In re J.S.

Filed 5/2/07 In re J.S. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Colusa)

----

Mandisa R., mother of the minors, appeals from orders of the juvenile court selecting guardianship as a permanent plan. (Welf. & Inst. Code,^[1] 366.26, 395.) Appellant contends the court erred in delegating control of visitation to the guardian and reasserts issues previously raised in her petition for extraordinary writ which challenged the order setting the section 366.26 hearing. We affirm.

FACTS

The minors, ages 8 and 11, were removed from parental custody and placed with the maternal grandmother in March 2005 due to allegations of physical abuse perpetrated by appellant on the youngest child. The minors had been living with the maternal grandmother in Berkeley during the week and with appellant in Colusa County on weekends. This was the second time the minors had been detained due to physical abuse.

The report for the dispositional hearing recommended a reunification plan of counseling for appellant which was to address parenting and discipline among other issues. The report noted that transportation was an issue due to the distance between the minors and appellant and the scarcity of adequate public transportation. The court adopted the recommended plan in May 2005.

The status review report of November 2005 recommended that the court terminate services and set a section 366.26 hearing with guardianship as the preferred permanent plan. According to the report, appellant was provided transportation and motel vouchers and was referred to counseling and parenting classes but had not enrolled and her case was closed. The report also stated appellant told the social worker her therapist said she no longer needed services. The report further stated appellant maintained contact with the minors by telephone but did not visit them due to transportation problems and had recently canceled a visit despite the Department of Health and Human Services willingness to assist her with transportation.

At the status review hearing, the social worker began to testify about information she had received regarding appellants compliance with the counseling requirement of her plan. Appellants counsel interposed a hearsay objection. The social worker was able to testify that she received information about appellants compliance from the receptionist at the Department of Health and Human Services who pulled files for her review. The social worker testified that the records of appointments attended and missed were kept on a regular basis in that department. The social worker was unable to testify further as to the veracity of the records and the receptionist was called to testify.

The receptionist testified that she spoke with the social worker and told her what appellants appointment records contained. When asked to testify about the contents of the records, appellants counsel interposed a hearsay objection. The receptionist testified the records of client information were kept by the Department of Mental Health on a regular basis and that each time a client made or canceled an appointment or did anything affecting their business at the Department of Mental Health, the information was recorded in their records. The court found the business record exception to the hearsay rule had been established and permitted the receptionist to testify as to the contents of appellants records. The records revealed that appellant had an initial intake in May 2005; canceled the June 30, 2005, appointment due to transportation problems; canceled the July 7, 2005, appointment because she could not be there; did not come to the July 21, 2005, appointment; had her July 28, 2005, appointment canceled because the therapist was ill; did not come to the next two scheduled appointments; and had her case closed for lack of participation.^[2] The receptionist testified that the entries in the records were made by the therapist or the doctor.

The social worker resumed her testimony explaining the availability of transportation for appellant and that had appellant asked, transportation arrangements would have been made for her. She testified appellant had not made a substantial effort to reunify with the minors.

Appellant testified she had visited the minors frequently because, until the first week of October 2005, she was living in the Berkeley area most of the month, only returning to her home in Colusa County for a few days at a time. Appellant testified she visited the minors after school every day she was in Berkeley. Appellant further testified she told the social worker she was going to be in the Bay Area and could sign up for services there if referred. Appellant testified that after the counseling intake session, she had one more counseling session then the next appointment had to be rescheduled. Prior to that appointment, the therapist called her and told her there was no need to come to any further sessions.

The maternal grandmother testified appellant visited the minors six times from May to November 2005 but missed about 20 scheduled visits. Appellant gave the maternal grandmother various excuses for missing visits. When visits did occur, they lasted 10 to 15 minutes. There were two recent visits, one at a park for about 30 minutes which ended when appellant said she had something to take care of and was ready to go. However, appellant did maintain regular contact by telephone, sometimes daily. The maternal grandmother monitored the calls because appellant would sometimes say things that upset the minors and gave an example of a call the night before in which appellant told the minors they would be coming home after the hearing. The call upset both minors. The maternal grandmother testified appellant never asked her to bring the minors to a visit.

