Bonnie N. v. Sup. Ct.

Filed 10/26/06 Bonnie N. v. Sup. Ct. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR

ORIGINAL PROCEEDINGS in mandate. Valerie Skeba, Juvenile Court Referee. Petition denied.

Eva E. Chick for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Real Party in Interest.

Petitioner Bonnie N. seeks writ review of the July 5, 2006, order of the dependency court terminating reunification services and setting a hearing on termination of parental rights under Welfare and Institutions Code section 366.26.^[1] We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Original Petition

Petitioner and her two older boys, Jason and Joshua, came to the attention of the Department of Children and Family Services (DCFS) two years ago, in October 2004. The original petition, filed November 17, 2004, alleged that petitioner created a detrimental home environment for the boys because her apartment was “filthy, unsanitary and disorganized“ due to feces, soiled diapers, and piles of clothing and trash on the floor.^[2]

Prior to the detention hearing, the caseworker reported that she first visited the family on October 19, 2004, after DCFS received a report that Jason, approximately two years old at the time, was seen without clothing and dressed in girl’s clothing. It was further reported that petitioner had hit Jason’s buttocks with a stick and otherwise handled him roughly. The caseworker spoke with petitioner and observed the condition of the apartment where the family was then living, finding it to be as described in the original petition. Petitioner and her mother, Denise R., denied the other allegations. The caseworker instructed the adults to clean the apartment, and scheduled a follow up visit for a few weeks later. At that time, however, there was no improvement in the cleanliness of the apartment and the caseworker observed scratches on both children’s faces.

The caseworker returned on November 12, 2004, with a public nurse. On this occasion, petitioner did not open the door despite the caseworker’s repeated knocking and calling out her name. The telephone was off the hook. The caseworker called police and firemen, and petitioner finally opened the door when they arrived. When the caseworker gained entry, the apartment was still in considerable disarray and again had fecal material on the floor. Jason had scratches on his face; Joshua had an eye infection, diaper rash, and a cold, and was very hungry on arrival at DCFS offices. The children were detained.

The caseworker’s December 2004 Jurisdiction/Disposition Report stated petitioner had been avoiding the caseworker, was not visiting her children, and was about to be evicted from her apartment. At the jurisdictional hearing on December 13, 2004, the dependency court found jurisdiction based on failure to protect under section 300, subdivision (b), because petitioner “created a detrimental home environment for the children and placed the children in an endangering and neglectful situation in that on or about 11/12/04 [petitioner] failed to properly supervise minors” and “DCFS [and] law enforcement tried for 1-2 hours to rouse [petitioner] [and] were unsuccessful.” Petitioner was ordered to participate in a program of counseling, to include parenting classes and random drug tests.

The January 2005 report expressed the caseworker’s opinion that petitioner was depressed and that her condition likely contributed to the condition of the apartment and petitioner’s lack of responsiveness to DCFS. The report recommended that petitioner “participate in individual counseling to deal with issues of depression and other case issues.” On January 18, 2005, the court ordered petitioner to participate in individual counseling “to address issues of possible depression, stress management and parenting.”

By March 2005, petitioner’s behavior had improved. Petitioner admitted to having smoked marijuana and agreed to attend the Tarzana Treatment Center (Tarzana) substance abuse program because the program would allow her children to reside with her.^[3] She entered Tarzana in May, and the children were returned to her on June 13. A week later, petitioner reported she wanted to leave Tarzana because she was pregnant and not feeling well. Her counselor told the caseworker that petitioner was not cleaning her room and had trouble “dealing with” the children, but was not abusing them.

In July 2005, petitioner transferred to Colby House, another residential substance abuse program. She told the caseworker that she left Tarzana because she had been “‘jumped.’” Apparently dissatisfied at Colby House, she asked the caseworker for referrals to other programs. She denied suffering from depression. After petitioner had been in Colby House a week, the manager reported that she had a poor attitude and would stay in bed all day with the children if left to herself. According to the manager, petitioner seemed unmotivated and “often” did not bathe or change her clothing. The manager expressed the opinion that petitioner was depressed. While at Colby House, petitioner participated in four recovery group meetings, six self-help classes, three A.A./N.A. meetings, one education group meeting and one parenting class. A few days later, petitioner left Colby House, despite having been warned this could cause the children to be re-detained. She and the children stayed briefly with family, and then returned to Tarzana. Within a few days of returning to Tarzana, petitioner told the caseworker she wanted to leave.

At Tarzana, petitioner’s case manager and her supervisors agreed that petitioner was suffering from depression and that that her mental health issue would have to be addressed. Petitioner admitted that she felt “‘overwhelmed.’” She denied having a substance abuse problem, claiming she had entered the program only to get her two boys back. Tarzana personnel reported that petitioner had been seen striking the boys, who were allowed to wander the facility unsupervised. They further reported that petitioner was not bathing or feeding the boys.

