Tina H. v. Superior Court

Filed 7/20/07 Tina H. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Carol Isackson, Judge. Petition denied.

Tina H. seeks review of juvenile court orders terminating family reunification services and setting a hearing under Welfare and Institutions Code section 366.26.^[1] Tina contends that there is insufficient evidence to support the court's finding that the Agency provided reasonable services. We conclude that the court's finding of reasonable services is supported by substantial evidence, and deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Tina H. is the mother of Stephanie F. and Patrick H. (children), now ages 14 years, and two years, respectively.^[2] The family had a substantial history with child protective services. In June 2006, the San Diego County Health and Human Services Agency (Agency) provided voluntary services to the family after Tina scratched Stephanie during a verbal altercation.

On June 22, 2006, the San Diego Police Department placed the children in protective custody after Stephanie disclosed that her father (Tina's ex-husband) had molested her. Stephanie also stated that Tina had abused her both verbally and physically. Tina acknowledged that her ex-husband might have molested Stephanie. She also informed the social worker that she and her ex-husband planned to remarry and move to Arizona.

In August 2006, Stephanie and Patrick were adjudicated dependents of the juvenile court. ( 300, subds. (a), (d).) The court removed the children from parental custody, placed them in foster care and ordered Tina to comply with her case plan. Tina's case plan required her to attend a parenting class, participate in sexual abuse counseling services with Stephanie, and complete a psychological evaluation. The case plan required the social worker to visit Tina at least once a month.

The Agency arranged for Tina to receive in-home services. Tina's vision was impaired. She recently had undergone surgery, and was hospitalized twice. Tina received in-home services for approximately one month. She failed to attend a scheduled appointment for a psychological evaluation. In early September 2006, Tina informed the social worker that she was being evicted from her apartment. The Agency and service providers subsequently were unable to locate her.

On November 19 or 20, 2006, "a child or an adult pretending to be a child" left a message on the social worker's voicemail. That person stated, "I'm not leaving my name or my number" but provided Tina's name and an address for her in Arizona.

The case was reassigned to a new social worker on November 28, 2006. The new social worker found Tina's contact information in the file, but did not know whether the address in the file was "a real address." The social worker asked Stephanie about Tina's whereabouts. Stephanie said that she had not heard from Tina "in months."

In mid-December 2006, Tina telephoned the social worker. The social worker explained the case plan to Tina and mailed service referrals to her in Arizona. On December 28, Tina telephoned the social worker to ask about a class. Tina and the social worker discussed Tina's case plan requirements during this conversation.

On December 29, 2006, Tina was evicted from her residence after she assaulted the person with whom she had been staying. She moved to another city in Arizona. Tina spoke with the social worker on January 10, 2007, and informed her of her new address. On February 22, the social worker mailed local service referrals for parenting classes and therapy to Tina at her new address.

The contested six-month review hearings were held on April 10 and 12, 2007. The Agency recommended that the court terminate reunification services and set a section 366.26 hearing. The social worker reported that Tina had not participated in a psychological evaluation, parenting classes or individual counseling. Tina stopped visiting the children in September 2006, and her subsequent contact with them was limited and sporadic. Stephanie did not want to return to Tina's custody. Patrick required services for speech and motor delays, and the social worker did not believe Tina would be able to meet his needs. Tina testified that she recently had started counseling.

The court found that the Agency had provided or offered reasonable services to Tina, and that returning the children to her care would be detrimental to them. The court terminated reunification services and set a section 366.26 hearing to select and implement permanency plans for the children.

Tina petitions for review of the court's orders, and requests a stay of the section 366.26 hearing. ( 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause and the Agency responded. The parties waived oral argument.

DISCUSSION

A

Introduction

Tina contends that the trial court's finding that she was provided or offered reasonable services is not supported by substantial evidence. She argues that the services provided were not reasonable because the Agency's case plan did not account for her impaired vision, and because the social workers did not maintain reasonable contact with her. She argues that because she was not provided reasonable services, the court should have continued the case until the 12-month review hearing. Tina also contends that the trial court applied an incorrect standard in determining whether the services the Agency provided or offered were reasonable.

The Agency responds that Tina was remiss in failing to inform the Agency of her new address, and maintains that the social worker exercised proper diligence in attempting to locate Tina. The Agency contends that the court properly interpreted the governing statute and that substantial evidence supports the court's finding that reasonable services were provided or offered to Tina.

