In re Guadalupe R.
Filed 2/16/07 In re Guadalupe R. CA4/1
NOTTO BE PUBLISHED IN OFFICIAL REPORTS
CaliforniaRules of Court, rule 977(a), prohibits courts and parties from citing orrelying on opinions not certified for publication or ordered published, exceptas specified by rule 977(b). This opinion has not been certified forpublication or ordered published for purposes of rule 977.
COURTOF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATEOF CALIFORNIA
| In re GUADALUPE R. et al., Persons Coming Under the Juvenile Court Law. |
|
|
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
MARIA R.,
Defendant and Appellant.
| D048821
(Super. Ct. No. SJ10186A-B) |
APPEAL from ordersof the Superior Court of SanDiego County, James Lauer, Jr., Referee. Affirmed and remanded withdirections.
Maria R. appeals the12-month review hearing order terminating her reunification services and designatingpermanent plans of "another permanent planned living arrangement"(APPLA) for her children, Guadalupe R. and Jose A. Maria contends that thejuvenile court abused its discretion by terminating her services, that thecourt erred by not ordering visitation between her and the children, and that therewas insufficient evidence to support the designation of APPLA as the children'spermanent plans. We affirm the judgment and remand the case to the juvenilecourt with directions to make an order concerning visitation.
BACKGROUND
In March 2005, whenGuadalupe was 14 years old and Jose was nearly 13 years old, the San Diego County Health andHuman Services Agency (the Agency) filed dependency petitions because Mariawas mentally ill and had a history of mentalillness, and was therefore unable to care for the children. On March 14,Guadalupe discovered Maria crying in their apartment, destroying property, andbehaving in a disruptive manner. When the police arrived, Maria threw a brokenknife at them. Police officers took Maria to a mental health facility on a72-hour hold. (Welf. & Inst. Code, § 5150)[1]
The children weredetained at Polinsky Children's Center (Polinsky), and were later moved toseparate foster homes.[2] Atthe March 17, 2005 detention hearing, the court ordered liberal,supervised visitation for Maria, and gave the Agency discretion to lift thesupervision requirement.
On April 18, 2005, thecourt sustained the petitions,[3] orderedGuadalupe and Jose placed in foster homes, and ordered Maria to comply with hercase plan and to submit to a psychological evaluation. The court gave theAgency discretion to place the children with approved relatives, with theconcurrence of the children's counsel. The court also gave the Agencydiscretion to allow overnight visits between Maria and the children. Finally,the court gave the Agency discretion to allow a 60-day visit in Maria's home,with the concurrence of the children's counsel, upon ex parte order, providedthat Maria had completed the psychological evaluation and that there wasfavorable input from her therapist.
At the October2005 six-month review hearing, the court ordered Maria to submit to apsychiatric medication evaluation. At the June 2006, 12-month review hearing,the court terminated reunification services and designated APPLA as thechildren's permanent plans.
SUBSTANTIAL EVIDENCE SUPPORTS THE FINDINGS
UNDERLYING THE TERMINATION OF REUNIFICATIONSERVICES[4]
At the 12-monthreview hearing, the juvenile court found that the Agency had complied with thecase plan by making reasonable efforts to facilitate the children's return toMaria. However, the court found that Maria had not made substantial progresswith the plan. It also found that there was not a substantial likelihood thatthe children would be returned to her by the 18-month date, which was justthree months away. (§§ 361.5, subd. (a), 366.21, subd. (g)(1), 366.22,subd. (a).) The court therefore terminated reunification services.
Maria assertsthat because the court did not set a section 366.26 hearing, and the childrenwould continue to have contact with her, continued services were in thechildren's best interests. Maria misapprehends the criteria to be applied bythe juvenile court in deciding whether to terminate services at the 12-monthreview hearing. The court may extend services to the 18-month date "only if it finds that there isa substantial probability that the child will be returned to the physicalcustody of his or her parent . . . and safely maintained inthe home within the extended period of time . . . ."[5] (§ 366.21, subd. (g)(1); accord, § 361.5, subd. (a).) This, in turn,requires findings "[t]hat the parent . . . hasconsistently and regularly contacted and visited with the child[,] [¶] . . .made significant progress in resolving problems that led to the child's removalfrom the home[, and] [¶] . . . demonstrated the capacity andability both to complete the objectives of . . . hertreatment plan and to provide for the child's safety, protection, physical andemotional well-being, and special needs." (§ 366.21, subd. (g)(1).)[6]
For the mostpart, Maria visited the children consistently. She initially visited them oncea week and spoke to them by telephone often. After she moved to Orange County in lateJuly 2005, telephone contact became less frequent and there was a lapse invisitation. In March 2006, she also missed some of the weekly visits.
