Margarita S. v. Super. Ct. CA4/1
- Proceeding
- writ
- Trial judge
- Daniel G. Lamborn
- Outcome
- writ denied — Petition denied; request for stay denied.
- Area
- dependency
- Panel
- McINTYRE (author), Patricia D. Benke, Joan K. Irion
Analysis
The juvenile court denied reunification services to the mother under Welfare and Institutions Code section 361.5, subdivision (b)(10), finding she failed to make reasonable efforts to treat the problems leading to the removal of her other children. The Court of Appeal denied the writ petition, holding that substantial evidence supported the juvenile court's findings.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(10)“Substantial evidence supports these findings.” | substantial evidence | correct | agree with court The appellate court correctly applied the substantial evidence standard to review the juvenile court's factual findings regarding the parent's efforts. The record cited in the opinion, including the parent's denial of domestic violence and failure to attend parenting classes, provides a sufficient basis for the finding that reasonable efforts were not made to address the issues leading to the removal of the siblings. |
Authorities
- relied: Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87 — Establishes the presumption that parents will receive reunification services and the requirement for clear and convincing evidence to bypass services under section 361.5, subdivision (b). The court correctly cited this for the standard of proof and the presumption.
- relied: Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586 — Explains that the bypass provisions of section 361.5 represent the Legislature's recognition that services may be fruitless under certain circumstances. The court used this to frame the statutory context.
- relied: R.T. v. Superior Court (2012) 202 Cal.App.4th 908 — Provides the factors for assessing a parent's efforts to overcome problems leading to removal, including duration, extent, context, and degree of progress. The court applied these factors to evaluate the mother's participation in services.
- relied: James B. v. Superior Court (1995) 35 Cal.App.4th 1014 — Establishes the substantial evidence standard of review for orders setting a section 366.26 hearing and the duty to draw all reasonable inferences in support of the findings. The court correctly applied this standard.
The appellate opinion: sound — The opinion is sound because it correctly identifies the applicable legal standard (substantial evidence) and the specific statutory provision (section 361.5, subd. (b)(10)). It then meticulously applies the factors from R.T. to the specific facts in the record, such as the mother's denial of domestic violence and minimal attendance in parenting classes, to support the conclusion that reasonable efforts were not made.
How this analysis was made · dispute it
unusual dispositionThe juvenile court denied Margarita S. reunification services as to her infant daughter Q.S. under Welfare and Institutions Code section 361.5, subdivision (b)(10), finding she had failed to reunify with Q.S.'s half siblings and had not made reasonable efforts to treat the problems that led to their removal, and set a section 366.26 hearing. On writ review the Court of Appeal held substantial evidence supported the reasonable-efforts finding as to domestic violence and neglect and denied the petition and the request for a stay.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of reunification services under section 361.5, subdivision (b)(10) based on a finding that the mother had not made reasonable efforts to treat the domestic violence and neglect problems that led to removal of Q.S.'s half siblings, and setting of a section 366.26 hearing“Although the juvenile court found that Margarita had made reasonable efforts to resolve her substance abuse, it noted that she had made no effort to address her history of domestic violence and child neglect. Substantial evidence supports these findings.” | substantial evidence | correct | agree with court The first prong was conceded. On the second prong the record recited shows the mother failed to participate in court-ordered domestic violence treatment, violated three safety plans, denied any history of domestic violence, characterized a recent violent episode as 'funny, not violent,' and was reported a month before the hearing to still be fighting with the father; she attended only two of 52 parenting classes and participated in no other services addressing the neglect. Under the deferential substantial-evidence standard and the R.T. factors (duration, extent, context, degree of progress), that evidence supports the finding. The court did not address how the finding of reasonable efforts on substance abuse interacts with failures on the other removal problems, but the statute looks to the problems leading to removal collectively and the mother did not argue otherwise. |
Authorities
- relied: Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87 — Parents are presumptively entitled to reunification services; section 361.5(b)(10) requires clear and convincing proof of prior failure to reunify with a sibling and no reasonable effort to treat the problems leading to the sibling's removal
- relied: Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586 — Section 361.5(b) bypass provisions reflect the Legislature's recognition that reunification services may be fruitless in certain circumstances
- relied: R.T. v. Superior Court (2012) 202 Cal.App.4th 908 — In assessing reasonable efforts the court considers the duration, extent, and context of the parent's effort and the degree of progress
- relied: James B. v. Superior Court (1995) 35 Cal.App.4th 1014 — An order setting a section 366.26 hearing is reviewed for substantial evidence; the reviewing court does not reweigh evidence or assess credibility and draws all inferences in favor of the findings
- missed: In re Harmony B. (2005) 125 Cal.App.4th 831 — The 'reasonable effort' requirement of section 361.5(b)(10) is not satisfied by any effort at all, nor does it require a cure; the court evaluates the genuineness and adequacy of the effort in light of the problems that led to removal
The appellate opinion: sound with gaps — The opinion answers the only contested issue, the reasonable-efforts prong, with the correct governing authorities and a record that plainly supports the finding under deferential review. It does not discuss how partial reasonable efforts on one removal problem (substance abuse) bear on the overall finding, nor the body of law distinguishing 'reasonable effort' from 'any effort' or 'cure,' but the result is defensible without them.
Opinion
Filed 11/6/14 Margarita S. v. Super. Ct. 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
MARGARITA S., D066383 Petitioner, (San Diego County Super. Ct. No. SJ12868E) v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY et al., Real Parties in Interest.
PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Daniel G. Lamborn, Judge. Petition denied;
request for stay denied.
Dependency Legal Group of San Diego and John P. McCurley for Petitioner. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Real Party in Interest San Diego County Health and Human Services Agency.
