C.R. v. Superior Court
Filed 7/3/07 C.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
C.R., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; | D050579 (San Diego County Super. Ct. No. EJ2589E) |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest. |
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Gary M. Bubis, Judge. Petition granted.
C.R. (Mother) seeks review of juvenile court orders terminating family reunification services and setting a hearing under Welfare and Institutions Code section 366.26.[1] She contends the evidence is insufficient to support a finding of detriment, as that standard is defined in David B. v. Superior Court (2004) 123 Cal.App.4th 768 (David B.). We grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
B.T. was born in May 2005. On May 31, 2005, the San Diego County Health and Human Services Agency (Agency) filed a petition alleging B.T. was at substantial risk of harm because her parents could not provide her with regular care.[2]( 300, subd. (b).) Two weeks earlier, after Mother threatened to harm herself, the Agency had detained B.T.'s four older siblings and placed them in the care of their maternal grandmother.
In its initial case plan, the Agency asked Mother to resolve concerns about her mental health condition, identified as depression, and domestic violence, and to show she could provide a safe environment for herself and her children. Her case plan required her to participate in a parenting class, a domestic violence group for victims and individual counseling.
B.T. was born approximately one month early and had respiratory problems. When she was one week old, the Agency placed her in a foster home licensed to care for medically fragile children. At three weeks of age, B.T. had "herpes meningitis, encephalitis," resulting in seizures, cortical vision delay, herpes outbreaks, and developmental delays. Her care necessitated daily medication, regular medical visits, and occupational (OT) and physical therapy (PT).
Mother complied with services. In December 2005 the Agency reported that she attended all of B.T.'s medical appointments, which were scheduled every two to three weeks, and regularly telephoned the foster mother to check on B.T.
In April 2006 Mother gave birth to a healthy child. The Agency determined there were no protective issues, and the child remained in her care.
The maternal grandmother died in August 2006. The Agency placed the four older children with Mother. The social worker reported that after a difficult transition, Mother appeared to be meeting the older children's needs and they were happy in her care. B.T. had weekly overnight visits in the home. In October the Agency allowed weekend overnights. In January 2007 the Agency expanded B.T.'s home visits to four or five days each week. Except for a brief period late in her pregnancy, Mother attended all of B.T.'s medical and OT/PT appointments.
The contested 18-month review hearing was held on February 26, 2007. The social worker testified that Mother's care for B.T. was appropriate and there were no safety risks to B.T. in the home. However, the social worker believed it would be "better" if B.T. did not return to Mother's care at that time. Mother was the sole caregiver for five children, ages 10 months and 2, 9, 12, and 14 years old, and she was five months pregnant with her seventh child.
The social worker opined that Mother was caring appropriately for her children, but appeared "overwhelmed." Although the social worker believed Mother "[did] well" caring for B.T. during the extended visits, she was concerned Mother would not be able to meet B.T.'s special needs in the long-term, specifically, that Mother would not be able to manage B.T.'s medical appointments and meet with in-home workers and OT/PT and California Early Start Program providers.
In early February 2007, Mother did not take B.T. for a scheduled neurological evaluation. She did not return telephone calls promptly, and was not as receptive to the in-home services worker as the Agency would have liked.
The social worker was also concerned about a recent allegation that B.T.'s father tried to assault Mother at his parents' home while the children were present. The Agency recommended the court terminate reunification services and set a permanency planning hearing, with adoption as the likely goal.
Mother testified B.T. had not had a seizure in six months. She rescheduled B.T.'s neurological assessment to attend an "AFDC" appointment.[3] Had she missed the appointment, she would have lost medical care for the children and would not have been able to pay the rent or buy food. Mother rescheduled the neurological assessment for March 13, 2007. She took B.T. to her well-baby pediatric check-up on February 23. B.T.'s walking had progressed, and she no longer required physical therapy. Mother believed B.T.'s eyesight was improving because B.T. followed her around the house and would be "right behind you real quick."
Mother did not return telephone calls from the in-home services worker because she did not need his referrals for food banks and support groups. She denied having contact with B.T.'s father and stated the recently alleged incident occurred in May 2005.
