J.J. v. San Bernadino County

Filed 10/9/07 J.J. v. San Bernadino County CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Deborah Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Petition denied. Monica Cazares for Petitioner.

Ruth E. Stringer, County Counsel, and Julie J. Surber, Deputy County Counsel, for Real Party in Interest.

No appearance for Respondent.

Petitioner J.J. (Mother) is the mother of three-year-old M.J. Mother filed this writ petition pursuant to California Rules of Court, rule 8.452 challenging an order setting a Welfare and Institutions Code section 366.26^[1]permanency planning hearing as to the child. Mother contends that the juvenile court erred in finding that she had been provided with reasonable reunification services. For the reasons provided below, we reject Mothers challenge and deny her petition.

I

FACTUAL AND PROCEDURAL BACKGROUND

On April 25, 2005, a social worker responded to the hospital where 11-month-old M. was being treated for an iron burn to his leg. M. sustained the burn on the previous day, but Mother did not seek medical treatment for him because she did not have insurance. Eventually, one of Mothers friends took M. to the hospital. Mother gave inconsistent statements concerning how the boys injury occurred.

Mother suffered from a brain-stem injury when she was hit by a car at 14 years of age. She had a history of drug use and had previously been arrested for engaging in prostitution. Mothers relationship with M.s father (Father) was initially through her involvement in prostitution. Mother was twice raped by Father. She reported the second rape to the police, and Father was arrested. Father eventually confessed to the rape and was sentenced to two years in prison. Mother was arrested for child abuse based on M.s burns and the suspicious circumstances surrounding his injuries.

On April 27, 2005, the Department of Childrens Services (the Department) filed a section 300 petition on behalf of M. pursuant to section 300, subdivision (b). At the detention hearing, M. was formally removed from Mothers custody and placed in a foster home. The court authorized the social worker to place M. with relatives if appropriate and ordered weekly supervised visits.

The social worker interviewed Mothers roommate about the circumstances surrounding M.s injuries. The roommate claimed she had been speaking to Mother when M. moved to the area where Mother was ironing her clothes on the floor and had been burned. Though the social worker determined M.s injuries were accidental, the social worker was concerned that Mother had not been properly feeding or caring for M., because he was only in the fifth percentile for his height and weight. M. appeared to be very weak and did not smile or speak like a healthy baby. Once in foster care, M. quickly began to improve; he became livelier and gained a pound in one 10-day period. Mother denied any current drug abuse and claimed to have quit using methamphetamine when she became pregnant with M. Mothers five-year-old son was being cared for by the maternal grandmother; he had lived with his grandmother since he was eight months old.

The social worker reviewed Mothers case plan with her and gave her a list of referrals. Mothers case plan required her to participate in a psychological evaluation, attend a parenting education program, participate in outpatient substance abuse treatment, and submit to drug testing.

The social worker opined that though Mother had genuine love and concern for M., her brain injury left her severely lacking in parenting skills. Even without malicious conduct on Mothers part, M. had suffered severe neglect while in her care. The Department had researched support options if M. were returned to Mothers care, but it remained uncertain how often assistance would be available to Mother.

On June 20, 2005, the juvenile court found the allegations in the petition true as agreed to in mediation. M. was declared a dependent of the court and maintained in his foster home. Mother was granted reunification services and ordered to participate. The court also ordered that the maternal grandmother be assessed for placement.

On August 23, 2005, the social worker submitted the results of Mothers psychological evaluation to the court. The report noted that Mother had been assessed at borderline intellectual functioning and exhibited self-centeredness and an indifference to the welfare of others. She received living assistance services twice a week through the Inland Regional Center (IRC). The examiner opined that Mother was unable to care for M. by herself but that she did not represent a danger to him as long as there were other adults present to consistently ensure a safe environment. Mother was diagnosed with anxiety disorder and narcissistic personality features. The examiner recommended that Mother participate in psychotherapy with a female therapist.

The social worker informed the court on October 11, 2005, that the maternal grandmother, who lived in Los Angeles, had been approved for placement. However, the social worker was not recommending placement with the grandmother as that would reduce Mothers visitation with M. and interfere with her attempts to reunify with him due to the distance between Mothers home and the grandmothers.

