Filed 5/15/13 Christal H. v. Super. Ct. CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR




CHRISTAL H.,                                                            B246191

                   Petitioner,                                          (Los Angeles County
                                                                        Super. Ct. No. CK92090)
         v.                                                             (Timothy R. Saito, Judge)

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

                   Respondent;

LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,

                   Real Party in Interest.




         ORIGINAL PROCEEDING; application for a writ of mandate. Writ denied.
         Law Offices of Alex Iglesias, Steven Shenfeld, and Shataka Shores-Brookes for
Petitioner.
         No appearance for Respondent.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Aileen Wong, Deputy County Counsel, for Real Party in Interest.
                                    INTRODUCTION


       Following a review hearing conducted pursuant to Welfare and Institutions Code
section 366.22,1 the juvenile court ordered that a hearing be held on April 8, 2013,
pursuant to section 366.26, to develop a permanent plan for the dependent minors
Anthony H., Josiah H., and G. H. Their mother, Christal H., petitioned for a writ of
mandate to compel the juvenile court to vacate its orders, contending the court did not
have before it substantial evidence that she failed to make substantive progress in her
case plan or that it would be detrimental to return the children to her care. Review by
extraordinary writ is the remedy provided in section 366.26, subdivision (l) and rule
8.452, California Rules of Court. Real party in interest the Los Angeles County
Department of Children and Family Services (DCFS) filed an answer to the petition. We
deny the petition.


                 FACTUAL AND PROCEDURAL BACKGROUND


       Three-year-old Josiah H. (born in Nov. 2007) was taken to Chino Valley Hospital
by Christal H. (Mother) because his eye was swollen and he was vomiting blood. His left
eye socket was found to be fractured. As a result, San Bernardino Children and Family
Services (SBCFS) received a referral regarding the family. Also in the home were A.V.
(eight years old), Anthony H. (six years old, born in Feb. 2005), J.V. (five years old), and
G. H. (one year old, born in June 2009).2 Mother and the children lived with Tony
(Mother’s boyfriend) and Tony’s father. Mother told the social worker that Josiah and



1      All further statutory references are to the Welfare and Institutions Code.

2       A.V. and J.V. are not subjects of the present petition. While they were declared
dependents along with their three half-siblings, the court ordered them placed with their
father, Jorge V., with whom they remain.
        Daniel L., the alleged father of Josiah and G., is not a party to this petition.
Agustin A., the biological father of Anthony, also is not a party to this petition.

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Anthony were throwing a ball in their room and Josiah fell on the floor. When he began
vomiting blood she took him to the hospital.
       Anthony told the social worker that Josiah had fallen off of the bed while trying to
catch a ball. However, Anthony said he had seen his brother’s eye was swollen when he
woke up that morning. Tony had been the first person to notice Josiah’s eye was swollen.
When Tony showed Mother Josiah’s eye, she asked, “Would I get in trouble for this?”
       While visiting the home, the social worker noticed that G. had bruising under both
eyes, blood inside her lower lip, and two circular bruises on her lower cheeks. Anthony
said G. had fallen. Mother said G. had fallen from a chair and hurt her lip, and that the
bruises were caused by other children at day care. At another time Mother said some of
the bruises were caused by the child hitting herself on a table and the bruises on her
cheeks occurred because Mother squeezed her cheeks too hard. G. was examined and the
doctor opined that the bruises around her eyes were not typical accidental bruises, and the
bruises on her cheeks were often seen when a child’s face was grabbed forcefully. As to
Josiah, the doctor thought his injuries were suspicious but he could not confirm physical
abuse had occurred.
       The social worker spoke with A.V. and J.V. at their father’s home. J.V. said Tony
hit her when she got in trouble. She had seen Tony hit Anthony with a belt and submerge
him in the pool as a form of punishment. She had also seen Mother submerge Anthony in
the pool to punish him. Tony also “smack[ed] G. on the face” “really hard.” Tony also
hit Anthony and Josiah, and J.V. said she was afraid of him. Mother denied that the
children were abused by anyone. She said Tony was a good man and she had never seen
him abuse the children.
       Several months before, a referral had been made alleging Tony had submerged
Josiah in the pool to punish him. A.V. and J.V. confirmed that information when
interviewed alone, but recanted in Mother’s presence.
       The children were detained. A.V. and J.V. were placed in their father’s custody.
Anthony and G. were placed with their maternal aunt, who lived with her mother and



