In re Abel H.

Filed 11/30/05 In re Abel H. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re ABEL H. et al., Persons Coming Under the Juvenile Court Law.	B185561
RACHEL R. and AVELINO H., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. ____________________________________ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.	(Super. Ct. No. CK 53098) (Steven Berman, Juv. Ct. Referee)

ORIGINAL PROCEEDING; petitions for extraordinary writ. Writs granted.

________

Mauricio Fusco for Petitioner Rachel R.

Avelino H., in pro. per., for Petitioner Avelino H.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and Kim Nemoy, Deputy County Counsel, for Real Party in Interest.

Children’s Law Center, Devora Navera and Christine Caldwell for Minors as Joinder on behalf of Real Party in Interest.

_________

In this dependency proceeding, both parents have petitioned for extraordinary writ review of an order setting a permanency planning hearing for their minor sons. (Welf. & Inst. Code, § 366.26; Cal. Rules of Court, rule 38.1.)^[1] We grant the petitions and direct that the children be returned to their parents’ custody.

BACKGROUND

Petitioners Rachel R. and Avelino H. are the parents of Abel H. and Andrew H. The children were placed in emergency foster care upon Rachel’s arrest in August 2003.

A. Rachel’s Criminal Case

On August 2, 2003, the La Verne Police Department received a call at about 4:30 p.m. from a passer-by, Judy M., who had witnessed a “possible child abuse in progress.” When Officers Christofferson and Laney arrived to meet Judy at a certain intersection, they saw Rachel walking on the sidewalk with Abel (then almost age three) by her side and Andrew (then age two) in her arms.

According to the police report, Judy told the officers that a short time ago, while driving, she had seen Rachel “reach back and strike [Abel] on the back of the head. The strike caused [Abel] to fall to the ground. [Rachel] then reach[ed] down and grabbed [Abel] by the arm. [Rachel] picked [Abel] off the ground and began yelling at him. . . . [Rachel] appeared very upset. [Rachel] then pushed [Abel,] forcing him to walk down the sidewalk. Judy slowed her vehicle and [Rachel] yelled at her to mind her own business. Judy contacted the police department.”

According to the police report, Rachel stated “that she was looking for a check-cashing store so she could cash a check and get some money. The[y] started walking from the American Inn in Pomona and all three were tired and hot. Abel, her oldest son at two, was walking at a slow pace so she hit him on the back of the head. I asked if Abel fell to the ground and she stated, ‘Yes.’ [¶] I turned to Abel and asked him if mommy hit him and he shook his head yes. I asked Abel to point to where mommy hit him but he did not appear to understand the question. Rachel stated that she hit him in the back of the head and she pointed to his head. I examined the back of Abel’s head and was unable to locate any injuries. I did find an abrasion on Abel’s forehead that appeared to be fresh. Rachel explained that Abel fell a few minutes earlier in front of Person Ford and that’s what caused the injury.”

Christofferson arrested Rachel for violating Penal Code section 273d, subdivision (a), punishable either as a misdemeanor or a felony, which states: “Any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years, or in a county jail for not more than one year, by a fine of up to six thousand dollars ($6,000), or by both that imprisonment and fine.”

At the police station, Christofferson advised Rachel of her Miranda rights and questioned her further about the incident. There is no indication that Rachel asked to have an attorney present. According to the police report, “Rachel explained that she does not know the area and was looking for a place to cash her check. She explained that the kids were nagging and she was nagging because they were hot from the sun. I asked Rachel what brought her here. Rachel paused then stated, ‘I wrongfully disciplined my child.’ She explained that she did not intend to hurt her child. Rachel admitted to striking Abel with an open hand to the back of his head causing him to fall to the ground. Rachel explained that the marks on Abel’s forehead were caused from a prior fall. I asked Rachel if she picked Abel up after he fell. Rachel was unable to recall what happened after Abel fell. Rachel and I continued to speak and she understood that what she did was wrong. At one point she stated, ‘I’m sorry to my children and to all who saw that.’”