At the six-month review hearing, the social worker recommended that Mother receive six additional months of services. Mother was compliant with her case plan, was attending her 52-week child endangerment class, and was receiving in-home living support services through IRC. The IRC worker indicated that if M. were returned to Mothers care, Mother would receive living assistance two days a week for five to six hours per day. The foster mother was also working with Mother to improve Mothers parenting skills. Despite Mothers work on her case plan, the social worker remained concerned that Mother did not have the mental ability to care for M. on a daily basis without assistance.

At the six-month review hearing, the court found that Mothers compliance with her case plan was moderate and ordered additional services.

At the 12-month review hearing, the social worker again recommended additional services to Mother. Mother was participating in services but continued to require assistance in parenting skills, and it remained unsafe to return M. to Mothers custody. Mothers psychologist expressed concern that Mother would not be able to function in a parental role unless she could overcome the limitations of her cognitive and psychological impairment. The foster mother had acted as a mentor to Mother and would offer suggestions and guidance about child interaction, budgeting, and parenting techniques. Services provided by the Department included bus passes, referrals to community services, housing referrals, and monitoring of visitation. In addition, Mother continued to receive services from the IRC. Mother had completed 32 weeks of her 52-week child abuse program and had received disability payments in the amount of $812 a month. However, Mother was spending between $200 and $300 a month on her cellular telephone bill because she like[d] to talk.

Mother continued to participate in her weekly visits with M., which were supervised by the IRC worker. Unsupervised visitation was briefly permitted, but inappropriate remarks made by Mother concerning Mother and M. making a baby together prompted the social worker to request supervised visits until further progress was made. Mother required monitoring whenever M. was in her care, but daily assistance of that type was virtually impossible to provide on a full-time basis.

At the June 12, 2006, 12-month review hearing, the court found that custody of M. by Mother continued to be detrimental to M. and that Mothers compliance with her case plan had been moderate. The court ordered additional services.

By October 25, 2006, the social worker recommended that the court terminate Mothers services and set a section 366.26 hearing. The foster mother expressed concern about Mothers ability to care for M. without another adult present. The IRC worker stated that Mother needed an unpaid support system, outside of the IRC, to assist and monitor Mothers interactions with M. and ensure proper food intake. M. was developing well, but he was still in the fifth percentile for height and weight and was gaining weight slowly. In addition, Mother had an outstanding arrest warrant based on her failure to notify the criminal court that she had completed her anger management program. Though Mother continued to participate in her case plan, the social worker opined that Mothers disability continued to play a key role in her inability to safely provide for M. and that she did not have a long-term family support system to assist her if M. were returned to her care.

After an in-chambers conference at the contested 18-month review hearing on December 5, 2006, the court found that the Department had failed to provide reasonable reunification services to Mother because it had not referred Mother to an individual therapist as recommended in the psychological evaluation. The court also asked the Department to try and find a parent-child interaction program for Mother. The court ordered six additional months of services to Mother.

A revised case plan submitted to the court on February 1, 2007, included individual counseling for Mother, parent-child interaction therapy, and services through IRC. The social worker met with Mother and her IRC worker to discuss the types of services available to Mother through IRC. In addition, the social worker provided Mother with referrals to Caritas Counseling, the Department of Behavioral Health, and the Vista Guidance Center.

On April 5, 2007, the court found that Mother had followed through with her referral to the Department of Behavioral Health for a psychiatric evaluation, and medication was not needed.

By June 5, 2007, the social worker recommended that the court terminate Mothers services. Despite the referrals given to Mother, Mother still lacked the skills to adequately care and provide for M. without adult supervision and had failed to benefit from the services she received. The social worker had arranged service referrals to Caritas Counseling, the Department of Behavioral Health and the Vista Guidance Center in regards to Mothers individual therapy and psychiatric evaluation. Mother had been participating in individual therapy. The social worker also set up an assessment for Mother and M. for Parent Child Interactive Therapy (PCIT). Once the assessment had been completed, the social worker contacted the service provider to request future sessions but was informed that additional sessions would not be advisable. The PCIT therapist stated that she had serious concerns about M. being left alone in Mothers care and about Mothers poor boundaries with M., after observing actions and comments Mother made while rubbing lotion on M. that were sexual in nature. Eventually, additional PCIT sessions had been scheduled, and Mother and M. had participated in several sessions together. The PCIT therapist stated that, although Mother cared for M., the child had special needs, and there was no evidence that Mother would be able to care for him on her own. The therapist also explained that as M. grew, he would become more difficult to care for. The therapist recommended that M. remain in his current foster home. The therapist further noted that Mothers own limitations impeded her ability to provide the necessary care for M. M. had a healthy relationship with his foster mother, which demonstrated he had the ability to form a healthy attachment, but he remained guarded and resistant to attachment with Mother. Mother and M. had difficulty communicating, and M. would push Mother away while being kissed. The therapist concluded that Mother did not have the ability to provide the intensity of parenting it will require to keep [M.] safe and facilitate his emotional, cognitive, and physical development to help him through his life.