L.R., Mother's sister, testified she was willing to transport Mother and B.T. to B.T.'s medical appointments, or let Mother use her car.
The court stated the case was difficult because the evidence supported two decisions, depending on the definition of detriment. Had B.T. been a child without special needs, there would have been compelling evidence to return her to her mother's care. Here, the court determined it would interpret detriment broadly. Mother was a single parent with "three or four children now under the age of two." She was dependent on welfare checks and government assistance, and would need to make appointments to maintain those services. If Mother did not take B.T. to her medical appointments, B.T. might have a seizure or face a life-threatening situation.
The court terminated reunification services and set a section 366.26 hearing. It found that Mother made substantive progress with the provisions of her case plan and directed that no changes be made to the extended visitation schedule. The court stated it would like to see Mother file a section 388 petition to allow her to show that, with her sister's help, she was able to take B.T. to all her scheduled appointments.
Mother 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. On June 20, 2007, this court stayed the section 366.26 hearing.
DISCUSSION
A
Mother contends the Agency was required to show there was an actual risk of detriment to the child, and that the standard of detriment "must be construed as a fairly high one." (David B., supra, 123 Cal.App.4th at p. 789; Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 505.) She asserts the reasons for not returning B.T. to her physical custody were speculative, and the Agency did not meet its burden to show there would be a substantial risk of detriment to B.T. were she returned home.
The Agency acknowledges Mother substantially complied with her case plan and made substantive progress with its provisions. The Agency contends the risks to B.T. were not equivalent to the "minor quibbles" criticized as insufficient to terminate reunification services in David B., supra, 123 Cal.App.4th at p. 772. It asserts Mother does not meet her burden on review to show there is no substantial evidence to support the court's findings and orders.
B
When the findings and orders of a trial court are challenged on the grounds of insufficient evidence, we review the evidence in the light most favorable to the trial court's determinations, resolve all evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable inferences to uphold the trial court's findings. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880.) We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. (In re S.C. (2006) 138 Cal.App.4th 396, 415.) The party challenging the findings and orders of the trial court has the burden to show there is no evidence of a substantial nature to support the finding or order. (See In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
" 'Substantial evidence is' evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value.' Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633, quoting Estate of Teed (1952) 112 Cal.App.2d 638, 644." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) "Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. Louis & Diederich, Inc. v. Cambridge European Imports, Inc. (1987) 189 Cal.App.3d 1574, 1584-1585; Marshall v. Parkes (1960) 181 Cal.App.2d 650, 655." (Ibid.)
C
The purpose of the California dependency system is to protect children from harm and to preserve families when safe for the child. ( 300.2; In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The focus during the reunification period is to preserve the family whenever possible. (Rita L. v. Superior Court, supra, 128 Cal.App.4th at p. 507; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788; In re Michael R. (1992) 5 Cal.App.4th 687, 695-696.) Until services are terminated, family reunification is the goal and the parent is entitled to every presumption in favor of returning the child to parental custody. (David B., supra, 123 Cal.App.4th at p. 788; see 326.21, 326.22.)
At the 18-month review hearing, the court must return the child to the physical custody of his or her parent unless the Agency proves, by a preponderance of the evidence, that return to the parent would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child (detriment finding). ( 366.22, subd. (a); see In re Marilyn H. (1993) 5 Cal.4th 295, 308; In re Jasmon O. (1994) 8 Cal.4th 398, 420.) The failure of the parent to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return would be detrimental. ( 366.22, subd. (a).)
We agree with our colleagues that "a substantial risk of detriment," although vaguely worded, must be construed as a fairly high standard. (David B., supra, 123 Cal.App.4th at p. 789.) A detriment finding at an 18-month review hearing provides the grounds to terminate reunification services, set a permanency hearing, and justify the State's permanent intervention in the parent-child relationship, including termination of parental rights. ( 366.22; 366.26; cf. Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256 ["By the time of the section 366.26 hearing, no state interest requires further evidence of the consequences to the child of parental unfitness . . . ."].)
