Guadalupe G. v. Sup. Ct.

Filed 1/18/07  Guadalupe G. v. Sup. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing.  Gary M. Bubis, Referee.  Petition granted; stay vacated.

            Guadalupe G. and Andres C.^[1] seek writ review of juvenile court orders made at the 18-month review hearing terminating family reunification services and setting a hearing under Welfare and Institutions Code section 366.26.  Guadalupe and Andres assert the court did not apply the proper legal standard to determine whether returning their daughter to parental custody would create a substantial risk of detriment to the child's safety, protection or physical or emotional well-being.  They further contend that no substantial evidence supports the court's finding of detriment.

            We conclude the court abused its discretion when it based its finding of detriment on the stability of the child in foster care and her attachment to the foster mother.  There is no substantial evidence to support a finding that the child would suffer serious, long-term emotional trauma if separated from the foster parent and returned to parental custody.  We further conclude the court's finding that Guadalupe and Andres made no effort to visit their daughter is not supported by substantial evidence and is inconsistent with prior rulings of the trial court on that very issue.  The parents satisfactorily completed their case plan in Mexico, and the Agency did not show that a return to parental custody would create a substantial risk of detriment to the child.  Accordingly, we grant the relief requested.

FACTUAL AND PROCEDURAL BACKGROUND

            On December 3, 2004, the San Diego County Health and Human Services Agency  (Agency) filed a petition under Welfare and Institutions Code section 300, subdivisions (b) and (g).^[2]  The Agency alleged Guadalupe and Andres (together, parents) provided inadequate care for their eight-month-old daughter, Fatima C., when they attempted to sell cocaine to an undercover police officer while the child was present, and the parents were unable to arrange care for the child when they were subsequently incarcerated.  During an initial health screening at the detention center, Fatima tested positive for cocaine.  The Agency then filed an amended petition under section 300, subdivision (b), alleging the child was at substantial risk of serious harm or illness due to drug exposure. 

            The social worker reported Fatima appeared to be in good health overall.  However, Fatima had difficulty adjusting to being out of her parents' care, and the social worker was concerned about the effects of drug exposure.  Andres and Guadalupe admitted to attempting to sell cocaine valued at approximately $130.  Andres denied recent drug use and stated that Guadalupe did not use drugs.  Guadalupe denied using drugs and reported she hid the cocaine in her bra, and Fatima may have been exposed to the drug while breastfeeding.  Both parents expressed a great deal of concern for their daughter and regret for the current situation.  They expected to be deported, and Andres asked the social worker to evaluate his relatives in Mexico for Fatima's placement. 

            On December 30, 2004, Andres and Guadalupe submitted to jurisdiction.  The court placed Fatima in foster care and authorized the Agency to move her to the home of a relative with notice to minor's counsel.  Each parent's case plan required participation in individual counseling, a psychological evaluation if recommended by the therapist, parenting education programs, a substance abuse program, including random drug testing, and in-home support services as directed.  The Agency was responsible for arranging appropriate supervised visitation between Fatima and her parents. 

            On March 21, 2005, Andres contacted the social worker to report he and Guadalupe had been deported and were leaving Tijuana for the state of Tlaxcala, Mexico.  There, they planned to live with a relative, find work, and participate in services through the Mexican social services agency, Sistema Estatal Para El Desarollo Integral de la Familia (DIF). 

            On May 20, 2005, Guadalupe telephoned the social worker and told her that she and Andres were waiting to see where Fatima would be placed in Mexico before beginning services.  To assist the parents in complying with the case plan, the social worker contacted DIF to confirm that services were available to the parents upon presentation of documents from San Diego County Child Welfare Services.  The parents began services on May 23, 2005.  They tested negative for drugs, and after participating in individual and group therapy for several weeks, the therapist assessed their prognosis as " favorable."  

            In reports prepared in June 2005 for the six-month review hearing, the Agency reported Fatima had developed an attachment to her foster mother and concerns regarding  separation anxiety had diminished.  Other than needed improvement in language and vocabulary development, Fatima was developing at an age-appropriate rate.  DIF completed evaluations of the homes of three relatives in Mexico.  The social worker reported DIF was " particularly impressed" by a maternal aunt. 

            In an addendum report prepared August 1, 2005, the Agency reported 16‑ month‑ old Fatima had significant developmental delays in her speech and suffered from " separation anxiety/separation disorder."   Fatima was " deeply attached" to the foster mother and would separate only to familiar people in familiar surroundings.  She was also described as " very independent."   The Agency recommended family reunification services continue until the 12-month review date.

