Nancy P. v. Superior Court

Filed 4/3/07 Nancy P. v. Superior Court CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Nancy P. (mother) seeks extraordinary writ review of a juvenile court order terminating her family reunification services and setting a permanent plan hearing. (Welf. & Inst. Code, 366.26[1]; Cal. Rules of Court, former rule 38.1, now rule 8.452.) Mother claims reasonable reunification services were not provided, and error in the court's finding that she failed to make substantive progress in her case plan. We deny the petition.

FACTS AND PROCEDURAL HISTORY

On June 5, 2006, the Santa Barbara County Child Welfare Services (CWS) filed a juvenile dependency petition on behalf of mother's one- and two-year-old children, Christina W. and Matthew W. ( 300, subd. (b).) Christina was born in April 2004, and Matthew was born in September 2005. At the time of filing, the children were living with both mother and their father, Clinton W.

The petition alleges unsanitary and dangerous conditions in the home, including rotted food, urine, feces, dishes piled in the sink, and baby bottles with rotted milk. Both children had soiled diapers and Christina had feces and urine "going up her back." The petition alleges that both mother and father are mentally ill and abuse drugs, and that father physically abuses mother. The petition concluded that neglect and "failure . . . to provide . . . adequate food, clothing, shelter, or medical treatment" placed the children at "substantial risk [of] serious physical harm or illness." ( 300, subd. (b).)

Mother and the father admitted the allegations, submitted to detention and jurisdiction, and signed waivers acknowledging that if unsuccessful, reunification services could be terminated in six months. ( 361.5, subd. (a)(2).) In July 2006, the court sustained the petition, declared the children dependents of the court, and ordered reunification services for both parents. The court also directed CWS "to move this as quickly as possible" on a psychological evaluation of the parents that was required by the case plan.

The six-month review hearing was held on January 2, 2007. CWS recommended termination of services, and counsel for the children concurred in the recommendation. The CWS report concludes that, despite parenting and drug treatment classes and individual therapy, mother failed to make progress in most case plan objectives, is "still standing at the starting gate" and, in fact, has "regressed." The report states that mother has developed no parenting skills, has no fixed residence, no employment, continues a co-dependent relationship with the abusive father, has no "support system" other than known substance abusers, and "has very little conception of how to maintain a safe, clean home or parent her very dependent young children." The report notes that, during visits, mother interacts with two-year-old Christina as a companion rather than parent, and exhibits "emotional distance" from one-year-old Matthew "that is not improving."

The report emphasizes that, although mother receives weekly counseling from her therapist and anti-depressant medication, she continues to exhibit symptoms of serious mental illness and has not followed a CWS recommendation to obtain further psychological assistance. Leslie Sherman, mother's therapist, states that mother is suffering from "major depression, recurrent (296.3 DSMIV-R)", including "isolating behavior, depressed mood, excessive sleeping, irritability, loss of pleasure in formerly enjoyable activities, and a feeling of hopelessness." Sherman reports that mother "comes from a background which did not allow her to learn appropriate parenting skills. This, combined with her lack of self worth, creates a difficulty for her in being an engaged, loving and consistent parent to her two children. . . . It is my opinion that she still has a great deal of work to do in order to provide an optimal setting for her children . . . ."

At the hearing, case worker Katherine Davis testified that mother "has failed to demonstrate that she has been learning any type of parenting skills," has no bond with Matthew, and whatever bond she may have had with Christina "appears . . . to be deteriorating." Davis testified that, during the reunification period, "things get worse rather than better."

Mother testified that she has bonds with her children, attended all required classes, obtained therapy and anti-depressant medication, stopped associating with substance abusers, and ended her relationship with the abusive father. She also testified that she had applied for many jobs, but could not get one because she is "not positive at this time."