On August 5, 2003, Rachel appeared at her arraignment without an attorney. After Rachel pled guilty to one misdemeanor count of corporal punishment or injury of a child (§ 273d, subd. (a)), the criminal court placed her on three years of formal probation. There is no indication that the criminal court, the prosecutor, or Rachel knew, when she entered her guilty plea, that the Department of Children and Family Services would be filing a dependency petition the next day and that the dependency court would be imposing reunification requirements in addition to the probation requirements.

The mandatory minimum conditions of probation for a section 273d, subdivision (a) violation, which the court may waive in the interests of justice, include 36 months of probation, completion of at least one year of a child abuser’s treatment counseling program, and payment of counseling fees. (§ 273d, subd. (c).) The criminal court ordered Rachel to serve three years of formal probation, pay a $100 restitution fine, complete a one-year parenting program, and perform 630 days of community service for a “tree farm or Cal Trans.”

B. The Dependency Case

Having arrested Rachel, the police contacted the Department. When social worker Danielle Vega arrived at the police station, she learned that Abel did not require any medical attention for a “red, superficial abrasion” on his forehead that “did not break any skin.” Vega, who placed the children in emergency foster care,^[2] stated in her report dated August 6, 2003, that Abel was “clean, healthy, cared for with no apparent marks or bruises due to abuse or neglect. [Abel] has a small round light red abrasion on his forehead received when mother pushed minor and [Abel] fell to the ground while the two, mother and [Abel] were walking. [¶] Minor Andrew appeared clean, healthy, well cared for with no apparent marks or bruises due to abuse [or] neglect.”

Vega further stated that Rachel, who had been staying in a motel and was unfamiliar with the area, was walking with the children on a hot day to look for a check cashing service when the incident occurred. Rachel told Vega that “she felt bad” about hitting Abel on the back of the head “with an open hand,” “intend[ing] to just push” him “slightly” to hurry him along, “but instead [he] fell.”

On August 6, 2003, the Department filed a petition on behalf of Abel and Andrew which (as amended on August 25, 2003) alleged that, “On or about 8/2[]/03 the children’s mother inappropriately physically disciplined the child Abel while holding the child Andrew in her arms. Such physical discipline consisted of but was not limited to striking Abel’s head from behind, causing him to fall forward to the ground. Such conduct by the children’s mother was excessive and caused Abel pain, and places the children at substantial risk of physical and emotional harm.” In addition, the amended petition alleged that Rachel and the children’s father, Avelino H., have a history of domestic violence which “endangers the children[’s] physical and emotional health, safety and well-being, and creates a detrimental home environment.”

On November 5, 2003, Rachel and Avelino participated in mediation and agreed to a case plan that included parenting classes, domestic violence/anger management group counseling and, for Rachel, individual counseling to address issues including stress management and appropriate discipline.

On December 9, 2003, Rachel filed a waiver stating that she wished to plead no contest to the allegations of the amended petition. Avelino filed a waiver stating that he would submit the amended petition on the basis of the social worker’s reports and other documents, if any.

On December 15, 2003, the dependency court sustained the amended petition and entered a disposition case plan requiring Rachel to attend parenting classes and individual counseling to address stress management and appropriate discipline. The court dependency ordered Avelino to attend parenting classes, domestic violence counseling, and individual counseling to address anger management. Both parents received monitored visitation.

At the six-month review hearing on May 24, 2004, the dependency court found that the Department had failed to provide the parents with reasonable services and ordered further services for the parents. At the 12-month review hearing on January 19, 2005, the court ordered the Department to provide further services and set the matter for an 18-month review hearing which was held on July 20, 2005.

The record includes the following evidence regarding the parents’ compliance with the case plan: (1) Parenting Classes: On December 18, 2003, Rachel and Avelino completed a parenting program and received certificates of completion. (2) Domestic Violence: In January 2004, Rachel and Avelino enrolled in a domestic violence and anger management program. Although both parents were terminated from that program for poor attendance in February 2004, they both re-enrolled and as of this proceeding, Rachel lacks only one exit interview before she will receive a certificate of completion. Avelino has attended 37 classes and, according to his counselor’s report dated April 30, 2005, “has become a valued member” of the program and “is able to identify his own behaviors using power and control concepts” and “is sharing more spontaneously in group discussions.”^[3] (3) Individual Counseling: As of November 12, 2004, Rachel has completed 12 individual sessions. As of January 2005, Avelino has completed seven individual counseling sessions.

