Araceli S. v. Superior Court

Filed 8/3/07 Araceli S. v. Superior Court CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Placer)

Araceli S. (petitioner), the mother of L. M. (the minor), seeks an extraordinary writ to vacate orders of the juvenile court entered at the six-month review hearing terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26. (Further section references are to the Welfare and Institutions Code.) Petitioner contends she was not provided reasonable reunification services and the juvenile court erred by not ordering additional services. She also claims there was insufficient evidence that there would be a substantial risk of harm to the minor if returned to her care. Disagreeing with these contentions, we shall deny the petition and vacate the stay of proceedings previously granted.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2006, a dependency petition was filed by the Placer County Department of Health and Human Services (the Department) concerning the four-month-old minor, alleging petitioner had tested positive for methamphetamine and that the minors half-sibling, P. M., had been placed into protective custody a year earlier due to domestic violence in the home and petitioners admitted methamphetamine use. According to the jurisdiction/disposition report, petitioner had been arrested in April 2005 for assault with a deadly weapon on the minors father and the parents had a serious history of domestic violence. The petition further alleged that petitioner admitted using methamphetamine during her pregnancy with the minor. Petitioner had been offered services with P. M. but had not participated.

Petitioner utilized a Spanish speaking interpreter during court proceedings. In May 2006, the juvenile court sustained the allegations in the petition and ordered services for petitioner and the minors father as recommended by the Department. Petitioners case plan included parenting classes, a domestic violence group, a substance abuse class and drug testing. The minor, who it was later discovered had various developmental problems, was placed with P. M. in foster care after being removed from a relative placement that was permitting the minors parents to have unauthorized contact with her.

Petitioner began attending Spanish language parenting classes in late August 2006 and regularly attended individual therapy with a Spanish speaking therapist. She had been scheduled to begin the parenting classes earlier but was dropped because she did not verify her enrollment. Petitioner completed a substance abuse assessment in May 2006 but did not sign up for treatment until July and did not begin the program until September. Petitioner submitted to drug testing twice a week (although her case plan required testing three times per week) and her tests were all negative. She rarely missed visits with the minor.

The social workers report for the six-month review recommended that reunification services be terminated. According to the report, petitioner consistently blamed her lack of participating in services or her slowness on engaging in services on the undersigned social worker or the visitation monitor. In addition, petitioner continue[d] to portray herself as a victim of domestic violence and vacillated as to whether she would stay together with the minors father. The social worker also questioned petitioners representations concerning her understanding of English, reporting that during visits she talks to her five-year-old son in English, she reads to the children in English, and she speaks to this social worker in English.

The social worker reported that petitioner was unable to pick up [on] cues from the minor during visits and did not engage [her] in stimulating play . . . . In addition, petitioner did not seem able to divide her attention between [the minor and P. M.]. The social worker concluded that petitioner does not appear to have integrated skills learned in her parenting class . . . . The report also noted that petitioner had not signed up for an anger management class and that her services with P. M. had been terminated.

The six-month review hearing commenced in February 2007, on the same date as the section 366.26 hearing in P. M.s matter. Dr. Kevin Dugan, who had performed a bonding assessment, testified that petitioner minimized her substance abuse history and almost exclusively blamed the system for her inability to reunify with P. M. Although petitioner expressed some regret for her drug use and for staying in an abusive relationship, she primarily attributed her problems working with the system to sources other than herself. Dr. Dugan testified that, according to petitioner, she was struggling with the language and sometimes didnt understand it. However, based on the information he had reviewed, Dr. Dugan concluded that the system made multiple attempts to accommodate petitioners language needs. Dr. Dugan noted that petitioner conversed with P. M. in English throughout the assessment and was able to follow and interact with him.^[1]

In contrast, petitioners therapist testified that, when she began therapy, petitioner blamed others for the problems in her family, but he provided examples to demonstrate that this was no longer the case. In the therapists opinion, petitioner had made significant progress in the areas he was working with her -- chemical dependency, decision-making and personal responsibility. Evidence of her progress included the fact that she had not used drugs and that she had changed how she viewed her responsibility. He was also [p]artly working with petitioner on domestic violence issues, although it was his understanding that petitioner was working on this issue through another treatment program. The therapist felt petitioner had a good understanding of how drugs, domestic violence and taking on the victim role affected her children. He believed that petitioner had some difficulty with English and that she misse[d] some words that changed the meaning of what was being communicated to her.

