In re Ricky R.

Filed 3/15/07 In re Ricky R. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, William E. Lehnhardt, Judge. (Retired judge of the Imperial County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.) Affirmed.

Frances L., the mother of Ricky R., appeals the 12-month review order terminating her reunification services. Frances contends the juvenile court erred by finding the San Diego County Health and Human Services Agency (Agency) had provided her with reasonable reunification services.

FACTS

On March 16, 2005, Chula Vista Police Officers were dispatched to Frances's residence to assist the Chula Vista Fire Department, which had responded three times to Frances's telephone calls requesting medical aid for a sick child, who turned out not to be ill. Police reported that Frances appeared to be under the influence of methamphetamine and arrested her. Police took Ricky, then nine years old, and his half-brother Anthony V., then four years old, into protective custody and transported them to Polinsky Children's Center (PCC).^[1]

On March 21, 2005, Agency filed dependency petitions on behalf of Ricky and Anthony, alleging they were at substantial risk of harm because of Frances's substance abuse. (Welf. & Inst. Code,  300, subd. (b).)^[2]

Frances told the social worker that she used methamphetamine every other month. Frances said the last time she used methamphetamine was one week before Ricky and Anthony were taken into protective custody. Frances began experimenting with illicit drugs when she was 16 years old. Frances said she did not need drug abuse treatment.

During the nine days that Ricky and Anthony were at PCC, Frances did not request to visit them. After the boys were detained in foster care, Frances requested visits.

On April 21, 2005, Ricky and Anthony started an extended visit with the maternal grandfather and his wife, while Agency conducted a home evaluation of them.

On April 26, 2005, Frances and Ricardo R., Ricky's father, submitted to Ricky's dependency petition, which the court sustained.^[3]

At the dispositional hearing on May 11, 2005, the court declared Ricky and Anthony dependents, removed them from Frances's custody, authorized the extended visit with the maternal grandfather, and gave Agency discretion to place Ricky and Anthony in the grandfather's home with the concurrence of the children's counsel. The court ordered liberal supervised visits for Frances and Ricardo. The court also ordered Frances and Ricardo to comply with their case plans. Frances's case plan required her to participate in individual therapy, a psychological evaluation, a parenting course, substance abuse counseling and treatment, and to undergo random drug testing. The court also ordered Frances to participate in the Substance Abuse Recovery Management Systems (SARMS) program.

Frances was in compliance with SARMS through June 16, 2005. Frances dropped out of the Mite Options drug treatment program after 23 days.

On July 22, 2005, Frances underwent a psychological evaluation by                Julio-Cesar Armenta, who reported that Frances was "experiencing impairments in reality testing and cognitive deterioration." Frances suffered from delusions and occasionally heard voices. Armenta said Frances tended to "blame others" for her problems. Frances had a "superficial emotional connection" with Ricky and Anthony. Armenta opined that Frances's psychosis was exacerbated by her methamphetamine use. Armenta wrote: "If this mother is able to maintain her abstinence for a period of about a year and if she is able to respond to an intervention . . . she may be able to undertake steps toward that reunification."

On July 26, 2005, Frances told the social worker that during the previous week she had used alcohol once and methamphetamine twice. The social worker advised Frances to report this to her drug counselor.^[4]

On August 6, 2005, Frances went to a birthday celebration for Anthony and exhibited bizarre behavior. Frances wiped her buttocks while she was in the kitchen in the presence of her sibling and then locked herself in a bathroom for an hour. According to the maternal grandmother, when Frances came out of the bathroom, her eyes were very red and she appeared to be under the influence of drugs. The maternal grandfather asked Frances to leave his residence. When Frances refused, the grandfather pushed her out of the residence.

On August 8, 2005, Frances told her counselor at the dual diagnosis program that she was going to kill the maternal grandfather for what he did to her, claiming he had beaten her up.^[5] Frances said she would kill the grandfather if she had a gun or knife. SARMS was advised of the incident and requested that Frances be ordered to be tested twice a week.^[6]

On August 12, 2005, Ricky and Anthony were placed in the home of the maternal grandmother.

On September 7, 2005, Frances pled guilty to one count of contempt for failing to test at SARMS on August 4. The court did not order sanctions. The court ordered Frances to participate in dependency drug court.

On October 14, 2005, Frances's test result was positive for methamphetamine.

On November 15, 2005, the court terminated Frances from dependency drug court at her request.

On December 19, 2005, the grandmother brought Ricky and Anthony to Frances's residence. Frances answered the door and was happy to see the boys. When the grandmother informed Frances that the social worker was trying to contact her, Frances became angry and said she would never telephone the social worker. Frances also started yelling and cussing at the grandmother and the boys. Frances told them to leave her home. The grandmother and the boys hurried to the grandmother's vehicle. Frances went outside and threw a hammer at the vehicle as the grandmother drove away.