Petitioner left Tarzana for the second time, and Jason and Joshua were re-detained in August 2005. The caseworker provided petitioner with referrals for outpatient drug treatment programs, and urged her to seek help for depression.

Amended Petition

An amended petition was filed in August 2005 and sustained the next month. As sustained, the amended petition stated that the children were placed in petitioner’s custody on the condition that she remain in a substance abuse rehabilitation program, that she “left her substance abuse rehabilitation program without the permission of the Juvenile Court and DCFS,” and that she “continued to have unresolved issues related to the [original petition] which impacted her ability to meet the children’s needs.” The court again ordered petitioner to participate in counseling “to address issues of depression, stress management, and parenting.”

In September 2005, petitioner moved into “Amigas Sober Living” facility (Amigas) and began attending outpatient substance abuse counseling at another facility, Plaza Community Center Esperanza (Esperanza). In November 2005, her Amigas case manager reported she was doing well and that all her drug tests had been negative. She was visiting the boys regularly. She had been given referrals for individual counseling “but unfortunately, as of [November 2005] she has not been able to initiate such counseling” due to “long waiting lists, funding problems, etc.”

At around this same time Jason began displaying “disturbing behaviors,” including handling his feces, head banging, and hyperactivity. Joshua was becoming attached to his foster mother, and seemed uncomfortable when petitioner held him during their visits. Therapy sessions for the boys were initiated.

In December 2005, petitioner began individual counseling at Cal State Los Angeles and attended one session. The director explained that the center was closed from mid-December until January. Petitioner’s regular visitation with the boys continued and she was permitted an overnight visit on Thanksgiving. She continued to live at Amigas, which had space for the boys and petitioner’s unborn third child.^[4] The caseworker anticipated that the boys would be returned to her care within the next six months. At the six-month review hearing (§ 366.21, subd. (e)) on December 12, the court ordered six more months of reunification services.

At the end of December 2005, petitioner moved out of Amigas and into “Mi Primera Casa Sober Living.” She told the caseworker she did not feel comfortable when leaving her residence at Amigas in the evening to attend counseling programs. Petitioner was permitted an overnight visit with the boys on New Year’s Eve, which went well. Her counselor at Esperanza stated that she had made good progress. She and the two boys had attended a joint counseling session with a therapist at Cal State Los Angeles and made arrangements for a series of such sessions. The caseworker expressed the belief that petitioner was ready for weekend visitation.

At around the same time, Jason’s therapist reported that his behavioral difficulties were improving, although his speech was delayed and he purposely used the floor to defecate or urinate when he was angry. The boys’ foster mother reported that Jason was aggressive towards other children, had difficulty sleeping and sitting through a meal or a television program, and tended to stuff his mouth and gag when eating. The therapist concluded that Jason’s “significant delays” likely “stem from the neglect and repeated separation from primary caregivers that he has experienced.” Jason was diagnosed for school placement purposes as suffering from “mental retardation (level unspecified).”

In March 2006, weekend visits were still going well. Petitioner and the boys had completed the Cal State Los Angeles joint counseling series. However, “[the director] felt that more counseling for both her and the children was called for to help ensure that [petitioner] did not become overwhelmed while responding to the needs of [three children].” The caseworker was attempting to initiate such counseling at Foothill Family Services.

In April 2006, a “Behavioral Management Program Assessment Report” was prepared for Jason. It stated that he had a diagnosis of mild mental retardation. At four years of age, he was toilet trained and was able to dress himself with assistance, feed himself with utensils, and brush his hair and teeth. He knew only approximately 20 words, and did not recognize numbers or the alphabet. He had a tendency to throw temper tantrums. He was also destructive with his possessions. The report recommended that Jason receive “an in home behavior management program of 3 months for a total of 36 hours.”

In June 2006, the caseworker reported for purposes of the 12-month review hearing (§ 366.21, subd. (f)) that petitioner’s progress had been “mixed.” Petitioner changed substance abuse programs in April, from Esperanza to Clinica Romero. Petitioner’s primary counselor at Esperanza told the caseworker that although petitioner had been attending, she was not “actively participating” in the program and was “not being open enough during her groups.” The Esperanza counselor wanted petitioner to participate in psychotherapy. Petitioner’s counselor at Clinica Romero reported within the first month that petitioner was “starting to sink with her attendance” and was making only “minimal progress.” The counselor expressed the opinion that petitioner should not be granted custody of the boys “until she makes a stronger effort with her program . . . and [becomes] an active participant in her groups.” The counselor suggested that petitioner “get an order from the court to seek additional services for a Mental evaluation for possible signs of Depression.”