B

The Legal Standards Governing The Provision Of Reasonable Services

Family reunification services play a "crucial role" in dependency proceedings. (In re Joshua M. (1998) 66 Cal.App.4th 458, 467; In re Jamie M. (1982) 134 Cal.App.3d 530, 545.) The child's case plan is the "guiding principle in the provision of these services." ( 16501, subd. (a).) The case plan for each child must "[i]nclude a description of the services offered and provided to prevent removal of the child from the home and to reunify the family." (45 C.F.R.  1356.21(g)(4); see also 42 U.S.C.  671(a)(15);  16501.1, subd. (f)(9).) "At the disposition hearing, unless the state proves by clear and convincing evidence that one of the exceptions to reunification under section 361.5, subdivision (b) [or subdivision (e)(1)] applies . . . the juvenile court must provide services designed to reunify the family within a statutory time period. ( 361.5; see 42 U.S.C.  629a(a)(7).)" (In re Alanna A. (2005) 135 Cal.App.4th 555, 563-564.)

Family reunification services "may include, but are not limited to, a range of service-funded activities, including case management, counseling, emergency shelter care, emergency in-home caretakers, temporary in-home caretakers, respite care, therapeutic day services, teaching and demonstrating homemakers, parenting training, substance abuse testing and transportation. These service-funded activities shall be available to children and their families in all phases of the child welfare program in accordance with the child's case plan and departmental regulations." ( 16501, subd. (a).

"The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success." (In re Dino E. (1992) 6 Cal.App.4th 1768.) "The adequacy of reunification plans and the reasonableness of [the agency's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) "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. (1991) 2 Cal.App.4th 538, 547.)

The court may schedule a section 366.26 hearing only if it finds by clear and convincing evidence that reasonable services were provided or offered to the parents. ( 366.21, subd. (g)(2).) At the six-month review hearing for a sibling group with one member under age three, as is the case here, if the court finds that reasonable services have not been provided, the court shall continue the case to the 12-month review hearing. ( 366.21, subd. (e).)

C

Standard of Review

When a party challenges the trial court's finding that reasonable services have been offered or provided to a parent, we determine whether there is substantial evidence to support the finding by reviewing the evidence most favorably 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 538, 545.) In applying the substantial evidence test to a finding of reasonable efforts, we keep in mind that there must be clear and convincing evidence to support the finding. ( 366.21, subd. (g)(2); In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.) The party challenging the finding bears the burden of showing that there is insufficient evidence to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

D

There Is Substantial Evidence To Support The Trial Court's Finding That The Agency Provided Or Offered Reasonable Services To Tina

The Agency provided reunification services to Tina before the jurisdiction and disposition hearing on August 10, 2006. On July 10, the social worker referred Tina and Stephanie to the Chadwick Center at Children's Hospital (Center) for sexual abuse counseling. On August 9, the social worker spoke to personnel at the Center, who confirmed that intake appointments would be scheduled within the next week. Tina requested transportation services to the Center, and the Agency provided her with a bus pass. Tina began a weekly parenting and anger management class on July 31, 2006. These classes were provided by an in-home services worker.

Tina had surgery on July 18, 2006, and was hospitalized again during the week of July 31. The Agency was aware that Tina could not drive because of her impaired vision. We infer that the Agency implemented in-home services in order to accommodate Tina's recent surgery and disabilities, but that Tina was able to access services outside the home when necessary. There is no question that the initial services that the Agency offered and provided to Tina were reasonable.

On September 14, 2006, Tina informed the Agency that she was being evicted from her apartment. After that conversation, the Agency and service providers were unable to contact her. Stephanie told the social worker that Tina told her that she was moving to Arizona with her boyfriend. On November 19 or 20, the Agency received a telephone message from an unknown person who left Tina's name and an address in Arizona.

Tina faults the Agency for not immediately writing to her at that address. The Agency's failure to do so was not unreasonable under the circumstances. Because the tip concerning Tina's location was made anonymously, the social worker reasonably decided to attempt to confirm Tina's location before sending a letter to that address. In addition, Tina was aware that her children were in foster care and that she was required to participate in services to reunify with them. However, Tina did not inform the Agency that she was leaving for Arizona or that she had relocated. We infer from the Agency's actions in July, August and December 2006 that it would have immediately responded to Tina's changed circumstances if Tina had informed the Agency of her change of address, as she was required to do by court order.

Tina telephoned the Agency on December 18, 2006. The social worker returned her call on December 19, and discussed the requirements of the case plan with her. The next day, the social worker mailed a comprehensive packet of referrals to Tina. Tina telephoned the social worker with questions about services on December 28, and the social worker responded to her questions. Again, the record clearly shows that the Agency offered and provided reasonable services to Tina.

