Filed 6/18/15 P.A. v. Super. Ct. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



P.A. et al.,

         Petitioners,                                                    E062965

v.                                                                       (Super.Ct.No. J249334)

THE SUPERIOR COURT OF                                                    OPINION
SAN BERNARDINO COUNTY,

         Respondent;

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,

         Real Party in Interest.



         ORIGINAL PROCEEDINGS; petitions for extraordinary writ. Lynn M. Poncin,

Judge. Petitions denied.

         Law Office of Dennis Moore and Dennis Howard Moore for Petitioner P.A.

         Harold Gun Lai, Jr., for Petitioner S.P.

         No appearance for Respondent.



                                                             1
       Jean-Rene Basle, County Counsel, Jamila Bayati, Deputy County Counsel, for

Real Party in Interest.

       Petitioner P.A. (father) filed a petition for extraordinary writ pursuant to California

Rules of Court, rule 8.452 (rule 8.452), challenging the juvenile court’s order terminating

reunification services as to his child. N.A. (the child) and setting a Welfare and

Institutions Code1 section 366.26 hearing. Father contends there was insufficient

evidence to support the court’s finding that it would be detrimental to return the child to

his custody at the 18-month review hearing. Petitioner S.P. (mother) filed a separate rule

8.452 writ petition also arguing that the evidence was insufficient to show detriment. We

deny the writ petitions.

                   FACTUAL AND PROCEDURAL BACKGROUND2

       On May 7, 2013, San Bernardino County Children and Family Services (CFS)

filed a section 300 petition on behalf of the child, who was two years old at the time. The

petition alleged that the child came within provisions of section 300, subdivisions (b)

(failure to protect), (g) (failure to support), and (j) (abuse of sibling). The petition

included the allegations that both father and mother (the parents) had a history of

substance abuse, they failed to provide adequate housing, food, and clothing for the child,

       1 All further statutory references will be to the Welfare and Institutions Code,
unless otherwise noted.

       2  Father previously filed a Notice of Intent to File a Writ Petition, following a
jurisdiction/disposition hearing in July 2013 (case No. E059195). However, this court
dismissed the petition, pursuant to a letter by father’s counsel. We take judicial notice of
the record in case No. E059195. (Evid. Code, § 452, subd. (d).)



                                               2
they were both incarcerated for violating Penal Code section 273a, subdivision (b)

(willful cruelty to a child), and their parental rights were terminated on four of their other

children.

        The social worker filed a detention report and stated that CFS received a referral

when the parents were arrested and charged with willful cruelty to a child. (Pen. Code,

§ 273a, subd. (b).) A police officer reported that he found the parents’ home to be filthy.

There were shards of glass on the floor, while the child was barefoot; a dirty diaper on the

floor at the entry of the residence; food on the floor; black mold on the ceiling; and

clothing, trash, debris, and live and dead cockroaches all over the home. Both parents

appeared to be under the influence of substances when the police came to the residence.

The social worker further reported that the parents had an extensive history of caretaker

absence and general neglect as to their four other children. Substantiated allegations

included that there were live and dead cockroaches, no utilities, and no provisions of

support. Moreover, the parents used marijuana and three of their children were born

drug-exposed.

        The court held a detention hearing on May 8, 2013, and detained the child in foster

care.

        Jurisdiction/Disposition

        The social worker filed a jurisdiction/disposition report dated May 30, 2013, and

recommended that the court declare the child a dependent of the court and that no

reunification services be provided pursuant to section 361.5, subdivision (b)(10) and (11).

The parents had previously had three of their children removed from their custody in

                                              3
February 2009, due to unsafe and unsanitary living conditions at their home. The next

month, mother was under the influence of alcohol, drugs, and/or narcotics, which resulted

in an emergency Caesarian section, placing their fourth child at risk for birth defects.