Maria clearly didnot make "significant progress in resolving problems that led to the child[ren]'sremoval from the home" or "[demonstrate] the capacity and ability bothto complete the objectives of . . . her treatment plan andto provide for the child[ren]'s safety, protection, physical and emotionalwell-being, and special needs." (§ 366.21, subd. (g)(1)(A)(B).) Theevidence set forth below supports this conclusion.
Maria had ahistory of becoming involved in violent relationships with men. She admittedhitting her children with her hand and with a belt. She had been hospitalizedseveral times for mental illness and had a history of unwillingness to takeprescribed psychotropic medication. Her hospitalizations and bizarre andfrightening behavior resulted in a child welfare history of "caretakerabsence/incapacity." Her two oldest children were removed from hercustody by a child protective agency when they were very young. In 1997,dependency petitions were filed as to Guadalupe and Jose as a result ofviolence between Maria and Jose's father, and Maria's psychotic behavior and herensuing hospitalization. Maria completed services, including psychological andpsychiatric evaluations, therapy, and in-home support. She reunified with thechildren and jurisdiction was terminated in May 1999.
While on the 72-hour hold in this case, Maria threw a cup ofwater at a hospital employee. In early May 2005, she was placed on another72-hour hold as a result of being agitated and crying uncontrollably. A July 7psychological evaluation concluded that her psychopathology and episodes ofreduced impulse control presented a risk to the children. The evaluator alsodetermined that Maria's past exposure to domestic violence was a risk factor,and that her prognosis for safe parenting was contingent on her ability toovercome her emotional difficulties. He recommended "psychotherapy and apsychopharmacological intervention." On July 18, Maria attempted suicide,overdosing on antidepressant medication because she felt depressed anddesperate after she lost her babysitting job.
By early October2005(CT 44, 53)!, Maria had not begun a parenting class, individual counseling, or any otherservices, and had not contacted the social worker for two months. In lateNovember, she began psychotherapy. She refused to undergo a medicationevaluation, however, saying she was no longer depressed and did not needmedication. She believed that her problem was economic, not mental, and thatshe did not require services. By December, she had missed four therapyappointments. In late January 2006, she completed a 12-week parenting class. In March, she failed to appear
for three more therapy appointments, and the therapist terminated therapyafter a total of nine sessions. The therapist reported that in view of Maria'seconomic circumstances and lack of employment, and her refusal to admit thatshe had a mental illness and needed medical help, "not much progress is tobe expected from ongoing individual therapy sessions." In late April,Maria told the social worker that the allegations in the dependency petitionswere "a bunch of lies." Four days later, Maria finally saw apsychiatrist, who prescribed a 10-day supply of psychotropic medication.
Maria's housingsituation was chronically unstable. She did not obtain full time employmentuntil April or May 2006. She was loving and affectionate with the childrenduring visits, but seemed more interested in herself than in reunification. She often told the children about her new boyfriend and the dances and partiesshe attended.
Substantialevidence supports the juvenile court's findings that Maria had not madesubstantial progress with her case plan and that there was not a substantiallikelihood that the children would be returned to her in the three months thatremained before the 18-month date.
THE COURT ERRED BY FAILING TO
MAKE AN ORDER CONCERNING VISITATION
Section 366.26,subdivision (c)(4) provides that when the permanent plan is long-term fostercare, "[t]he court shall . . . make an order forvisitation with the parents . . . unless the court finds bya preponderance of the evidence that the visitation would be detrimental to thephysical or emotional well-being of the child." (§ 366.26, subd.(c)(4)(A), (C).) Maria contends that the juvenile court erred by failing toorder visitation between her and the children. The Agency responds that thecourt ordered visitation at the detention hearing, and that at the 12-monthreview hearing, it ordered that "all prior orders not in conflict remainin full force and effect.". The Agency thus concludes that the visitationorder was still in effect at the time of the 12-month review hearing. However,the record does not support this conclusion.
