D.E. v. Superior Court

Filed 7/6/07 D.E. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

Background

In September 2005 the Social Services Agency for Riverside County filed a petition to establish dependency jurisdiction over two-month-old Z. E. The petitions allegations, made under section 300, subdivisions (b) and (g), stated Mother lacked parenting skills as evidenced by her inability to provide Z. E. with adequate food, diapers, clothing, shelter, and medical treatment, and that the alleged father had failed to provide care and support. The Riverside County Juvenile Court formally detained Z. E. on September 22, 2005. At the jurisdictional hearing the following month, that court sustained the petitions allegations. Mothers parents resided in Humboldt County and she had expressed a desire to return and live with her father. The court accordingly directed that the matter be transferred to Humboldt County for further proceedings.

The juvenile court in Humboldt County accepted the transfer in December 2005. At the dispositional hearing on January 11, 2006, that court continued Z. E. in out-of-home care, adopted the case plan recommended for Mother by the countys Department of Heath and Human Services (Department), and formally ordered reunification services for Mother. At that time Mother was living with her father in Myers Flat, Humboldt County, and the Department had begun efforts to transfer Z. E. from her placement in Riverside County to a suitable placement in Humboldt County.

The objectives set out in the adopted case plan called for Mother to demonstrate that she could adequately attend to her childs health, safety, and well-being, demonstrate her ability to meet her childs physical, emotional, medical, and educational needs, show a knowledge of age-appropriate behavior for her child, and obtain and maintain a stable and suitable residence for herself and her child. To assist Mother in achieving these goals, the plan required that she complete an evaluation to assess her current mental health and need for medication, if any, to comply with the evaluators recommendations, and to participate fully in a parenting skills development program. Once Z. E. was placed in Humboldt County, the plan also called for Mother to participate in regular supervised visitation. These case plan requirements were later updated to include individual therapy.

At both the six-month status review hearing, held in March 2006, and the 12-month permanency hearing, held in September 2006, the court directed that Z. E. continue in her out-of-home placement and that Mother continue to receive reunification services. However, on April 23, 2007, at the conclusion of the 18-month permanency review hearing (the 18-month hearing), the court terminated Mothers services and then set the matter for a hearing under section 366.26 to select a permanent plan for Z. E. This petition followed. ( 366.26, subd. (l); rule 8.450.)

Discussion

A. Risk of Detriment

At the 18-month 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. ( 366.22, subd. (a).) The juvenile court made such a finding in this case, before it ordered the termination of Mothers services and scheduled a hearing under section 366.26.

Mother contends the finding is not supported by the evidence. In her view, the Departments evidence concerning a risk of detriment to Z. E., should she be returned to Mothers custody and care, amounted merely to a vaguely articulated concern that she had not sufficiently absorbed the information she received concerning parenting. She suggests that the court, in relying on such evidence, improperly disregarded other evidence indicating that she had met or exceeded the requirements of her case plan. She also claims the court ignored evidence indicating that she did not pose a risk of detriment to Z. E., specifically, evidence that she had been taking proper care of her second child, who was born about two weeks before the 18-month hearing. Mother also argues that she had legitimate reasons for reducing her visits with Z. E. in the months preceding the 18-month hearing, a circumstance on which the court also relied in making its finding. Specifically, she was in the last trimester of her pregnancy, had to travel over 65 miles one way for each visit, had difficulties with transportation, and was at one point ill with the flu.

In making such arguments, Mother essentially asks that we reweigh the evidence in her favor. Our task, however, is not to reweigh the evidence or reassess credibility issues, 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. (1996) 52 Cal.App.4th 183, 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.)

Because Z. E. was an infant at the time of her initial removal, Mother was generally entitled to six months of reunification services. (See  361.5, subd. (a)(2).) As we have noted, the juvenile court ordered the continuation of services at both the six-month status reviewing hearing and the 12-month permanency hearing. In doing so it necessarily found that Mother was making progress with her reunification efforts such that there was a likelihood she could achieve reunification within the extended period of services. (See  361.5, subd. (a).)