That child was taken into protective custody. The parents failed to follow through with

their case plan, and reunification services were terminated in October 2009. Their

parental rights as to these four children were terminated on February 19, 2010. The

children were subsequently adopted. Furthermore, the child in the instant case was

previously removed from the parents’ custody in 2010, due to their history of substance

abuse. No reunification services were ordered. However, the court later granted

mother’s section 388 petition and ordered reunification services. The parents reunified

with the child on February 27, 2012. The current social worker noted that the parents

failed to benefit from the services they participated in, since the child was now removed

from them again for the same circumstances under which her siblings were removed.

        On June 3, 2013, the child was diagnosed by a nurse practitioner with post

traumatic stress disorder (PTSD) and anxiety “brought on by her [b]iological

dysfunctional family unit.” The nurse practitioner recommended that there be no

visitation between the parents and the child. The court thus ordered visitation between

the parents and the child to be suspended due to it being detrimental to the child at that

time.

        A contested jurisdiction/disposition hearing was held on July 19, 2013. The court

declared the child a dependent, removed her from the parents’ custody, and placed her in

the care of CFS. The court ordered that no reunification services be provided to the

                                              4
parents. The court ordered visitation to remain suspended pending further information

about the child’s PTSD. The court also set a section 366.26 hearing for November 18,

2013.

        The court’s minute order dated August 8, 2013, indicates a doctor signed a

diagnosis for PTSD for the child. She was referred to receive Screening, Assessment,

Referral and Treatment (SART) services.

        Section 388 Petitions

        On October 17, 2013, and November 19, 2013, respectively, mother and father

filed separate section 388 petitions, asking for the court to provide them with

reunification services and visitation. Both parents had participated in substance abuse

treatment, a parenting class, and counseling on their own. CFS opposed the petitions.

The court vacated the section 366.26 hearing that was set for November 18, 2013, and

continued the matter to November 26, 2013, for a contested section 366.26/388 hearing.

        Section 366.26 Report

        On November 19, 2013, the social worker filed a section 366.26 report

recommending that parental rights be terminated and that the permanent plan of adoption

be implemented. The social worker reported that on May 23, 2013 (before the court had

suspended visitation), the child had a visit with the parents at the CFS office. The child

cried, screamed, and shook when she saw the parents. When they attempted to take her

into the playroom, the child repeatedly said, “I can’t. I can’t.” The visit was ended due

to the child’s reluctance and unwillingness to interact with the parents. It was after that



                                              5
visit that the child was diagnosed with anxiety and PTSD and the court suspended the

parents’ visitation.

       The social worker further opined that the child was appropriate to be adopted. She

had been living with her foster parents/prospective adoptive parents (maternal relatives)

since May 29, 2013. They had adopted the child’s four older siblings and were eager to

adopt her, as well. The child felt a healthy attachment to them, and they felt that she was

already a part of their family. The prospective adoptive parents reported that the child

referred to the parents as “[t]hat boy and girl.” In April 2014, on the way to a visit, the

child said she did not want to go. She would randomly say that she did not want to leave

her family (referring to her foster family), and that she wanted to stay with her brothers

and sisters and her family.

       Section 366.26/388 Hearing

       On November 26, 2013, the court held a contested section 366.26/388 hearing.

After some testimony, the matter was continued to December 4, 2013. The court granted

the petitions and ordered reunification services for the parents. The court stated that all

prior orders not in conflict with this order would remain in effect and then set a 12-month

review hearing for June 4, 2014.

       De Facto Parent Request and Interim Report

       On January 3, 2014, the foster parents filed a request for the court to deem them

the child’s de facto parents.

       The social worker filed additional information to the court. A letter from an

intervention specialist and behavioral health counselor supervisor at the Desert Mountain

                                              6
Children’s Center, where the child was receiving SART services, stated that the child

appeared to be anxious and tense, difficult to engage, and anxious about separation from

her foster parents and siblings. She went to the foster parents for comfort and affection.

The intervention specialist noted that the child had several symptoms consistent with

anxiety and/or previous trauma. She was very sensitive to changes in her environment.

