In re Brooklyn R.

Filed 4/17/07 In re Brooklyn R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Commissioner. Affirmed.

Gloria R. appeals the findings and orders of the juvenile court made at the          12-month review hearing. She contends the court erred when it did not return her children to her custody or, alternatively, did not extend her reunification services to the 18-month review date. Gloria also challenges the court's finding that she was provided reasonable services. We affirm the findings and orders of the juvenile court.

FACTUAL AND PROCEDURAL BACKGROUND

Brooklyn R., born in April 2000, and James R., born in April 2001, (together, children) are the children of Gloria R. and her husband, J.R., who was incarcerated from June 2002 until April 2005.^[1] Gloria was living with Lorenzo D., the father of her three youngest children (siblings).^[2] The family moved from motel to motel. Gloria, J.R., and Lorenzo each had a history of methamphetamine abuse and criminal convictions.

In late April 2005, while Gloria was out, Lorenzo taped Brooklyn's right hand to her right ankle and her left hand to her left ankle with black electrical tape. He threw her on a bed. When Brooklyn tried to free herself, she rolled off the bed and hit her face on the floor. Her left cheek was significantly bruised. A relative noticed Brooklyn's injury and contacted the San Diego County Health and Human Services Agency (the Agency).

On April 27, 2005, the La Mesa Police Department went to the family's motel room to conduct a welfare check on the siblings. Gloria was not present. The officer saw a pipe containing marijuana and marijuana residue within the children's reach. Lorenzo told the officer the pipe was his. In later interviews, Brooklyn and James described seeing Gloria and Lorenzo use drugs. The Agency also reported that Gloria had an outstanding felony warrant for possession of methamphetamine.

The Agency detained Brooklyn and James, who were in the care of a maternal relative, and asked the court for a pick up and detain order for the siblings, who were presumably with Gloria and Lorenzo. The Agency filed petitions under Welfare and Institutions Code section 300, subdivisions (i), (j), (b), (g),^[3]alleging Lorenzo perpetrated an act of cruelty on Brooklyn and there was a substantial risk James would be subjected to an act of child cruelty, the children were in need of protection due to marijuana left within their reach, and the parents,^[4]whose whereabouts were unknown, left the children without provision for support.

On May 24, 2005, the court sustained the allegations of the dependency petition filed on behalf of Brooklyn and James. On June 15, the court removed the children from parental custody, placed them in relative care, and ordered a plan of family reunification.

On July 5, 2005, the Agency located Gloria, Lorenzo and the siblings by tracing ambulance records after she gave birth to the youngest sibling in a motel room. The baby tested positive for amphetamine and methamphetamine. The Agency detained the siblings.

Gloria's case plan included general counseling, substance abuse treatment, a parenting education program, and a psychological evaluation. She tested positive for methamphetamine on September 23, 2005, and did not actively participate in services until October. Once Gloria started her case plan, the Agency reported she made progress. In early December, Gloria was convicted of unauthorized use of personal information and sentenced to serve 180 days.^[5] Lorenzo did not comply with his case plan and tested positive for methamphetamine. He pled guilty to child endangerment, and was sentenced to time served and four years' probation.

In December 2005, the Agency recommended the court terminate services and set a permanency plan hearing under section 366.26. However, by the time the six-month review was heard on April 17, 2006, the Agency withdrew its recommendation to terminate reunification efforts. Gloria had been released from custody and was working full-time. She completed a parenting class while incarcerated. Gloria reenrolled in a substance abuse treatment program and was participating in therapy. Lorenzo successfully completed a 60-day residential substance abuse treatment program. The court extended reunification services to the 12-month review date.

In its report prepared for the 12-month review hearing, the Agency recommended the court terminate services and set a section 366.26 hearing. Although Gloria appeared to be doing well and maintaining her sobriety, Lorenzo was not participating in services. In May 2006, he tested positive for methamphetamine and was placed on a waiting list for inpatient treatment. On June 28, Lorenzo entered a short-term residential treatment program. He left the program the next day.

The 12-month review hearing was held on August 29, September 29 and October 13, 2006. The social worker testified Brooklyn and James were doing well in the care of paternal grandparents in Arizona. The children saw J.R. almost every day. Gloria was not able to visit the children after they were placed in Arizona but usually talked to them every week.