During the reunification period, Rachel began a voluntary drug testing program after her individual counselor noticed in July 2004 that she was incoherent and asked her to be tested. That particular test revealed the presence of methamphetamine; all subsequent drug tests, however, have been negative. Rachel tested negative in October, November, and December 2004 (with one missed test in December), and in January, April, and May 2005 (with one missed test in May).

By March 2005, Rachel and Avelino had obtained suitable housing for their children and Avelino was working full time and expressing his “sincere desire to have his children returned to his” and Rachel’s care. The social worker assessed their home and found it to be a duplex in a “nice neighborhood” and “adequately furnished and appropriate to meet the needs of all the children.”

In June 2005, Rachel gave birth to a healthy baby boy named Adam, who was born without any drugs in his system. The social worker visited Rachel and Avelino’s home and observed that Adam was “doing well overall” in the custody of Mother, who was “attentive towards Adam.”

C. Rachel’s Probation Problems and Arrest Warrant

Shortly before the 18-month permanency review hearing, Rachel’s probation officer, Johnny Hernandez, wrote a letter informing Rachel’s social worker, Mrs. Taylor, that Rachel had allegedly violated probation by: (1) failing to complete 52 sessions of parenting classes; (2) failing to complete 33 days of tree farm work; (3) failing to pay fines; and (4) testing positive for marijuana at a court hearing in March 2005. Hernandez’ letter stated that returning the children to Rachel’s custody “will only increase her stress level and give her an additional excuse for not complying with her conditions of probation. The risk level of possibly re-offending once more is too great to allow her children to return home at this time. [¶] She has lied about her counseling classes, community service work and drug use on numerous times. Essentially, she has not proven to be a responsible adult since the beginning of her grant of probation.”

In August 2005, the criminal court issued a bench warrant for Rachel’s arrest due to an alleged probation violation.

D. The 18-Month Permanency Review Hearing

At the August 23, 2005, 18-month permanency review hearing (§ 366.22), the Department recommended that the maternal grandmother be granted legal guardianship because the parents had failed to complete “drug counseling and domestic violence counseling.” The Department stated that “it would be detrimental for the children to be returned home to their parents, as there is a likelihood of mother becoming overwhelmed with caring for three small children and therefore placing Abel and Andrew at risk.”

The parties stipulated that if Rachel were to testify, she would testify: (1) that she was in compliance with the case plan; and (2) that as a result of her probation officer’s recommendation that all three children be removed from her custody because of her alleged probation violations, “she felt desperate, didn’t know what to do and sort of gave up and threw up her hands. She stopped testing whatsoever. [¶] As a result of her giving up, she would testify to the fact that a warrant was issued for her arrest for perhaps a probation violation. She would testify to the fact that she does have a three-month-old [named Adam]. That she has been caring for [Adam] appropriately. She would testify that she believes that [Adam] is not at risk in her care. [¶] She would further testify, in response to counsel’s offer of proof [that the Department was planning either to obtain an agreement to place Adam in the grandmother’s temporary custody or, if that was not possible, to detain Adam], that she would be willing to enter into a [voluntary family maintenance agreement] wherein her mother would take care of [Adam] so that she could clear up this warrant from the criminal court.”

The parties also stipulated that if Avelino were to testify, he would testify “that he has completed parenting; he’s completed 37 out of 52 domestic violence sessions; and he’s regularly attending individual counseling.”

Rachel’s attorney argued that she “was in substantial compliance for quite some time” and was “having unmonitored visitation with her children,” including “some weekend overnights.” Rachel’s counsel pointed out that it was not until the probation officer informed the Department of the potential probation violation that the Department changed its recommendation from granting custody to the parents to granting guardianship to the maternal grandmother. Counsel stated that after Rachel’s probation officer recommended that she be denied custody, Rachel “was frustrated, was desperate[ and d]idn’t know what to do. I understand that she should have done something different other than to quit [drug testing]. [¶] I hope the court can find some sympathy for the mother, given the fact that she had just given birth to another baby. It appears that if she were to test, she would start testing clean again, as there’s no evidence to suggest that my client was currently using drugs.” “At this point, I’m asking the court to release the children to my client on the condition that she test clean and randomly and consecutively without missing any tests.”

