Tony B. v. Sup.
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COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
TONY B. et al., Petitioners, v. THE Respondent; | D049727 ( Super. |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest. |
PROCEEDINGS in mandate after reference to a Welfare and Institutions Code section 366.26 hearing. Julia Kelety, Judge. Petition denied.
Tony B. and Myra B., the parents of Toni B., Mason B. and Isaiah B., seek extraordinary writ relief (Welf. & Inst. Code, § 366.26,[1] subd. (l); Cal. Rules of Court, rule 8.452); they challenge the juvenile court order that terminated reunification services after 18 months and set a section 366.26 hearing. Both Tony and Myra contend there was insufficient evidence that returning the children to their custody would create a substantial risk of detriment to the children. Additionally, Myra contends there was insufficient evidence that she did not make substantial progress with her case plan. Myra also contends the court erred when it did not relieve her trial counsel after counsel declared an irreparable breakdown in the attorney-client relationship.
We issued an order to show cause, the San Diego County Health and Human Services Agency (Agency) responded, and the parties waived oral argument. We review the petitions on their merits and deny them.
FACTS
Myra and the children have a genetic chromosome abnormality--the 22Q11 deletion syndrome, which results in significant developmental delays and psychiatric disturbances. Toni has developmental delays, suffers from attention deficient hyperactive disorder and is dysmorphic. In addition to speech problems, Toni has severe hearing loss in her right ear and tubes in both of her ears. Mason and Isaiah suffer from hydronephrosis (kidney dysfunction). Mason also is autistic, has serious behavioral problems, including smearing his feces on the wall, and has hearing loss in both ears.
On February 18, Agency filed dependency petitions on behalf of eight-year-old Toni, three-year-old Mason, and one-year-old Isaiah, alleging the children were at substantial risk of harm because of their parents' failure to provide them with adequate food, clothing, shelter and medical treatment. The petition alleged the children's rooms had an odor of urine and contained feces on the walls and floor, along with broken glass and dried food. (§ 300, subd. (b).) The petitions on behalf of Mason and Isaiah also alleged the parents had left them inadequately supervised. (Ibid.)[2] The children were detained with their maternal aunt.
On March 14, the court sustained the petitions, declared the children dependents and ordered the parents to comply with their case plans. The court placed the children with their aunt.
During the first six months of the dependencies, Tony and Myra attended the children's medical appointments, visited them regularly, completed a 32-hour parenting class and underwent psychological evaluations. Myra attended therapy and both parents had progressed to unsupervised visitation.
In September, the court found both parents had made substantial progress with their case plans and substantial progress alleviating the causes of the children's dependencies. The court granted the parents six additional months of services.
On
Psychologist Betty J. Waldheim evaluated Myra, who tested in the borderline range of intellectual functions. Myra attended special education classes in high school. According to Waldheim, Myra was " mild[ly] to moderately depressed" and had considerable anxiety from stress. Myra was very emotionally needy and could be easily overwhelmed. Waldheim opined that Myra had " many unmet dependency needs and lack[ed] the psychological resources necessary to cope with demand of her everyday life in raising her children." Myra admitted she " didn't know how to parent the children" and became lazy after Mason's birth. By the time Mason was three, Myra was overwhelmed by parenting.
During the evaluation, Myra admitted that she had a drinking problem in the past, but denied a current problem.
Psychologist Thomas Barnes evaluated Tony, who had " bright average" intellectual functioning and low self-esteem. Barnes reported that Tony did not appear to be fully aware of the problems his family faced and thus could not address critical issues. Barnes opined that Tony needed individual therapy to address his " pronounced" denial regarding his responsibility for the children's dependency cases.
In May, Myra's therapist wrote Agency that Myra was resistant to alcohol abuse treatment. The therapist opined Myra needed to be clean and sober before she could properly care for herself and her children. That month, the court referred Myra to the Substance Abuse Recovery Management System (SARMS) program.
On May 26, Myra started attending a treatment program three days a week and attending Alcoholics Anonymous meetings twice a week. Myra also obtained a sponsor. At first, Myra's tests were negative. But in the latter part of the summer, Myra tested positive once, had five unexcused absences and was tardy twice.
In July, Tony's therapist reported that she had concerns that Tony was not taking responsibility for or addressing the protective issues in the case. Tony minimized the extent of the problems that led to the dependency cases. " It is unclear at this time if [Tony] will be able to see more realistically, and take more responsibility for, the grave extent of the neglect of his children that led up to the removal of the children from his home," wrote the therapist.
On July 13, the court extended services to the 18-month review date, which was six weeks away.