The social worker reported that Gloria complied with drug treatment but her participation in therapy was not consistent. The social worker was concerned Gloria's relationship with Lorenzo presented a significant risk of detriment to the children. Although Gloria accepted responsibility for her substance abuse, she continued to support and protect Lorenzo. Because Lorenzo had not made any progress in overcoming his addiction to methamphetamine, there was a high probability the children would be abused or neglected if returned to Gloria.

Gloria testified she had been drug-free since September 28, 2005. Currently, Gloria attended N.A. meetings four times a week, participated in a weekly aftercare program, and had a sponsor and a strong support group. She tested through Substance Abuse Recovery Management System (SARMS), an aftercare program, probation and at the sober living facility. In August 2006, Gloria realized she needed to live in a drug-free environment, even if it meant separating from Lorenzo. Gloria found it difficult to find the right facility and the money to pay for it, but she was able to move to a sober living facility several weeks before the October hearing. The children were permitted to visit but could not live at the facility with her. Gloria intended to save money to rent a place where she and the children could live.

Gloria did not believe Lorenzo intended to harm Brooklyn when he tied her up. She characterized his actions as a "mistake." Gloria blamed herself for not being a better mother. She loved Lorenzo but knew it was not safe for her or the children to be with him while he was not in recovery.

The court found that Gloria made some progress with her case plan, particularly in her recovery from substance abuse. The court did not believe Gloria understood her codependent relationship with Lorenzo, and characterized the timing of her recent move to a sober living facility as "suspicious." Although Gloria had taken the first step to separate from the man who physically abused her child, the court did not believe she would be able to resolve her long-standing therapeutic issues before the 18-month review date.

The court found there would be a substantial risk of detriment to the children if returned to parental custody. The court terminated Gloria's reunification services, extended J.R.'s services to the 18-month review date, and set the 18-month review hearing for November 1, 2006.^[6]

DISCUSSION

I

Gloria contends insufficient evidence supports the court's findings that returning Brooklyn and James to her custody would create a substantial risk of detriment and that she was provided reasonable services. She asserts she complied with all aspects of her case plan, made progress in ameliorating the problems that led to the dependency, and was prepared for the children's return to her physical custody.

The Agency agues Gloria did not contest the court's findings of detriment and reasonable services at trial and thus forfeits them on appeal. Alternatively, the Agency contends the court's findings are supported by substantial evidence.

At the 12-month hearing, the court must return a dependent child to the physical custody of his or her parent unless the court determines, by a preponderance of the evidence, the child's return 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 (detriment finding). The social worker has the burden of establishing that detriment. ( 366.21, subd. (f).) The court shall also determine whether reasonable services designed to aid the parent to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent. (Ibid.)

A

As a preliminary matter, we consider the Agency's argument Gloria forfeited her appellate challenges to the court's findings of detriment and reasonable services. Generally, issues not raised in the trial court cannot be raised on appeal. "The contention that a judgment is not supported by substantial evidence, however, is an obvious exception to the rule." (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17.) "In other words, when the merits of a case are contested, a parent is not required to object to the agency's failure to carry its burden of proof." (In re Javier G. (2006) 137 Cal.App.4th 453, 464.)

Here, Gloria contested the evidence presented at trial. She did not submit on the Agency's recommendations. The court was required to "weigh evidence, make appropriate evidentiary findings and apply relevant law to determine whether the case has been proved." (In re Richard K. (1994) 25 Cal.App.4th 580, 589.) Unless the parent submitted on the Agency's recommendation, the parent preserves the right to challenge the sufficiency of the evidence to support a particular legal conclusion. (Ibid.) Further, the issue whether the social worker reasonably structured Gloria's therapy was raised in the trial court. Gloria's challenges to the court's findings of detriment and reasonable services are not forfeited on appeal. (In re Brian P. (2002) 99 Cal.App.4th 616, 622-623.)

B

Gloria contends she met all the requirements of her reunification plan, made substantial progress in court-ordered treatment programs, and was ready to provide the children a safe home. She argues the court did not attach sufficient weight to her recent separation from Lorenzo and made a factual error when it stated Lorenzo had done nothing to improve his circumstances.