Margarita S. seeks writ review of the juvenile court's July 18, 2014, order setting a Welfare and Institutions section 366.26 hearing regarding her youngest daughter, Q.S.
(born 2014). (Undesignated statutory references are to the Welfare and Institutions Code.) Margarita contends the court erred by denying reunification services based on her failure to reunite with a sibling or half sibling of Q.S. in a previous dependency proceeding. (§ 361. 5, subd. (b)(10).) We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2013, the San Diego County Health and Human Services Agency (Agency) filed petitions for D.C., L.C. and R.S. after the minors were removed from Margarita's home because of the "filthy and unkempt" conditions of the home and concerns about Margarita's marijuana use. The children had not been attending school regularly, there was minimal food in the home and they had ongoing lice and skin rash issues. Margarita gave birth to P.I. in May 2013. In July 2013, P.I. was removed after allegedly being "exposed to violent confrontations" involving Margarita and the father.
Although Margarita was ordered to participate in services, she failed to do so and her services were terminated in March 2014.
Q.S. was born in May 2014. At that time, Margarita and Q.S. tested negative for controlled substances. The Agency filed a petition alleging Q.S. was at substantial risk because her sibling had been abused or neglected, exposed to domestic violence and 2 substance abuse. Q.S. was detained in the home of the paternal grandmother. At the combined jurisdiction and disposition hearing held in July 2014, the Agency and counsel for Q.S. argued that services should not be provided. At the dispositional hearing, after considering the evidence and argument by counsel, the court found section 361.5, subdivision (b)(10) applied, it denied services and set the matter for a section 366.26 hearing.
Margarita filed a petition for review of the court's orders. (§ 366.26, subd. (l); Cal.
Rules of Court, rule 8.452.) We issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
It is presumed in dependency cases that parents will receive reunification services.
(Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95.) Nonetheless, subdivision (b) of section 361.5 "sets forth a number of circumstances in which reunification services may be bypassed altogether. These bypass provisions represent the Legislature's recognition that it may be fruitless to provide reunification services under certain circumstances." (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.)
Subdivision (b)(10) of section 361.5 provides that services need not be provided if the parent failed in a previous dependency to reunite with a sibling or half sibling of the child who is the subject of the current petition.
To apply this provision, the juvenile court must find by clear and convincing evidence that (1) the parent had previously failed to reunify with a sibling, and (2) the parent has not made a reasonable effort to treat the problems leading to the removal of the 3 sibling. (§ 361.5, subd. (b); Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p.
96.) In assessing a parent's efforts to overcome the problem that led to the removal of a child's sibling, the juvenile court considers the duration, extent, and context of the parent's effort and the degree of progress. (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 915.) We must affirm an order setting a section 366.26 hearing if it is supported by substantial evidence. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence and must draw all reasonable inferences in support of the court's findings. (Id. at p. 1021.)
Margarita does not dispute satisfaction of the first prong of section 361.5, subdivision (b)(10), that she previously failed to reunify with a sibling or half sibling of the minor. She argues substantial evidence did not support the finding she had failed to make reasonable efforts to treat the problems that led to the removal of Q.S.'s siblings or half siblings.
When Q.S. was born, Margarita denied having a drug problem, denied any history of domestic violence, blamed others for her previous dependency and did not acknowledge any responsibility. Although the juvenile court found that Margarita had made reasonable efforts to resolve her substance abuse, it noted that she had made no effort to address her history of domestic violence and child neglect. Substantial evidence supports these findings.
In July 2013, the Agency removed P.I. from Margarita's care after she had been exposed to acts of domestic violence. Nonetheless, Margarita failed to participate in 4 previously ordered domestic violence treatment and failed to comply with three safety plans that had been put into place. At the time of Q.S.'s detention, Margarita denied any history of domestic violence. When a social worker reminded Margarita of a recent altercation with the father where the father ripped clothing and threw objects, Margarita responded, "[i]t was funny, not violent," apparently unaware that thrown objects can hurt an infant. Moreover, in June 2014, only a month before the jurisdiction and disposition hearing, Q.S.'s paternal grandmother informed the Agency that Margarita and the father "fought a lot" and the father often telephoned "crying, acting like a 12 year old" stating that Margarita was going to beat him up. This evidence revealed that domestic violence remained an untreated and valid concern.
Substantial evidence also supports the court's decision to deny services to Margarita based on her failure to make reasonable efforts to address the neglect of Q.S's three older half siblings. The Agency removed Q.S.'s half siblings from Margarita because her home was filthy, there was minimal food, the children were not regularly attending school and had lice and skin issues. Margarita failed to participate in any services to address these issues. Although Margarita began a 52-week parenting program just before the jurisdiction and disposition hearing, she had attended only two classes.
This effort was too little and too late, especially given the social worker's report that Margarita did not take personal responsibility for the condition of her children and showed no insight as to how she placed them in danger. The social worker ultimately concluded that Margarita did not have the capacity to be a safe and nurturing parent.
5 Additionally, at the time of the hearing it appeared Margarita did not have a place to live or a job.
In summary, the record supports the juvenile court's conclusion that Margarita did not make a reasonable effort to treat the problems that led to the removal of Q.S.'s siblings or half siblings.
DISPOSITION
The petition is denied. The request for a stay is denied.
MCINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
Cites, in this corpus
- R.T. v. Superior Court No. C069345 · 2012-01-11
- CHERYL P. v. Superior Court D047891 · 2006-05-05
- Francisco G. v. Superior Court H022860 · 2001-08-10
- James B. v. Superior Court A069224 · 1995-06-12