            The court found that based on the parents' current progress, it appeared Fatima would be returned to their custody by the next review hearing.  The court set a special hearing to determine a plan for visitation.  Guadalupe and Andres lived approximately 1,500 miles from Tijuana.  When discussing the visitation plan with the social worker, Guadalupe asked whether the foster mother was willing to travel with Fatima to the home of the foster mother's grandmother in Puebla, as she had done twice in early 2005 with their consent.  Puebla was located approximately 45 minutes from the parents' home.  The foster mother agreed to travel, and the court approved the visitation plan and authorized funding. 

            In October 2005, the parents visited Fatima on three consecutive days, supervised by a DIF social worker.  The social worker reported Fatima began to be secure and sociable with her parents one and one-half hours into the visit.  She allowed Andres to carry her.  Guadalupe was initially reluctant to hold Fatima, fearing rejection, but later took Fatima into her arms without incident.  On the second visit, the foster mother stated that Fatima had developed a rash as a result of stress.  The DIF social worker reported Fatima arrived happy and stayed close to her parents in a natural way.  When Fatima tired, Guadalupe sat down and caressed her back.  Andres sang her a lullaby, and Fatima fell asleep in her mother's lap.  At the third visit, the parents were attentive and affectionate with Fatima. 

            A scheduled visit in January 2006 was cancelled by the foster mother, who was unable to arrange a trip due to work and school schedules.  In February, the social worker invited the parents to travel to San Diego at the Agency's expense; however, the parents told the foster mother they were unable to come. 

            A contested 12-month review hearing was held on April 7, 2006.  The parents' psychologist, Zeniado Cruz Herrera, reported Andres satisfactorily completed his therapeutic process.  Herrera determined Andres was " healthy physically, mentally and socially, as well as with regard to family and fatherhood."   Andres had been working since May 2005 and was able to provide for his family.  The parents had complied with drug testing and all their drug tests had been negative.  In an earlier report, Herrera opined Guadalupe had " demonstrated a great change in her way of thinking and acting." ^[3] 

            The court found that it was reasonable for the parents not to stay in Tijuana after they were deported.  They were indigent and did not have any family in the area.  The parents were provided services in Mexico, they participated in services and they benefited from those services.  The court found that visitation was sufficient under the circumstances and there was a substantial probability Fatima could be returned to parental custody by the 18-month review hearing if there was substantial visitation between the parents and Fatima before the scheduled review hearing on June  6, 2006.  The court ordered services to continue and directed the Agency to assist the parents in arranging as much visitation as practical.

            Visits took place on May 3, 4 and 5, 2006, in Puebla.  At the first visit, the foster mother reported Fatima did not know her parents and would not let go of her until she directed Fatima's attention to her new baby sister.  The DIF social worker reported the foster mother left after 15 minutes and Fatima easily interacted with her parents in a calm, secure and sociable manner.  Guadalupe and Andres asked Fatima to call them " mama" and " papa," which the child did on repeated occasions. 

            The following day, the DIF social worker reported Fatima greeted Andres and Guadalupe with a kiss and a hug.  Fatima kissed the baby and said " baby."   The foster mother left without major problem.  Guadalupe and Andres carried Fatima and kissed and hugged her at every opportunity.  The foster mother remained throughout the third visit, and Fatima came to her periodically for reassurance.  The DIF social worker reported when Fatima first saw Andres on May 5, she " happily" ran to him and called him " papa."   They played together, and Fatima asked to hold her baby sister.  During the visit, Fatima interacted with her parents, sister and foster mother. 

            After Fatima returned from Puebla, the foster mother reported Fatima began to display an unreasonable fear of sirens, ants and other small insects.  The Agency arranged for therapy.  In July 2006, the therapist diagnosed Fatima's condition as separation anxiety disorder and reported her condition improved during the course of treatment.  The therapist observed that Fatima was healthily attached to her foster family.  Fatima's preschool teacher also reported the severity of Fatima's separation anxiety had diminished. 

