Ariel Y. v. Super. Ct

Filed 10/11/07 Ariel Y. v. Super. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, John C. Gastelum, Judge. Petition denied.

Lawrence A. Aufill for Petitioner Ariel Y.

Law Office of J. Michael Hughes and Donna P. Chirco for Petitioner

Jesus B.

No appearance for Respondent.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel for Real Parties in Interest.

Law Office of Harold LaFlamme and Mari Duque for the Minor.

* * *

Petitioners seek relief from juvenile court orders terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26^[1]to select a permanent plan for the 19-month-old child, Ariel B. The mother, Ariel Y., argues the child should be returned to her because there was insufficient evidence of continued risk. Both the mother and the father, Jesus B., assert they were not offered reasonable services. We find these contentions to be without merit and deny the petition.

I

FACTS

Detention

The mother was 14 years old when Ariel was born in November 2005. The father, who was 18 years old, had been released from jail the prior day for a probation violation. Ariel was born with multiple birth defects, including a severe cleft palate, eye deformities, and a facial opening. These resulted in numerous special needs with respect to care techniques and the environment she would occupy upon release from the hospital. She was at risk of malnutrition and dehydration, and extremely susceptible to illness and infection. Multiple caregivers were not an option due to this risk. The child would also require extensive surgery.

At the time of Ariels birth, the mother was living with the maternal great-grandparents, but placing Ariel there was not an option. The mothers own family had eight prior referrals to the Orange County Social Services Agency (SSA). When Ariel was born, they were living in a recreational vehicle without running water and were therefore not a placement option. At the hospital, the mother did not seem to grasp the extent of the childs medical condition. The father did not appear to wish to listen to staff explain the childs special needs.

Additionally, the mother had a history of unresolved drug use. She admitted to weekly drug use, including marijuana, crack, and crystal methamphetamine since the age of 12. The father also admitted to using marijuana, crystal methamphetamine, and cocaine. He had been arrested twice for possessing a controlled substance. He was on probation with gang terms due to a felony conviction.

SSA placed Ariel in a specialized foster home and filed a petition under section 300, subdivision (b). The petition alleged risk due to the parents unresolved drug problems, and their lack of resources and ability to care for the child due to her special needs. The court ordered Ariel detained and authorized monitored visits and drug testing.

Jurisdiction/Disposition

Prior to the jurisdiction hearing, SSA submitted reports on Ariels progress. Her ophthalmologist diagnosed left eye blindness and she was being treated by a number of specialists at Childrens Hospital. The parents were present at a mid-January 2006 evaluation. Expected future treatment was extensive, and expected to include surgery for the childs facial deformities, ophthalmology care, auditory and speech/language evaluations and treatment, surgery to insert ear tubes, and later dental care. As of early January, the parents had attended three of four possible visits, and were noted as interacting with the child carefully and lovingly.

The mothers drug tests in January and early February were negative. She began missing tests in February, and only tested twice between mid-February and mid-March. The father twice tested positive for marijuana and missed all other tests between mid-February and mid-March. The foster mother reported that visits went well, and the mother was attending school. The father, however, missed appointments with SSA and had apparently left school.

As of late March, the social worker stated: The undersigned believes the parents love their child and want what is best for her. However, it appears that the parents lack the capability to provide for a child with so many special needs. Based on [] the medical reports, the child will continue to require specialized care, especially for her surgeries and follow up care.

The continued jurisdiction hearing was held in April 2006. The court sustained the amended petition and approved service plans for the parents. The parents were to attend all of the childs medical appointments, participate in general counseling focusing on the issues that led to the childs removal, take parenting classes, and drug test twice per week. Demonstrating the ability to care for the childs special needs was a specific objective of the case plan.

Six-Month Review

SSA reported that the father had been arrested on June 1 for violating probation, and would remain incarcerated until September. He had not participated in services, including drug testing, counseling, or parenting education. The mothers progress showed more promise, as she was attending and doing well at school and living in an apartment with her parents. She missed a number of drug tests, however, and missed meetings with one of her service providers. Visits with the child went well, but the mother eventually gave up on trying to feed the child. Both parents had visited prior to the fathers arrest and were affectionate and nurturing during visits.