In determining whether a return to the physical custody of a parent would create a substantial risk of detriment to a child, the juvenile court must review and consider the social worker's report and recommendations, the parent's efforts and progress, and the extent to which the parent participated in the services offered. ( 366.21, subd. (f).) A parent's failure to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return would be detrimental. (Ibid.)

We review the evidence in the light most favorable to the juvenile court's        order - drawing every reasonable inference and resolving all conflicts in favor of the prevailing party - and affirm the order even if there is other evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Applying these principles, we reject Gloria's contention there was insufficient evidence to support the finding of detriment. Significantly, she did not have a home for the children. Although Gloria argues she had a plan to save money to rent a home, the court could not have returned the children to her care at the time of the 12-month hearing, even if other aspects of Gloria's circumstances did not raise serious concerns about the children's safety in her care. Gloria's living situation was far from stable. Before the children were detained, Gloria moved them from motel to motel. After Lorenzo refused treatment, Gloria stayed in an unsuitable living situation for five months. The record supports the reasonable inference that Gloria's lack of stable housing would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the children. ( 366.21, subd. (f).)

Substantial evidence supports the court's finding that, despite her first steps toward independence, Gloria was still enmeshed in a relationship with Lorenzo and would support him rather than protect her children. The children had been removed from her custody in part because Lorenzo perpetrated an act of cruelty on Brooklyn and injured as a result. As Gloria acknowledges, that after the six-month review hearing in April 2006, Lorenzo did not comply with any provision of his case plan, and he was actively was using methamphetamine. Thus, the court's finding that Lorenzo had done nothing is an accurate statement of Lorenzo's complete lack of compliance with his case plan during the second six-month review period.

Despite parenting classes and other therapeutic services, Gloria characterized Lorenzo's abuse of Brooklyn as a "mistake." She professed her love for him as well as her desire to help him. Lorenzo had no contact the Agency and relied on Gloria to intercede on his behalf. Gloria continued to reside in a home that was unsafe for her and would have been even less safe for the children. Gloria refused the social worker's offer to provide shelter information and instead chose to stay with Lorenzo until shortly before the 12-month review hearing.

Substantial evidence supports the court's finding that return to Gloria's custody would create a substantial risk of detriment to Brooklyn and James. Gloria did not have a safe, stable residence for the children. Despite her first steps toward independence, the record supports the inference Gloria was still enmeshed in a relationship with Lorenzo and would support him rather than protect her children. The court did not err when it determined the children could not be safely returned to Gloria's custody at the 12-month review hearing.

C

Gloria argues the court's finding of reasonable services is erroneous because the social worker did not assist her in finding a new therapist and, once Gloria found a therapist, the social worker did not properly coordinate the case with the therapist. Gloria also asserts that severing her relationship with Lorenzo was not part of her case plan, and the social worker did not advise her to terminate the relationship until shortly before the 12-month review hearing.

When a party challenges the finding that reasonable services were offered or provided, we determine whether substantial evidence supports the court's finding. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

To support a finding of reasonable services, "the 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.) "The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R., supra, 2 Cal.App.4th at p. 547.)

The record shows the Agency provided Gloria with services that were reasonable under the circumstances. In the beginning of the case, the Agency made consistent efforts to locate Gloria, who chose not to contact the children rather than assume responsibility for their welfare. The Agency provided Gloria with substance abuse treatment, individual therapy, a psychological evaluation, parenting education classes, and bus passes. Gloria continued to use methamphetamine and did not participate in services for almost six months after the children were removed from her care.

With respect to the individual therapy component of the case plan, Gloria was in treatment with a court-approved therapist. She saw the therapist four times before she was incarcerated, and twice in early spring 2006 after her release. Gloria decided to change therapists, but did not resume therapy until late July 2006. Gloria now complains of the social worker's lack of assistance in helping her find a therapist; however, the Agency offered and/or provided individual therapy to Gloria throughout the dependency proceedings. The record shows any delay in treatment was due to Gloria's decisions, not the Agency's.

Gloria also contends the social worker should have asked her new therapist for an update instead of assuming that information from the new therapist would not be of import to the court. Although we believe the better practice is to provide the court with any available information concerning a parent's progress, that burden does not necessarily fall completely on the social worker. As a competent party represented by counsel, Gloria could have asked her therapist to provide a progress report or called the therapist to testify as a witness on her behalf.

