Natalie E. v. Sup. Ct.

Filed 10/26/06 Natalie E. v. Sup. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceeding; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, John C. Gastelum, Judge. Petition denied.

Law Office of J. Michael Hughes and Lawrence A. Aufill for Petitioner.

Benjamin P. de Mayo, County Counsel, Dana J. Stits and Paula A. Whaley, Deputy County Counsel, for Real Party in Interest.

No appearance for Minor.

Natalie E. petitions for a writ of mandate to vacate an order setting a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26.^[1] She argues the evidence is insufficient to support findings that it would be detrimental to return the child to her care and that reasonable services were offered to her. We disagree and deny the petition.

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Natalie went to a hospital with symptoms of heart failure and, she claims, only then learned she was 20 weeks pregnant. She was diagnosed with congestive heart failure and hypertension. After she left the hospital, someone told her methamphetamine could induce a miscarriage, so she tried it. Two weeks later, she was back in the hospital when the symptoms of heart failure returned. Not surprisingly, she tested positive for methamphetamine. A week after that, Haline C. was born prematurely, and a hospital hold was placed on the child.

In September 2004, the Orange County Social Services Agency (SSA) took the child into protective custody and filed a dependency petition that alleged Natalie failed to protect Haline from serious physical harm. (§ 300, subd. (b).) The juvenile court sustained the petition, declared Haline a dependent child, and ordered reunification services.^[2] Natalie’s initial case plan called for her to complete a parenting class and drug treatment program, submit to drug testing, and participate in a Narcotics Anonymous or Alcoholics Anonymous program.

At the 12-month review, SSA reported it had “significant concerns“ about Natalie’s ability to care for and protect Haline, primarily because Natalie “does not seem to deal with her own health problems in a timely manner, further placing herself at risk of serious physical harm.” This time, Natalie had been hospitalized and diagnosed with Grave’s Disease and diabetes. She told the social worker that “she had been in denial of the worsening symptoms which led to procrastination in admitting herself to the hospital.” In another incident, during a visit when Natalie was bathing Haline, the caretaker (the child’s aunt) noticed a large sore on Natalie’s thigh that looked like ringworm. The caretaker asked Natalie to leave and see a doctor. After a burst of anger, Natalie complied. The rash was indeed ringworm, and an appropriate medication was prescribed. Natalie later told the caretaker the ringworm developed from a foot infection that spread to her thigh. Further services were ordered, this time with a new objective: Natalie was to “acquire appropriate medical care.”

The 18-month review was held in July 2006. SSA reported Natalie had not demonstrated the ability to care for and protect Haline, she failed to take the initiative in caring for the child during visits, visitation was inconsistent, Natalie “does not seem to deal with her own health problems in a timely manner, further placing herself at risk of serious physical harm,” and she did not have a legal source of income. It opposed returning Haline to Natalie’s care, citing a serious risk of detriment to the child’s physical well-being.

SSA reported that when Natalie visited, the caretaker had to remind her to groom, feed, and bathe the child, and more often than not, she did not do the child’s laundry or wash her dishes. Although Natalie was allowed to visit all day, she rarely did so. The caretaker sometimes had to ask Natalie to stay a while longer, and many times Natalie cut short her visits to run errands. In the two months preceding the hearing, Natalie skipped seven therapy appointments, and twice failed to visit for a week at a time.

The caretaker testified she spoke with Natalie several times during the preceding six months about taking over all of Haline’s care, and each time, “I would see her . . . try a little harder, and then it sort of would fade away again. I guess it just wasn’t consistent.” The caretaker said Natalie made it to three or four visits a week on average, even though she was permitted to visit every day. She said Natalie would take care of Haline for as long as three weeks, then not show up for a few days, and “I would wonder if she’d be able to do it on her own.”

