic violence, and
burglary offenses.
Department personnel filed juvenile dependency petitions alleging mother had
anger issues, engaged in domestic violence in the presence of the children, had untreated
mental health issues, and lived an unsafe and unstable lifestyle. They alleged father
engaged in domestic violence, lived an unsafe and unstable lifestyle, had an extensive
criminal record, and had a history of substance abuse.3 On March 19, 2019, the court
detained all of the children except F.M., who was left in her father’s custody.
In the jurisdiction and disposition report filed April 4, 2019, the social worker
recommended the court remove the children from mother and the various fathers, and
provide reunification services for mother and father. On March 28, 2019, mother
reported being homeless since August 2017. She was now seven and a half months
pregnant. Mother said she was not taking her prescribed psychotropic medication; she
said she went off them when she became pregnant. Mother tested positive for marijuana
on March 19, 2019; she reported smoking twice daily for her depression and anxiety.
Mother reported having anger issues her whole life.
3 No copy of a juvenile dependency petition for F.M. is included in the record.
4
S.M. reported mother had anger problems; she wanted mother to stop yelling so
much; S.M. said mother would hit S.M. with mother’s hands, shoes, and father’s belt.
S.M. reported that the family was homeless. S.M. said she previously lived with F.M.’s
father, who was nice.
The whereabouts of A.M.’s father was unknown. S.M.’s father was located in
Las Vegas; due to his lengthy criminal history, the social worker recommended the court
deny him reunification services pursuant to section 361.5, subdivision (b)(5). Counsel
for F.M.’s father was seeking dismissal of the dependency proceedings with family law
orders.
Father denied any domestic violence with mother but admitted having a history of
domestic violence with the mother of his three other children. Father tested positive for
marijuana on March 19, 2019.
On April 9, 2019, the court sent the matter to mediation. Mother admitted the
mental health and domestic violence allegations. The department agreed to dismiss the
remaining allegations. The department and mother agreed to a disposition that would
include reunification services to include components for individual counseling, substance
abuse treatment, random drug testing, domestic violence counseling, a psychiatric
evaluation and monitoring, anger management, and parenting. On May 16, 2019, the
court sustained the remaining allegations, removed the children from parents’ custody,
and granted mother and father reunification services.
On June 3, 2019, the social worker reported that mother had given birth to N.J.
(born May 2019). Mother gave the social worker permission to take N.J. into protective
5
custody. Department personnel filed a juvenile dependency petition as to N.J. mirroring
the allegations in those previously filed and sustained on behalf of the other children. On
June 4, 2019, the court detained N.J.
In the jurisdiction and disposition report filed June 20, 2019, the social worker
recommended the court remove N.J. from parents’ custody and provide them
reunification services. Mother reported that she and father were no longer together. She
said she was now taking her medication. Mother had enrolled in the anger management,
individual therapy, parenting education, and substance abuse components of her case
plan. On June 25, 2019, the court found the allegations in the petition as to N.J. true,
removed him from parents’ custody, and granted them reunification services.
In the status review report filed November 13, 2019, as to S.M., A.M., and J.J., the
social worker recommended the court continue parents’ reunification services. Mother
had completed 11 of the 12 classes in her anger management program. She had
completed her parenting program. Mother had not completed her individual therapy; she
started attending regularly, but around September 2019, she started missing appointments
and eventually stopped attending altogether. Mother had completed a domestic violence
program. She had been dropped from her outpatient program for too many absences.
Mother tested negative for controlled substances on May 6 and 17, June 6, July 17
and 30, and August 19, 2019. She failed to test on June 12, September 10 and 16,
October 17 and 21, 2019. Father tested positive for marijuana on one date and failed to
test on 10 subsequent dates. On November 18, 2019, the court continued parents’
reunification services.
6
In a status review report filed December 13, 2019, on behalf of N.J., the social
worker recommended the court continue reunification services. The report contained no
new information and, instead, recounted what had already been reported in previous
reports. On December 18, 2019, the court continued parents’ reunification services as to
N.J.
In the status review report filed May 19, 2020, as to S.M., A.M., and J.J., the
social worker recommended the court terminate parents’ reunification services and set the
section 366.26 hearing. Father tested positive three times for marijuana and failed to test
nine times. Father was not participating in any of his programs.