The parents stipulated to further SSA custody and continued reunification services. The court set a 12-month review.

Combined 12-Month/18-Month Review

During this period, Ariel underwent three more operations to repair her facial deformities, in August and October 2006 and February 2007. The mother was present for the August surgery, but the foster mother provided most of the needed care. The mother slept in the childs room but could not be awakened by the attending nurse. She said: I was tired and Nancy is better at it anyway.

At the preoperative consultation in October, the mother did not ask questions about the surgery. She did want to know whether the thing hanging down in the childs mouth would be fixed and if she would be able to go to the mall and be with other people. She was again not overly helpful during the childs hospital stay. Similar issues arose during the later surgery. Problems also arose during visits with respect to following feeding instructions.

A January 2007 evaluation revealed that although significant progress had been made, there were substantial delays in Ariels skills. Continued weekly therapy was recommended. The mother resisted the facts, informing the social worker that Ariel was not blind (despite the diagnosis of blindness in the left eye), and refusing to read the occupational therapy report because it was full of lies. Problems also revealed themselves with respect to the mothers basic parenting skills, such as diapering, hygiene, safety, and attention to the child. SSAs final report expressed concern that the mother minimized the childs health issues and did not recognize the potential impact if her special needs were not met.

In March 2007, Ariel was placed in a concurrent planning home. Ariel quickly adjusted and formed a strong attachment to her new caretakers, who were willing to provide Ariel with a permanent home.

In the meantime, the mother had resumed her relationship with the father and became pregnant again after he was released from jail in September 2006, despite the fact that only supervised contact had been ordered by the court. The baby was due in June 2007. The mother and father generated a domestic violence report in October 2006. When the father appeared at a September visit, the mother abruptly cut the visit short, then missed a number of visits over the next several months, including two immediately before and after Ariels October surgery.

After the October surgery, the father disappeared, and the mother denied any involvement with him or knowledge of his whereabouts. He was arrested later that day at the home the mother shared with her parents. The mother then cancelled two visits to attend the fathers court hearing and visit him in jail. The maternal grandparents were often unaware of her whereabouts for several days at a time. In May, she insisted to the social worker that she could meet both Ariels needs as well as the newborns, because the new baby would mainly sleep.

To her credit, the mother finally began serious drug treatment during this period. She consistently tested negative after January 2007 and was given high marks for compliance. She did not, however, wish to become involved with the 12-step program or obtain a sponsor. She did not obtain a sponsor until June 2007. The mother was terminated from parenting classes for failure to attend, and then was provided in-home parenting education. The parenting instructor expressed concerns about her ability to parent a special needs child. The mother denied needing the classes. She later received positive evaluations from the instructor at her teen parenting school.

In contrast, the father did not participate in any services after his September 2006 release from custody. SSA did not know his whereabouts because he did not respond to calls and letters. When he saw the social worker briefly at the time of Ariels October surgery, he told her that he was active with a gang and was not drug testing, employed or attending school. A warrant for three felony counts led to his January arrest. He remained in custody throughout the contested hearing and did not expect to be released until September 2007. He further faced an immigration hold.

The court authorized two in-custody visits, but the father tested positive for tuberculosis shortly after his arrest, and Ariels doctor denied approval for visits until the father was treated. The social worker later testified that the father had told her he did not want Ariel brought to the jail.

The review hearing was held in May and June 2007. The court heard testimony from multiple witnesses, including the parents, the social worker, maternal grandmother, and the mothers drug treatment counselor. On June 21, the court concluded that Ariel would be at risk if returned to either parent and that reasonable services had been provided. The court terminated services and scheduled a permanency planning hearing. The parents filed the instant petition.

II

DISCUSSION

Detriment

After the 18-month 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. ( 366.22, subd. (a).) We review the juvenile courts finding that returning the child to the parent would be detrimental for substantial evidence. (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625.)