The caseworker additionally reported in June 2005 that in May, petitioner moved from Amigas to a room in a house where the landlords also resided, along with their grown son, a niece, the niece’s child, and another tenant.^[5] The house manager at Amigas said petitioner had been asked to leave “due to her unwilling attitude and non-compliance with house rules.”

At the same time, the caseworker reported that weekend visits continued to go well and Jason, in particular, was very upset the one weekend petitioner had to cancel. Petitioner appeared to be taking good care of her infant. The caseworker recommended (1) that petitioner “receive a complete psychological evaluation to address the underlying reasons for her difficulty with talking about personal issues and being open to change, and (2) that Jason continue to receive the special services he needs.”

At the June 12, 2006 hearing, the court set an 18-month review hearing (§ 366.22) for July 5. For purposes of the 18-month review hearing, the caseworker reported that on June 14, petitioner had an intake appointment at Kedren Community Mental Health Center (Kedren) and returned for orientation on June 22. Her therapist said that petitioner suffered from chronic depression and she was given an appointment with a psychiatrist to discuss medication.^[6] He further said that petitioner felt her children had been removed from her without due cause. Clinica Romero reported that petitioner had missed some group sessions and did not appear to be attending AA/NA meetings regularly. The caseworker was somewhat encouraged because petitioner “has begun to address [her depression]” and because the Kedren therapist “did not express any concern regarding [petitioner’s] ability to care for her children” but was concerned about her “rather half-hearted participation in the case plan and her seeming resistance to change.” The caseworker was also concerned about the difficulty DCFS incurred in running background checks on the people who lived in the house where petitioner was renting a room.^[7] On balance, the caseworker believed that it was time for reunification services to be terminated.

18-Month Review Hearing

On July 5, 2006, the court held a contested 18-month review hearing. The reports were put into evidence. In addition, there were two witnesses at the hearing: the boys’ foster mother and petitioner. The foster mother testified that the boys looked forward to the weekend visits with petitioner, came back happy, and asked when they were going to see petitioner again. She believed Jason in particular would benefit by being returned to petitioner.

Petitioner agreed that she suffered from depression, or at least that she was “sad,” in late 2004 because the children’s father had just left her and she had learned the condominium she rented was being sold. She conceded she had been neglectful by sleeping when the boys were awake and with regard to the home environment. She admitted to smoking marijuana in the past. At the time, she felt overwhelmed by the task of caring for the two boys.

With regard to her current situation, she testified that she had been involved in counseling at Clinica Romero since April and started counseling at Kedren in June. She believed she was being more open with her new counselors. She denied that she continued to suffer from depression. She was not taking any medication.

With regard to Jason, petitioner testified she did not believe he was mentally retarded. She believed he had behavioral problems, was confused, and had speech delay. She stated that the counseling she received enabled her to deal with his behavioral problems in a more constructive manner. She said she had “[b]riefly” read the behavioral management program report for Jason, issued in April 2006.

The court ordered reunification services terminated and set the matter for a section 366.26 hearing. At the hearing, the court quoted extensively from the Kedren report’s diagnosis. The court stated that petitioner had “refused to take responsibility for her situation” pointing to petitioner’s statement that she felt the children were removed without due cause and to her actions in moving from program to program. The court believed this was indicative of “an avoidance pattern.” The court also expressed concern about petitioner’s decision to move into a home “where the people are not going to provide any information on their backgrounds.” Finally, the court was “very concerned about her not understanding Jason’s problems” and gave as an example her testimony that she only looked briefly at the behavioral management report.

Following issuance of the court’s order, petitioner filed a petition for writ of mandate pursuant to Rules of Court, rule 38.1.

DISCUSSION

Under the governing statutes, the dependency court may extend reunification services to a parent up to a maximum period of 18 months if the court finds at the 12-month review hearing that “there is a substantial probability that the [children] will be returned” to the parent’s custody (§ 366.21, subd. (g)(1)) or that reasonable services have not been provided (id., subd. (f); Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1509). The court may not extend services beyond the 18-month statutory period unless extraordinary circumstances exist which prevented the parent from participating in the case plan. (Denny H., supra, at p. 1510; In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1067-1068.)

At the 18-month review hearing, also known as the “permanency review hearing,” the dependency court “shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a).) “If the child is not returned to [the parent] at the permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, guardianship, or long-term foster care is the most appropriate plan for the child.” (Ibid.)

“In determining whether it would be detrimental to return the child at the 18-month review, the court must consider whether the parent participated regularly in any treatment program set forth by the plan, the ‘efforts or progress’ of the parent, and the ‘extent’ to which the parent ‘cooperated and availed himself or herself of services provided.’ (§ 366.22, subd. (a).)” (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748; accord, Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1340.) “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.” (§ 366.22, subd. (a).)