In making these rulings, the court in both instances followed the Departments recommendation. However, in the report prepared for the 12-month permanency hearing, the case worker qualified his recommendation for continued services. Based on the initial psychological evaluation, completed in February 2006, and a letter from Mothers therapist dated September 2006, the case worker noted Mother appeared to have an impaired ability to incorporate the information she was obtaining through her participation in reunification services. The psychological evaluator had noted, among other things, that Mothers general cognitive ability [was] in the Borderline range of intellectual functioning, and that she might experience difficulty in holding information to perform a specific task. He stated she also exhibited a susceptibility to episodes of depression that could interfere with her parenting ability, as well as a less than average interest in other people, which might lead her to be neglectful in responding to [her childs] needs and concerns. Mothers therapist reported that Mother was certainly teachable, but due to a cognitive/learning disorder and personality patterns, needed simple and clear direction, as well positive reinforcement even [for] the slightest improvement and feedback in such a way that mistakes are looked at as ways to learn and not negative. The therapist recommended mentoring in parenting skills that was very specific and structured. She concluded that she was working with Mother on ways to cope with anxiety and uncomfortable affective states that interfere with good decisions, and said Mother needed additional support and time to learn how to be a safe and loving parent while still monitoring and assuring the safety of the child. Thus, Mothers successful reunification by the time of the 18-month hearing was by no means a foregone conclusion. As the case workers supervisor (supervisor) later testified, there had been concern all along . . . about [Mothers] ability to integrate what she [was] learning.

The Departments report for the 18-month hearing was completed in late March 2007. By this time Mother had successfully secured suitable housing and stable, full-time employment in the Garberville area. Mother was also still participating in parenting classes, in which the instructor was regularly giving Mother additional, individualized instruction in order to help Mother relate the information presented in the class to her particular situation. This instructor, however, had reported to the case worker that it was still unclear whether Mother understood and could apply the information presented to her. Similarly, the foster caregiver, who had been mentoring Mother in parenting skills since the 12-month permanency hearing, reported Mother still had difficulty applying [her] training to situations as they arose. During these mentoring sessions, Mother sometimes performed a task such as changing a diaper, incorrectly, or would ask the caregiver to perform a task rather than attempting it herself. The caregiver related two additional examples. After giving Mother training on the purpose and use of a child safety seat, Mother still asked at times to just hold [Z. E.] on her lap instead of placing her in the safety seat before traveling in a vehicle. The caregiver had also warned Mother not to give Z. E. dairy products, which she could not digest well, yet Mother had several times given the child cheese, yogurt, or milk, during the course of unsupervised visits. A public nurse provider had also reported to the case worker that Mother did not seem to understand some things, such as the need to help Z. E. brush her teeth on a regular basis.

The case worker reported that, beginning in September 2006, Mothers visitation had become unsupervised and these visits were initiated at the home of the foster caregiver rather than the Departments facility. The foster caregiver had offered Mother unsupervised visits on Tuesdays and Fridays, and had encouraged Mother to call and arrange additional visits whenever she could. She had also encouraged Mother to take more time with her unsupervised visits. Mother declined to increase the time of each visit, however, telling the caregiver at one point that an unsupervised visit longer than two hours would be too much for her. The supervisor later testified that this raised some concern whether Mother could adequately care for Z. E. full time. Nor did Mother increase the number of her visits. Testimony from one provider indicated Mother had arranged to visit only on Fridays. Moreover, the case worker reported that Mothers visits began to decline in November 2006. Her weekly visits decreased to two visits per month, then ceased altogether in early February 2007. The supervisor testified to the effect that increased, rather than decreased, visitation was essential for Z. E.s emotional well-being in the event that she was to make a transition from foster case to Mothers care.

Further, although Mother had told the case worker she still desired to reunite with Z. E., she told the foster caregiver at one point that she was not ready to take care of [Z. E.] and the new baby as well. Mothers therapist told the case worker that Mothers decline in visits might be a way of distancing herself emotionally from [Z. E.]. This view was echoed by the public nurse provider, who reported that Mother sometimes referred to Z. E. as the kid, rather than by name, which to the nurse indicated a disconnect in the bonding process.

The case worker accordingly concluded that, despite Mothers efforts, she had achieved only limited success in improving her parenting skills, and that her ability to meet the case plan objectiveto demonstrate that she could meet Z. E.s needswas still impaired. There was, in her view, a substantial risk of detriment to Z. E. were she to be returned to Mothers custody by March 22, 2007, the date 18 months after Z. E.s initial removal from Mothers physical custody. The juvenile court agreed, citing to the foregoing evidence as the factual basis for its finding of detriment.

It is clear, as the juvenile court noted, that Mother was cooperative and made commendable efforts to meet the requirements of her case plan. But her completion of the technical requirements of her case plan was not sufficient of itself. (See In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141.) Evidence that a parent has not made substantive progress in court-ordered programs, despite full participation in such programs, is sufficient to support a finding that the return of the minor to that parent would create a risk of detriment to the child. (See  366.22, subd. (a); In re Dustin R., supra, at pp. 11411142.) We conclude the foregoing evidence, viewed in the light most favorable to the juvenile courts ruling, provides substantial support for that courts finding that returning Z. E. to Mothers custody would create a substantial risk of detriment to [her] safety, protection, or physical or emotional well-being. ( 366.22, subd. (a).)

