Shannon W. v. Contra Costa Co. Children & Fam. Serv.

Filed 6/12/07 Shannon W. v. Contra Costa Co. Children & Fam. Serv. Ca1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Shannon W. (Mother) challenges an order of the Contra Costa County Superior Court, Juvenile Division, which set a hearing under Welfare and Institutions Code section 366.26[1] to select a permanent plan for M. G. (born November 2005). She claims there was insufficient evidence to support two of the juvenile courts prerequisite findings. As discussed below, we disagree and deny her petition on the merits.[2]

Background

On November 10, 2005, not long after her birth, the Contra CostaChildren & Family Services Bureau (Bureau) filed a petition to establish dependency jurisdiction over M. G. The petition noted the Bureau had taken M. G. into protective custody on November 8, 2005, and alleged Mother was presently unable to provide support because she was under custodial arrest for an alleged violation of Penal Code section 266j.[3] ( 300, subd. (b).) The petition also alleged that Mother, while in the final month of her pregnancy before giving birth to M. G., had placed M. G.s half-sibling, H. G. (born January 2002), at risk by solicit[ing] sexual services for money in an online advertisement for both herself and her three-year-old daughter. ( 300, subd. (j).) Days later the juvenile court formally detained M. G. At the jurisdictional hearing on February 2, 2006, the court sustained an amended allegation under section 300, subdivision (j), which stated Mother had solicited sexual services online [and] showed poor sexual boundaries and judgment, which placed the child at risk. The court made its dispositional orders on June 9, 2006, continuing M. G. in out-of-home care.

On December 12, 2006, the court began what was, in effect, a combined six-month review hearing under section 366.21, subdivision (e) and a 12-month permanency hearing under section 366.21, subdivision (f). After the conclusion of that hearing on March 27, 2007, the court entered an order terminating Mothers reunification services and setting the matter for a hearing under section 366.26 to select a permanent plan for M. G. This petition followed. ( 366.26, subd. (l); rule 8.450.)

Discussion

A. Risk of Detriment

At a 12-month permanency hearing, the trial court must order the return of the child to the physical custody of his or her parent . . . unless [it] finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker [has] the burden of establishing that detriment. ( 366.21, subd. (f).)

In adopting the Bureaus recommendations as to M. G., the juvenile court made the foregoing finding of a substantial risk of detriment. Mother contends the finding is not supported by the evidence. She urges this determination was based on the courts profound disapproval of Mothers conduct at the time of M. G.s initial removal, such that it improperly failed to consider evidence of Mothers progress during the period under review.

Mothers argument on this point consists largely of a critique of the manner in which the juvenile court weighed the evidence and assessed the credibility of certain witnessesincluding Mother. We emphasize, however, that we must accept the juvenile courts resolution of issues concerning the credibility of witnesses and conflicts in the evidence. (See In re Heather A. (1996) 52 Cal.App.4th 183, 193.) Our task is not to reassess credibility or reweigh the evidence, but to examine the record to determine whether the challenged finding is supported by substantial evidence. (See Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705; In re Heather A., supra, at p. 193.) In doing so we view the evidence in the light most favorable to the juvenile courts ruling, and indulge all reasonable inferences in its favor. (See, e.g., In re Monica C. (1995) 31 Cal.App.4th 296, 306.)

A psychological evaluation admitted at the hearing and considered by the court was conducted in June 2006 and completed five months later. In his report, the evaluating psychologist reviewed the events leading to the Bureaus intervention. In October 2005 Mother had posted an advertisement on an Internet site, offering sex for money. In an online exchange of email, a prospective client asked if Mothers daughter could be included in their sexual transaction, and Mother agreed.[4] Mother admitted she had placed the ad and had engaged in prostitution, but denied any participation in the online exchange concerning her daughter. She maintained someone had set her up, using her email ID and password to impersonate her. She persisted with this claim even after the psychologist confronted her with the fact that investigators had determined the messages attributed to her had originated from her computerif someone had used her ID and password, they would also have had to use her computer. The psychologist reported that he subsequently learned Mother had admitted to her therapist that she had, in fact, written the messages. The psychologist observed that Mother did not appear to grasp the severity of [her] circumstances, and that it was somewhat difficult to tell if [she was] in deep denial, [was] consciously evasive to avoid consequences, or . . . quite genuinely [saw] little [that was] inappropriate about the direction her life ha[d] gone.