Gloria also argues the Agency did not properly identify or inform her of the necessity to sever her relationship with Lorenzo in order to regain custody of the children. This contention is without merit. Separation was not an initial component of Gloria's case plan because Lorenzo was to participate in services, regain his sobriety, and learn appropriate parenting skills. He relapsed in May 2006. The Agency then provided Lorenzo the opportunity for further residential drug treatment. He left the treatment facility after one day, and did not participate in any other services. Gloria testified that she recognized living with Lorenzo was problematic, but chose not to move for several months. In view of the extensive therapeutic and rehabilitative services Gloria was offered or provided throughout the dependency proceedings, we will not fault the Agency for Gloria's lack of insight.

The record shows that the 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., supra, 235 Cal.App.3d at p. 414.) The court did not err when it found the services the Agency provided to Gloria were reasonable under the circumstances. (In re Misako R., supra, 2 Cal.App.4th at p. 547.)

II

Gloria contends the court erred when it did not extend reunification services to the 18-month review date.

Under section 366.21, subdivision (g), if the child is not returned to parental custody at the 12-month review hearing, the court has three options. The court may extend reunification services up to six months, terminate reunification services and set a hearing under section 366.26, or order that the child remain in long-term foster care. ( 366.21, subds. (g)(1)-(3), (h).) If the court extends reunification services, the additional reunification period is limited by the 18-month review date, unless extraordinary circumstances apply. ( 366.21, subd. (g)(1); Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510; In re Dino E. (1992) 6 Cal.App.4th 1768, 1778.)

In order for the court to continue reunification services to the 18-month review date, it must find "there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian." ( 366.21, subd. (g)(1).) To find a substantial probability of return, the court is required to find all of the following:

"(A) The parent or legal guardian has consistently and regularly contacted and visited with the child.

"(B) The parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home.

"(C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (Ibid.)

We review an order terminating reunification services to determine if it is supported by substantial evidence. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

Here, the 18-month review date was November 3, 2006. ( 361.5, subd. (a); 366.22, subd. (a).) The court set the 18-month review hearing for November 1, 2006, less than three weeks from the date of the delayed 12-month review hearing. The record shows that Gloria visited the children as regularly and consistently as circumstances allowed, and made significant progress in maintaining her sobriety and overcoming methamphetamine addiction. The trial court was impressed by Gloria's understanding of the recovery process.

However, the children were removed from Gloria's care not only because of her substance abuse problems, but also because Lorenzo had committed an act of cruelty on five-year-old Brooklyn. As discussed in section I, B, ante, the record supports the court's finding Gloria did not demonstrate substantive progress in her ability to protect the children from Lorenzo. Instead, she showed her commitment to Lorenzo by staying with him until two weeks before the 12-month review hearing, and defending him at the hearing.

We do not reweigh the evidence. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) The court could reasonably determine Gloria would continue to maintain a relationship with Lorenzo, who presented a serious risk to the children's safety and protection. Thus, Gloria did not demonstrate to the court that she made significant progress in living independently from Lorenzo and that she had the capacity and ability to provide for the children's safety, protection, physical and emotional well-being. ( 366.21, subd. (g)(1)(C).)

DISPOSITION

The orders are affirmed.

NARES, Acting P. J.

WE CONCUR:

HALLER, J.

McDONALD, J.

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^[1] J.R. is not a party to this appeal and is mentioned only when relevant to the issues raised on review.

^[2] The youngest sibling was born in July 2005.

^[3] All statutory references are to the Welfare and Institutions Code.

^[4] After the petition was filed, the Agency learned J.R. was the children's father, not Lorenzo. The Agency was not able to locate J.R. until October 2005.

^[5] The charges were incurred before the dependency proceedings began.

^[6] In the siblings' cases, the court terminated reunification services and set a permanency plan hearing under section 366.26. Gloria filed a petition for extraordinary relief under California Rules of Court, rule 8.452. On January 29, 2007, this court denied her petition. (Gloria R. v. Superior Court (Jan. 29, 2007, D049639) [nonpub. opn.].)