Reverend Neilo Ayala testified that petitioner began attending his church seven or eight months earlier and he had observed a radical change in her in terms of her self-esteem, her desire to excel and her desire to recover and re cooperate [sic] with her children.

Pamela Roberson, a social worker who was assigned to the minors case from April 2006 until January 2007, testified that petitioner never complained to her about communication difficulties resulting from a language barrier, although she was aware that petitioner had complained about this to other service providers and had asked the court for a Spanish speaking social worker.

With regard to domestic violence counseling, Roberson testified she referred petitioner to a drop-in group for domestic violence but that this did not satisfy the requirements of the case plan. She testified that she also talked to petitioners therapist about addressing domestic violence. Roberson testified that petitioners probation officer and she had located a 52-week Spanish language domestic violence program that petitioner was to begin in January 2007, however, petitioner began serving a jail sentence during this period and would begin receiving domestic violence counseling with an individual counselor while in custody. Roberson acknowledged that she had not received reports on petitioners participation and progress in services from various providers.

Petitioner testified that she was serving a 71-day jail sentence and was attending a drug program in custody. She had started her 52-week domestic violence program before going to jail and would go back into the program when she got out.

The juvenile court took the matter under submission and, in its written order, terminated reunification services and set the matter for a hearing to select and implement a permanent plan pursuant to section 366.26. The court found that the Department had made a good faith effort to provide reasonable services, despite petitioners complaints of a possible English/Spanish language barrier . . . .

While acknowledging that petitioner had recently been participating in counseling, visits and testing, the court found that petitioner had been slow to start engaging in reunification services and that her progress had been modest and inconsistent. The court found that petitioner had not consistently demonstrated her motivation and commitment to her reunification services, as demonstrated by the fact that she continued to blame the Department for her familys problems, she was maintaining a relationship with the minors father and she had not fully addressed her domestic violence and substance abuse issues. The court found persuasive the evidence that petitioner had not accepted responsibility for her problems and that, according to Dr. Dugan, this greatly affect[ed] her ability to make significant short-term treatment progress. The court expressed its concern that, without personal acceptance of responsibility, petitioner would not be able to maintain the necessary long-term changes to prevent recurrence of substance abuse and domestic violence.

Based on petitioners lack of insight and progress in addressing the domestic violence and substance abuse issues that led to [the] jurisdictional findings, the court concluded there was clear and convincing evidence that she had failed to make substantive progress and failed to comply with the reunification plan. As a result, the court found that return of the minor to petitioners custody would create a substantial risk of detriment.

DISCUSSION

I

Petitioner contends she was not provided reasonable reunification services and that, consequently, the juvenile court erred by terminating her services. We disagree.

At the six-month review hearing for a child under three years of age at the time of removal, the juvenile court may terminate services and set the matter for a section 366.26 hearing if the parent has failed to participate regularly and make substantive progress in a court-ordered treatment plan . . . . ( 366.21, subd. (e).) However, if reasonable services have not been provided, the court must continue the matter for a 12-month review. ( 366.21, subd. (e).)

The purpose of reunification services is to correct the conditions which led to removal so that the dependent child can be returned home. (In re Joanna Y. (1992) 8 Cal.App.4th 433, 438.) The social worker must make a good faith effort to provide reasonable services responding to the unique needs of each family in spite of the difficulties of doing so or the prospects of success. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777; In re Kristin W. (1990) 222 Cal.App.3d 234, 254.) [T]he record should show that the supervising agency 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 Riva M. (1991) 235 Cal.App.3d 403, 414.)  In evaluating reunification services, [t]he standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) Only where there is clear and convincing evidence [that reasonable services have been] provided or offered . . . may the court order a section 366.26 hearing. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1165.)