At the six-month review hearing on December 29, 2005, the court ordered six more months of services for the parents. The court found the extent of Frances's progress in alleviating the causes that necessitated the removal of the children was minimal. Frances did not attend the hearing.

On March 1, 2006, Frances was arrested for burglary. On April 10,

Frances pled guilty to petty theft with a prior and was sentenced to 120 days in custody and three years of formal probation.

On May 16, 2006, Frances was arrested for burglary again. After a trial, she was sentenced to nine months in jail. The court also ordered Frances to complete a 120-day residential drug treatment facility after she served her jail sentence.

For the upcoming 12-month review hearing, Agency recommended services for Frances and the fathers of Ricky and Anthony be terminated and a section 366.26 hearing be set for both boys. Frances and Ricardo requested a trial, which was held on July 26 and August 2, 2006.^[7]

Social worker Damon Colclough, who was assigned to the case from January to April 2006, testified that on April 18, he learned from Ricky that Frances was in jail. Colclough did not send Frances a prison parenting packet, did not attempt to set up visits between Frances and the boys, and did not attempt to provide Frances with telephone calls to the caretaker's home. Prior to learning about Frances's incarceration, Colclough had decided to recommend that Frances's services be terminated and a section 366.26 hearing be set.

Social worker Thai Sukrachan, who was assigned to the case in May 2006, testified that he learned that Frances was in jail on June 6. Sukrachan mailed Frances a prison parenting packet on June 8. Frances filled out the questionnaire from the packet and mailed it back to the social worker. Sukrachan attempted to set up visits between Frances and the boys, but was not successful. Sukrachan did not attempt to provide telephone calls from the jail to the caretaker's home.^[8]

On August 2, 2005, the court found that Frances had not made substantive progress with her case plan and that Agency had offered reasonable reunification services. The court terminated Frances's services. The court granted Ricardo six more months of services and continued Ricky's dependency case to the 18-month review date.^[9]

DISCUSSION

Frances contends the juvenile court erred by finding that she was offered reasonable reunification services. She specifically claims that during her two incarcerations in 2006 the social workers failed to provide adequate services because they did not arrange visits with Ricky and Anthony. The contention is without merit.

Section 366.21, subdivision (f) provides in part that at the 12-month review hearing:

"[T]he court shall . . . determine whether reasonable services that were 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. . . . In making its determination, the court shall review and consider the social worker's report and recommendations and . . . shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself of services provided . . . ."

When a child is removed from a parent's custody, the juvenile court must order the child welfare agency to provide the parent with services designed to help the family reunify. ( 361.5, subd. (a).) "[T]he focus of reunification services is to remedy those problems which led to the removal of the children . . . ." (In re Michael S. (1987) 188 Cal.App.3d 1448, 1464.) A reunification plan must be tailored to the particular individual and family addressing the unique facts of that family. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) A social services agency is required to make a good faith effort to address the parent's problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult. (Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554-555.)

However, we recognize that in most cases, more services might have been provided and the services provided are often imperfect. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) "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 adequacy of reunification plans and the reasonableness of [Agency's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.)

We determine whether substantial evidence supports the juvenile court's findings that reasonable services were provided, reviewing the evidence in a light most favorable to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R., supra, 2 Cal.App.4th at p. 545.)

Our review of the record shows substantial evidence supports the court's finding that reasonable services were offered to Frances. Ricky and Anthony originally were taken into protective custody because of Frances's substance abuse. Frances's case plan required her to participate in individual therapy, a psychological evaluation, a parenting course, substance abuse counseling and treatment, and to undergo random drug testing. The court also ordered Frances to participate in SARMS. The case plan appropriately focused on Frances's drug problems, which "led to the removal" of Ricky and Anthony. (In re Michael S., supra, 188 Cal.App.3d at p. 1464.)

The problem was not with the services offered to Frances; rather, it was with her unwillingness and/or inability to follow through with the services and become able to safely parent Ricky and Anthony. Other than undergoing a psychological evaluation, Frances did not comply with her case plan. She did not enroll in a parenting course and did not begin individual counseling.^[10] Frances's compliance with SARMS was consistently poor and, when she opted for dependency drug court instead of SARMS, her performance also was consistently poor. After two months, Frances dropped out of dependency drug court. "It is . . . well established that 'reunification services are voluntary, and cannot be forced on an unwilling or indifferent parent.' [Citations.]" (In re Christina L. (1992) 3 Cal.App.4th 404, 414.) It "is not a requirement that a social worker take the parent by the hand and escort him or her" to service providers. (In re Michael S., supra, 188 Cal.App.3d at p. 1463, fn. 5.) Frances "simply failed to participate in any program or make a meaningful effort to reunify" with Ricky and Anthony. (In re Raymond R. (1994) 26 Cal.App.4th 436, 442.)