On December 29, 2006, Tina was evicted from the home in which she was staying, and moved 200 miles away. She promptly informed the Agency that she had moved. The social worker sent service referrals to Tina's new address approximately six weeks after Tina contacted her. There is no explanation in the record for the Agency's delay in providing the new service referrals. Although this delay was not "the best that might be provided in an ideal world," we conclude that the services provided or offered to Tina were reasonable under the circumstances. (In re Misako R., supra, 2 Cal.App.4th at p. 547.)

By January 2007, five months of the six-month reunification period had passed. The Agency twice previously had offered and provided reasonable services to Tina, and she had failed to participate meaningfully in those services. The social worker spoke to Tina approximately seven times while Tina was in Arizona. The record shows that Tina was fully apprised of the requirements of her case plan. She never informed the social worker that her vision impairments made it difficult for her to access services in Arizona. To the contrary, Tina testified that she had started to participate in counseling services. After January 10, 2007, Tina did not contact the social worker to inquire about services. From September 2006 to April 2007, Tina telephoned her children only three times and wrote to Stephanie once. On this record, we cannot conclude that the Agency's six-week delay in providing a third set of service referrals to Tina was unreasonable under the circumstances. (In re Misako R., supra, 2 Cal.App.4th at p. 547.)

As the trial court noted, this was not a situation in which the parent had been actively participating in reunification services and was asking for an opportunity to complete the case plan. The record clearly shows that Tina was disengaged from her children's lives, and that she took no initiative to try to reunify with them. We conclude that substantial evidence supports the trial court's finding, by clear and convincing evidence, that reasonable services were provided or offered to Tina. ( 366.21, subd. (g).)

E

Tina Forfeited Her Claim That The Trial Court Applied An Incorrect Standard To Determine Whether Reasonable Services Were Offered Or Provided

Tina contends that the trial court applied an incorrect standard of law in determining whether reasonable services were provided. She argues that the trial court did not separate the issue whether Tina had made substantial progress with her case plan from the issue whether the Agency provided reasonable services. In support of her argument, she quotes only the trial court's statement that "[w]e were previously looking at whether or not mother had participated meaningfully in the services. . . .  And in these findings I will incorporate the previous findings." Tina asserts that if the court had viewed the two issues separately, it would have recognized the deficiencies in the Agency services she had been provided or offered, and would have continued the reunification period to the 12-month review hearing. ( 366.21, subd. (e).)

The Agency correctly asserts that Tina did not raise this issue before the trial court, and that she has thus forfeited it on appeal. Failure to object or acquiescence at the trial court waives the right to claim error as ground for reversal on appeal. (Civ. Code  3515, 3516; In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)

Even if we were to review Tina's argument on its merits, we would conclude that the argument is wholly without merit. Tina ignores the court's clear explanation of its application of the law to the facts. The trial court stated:

"The first thing we need to look at is mother's failure to participate regularly and make substantive progress. And this is a separate issue from whether technically, it is a separate issue from whether or not the services that were provided to mother were reasonable. The two issues mesh and meld and some of the facts are the same, but I am splitting it out for the purpose of initial analysis and making the prima facie case."

The Court then set out the facts concerning the Agency's efforts to provide services to Tina and her responses to them in comprehensive chronological detail. The court found that Tina had not participated in offered services or made substantial progress, and then stated:

"The agency also has established by clear and convincing evidence that reasonable services were provided by the agency. This is the flip side of the coin. We were previously looking at whether or not mother had participated meaningfully in the services. The second area that the Court is looking at is whether or not the agency has established that it provided reasonable services. And in these findings, I will incorporate the previous findings, but I will add some specifics as to exactly what the evidence is that the agency provided."^[3]

The court proceeded to detail the requirements of the case plan, Tina's disabilities, and the services that had been provided or offered. It is abundantly clear that the court was referring to incorporating its previous factual findings pertaining to Tina's participation in services into its finding concerning the reasonableness of the services. The court went on to make additional, specific findings about the actual services that had been offered and provided to Tina. Contrary to Tina's assertion, the court was not

incorporating its legal conclusions concerning Tina's progress into its finding that reasonable services had been provided or offered. The court diligently explained its factual findings and reasoning, correctly applied the proper legal standard and reached a conclusion that is supported by the evidence. There is no error.

DISPOSITION

The petition is denied.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

McINTYRE, J.

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^[1] Unless specified, statutory references are to the Welfare and Institutions Code.

^[2] The children's father is not a party to this writ proceeding, and is mentioned only when relevant. He did not participate in the dependency proceedings.

^[3] Tina's excerpts from the court's remarks are in italics. (See, generally, Bus. & Prof. Code 6068, subd. (d).)