In re Alejandra P

Filed 3/9/06 In re Alejandra P. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Hideo Chino, Referee. Affirmed.

Angelina M. (Mother) appeals the judgment terminating her reunification services and placing her daughter, Alejandra P., with Alejandra's father, Juan P. (Father), in Florida. Mother contends the juvenile court erred by placing Alejandra with Father without having written approval of his home, reviewing the Interstate Compact on Placement of Children (Fam. Code, § 7900 et seq.) (ICPC) home study, or having adequate information; she was denied effective assistance of counsel; the finding that she was provided reasonable services is unsupported by substantial evidence; and the court abused its discretion by denying her request to resume visitation. We affirm.

BACKGROUND

In March 2004, when Alejandra was four years old, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition because she was exposed to violence between her stepfather, Oscar J., and Mother, in that Mother and Oscar argued and she stabbed him in the back with a stick while she was under the influence of alcohol; Mother then violated a temporary restraining order by going to Oscar and Alejandra's home; Mother said Oscar was violent towards her; and she drank to excess and admitted she was court-ordered to participate in substance abuse treatment.

Alejandra was detained in a foster home, then in the home of a nonrelative extended family member, where she was later placed. In September 2004, after the nonrelative extended family member became unable to care for her, Alejandra was moved to a new foster home.

In June 2005, the court suspended Mother's visits. At the July 26 and August 11 12-month review hearing, it terminated her reunification services, placed Alejandra with Father in Florida, and set a review hearing.

PLACEMENT

Mother contends the juvenile court erred by placing Alejandra with Father without having written approval of his home, reviewing the home study, or having adequate information.

In October 2004, the juvenile court ordered that ICPC proceedings be instituted for Father's home. By April 4, 2005, the Florida social worker had verbally confirmed the home's approval. On May 5, the Agency reported that Father had no criminal history and appeared able to meet Alejandra's needs. On July 26, the Agency's social worker testified that the home was approved. Mother contends the court erred by placing Alejandra with Father without reviewing the ICPC home study or having written approval of his home and without any other adequate basis for the placement.^[1]

When Father and Mother's marriage was dissolved in Puerto Rico in June 2003, she obtained custody of Alejandra, he was awarded weekend visitation, and both parents were ordered not to remove Alejandra from Puerto Rico.^[2] Father exercised his visitation rights, then Mother apparently removed Alejandra from Puerto Rico without the Puerto Rico court's permission.

From the beginning of this case, Father acknowledged paternity and said that he wanted custody of Alejandra. By March 2005, he had maintained telephone contact with her for several months. That month, she visited in his home for about three days, accompanied by her caregiver. The visit was positive and Alejandra got along well with Father, his live-in girlfriend, and their young daughter. Father maintained contact with Alejandra after their visit.

Alejandra suffered from attention deficit hyperactivity disorder (ADHD), engaged in aggressive and sexualized behavior, and had other psychological problems. A psychiatrist who evaluated her just before the hearing recommended ADHD medication and continued psychotherapy. Father said that he would follow the treatment recommendations. He had regular monthly telephone conversations with Alejandra's therapist, who told him about Alejandra's behavior and the risks she posed. The therapist also talked to Father's live-in girlfriend and informed her of Alejandra's issues. Alejandra's therapist agreed with the Agency's recommendation that Alejandra be placed with Father and noted that Father and his girlfriend seemed committed to providing Alejandra a stable and nurturing home and addressing her special needs.

By August 11, 2005, Father and his girlfriend had found a pediatrician and a therapist for Alejandra and a place in their community where she could receive psychiatric care. Because Father and his girlfriend had different work schedules, they were able to take turns caring for Alejandra when she was not in school. They understood that her transition to their home would not be easy, and that they would have to work closely with Alejandra and her service providers. They continued to express a strong interest in having Alejandra with them. Father needed just two more classes to complete a parenting course. His girlfriend also attended the parenting classes. Apparently, an ICPC social worker would be assigned to Alejandra's case once she moved to Florida.