The intervention specialist opined that the child needed a stable placement and a

consistent daily routine with a lot of structure. The social worker also attached a letter

from a behavioral health specialist, dated January 21, 2014, which reported that the child

had nightly episodes of crying and screaming in her sleep, that she screamed and refused

to visit with the parents, that she would cling to the foster parents during social worker

visits, and that she stated she did not want contact with the parents. The child had

difficulty separating from the foster parents when she was left at preschool, and she had a

fear of being abandoned there.

       On January 22, 2014, at an appearance review hearing, the court granted the foster

parents’ request for de facto parent status. The court also ordered supervised visits to

occur once a week, and gave the social worker the authority to terminate visits if the child

had a “meltdown.”

       Twelve-month Status Review

       The social worker filed a 12-month status review report on June 3, 2014,

recommending that the parents continue to be provided with services. The social worker

reported that the child did not have visits with the parents for a period of about eight

months. After the court ordered visits to resume, the child had her initial visit on January

                                              7
29, 2014, and felt nervous. When the foster father put the child down, she grabbed the

social worker’s hand. Upon walking into the visitation room, the parents sat at the table,

but the child did not want to sit with them. The social worker sat at the table, and the

child sat in her lap, facing her. The child hugged the social worker for five minutes.

       The social worker supervised another visit on February 12, 2014. The foster

father brought the child to the visit. After a while, the child asked the social worker if she

could go with her “daddy.” Father said, “That’s not your daddy. I’m your daddy.” The

child stated, “No.”

       The social worker reported that the child was diagnosed with Anxiety Disorder

Not Otherwise Specified, and that she was currently receiving weekly therapy services

with her therapist, Gelcie Hitchman. The therapist reported seeing an increase in the

child’s stress since visits had resumed. She was unable to soothe herself, and the

therapist was concerned that such inability would impact her self-esteem. The therapist

further reported that the first week of visits, the child said, “I don’t want to go there. I

don’t want to go see those people.” The child constantly told her she did not want to go

to visits. The therapist later reported that the child had incidents of masturbation, used as

a form of self-soothing. The foster parents also reported that visits were difficult for the

child, that she was very withdrawn after visits, and that she was “very clingy” for about

two days afterward. They also reported that when preparing for visits, the child states, “I

don’t wanna go. I don’t wanna go.” On April 28, 2014, the social worker talked to the

child about visits, and the child stated, “I don’t want to go to my visits. I feel sad. I go

home. I feel happy.” On May 7, 2014, the child again said she did not want to go to

                                               8
visits. The child’s visitation coach, Annie, who monitored visits, reported that the child

did not seem bonded with the parents, but rather saw them as playmates. A SART

treatment progress report stated that visits with the parents were detrimental to the child,

as evidenced by her behavior after visits. She had difficulty sleeping, a loss of appetite,

nightmares, crying, she was clingy with the foster parents, and she became anxious when

left alone.

       The court held a 12-month status review hearing on June 4, 2014, and continued

the child as a dependent. It found that there was a substantial probability the child could

be returned to the parents within six months. The court ordered visitation to be a

minimum of one time a week for one hour, in a therapeutic setting. It continued the

matter to November 4, 2014, for an 18-month review.

       On October 23, 2014, pursuant to a section 388 petition filed by father, the court

increased the parents’ visitation to two times a week, for two hours, supervised. One

hour would be in a therapeutic setting and the other hour would be outside a therapeutic

setting.

       Eighteen-month Status Review

       The social worker filed an 18-month status review report on October 24, 2014,

recommending that the court find custody by the parents to be detrimental to the child

and that the court terminate services. The parents remained unemployed, and they also

remained on probation for willful cruelty to the child. The social worker reported that

progress had been made in visitation, but it was slow. The child continued to say she did



                                              9
not want to visit with the parents, even though she acted happy when she was with the

parents.

