Marie W. v. Sup. Ct.

Filed 11/30/05 Marie W. v. Sup. Ct. CA4/1

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COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MARIE W., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;	D047139 (Super. Ct. No. J510899K)
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.

PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Peter E. Riddle, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition denied.

Marie W. seeks review of juvenile court orders denying reunification services concerning her child, L.K., under Welfare and Institutions Code section 361.5,^[1] subdivision (b)(10) and referring the matter to a section 366.26 hearing. She contends there was insufficient evidence to support the juvenile court's finding that she had not made reasonable efforts to treat the problems that led to removal of L.K.'s siblings. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2003 the San Diego County Health and Human Services Agency (Agency) petitioned on behalf of seven of Marie's children, alleging that she had exposed them to domestic violence between herself and her boyfriend, Willie K. The petition also alleged that Marie had a chronic history of domestic violence and substance abuse. The court found the allegations true and placed the children out of Marie's care.

The psychologist who conducted Marie's psychological evaluation stated that Marie's family history put her at high risk of having abusive relationships. Marie participated in reunification services, which included family therapy, a domestic violence support group and parenting classes. In October 2004 she began individual therapy. Her visits with the children were sporadic. Marie's therapist said Marie was beginning to make progress. But during the time she was involved in services, Marie continued her relationship with Willie, became pregnant with L.K., lied about the relationship with Willie, and concealed her pregnancy from the social worker.

Marie gave birth to L.K. on April 2005. After L.K.'s birth, Marie gave L.K. to Willie's niece, and asked the niece to give the baby to Willie. On May 12, Willie was arrested. He left L.K. with his niece. The niece called the caretaker for L.K.'s siblings, and the caretaker called Agency. On May 19, Agency petitioned on L.K.'s behalf under section 300, subdivision (b) and the court detained L.K. The niece had no diapers or formula for L.K., and L.K. had a severe rash on her vaginal area and buttocks. Marie told the social worker she had given L.K. to Willie to care for while she worked on regaining custody of her other children. Marie said she had not intended to have any relationship with L.K. The social worker reported that L.K. was Marie's 11th child, and that Marie had social welfare referrals dating to 1995, including for neglect and abuse. The social worker said Marie continued to make poor decisions for herself and her children and did not understand the effects of domestic violence on the children. The social worker said at the time the petition was filed, there was an open dependency case regarding seven of L.K.'s siblings, and Marie's three other children had been adopted or were being cared for by paternal relatives. The social worker recommended not offering Marie reunification services designed to help her reunify with L.K.

The 18-month review hearing regarding the seven children was held in July and August 2005. After testimony and argument, the court terminated services and set a section 366.26 hearing. It found that reasonable services had been provided and that Marie had acted recklessly and irresponsibly by having a baby with Willie and then giving the baby to him, knowing he was violent and had an active arrest warrant. In that matter, this court denied Marie's petition for review of the court's orders, concluding that they were supported by substantial evidence. (Marie W. v. Superior Court (Nov. 29, 2005, D046971) [nonpub. opn.].)

On September 7, 2005, the court conducted a hearing in L.K.'s case. The social worker testified that she believed Marie was living at the St. Vincent de Paul shelter and that she had been visiting L.K. She said Marie's court-ordered individual therapy had ended in August. The social worker opined that L.K. would be at risk in Marie's care because after in-home support services, parenting classes, domestic violence group meetings and individual therapy spanning nearly 10 years, Marie remained in a relationship with a violent man who was not complying with his parole conditions, and Marie's mother said that Marie had told her she was pregnant again.

Marie testified about giving L.K. to Willie's niece to take to Willie. She said she was enrolled in therapy at St. Vincent de Paul. She wanted to reunify with L.K. and would do what the court required. She said she did not intend to have further contact with Willie and denied that she was pregnant.

The court found the allegations of the petition true, removed L.K. from the parents' custody, ordered that no reunification services would be provided, and set a section 366.26 hearing.

Marie petitions for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 38.1.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.

DISCUSSION

Marie contends the court erred in denying her services under section 361.5, subdivision (b)(10). She asserts that the evidence is insufficient to support the court's finding that she failed to make reasonable efforts to treat the problems that led to removal of L.K.'s siblings.

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Marie has not shown error. Section 361.5, subdivision (b)(10) provides that services need not be provided when the court finds by clear and convincing evidence:

"That the court ordered termination of reunification services for any siblings of the child because the parent or guardian failed to reunify with the sibling after the sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling of that child from that parent or guardian."

Section 361.5, subdivision (c) provides that a court shall not order reunification services for a parent described in subsection (b)(10) unless it finds by clear and convincing evidence that reunification services are in the child's best interest.

Section 361.5, subdivision (b)(10) presents a two-pronged test. To deny services, the juvenile court was required to find that the court ordered termination of reunification services in the siblings' cases because Marie failed to reunify with them. It also had to find that she had not made reasonable efforts to treat the problems that led to the siblings' removal. The first prong is satisfied. The court terminated reunification services in the siblings' case on August 5, 2005. This court denied Marie's petition for review of the orders in Marie W. v. Superior Court, supra, D046971.

As for the second prong, substantial evidence supports a finding that Marie did not make reasonable efforts to treat the problems that led to the siblings' removal. In Shawn S. v. Superior Court (1998) 67 Cal.App.4th 1424, 1429, the appellate court stated: "When a parent who has previously failed at reunification makes an effort to change, the progress made should be considered in determining whether additional reunification services should be provided." Marie's actions with respect to L.K. showed that she had not made reasonable efforts to treat the problems that led to the siblings' removal.

The siblings were taken from Marie's care in November 2003 after Marie exposed them to a violent incident. In the children's presence, Willie grabbed Marie, dragged her outside, punched her, slammed her head against a truck, threw her into the truck and drove away. Marie had a long history of becoming involved in abusive relationships. She attended services to help to deal with her problems of exposing herself and her children to violence from men who abused her. She attended parenting classes, a domestic violence support group, family therapy and individual therapy. But during the time she was participating in the services designed to help her end her dependence on abusive men, she demonstrated that she was not gaining any insight or understanding about domestic violence by continuing her relationship with Willie, becoming pregnant with L.K., and placing L.K. at high risk by giving her to Willie. Marie hid her pregnancy from the social worker, tried to hide the fact that L.K. existed, said she did not intend to have a relationship with L.K. and thought Willie could take care of L.K. while Marie worked on reunifying with her other children.

Marie's domestic violence support group leader and therapist reported that Marie was making progress. However, the social worker disagreed with this assessment. The social worker was in a better position to determine whether Marie was benefiting from services since she had worked with the entire family and had observed Marie's lack of progress, outside of a therapeutic setting.

In finding that Marie had not made reasonable efforts, the court stated:

"[R]easonable efforts aren't considered in . . . a vacuum . . . . [S]he hasn't really utilized . . . all of the training and services she has received over the years. After years and years and years of services that went over an extended period of time, any time she had the chance to change her mind and disclose she was pregnant, she hid that and made that terrible and dangerous decision to turn the child over to the person she did . . . with the father's background. . . . It would be a mistake to infer suddenly after all of these years of this consistent pattern of deceit and dangerous decisions that she is suddenly making reasonable efforts, which would include utilizing the training she has received."

As the court observed, Marie's actions showed she had gained little from the services that were provided and she failed to make reasonable efforts to remedy the problems that led to the removal of her other children. Substantial evidence supports the court's decision to deny Marie services under section 361.5, subdivision (b)(10).

DISPOSITION

The petition is denied.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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^[1] All statutory references are to the Welfare and Institutions Code.