At the hearing, the social worker expressed his concern this way: “[S]he didn’t have the knowledge . . . that she . . . had learned in the parenting class . . . I had concerns that she just was not doing it. . . . [S]he had the knowledge but just wasn’t implementing it.” The social worker said he talked with Natalie about “trying to get to a point where she did not need to be prompted or asked to do things for the child during the visits.” He also encouraged her to ask the caretaker to teach her Haline’s schedule and needs. But she never was able to do it: “[S]poradically during the life of the case she [Natalie] would tell me that she felt that the child’s schedule was . . . too much for her to be able to follow and that [the caretaker] had them on a schedule that was . . . hard for her to manage.”

Natalie’s neglect of her own medical condition left the social worker doubting she would do any better with Haline. The social worker reported Natalie was slow to recognize when she herself needed medical attention, and she did not take her own medications regularly. Natalie’s medical records revealed one doctor “assessed the mother’s diabetes to be under poor control with her regimen not ideal.” As the social worker put it, “if she can’t recognize her own healthcare concerns it concerns me that she will not be able to or will not timely respond to the child’s healthcare needs or similar needs. And . . . if she is not recognizing her own needs and her health fails because of it, she may not be able to care for the child appropriately.”

Natalie also had significant vision problems that only surfaced in May, 2006. SSA reported the caretaker told the social worker of an incident when Natalie did not see feces falling out of the child’s diaper. This led to a discussion in which Natalie told the caretaker she was legally blind in one eye. The caretaker testified she discussed the situation with her husband, who told her not to leave their own daughter alone with Natalie. The caretaker then spoke to the social worker, who concurred. However, the caretaker understood the social worker to say she should not leave Natalie alone with Haline either, although the social worker testified that was not what he had said. The result was that Natalie’s did not have any unmonitored visits after May, 2006. Meanwhile, the social worker was unable to confirm Natalie’s vision problems until they met in mid-May. At the meeting, Natalie admitted she was legally blind in one eye and had been suffering “significant visual impairment” in the other eye for more than a year. But, she added, she had made an appointment to have her eyes examined and treated.

The social worker testified that additional services beyond those SSA had offered were available to deal with blindness and poor parenting skills -- medical attention, organizations to assist the blind, and in-home parenting services. But he did not believe vision services were necessary or parenting services warranted. When Natalie first told the social worker of her vision problems, she had already made appointments with a physician and an ophthalmologist, and she told him she was able to function with glasses borrowed from her sister. So he did not see any need to offer a medical referral or consider services for the blind.

The social worker said he did not offer in-home parenting services because he felt Natalie had not progressed to the point that they would make a difference. The service SSA could provide was a worker who would observe what a parent did, offer suggestions, and provide goals and objectives. Referrals were made when a parent had progressed to unmonitored visitation. But Natalie was not at that point. Because her visitation was so erratic and inconsistent, Natalie had not gotten beyond one hour unmonitored visits, so the social worker felt it was not time for in-home assistance.

Natalie testified she visited at least five times a week, staying between two and eight hours, attended eighty percent of Haline’s therapy sessions, and missed only three doctor’s appointments when the caretaker failed to notify her of the appointment.

The juvenile court found that returning Haline to Natalie’s care would create a substantial risk of detriment to the child’s physical well being. The court said “the issue is mother’s demonstrated inability to appropriately care for this child and to manage her own medical care,” and it found Natalie’s failure to attend to her own medical care “raised doubt about her ability to attend to the child’s medical needs.”

The court found reasonable services had been provided and further services would not be of assistance. It said the social worker and caretaker were credible, but not Natalie. “So it boils down to a situation where mother from the services . . . provided had the knowledge that she needed to parent the child but simply was not using it, and there appeared to be no reason that she either did not or could not learn. . . . . . . [T]here are not services available that would help the mother implement the knowledge she had acquired in her parenting class. I’m not sure that re-referring her to a different parenting class would have made any difference.” It explained that SSA was not required to provide “perfect services” or “every conceivable service,” and SSA’s decision not to refer Natalie for services to the blind was reasonable. It found “vision is but a part of an overall problem,” so the failure to offer these services did not amount to a denial of reasonable services.