The juvenile court found by clear and convincing evidence that reasonable services had been offered, but mother had not complied with her case plan or made sufficient progress towards alleviating the causes that necessitated the dependency petition, and that returning the children to the physical custody of her parents would create a substantial risk of detriment to their physical or emotional well-being. The court stated that this was "not the usual run-of-the mill case because of the number of issues," and the shocking and dangerous condition of the home at the time of detention. The court noted that mother was homeless and had failed to bond with her children, and stated that mother's mental illness "seems to underlie everything." Based on these findings, the court terminated reunification services, and set the matter for a permanent plan hearing pursuant to section 366.26.

DISCUSSION

Where children are under the age of three when removed from parental custody ( 361.5, subd. (a)(2)), the court may terminate reunification services and schedule a section 366.26 hearing after six months if the court finds by clear and convincing evidence that "the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan." ( 366.21, subd. (e).) An additional six months of reunification services is required, however, if the court finds "that reasonable [reunification] services have not been provided." (Ibid.)

Mother contends there was insufficient evidence to support its finding that she failed to make substantive progress in her reunification case plan. We disagree.

The record shows that mother participated in her reunification plan by completing a parenting class and drug treatment program, by attending counseling, and by regularly visiting her children. But, mere participation in the required elements of a plan is not sufficient. The statute requires substantial progress towards eliminating the conditions that led to the removal of the children from parental custody before reunification services will be extended beyond six months. ( 366.21, subd. (e); see In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)

The record clearly shows that mother's efforts have been unsuccessful. There is substantial evidence to support a finding that, apart from some success in drug treatment, mother made virtually no progress in any element of the case plan or in alleviating the other problems that led to the loss of custody of her children. (Jennifer A. v. Superior Court (2004)117 Cal.App.4th 1322, 1341 [order terminating reunification services is reviewed for substantial evidence].) Evidence shows that she has developed no parenting skills, has not obtained suitable or any settled housing, has not obtained employment, and has not been able to relieve the burdens of her mental illness.

Mother also contends that reasonable reunification services were not provided. Reunification services should be tailored to the specific needs of the particular family, and are reasonable if the agency has "'identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . .'" (In re Alvin R. (2003) 108 Cal.App.4th 962, 972-973; In re Misako R. (1991) 2 Cal.App.4th 538, 547.) Here, substantial evidence supports the finding that reasonable reunification services were offered.

Mother argues that services were not reasonable because CWS did not obtain a psychological evaluation for the purpose of recommending appropriate therapy, medication and other mental health treatment. We acknowledge that a separate written psychological evaluation, though ordered by the trial judge, was not obtained. But, mother's mental health problems were otherwise evaluated by mental health professionals and the omission of a written evaluation did not deprive mother of reasonable and appropriate treatment for her mental illness.

This is not a case where a parent was not provided the mental health treatment necessary for successful reunification. Mother's mental illness was neither unknown nor ignored by CWS in providing reunification services. At least two months before the petition was filed, CWS began providing counseling through therapist Leslie Sherman. The record shows that Sherman evaluated mother's psychological condition, diagnosed mother with clinical depression, and provided regular individual therapy to treat the depression and assist mother in reunifying with her children.

In addition, mother obtained an evaluation by Dr. Guzman that resulted in the prescription of anti-depressant medication. Although CWS may not have been sufficiently informed about Dr. Guzman's evaluation or treatment details, the record establishes that treatment was provided. Moreover, there is no contention that the treatment did not result from Dr. Guzman's psychological evaluation of mother, or that Guzman's treatment was not tailored to mother's particular mental health problems.

Mother cites no evidence and makes no specific contention that an additional psychological evaluation would have resulted in different medication, different therapy, or have had any impact on the mental health treatment actually provided.

The writ is denied.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Raymond D. Mireles, Judge*

Superior Court County of Santa Barbara

______________________________

Daralyn Balden for Petitioner.

No appearance for Respondent.

Stephen Shane Stark, County Counsel, Gustavo E. Lavayen, Chief Deputy, for Real Party in Interest.

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[1] All statutory references are to the Welfare & Institutions Code.

* Retired Judge of the Los Angeles Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)