The mother argues that returning Ariel to her custody would not be detrimental because she has learned and benefited from the services she has received, and her behavior and attitudes have changed. She also argues that her parents home would be adequate and that she had complied with the reunification plan.

These contentions, however, ignore the substantial evidence standard of review. There was more than adequate evidence before the court that the mother had not shown her ability to care for the childs special needs. Indeed, the mother continues to insist that the child is a normal toddler despite the evidence to the contrary. Three months prior to the courts challenged order, the mother had stipulated that Ariel had extensive medical needs justifying an out-of-county placement. After more than a year of services, SSA reported that the mother shows a lack of interest and inquiry in the childs medical condition and ongoing medical issues.

The court stated, at the conclusion of the hearing, that the mother has minimal knowledge of this childs medical condition. I was very concerned when she testified she did not believe the child was blind and did not have developmental delays, and her failure to recognize these conditions does place this child at risk. The courts conclusions are supported by more than adequate evidence, including the mothers testimony.

Reasonableness of Reunification Services

During the initial stages of dependency proceedings, family preservation, which necessarily includes family reunification services, is the primary focus. ( 319, subd. (b), 361.5, subd. (a); In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) Dependency law requires a good faith effort to provide reasonable reunification services responding to the unique needs of each family. [Citation.] (In re Maria S. (2000) 82 Cal.App.4th 1032, 1039.) The adequacy of reunification plans and the

reasonableness of the SSAs efforts are judged according to the circumstances of each case. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.)

The juvenile courts finding that reunification services were sufficient must be based on clear and convincing evidence. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) When that finding is challenged on appeal, we review it for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) We therefore view the evidence in the light most favorable to SSA and draw all reasonable inferences to uphold the courts order. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.)

With respect to the mother, she argues that services were inadequate because she was not referred to parenting classes specializing in special needs children. The mother, however, fails to identify any authority supporting such a specialized requirement. Indeed, there was substantial evidence that the mother was given multiple opportunities to learn how to parent a special needs child. She also contends it was wrong to rely on the childs caretaker to teach her the skills needed and to advise her of Ariels medical appointments, and that she was not adequately helped by the visitation monitors.

The record belies the mothers contentions that adequate services were not provided. To the contrary, it shows a pattern of the mothers refusal to accept and apply what she was taught. It was not a lack of services that led the mothers continued refusal to believe that the child had special needs, but her own intransigence. Her additional claim that SSA failed to evaluate her parents home is similarly unavailing. This was, at best, a peripheral issue.

[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . . (In re Riva M. (1991) 235 Cal.App.3d 403, 414, original italics.) Substantial evidence demonstrates SSAs efforts were more than reasonable.

With respect to the father, he claims that SSA failed to inquire about services at the jail and did not assist him in obtaining services. The court found that the social worker had advised the father of in-custody services and instructed him how to get them. The court found the father chose not to participate in services. This conclusion was supported by substantial evidence, specifically, the social workers testimony. It is further bolstered by the fathers refusal to participate in services well before his incarceration, as early as September 2006.

The father also claims he was improperly denied visits. He claims the tuberculosis only precluded visits for two or three weeks, and that the social worker failed to update his medical status. The fathers prior visitation record, however, can only be characterized as poor. He visited once in four and a half months. Therefore, the court authorized only monthly visitation on January 29, 2007. As of March 14, the triage nurse stated the father was still in the triage unit of the jail, providing more than an adequate indication that he was still undergoing treatment. Thus, his claim can only reasonably address the final three-month period.

Nonetheless, his argument is unavailing. Despite notice to the father and his counsel about the limitations on visits while he had tuberculosis, they did not clarify his health status, and did not raise the issue at interim court dates. This is consistent with the fathers statements to SSA that he did not want Ariel visiting the jail. Thus, we find the courts conclusion that the father received adequate services supported by substantial evidence.

III

DISPOSITION

The petition is denied.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.

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^[1] Subsequent statutory references are to the Welfare and Institutions Code. The hearing pursuant to section 366.26 is referred to as the permanency planning hearing.