       At the 18-month review hearing on November 4, 2014, the parents requested a

trial. The court set the matter for November 12, 2014, but it was later continued.

       At a pretrial settlement conference on November 25, 2014, county counsel

informed the court that a recent visit was reduced because of the child’s unwillingness to

visit. The child was seen at the Infinity Medical Group on November 14, 2014, and the

nurse practitioner again noted her PTSD. The child had abdominal pain and was anxious

due to her upcoming visit with the parents. The child stated to the nurse practitioner,

“I’m never going to see them. I don’t want them kissing me. They’re not my parents.”

The nurse practitioner noted that the child was very reluctant to go to visits. The visits

brought on severe anxiety attacks.

       On December 30, 2014, the court held a contested hearing on visitation. The

child’s foster father testified that, during a four-month period of time (from February

2014 to June 2014), the child would wake up screaming, and repeatedly said she did not

want to go to the visits. He testified that, just that month, the child told him more than

once a day that she did not want to see the parents. The child also testified at the hearing.

When asked what her parents’ names were, she named the foster parents and said she

lived with her mommy and daddy. When asked who she goes to visit, she named the

parents by their first names. She said she liked going to visit them and said they played.

At first, the child said she lived with her foster mother and father only, but upon more

questioning, she said she also lived with her brothers and sisters. When asked if she

                                             10
wanted to live with her sisters, she said yes. When asked if she wanted to live with

father, she also said yes. The court maintained the current visitation order and continued

the proceedings to January 14, 2015. At the January 14, 2015, hearing the court noted

that the parties had a conference off the record and agreed that the testimony hearing in

the contested visitation hearing could be considered for the contested 18-month review

hearing.

       The court continued with the hearing on February 9, 2015. The child’s foster

mother testified that, as recently as November 2014, the child was still refusing to go to

visits. The current social worker on the case also testified. He stated that the child saw

her foster parents as her parents. He opined that the child needed more time, perhaps one

year, before she would feel comfortable enough with her biological parents to be able to

spend the night with them. He testified that the child was clearly attached to the foster

parents. He noted that when the child wanted help fixing her hair, she refused mother’s

help and requested for her foster mother to help her. The social worker opined that the

child would not adjust well if she were to be sent home to live with the parents at that

time. In light of her anxiety and tension from visits, he asserted that it “wouldn’t be good

for her” to be put in a place where she knew she was not going to return home to her

foster family. He felt that it would be very traumatic for her. Noting that the parents

were still having supervised visits, he stated that they would need to spend more time

having her get used to being alone with the parents, starting with longer day visits,

overnights, and weekends. He opined that it would take a lot of time for her to feel safe

and comfortable. In addition, the counselor who completed a bonding assessment in June

                                             11
2014 testified that the child and the parents were bonded. However, she also testified that

the parents and the child needed more family therapy.

       After hearing testimony and arguments from counsel, the court stated that it was

looking at the emotional and psychological impact that return to the parents would have

on the child. It noted the child’s testimony that she liked to visit the parents and said they

played together. She said she wanted to live with them, but also wanted to live with her

sisters in her current home. The court noted that sometimes the child said she wanted to

visit the parents and sometimes she did not. The court stated, however, that the child had

clearly had stress and anxiety in her life as a result of the parents’ actions. The court

noted the evidence that the child had conflicted loyalty, in that she was attached to her

foster parents, as well as the parents. The court concluded it could not say that the child

could absolutely be returned home to the parents that day. The court stated its problem

was that it could not order the child to be returned to the parents completely because there

had been no unsupervised visits or anything to see if she could be transitioned home.

County counsel stated that, at that point in the proceedings, the court could not order a

transition home. The court had to set a section 366.26 hearing, but could make a

visitation order for unsupervised visits. If those went well, the parents could file a

section 388 petition. The court adopted the social worker’s findings, terminated

reunification services, set a section 366.26 hearing for June 25, 2014, and ordered

unsupervised visitation until then to be a minimum of twice a week, with CFS having the

authority to liberalize the visits. The court also set an appearance review hearing prior to

the section 366.26 hearing.