The courts finding regarding reasonable services is subject to review for substantial evidence. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.) In making a substantial evidence determination, we resolve all conflicts in favor of the prevailing party and leave the resolution of issues of fact and credibility to the trier of fact. (In re Steve W. (1990) 217 Cal.App.3d 10, 16.) In the presence of substantial evidence, appellate justices are without the power to reweigh conflicting evidence and alter a dependency court determination. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)

Petitioner asserts that the services she was offered were not reasonable because she is Spanish speaking and she was not referred to a Spanish speaking domestic violence program, which was a main component of her case plan. It is true that petitioner was not referred to an appropriate domestic violence program until shortly before the six-month review hearing, apparently because the social worker had been unable to locate a Spanish speaking provider for this service. However, it appears the social worker made the requisite good faith effort to provide this service, attempting to acquire therapy in this regard from petitioners therapist and through a drop-in group. The record does not indicate that Spanish speaking services to address petitioners domestic violence issues were available earlier than when they were offered. In the meantime, the Department attempted to provide some services in this regard. While not the best [services] that might be provided in an ideal world, these services were reasonable under the circumstances. (In re Misako R., supra, 2 Cal.App.4th at p. 547.)

While it is also true that domestic violence was a key issue leading to the minors removal, it was petitioners resistance to accepting responsibility for the problems facing her family that was the major hurdle to reunification. Petitioner had received a year of individual therapy, was in intensive outpatient treatment for substance abuse and had completed parenting classes -- all of which were provided in Spanish. Yet, based on the persuasiveness of Dr. Dugans evaluation, the juvenile court concluded that petitioner continued to minimize her substance abuse, her responsibility for domestic violence and her responsibility for the conditions leading to removal of the minor. Although there was conflicting evidence in this regard, the juvenile court heard testimony from both therapists as well as the social worker and petitioner and was in the best position to determine the weight to give to the evidence.

Petitioner also claims the juvenile court abused its discretion by not continuing services to the 12-month review hearing and beyond. She premises this argument on her contention that she was not provided reasonable services, again based on the failure to offer her a Spanish language domestic violence program. As we have rejected her argument that she was not provided reasonable services, we conclude that this claim is also without merit.

II

Petitioner next contends the juvenile court erred in failing to return the minor to her care. However, return is not warranted if a preponderance of evidence supports the conclusion that return would create a substantial risk of detriment to the childs physical or emotional well-being. ( 366.21, subd. (e).) And [t]he failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. ( 366.21, subd. (e).)

Here, the juvenile court reasonably concluded that petitioners minimization of the problems leading to removal of the minor created a substantial risk that she would relapse. In other words, petitioner had not made sufficient progress for the minor to be safely returned to her care.

Petitioner asserts that the social worker was biased against her as evidenced by her failure to report positive information concerning petitioners participation in services and her presence at most of petitioners visits. Petitioner fails to explain how this bears on the courts order continuing the minors removal. The juvenile court had before it all of the evidence concerning petitioners participation in services when it terminated reunification services. The court also had the opportunity to observe testimony from petitioner and the social worker, allowing it to gauge the presence of any bias that might have affected how the matter had progressed through the dependency system.

The courts order terminating services was based, in part, on petitioners slow start with some services, but more so on petitioners unwillingness or inability to take responsibility for the issues that had led to the minors removal. We conclude that any shortcomings of the social worker in reporting petitioners progress in services had no effect on the outcome in this matter.

DISPOSITION

The petition is denied. The stay of proceedings previously granted is vacated.

BLEASE , Acting P. J.

We concur:

SIMS , J.

NICHOLSON , J.

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^[1] Dr. Dugans written evaluation was received into evidence but neither party has requested that it be made part of the record on review.