The results of tests the psychologist gave Mother indicated to him that she may know the right things to say but has trouble reading cues and thinking through . . . consequences, resulting in poor decisions and inappropriate behavior. Her test responses also demonstrated a poor capacity to develop empathy or respond to the needs of others. The psychologist concluded Mother remain[ed] vulnerable to not perceiving risks to her children or not being able to adequately protect them, despite some progress in her therapy. She was at risk of reverting to potentially dangerous behaviors if faced with financial difficulties, and at even greater risk of doing so to meet her own emotional needs. As the psychologist put it, it was difficult to unlearn the lesson of substituting sexual encounters for real intimacy. He stated that [t]he fact [she] could conceive of having a conversation about sexually exploiting [H. G.], even if she did not intend to follow through, demonstrates the risk that exists for her children if she herself is in a vulnerable position.

The psychologist concluded he would have been hesitant to recommend reunification efforts on the basis of his own testing and evaluation. However, given reports he had received from Mothers therapist, to the effect that she was making progress, he cautiously concur[red] with that therapists recommendation for a monitored, incremental reunification plan. Even so, he warned that providers should be alert to any indication that she is superficially parroting appropriate behaviors without genuinely incorporating changes in beliefs and attitudes.

Mothers therapist testified at the hearing. She agreed Mother was at risk of entering into exploitive relationships that could put her children at risk. While she said Mother had made progress in that area, she also stated they would be doing more work on that issue.[5]

In the Bureaus report prepared for the review hearing, completed in late October 2006, the case worker noted Mother had become upset and had walked out of several visits, placing her own feelings before the well-being of her children, and had thus failed to meet the objectives that she be supportive and nurturing of her children and show an ability to meet their emotional needs. The report also stated Mother had not sufficiently acknowledged responsibility for her actions leading to her childrens removal and the impact of those actions. Specifically, Mother had led her own mother to believe that the prostitution was men just helping her out with money, and that the online conversation, through which Mother had offered her daughter for sexual services, was all a mistake. The case worker stated Mother remained mentally unstable, as evidenced by her continuing emotional outbursts.

When called to testify at the hearing, the case worker reiterated her views, stating that, while Mother had participated in her case plan, she had not shown progress in being able to keep the children out of risk. In her view Mother remained too unstable. Throughout the case, she had demonstrated denial, untruthfulness, and a tendency to become overwhelmed at things that mothers just have to deal with.

Finally we observe that Mothers court-ordered reunification plan, adopted at the dispositional hearing in June 2006, required that she not permit others to sexually abuse her daughters, acknowledge her responsibility for the actions that led to the courts dependency jurisdiction, demonstrate she was nurturing and supportive of her daughters when she visited them, show she could meet her daughters physical and emotional needs, and comply with psychological treatment. In the report prepared for the review hearing, the case worker concluded that, for the reasons stated in her report, Mother had not met the objective to acknowledge responsibility for her actions, or the objectives to demonstrate that she could be supportive of her children and meet their emotional needs. She also suggested that Mothers emotional outbursts evidenced a lack of significant progress in her psychological treatment.

The failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return [of the child] would be detrimental. ( 366.21, subd. (f).) Given the foregoing evidence, we are satisfied the Bureau made a prima facie showing that Mother had failed to make such progress during the period under reviewor, as the juvenile court put it, that Mother had not really changed. Accordingly, we conclude there was substantial evidence to support the juvenile courts finding that returning M. G. to Mothers custody would create a substantial risk of detriment to [her] safety, protection, or physical or emotional well-being. ( 366.21, subd. (f).)