                                              12
                                        ANALYSIS

    The Court Properly Found That Return of the Child to the Parents Would Create a

                                Substantial Risk of Detriment

       The parents argue that there was insufficient evidence of a substantial risk of

detriment to the child if returned to their custody. Father specifically contends that the

evidence was insufficient because there were no psychological evaluations or opinions

from the child’s therapist that the child was at risk of suffering emotional harm if

returned to the parents. He further claims there was no evidence that return would cause

“serious long term emotional damage.” Mother simply asserts that CFS did not meet its

burden of showing detriment. We disagree.

       A. Relevant Law

       Section 366.22, subdivision (a), provides in relevant part: “After considering the

admissible and relevant evidence, the 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 social worker shall have the burden of

establishing that detriment.”

       “Appellate justices review a respondent court’s decision after a section 366.22

ruling as follows: ‘Evidence sufficient to support the court’s finding “must be

‘reasonable in nature, credible, and of solid value; it must actually be “substantial” proof

of the essentials which the law requires in a particular case.’” [Citation.] “Where, as

                                             13
here, a discretionary power is inherently or by express statute vested in the trial judge, his

or her exercise of that wide discretion must not be disturbed on appeal except on a

showing that the court exercised its discretion in an arbitrary, capricious or patently

absurd manner that resulted in a manifest miscarriage of justice. [Citations.]”

[Citations.]’ [Citations.] In the presence of substantial evidence, appellate justices are

without the power to reweigh conflicting evidence and alter a dependency court

determination. [Citations.]” (Constance K. v. Superior Court (1998) 61 Cal.App.4th

689, 705 (Constance K.).)

       B. The Evidence Was Sufficient

       Here, the evidence clearly demonstrated that returning the child to the parents’

custody would be detrimental to her. It showed that even supervised visits with the

parents caused the child anxiety and stress. It also showed that the child was attached to

the foster parents and her siblings, and that she would suffer if removed from their home.

At the outset of the dependency, the child had a visit with the parents at the CFS office,

and she cried, screamed, and shook when she saw them. When they attempted to take her

into the playroom, she repeatedly said, “I can’t. I can’t.” The visit was ended because of

the child’s reluctance and unwillingness to interact with the parents. After that visit, the

child was diagnosed by a nurse practitioner with PTSD and anxiety, “brought on by her

[b]iological dysfunctional family unit.” The nurse practitioner recommended that there

be no visitation between the parents and the child. Thus, the court ordered visitation

between the parents and the child to be suspended due to it being detrimental to the child

at that time. Furthermore, a letter from an intervention specialist and a behavioral health

                                             14
counselor supervisor stated that the child appeared to be anxious and tense, difficult to

engage, and anxious about separation from her foster parents and siblings. The

intervention specialist noted that the child had several symptoms consistent with anxiety

and/or previous trauma. She was very sensitive to changes in her environment. In

January 2014, a behavioral health specialist reported that the child had nightly episodes

of crying and screaming in her sleep, that she screamed and refused to visit with the

parents, she clung to the foster parents during social worker visits, and she made

statements that she did not want contact with the parents. The child had difficulty

separating from the foster parents when she was left at preschool, and she had a fear of

being abandoned there. Similarly, in May 2014, a SART treatment progress report stated

that visits with the parents were detrimental to the child, as evidenced by her behavior

after visits. She had difficulty sleeping, a loss of appetite, nightmares, crying, she was

clingy with the foster parents, and she became anxious when left alone.

       The evidence also showed that the child was diagnosed with Anxiety Disorder Not

Otherwise Specified, and that her therapist reported seeing an increase in the child’s

stress since visits resumed. The child constantly told her therapist she did not want to go

to the visits. The therapist noticed a difference in the child’s demeanor after visits with

the parents—specifically, that she “disengaged and [became] unfocused.” The therapist

also reported that the child began using masturbation as a form of self-soothing. By

December 2014, the child was still having difficulty with the visits and repeatedly told

her foster father she did not want to see the parents.