Petitioner does not seek extension of reunification services. She contends that Jason and Joshua should have been returned to her care and that there was insufficient evidence to establish that return would create a substantial risk of detriment to their safety, protection, physical, or emotional well-being. Petitioner claims that her case is similar to Blanca P. v. Superior Court, supra, 45 Cal.App.4th at page 1746, where the parents complied with the reunification plan but reunification services were terminated because the caseworker did not believe they had “sufficiently ‘internalized,’ proper parenting skills,” and In re Heather P. (1988) 203 Cal.App.3d 1214, 1227, [disapproved in part on another ground in In re Richard S. (1991) 54 Cal.3d 857], where reunification services were terminated despite the fact the mother met all of the elements of the reunification plan because she failed to obtain a “positive evaluation from her therapist indicating that the minor would be at low risk for neglect or endangerment.” (See also In re Brian R. (1991) 2 Cal.App.4th 904, 913 [psychiatric expert testified that father “did not have the capacity to parent” despite having made substantial strides in resolving the problems which led to the initial dependency].)

We disagree that the cases cited provide guidance here. In Blanca P. and Heather P., there was no dispute that the parents had dealt with the concrete issues that led to DCFS intervention. The caseworkers sought to impose additional criteria, which were both vague and subjective. Here, in contrast, petitioner has not addressed any of the issues that caused Jason and Joshua to be detained and has failed to complete any portion of the reunification plan. She began four different substance abuse programs but failed to complete any of them. The counselor at her last program, Clinica Romero, reported that her attendance was not good and that she was making only “minimal progress.” The court twice ordered petitioner to address the severe depression that caused her to neglect her children and their home environment. She did not seriously begin to address that problem until June 2006, just weeks before the 18-month review hearing. She attended only a handful of therapy sessions at Kedren and could report no substantial progress. Contrary to petitioner’s assertions, the court did not base its ruling on “vague” allegations that petitioner “is not ‘opening up enough’” or had not “gone ‘deeply’ enough” or had failed to “address[] the problem ‘honestly’ enough.” The court’s order was based on the Kedren report that more than 18 months after dependency jurisdiction commenced, petitioner still suffered from untreated depression, and on the uncontradicted evidence that she had failed to complete a substance abuse program.

Petitioner contends that a diagnosis of chronic depression in and of itself is insufficient to establish that she cannot properly care for her children. The diagnosis did not stand alone. The record is replete with evidence of neglect caused by petitioner’s mental condition. When the caseworker first intervened, the home was in an unsanitary condition and petitioner was apparently not properly feeding or clothing the two boys. At Colby, she often would stay in bed all day. At Tarzana, personnel reported that she was not cleaning her room or supervising the children, did not appear to be bathing or feeding them regularly, and may have hit them. The counselor at Clinica Romero blamed her inability to make progress in the substance abuse program on depression. She was asked to leave Amigas “due to her unwilling attitude and non-compliance with house rules.” These facts provide substantial evidence to support the court’s finding of risk of detriment to the two boys if they were returned to appellant. The fact that appellant may be adequately caring for her newborn does not prove that she will be able to care for two more, particularly when one is suffering from hyperactivity and retarded development.

“The statutory scheme limits the time in which children must wait for parents to demonstrate themselves capable of responsible parenthood.” (In re John F. (1994) 27 Cal.App.4th 1365, 1376.) Because petitioner failed to deal with the issues that caused the two older boys to be detained, the court did not err in ordering reunification services to be terminated or in setting the matter for a hearing under section 366.26.

DISPOSITION

The order of July 5, 2006, is affirmed. The petition for writ of mandate is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P.J.

WILLHITE, J.

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

^[2] These specific allegations were not sustained by the court. As will be seen, jurisdiction rested on other grounds.

^[3] Up to this time, the children were in foster care, as the maternal grandmother’s home was too small and cluttered, and she was ambivalent about having custody.

^[4] Petitioner’s third child, a boy, was born in January 2006. There has been no attempt to include him in the dependency proceedings.

^[5] It is not clear from the record when petitioner, who reportedly left Amigas to reside at Mi Primera Casa Sober Living in December 2005, returned to Amigas.

^[6] The Kedren report described petitioner as suffering from the following symptoms: “sadness, dysphoria, low energy, crying spells, anxiety, poor appetites, sleep disturbances, guarded[ness], distrust of others, avoid[ance of] other people[,] and . . . poor coping skill which impair her ability to deal with stressors, (e.g. feels overwhelmed with DCFS involvement[] and it has been reported at such times she will stay in bed all day[)].”

^[7] During this period, petitioner continued to have unmonitored weekend visits with the children.