Susana G. v. Superior Court

Susana G. v. Superior Court

Filed 9/9/08 Susana G. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SUSANA G., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;	D053177 (San Diego County Super. Ct. No. J516-256B, D)
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.

PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Gary M. Bubis, Judge. Petition denied.

Susana G. seeks review of juvenile court orders setting a hearing under Welfare and Institutions Code section 366.26.^[1] Susana contends the court erred when it found that reasonable services were provided. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

This proceeding concerns Aurora P. and Tomas P., Jr. (together, the children), two of five minors^[2]removed from parental custody in July 2006 due to maternal substance abuse. ( 300, subd. (b).) The San Diego County Health and Human Services Agency (Agency) identified the problems necessitating the minors' removal from their home as maternal substance abuse, domestic violence and neglect. The Agency later identified additional risk factors. These included alcohol abuse by T.P., the children's father, physical abuse of the minors by the parents, the parents' failure to protect Aurora from sexual abuse and Tomas's exposure to methamphetamine through breastfeeding.

Shortly after the children were detained in May 2006, Susana entered a six-month residential treatment program. The Agency arranged weekly visits between Susana and the minors, which began on July 13, 2006.

Aurora and Tomas were placed together in foster care and remained in the same home throughout the proceedings. Roberto was placed in the same foster home in December 2006.

Eight-year-old Aurora was diagnosed with an Adjustment Disorder with mixed anxiety and depressed mood and nighttime enuresis. In June 2006 she started individual therapy with Nubia Pea-Offerdahl, L.C.S.W. (Pea). The Agency reported that Aurora enjoyed visiting Susana and talking to her on the telephone. Aurora was afraid her father would scream at her or hit her during visits. After visiting him, Aurora cried, trembled and urinated on herself. Aurora worried that Susana would allow the father in the home and said she was afraid to reunify with her mother.

Three-year-old Tomas was diagnosed with posttraumatic stress disorder (PTSD), physical abuse of a child, enuresis, separation anxiety disorder and mixed receptive/expressive language disorder. His behaviors were characterized as aggressive, self-injurious, defiant and clinging. Tomas required nerve treatment and crown placement on 14 decayed teeth under general anesthesia. During visits with his father, Tomas appeared frightened. The foster mother reported that Tomas shook with fear, cried, urinated on himself during visits and telephone calls with his father and exhibited self-destructive behaviors before and after visits. Tomas started therapy with Pea in September 2006.

To alleviate the children's symptoms, Pea advised the Agency to suspend visits with T.P. In November 2006 T.P. agreed to suspend visitation until the children developed a sense of security and safety.

In reports prepared for the 12-month review hearing, the Agency stated that Susana continued to visit the minors each week. In March 2007 T.P. arrived early for a visit with the siblings and spoke to Aurora. Aurora cried uncontrollably and refused to attend the next several visits with Susana out of fear she might encounter her father.

In June 2007 Aurora's mental health diagnosis was changed from "Adjustment Disorder with Mixed anxiety and depression" to PTSD. Pea reported that Aurora's "main and constant fear" was that she would be returned to her parents.

In July 2007 the Agency increased Susana's visitation with the minors to two hours each week. After visitation increased, Pea reported that the children's behaviors regressed. Tomas had nightmares, sleeplessness, temper tantrums, crying spells and physical aggression. His symptoms lasted two to three days after each visit. Pea recommended that visits between Tomas and Susana be suspended for six weeks to see whether his symptoms of PTSD and dissociation would improve and to avoid placing him on psychotropic medication. Pea also recommended a six-week suspension of visits for Aurora, whose anxiety had significantly increased.

On August 8, 2007, with Susana's concurrence, the court suspended Susana's visitation with the children for six weeks. The court found that Susana and T.P. made substantial progress with their case plans but had made only minimal progress toward alleviating or mitigating the causes necessitating the children's placement.

At a special hearing on visitation on August 22, 2007, the court ordered the Agency to work with Pea to reinitiate visitation in a therapeutic setting for the benefit of the children.

In September 2007 Pea reported that Aurora continued to have fear and anxiety about visiting her parents. Aurora was encouraged to engage in conjoint therapy with Susana and T.P. but those suggestions increased Aurora's anxiety. Pea opined that reinitiating visitation would be detrimental to Aurora's psychological health.

Pea noted that Tomas had almost no incidents of temper tantrums, crying spells, sleeplessness or enuresis in the three weeks after supervised visits were suspended. Tomas stated that he did not want to see his parents or return to them. Pea opined that not only would reinitiating visitation be detrimental to Tomas's healing, there was a high risk he would have regressive behaviors if pressured to visit his parents and older brothers.

