Filed 5/25/17 S.H. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

S.H.,

Petitioner,

v.

THE SUPERIOR COURT OF STANISLAUS COUNTY,

Respondent;

STANISLAUS COUNTY COMMUNITY SERVICES AGENCY,

Real Party in Interest.

F075264

(Super. Ct. No. 517811)


OPINION
THE COURT*
ORIGINAL PROCEEDING; petition for extraordinary writ review. Frank Dougherty, Judge. (Assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Angela J. Cobb, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
S.H. (mother) seeks extraordinary writ review of the juvenile court’s orders denying her reunification services under Welfare and Institutions Code, section 361.5, subdivision (b)(11) and setting a section 366.26 hearing as to her now five-month-old son A.H. Section 361.5, subdivision (b)(11) applies where parental rights have been terminated as to a sibling and the parent failed to subsequently make reasonable efforts to remedy the problem requiring the child’s removal. Mother contends the juvenile court erred in finding she failed to make subsequent reasonable efforts. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
This is the second dependency action for mother and Christopher, A.H.’s father. In January 2016, the Stanislaus County Community Services Agency (agency) was contacted after mother gave birth to twin boys and was unable to care for them. She appeared to be cognitively delayed and had to be prompted to care for the babies, even reminded to feed them. Christopher also appeared to be mentally delayed. Mother’s primary care physician, Dr. Nancy Brown, expressed concern about mother’s ability to parent her children without constant help. Dr. Brown provided a letter dated January 23, 2009, stating mother had fetal alcohol syndrome with all its psychiatric issues, poor judgment, impulsivity, behavior problems, and mental retardation. Dr. Brown also indicated that mother would never be able to live independently or function without someone caring for her and protecting her.
The agency filed a petition alleging mother was unable to care for the twins because of her developmental disability and mental health issues. In February 2016, the juvenile court adjudged the twins dependents and granted mother reunification services. Christopher was denied services. Mother did not participate in reunification services and waived them. In April 2016, the juvenile court terminated reunification services and in August terminated parental rights.
Mother gave birth to A.H. in December 2016. Hospital staff reported their concerns to the agency about mother’s inability to care for A.H. When interviewed, mother said she was a client of Valley Mountain Regional Center (VMRC) but did not know why, as she was not “that delayed” and did not believe she had mental health issues. She said she was made a client of VMRC because her mother lied to get financial benefits. She identified Christopher as A.H.’s father but said he did not want to be involved with the baby. She said she and Christopher argued constantly and engaged in domestic violence because he could not handle her “mood swings.” She had not participated in any services since her family reunification services for the twins were terminated. She said she did not need any classes or services. She just needed to be left alone.
On December 14, 2016, the juvenile court ordered A.H. detained pursuant to a dependency petition filed by the agency, alleging mother and Christopher’s developmental delay, domestic violence and prior child welfare history placed A.H. at a substantial risk of suffering serious physical harm or neglect. (§ 300, subds. (b) & (j).) The court appointed a guardian ad litem for mother and ordered twice-weekly supervised visitation. The agency placed A.H. in foster care and referred mother to Sierra Vista Child and Family Services (Sierra Vista) for a clinical assessment and a parenting class.
On December 22, 2016, mother gave social worker Anacani Rocha a letter purportedly from her doctor stating she did not have a mental disability. Mother said her doctor tested her the day before and she “tested negative for a disability.” Rocha asked mother if she was being truthful about where she got the letter because it did not appear legitimate. Mother insisted that her doctor gave her the letter and she did not have any disabilities or need help from anyone. Rocha subsequently followed up with the doctor identified on the letter and was told he neither evaluated mother on the date indicated nor authored the letter. When Rocha again questioned mother about the validity of the letter, mother insisted she participated in blood tests and had wires attached to her head as part of the evaluation.
On December 28, 2016, mother told Rocha she thought she was pregnant. She showed Rocha a home pregnancy test that appeared to indicate a positive result. Rocha told mother to see a doctor and offered to help her make an appointment. Mother declined. Mother also stated she wanted to seek child support from Christopher and asked if she would get the money. Rocha told her she would not because A.H. was in foster care. The next day, mother contacted Rocha to tell her that she changed her mind about the child support and she and Christopher wanted to be a family.
On January 10, 2017, mother told Rocha she no longer felt safe in her home because she did not get along with her roommate. She said her roommate made up lies about her and she was afraid of her. Mother did not have anywhere to go, stating she had no family and it was “over” between her and Christopher. She decided to stay at a shelter. Several days later, Rocha attempted to contact mother at her home. The roommate answered the phone and said that they had a disagreement and mother left. The roommate stated, “she threaten[ed] my life.”
On January 17, 2017, Rocha referred mother to a parent mentor to provide support and assistance with parenting. Mother told Rocha she was staying in a shelter but hoped to move into a new apartment complex.
On January 18, 2017, mother told Rocha she wanted child support from Christopher. Rocha again told her she was not entitled to it. Mother also stated she did not need or want VMRC services. She said they lied about her and it made her angry that people thought she had a disability.
On January 31, 2017, Rocha met with mother to discuss her case and review the agency’s concerns with her. Mother continued to deny having any mental health issues, including fetal alcohol syndrome, and said she could care for A.H. on her own. When asked how her situation with A.H. was different from that of the twins, mother said Christopher talked her into relinquishing her parental rights in the twins’ case. She said she was easily talked into anything and had separated from Christopher. This indicated to the agency that mother was unable to think independently and had poor judgment.