Furthermore, after July 26, 2005, Frances refused to have contact with Agency's social workers. Because Frances did not have a working telephone, the social workers made four unannounced visits to her home and left business cards with directions for Frances to contact them. Frances failed to do so. When the maternal grandmother told Frances that the social worker wanted to get in contact with her, Frances started yelling and cussing at the grandmother (in the presence of Ricky and Anthony) and threw a hammer at the grandmother's vehicle as she drove away. Frances's only communication with a social worker after July 26, 2005, was during a telephone conversation the following month when the social worker telephoned the maternal grandmother. As this court has previously observed, "[t]he Department has a duty to initially to make a good faith attempt to locate the parents of a dependent child. Once a parent has been located, it becomes the obligation of the parent to communicate with the Department and participate in the reunification process." (In re Raymond R., supra, 26 Cal.App.4th at p. 441.)

Frances faults social workers Colclough and Sukrachan for not providing her with visits when she was incarcerated.

A reunification plan must include visitation between the child and his or her parent. ( 362.1, subd. (a)(1)(A).) Furthermore, "[v]isitation shall be as frequent as possible, consistent with the well-being of the child." (Ibid.) We agree that ideally visits or telephone contact would have been arranged while Frances was in jail. However, we do not expect perfection from social workers; rather, we require that the services be reasonable under the circumstances. (In re Misako R., supra, 2 Cal.App.4th at p. 547.)

Upon learning that Frances was incarcerated, Colclough did not follow through by either sending her a parenting prison packet or arranging visits with Ricky and Anthony. However, Colclough already had decided to recommend that Frances's services be terminated at the 12-month review hearing because she had been out of contact with Agency for almost 11 months and had made "minimal or nonexistent" progress with her case plan. When Sukrachan learned that Frances was in jail, he sent her a prison parenting packet and attempted to arrange visits with the children.

Moreover, we note the context in this case of Frances's complaint about Agency's failure to arrange visits while she was incarcerated. From the onset of the dependency proceedings, Frances failed to visit Ricky and Anthony with any regularity. Between August 2005 and May 2006, Frances saw the children only two times and, on both occasions, the visits were cut short because of Frances's inappropriate actions.^[11]

Given Frances's refusal to have contact with Agency, the paucity of her visitation with the children during the bulk of the dependency, and her inappropriate behavior at two of the visits, the social workers' failure to arrange visits while she was in jail does not render the reunification services inadequate.

Substantial evidence supports the juvenile court's finding that reasonable services were provided to Frances.

DISPOSITION

The order is affirmed.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

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^[1] Anthony is not a subject of this appeal.

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

^[3] Ricardo is not a party to the appeal. At the 12-month review hearing, the court granted him an additional six months of services in Ricky's dependency case.

^[4] After July 26, Frances was not in contact with Agency for 11 months - except for one telephone conversation with the social worker while Frances was at the maternal grandmother's residence on August 15. Because Frances's telephone was disconnected, Agency's social workers made four unannounced visits to her residence, but no one answered the door. The social workers left their business cards at the residence, but Frances failed to contact the social workers. The maternal grandmother said she too had unsuccessfully tried to contact Frances at her residence. The grandmother said that she knew Frances was at home and refused to answer the door.

^[5] The counselor did not observe any bruises or injuries on Frances.

^[6] On August 15, Frances told the social worker that she had not used drugs at the grandfather's house during Anthony's birthday celebration. Frances said the last time she used drugs was on July 27. "I'm still using a couple times a month but it's getting better. I'll stop eventually. My using has nothing to do with what happened at my dad's house. I didn't mean what I said to [the counselor]. I wouldn't hurt my parents. I was just angry."

^[7] When the trial reconvened on August 2, Agency announced it had changed its recommendation as to Ricardo and was proposing that he receive six more months of services and that a section 366.26 hearing not be set. Agency continued to recommend that Frances's services be terminated.

^[8] During Sukrachan's testimony, it was brought out that after Frances was released from jail in May, she visited the maternal grandmother's home to see Ricky and Anthony. According to the grandmother, Frances asked her brother if she could use a pipe to smoke.

^[9] In Anthony's case, the court terminated services for both parents and set a section 366.26 hearing.

^[10] Before beginning individual counseling, Frances would have had to be sober for 60 days - a prerequisite that she did not meet at any point during the dependency case.

^[11] We are referring to (1) the August 2005 birthday celebration for Anthony when Frances acted in a bizarre fashion and was suspected to be under the influence of methamphetamine, causing the maternal grandfather to force her to leave, and (2) the December 2005 visit when Frances yelled and cussed at the maternal grandmother (in the presence of the children) for telling Frances that the social worker wanted to contact her, causing the grandmother to drive away with the children.