R.D. v. Sup. Ct.

Filed 10/11/06 R.D. v. Sup. Ct. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

R.D., the mother of John D., files this petition for extraordinary writ challenging the findings and orders of the juvenile court in setting a hearing pursuant to Welfare and Institutions Code section 366.26.[1] (§ 366.26, subd. (l); Cal. Rules of Court, rules 38 and 38.1, former rule 39.1B.) Mother argues that the juvenile court erred in terminating her reunification services at the contested 12-month review hearing, because she made substantive progress on her service plan, and she did not receive reasonable services.

Statement of the Facts and Case

When John was born in August 2005, he and his mother tested positive for methamphetamines. John was placed in protective custody on August 8, 2005, and was detained by the juvenile court on August 11, 2005. The juvenile court took jurisdiction of John on September 20, 2005, and placed him in foster care.

At the jurisdiction hearing, the court ordered family reunification services for both parents. Mother’s service plan included attendance at a parent orientation class, a basic parenting class, random drug testing twice a week, and attendance at 12-step meetings at least three times a week.

At an interim review in November 2005, the Santa Clara County Department of Family and Children’s Services (the Department) informed the court that mother had been involuntarily hospitalized in a psychiatric facility a year prior, because she had been threatening family members with a baseball bat and an axe, and was experiencing auditory hallucinations. Based on this information, the court ordered a psychological evaluation of mother.

The doctor who conducted mother’s psychological evaluation opined that mother suffered from a mental disorder that interfered with her ability to understand and meet her child’s needs, and suggested that mother might benefit from individual psychotherapy and substance abuse treatment.

The social worked assigned to the case also represented to the court that mother might need counseling to address her needs, including her patterns of denial, minimization and avoidance of issues, and her hostility when frustrated.

In January 2006, the court modified mother’s case plan to include individual counseling.

The report for the six-month review, dated March 14, 2006, recommended termination of father’s reunification services, because he had not done any of his case plan. The report also recommended that mother be continued to the 12-month review hearing, and that mother attend a parenting without violence class.

An addendum report was submitted, dated March 14, 2006, and stated that mother was having difficulty dealing with issues that made her feel angry or frustrated.

At this point in the case, mother had made efforts to complete the requirements of her service plan. Mother completed her parent orientation and parenting education class, and consistently tested clean for drug use. Mother completed an outpatient substance abuse program, and maintained that she was attending 12-step meetings twice a week, but only provided sign-in sheets for once a week attendance.

On April 4, 2006, the Department filed another addendum report changing its recommendation to a termination of reunification services for both parents. The addendum report also stated that there were ongoing visitation problems with mother, and that mother was not making progress with her individual counseling. The report indicated that mother was in denial about her role in John’s problems, and was unable to accept responsibility for risks to her children’s safety. These problems lead the social worker to change the initial recommendation, and instead conclude that reunification services should be terminated.

The addendum report also contained the social worker’s observations of the visits between mother and John. The report noted that John was social and happy when he was observed in his placement, whereas when John was spending time with his mother he was distressed, cried often, and was not easily comforted. Based on these observations, the social worker concluded that visits with mother were detrimental to John’s emotional well-being.

With regard to mother’s individual counseling, Antoine Moore, mother’s counselor indicated that mother was attending her sessions consistently, and that she did her homework. Moore also indicated mother was having difficulty with her reality and denial issues, and failed to accept responsibility for John’s problems or for his removal from her custody. Moore opined that mother may never fully accept responsibility or move beyond her denial.

The trial began on May 19, 2006. An addendum report submitted on that date indicated that mother had begun attending her parenting without violence class. Moore indicated that although mother was attending her counseling sessions, she still had not dealt with her denial issues, and continued to believe that she did not have problems, and that others who thought she did were mistaken.

During the trial, the social worker assigned to the case, Vicky Machado testified. She described John’s special needs, including his emotional problems of being anxious and jittery and his physical problems, suffering from asthma, and a weakened immune system. Machado indicated according to the public health nurse and John’s physician, the weakened immune system was due to intrauterine drug exposure. Machado testified that since October 2005, John had been to see the doctor for various illnesses 16 times.

Machado further testified that mother had difficulty accepting that John had special needs, or that she had anything to do with his problems. Mother suggested that John’s problems were inherited from his father, and that father’s drug use affected his sperm and created John’s problems.

Mother also testified at the trial. She stated that she had only used methamphetamine five times. Mother also denied the violent events with her family that triggered her psychiatric hospitalization in 2004, claiming that her sister drugged her causing the hospitalization. When asked about the circumstances of John’s birth, mother admitted that she was under the influence, but claimed that her sister had put methamphetamine in mother’s soda without her knowledge. Mother also testified that the father may have put the drugs in her soda.

On July 14, 2006, the court terminated reunification services, finding by clear and convincing evidence that both father and mother failed to participate regularly and make substantive progress in their service plans. The court also found that there was no substantial likelihood that John would be returned to either father or mother within six months. In addition, the court found the Department offered reasonable services to both parents.