A visitationorder made at the detention hearing is a component of reunification services. (See Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2006)Initial or Detention Hearing, § 2.84, p. 2-168 ["The detentionhearing essentially marks the beginning of the maximum 18-month reunificationperiod that starts at the time the child is originally removed from thephysical custody of his or her parent . . . . [Citations.] [I]t is important that counsel ensure the court makes thenecessary order for such services at the detention hearing."].) Thus, thevisitation order made at the detention hearing in this case may conflict withthe order terminating services made at the 12-month review hearing, andtherefore may be no longer in effect.
At the later hearing,the juvenile court did not make a finding that visitation would be detrimental. In fact, the court did not mention visitation at all. We therefore remand
the case to the juvenile court so that it may make an order concerningvisitation, in conformance with section 366.26, subdivision (c)(4).
THE ORDER FOR PERMANENT PLANS OF APPLA
IS NOT REVERSIBLE ERROR
Maria contendsthat there was insufficientevidence to support the designation of APPLA as the children's permanentplans. She argues that the evidence did not show that
their foster care placementswere permanent. She concludes that the APPLA designations should be strickenand replaced with orders for long-term foster care.
The Agencycontends that Maria lacks standing to raise this issue. It argues that she isnot aggrieved by the APPLA designations because they do not affect herinterests in the parent-child relationship or the children's welfare.[7] We agree. "To be aggrieved, a party must have a legally cognizableinterest that is injuriously affected by the court's decision. [Citation.] Theinjury must be immediate and substantial, and not nominal or remote. [Citation.]" (In re L.Y.L. (2002) 101 Cal.App.4th 942, 948.) Maria has not explainedhow designation of the children's permanent plans as APPLA, rather than as longterm foster care, affects her interests. Under the facts of this case, interms of Maria's interests, there is no meaningful legal distinction between thetwo types of permanent plans. The court's choice of APPLA is not reversibleerror.
DISPOSITION
The ordersterminating reunification services and designating permanent plans of APPLA areaffirmed. The case is remanded to the juvenile court with directions to enter anorder concerning visitation in conformance with section 366.26, subdivision(c)(4).
AARON, J.
WE CONCUR:
McCONNELL,P. J.
HALLER,J.
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[1] Statutoryreferences are to the Welfare and Institutions Code.
[2] Twoyounger siblings, N.R. and J.A., were also detained. Those children are notsubjects of this appeal.
[3] Thecourt dismissed allegations that the whereabouts of the children's fathers wereunknown and that Maria was hospitalized and unable to arrange for thechildren's care.
[4] Mariacontends that the court abused its discretion by terminating reunificationservices. The correct standard of review is the substantial evidence test. (See Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)
[5] Thecourt may also extend services to the 18-month date if it finds "thatreasonable services have not been provided to theparent . . . ." (§ 366.21, subd. (g)(1).) Mariadoes not contest the juvenile court's finding that she was provided reasonableservices.
[6] Mariarelies on In re Alanna A. (2005) 135 Cal.App.4th 555 to support hercontention that the court erred in denying her request to continue services. In that case, the father appealed the termination of his reunification servicesat the 12-month review hearing. Citing section 366.21, subdivision (g)(1),this court held that the juvenile court "reasonably concluded that [theappellant]'s performance did not merit continued reunification services." (In re Alanna A., supra, at p. 565.) This court also rejected thefather's contention that the juvenile court was required to extend his servicesbecause it had continued the mother's services and did not set a section 366.26hearing. (In re Alanna A., supra, at pp. 565-566, 558-559.) Mariaquotes the statement in In re Alanna A. that "[a]s a practicalmatter, . . . where a nonreunifying parent is likely tohave some continued contact with his or her child, further services to thatparent may be in the child's best interests." (Id. at p. 565, fn.omitted.) However, the sentence preceding this quote, which Maria does notmention, states, "[i]f not for [the mother]'s determined efforts toreunify with Alanna, [the appellant] would not be eligible for services pastthe 12-month date." (Id. at p. 565.) Taken in context, thelanguage in In re Alanna A. is of no aid to Maria.
Maria also cites section 366.3,subdivision (e). That subdivision provides that at a post-permanency planningreview, the court may order six more months of reunification services to aparent whose parental rights have not been terminated, if the parent proves, "bya preponderance of the evidence, that further efforts at reunification are thebest alternative for the child." Maria has forfeited her right to makeany argument concerning this subdivision by failing to do so in the juvenilecourt.
[7] TheAgency also contends that Maria has forfeited her right to raise this issue. Although she did not argue against APPLA in the juvenile court, we havediscretion to consider the issue now. (In re Stuart S. (2002) 104Cal.App.4th 203, 206.)