            The 18-month review hearing was rescheduled for July 28, 2006, and then continued until September 15.  Karen Martin, manager of the East Region Child Welfare Services, acknowledged the parents complied with their case plans.  However, after reviewing the reports, Martin believed Fatima would suffer detriment if returned to her parents because the parents abandoned Fatima when they moved to the interior of Mexico, and Fatima suffered from a separation anxiety disorder that did not improve with services.  Martin opined Fatima's separation anxiety could have been ameliorated with consistent parental visitation, but that did not occur. 

            Herrera, the parents' psychologist, testified Guadalupe participated in therapy for one year, and she had been in a follow-up program for nine months.  Guadalupe did not test positive for drug use during treatment.  Her total abstinence from the use of psychotropic substances indicated complete remission.  She accepted responsibility for Fatima's circumstances, and demonstrated she understood Fatima's special needs to the degree they were communicated by the Agency.  Herrera had observed Guadalupe's interaction with her infant daughter on nine occasions.  The baby was " very well cared for," and he had no concerns regarding Guadalupe's ability to care for the child. 

            The parties stipulated Andres tested negative for substance abuse in all drug tests.  Herrera testified Andres accepted responsibility for his actions that led to Fatima's dependency.  He was reintegrated into society and able to support his family.  Andres was employed and had obtained medical insurance for his family, including Fatima. 

            The court found that return of the child to parental custody would create a substantial risk of detriment to the child's physical or emotional well-being:  The parents came to the United States illegally, sold drugs illegally and were deported to Mexico.  Andres and Guadalupe chose to live far away and they chose not to visit Fatima.  The court found that Fatima did not know her parents and it would be a " psychological nightmare for her to be uprooted, taken down to Mexico, placed, and that would be the end of it."   The court terminated reunification services and set a permanency plan hearing under section 366.26. 

            Guadalupe and Andres each filed a writ petition under California Rules of Court, rule 38.1^[4] and requested a stay of the proceedings.  On December 22, 2006, this court stayed the section 366.26 hearing pending further action of this court.

DISCUSSION

I

Introduction

            Andres and Guadalupe contend the court erred when it did not return Fatima to their custody at the 18-month review hearing.  They argue the Agency failed to prove returning their daughter to parental custody would create a substantial risk of detriment to the child's safety, protection or physical or emotional well-being (detriment finding or finding of detriment).  Citing David B. v. Superior Court (2004) 123 Cal.App.4th  768, 789 (David  B.), they contend the standard for a finding of detriment " must be construed as a fairly high one."   Both parents assert they made substantial progress with services, addressed the problem that led to the dependency, maintained contact with Fatima through telephone and internet services, and visited her as arranged by the Agency.

            The Agency acknowledges Andres and Guadalupe participated in reunification services.  The Agency argues a parent's participation in services does not guarantee the child will be returned to parental custody.  It contends the lack of visitation between the parents and Fatima constitutes substantial evidence to support a finding of detriment, especially in view of the child's diagnosis of separation anxiety disorder.  The Agency asserts Fatima was attached to the foster family and removal from their home would place her mental and emotional health at risk.  In addition, the Agency contends Fatima had developmental delays, which the parents did not recognize, and there was no evidence Fatima would receive the same or equivalent services in Mexico as she was provided in San Diego. 

II

A

" A Substantial Risk of Detriment" Is Construed As A Fairly High Standard

            The purpose of the California dependency system is to protect children from harm and to preserve families when safe for the child.  (§  300.2; In re Dakota H. (2005) 132 Cal.App.4th  212, 228.)  Until services are terminated, family reunification is the goal and the parent is entitled to every presumption in favor of returning the child to parental custody.  (David B., supra, 123 Cal.App.4th at p. 788; see §§  366.21, 366.22.) 

            At the 18-month review hearing, section 366.22, subdivision (a) requires the court to return the child to the physical custody of the parent unless the court finds by a preponderance of the evidence that return to the parent would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.  The social worker has the burden of establishing that detriment.  The failure of the parent 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).)

            A division of this court has held that the standard, " a substantial risk of detriment," although vaguely worded, must be construed as a fairly high standard.  (David B., supra, 123 Cal.App.4th at p. 789.)  " It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member."   (Ibid.)  The issue at a review hearing is whether placing the child in parental custody represents some danger to the child's physical or emotional well-being.  (Id. at p.  788.) 