Avelino’s attorney argued that the parents’ ability to care properly for Adam constituted strong evidence that it was safe to return Abel and Andrew to their custody. Avelino’s attorney contended that despite the parents’ failure to complete all of the counseling requirements, their ability to care for Adam proved that granting them custody of Abel and Andrew would not place the children at substantial risk of harm.

The dependency court rejected the parents’ arguments, stating that the Department was “negligent in not picking up” Adam due to Rachel’s positive test for marijuana while pregnant in March 2005, and “I don’t see how the Department could possibly keep that three-month-old baby in this house.” The dependency court set the matter for a section 366.26 permanency planning hearing after finding, by a preponderance of the evidence, that returning Abel and Andrew to their parents would create a substantial risk of detriment to their physical or emotional well-being.

DISCUSSION

“Our society does recognize an ‘essential’ and ‘basic’ presumptive right to retain the care, custody, management, and companionship of one’s own child, free of intervention by the government. [Citations.] Maintenance of the familial bond between children and parents--even imperfect or separated parents--comports with our highest values and usually best serves the interests of parents, children, family, and community. Because we so abhor the involuntary separation of parent and child, the state may disturb an existing parent-child relationship only for strong reasons and subject to careful procedures.” (In re Kieshia E. (1993) 6 Cal.4th 68, 76.)

Section 366.22, subdivision (a) provides in part that at the 18-month review hearing, “[t]he 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 statutory presumption that a child will be returned, and hence the need to overcome that presumption with a detriment finding, runs from the disposition through the reunification period. (In re Marilyn H. (1993) 5 Cal.4th 295, 308 . . . .)” (In re Janee J. (1999) 74 Cal.App.4th 198, 211.) Rachel contends that the evidence fails to support the finding that returning the children to her custody would create a substantial risk of harm.^[4] We agree.

Having obtained suitable housing, properly cared for their new baby, substantially complied with the dependency case plan, and acquired the financial ability to provide for their children, Rachel and Avelino have shown that Abel and Andrew would not be at substantial risk of harm if returned to their custody. Although it may be stressful for Rachel to comply with the probation requirements with three young children in her care, she can seek help from her mother, who is willing and has the Department’s approval to care for her grandchildren.^[5]

The major obstacle to reunification, Rachel’s alleged probation violation, does not reasonably support an inference that returning the children to her custody would create a substantial risk of harm. In our view, the argument against granting Rachel custody because it would be too stressful for Rachel to care for the children while completing her probation requirements (such as 33 days of tree farm work) is an argument for reducing the probation requirements in the interests of justice, not for denying her custody of her children so that she can work in a tree farm.^[6] The criminal court’s probation requirements, which were far more onerous than the dependency court’s reunification requirements, were not devised as a reunification plan but as a criminal consequence for exactly the same behavior, shoving the back of Abel’s head, which had led to the filing of the dependency petition. It must be remembered that the dependency court, not the criminal court, devises and oversees the parents’ reunification plan, the purpose of which is to overcome the problem that led to removal in the first place. (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) The probation officer’s recommendation to deny reunification in the interest of having Rachel complete her probation requirements directly conflicted with the paramount legislative goal of reunifying Rachel with her children within a much shorter statutory period. “Until permanency planning, reunification of parent and child is the law’s paramount concern.” (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 546.)

Rachel admittedly quit drug testing when she became understandably overwhelmed with frustration by her probation officer’s recommendation to deny reunification despite her compliance with the dependency case plan and, due to the lack of reasonable services and the lack of coordination between the probation requirements and the dependency case plan, she did not know what else to do. Although Rachel should not have quit testing, her many negative tests leading up to the birth in June of a healthy baby proves that the children would not be placed at a substantial risk of harm if returned to her custody. Although missed tests may create a presumption of drug use, the presumption is not warranted in this case given that Rachel had substantially complied with the dependency case plan, had given birth to a drug-free baby in June, had properly cared for her new baby and created a home suitable for the entire family, and had only stopped testing in understandable frustration after learning that, despite her substantial and sustained efforts to comply with the dependency case plan, the probation officer was recommending against reunification. (See Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343 [mother’s failure to show perfect compliance with drug testing requirement did not, under the circumstances, support the finding of detriment].)