In August, the social worker contacted Myra's therapist who reported that Myra had made progress over the last couple of months but continued to make excuses and not tell the truth. Also in August, Toni was placed in the same licensed foster home as Mason. The maternal aunt believed she could no longer take care of both Toni and Isaiah because of her own family and health issues. Isaiah remained in the aunt's home.
For the 18-month review hearing, Agency recommended that reunification services be terminated and that a section 366.26 hearing be set. The social worker opined it would be detrimental to return the children to Tony and Myra because the parents had not fully addressed the issues that resulted in the dependency cases. The social worker added that Myra's recent alcohol abuse and the children's special needs also made return detrimental.
On September 5, Myra tested positive for alcohol after she went to a party and drank punch. On October 13, Myra again tested positive for alcohol.
On October 23, at the beginning of the contested 18-month review, Myra's counsel asked to be relieved because she said Myra refused to communicate with counsel. Counsel told the court that Myra and her therapist, who would not discuss Myra's case because Myra had not signed a release form, blamed counsel for Myra's alcohol relapses. The court asked Myra if she was requesting a new lawyer, and Myra responded: " No, I'm not. I still want the same lawyer." The court declined to relieve counsel.
Social worker Patrick Kissel recommended the court terminate services because the combination of the children's special needs and Myra's own limitations rendered her unable to provide the necessary level of care. Kissel also testified that Myra was in denial about her alcohol abuse problem, which was " going to make it that much more difficult for her to parent these children on top of her limitations and the children's special needs. I feel that she will not be capable of meeting their needs."
Kissel opined Tony did not recognize the severity of Myra's limitations in caring for the children as well as her alcohol problem. Kissel testified Tony did not adequately support Myra and did not take responsibility for his role in the children's dependency.
The court terminated services and set a section 366.26 hearing, noting:
" Here we stand 18 months later, and the parents have participated in services, but the question is whether they've really made substantial progress, whether mother's been able to overcome her own limitations and intensive needs of her children, and whether father has been able to overcome his passivity and to step in to fill in the gaps created by his . . . wife's issues and the children's needs."
The court noted that after 18 months of services, Myra continued to be overwhelmed by the responsibilities of parenting while Tony remained uninvolved with the family during visits. The court continued:
" It's clear to me that if these children went home, it would only take a short period of time before the home would be in the situation that it was in and the children being neglected again. This really is more than a dirty home case. I note there's a lot more problems than that. Cleaning up the home is just the tip of the iceberg.
" So I do find that the Agency has proven by clear and convincing evidence that there is a substantial risk of detriment to the children returning home because . . . we simply have not gotten to the point where the children could go home safely in the situation that we had at the beginning . . . with mother as a primary caregiver and father fully employed."
DISCUSSION
I.
Denial of Request to Relieve Counsel
Myra contends the juvenile court erred by not relieving trial counsel after counsel announced an irreparable breakdown in the attorney-client relationship. The contention is without merit.
At the beginning of the 18-month review, Veda Tavakkoly, counsel for Myra, told the court that there was an irreparable breakdown in the attorney-client relationship and asked to be relieved. Tavakkoly said Myra refused to allow her to speak with Myra's therapist, and both therapist and Myra blamed counsel, among others, for Myra's drinking relapse. The court asked Myra if she was asking the court for a new lawyer. Myra responded: " No, I'm not. I still want the same lawyer." The court denied Tavakkoly's request to be relieved.
Under section 317, the court must appoint counsel when a parent or guardian is unable to afford counsel, and the child has been placed in out-of-home care, or the petitioning agency is recommending out-of-home placement. (§ 317, subd.(b)(2).) The mandatory appointment requirement is subject to a knowing and intelligent waiver by the parent. (Ibid.)
A parent is not required to establish a continuing need for counsel. The parent's right to continuing counsel is unqualified. (In re Tanya H. (1993) 17 Cal.App.4th 825, 831.) Counsel appointed by the juvenile court must represent the parent at the detention hearing and at all subsequent proceedings before the court, and must continue to represent the parent " unless relieved by the court upon the substitution of other counsel or for cause." (§ 317, subd. (d).) For " cause" in this context relates, not to the involvement or interest of the parent in the case, but rather to a reason personal to the attorney seeking to be removed. (In re Malcolm D. (1996) 42 Cal.App.4th 904, 915-916.) " '[F]or cause' must include some good reason personal" to the attorney seeking to be removed, " one which affects or concerns the ability or fitness of the [attorney] to perform the duty imposed upon him . . . . [Citations]. Stated otherwise, 'for cause' means inefficiency, incompetency or other kindred disqualifications." (In re Tanya H., supra, 17 Cal.App.4th at p. 831, fn. 5.)[3] As the court pointed out, Myra's refusal to cooperate with her appointed counsel did not relate to counsel's availability or fitness. Myra's position with respect to her therapist communicating with the court would have been the same if another counsel was appointed to represent her. Moreover, Myra was adamant that she did not want Attorney Tavakkoly replaced.