The court found appellant made limited efforts to visit the minors. The court also noted that transportation assistance for visits was unnecessary because, as appellant testified, she was primarily living in the Bay Area where the minors were placed. The court further found appellants testimony regarding her counseling requirement was not credible and that she had failed to comply with the reunification plan. The court terminated reunification services and set a section 366.26 hearing. The court allowed visitation at the discretion of the maternal grandmother.

The report for the section 366.26 hearing recommended a permanent plan of guardianship with the maternal grandmother. The report stated that the maternal grandmother encouraged visits between appellant and the minors. However, appellant continued to either cancel or shorten visits and frequently changed the planned visits to accommodate her other interests. There had been only two visits in the last three months.

At the hearing, the court adopted the recommendation and appointed the maternal grandmother guardian for the minors. The court found visitation between appellant and the minors would be beneficial but made no order regarding visitation, stating only that previous orders not in conflict with the orders made at the hearing would remain in effect.

DISCUSSION

I

Delegation To The Guardian

Appellant contends the court erred in delegating authority to determine visitation to the guardian.

When the court selects guardianship as a permanent plan, section 366.26, subdivision (c)(4)(C) requires that the court shall also make an order for visitation with the parents . . . unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.

At the review hearing when services were terminated, the court did make an order for visitation which, while loosely defining appellants right to visit the minors, erroneously gave the maternal grandmother, who was the proposed guardian, complete discretion over whether any visitation would occur. (In re M.R. (2005) 132 Cal.App.4th 269, 274 [court may not delegate authority to guardian to decide whether visits would occur].) Later, when appointing the maternal grandmother as the minors guardian at the section 366.26 hearing, the court merely found that visitation between appellant and the minors would be beneficial and continued the prior orders. Whether viewed as a failure to make an order for visitation when appointing a guardian or as a continuing prior order which improperly vested full discretion to determine whether visits would occur in the guardian, the court erred by failing to comply with section 366.26, subdivision (c)(4)(C). Remand is required to permit the court to enter an appropriate visitation order.

II

Prior Claims Raised By Writ

Appellant reasserts several claims previously raised in her petition for extraordinary writ which were denied without opinion by this court.

Subsequent appellate review of findings subsumed in an order setting a section 366.26 hearing is dependent upon an antecedent petition for writ review of those findings having been summarily denied . . . . (Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1513; 366.26, subd. (l).) Appellant did file a petition for writ review in which she argued: (1) the juvenile court erred in terminating her services at the six-month review hearing rather than affording her 12 months of services; and (2) substantial evidence did not support the findings that: a) appellant failed to participate and make substantive progress in services because the evidence of her lack of participation was hearsay and no exception to the hearsay rule was established; b) return of the minors would create a risk of detriment to the minors; and c) reasonable services were offered.

The petition was summarily denied in case No. C052026. When the denial is summary, the petitioner retains his or her appellate remedy ( 366.26, subd. (l)(1)(C)) but is limited to the same issue on the same record ( 366.26, subd. (l)(1)(B)) and thus is destined on appeal to receive the same result (Joyce G. v. Superior Court, supra, 38 Cal.App.4th at p. 1514). To the extent that appellants current arguments exceed the specific issues previously raised, such arguments are not cognizable.

A

Length Of Reunification Period

Appellant claims she was entitled to a minimum of 12 months of reunification services because the minors were over the age of three at the time of detention. Appellant misapprehends the law.

Appellant was not entitled to a minimum of 12 months of reunification services -- she was limited to a maximum of 12 months of reunification services, unless the court made specific findings to continue services beyond that time. (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242-1243.) Appellants total lack of participation justified the termination of services at the six-month review hearing.