B. Reasonable Reunification Services

If, after an 18-month permanency review hearing, a dependent child is not returned to his or her parent, the court must, among other things, determine whether reasonable services have been offered or provided to the parent. ( 366.22, subd. (a).) In this case the juvenile court found that the Department has provided or offered reasonable services to Mother.

Mother claims the evidence is insufficient to support this finding. She suggests the services offered were not reasonable because they were not sufficiently tailored to accommodate the deficits in her learning ability, which were identified by both the psychological evaluator and Mothers therapist. She asserts the Department made no changes to her case plan once it received the psychological evaluation noting her limited intellectual functioning. While Mother was eventually referred to an organization that provides assistance with child care, and to the Redwood Coast Regional Center[3] in February 2007, she argues that the Department should have ensured her receipt of such services at an earlier stage of the proceeding. Mother also complains that the Department failed to give her reasonable assistance with visitation, both to accommodate the considerable distance she had to travel for each visit, and also to give her clear warning that she needed to increase rather than decrease her visits to achieve reunification.

[W]ith regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile courts finding that reasonable services were provided or offered. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) We construe all reasonable inferences in favor of the juvenile courts findings regarding the adequacy of reunification plans and the reasonableness of the [Departments] efforts. (In re Julie M. (1999) 69 Cal.App.4th 41, 46.) We likewise resolve conflicts in favor of the challenged findings and do not reweigh the evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)

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 objectives and requirements of Mothers case plan, and conclude the objectives adequately identified the problems leading to the loss of custody. Similarly, the requirements appear reasonably designed to remedy those problems. Clearly Mother received and participated in services to meet her requirements for individual therapy and parenting classes. The record also indicates that she received assistance in meeting the objective of obtaining and maintaining suitable housing. Contrary to Mothers assertion, the Department did incorporate the psychological evaluators recommendations in its update to Mothers case plan adopted at the six-month status review hearingwith the exception of a recommendation that Mother be periodically re-evaluated. The supervisor testified, however, that the evaluator did see Mother a second time, and evidently made no further recommendations for either modified services or additional evaluation. The record also shows that, before the 12-month permanency hearing, when the case worker became concerned that Mother was having difficulty assimilating parenting skills and applying them, he made reasonable efforts to assist Mother in that area by arranging for more individualized training and mentoring. The report prepared for the 18-month hearing discloses that the case worker maintained reasonable contact with Mother, and monitored Mothers progress through contacts with both her therapist and her parenting mentor. The supervisor testified that the Department would have made reasonable efforts to provide more transportation services to accommodate Mothers visitation, but neither Mother nor her counsel ever requested or expressed a need for such additional assistance. She also stated the Department would have provided an earlier referral to the RCRC, but neither the psychological evaluator nor Mothers therapist had recommended such a referral.

Finally, we note that the supervisor admitted it would have been reasonable had the case worker contacted Mother specifically to discuss with her the fact that her decreasing visitation might adversely affect her prospects for reunification. In our view, however, this single lapse does not by itself render the Departments services unreasonable. Mothers case plan required her to visit Z. E. a minimum of five hours every week, which mother ceased to do after October 2006. She was thus clearly on notice that she was not in compliance with her visitation requirements. Nothing in the record suggests that Mothers cognitive deficit impaired her ability to understand this requirement. Reunification is fundamentally a parental obligation and the Departments duty to offer services did not require the case worker to take [Mother] by the hand and ensure her compliance with her minimum visitation requirements. (See In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.)

The standard is not whether the Department 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 support the juvenile courts finding that the Department offered or provided Mother with reasonable services under the circumstances.

In any event, any error in making the finding is necessarily harmless. At the advanced stage of the 18-month hearing the juvenile court was not required to make a positive findingthat there were reasonable servicesbefore proceeding to set the matter for a hearing under section 366.26. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 15111512.) At the section 366.26 hearing, the juvenile court may terminate parental rights [i]f at any prior hearing the court found that reasonable . . . services had been offered. (Rule 5.725(f)(1).) In this case the juvenile court made two such findings, at the six-month status review hearing and the 12-month permanency hearing, and these findings are now final.

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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[1] Further statutory references are to the Welfare and Institutions Code. 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] The case workers supervisor described the Redwood Coast Regional Center (RCRC) as a local organization servicing individuals with developmental disabilities. (See also .) Evidently one purpose of the referral was to determine if Mother might be eligible to enter a supported living program administered by Community Cornerstone, one of the vendors of RCRC.