P.M. v. Super. Ct.

Filed 5/25/10 P.M. v. Super. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

P.M. (Father) and S.W. (Mother) challenge an order of the Solano County Superior Court, Juvenile Division, filed February 24, 2010, in which the court set a hearing under Welfare and Institutions Code section 366.26[1] to select a permanent plan for the minor L.S. (born April 2008). Both claim the juvenile court should have granted them additional reunification services, as they did not receive reasonable services. Father also claims he was entitled to additional services under section 366.22, subdivision (b). As discussed below, we conclude there was no prejudicial error and deny both petitions on the merits.[2]

Background

The Solano County Department of Child Welfare Services (Department) initially removed the minor from Mothers physical custody on April 30, 2008, and initiated this proceeding on May 2. The juvenile court entered a formal detention order on May 5, and ordered paternity testing for Father the following week. On May 20, the court sustained amended jurisdictional allegations under section 300, subdivision (b). Specifically, the court found that Mother had a history of substance abusewhich in earlier dependency proceedings in the Bay Area had led to her loss of custody of several older siblings of the minor; that Mother had been observed at the hospital, following the birth of the minor, to be agitated, acting irrationally, and on one occasion had screamed at staff; that Mother had a history of involvement in domestic violence that placed the minor at substantial risk of physical harm, including a recent incident between Father and Mother resulting in Mother being taken into custody; and that Mothers prior child welfare history had involved referrals for mental health issues, substance abuse, domestic violence, general neglect, and unsafe living conditions. The court also found that Fathers ability to care for the minor had not yet been assessed, but the minor, born prematurely, suffered from episodes of bradycardia/apnea and required stability and consistent and appropriate care.

The juvenile court entered dispositional orders on July 29, 2008. These established Father as the presumed and legal father, directed the Department to continue the minor in out-of-home placement, and also to provide the parents with reunification services and supervised visitation. The court further directed the parents to participate in services and comply with their case plans. Mothers case plan called for her to complete a mental health assessment and follow any recommendations, complete a domestic violence program and parenting class, submit to random drug testing, submit to a substance abuse evaluation and follow any recommendations, and retain and maintain safe and stable housing. Fathers case plan required that he complete a domestic violence program for victims, submit to a mental health assessment and follow any recommendations, complete a parenting class, and retain and maintain safe and suitable housing.

Prior to the six-month review hearing, the Department recommended returning the minor to the parents supervised custody under a plan of family maintenance services, noting that both parents were in compliance with most aspects of their case plans and had been successful in their progress. The juvenile court adopted these recommendations at the conclusion of the six-month hearing on November 18, 2008.

After some five months of family maintenance services, the Departments assigned case worker reported numerous problems with the parents progress. The parents separated in late January 2009, under circumstances that required a series of emergency Department team meetings. Mother moved with the minor to a transitional housing facility in Vacaville, and the parents were ordered to have no contact with one another. Mother was soon discharged from transitional housing for uncooperative behavior, failure to submit to drug testing, and improper administration of the minors medications, and she subsequently caused a scene requiring police response at Fathers motel, after the minor was transferred to his care. The minor was returned to Mothers care after she secured new transitional housing in Vallejo in mid-February 2009.

During this reporting period the case worker removed case plan requirements calling for couples counseling and a completion of a domestic violence program, due to the parents separation. The parents were nevertheless noncompliant with other aspects of their plans. Mother had failed to follow through with individual counseling arranged by the case worker, and had refused to submit to a hair strand drug test after testing positive for opiates in February. Father was noncompliant in failing to apply for Medi-Cal and failing to submit to a mental health assessment. Mothers failure to participate in individual counseling was of particular concern as she had exhibited agitated, irrational and paranoid behaviors throughout the reporting period.

Both parents informed the case worker in late April 2009 that they wished to reconcile, and they requested removal of the no-contact order and services for couples counseling. The case worker recommended that the court do so, but on condition that the parents engage in the individual aspects of their respective case plans. More generally, the case worker recommended that the court continue family maintenance supervision and services.

On May 21, 2009, at the conclusion of its in-home status review hearing under section 364, the juvenile court filed orders adopting the forgoing recommendations. Included were specific orders directing Mother to submit to a psychological evaluation and hair strand testing.

In July 2009, the case worker completed an interim report stating that the parents had completed their first intake appointment for couples counseling, but had failed to attend the next scheduled session on July 20. As of that date the parents had separated again after an incident in which Mother was verbally abusive to Father and then left with the minor without notifying Father of their whereabouts for several days. Both parents had moved from the motel where they had resided together to separate transitional housing facilities in Vallejo and Fairfield. At a team meeting held on July 20 to address these issues, the parents had to be separated to avoid a possible physical altercation. When Father went to their mental health providers for a scheduled session of individual therapy on July 22, Mother arrived with the minor, without an appointment, and began yelling and screaming at Father in the waiting room. The minor reportedly seemed to be agitated, hungry and tired.