The court concluded that the evidence at trial demonstrated that mother had made very little progress in her denial and in taking responsibility for why John was a dependent. The court noted that mother testified that she believed she was an addict because she was in the wrong place at the wrong time and put herself in circumstances where someone else was able to put drugs in her drink.

The court set a section 366.26 hearing and notified the parents of their appeal rights.

Discussion

Mother argues the juvenile court erred in its findings that she failed to make substantive progress in her case plan, and that reasonable reunification services had been provided to her.

Mother’s argument attacks the sufficiency of the evidence supporting the juvenile court’s determination. “In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)

At the six-month review hearing, the juvenile court was required to order return of the child to the physical custody of mother unless the court found, by a preponderance of the evidence, that the return of the child would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. (§ 366.21, subd. (e).) The Department had the burden of establishing that detriment. (Ibid.) The failure of mother to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return would be detrimental. (Ibid.) In making its determination, the juvenile court was required to review and consider the social worker’s report and recommendations and to consider the effort or progress, or both, demonstrated by mother and the extent to which she availed herself of services provided. (Ibid.)

The juvenile court may terminate reunification services at the six-month review and set a hearing under section 366.26 if the child was under the age of three on the date of the initial removal and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan. (§ 366.21, subd. (e).) However, if the court finds there is a substantial probability that the child may be returned to the parent within six months or that reasonable services have not been provided, the juvenile court is required to continue the case to the 12-month permanency hearing. (Ibid.)

In the present case, the juvenile court found by clear and convincing evidence that mother failed to make substantive progress in her court-ordered treatment plan. Although mother did attend many of the services ordered, including individual counseling sessions, and parenting classes, she did not make substantive progress in those efforts. Most notable is the fact that despite the court intervention and service plan, mother still had difficulty comprehending her own shortcomings and managing her anger and frustration. In addition, the evidence presented at trial demonstrates that mother has no concept that the physical and emotion problems of her son had anything whatsoever to do with her drug use during pregnancy; instead blaming her son’s problems on his father’s genetics.

Mother maintains that she accomplished most of what was asked of her in the service plan; however, such participation does not necessarily make up for her lack of progress in the plan. The fact that mother continually refused to acknowledge her fault in creating John’s problems is evidence that mother could not progress with her service plan, and could not improve to a point of gaining John’s return to her home.

The conclusion of the juvenile court here is supported by the case of In re Jessica B. (1989) 207 Cal.App.3d 504 (Jessica B.), in which the court held that the father’s denial that he physically abused his child, continually maintaining that the harm resulted from an accident, prevented him from progressing with his service plan. (Id. at p. 517.) Indeed, the court found that the father had made “no progress . . . in alleviating the problem that brought [the child] under the protection of the juvenile court. [Father’s] failure to admit fault indicates that he is neither cooperating nor availing himself of the services provided.” (Ibid.)

Like Jessica B., mother in the present case has not admitted fault with regard to issues that lead to John’s removal. In particular, mother continues to maintain that she did not use methamphetamine prior to John’s birth, yet both she and John tested positive for the drug the day he was born. Mother asserts that the positive drug test was the result of someone putting the drug into her drink. However, when presented with mother’s explanation of the positive drug test, the court below did not find it compelling, even after father testified midway through the trial in an apparent attempt to corroborate mother’s version of the facts, that he put methamphetamine into her soda the night before she delivered John. The court clearly did not find mother or father credible regarding mother’s positive drug test.

While mother makes much of the fact that admitting to her problems is not a specific requirement of her service plan, her argument misses the point. Without such admission, despite her participation in aspects of the service plan, there is no evidence that mother has progressed to the point of alleviating the problems that lead to John’s removal in the first instance.

Under such circumstances, substantial evidence supports the juvenile court’s determination that mother failed to regularly participate and make substantive progress in the service plan.

Mother also argues that the juvenile court erred in terminating reunification services because she was not offered reasonable services.

At the six-month review hearing, the juvenile court was required to continue the case to the 12-month permanency hearing if the juvenile court found that reasonable services had not been provided. (§ 366.21, subd. (e).)

“Only where there is clear and convincing evidence the [Department] has provided or offered reasonable services may the [juvenile] court order a section 366.26 hearing. (§ 366.21, subds. (g)(1) and (g)(3).)” (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1165.) A reunification service plan must be tailored to fit the specific circumstances of each family, and must be designed to eliminate those conditions that led to the juvenile court’s jurisdictional findings. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) “ ‘[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 (such as helping to provide transportation and offering more intensive rehabilitation services where others have failed.)’ [Citation.]” (Robin V., supra, 33 Cal.App.4th at p. 1165, original italics; see also In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006-1007.)

Here, it is clear the Department did provide reasonable services for mother. The Department recommended drug treatment and parenting classes, as well as individual counseling when it was determined that mother had mental health issues. The social worker worked to find a no-contest counselor for mother, and arranged counseling sessions for her. When it became apparent that anger management was an issue of mother, the social worker requested a referral to a parenting without violence class for mother. It is clear the social worker made on-going changes to the service plan for mother, and responded to mother’s needs throughout the service period.

Under the circumstances, substantial evidence supports the juvenile court’s determination that the Department provided mother with reasonable services.

Disposition

The petition for extraordinary writ is denied.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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