Therefore, a finding of detriment "cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member." (David B., supra, 123 Cal.App.4th at p. 789.) At a review hearing, the issue is whether placing the child in parental custody represents some danger to the child's physical or emotional well-being. (Id. at p. 788.)
D
The Agency contends the court's detriment finding is supported by evidence showing B.T. required regular medical care and therapy and its concerns about Mother's ability to properly attend to B.T.'s medical needs. The Agency argues that its concerns are not speculative, but are based on Mother's failure to take B.T. to a long-scheduled neurological evaluation, her lack of compliance with individual therapy and her delay in setting up in-home family services. The Agency further asserts the recent allegation of attempted domestic violence also supports a finding of detriment.
The record shows that Mother had resolved the issues that led to the dependency. She maintained a safe home for her children and did not permit them to have contact with B.T.'s father.[4] We can find no evidence in the record to indicate Mother did not resolve her mental health problems.[5] Although the social worker believed Mother "may be feeling overwhelmed," she did not express any concerns about her mental health and noted that Mother had "a wonderful disposition." The court found that Mother was adequately caring for five children, and commented, "I think it's phenomenal that it appears that [Mother] is taking care of all these kids. It may be an absolute minimum standard, but she is taking care of these kids."
The record also establishes that Mother adequately cared for B.T. during her extended visits. There are no concerns in the record about Mother's ability to properly administer B.T.'s medications, feed her, clothe her or provide for her safety in the home. The evidence shows that B.T. was not a physically fragile child; she enjoyed "rough and tumble play" and benefited from contact with her siblings. The court stated that were it not for B.T.'s special needs, there would be compelling evidence to return B.T. to her mother's custody.[6] ( 366.26, subd. (a) [the statutory presumption is for return to parental custody; the burden of proof is on the Agency to show detriment].)
We agree with the Agency that a risk of detriment to the health and safety of a special needs child is not a "minor quibble" of the type criticized in David B., supra, 123 Cal.App.4th at p. 772. However, the plain language of the statute states the risk of detriment must be substantial, meaning "of ample or considerable amount, . . . tangible, real." ( 366.22, subd. (a); Random House Unabridged Dict. (2d ed. 1993) p. 1897, col. 1.) A detriment finding may not be based on conjecture or speculation, and must be supported by evidence that is reasonable, credible and of solid value. (Roddenberry v. Roddenberry, supra, 44 Cal.App.4th at p. 651.)
For purposes of review, we accept the social worker's observation that Mother appeared "overwhelmed" by the demands of caring for her children, while pregnant, with little support and limited financial resources. We draw the reasonable inference that, on occasion, the family's needs or the needs of a sibling may impact the care and attention Mother is able to provide B.T. To determine whether there is substantial evidence to support an inference that these circumstances would create a substantial risk of detriment to B.T., we review the record for evidence concerning the risks associated with her medical condition, prognosis, and on-going treatment needs.
Surprisingly, given the extensive medical services provided to B.T. throughout the case, the record contains little medical information. There are no medical reports or opinions in the record. The limited medical information in the Agency's status review reports is based on information provided by the foster mother or Mother. The only evaluation in the record consists of five pages of a nine-page developmental assessment completed by the California Early Start Program in May 2006, when B.T. was 11 months old.
In a brief medical history provided by the foster mother, the evaluators noted that B.T. had "herpes meningitis, encephalitis [with] seizures at 3 [weeks] old."[7]She had cortical visual delay, suffered periodically from herpes outbreaks, and was administered medication several times a day to control seizures. The record does not contain any description of the nature, frequency or duration of her seizures.[8] The evaluators noted that B.T. did not require medical equipment and/or procedures. At age two, she was to be evaluated for eyeglasses. Her medical care was provided by a primary physician, a vision specialist and a neurologist.
According to Agency reports, B.T. was also monitored by an infectious disease specialist. She underwent lumbar punctures and blood draws "for her meningitis." By June 2006, B.T. had had three lumbar punctures. All three tests were negative. There are no further references to that procedure in the record, or any indication another procedure will be required. By February 2007, B.T.'s well-baby pediatric visits were scheduled every three months. Other than a recommended evaluation for eyeglasses at age two, we cannot determine from the record how often B.T. will need to consult with medical specialists.