            Here, the parents completed required reunification services and made substantive progress with their case plans.  Neither parent tested positive for drug use during the reunification period.  Andres successfully maintained employment and was able to provide for his family's material needs.  The parents fulfilled the requirements of their case plan, resolved the issues that led to the dependency, and demonstrated they were safely providing and caring for a young child.  DIF social workers visited the parents' home to observe the implementation of the roles and responsibilities they learned through services.  The general director of the Tlaxcala DIF opined Fatima could reunify with her parents, and stated that DIF could provide the level and quality of services to the family within the parameters set by the court. 

            Despite the presumption in favor of returning Fatima to the physical custody of her parents, the court found that " uprooting" Fatima from her foster family and placing her in Mexico would be a " psychological nightmare" for the child.  Implicit in this finding is an assessment of the relationship between Fatima and her foster family, and the effect separation from the foster family would have on Fatima's emotional well-being.  We conclude that the trial court misconstrued the standard required to show " a substantial risk of detriment," and thus abused its discretion.

            Our colleagues in the Fourth Appellate District, Division Three, held that it is improper for the juvenile court to consider the relationship between the child and the foster parent in reaching a decision to terminate services and to refer the case to a hearing under section 366.26.  (Rita L. v. Superior Court (2005) 128 Cal.App.4th  495, 507.)  However, the California Supreme Court has recognized a limited exception to this principle when severing the child's bond with the foster parent will cause the child to suffer long-term, serious emotional damage.  (In re Jasmon O. (1994) 8 Cal.4th  398, 418‑ 419 (Jasmon O.).  The court stated:

" We have no quarrel with the assertion that the existence of a successful relationship between a foster child and foster parent cannot be the sole basis for terminating parental rights or depriving the natural parent of custody in a dependency proceeding.  The evidence here was of a different order.  It established that the severing of the bond with the foster parents would do serious, long-term emotional damage to [the child]."   (Id. at p. 418.)

            In such circumstances, the Supreme Court suggested the juvenile court should " carefully evaluate whether a child's distress in severing a temporary bond is simply situational, and not base their decisions on a transitory problem."   (Jasmon O., supra, 8  Cal.4th  398 at p. 418.)  In Jasmon O., the evidence demonstrated the previous reunification order was not in the child's best interests because its execution caused her to develop a serious mental illness, including separation anxiety and depression, and her treating psychologist believed the transition to the father's care would cause the child to suffer " serious lifelong emotional detriment." ^[5]  (Id. at p. 416.)  The child's father, despite therapeutic intervention, was not able to meet her extraordinary emotional needs, had not complied with the transition plan, and the child had alleged an act of sexual abuse.  (Id. at pp.  416-417, 426.)  Further, four psychologists agreed the child would suffer severe psychological harm and serious mental illness if placed in the care of the parent.  (Ibid.; see also Blanca P. v. Superior Court (1996) 45 Cal.App.4th  1738, 1750 [psychological evaluations, if reasonably specific and objective, can serve as credible evidence to sustain a finding of detriment].)

            An appellate court has also imposed limitations on the finding of detriment when the parent has satisfactorily completed his or her case plan but the prospect of return causes the child to suffer emotional distress.  In In re Joseph B. (1996) 42 Cal.App.4th  890, 903 (Joseph B.) the appellate court concluded that a child's emotional distress at the prospect of a return to parental custody must be " a manifestation of the original basis for dependency" in order to preclude a return to parental custody.  In that case, even though the parent successfully completed the case plan, the reviewing court concluded that the child's return to parental custody was not required.  (Id. at pp. 901-902.)  The finding of emotional detriment to the child was supported by the parent's history of physical abuse of the child, which had severely scarred the child emotionally, the child's expression of fear and his desire not to return to his parent, the social worker's opinion regarding the adverse effect that return would have on the child's emotional well-being, and the parent's antipathy to family counseling services.  (Id. at p. 901; Jennifer  A. v. Superior Court (2004) 117 Cal.App.4th  1322, 1344.)  Thus, these cases illustrate that a child's emotional distress on reunification, without more, does not constitute a substantial risk of detriment within the meaning of section 366.22, subdivision (a). 

            Here, the Agency contends Fatima's separation anxiety and her other special needs, and the lack of visitation with her parents, constitute substantial evidence to support a finding of detriment.  The Agency argues the parents chose not to visit Fatima, and the child has special needs that will not be addressed in Mexico either because the parents do not recognize her needs or the support services will not be adequate.  As discussed below, these assertions are not sufficient to establish that Fatima would suffer serious, long-term emotional damage if returned to the custody of her parents.