The social worker was also concerned that Mother lacked the ability to parent her child without assistance. Mothers IRC worker reported that Mother required a support system outside of the IRC in order to assist Mother and ensure M. received proper food. Mother had been presented with the opportunity to participate in a budgeting class so she could learn to manage her money, but Mother chose not to take the class. The foster mother reported she was having problems with Mother feeding M. too many sweets. In addition, the foster mother noted that she had stopped sending snacks and drinks with M. when he went to visit Mother, because she had discovered that Mother was consuming the snacks and claiming M. did not want them.

M. had special needs and was displaying multiple functioning challenges. He was participating in speech therapy and was receiving early start services and occupational therapy. He received a development assessment indicating a history of abuse, neglect, malnutrition, iron deficiency, poor growth, developmental delay, and failure to thrive. He was diagnosed with attention deficit hyperactivity disorder, alcohol-related neurodevelopment disorder, and intrauterine methamphetamine exposure.

The contested 18-month review hearing was held on July 26, 2007. Following testimony from the social worker and Mother, who admitted she did not know how she could care for M. on her own, the juvenile court found that the Department had provided reasonable reunification services to Mother and that returning M. to Mothers custody continued to be detrimental to M.. The court noted Mothers testimony that she did not know if she could care for M. The court also pointed out that though Mother loved her child and took advantage of the services offered to her, it appeared that Mother did not have the ability to provide the level of care M. needed without supervision. The court found Mother made moderate progress in her case plan, but it was not sufficient to have the child returned to her care. The court terminated Mothers reunification services and set the matter for a section 366.26 selection and implementation hearing. Mother was informed of her appellate writ rights, and on August 1, 2007, she filed a notice of intent to file a writ petition pursuant to California Rules of Court, rule 8.452(a).

II

DISCUSSION

Mother contends the juvenile court erred in finding that the Department had offered reasonable reunification services. Specifically, she claims the Department failed to take into account her brain-stem injury, which impaired her mental judgment, and M.s special needs when it formulated Mothers case plan. We disagree.

Initially, we find Mother waived this issue on appeal by failing to object below. Many dependency cases have held that a parents failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court. [Citations.] As some of these courts have noted, any other rule would permit a party to trifle with the courts. The party could deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable. [Citations.] (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339, and cases cited therein; see also In re Jesse W. (2001) 93 Cal.App.4th 349, 355.) This policy applies full force to the instant case, as neither the court nor the Department was put on notice that reunification services were inadequate or that her case plan did not take into account her and M.s special needs, even though Mother had ample opportunity to do so. Indeed, at the contested 18-month hearing, Mothers counsel did not even attempt to argue that Mothers services were inadequate. Rather, Mothers counsel argued the main issue was whether or not Mother had been able to benefit from the services provided. Thus, Mothers attempt to challenge the adequacy of reunification services is an attempt to raise a new issue which was not presented to the juvenile court. We find the issue waived, and we need not consider it further. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846 [ . . . [a] party is precluded from urging on appeal any point not raised in the [juvenile] court].)

Even assuming Mother preserved this issue for appeal, we would find that reunification services to Mother were reasonable.

We review the correctness of an order pursuant to section 366.21 to determine if it is supported by substantial evidence. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) That standard requires us to determine whether there is reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged . . . . (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) In reviewing the reasonableness of the reunification services, we recognize that in most cases more services might have been provided, and the services provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) A court-ordered reunification plan must be tailored to fit the circumstances of each family and designed to eliminate the conditions that led to the juvenile courts jurisdictional finding. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.)

The record in this case, set out above, reveals the services offered were reasonable  they were tailored to fit the circumstances and to eliminate the conditions that led to the juvenile courts jurisdictional finding â€‘‑ and Mother consented to them. Mother received multiple services over the 27 months leading to the termination of her reunification services. Mothers case plan initially included a psychiatric/psychological evaluation, a parental education program, a substance abuse program, and substance abuse testing. Mother was referred to and completed a psychological evaluation. In addition, she received in-home living support services from IRC, and services provided by the Department included bus passes, referrals to community services, housing referrals, and visitation arrangements. The foster mother also provided Mother with assistance and acted as Mothers mentor in assisting Mother with parenting skills and budgeting.