Significantly, the record shows that except for a short period late in a pregnancy, Mother attended all B.T.'s medical appointments during the 21-month reunification period. She arrived on time, asked appropriate questions of medical personnel, and was apprised of B.T.'s condition and needs. On this record, we cannot infer Mother will be unable to take B.T. to her medical appointments. The mechanics of arriving on time to a medical visit are essentially the same whether she has B.T. with her or meets her at the physician's office. Further, there is nothing in the record to show B.T. was harmed or placed at substantial risk by the short delay caused by rescheduling her neurological assessment. Mother took B.T. to a pediatric well-baby check-up approximately two weeks after the cancelled appointment, and no changes to or concerns about B.T.'s current health are noted in the record.
The court found that a failure to take B.T. to a medical appointment "exactly where she needs when she needs it" might result in a life-threatening situation or a seizure. We are aware of the basic requirement that a reviewing court must construe all inferences in favor of the factual conclusions reached by the trial court. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) But those conclusions must be based upon substantial evidence which appears in the record. (David B., supra, 123 Cal.App.4th at pp. 794-795.) In the absence of any substantive medical information about B.T.'s diagnosis, prognosis, risks and long-term treatment needs, we cannot conclude the court's finding is supported by substantial evidence.
The Agency also contends Mother's delay in setting up OT/PT and Early Start services is indicative of her inability to properly meet B.T.'s needs. On February 16, 2007, Mother was given paperwork to complete to enroll B.T. in an Early Start program scheduled to begin in the fall. On February 18, the foster mother asked her to call both the OT and PT therapists to schedule half-hour assessments on February 28. The 18-month review hearing took place on February 26. There is no evidence in the record to show Mother did not make the OT/PT appointments as requested, or to show she missed a deadline to apply to a program that did not start for six or seven months.
Of greater concern is Mother's report that her cell phone service was not on during the time the Early Start provider was trying to contact her to set up in-home therapy visits. Although the issue was not raised by the parties, we believe the caregiver of a medically fragile child should have immediate access to reliable telephone service. However, this is a service issue that can be addressed by the Agency.[9]
Through our research outside the appellate record, we are aware that neonatal herpes meningitis is a serious illness with potentially devastating consequences. (Review,
supra,
At the 18-month hearing, if a parent has complied with the requirements of the case plan and made substantive progress, the Legislature has established a presumption that the child will be returned to parental custody. ( 366.22.) This presumption is overcome only by a finding that return of the child would create a substantial risk of detriment, a fairly high standard. (David B., supra, at 123 Cal.App.4th at p. 789.)
Here, the record shows Mother attended almost all of B.T.'s medical appointments during the 21-month dependency proceeding. She rescheduled one appointment for a valid reason. Mother was consistently involved with B.T.'s medical care and treatment. The court determined that she was taking adequate care of all her children, and found it remarkable. The social worker observed that Mother "[did] well" in caring for B.T. four or five days a week. The court found that Mother complied with the provisions of her service plan, made substantial progress, and demonstrated her ability to properly care for her children.
The record does not contain expert medical opinion or other substantive evidence concerning the risks to B.T. associated with her medical condition, prognosis, and long-term treatment needs. Therefore, on this record, we cannot conclude that substantial evidence supports the finding that return to the physical custody of the parent would create a substantial risk of detriment to B.T.'s safety, protection, or physical or emotional well-being. ( 366.22, subd. (a); David B., supra, 123 Cal.App.4th at pp. 788-789.)
E
Because we grant the relief requested in the petition, we need not consider Mother's contention the court should have continued the reunification period past the 18-month review date.
DISPOSITION
Let a writ of mandate issue directing the superior court to vacate its findings and order terminating reunification services and setting a permanency planning hearing under
section 366.26, and enter a new order returning the child to the custody of her mother under a plan of family maintenance services. The stay issued June 20, 2007 is vacated.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
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[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.
[2] B.T.'s alleged father does not appeal, and is mentioned only when relevant to the issues raised in this writ.