B

The Lack of Visitation Was Not Attributable To The Parents

            The Agency faults the parents for their lack of visitation and asserts that the parents' failure to regularly visit Fatima constitutes sufficient evidence to establish a presumption that return to parental custody would be detrimental to the child.  However, the Agency ignores the court's findings at the 12-month hearing.  At that hearing, the court determined visitation to date had been " sufficient" and found there was a substantial likelihood Fatima would be returned to parental custody at the 18-month review hearing.^[6]  The court directed the Agency to assist the parents to arrange visits as often as practical between that date and the date of the 18‑ month review hearing, scheduled for June 6, 2006.  In addition, the case plan placed the responsibility for arranging appropriate visitation between Fatima and her parents on the Agency. 

            After the 12-month review hearing, the social worker offered the parents alternative visitation plans.  The county was willing to provide sufficient funding to fly the foster mother and Fatima to Puebla or to provide the parents and their infant daughter with bus tickets to Tijuana and a hotel room for two or three days.  The social worker informed Guadalupe that due to her schedule and border crossing delays, the Agency would be able to provide the parents as many visits in Puebla as in Tijuana, and the visits in Puebla would be of longer duration.  The parents preferred visits take place in Puebla, provided the number of visits would be the same as in Tijuana.  The foster mother agreed to travel to Puebla to facilitate visitation, and visits took place on May 3, 4 and 5, 2006.

            The trial court was unable to set a date for the contested 18-month review hearing until July 28, 2006, and that hearing date was continued until September 15.  After the series of visits in May, there is no indication in the record the Agency attempted to assist the parents or to facilitate further visitation.  The social worker noted that telephone and internet contacts between the parents and Fatima " serve as visits in that the parents reside in southern Mexico." ^[7]  Between June 8 and September 1, Guadalupe and Andres contacted Fatima nine times.  Guadalupe reported they attempted to telephone and arrange webcam contact on other occasions but were not successful. 

            Despite the court's finding at the 12-month hearing that it was reasonable for the parents to relocate in southern Mexico in view of their circumstances, the Agency persists in faulting the parents for choosing not to stay closer to Fatima to allow more frequent visitation.  The record shows that at the outset of the case, the Agency informed the parents that if a relative was approved for placement, it would move Fatima to Mexico.  At disposition, the court authorized the Agency to move Fatima to the home of an approved relative in Mexico with notice to minor's counsel. 

            DIF conducted evaluations of three relatives and was " particularly impressed" by the qualifications of a maternal aunt.  However, in August 2005, the social worker telephoned the parents to ask them to forgo relative placement to maintain Fatima's stability in the foster home and not interrupt services addressing Fatima's separation anxiety and language development.  The social worker lauded the parents' decision not to move Fatima, stating, " Although they miss [Fatima] and wish to see her, they are willing to make her best interest the priority."   At no time did the social worker advise the parents that the lack of visitation would be fatal to reunification efforts.^[8] 

            We conclude that visitation was reasonable under the circumstances.  At the 12‑ month hearing the trial court found that the parents' decision to return home to the interior of Mexico was reasonable, a finding the facts support.  In making their decision, the parents relied in part on the Agency's stated intent to place Fatima with a suitable relative in Mexico.  Further, the parents' acquiescence to Fatima's continued placement in foster care when advised that continuity was in the child's best interests due to her special needs, reflects positively on the parents' willingness to place Fatima's needs above their own interests, and should not be used to thwart reunification.  The record shows that the parents maintained regular contact with Fatima and the foster mother through telephone calls and internet services, including webcam " visits."   The social worker, parents and foster mother worked together to fashion a visitation plan, and the parents participated in visitation to the fullest practical extent.  (Cf. In re Elizabeth  R. (1995) 35 Cal.App.4th  1774, 1791.)

C

Substantial Evidence Does Not Support A Finding That Returning Fatima To Parental Custody Would Cause Her Serious, Long-Term Emotional Damage

            The Agency contends that substantial evidence supports a finding that Fatima was a special needs child due to her hearing problems and separation anxiety disorder, and her parents did not recognize her limitations and would not provide needed services.  This assertion is not supported by the record.  In May 2006, Fatima's speech delays were attributed to hearing loss caused by chronic ear infections.  Her doctor recommended a common surgical intervention and with the parents' consent, the procedure was successfully completed on June 8.  A month later, Fatima's therapist reported Fatima spoke English and Spanish fluently, and did not note any problems with the child's ability to communicate. 