The juvenile court did not err by placing Alejandra with Father. The undisputed evidence was that there was a favorable ICPC report from Florida and he would have access to services. We need not address the issue whether a written report must be in the court's possession and we decline Mother's and the Agency's requests that we reexamine this court's holding in Tara S. v. Superior Court (1993) 13 Cal.App.4th 1834. Nevertheless, the Agency and the juvenile court should have ensured that the ICPC report was filed with and reviewed by the court. The question whether Alejandra should go to Florida was hotly contested. It was the court's responsibility to decide whether to authorize the placement; it was not the Agency's right to make that decision.

EFFECTIVE ASSISTANCE OF COUNSEL

Mother contends that her attorney did not inquire about the ICPC evaluation and approval of Father's home; the lack of a written report; and Mother's allegations against Father, which showed a risk to Alejandra if she were under his care. Mother reasons that such inquiries would have prevented or delayed Alejandra's placement with Father and concludes that she was denied effective assistance of counsel.

Mother's premise is unsound. Her attorney vigorously challenged Alejandra's placement with Father on multiple grounds. There is no evidence that counsel saw the ICPC report or that the written report would have helped Mother. Indeed, the record shows that the report supported Alejandra's placement with Father. Absent a showing to the contrary, we must assume that counsel made a tactical choice not to invite the court to read the report. (In re Arturo A. (1992) 8 Cal.App.4th 229, 237, 243.) On this record, there is no indication of a failing by counsel and no hint of prejudice. Mother's use of a void in the record to speculate about possible prejudice does not amount to the required showing of ineffective assistance of counsel under any standard. (In re Ronald R. (1995) 37 Cal.App.4th 1186, 1195-1196.)

REASONABLE SERVICES FINDING

Mother contends the finding that she was provided reasonable services is unsupported by substantial evidence. Specifically, she complains of the lack of a psychological evaluation and an adequate substance abuse treatment program.

Reunification services need not be "the best that might be provided in an ideal world, but [rather those] reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) Here, as required, the Agency made "a good faith effort to develop and implement a family reunification . . . plan with services tailored to suit [Mother's] needs . . . ." (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810, citations omitted.)

Mother was verbally abusive and uncooperative with the social worker. Her compliance with the Substance Abuse Recovery Management System program was variable. She did not begin following through with services in general until late in the case.

In October 2004, Mother's first therapist, Soraya Behbehani, noted that Mother lacked motivation and believed that she had done nothing wrong. Behbehani suggested that a psychological evaluation would help guide therapy, but discharged Mother a short time later after she failed to appear for appointments. Mother began seeing another therapist, Daisy Boscan, in January 2005, but it was not until July 26 - the first day of the 12-month review hearing - that Boscan recommended a psychological evaluation.

By November 2004, Mother had asked for an inpatient treatment program, then declined the referral she was given. When she was given another referral in December, she declined it too. She entered an outpatient program later that month, only to quit in January 2005. At some point, she entered another program, and quit it as well.

The Agency was not required to force services on Mother. (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220; In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.) The problem was her own failure to cooperate, not the Agency's failure to offer services. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) Substantial evidence supports the finding that Mother was offered reasonable reunification services. (In re Misako R., supra, 2 Cal.App.4th at p. 545.)

VISITATION

"Absent a showing of detriment caused by visitation, ordinarily it is improper to suspend or halt visits even after the end of the reunification period." (In re Luke L. (1996) 44 Cal.App.4th 670, 679; Welf. & Inst. Code, § 366.21, subd. (h).) Here, substantial evidence supports the juvenile court's decision not to reinstate visitation. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)^[3]