Given that the evidence fails to support the finding that returning the children to the parents’ custody would create a substantial risk of harm, the order setting the matter for a section 366.26 hearing must be vacated and the children are to be returned to their parents’ custody.

DISPOSITION

The petitions for writ of mandate are granted. The finding that returning the children to the parents’ custody would create a substantial risk of detriment is reversed. The matter is remanded to the dependency court with directions: (1) to vacate the order

setting the matter for a permanency planning hearing under section 366.26; (2) to order the children’s return to their parents’ custody; and (3) to terminate jurisdiction.^[7]

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

I concur:

VOGEL, J.

MALLANO, Acting P. J., Concurring and Dissenting.

While I agree with the majority opinion reversing the finding that returning the children to the parents’ custody would create a substantial risk of detriment and vacating the order setting the matter for a permanency planning hearing under section 366.26, I dissent to the termination of jurisdiction.

Although I agree that the children should be returned to the parents, Rachel’s history of drug abuse and her abandoning drug testing mandates, in my opinion, continued jurisdiction of the juvenile court for the protection of the children.

MALLANO, Acting P. J.

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^[1] Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

^[2] Throughout this case, the children have remained in non-relative foster care because the Department did not approve their relatives’ homes for lack of sufficient bedrooms to comply with state standards.

^[3] The record contains conflicting evidence as to whether Avelino gave Rachel a black eye in June 2004. After that date, however, it is undisputed that Avelino has attended and actively participated in numerous domestic violence classes as described above.

^[4] Avelino’s writ petition, prepared in pro. per., does not specifically argue that the evidence fails to support the finding of detriment. We assume in his favor, however, that Avelino would like us to construe his petition broadly to include this argument. (See Cal. Rules of Court, rule 38.1(a)(2) [“The petition must be liberally construed.”].)

^[5] Additionally, even if the evidence were sufficient to support a finding of detriment, we would reverse the finding that reasonable services were provided and direct that additional services be provided because the Department’s failure to provide adequate reunification services during the first six months has persisted throughout the 18-month reunification period. In our view, the services were not tailored to meet Rachel’s unique circumstances of being on formal probation while pregnant and trying to reunify with her children. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1474-1475 [the reunification plan must be specifically tailored to fit the circumstances of each family and designed to eliminate those conditions which led to the juvenile court’s jurisdictional finding].) Given the Department’s position that Rachel’s alleged failure to comply with the probation requirements created a substantial risk of detriment to her children despite her substantial compliance with the dependency court’s reunification requirements, the Department should have assisted Rachel to comply with the probation requirements by, for example, tailoring the dependency case plan in consideration of her pregnancy and the probation requirements or communicating with her probation officer to coordinate the probation requirements with the dependency case plan. Inasmuch as the evidence fails to support the finding that returning the children to the parents’ custody would create a substantial risk of detriment, however, the parents are entitled to the custody of their children without having to meet any further reunification requirements.

^[6] We do not, however, have jurisdiction over the criminal case which was not coordinated with this dependency case filed the day after Rachel entered her guilty plea without an attorney to warn her about the possible ramifications that her plea and resulting probation requirements would have in the dependency case. Presumably, when Rachel pled guilty without the assistance of counsel she failed to recognize the difficulty she would face in trying to comply with the probation requirements while simultaneously trying to comply with the dependency case plan, with its much shorter timelines for reunification. For children three years and older, the parent has 12 months to reunify. (§ 361.5, subd. (a)(1).) For children under three years, the court may terminate reunification services after only six months. (§§ 361.5, subd. (a)(2), 366.21, subd. (e).)

[7] In the event the Department has new evidence dating after the August 23, 2005, 18-month permanency review hearing requiring removal of the children, it must file a new dependency petition which, if sustained, requires the dependency court’s implementation of a new case plan and the commencement of a new reunification period.