            Fatima experienced separation anxiety from the time she was removed from her parents' custody at eight months of age.^[9]  Initially, she would cry even when briefly separated from the foster mother.  In March 2005, at age one, Fatima would separate to familiar people in familiar surroundings.  In May 2006, the DIF social worker observed that Fatima had become more independent since her last visit and this was reflected in her play, curiosity and relationships.  She used Spanish and English to communicate, and appeared well directed in her autonomy.  In July 2006, Fatima's therapist reported Fatima's separation anxiety had improved with treatment, and Fatima's preschool teacher observed that the severity of the child's anxiety had diminished during the previous six months. 

            Social worker Martin testified, and the Agency concedes, that consistent visitation with the parents would have ameliorated the severity of Fatima's symptoms of separation anxiety.  The record shows that Fatima was secure and sociable with her parents within two hours of her first visit with them in almost one year.  The DIF social worker reported Fatima stayed close to her parents in a natural way.  When Fatima was tired, Andres sang to her and Guadalupe caressed her back, and the child fell asleep in her mother's lap.  During the second series of visits, Fatima was able to separate from the foster mother without major problems, and she interacted with her parents and baby sister in a calm, secure and sociable manner. 

            We do not doubt that Fatima was integrated into the foster family and demonstrated an attachment to the foster mother.  We expect no less than competent, loving care from families offering a temporary placement to dependent children. 

Reintegration into a family that Fatima does not know well will be stressful for her, as it would be for a child of her age transitioning from foster care to an adoptive placement.  Such a transition, even if uncomfortable or highly stressful for the child, is not sufficient to support a finding of detriment.  (Jasmon O., supra, 8 Cal.4th  at p. 418; Joseph B., supra, 42 Cal.App.4th  at p. 903.)  Even considering Fatima's diagnosis of separation attachment disorder, there is no evidence to support a conclusion that returning the child to parental custody and severing the bond with the foster parent would do serious, long-term emotional damage to the child.  (Jasmon O., supra, 8 Cal.4th at p. 418; Blanca P. v. Superior Court, supra, 45 Cal.App.4th  at p.  1750.)  The Agency concedes that consistent visitation with the parents would have ameliorated Fatima's anxiety at being separated from the foster mother; therefore there is no basis to conclude that return to parental custody would result in lasting emotional damage or serious mental illness to Fatima.

            We reject the Agency's assertion that appropriate services are not available to Fatima in Mexico, either because her parents did not recognize her special needs or because Fatima would not receive the same quality services in Mexico as she was provided in San Diego.  As discussed ante, Fatima's parents were willing to forgo their interest in visitation when informed that Fatima required consistent care and special services to properly address her needs.  Psychologist Herrera testified that the Agency never sent him Fatima's diagnosis, but he and the parents understood that she suffered

from hearing and speech problems and there were concerns about her bond with the parents.  He stated it was his responsibility to establish a treatment plan, not the parents.  Herrera was trained in child development, including the special education needs of children with hearing problems and those with separation anxiety, and he could refer Fatima to speech therapists.  The general director of the Tlaxcala DIF stated that the agency could provide the level and quality of services to the family within the parameters set by the court. 

            Finally, a review hearing in a dependency proceeding does not involve a determination of the better custodial parent.  In determining whether it is safe for the state to return a dependent child to parental custody, the court does not compare the advantages and disadvantages of one country or culture to another, or take into account a parent's relatively low, but adequate, standard of living.  We agree with our colleagues' observation that:

" We do not get ideal parents in the dependency system.  .  .  .  But the State of California is not in the business of evaluating parents and redistributing their offspring based on perceived merit.    [¶]  .  .  .  [¶]  This is a hard fact to accept.  We are dealing, after all, with children, and the dedicated people who work so hard to help these families are understandably desirous of providing those children the best possible circumstances in which to grow up.  But there are times when we have to take a step back and make sure that we are not losing sight of our mandate."   (David B., supra, 123 Cal.App.4th  at p. 789-790.)