                                             15
       Furthermore, the evidence showed that the child was very attached to her foster

parents/prospective adoptive parents. She identified them as her parents. In contrast, she

did not consider mother and father as her parents, but rather saw them as playmates. The

child referred to the parents as “[t]hat boy and girl” and “those people.”

       At the 18-month review hearing, the social worker testified that the child would

not adjust well if she were to be sent home to live with the parents at that time. In light of

her anxiety and tension from visits, he opined that it would be very traumatic for her.

Noting that the parents were still having supervised visits, he stated that the child needed

more time to get used to being alone with the parents. He opined that it would take a lot

of time for her to feel safe and comfortable with them. Unfortunately, at that point in the

proceedings, the court had to either return the child to the parents, or terminate services

and proceed to devising a permanent plan for her. (In re Elizabeth R. (1995) 35

Cal.App.4th 1774, 1788.) Since there was substantial evidence showing how the child

reacted negatively to mere visits with the parents, it was reasonable for the court to

conclude that returning the child to their custody would be detrimental to her emotional

well-being. (§ 366.22, subd. (a).)

       Father claims that the evidence was insufficient because there were no

psychological evaluations or opinions from the child’s therapists that the child was at risk

of suffering emotional harm if returned to the parents. In support of his claim, he relies

on cases such as Blanca P. v. Superior Court of Orange County (1996) 45 Cal.App.4th

1738, In re Jasmon O. (1994) 8 Cal.4th 398, and In re Brian R. (1991) 2 Cal.App.4th

904. While these cases demonstrate that psychological evaluations can serve as evidence

                                             16
to sustain a detriment finding, they do not hold that psychological evaluations or opinions

are required to establish detriment. (Blanca P., at p. 1750; Brian R., at pp. 918-919,

Jasmon O., at pp. 416-417.) In any event, the child was diagnosed at Infinity Pediatrics

with PTSD, and a nurse practitioner stated that it was brought on by the child’s

“biological dysfunctional family unit.” The nurse practitioner further stated that the

child’s abdominal pains and severe anxiety attacks were caused by visits with the parents.

Moreover, contrary to father’s claim, there was plenty of evidence from the child’s

therapist, including her report that visits with the parents were detrimental to the child,

since they produced a loss of appetite, difficulty sleeping, nightmares, crying, anxiety

when left alone, and made her clingy with the foster parents.

       Furthermore, father’s claim that the evidence was insufficient since the emotional

harm the child was at risk of suffering was “not serious long term emotional damage” is

unsupported. Father cites In re Jasmon O., supra, 8 Cal.4th at page 421, as follows: “‘At

the conclusion of (the 18-month period) . . . the parent’s right to reunification may be

outweighed by the child’s interest in stability. At this point, evidence that disruption of

the bond with foster parents will cause the child serious, long-term emotional damage

may be crucial in ascertaining the best interests of the child.”” The court simply stated

that evidence that disruption of the bond with the foster parents will cause long-term

emotional damage may be important in ascertaining the best interests of the child. It

certainly did not hold that evidence of serious long-term emotional damage is required to

show detriment.



                                              17
       In sum, by the time of the 18-month hearing, the juvenile court had to order the

return of the child to the parents, unless it found, by a preponderance of the evidence, that

such return would create a substantial risk of detriment to the child. (§ 366.22, subd. (a).)

The evidence of detriment here was sufficient. Thus, we cannot say that the court

exercised its discretion in an arbitrary or capricious manner in terminating services and

setting a section 366.26 hearing. (Constance K., supra, 61 Cal.App.4th at p. 705.)

                                        DISPOSITION

       The writ petitions are denied.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                                            J.


We concur:


RAMIREZ
                        P. J.


CODRINGTON
                           J.




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