The case worker concluded the interim report by requesting again that the juvenile court order Mother to submit to a psychological evaluation. On July 28, 2009, the juvenile court ordered Mother to do so.

About one month later, on August 26, 2009, the Department filed a supplemental petition under section 387. It alleged that two days previously, Mother had been found unconscious on the floor in her home, after ingesting a number pills containing opiates and barbiturates. The minor was found sitting nearby, with a pill in his mouth that could have caused a serious medical emergency had he swallowed it. Additional allegations stated that at Mothers transitional housing facility others had observed instances in which she failed to provide adequately for the minors safety and well being; that on August 12, Fairfield police responded to a physical altercation between the parents that occurred in the minors presence; and that the parents failure to successfully resolve the issues that brought them under the juvenile courts jurisdiction required a change in the previous disposition of in-home supervision.

At the conclusion of the jurisdictional hearing on the supplemental petition, on December 10, 2009, the court sustained the foregoing amended allegations.[3] In its dispositional report, completed in late January 2010, the Department recommended that the court order the minor removed from both parents custody, and that it terminate their services because both had received services for the maximum statutory period of 18 months. On February 22, 2010, the juvenile court concluded its dispositional hearing on the section 387 petition. At that time the court ordered the minors removal from both parents custody, terminated both parents reunification services, and set the matter for hearing to select a permanent plan pursuant to section 366.26.

The parents petitions followed. ( 366.26, subd. (l).)[4]

Discussion

A. The record reflects substantial evidence to support the juvenile courts determination that the Department provided reasonable support services for Petitioners to reunite with the minor.

As noted above, the Department originally removed the minor from his parents physical custody on April 30, 2008, and the juvenile court entered its original dispositional order directing reunification services on July 29, 2008. Thus, by the time of the dispositional hearing on the supplemental petition, in February 2010, over 21 months had passed since the minors initial removal, and the parents had received at least 18 months of reunification and family maintenance services. After determining that the appropriate disposition on the supplemental petition was to remove the minor from his parents custody a second time, it was therefore appropriate that the court consider the provisions applicable at an 18-month permanency review hearing. (See 366.22, subd. (a).) These include a requirement that the court determine whether reasonable services were offered or provided to the parents. ( 366.22, subd. (a), 3d par.) On this point the court found the Department had provided both parents with reasonable reunification services. Both Father and Mother challenge this finding, claiming the Department did not provide or offer reasonable services.

Our review of the trial courts finding that reasonable reunification services were provided by the county focuses on whether substantial evidence supports the juvenile courts determination such services were provided or offered. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) Our task is not to assess de novo specific facts or agency efforts but to consider the entire record in this review. (Ibid.) We resolve all conflicts in the evidence in favor of the respondent and presume all reasonable inferences in favor of the juvenile courts judgment. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 16321633.)

The reunification services offered must be reasonable under the circumstances. (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) Experience suggests that a proponent may argue that more services could have been provided more frequently and that the services provided were imperfect. [Yet 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.) In this review of the record, we find the evidence supports the juvenile courts finding that reasonable services were provided to both Mother and Father. Mother had numerous referrals over the history of this unfortunate case to substance abuse evaluations and treatment, psychological evaluations, individual therapy, couples therapy, psychiatric medical evaluations, parenting classes, domestic violence groups, and housing programs. Father also had considerable referrals to individual therapy, couples counseling, substance abuse evaluations and programs, domestic violence programs, parenting classes, and housing programs. Rather than adopt petitioners nitpicking approach to the services provided, we conclude the totality of the circumstances clearly favors the respondent. The juvenile courts conclusion in this regard cannot, on this record, be disturbed.

On the subject of reasonable services addressing the petitioners mental health problems, individual counseling, and domestic violence, the record reflects there was a serious failure by Mother and Father to comply with offered services. They were referred to couples class at Catholic Social Services as early as September 2008. However, the Department stressed the couple needed to address their issues of domestic violence at the same time. At the time of the status review report filed by the Department on November 5, 2008, petitioners were in denial of domestic violence being an issue in their relationship. Father only attended two classes on domestic violence within the first six-month review period. Catholic Social Services advised the Department case worker that, as of October 22, 2008, Mother and Father should enroll in couples classes but only after they finished a program addressing domestic violence. By February 2009, petitioners were precluded from attending couples counseling in light of increased domestic violence between them. By May 2009, petitioners were trying to reunite; the juvenile judge advised them they needed to attend couples counseling with a strong domestic violence component.