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grandfather (Mother’s stepmother and the stepmother’s father); Josiah remained
hospitalized but would be placed in the same home upon his release.
       SBCFS filed a section 300 petition regarding the five children on May 4, 2011.
Therein, it alleged that Mother had a history of domestic violence3 and that G. and Josiah
sustained physical injuries while in Mother’s care and custody. In addition, Mother’s
boyfriend had submerged Josiah’s head into the pool as a form of punishment and Mother
knew about the abuse but failed to protect him. SBCFS filed amended petitions adding
that Mother had a history of substance abuse based on a referral made in 2006 when J.V.
was born.
       A.V., Anthony, and J.V. were interviewed and received medical examinations in
June 2011. All three children disclosed physical abuse by both Mother and Tony and
said they did not want to return to Mother’s care for fear of being “smacked.” The
children agreed that A.V. and J.V. were not subjected to physical abuse but the other
three children were. Anthony and A.V. were concerned about getting Mother into trouble
but agreed that she needed help controlling her anger and learning to stop hitting them.
Mother hit the children, sometimes with a belt, and gave Josiah a “wet head,” meaning
she put his head into water to punish him. Even when confronted with this information,
Mother continued to deny any abuse had occurred. She stated, however, that she was
willing to participate in the services recommended by SBCFS.
       In August 2011, Mother submitted on the allegations in the amended petition and
the social worker’s reports. The court sustained the allegations and declared the children
dependents of the court.
       In a case plan update completed in June 2011, the services in which Mother was
required to participate were stated as follows: (1) general counseling: “individual
counseling regarding the [SBCFS] intervention, developing interpersonal skills, to
decrease treatment resistance, develop communication skills, discuss benefits of therapy

3     Jorge V. said he had obtained a restraining order against Mother in 2004 because
she had attacked him and had been arrested; Mother acknowledged there had been
domestic violence.

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services, develop problem solving skills, work on self-esteem, increase self-awareness,
neglect and physical abuse of minors and working developing appropriate boundaries in
relationships”; (2) anger management: “complete an anger management program and
show completion certificate to the . . . social worker. . . . [D]evelop skills to recognize
when she is getting angry and ways to deal with her ang[er] positively. Develop how her
anger [a]ffects her children negatively”; (3) complete a 12-week parenting program;
(4) random drug testing and if a positive screen was produced, complete a substance
abuse treatment program. At the hearing on August 4, 2011, the court adopted the
reunification plan as recommended by SBCFS. The juvenile court ordered monitored
visitation for Mother a minimum of once per week with the children.
       As of the February 6, 2012 status review report, Mother had not participated in
services required by her case plan, although she visited regularly with the children. She
continued to deny any abuse had occurred. In April 2012, Mother’s stepmother stated in
a letter to the court that Mother had not moved out of Tony’s home and in fact she
intended to marry him. During monitored visitations, Mother often called Tony and put
G. on the telephone with him. In November 2011, Mother tried to demand of the
caregivers that she be allowed to take the children to Tony’s home for a weekend visit.
She continued to deny to her family that Tony had done anything wrong and vowed not
to leave him. Mother became outraged and said the children were lying whenever family
members attempted to talk to her about the allegations of abuse. In February 2012, nine
months after the children were removed from her custody, Mother enrolled in parenting
classes and individual counseling.
       The six-month review hearing (§ 366.21, subd. (e)) was held in April 2012. The
court found Mother had made moderate progress in alleviating or mitigating the causes
necessitating removal of the children from her custody, but that continued jurisdiction
was required.
       SBCFS reported in July 2012 for the 12-month review hearing (§ 366.21, subd.
(f)) that Mother had completed a parenting education course on April 12, 2012, and
continued to participate in counseling. She attended individual counseling sessions


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regularly between February and May 2012, but had been inconsistent in participating
after being transferred to a different therapist. She had participated in only two
counseling sessions. The service provider recommended further counseling for her.
Mother visited with the children consistently and acted appropriately during visits.
Mother was no longer living with Tony; she had moved into her biological mother’s
home.
        On July 5, 2012, the 12-month review hearing was held and the court found that
Mother had made moderate progress toward alleviating or mitigating the problems
leading to the children’s detention. In light of Mother’s move, the juvenile court ordered
the case transferred to Los Angeles County. The case was accepted by the Los Angeles
County Juvenile Court on July 31, 2012.
        In a September 2012 interim review report, DCFS reported that Mother had
completed a 10-week domestic violence awareness education class at House of Ruth in
February 2012 and an eight-session parenting education course in April 2012. Mother
had attended only two sessions of counseling since being transferred to a new therapist in
May 2012. In June 2012, the counseling service provider advised the social worker that
Mother needed to continue attending counseling to focus on improving her problem
solving skills, improving boundary setting in relationships, and managing stress and
anger; the provider requested an extension of 12 additional sessions. However, Mother
had not continued with counseling. After the case was transferred, Mother met with a
DCFS social worker on August 30, 2012, and received referrals for individual counseling
and anger management. At the progress hearing on September 4, 2012, the court ordered
DCFS to prepare an update on Mother’s progress and to ensure Mother’s visits took place
three times per week for three hours per visit.
        Mother told the social worker on September 26, 2012, that she had an intake
appointment scheduled for October 2, 2012, for counseling services that would include
assistance with anger management. Mother finally met with her new therapist on
November 29 and December 6, 2012.