After the court found that the Department had failed to provide reasonable reunification services to Mother because the Department had not referred Mother to an individual therapist as recommended in the psychological evaluation, Mothers revised case plan included individual counseling for Mother, parent-child interaction therapy, and services through IRC. Accordingly, Mother received individual counseling and PCIT sessions. She also continued to receive services through IRC. Furthermore, Mother received supervised visitation with M. twice a week for up to eight hours per visit. The foster mother continued to work with Mother and had arranged for Mother to accompany her to a relationship and safety training class.

The record shows that Mother was provided with an array of referrals for each of her case plan requirements, and that the referrals were tailored to meet her developmental delays, abusive care, and poor parenting skills. The stated purpose of the psychological examination was to assess Mothers ability to care for her child in light of her developmental delays. The examination revealed that Mother was functioning at a level of borderline intellectual functioning and recommended psychotherapy. A 52-week child abuse class was provided to address Mothers negligent behavior, which had resulted in M. receiving inadequate nutrition and being burned by a hot iron. Mothers parenting skills and developmental delays were also addressed through the IRC in-home living support, the individual therapy, and the PCIT therapy. The IRC program provided independent living training and personal assistance with day-to-day tasks including caring for M., shopping, obtaining food from churches, and working with a bank account. Mother also received individual counseling at the Vista Guidance Center. The individual counseling concerned Mothers self-esteem, religion, and care of M. Additionally, Mother received PCIT therapy, which was customized to accommodate her special learning process. The PCIT sessions were designed to work with both the parent and child in a therapeutic environment and were focused on parent-child attunement, structure, and engagement. Contrary to Mothers allegations, the case plan took into account Mothers developmental delays due to the brain-stem injury.

The services offered were reasonably geared to overcoming the problems that caused the dependency and were appropriate under the circumstances. (See In re Jasmon O. (1994) 8 Cal.4th 398, 424-425; In re Christina L. (1992) 3 Cal.App.4th 404, 417.) The problem is not that inadequate services were offered, but that Mother failed to benefit from them.

Mother also complains that her services were inadequate because they failed to provide her with services to address [M.s] special needs. However, M.s injuries were the result of Mothers inability to provide safe care and adequately parent him, rather than M.s special needs. M. received inadequate nutrition and the iron-shaped burn on his leg when he was 11-months old, before any speech delay was possible. Moreover, M.s special needs were addressed through the parent/child therapy, which was designed to understand how [M.] could benefit from mental health services and to determine which early interventions and what level of intervention would be effective in meeting [M.s] needs. The conclusion of the parent/child evaluation was that Mother did not have the ability to provide safe parenting to M., and it was the therapists opinion that Mother would be less and less capable of providing a safe environment as M. grew.

Ultimately, it was Mothers failure to benefit from the services provided that resulted in the court finding it was detrimental to return M. to Mothers care and not a deficiency in the types of services provided. Mother was unable to demonstrate she had benefited from the services that had been provided to her or that she was capable of understanding how to provide proper care to M. As late as the 18-month hearing, the foster mother was still having difficulty with Mother feeding M. too many sweets and had to explain proper nutrition to Mother. Mothers IRC in-home living support assistant also expressed concern that Mother needed additional assistance in order to provide food and care for M. Additionally, by the July 26, 2007, contested 18-month review hearing, Mother still did not have a stable, suitable home or proper budgeting techniques. She also failed to provide any evidence that her memory had improved or that she was capable of safely and adequately caring for M. On the other hand, there was overwhelming evidence that Mother had not benefited from the services offered to her, and Mother herself admitted that she did not know if she could care for M. on her own.

Hence, even though Mother genuinely loved M., her brain injury and corresponding developmental delays left her unable to provide adequate care to M. The court, the social worker, the service providers, and the foster mother all worked to identify and provide services to help Mother overcome her disabilities in an effort to reunite with M. Unfortunately, after over two years of services, Mother still required continuous supervision, and it remained unsafe to return M. to her custody.

Viewing the evidence in the light most favorable to the Department, we find that the services provided were reasonable under the circumstances of this case.

III

DISPOSITION

The petition for extraordinary writ is DENIED.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

KING

J.

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