[3] "AFDC" refers to the federal program Aid to Families with Dependent Children. That program was supplanted by the Temporary Assistance for Needy Families program (TANF). (Pub.L. No. 104-193 (Aug. 22, 1996) 110 Stat. 2105.)
[4] B.T.'s alleged father was the presumed father of three of her older siblings. The Agency reported that Mother understood the need to protect her children from the father, who had a history of substance abuse, domestic violence, serious criminal convictions and repeated incarcerations.
[5] With respect to the Agency's argument that Mother's lack of participation in individual therapy placed B.T. at risk, we note that the court found that Mother substantially complied with her case plan, and needed "nuts and bolts" services such as transportation assistance.
[6] We infer from the court's remarks that it did not consider the uninvestigated allegation of domestic violence to be a credible risk factor. The risk of on-going domestic violence would apply to all the children in the household. The social worker acknowledged the Agency did not file a section 387 petition to remove the other children because the incident had not been investigated. In the status review reports, there are no other reports of contact between Mother and B.T.'s alleged father. Because the allegation of domestic violence is not supported by any other evidence in the record, we conclude the uninvestigated allegation does not constitute substantial evidence of detriment.
[7] According to the Merck Manual of Diagnosis and Therapy (18th ed. 2006) (Merck), neonatal herpes simplex virus (HSV) is likely to result in severe neurologic conditions and may cause encephalitis. (Merck, supra, at p. 2328, col. 2, p, 1851, col. 1, p. 1852, col. 2.) HSV is usually transmitted from the mother to the neonate during delivery, but may be spread from one neonate to another by hospital personnel or family. (Id. at p. 2328, at col. 1)
"HSV infection in the newborn period can be a significant source of mortality and morbidity. The prognosis of HSV is related to the classification of the disease and early initiation of treatment." (Parker & Montrowl, Neonatal Herpes Infection: A Review (2004) Medscape, www.medscape.com/viewarticle/472408-1> (as of June 21, 2007) (Review).) Depending on the type of HSV infection, morbidity normal development at 24 months ranged from 30 percent for children with Central Nervous System (CNS) disease to 98 percent for children with Skin, Eyes and Mouth (SEM) disease. (Id. at p. 8.)
[8] According to the U.S. National Library of Medicine and National Institutes of Health, "[t]here are a wide variety of possible symptoms of seizures, depending on what parts of the brain are affected. Many types of seizures cause loss of consciousness with twitching or shaking of the body. However, some seizures consist of staring spells that can easily go unnoticed. Occasionally, seizures can cause temporary abnormal sensations or visual disturbances.
"Seizures can generally be classified as either 'simple' (no change in level of consciousness) or 'complex' (change in level of consciousness). Seizures may also be classified as generalized (whole body affected) or focal (only one part or side of the body is affected)." (MedlinePlus, a service of the U.S. Nat. Library of Med. and NIH,
Here, the evidence shows B.T.'s seizures were controlled by medication, which Mother properly administered. The appellate record does not permit us to make any other conclusions or inferences concerning her seizures.
[9] The court stated that it was not certain of the availability of the "nuts and bolts type of [family maintenance] services" Mother needed. Section 16501, subdivision (a)(1) provides that:
"Child welfare 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." (Ibid.; see also 16501, subd. (a) [child welfare services include family maintenance services].)
As the trial court noted, this record does not contain an assessment of available family maintenance services. We would expect that when the parent has complied with the requirements of the case plan and made substantial progress, the Agency would inform the court of the availability of in-home services, especially those that might mitigate any potential risk to the child in the home.
Here, it appears the family might benefit from the availability of emergency in-home caretakers, respite care, therapeutic day services and transportation. ( 16501, subd. (a)(1).) Public health services might also be available. B.T.'s pre-school age siblings might be eligible for HeadStart or another day care program. The Agency might include family and extended family members, such as Mother's sister, sister-in-law, and paternal grandparents, in developing a support system for the family, and define the limits of the responsibilities of B.T.'s teenage siblings. The Agency might also help Mother identify community programs, clubs, and/or faith-based programs that offer volunteer support services to families.