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          The children’s caregivers reported that Mother’s visits were inconsistent. She did
not take full advantage of the three-hour, thrice weekly visits as she would often call to
cancel.
        Mother lived with her biological mother, who told the social worker she did not
know if Mother still had a relationship with Tony. Anthony’s biological father,
Agustin A., reported to the social worker that Mother continued to have contact with
Tony.
        At the request of the caregivers, the children received psychological examinations
in October 2012 to assess their need for therapy. The clinician reported that Josiah
appeared withdrawn and displayed considerable anxiety due to the abuse he had endured.
When asked where he wanted to live, Anthony said he wanted to live with his
grandparents. He did not want to live with Mother because she was with Tony and
because she lived with her mother, who was mean to him.
        DCFS recommended that returning the three children to Mother’s custody would
create a substantial risk of detriment to their safety and well-being. Mother had not
completed individual counseling and continued to deny that she had contact with Tony,
described by DCFS as “the perpetrator.”
        At the 18-month review hearing (§ 366.22) held on December 10, 2012, Mother
testified that she was enrolled in individual counseling and had had two sessions; she said
they were working on “boundaries.” Mother testified that the SBCFS social worker
wanted her to address “anger issues,” but her former therapist did not find that she had
any anger issues, rather she thought that Mother needed to learn boundaries. Mother
described anger as being “when you obviously don’t know how to control your feelings
and you just, you know, overreact. And boundaries are, basically, setting rules and not
allowing things to happen and people to do things that are inappropriate.” She said she
had previously completed separate programs in anger management, parenting, and
domestic violence. In the parenting class she learned how to discipline and understand
her children and that each child was different and needed his or her own attention. In



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domestic violence class she learned “not to put up with any . . . disrespect or hitting” and
that “it’s not healthy and appropriate for somebody to do that to another person.”
       Mother acknowledged that she had never been granted unmonitored visitation with
her children. She said that she had not seen Tony since she moved out of his home in
June 2012.
       Counsel for DCFS pointed out that Mother had not provided proof that she had
completed an anger management program. Counsel expressed concern that Mother had
only recently been back in compliance with the individual counseling portion of her case
plan, and that her visitation had been inconsistent. DCFS requested termination of
reunification services. Counsel for the children acknowledged that Mother had made
efforts, but counsel still had “significant concerns” about Mother’s ability to care for the
children. She noted that Anthony did not want to go back to Mother, and that he felt safe
and comfortable with his current caregivers. The child said that despite what Mother had
said, he believed that she was still in contact with Tony. The children’s counsel said she
was not sure Mother had learned what she needed to from either the domestic violence or
parenting counseling. Mother never progressed beyond unmonitored visitation. Counsel
agreed that reunification services should be terminated.
       Mother’s counsel argued that Mother did not realize that she could ask for
liberalized visitation and instead DCFS should have provided it, although counsel
acknowledged DCFS might be hesitant to do so with a case assigned to it for only a
matter of months. Counsel pointed out that Mother’s case was transferred to Los Angeles
in late July 2012, but she was not assigned a social worker until September. Mother’s
counsel did not address the lack of proof that she had completed a separate anger
management program. Rather, counsel asserted that the only issue was that Mother had
not completed individual counseling but argued that she had nonetheless made substantial
progress in her programs. Counsel requested that the court return the children to
Mother’s home because DCFS had not shown a risk of harm to the children if they were
placed with her.



                                              8
       The juvenile court found that conditions continued to exist justifying jurisdiction
and found that returning the children to the physical custody of Mother would create a
substantial risk of detriment. Mother had been ordered to participate in programs that she
still needed to complete, and the extent of progress she had made toward alleviating or
mitigating the causes necessitating placement of the children had been only partial.
Although Mother had made some progress in her classes, there had not been sufficient
progress in individual counseling and there appeared to be issues that remained to be
addressed. The court terminated family reunification services and scheduled a
permanency planning hearing for April 8, 2013.