            Our mandate is to reunify families when safe for the child.  (§  300.2; In re Dakota  H., supra, 132 Cal.App.4th  at p. 228.)  The focus during the reunification period is to preserve the family whenever possible.  (Rita L. v. Superior Court, supra, 128 Cal.App.4th  at p. 507; In re Elizabeth R., supra, 35 Cal.App.4th  at p.  1788; In re Michael  R. (1992) 5 Cal.App.4th  687, 695-696.)  At the 18-month hearing, if the parents have complied with the requirements of their case plan and made substantive progress, the presumption is that the child will be returned to parental custody.  (§  366.22.)  This presumption is overcome only by a finding that return of the child would create a substantial risk of detriment, a fairly high standard.  (Ibid.; David B., supra, 123 Cal.App.4th  at p. 789.)

            Here, Andres and Guadalupe did everything the Agency asked of them.  Andres resolved issues concerning his involvement with drug use and drug sales.  He reintegrated into Mexican society and demonstrated his ability to provide for his family through lawful employment.  He was able to secure health insurance for his family, including Fatima, a condition DIF imposed on his rehabilitation.  Guadalupe, too, completed her programs and demonstrated she was capable of caring for a young child.  A DIF social worker visited the family home and observed the parents were able to implement parenting education and insights gained from therapy into practice.  The parents maintained contact with Fatima and the foster mother through telephone calls and internet services, and they were loving and attentive to Fatima during their visits. 

            The record shows that Fatima's speech and hearing problems were resolving after surgery, and her anxiety on separating from her foster mother had improved.  Fatima's responses to her parents and sister during visitation show that the parent-child and siblings relationships can be maintained and strengthened, and there is no basis in the record to conclude that appropriate services are not available to the family in Mexico.  Further, the Agency did not present specific and objective evidence to show that Fatima would suffer a serious psychological injury if returned to parental custody.  (Blanca  P. v. Superior Court, supra, 45 Cal.App.4th  at p. 1750.)

            We therefore conclude that the court erred when it based its decision not to return the child to parental custody on Fatima's current psychological needs without carefully evaluating " whether a child's distress in severing a temporary bond is simply situational."   (Jasmon O., supra, 8 Cal.4th  at p.  418.)  The record does not support a reasonable inference that Fatima's anxiety when separated from her foster mother constitutes a " serious lifelong emotional detriment" sufficient to preclude her return to parents who have demonstrated they can provide her with a safe and loving home.  (Id. at p. 416; David B., supra, 123 Cal.App.4th  at p.  788.) 

DISPOSITION

            Let a writ issue directing the superior court to vacate its findings and order terminating reunification services and setting a permanency plan hearing under section 366.26, and enter a new order returning the child to the custody of her parent or parents

under a plan of family maintenance services.  The stay issued December 22, 2006, is vacated.

IRION, J.

WE CONCUR:

                       HALLER, Acting P. J.

                                McDONALD, J.

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^[1]           Although the record refers to Andres L., the correct initial is C.

^[2]           All statutory references are to the Welfare and Institutions Code.

^[3]           Guadalupe's therapy was interrupted in December 2005.  Herrera explained he was concerned about her health because she was pregnant, and suspended therapy because his institute was more than an hour away from her home. 

^[4]           Now California Rules of Court, rule  8.452 (eff. Jan. 1, 2007).

^[5]           At the time of the review by the Supreme Court, the child had been with her foster family for seven years, since age six months.  (Jasmon O., supra, 8 Cal.4th at p.  407.)  The court noted that Jasmon O. arose under an earlier statutory scheme that permitted significant delays in the proceedings past the 18-month review date.  (Id. at p.  420.)

^[6]           The court's finding at the 12-month hearing the parents' visitation with Fatima had been sufficient to that date is not subject to review. 

^[7]           The social worker previously reported that internet visits with the parents were meaningless for Fatima. 

^[8]           In April 2006, the parents denied they entered into an agreement to permanently forgo Fatima's placement with a relative in Mexico.

^[9]           The essential feature of separation anxiety disorder is excessive anxiety concerning separation from the home or from those to whom the person is attached.  This anxiety is beyond that which is expected for the individual's developmental level, and must last for a period of at least four weeks and cause clinically significant distress or impairment in social, academic, or other important areas of functioning.  (American Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders Text Revision (DSM-IV-TR) (4th ed. 2000) at p. 121.)  Children with this disorder tend to come from families that are close-knit.  (Id. at p. 122.)  Separation anxiety disorder is not uncommon; prevalence estimates average about four percent in children and young adolescents.  Typically, there are periods of exacerbation and remission.  However, the majority of children with separation anxiety disorder are free of impairing anxiety disorders at extended follow-up.  (Id. at p. 123.)