Mother's supervised visits seemed to go well until June 2004, when she harassed Alejandra's caregiver, yelled at social worker Israel Lefebre, and refused to attend visits, and Alejandra began to display anxious and aggressive behavior. On June 5, Mother showed up unannounced at a family gathering, scolded Alejandra, and hit her on the head. At two visits in July, Alejandra was happy to see Mother, but Mother talked about the case, focused on Alejandra's younger sibling, and corrected Alejandra many times. Alejandra responded with more negative behavior. While Mother was in jail from August 12 to September 21,^[4] Alejandra had one visit and refused another. Mother continued to correct Alejandra for insignificant matters, talked about the case during visits, and had angry outbursts. Between December 2004 and April 2005, she cancelled eight visits, failed to appear for one, and was regularly late for those she did attend. Alejandra was disoriented after visits, did not want to eat, had trouble sleeping and continued to be anxious and aggressive before and after visits.

By May 5, 2005, Mother's participation in a visitation program had been terminated because she apparently missed four of her eight visits in one month. On May 9, her attorney asked for increased visitation and that the Agency consider exercising its discretion to move to unsupervised visits with the concurrence of Alejandra's counsel. The court gave the Agency discretion to expand contact and allow unsupervised contact with the concurrence of counsel.

In late May 2005, Alejandra's therapist recommended that visits be suspended "to determine if [her] regressive behaviors and anxiety decrease once she develops a sense of safety." On June 6, the court suspended visitation.

On July 26, 2005, social worker Gloria Escamilla-Huidor, who had been assigned to the case on May 26, testified that supervised visits would "probably be appropriate if Alejandra . . . continues to have the individual therapist support and other services in place." Escamilla-Huidor noted that Alejandra asked about Mother and Mother had improved. Mother's therapist, Daisy Boscan, who had seen Mother for a total of about 20 sessions, testified that Mother had progressed but it would probably be four to six months before she would be able to recommend Alejandra's return. Boscan, who had not seen Alejandra, suggested conjoint sessions to Alejandra's therapist, who replied that Alejandra was not ready. At the close of the July 26 hearing, Mother's counsel asked that the social worker continue to have discretion to allow visits. The court said that its prior order - i.e., its June 6 visitation suspension - would remain.

On July 28, 2005, Alejandra's therapist told Escamilla-Huidor that while Alejandra's behavior had improved since visits were suspended, Alejandra was not ready for conjoint therapy and such therapy would not be appropriate until Mother began to take responsibility for what Alejandra had suffered. On August 11, Escamilla-Huidor testified that Alejandra was doing better since visits were suspended and was asking to see Mother. Escamilla-Huidor deferred to the recommendation of Alejandra's therapist that visitation remain suspended lest Alejandra regress.

The reason that Alejandra's therapist recommended that visits be suspended was to determine if her behavioral difficulties and anxiety were related to visits. Once visits were suspended, Alejandra's behavior and emotional state improved, lending credence to the proposition that visits made her anxious. Her therapist believed that Alejandra was not ready even for conjoint therapy, the safest and most closely supervised sort of parent-child contact. In arguing that the court should have reinstated visits, Mother focuses on herself - her progress in services and her right to maintain a relationship with Alejandra. Alejandra, however, was emotionally fragile, and safety and protection were critical to her recovery. Resumed visitation was obviously contrary to her best interests. While the juvenile court did not make an express finding that resumption of visitation would be detrimental, the evidence allows no other conclusion.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

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^[1] Mother moves to strike all or part of the brief of Alejandra's appellate counsel. Mother objects to the brief's statement that counsel reviewed a copy of the approved ICPC report and it belies Mother's claim that had the report been before the juvenile court, she could have prevented Alejandra's placement with Father. We deny the motion to strike.

^[2] Mother and Father each asserted that they were the victim of the other's violence.

^[3] The decision is equally unassailable under the abuse of discretion standard of review urged by Mother, and is correct whether it was made by a preponderance of the evidence (In re Manolito L. (2001) 90 Cal.App.4th 753, 758) or by clear and convincing evidence (see In re Dylan T. (1998) 65 Cal.App.4th 765, 773).

^[4] On August 12, Mother was arrested on an outstanding warrant that was issued on August 9 for violating a restraining order.