                                       DISCUSSION


       Mother contends there was insufficient evidence to support the court’s finding that
she failed to make substantive progress in her case plan or that it would be detrimental to
return the children to her care. We disagree.
       Our review of the trial court’s findings as to Mother’s compliance with her case
plan and as to detriment is governed by the substantial evidence test: the trial court’s
findings must be upheld if there is substantial evidence to support them. (In re Misako R.
(1991) 2 Cal.App.4th 538, 545; Angela S. v. Superior Court (1995) 36 Cal.App.4th 758,
762, 763.)
       Section 366.22, subdivision (a) provides in relevant part that at the 18-month
review hearing, “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. . . . 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
would be detrimental. In making its determination, the court shall review and consider


                                              9
the social worker’s report and recommendations and the report and recommendations of
any child advocate appointed pursuant to Section 356.5; shall consider the efforts or
progress, or both, demonstrated by the parent or legal guardian and the extent to which he
or she availed himself or herself of services provided . . . ; and shall make appropriate
findings pursuant to subdivision (a) of Section 366.”
       The court had before it substantial evidence to conclude Mother had not
sufficiently addressed her lack of parenting skills, her own physical abuse of the children,
her anger management problems, or the harm caused to her children by her relationship
with Tony. All of these things led to the removal of the three children, as well as the two
oldest children who were placed in their father’s custody.
       There is substantial evidence that Mother did not fully comply with the court-
ordered case plan. The sum total of her compliance (which did not begin until at least six
months after the children were first detained) consisted of the following: (1) four months
of weekly individual counseling in early 2012 with a counselor who did not feel Mother
had anger issues, two additional sessions over the following few months, plus two
sessions in the two weeks immediately preceding the 18-month review hearing in
December 2012; (2) a 10-week domestic violence awareness course that she completed in
February 2012; (3) and an eight-week parenting education course that she completed in
April 2012.
       The parenting class Mother took was only eight weeks long and she did not
describe it as including education on avoiding physical abuse. The only substantive
feedback from Mother’s counseling provider indicated Mother had more work to do. Her
first counselor did not address anger management with her despite the allegations that she
had personally inflicted serious physical abuse on her young children. The domestic
violence class was apparently for victims, while the record indicates that although Mother
might have been victimized or controlled by Tony, she was primarily a perpetrator of
abuse. Her former husband had obtained a restraining order against her, and two of her
children stated that she got very angry and hit them more than Tony did. Her son Josiah
had been hospitalized with a skull fracture (of his eye socket), the cause of which was


                                             10
never adequately explained, and he continued to suffer from anxiety and withdrawal
almost two years after being removed from Mother’s custody. Mother claimed she had
taken a separate anger management course but offered no proof or certificate of
completion to support that assertion. Indeed, and most critically, she never once
acknowledged that any physical abuse had occurred, let alone demonstrated that she had
learned to control her anger and no longer posed a risk of harm to her young children.
       In any event, in determining whether to return a child to parental custody,
compliance with the reunification plan is not the sole concern of the court. (See In re
Dustin R. (1997) 54 Cal.App.4th 1131, 1139-1140.) Even if Mother had fully complied
with the case plan, the paramount issue remains whether return of the children to parental
custody would be detrimental or pose a substantial risk of harm to them. As was stated in
Dustin R.: “Mother’s argument seems to suggest the mere completion of the technical
requirements of the reunification plan—such as attending counseling sessions and
visiting her children—is sufficient. Availing herself of the services provided is one
consideration under section 366.22, subdivision (a), but under this statute the court must
also consider progress the parent has made towards eliminating the conditions leading to
the [child]’s placement out of home.” (Id. at pp. 1141-1142.)
       Mother did some work toward completing the requirements of the case plan, but
clearly the underlying justifications for assuming jurisdiction over the children continued
to exist at the time of the section 366.22 hearing. Mother had physically abused her
children and never acknowledged that fact and never demonstrated that she had received
effective guidance to avoid doing so in the future, and therefore the questions regarding
the children’s safety while in Mother’s care remained unanswered. The court had before
it substantial evidence that returning the children to Mother would create a substantial
risk of detriment to their safety, protection, or physical or emotional well-being.




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                                    DISPOSITION


       The petition for writ of mandate is denied. The stay of the permanency planning
hearing is dissolved.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                SUZUKAWA, J.

We concur:



       EPSTEIN, P. J.



       WILLHITE, J.




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