Mother had not completed her individual therapy or domestic violence/anger
management program. Mother tested positive on January 23, February 14, and March 16,
2020; she failed to show for drug testing on November 18 and 21, December 11 and 17,
2019, and January 29, February 7, and March 24, 2020. Personnel at mother’s substance
abuse program reported that mother was not on their participants’ list. Mother was no
longer seeing her psychiatrist or taking her medication. Mother failed to visit the
children regularly. When visits changed to video calls, mother started to visit the
children regularly but missed visits occasionally and did not request to reschedule them.
In an addendum report filed on August 27, 2020, as to all the children, the social
worker recommended terminating parents’ reunification services and setting the
section 366.26 hearing as to all the children. Mother had enrolled in a new substance
abuse program on July 7, 2020, and had tested positive for marijuana that day. She tested
positive for marijuana again on July 28 and August 12, 2020. Mother failed to test on
7
April 27, May 12 and 19, June 11 and 17, and August 4, 2020. She tested negative on
August 24, 2020. Mother had not completed her individual counseling.
At the 12-month review hearing on August 27, 2020, the department changed its
recommendation to continuing reunification services and setting the section 366.22
hearing. The court continued reunification services and set the section 366.22 hearing.
In the status review report filed on September 14, 2020, the social worker
recommended the court terminate reunification services and set the section 366.22
hearing. Father had maintained no contact with the department; the department no longer
had a telephone number for father. Father had not participated in any of his services.
Mother had not completed her substance abuse program. Mother’s substance
abuse counselor stated that mother was likely to complete the six-month program in
February 2021. Mother tested positive for marijuana on August 26, 2020. She tested
negative on August 24 and September 8, 2020. Mother had failed to complete her
individual therapy; she was currently participating in individual therapy and had
participated in three of four sessions. Mother was no longer seeing a psychiatrist or
taking her prescribed medication. According to mother, her “current program is working
with her to get her medication.” Mother regularly visited with children but occasionally
missed visits. She did not request to reschedule missed visits. Mother “has not been
successful in progressing visitation toward unsupervised and/or extended visits. She has
had significant visitation setbacks that have required increasing supervision due to safety
concerns for the children.”
8
In an October 19, 2020, information for the court report, the social worker
reported that mother had completed eight sessions of individual therapy. The therapist
“doubled up” on anger management with mother, helping her to identify her triggers and
become more mindful of her emotions. Mother tested positive for tetrahydrocannabinol
(THC) on July 7 and 28, and August 12, 2020. She tested negative on August 24,
September 7, 21, 28, and 30, October 2, 6, 7, and 20, 2020. Mother was scheduled to
complete her substance abuse program in January 2021.
At the 18-month review hearing on November 2, 2020, mother’s therapist testified
that mother had completed all 12 classes of her anger management program. She
completed all 12 classes of her parenting course. Mother completed the first eight
sessions of individual therapy. Eight more sessions had been requested. Mother
completed six of those. Thus, mother had completed 14 out of 16 sessions. Mother’s
therapist testified that mother had “more than met the requirements” as far as anger
management, parenting, and individual counseling components of her case plan. Mother
had dramatically improved. She had learned to use coping skills, calmed more easily,
and her anxiety levels had decreased. The therapist had diagnosed mother with a learning
disability, which may have affected mother’s ability to complete her services. However,
the therapist had never discussed mother’s learning disability with the social worker.
After hearing the therapist’s testimony and discussing the issue with counsel off-
the-record, the court determined that “because of the learning disability that was recently
discovered, that we would give Mom [six] more months of services . . . . The learning
disability is the real issue, and it was just discovered. I wouldn’t find a lack of reasonable
9
services. I don’t think that is the case here. Honestly, it is more of an issue of doing
justice for the family.”
Counsel for the department noted: “The social worker indicated to me that she
was aware of [the learning disability], and that it was addressed by that agency early on
when the mother did her first round of counseling with them because the mother
informed the social worker that at the agency, they were helping her learn to read and
write. [¶] . . . [¶] So that was being addressed since 2019 . . . . [¶] . . . [¶] It was not as
focused as what [the therapist] is doing [now].”