B. Reasonable Reunification Services

At a 12-month permanency hearing the juvenile court must determine whether reasonable services . . . designed to aid the parent . . . to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent . . . . ( 366.21, subd. (f).) The court must find by clear and convincing evidence that [such] reasonable services [were] provided or offered to the parent, before it may set a hearing under section 366.26. ( 366.21, subd. (g)(2).)

Again, the juvenile court adopted the Bureaus recommended finding that, by clear and convincing evidence, it had provided or offered reasonable services to Mother. Mother argues the Bureau did not provide reasonable services because (1) delay in the completion of the court-ordered psychological evaluation and disputes over visitation and placement issues effectively deprived her of any opportunity to engage in treatment responsive to the evaluations diagnosis or to make appropriate interim changes in her case plan, (2) limits on her visitation with M. G. deprived her of sufficient opportunity to demonstrate her parenting skills and develop a close relationship with her infant daughter, (3) the Bureau failed to offer family therapy involving Mother, M. G., and her half sibling H. G., and (4) hostility on the part of her case worker prevented the latter from assessing Mothers progress objectively.

Our sole task is to determine whether substantial evidence supports the challenged finding. (In re Monica C., supra,31 Cal.App.4th at p. 306.) The substantial evidence standard applies to our review even though the juvenile court was required to utilize the higher standard of proof by clear and convincing evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) That is, we consider whether substantial evidence would permit a reasonable trier of fact to make the finding by clear and convincing evidence standard of proof. (In re Andrea G. (1990) 221 Cal.App.3d 547, 552.) In doing so we view the evidence in the light most favorable to the juvenile courts determination, resolving conflicts and indulging all reasonable inferences in favor of the challenged finding. (See In re Julie M. (1999) 69 Cal.App.4th 41, 46.)

Reunification services provided or offered to a parent may be deemed reasonable when the evidence shows the case plan identified the problems leading to the loss of custody, the offered services were designed to remedy those problems, and the agency maintained reasonable contact with the parent and made reasonable efforts to assist that parent in areas in which compliance proved difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)

We have summarized above the primary objectives in Mothers case plan, and conclude these adequately identified the problems leading to the loss of custody. Mothers responsibilities under the plan included the following: To complete a psychological evaluation and follow the recommendations of the evaluator; to participate in weekly therapy sessions, individual and group, both for general counseling and to address issues relating to Mothers actions leading to her loss of custody; to participate in family therapy with her children, if recommended by the childrens therapist; and to complete a parenting class successfully. In our view these appear to be reasonably designed to remedy the identified problems, and the record indicates Mother received services to accomplish these responsibilities. Mother did receive individual therapy and attended a group focusing on sex or love addiction. H. G.s therapist conducted three family therapy sessions with Mother and H. G. M. G. was clearly too young to participate in or benefit from these sessions. It is further apparent that Mother received adequate, if supervised, visitation, and that the case worker maintained reasonable contact with her.

The standard is not whether the Bureau could have provided better services in an ideal world, but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) We conclude there was substantial evidence to permit a reasonable trier of fact to find by the clear and convincing evidence standard that the Bureau provided Mother with reasonable services under the circumstances.

Disposition

The request for stay is denied, and the petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI,  14; Kowisv. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd.v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Rule 8.264(b)(3).)

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STEIN, Acting P. J.

We concur:

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SWAGER, J.

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MARGULIES, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

Shannon W. v. Superior Court (A117476)

[1] Further statutory references are to the Welfare and Institutions Code unless otherwise indicated. References to rules are to the California Rules of Court.

[2] Section 366.26, subdivision (l)(1)(A) bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. ( 366.26, subd. (l)(4)(B).)

[3] It appears Mother was later released and this charge was never prosecuted.

[4] While the ad did not mention H. G., it described Mother as a Mom who was fully lactating, thus suggesting she lived with a least one young child.

[5] We note the juvenile court later commented it had found this therapist to have a lot of empathy for Mother, which in its view had colored the credibility of her testimony regarding the extent of Mothers progress.