From July 2009, the couple began to engage in couples counseling but it was not successful. Mother would attend and find Father at his personal counseling session. This contact would trigger shouting and yelling by Mother at Father. Their hostility towards each other prevented couples counseling from being seriously undertaken. In fact, Mothers behavior was so erratic the clinical director of Catholic Social Services recommended she obtain substantial individual therapy and a psychological examination before even resuming couples therapy. Yet she regularly failed to address such treatment.

Father delayed completing the mental health assessment that was a prerequisite for his counseling. He failed to consider his individual role in the relationship with Mother. He was arrested during this period on two instances for domestic violence conduct with Mother. As a result of these arrests, Father received deferred entry of judgment in the criminal cases, with a condition he participate in anger management and domestic violence classes. While he began the classes in October 2009, by January 2010, he had stopped attending according to the case worker.

Similarly, the juvenile courts finding that Mother and Father failed to satisfy offered substance abuse services is supported by the record. Mother refused on several occasions to submit to appropriate testing to objectively determine her use of drugs. On other occasions, she had positive tests for morphine and opiates. Even after an incident of an overdose, she refused testing. Mother also failed to present proof she was attending meetings to treat her addictions.

Father was denied substance abuse services on several instances because he admitted relapsing regularly. Also, on certain occasions, when asked to take random tests to address custody questions, he would fail to come to the screening. His lack of candor caused him to be rejected for outpatient treatment in February 2010, when the dependency issues were being reviewed by the court.

We cannot quarrel with the findings by the juvenile court on the issue of petitioners clear failure to comply with substance abuse plans and services. While the Department can provide reasonable services, the law does not require unwilling parents to attend such programs. (See 361.5, subd. (a) & 366.22, subd. (a); Christina L., supra, 3 Cal.App.4th 404, 414.)

It is incumbent on the petitioners to establish they had the maturity and ability to care for the minor in this case. As such, they needed to demonstrate an individual ability to comply with the case plan components provided by the Department. It was not the duty of the Department to take [Petitioners] by the hand or lead [them] step-by-step along the way. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 11661167.)

We conclude the challenged findings are supported by substantial evidence.

B. The juvenile courts order denying additional reunification services to Petitioners was supported by substantial evidence.

Father argues that the court erred in denying him additional reunification services. He claims the evidence presented was sufficient to extend the review beyond the 18-month reunification period pursuant to section 366.22, subdivision (b). The court rejected this contention.

At the time of the contested dispositional hearing under section 387, both Petitioners had been receiving almost 22 months of services from the Department. During a part of this time, the minor had been in the physical custody of Petitioners. Yet that does not interrupt the running of the 18-month period under the statute. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 162168; 361.5, subd. (a)(3).) Once the 18 months of Department services has run, no additional services need be provided at the disposition of the section 387 petition without proof of exceptional circumstances being demonstrated. (In re N.M. (2003) 108 Cal.App.4th 845, 855.) Any regular extension of services beyond this statutory deadline would be against the legislative purpose minimizing delay in attaining permanency in dependency cases. While 18 months may not be lengthy in the eyes of an adult, it is significant time to an infant. (Id. at p. 855.) The Legislature has indicated exceptional circumstances to include discharge from incarceration or evidence a parent is making substantial progress in a treatment program. ( 366.22, subd. (b).) However, this record is devoid of any such exceptional circumstances. Neither petitioner has manifested the level of behavior change called for to lengthen the review process beyond 18 months.

Additionally, the juvenile court expressly found that extending services here would not be in the best interest of the minor and there was no substantial probability of return within the extended time period, which here, in light of the 22 months already tolerated, would mean an additional two months. This finding was supported by substantial evidence. The minor was demonstrably suffering from distress related to the parental history of substance abuse and domestic violence. When he returned from visitations with his parents, the minor would present stress-related symptoms of diarrhea, separation anxiety, hitting and throwing toys at other persons; he would often take a full day to transition to his normal routine after returning to the foster home. The minors therapist related that his social and emotional development and mental health were negatively impacted by the neglect and exposure to domestic violence when he was in the custody of Petitioners, and that his language skills were delayed by his experiences with Mother and Father.

Section 366.22, subdivision (a) obligates each parent to complete the several aspects of the particular plan proposed by the Department, as well as demonstrate the learned capacity to assume the appropriate role a parent has in the minors life. (In re Dustin R. (1997) 54 Cal.App.4th 1131; 1138; see also Constance K. v. Superior Court (1998) 61 Cal.App.4th 689.) Here neither Petitioner presents appropriate evidence to cause this court to dispute the findings of the juvenile court.

Disposition

The petitions for extraordinary writ are 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.

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

[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 next in-home review hearing under section 364 was trailed with the dispositional hearing.

[4] On April 19, 2010, this court directed that Mothers and Fathers petitions be consolidated for decision.