The court observed: “Still, it gives me the same result. It would be an unduly
harsh outcome to cut off what now is working. I think that would be unduly harsh for the
kids.” The court terminated parents’ reunification services, found that it would be
detrimental to return the children to mother’s custody, and offered mother six more
months of services under a permanent plan.
In the status review report filed April 27, 2021, the social worker recommended
reunification services under the permanent plan be terminated and that the court set the
section 366.26 hearing. Mother had completed a six-month outpatient substance abuse
program, 16 sessions of individual counseling, 21 sessions in an anger management
program, a parenting education course, and a domestic violence program. She tested
negative for controlled substances on November 17 and December 14, 2020, and March 1
and 25, 2021. Mother had weekly, three-hour, unsupervised visits with the children at the
department’s offices.
10
Mother failed to show for testing on December 31, 2020, and January 8, 13, and
February 10, 2021. She tested positive for barbiturates on December 14, 2020, and
February 24, 2021. During one visit, mother called father to participate via video; mother
said she did not know she was not supposed to supervise visits with father; however, the
social worker had informed father his visits could not be supervised by mother. During
another visit, mother took J.J. away from the caregiver while the caregiver was checking
him in for the visit; the caregiver took J.J. back; mother “became upset and started
berating the caregiver telling her that [J.J.] is her son and not the caregiver’s.”
In an information for the court report filed July 15, 2021, the social worker
reported that mother had missed individual therapy sessions on June 28 and July 2, 2021.
Mother had weekly visitation with the children, which went “well without any reported
concerns.” Mother tested negative on May 6 and 24, and June 18 and 22, 2021. The
social worker reported that “mother has successfully completed the Court ordered
services and she has shown benefit from those services.”
In a September 8, 2021, information for the court report, the social worker
reported that mother had missed another individual therapy session on June 21, 2021.
Mother was discontinued from therapy for having missed three appointments. The social
worker referred mother again for individual therapy, and she started seeing her new
therapist on August 25, 2021. Mother tested negative on July 16 and 20, and August 3,
2021.
After a visit on July 19, 2021, J.J. showed the social worker a picture of he and
father, which had been taken during the visit. Mother said that father had just happened
11
to be at the location of the visit. She reported asking father to leave. S.M. and A.M.
reported that “they do not keep track or are not able to indicate the number of times
[father] has attended” visits.
At the hearing on October 22, 2021, father testified that the last time he had seen
N.J. and J.J. was on July 19, 2021, when he was at the same place as mother and the
children. He and mother do not talk with one another. Father said he was at the same
location with his other children. J.J. ran up to him and wanted a picture. Father left
immediately thereafter.
Mother testified that father just appeared at the location of the visit on July 19,
2021; she had no idea he was going to be there. Mother knew that father was not allowed
at visits. She allowed J.J. to take a picture with father. Mother then talked father into
leaving. She told him his presence was not allowed and that by being there he was
endangering her unsupervised visitation. Father never appeared at any other visit.
Mother was not in a relationship with father and had no other contact with him.
Mother testified she had taken 22 anger management classes. She had just been
approved for housing.
The court found mother had a “protective-capacity issue” by not realizing the risk
posed to the children by father, who had not even participated in services. The court also
found concerning the fact that mother did not report father’s appearance at the July 19,
2021, visit to the department. The court terminated mother’s reunification services. The
court concluded by a preponderance of the evidence that “[i]t would be a detriment to
return the children to Mother. . . . [¶] . . . The mother has made great progress. She
12
appears to be a different person, but there are still these underlying protective issues that
are there. These things that haven’t been fully addressed that constitute a risk to the
children.” The court set the section 366.26 hearing.
II. DISCUSSION
Mother contends insufficient evidence supports the juvenile court’s finding that it
would be detrimental to return the children to her custody. The department maintains
that because mother’s nonstatutory services were discretionary under the permanent plan,
the court was not required to render a detriment finding. Thus, the department argues
mother’s claim is noncognizable in this petition. The department additionally contends
that by failing to appeal the juvenile court’s detriment finding rendered when it
terminated her reunification services on November 2, 2020, mother has forfeited the
claim. We hold that even assuming the court was required to render a detriment finding
and mother has not forfeited that issue, sufficient evidence supports the court’s ruling that
it was detrimental to return the children to mother’s custody.