Upon finding that Natalie had not shown substantial compliance with the service plan, the juvenile court terminated services and set a permanency planning hearing.

I

Natalie argues the detriment finding is unsupported by the evidence because she successfully addressed the problems that led to dependency when she complied with the initial case plan and remained drug-free. We cannot agree.

At the 18-month review hearing, the juvenile court must order the child returned to parental custody unless it finds “the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. . . . . The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (§ 366.22, subd. (a).)

A detriment finding need not be based on the same type of harm that led to dependency. “If returning the child will create a substantial risk of detriment . . . placement must continue regardless of whether the detriment mirrors the harm which had required the child’s removal from parental custody [citation].” (In re Joseph B. (1996) 42 Cal.App.4th 890, 894.)

Natalie ignores this rule, but we cannot. While it is commendable that she remained drug free and complied with the initial service plan, the fact is other risks surfaced during dependency. It was Natalie’s’ failure to remove these new risks that formed the basis for the detriment finding. The juvenile court found Haline could not be safely returned to Natalie’s care because the mother lacked the parenting skills to appropriately care for the child, and her neglect of her own healthcare posed a risk she would do not better for Haline. So Natalie’s compliance with the initial service plan does not undercut the detriment finding.

Natalie argues there was no evidence that her medical problems prevented her from completing the service plan. But the argument is wide of the mark, for two reasons. First, the issue is whether returning Haline to Natalie’s care would pose an unacceptable risk to the child, and the juvenile court found Natalie’s neglect of her medical problems put the child in jeopardy. Second, Natalie focuses only on the initial plan, not the operative one adopted at the 12-month review. The latter plan called for Natalie to obtain adequate medical care for herself. There is plenty of evidence Natalie never changed her pattern of ignoring her own health -- the doctor’s report that her diabetes was not under control, and Natalie’s astonishing delay of a year before seeking medical attention after she was legally blind in one eye and losing the sight in the other. So the record supports the findings that Natalie did not comply with the service plan and that returning Haline to her care would be detrimental to the child.

II

Natalie argues the services provided were not reasonable because SSA could have offered more -- services for the blind, an additional parenting class, and increased unmonitored visitation that would have allowed her to improve her parenting skills. We cannot agree.

A parent need not be offered all services possible, but only reasonable services. “The standard is not whether the services provided were the best the might be provided in an ideal world, but whether the services were reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) A finding of reasonable services, like all other factual findings, must be affirmed if supported by substantial evidence, and it is appellant’s burden to lay out the contrary evidence and show why it is lacking. (In re S.C. (2006) 138 Cal.App.4th 396, 414-415.)

Here, the juvenile court found SSA’s decision not to provide the disputed services or visitation was reasonable. It said Natalie’s vision was but a part of her general neglect of health care, and that is what put Haline at risk. It also explained that another parenting class would not solve the problem of Natalie’s refusal to apply the skills she had been taught. And on visitation, the court observed that Natalie “had never taken full advantage of the visitation offered to her so that she could make further progress.”

Natalie makes no attempt to explain why this evidence is insufficient to support the reasonable services finding. Instead, she says SSA had to do whatever was necessary to help her alleviate its concerns. That does not show services were unreasonable, and it certainly is not the law. The record supports the finding that reasonable services were provided.

Since the challenged findings are supported by the evidence, the petition is denied. In the interests of justice, this decision shall become final 10 days after the opinion is filed. (Cal. Rules of Court, rule 24(b)(3).)

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.

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

^[2] The dependency petition also alleged the child’s father, Scott C., was unable to protect the child due to substance abuse, and he failed to protect the child when he allowed Natalie to use drugs while pregnant. (§ 300, subd. (b).) At the six-month review, SSA reported Scott was addicted to methamphetamine and had told the assigned social worker he no longer wished to receive reunification services or pursue custody. The six-month review order terminated Scott’s reunification services.