B

Substantial Evidence

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L.,at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

1. Failure To Participate

Appellant argues her failure to participate was evidenced only by the hearsay written records reviewed by the social worker and that the transcript of the hearing does not show that an exception to the hearsay rule was established to allow the records to be admitted. She asserts that the only admissible evidence on the issue was her testimony that she did participate and stopped attending when the counselor said she did not need therapy. We disagree.

The social workers report for a review hearing may contain hearsay. (In re Keyonie R. (1996) 42 Cal.App.4th 1569, 1571-1573.) Here, the trustworthiness of the hearsay as a basis for the social workers opinion was challenged by appellant and the Department of Mental Services relied upon the business records exception to the hearsay rule. (Evid. Code, 1271.)

That exception permits a writing made as a record of an event admissible when offered to prove the event if the writing was made in the regular course of business, at or near the time of the event and the custodian or other qualified witness testifies to its identity and the mode of its preparation and the sources of the required information about the documents preparation indicate its trustworthiness. (Evid. Code, 1271.)

Both the social worker and the receptionist testified the client records were prepared in the normal course of business of the Department of Mental Health. The receptionist identified the records she brought with her and testified the entries were made when the events occurred. She also testified the entries were made by the doctor or therapist. While the testimony could have been more detailed and precise, it was adequate to indicate to the court the trustworthiness of the records in question and the contents of the records were, therefore, admissible to show appellants lack of participation in the plan.

2. Return Of The Minors

Appellant argues that without the presumption of detriment to the minors if returned to a parent who has not participated and made substantive progress in services ( 366.21, subd., (e)), the Department of Health and Human Services had no evidence returning the minors to her custody would be detrimental to the minors.

As we have discussed, the Department of Health and Human Services did satisfy the court that the records relied upon by the social worker were trustworthy and showed appellant had not participated in services and thus could not have made substantive progress. Therefore, the presumption applied to the case and substantial evidence supported the juvenile courts finding that returning the minors to appellant would be detrimental to their safety, protection or physical or emotional well-being. ( 366.21, subd. (e).)

There was other evidence which also supported the finding, specifically the telephone call appellant made just prior to the hearing in which she upset the minors by making promises to them of their imminent return home. Had appellant attended and benefited from the therapy required by the plan she would have been more sensitive to the minors feelings and needs and less likely to put her own desires first.

3. Reasonable Services

Appellant contends reasonable services were not provided because the Department of Health and Human Services did not assist her in overcoming her transportation problems to get to counseling or to visits with the minors.

Not only must the case plan be tailored to fit the circumstances of each family, the social worker must make a good faith effort to provide reasonable services responding to the unique needs of the family. (In re Kristin W. (1990) 222 Cal.App.3d 234, 254; In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) The question is not whether more or better services could have been provided, but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

The plan required appropriate counseling to assist appellant to overcome the violence issues which led to the second removal of the minors. Appellant testified that she was told that she did not have to attend the appointments, not that she was unable to get to the counseling sessions. Travel was not an issue and if it was, the evidence showed she never asked for help from the social worker.

As to visitation, the social workers testimony made it clear that while a few travel vouchers had been provided to appellant, appellant had not asked for them or sought assistance with travel. More importantly, appellants own testimony made it clear that she was actually in the area where the minors were placed most of the time after their removal and it was only in the month or two which preceded the hearing that she was in Colusa County with no means of transportation to Berkeley. The evidence and testimony before the court made it clear that even when she did have access to the minors, she often put her own interests first rather than visit, and if she did visit, she stayed for only very brief periods. The services provided to appellant were reasonable.

Each of the challenged findings were supported by substantial evidence.

DISPOSITION

The orders selecting a permanent plan of guardianship and appointing a guardian are affirmed. To the extent that a visitation order exists, the order is reversed and the case is remanded to the juvenile court to enter an appropriate visitation order.

ROBIE , J.

We concur:

NICHOLSON , Acting P.J.

RAYE , J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The court asked some clarifying questions which disclosed an error in the date of the appointment in early July.