Section 366.25 governs cases in which reunification services have been extended
to 24 months. At the 24-month review hearing, the child must be returned to his parent,
“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.” (§ 366.25,
subd. (a)(1).) The department has the burden of establishing detriment. (Ibid.) “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
13
would be detrimental.” (Ibid.) If the child is not returned to his parents at the 24-month
review hearing, the juvenile court must set a section 366.26 hearing. (§ 366.25,
subd. (a)(3).)
“In reviewing factual determinations for substantial evidence, a reviewing court
should ‘not reweigh the evidence, evaluate the credibility of witnesses, or resolve
evidentiary conflicts.’ [Citation.] The determinations should ‘be upheld if . . . supported
by substantial evidence, even though substantial evidence to the contrary also exists and
the trial court might have reached a different result had it believed other evidence.’
[Citations.] Uncontradicted testimony rejected by the trial court ‘“cannot be credited on
appeal unless, in view of the whole record, it is clear, positive, and of such a nature that it
cannot rationally be disbelieved.”’” (In re Caden C. (2021) 11 Cal.5th 614, 640.)
Here, despite the social worker’s contention that mother had completed her
reunification services, the record reflects that mother had still failed to complete the
individual counseling component of her services despite 24 months of services. The
therapist who testified at the 18-month hearing, and whose testimony was responsible for
the additional six months of services, had testified that mother had not yet completed the
individual counseling component of her services. The court had granted mother an
additional six months of services in order to address the learning disability with which the
therapist had diagnosed mother; by implication, that learning disability would be
addressed by individual counseling. However, a later information for the court report,
coming after the 24-month status review report, reflected that mother had missed three
recent individual therapy sessions and had been discontinued from therapy. Thus, mother
14
had failed to complete the individual therapy component of her service plan, the only real
basis for having her services continued for the additional six months.
Moreover, mother had still failed to complete the substance abuse testing
component of her case plan. The 24-month status review report reflected mother had
twice tested positive for barbiturates. She had failed to show for testing on another four
occasions. Thus, mother had failed to complete the substance abuse testing component of
her case plan. Therefore, mother’s failure to complete her court-ordered treatment plan
was prima facie evidence that returning the children to mother was detrimental to their
safety, protection, or physical or emotional well-being. (§ 366.25, subd. (a)(1).)
Furthermore, mother put the children at risk by allowing father around the
children. The court sustained allegations that father had engaged in domestic violence,
lived an unsafe and unstable lifestyle, had an extensive criminal record, and had a history
of substance abuse. Other than testing positive for drugs on numerous occasions, father
had failed to participate in services at all. Yet, during the last reporting period, mother
allowed father around the children. Mother allowed father to participate in a video visit
with the children. During another visit, father happened to be at the same location
mother had taken the children; mother allowed father to have contact with J.J.; mother
failed to report the contact to the social worker. The only reason the social worker found
out about the contact was that J.J. told the social worker and showed her a picture of J.J.
and the father.
The court’s findings that mother had a “protective-capacity issue” by not realizing
the risk posed to the children by father and by not reporting contact between J.J. and
15
father was supported by substantial evidence. In fact, a rational inference of the evidence
and the court’s findings is that mother may have allowed further contact with the
children. S.M. and A.M. had reported that “they do not keep track or are not able to
indicate the number of times [father] has attended” visits, which indicates father had
more contact with the children than just the one video and one in-person visit. Thus, the
court’s conclusion that it “would be a detriment to return the children to Mother,” was
supported by evidence that mother had failed to complete her service plan and the
“underlying protective issues” mother had with allowing the children visitation with
father.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
FIELDS J.
RAPHAEL J.
16
AI Brief
AI-generated · verify before citing
Holding. The court held that sufficient evidence supported the juvenile court's finding that returning the children to the mother's custody would create a substantial risk of detriment, citing the mother's failure to complete court-ordered services and ongoing protective-capacity issues regarding the children's father.
Issues
Whether sufficient evidence supported the juvenile court's finding of detriment to return the children to the mother's custody.
Whether the mother's failure to complete court-ordered treatment programs constituted prima facie evidence of detriment under Welfare and Institutions Code section 366.25.