Under these circumstances, the court did not err by denying Attorney Tavakkoly's request to be relieved.
II.
Finding of Detriment
Tony and Myra contend the juvenile court erred by finding that it would be detrimental to return the children to their care.
At the 18-month review hearing, the juvenile court must order the children to be returned to parental custody unless the court finds by a preponderance of the evidence that the return of the children would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. (§ 366.22, subd. (a).) Agency bears the burden to establish such detriment. (Ibid.; Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.)
In determining detriment, the court must consider whether the parent participated regularly, made progress, and cooperated or availed herself of the services provided in the reunification plan. (Blanca P. v. Superior Court, supra, 45 Cal.App.4th at p. 1748.) However, technical compliance with the requirements of the case plan does not result automatically in achieving the goals and objectives of the plan--namely safe return of the child[ren] to the parent's custody. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704-706.) " [T]he court must also consider progress the parent has made towards eliminating the conditions leading to the children's placement out of [the] home." (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)
We review the record to determine whether substantial evidence supports the court's finding that the children will suffer detriment if returned to Tony and Myra. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762-763.) " When we review a sufficiency of the evidence challenge, we may look only at whether there is any evidence, contradicted or uncontradicted, which supports the trial court's determination. We must resolve all conflicts in support of the determination, and indulge in all legitimate inferences to uphold the court's order. Additionally, we may not substitute our deductions for those of the trier of fact." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
Even though both parents substantially complied with their case plans, we find substantial evidence supports the court's finding of detriment as to each of them. This is so because the record shows that Myra and Tony failed to demonstrate the ability to provide a safe home environment and supervise the children without placing them at risk of danger.
" The harder cases are, like the one before us, where the parent has complied with the service plan, but for some reason has not convinced a psychologist or social worker that it would be safe to return the child to the parent. The problem is not, as it were, quantitative (that is, showing up for counseling or therapy or parenting classes . . .) but qualitative (that is, whether the counseling, therapy or parenting classes are doing any good). These are sensitive cases, fraught with emotional overtones, because they invariably deal with an evaluation of the personality, character and attitudes of the parent." (Blanca P. v. Superior Court, supra, 45 Cal.App.4th at p. 1748.)
After 18 months of court-ordered services--in addition to in-home and voluntary services--Myra continued to lack the ability to deal with the demands of raising three special-needs children. As late as
As in the beginning of the case, Tony did not participate in services while he was at home. Tony continued to rationalize his past behavior in passively caring for his children and did not acknowledge there were severe protective issues in the home before the children were removed. Tony's therapist questioned whether he would be able to take responsibility for how his children were seriously neglected, writing: " [I]t is unclear at this time how much change he is capable of implementing, and more importantly following through with, if the children were to be returned to him."
Tony argues that the therapist opined that the children could be safely returned to Tony's care. However, this does not take into account that while Tony continued to work, the children would be in the care of Myra for most of the day. Indeed, the therapist recommended the court act cautiously regarding returning the children.
We disagree that the court should have ordered the children returned with family maintenance services. Myra and Tony did not learn sufficiently from the in-home, voluntary and court-ordered services provided to them over two years how to care for their three special-needs children. There was no showing before the court that this would change.
Myra complains that there is insufficient evidence that she had not made substantial progress. There is no question Myra showed a lot of improvement; however, as we have explained above, she had not progressed to the point that she could safely parent her children.
DISPOSITION
Petition denied. The stay request is denied.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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[1] All statutory references are to the Welfare and Institutions Code.
[2] Toni's petition included an allegation under section 300, subdivision (j) based on the inadequate supervision of her siblings.
[3] In addition, it is questionable whether a court may relieve counsel simply because he or she is unable to contact the parent. (In re Malcolm D., supra, 42 Cal.App.4th at p. 915 [error to relieve counsel based solely on inability to contact parent]; In re Ronald R. (1995) 37 Cal.App.4th 1186, 1193 [same]; but see Janet O. v. Superior Court (1996) 42 Cal.App.4th 1058, 1065-1066 [permissible to relieve counsel where parents' extended lack of contact with counsel and failure to appear in court supported conclusion parents no longer desired representation].)