The social workers noted during visits that mother overfed A.H. and changed his diaper four or five times during a two-hour visit. On one occasion, she put a dirty diaper on him that she had brought to the visit. In addition, she occasionally did not redress him after changing him even though it was winter and cold.
In its report for the hearing on jurisdiction and disposition, the agency advised the juvenile court against returning A.H. to parental custody, citing mother’s refusal to accept her mental health condition and Christopher’s failure to make himself available to the agency. The agency also informed the court mother was no longer utilizing services through VMRC because she did not believe she had any disabilities.
The agency recommended the juvenile court deny mother reunification services under section 361.5, subdivision (b)(11) because she failed to remedy the problem that led to the removal of A.H.’s twin brothers and deny Christopher reunification services because, as A.H.’s alleged father, he was not entitled to them. (§ 361.5, subd. (a).)
The agency attached Dr. Brown’s letter to its report as well as psychiatric progress notes from VMRC from March 2014 to June 2015, a neuropsychological evaluation completed in 2003, and a psychological evaluation completed in 2004. The medical documentation confirmed mother’s diagnosis of fetal alcohol syndrome as well as mild mental retardation.
In March 2017, the juvenile court conducted a contested hearing on jurisdiction and disposition. The agency made an offer of proof that Aspiranet, the parent mentor agency, left four messages for mother to arrange an intake appointment but she had not responded. In addition, the agency made multiple attempts to contact Sierra Vista to determine whether mother was participating in services but did not receive a return call. The court accepted the offer of proof.
Mother made an offer of proof that she visited A.H. regularly and knew how to take care of his basic needs. She was living with her mother who supported her and could help her with A.H. She no longer denied having a developmental or mental health disability. She wanted to receive services through VMRC and, as of February 6, 2017, had a new service coordinator at VMRC and was in the process of being evaluated for services there. She also said she was taking advantage of the service referrals for Sierra Vista. The court accepted mother’s offer of proof.
The juvenile court adjudged A.H. a dependent child as alleged in the dependency petition, denied mother and Christopher reunification services as recommended and set a section 366.26 hearing for June 30, 2017.
DISCUSSION
Mother contends there was insufficient evidence to support the juvenile court’s finding that she failed to make a reasonable effort to treat the problems that led to the removal of A.H.’s siblings. We disagree.
“Ordinarily, when a child is removed from parental custody, the juvenile court must order services to facilitate the reunification of the family. (§ 361.5, subd. (a).) ‘ “Nevertheless, as evidenced by section 361.5, subdivision (b), the Legislature recognizes that it may be fruitless to provide reunification services under certain circumstances. Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources.” ’ An order denying reunification services is reviewed for substantial evidence.” (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914 (R.T.); citations omitted.)
Section 361.5, subdivision (b)(11) authorizes the denial of services to a parent whose parental rights to another child were terminated if the court finds, by clear and convincing evidence, that the parent “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling .…”
In evaluating whether a parent has made a reasonable effort to treat the problems that led to removal of the sibling or half sibling, the court focuses on the extent of the parent’s efforts, not whether he or she has attained “a certain level of progress.” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 99.) “The ‘reasonable effort to treat’ standard ‘is not synonymous with “cure.” ’ The statute provides a ‘parent who has worked toward correcting his or her problems an opportunity to have that fact taken into consideration in subsequent proceedings.’ To be reasonable, the parent’s efforts must be more than ‘lackadaisical or half-hearted.’ ” (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393; citations omitted.)
However, the term “ ‘reasonable effort’ ” in section 361.5, subdivision (b)(11) does not “mean that any effort by a parent, even if clearly genuine, to address the problems leading to removal will constitute a reasonable effort .…” (R.T., supra, 202 Cal.App.4th at p. 914.) The court may “consider the duration, extent and context of the parent’s efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent’s progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made.” (Ibid.) Thus, “although success alone is not the sole measure of reasonableness, the measure of success achieved is properly considered a factor in the juvenile court’s determination of whether an effort qualifies as reasonable.” (Id. at p. 915.)
Here, mother’s parental rights to A.H.’s siblings were terminated in August 2016. The only evidence she made any subsequent effort to address her mental health concerns was her offer of proof at the contested hearing in March 2017 that she was being reevaluated for services through VMRC and was taking advantage of her service referrals. However, she waited until the month before the hearing to initiate those efforts. In the preceding months following A.H.’s initial removal, she insistently denied having a mental health disability and refused to participate in services to address it. Further, mother’s inability to provide for A.H.’s basic needs is precisely the same situation that led to the removal of the twins and the subsequent termination of parental rights.
Mother nevertheless contends the juvenile court disregarded evidence of her progress and instead focused on Dr. Brown’s 2009 letter in deciding to deny her services. She claims, for example, the court ignored evidence she initiated her service referrals, reconnected with VMRC, was no longer in a romantic relationship with Christopher and had the support of the maternal grandmother. Instead of properly weighing this evidence, she in essence contends, the juvenile court gave undue weight to Dr. Brown’s opinion that she would never be able to live or function independently. It is not our role, however, to reweigh the evidence. (In re Walter E. (1992) 13 Cal.App.4th 125, 139 140.) Rather, we determine whether substantial evidence supports the juvenile court’s findings and orders based on the evidence before it. (Ibid.)
Viewing this history in its totality, we conclude there is substantial evidence to support the juvenile court’s finding regarding lack of subsequent reasonable effort. Accordingly, mother was properly denied reunification services under section 361.5, subdivision (b)(11).
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.