Proceedings related to the 18-month review hearing were held on November 19, 2007, and January 28, March 5, March 14 and June 3, 2008. On behalf of Aurora and Tomas, the Agency recommended the court set a section 366.26 hearing. The Agency recommended the court place Ivan, H.P. and Roberto (collectively siblings) in T.P.'s care under a plan of family maintenance services.^[3]

Social worker Juan Estrada testified he was assigned the minors' cases in January 2008. The siblings had an affectionate, loving, close relationship with T.P. They were happy to see him. Aurora was afraid to visit her parents. Tomas consistently said he did not want to visit them. Estrada could not explain the differences in the minors' attitudes toward their parents. He suggested it might be due to differences in the minors' coping skills and ages. Estrada had no reason to believe the foster parents were manipulating the children. The children were assured they would be safe during therapeutic visits with their parents but refused to see them, even in a therapeutic setting.

In his written report, Estrada stated that Susana was loving and caring during visits with the siblings and they communicated well. She was continuing to address protective

issues, including sobriety. Pea reported that Aurora made progress in dealing with traumatic memories of domestic violence and physical and sexual abuse. She wanted to stay with her foster family and feared reunification with her parents. Aurora refused to have conjoint therapy sessions with her father and siblings. Pea opined that it would be detrimental to Aurora to pressure her to attend conjoint therapy with either parent.

Tomas displayed symptoms of PTSD when Roberto visited his father. His symptoms included nightmares, enuresis, hearing a "monster" voice, sexual acting out, crying, amnesic episodes and preoccupation with the possibility his younger brother would be abused. When Pea suggested Tomas participate in conjoint therapy sessions with his parents and siblings, he appeared to be frightened.

Alma M., the children's maternal great-aunt, testified she had four or five visits with the children for the purpose of placing them in her care. Alma believed the children enjoyed visiting her. At a meeting in February 2008, Aurora told Alma that she did not want to continue to visit, and visits stopped.

T.P. testified Aurora did not demonstrate any anxiety during the first year of visitation. After she began therapy, Aurora became nervous during visits, and suddenly said she did not want to see him.

The court stated it would not treat the minors as a "package deal." The court observed that services did not erase the parents' history of substance abuse, domestic violence, excessive discipline and violence that had traumatized Aurora and Tomas. The children's siblings were not as impaired. The court stated it understood why Susana and T.P. would look for a reason to explain the disparities in their relationships with the children and siblings. The court could find no factual basis to support the parents' concern that the foster parents had influenced the children against their parents. The court terminated reunification services and set a section 366.26 hearing for Aurora and Tomas.

Susana petitions for review of the court's orders under California Rules of Court, rule 8.452. She requests this court reverse the orders setting a section 366.26 hearing. On June 20, 2008, this court issued an order to show cause, the Agency responded, and the parties waived oral argument.

DISCUSSION

Susana contends the court erred when it found that reasonable services were provided to her. She asserts the services provided were not reasonable in view of the lack of visitation between her and the children. Susana argues the Agency impermissibly shifted the burden to her to find a way to improve her relationships with Aurora and Tomas, while allowing the foster parents to undermine visitation.

The Agency contends substantial evidence supports the finding Susana was offered or provided reasonable services, including residential and outpatient substance abuse treatment services, parenting education, general counseling, domestic violence treatment and visitation services from July 2006 to August 2008. The Agency argues visitation services were then tailored to meet the children's needs, as recommended by the children's therapist.

Family reunification services play a critical role in dependency proceedings. ( 361.5; In re Alanna A. (2005) 135 Cal.App.4th 555, 563; In re Joshua M. (1998) 66 Cal.App.4th 458; see 42 U.S.C.  629a(a)(7).) If reasonable services were not provided or offered to the parent, the court is required to continue the case for the period of time permitted by statute. (See  366.21, subd. (e);  366.21, subd. (g)(1).) The "adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.)

"Visitation between a dependent child and his or her parents is an essential component of a reunification plan, even if actual physical custody is not the outcome of the proceedings." (In re Mark L. (2001) 94 Cal.App.4th 573, 580; In re J.N. (2006) 138 Cal.App.4th 450, 458.) To promote reunification, visitation must be as frequent as possible, consistent with the well-being of the child. ( 362.1, subd. (a)(1)(A); In re Alvin R. (2003) 108 Cal.App.4th 962, 972.)

Reunification services should be tailored to the particular needs of the family. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 793, citing In re Alvin R., supra, 108 Cal.App.4th at p. 972.) "The 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.) To support a finding reasonable services were offered or provided, "the 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.)

We review the evidence most favorably to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R., supra, 2 Cal.App.4th at p. 545.)

We agree with the trial court's assessment that this dependency matter is atypical. Susana and T.P. participated in required services and overall made substantial progress with their case plans. At the time of the 18-month review hearing, the Agency believed it could safely place the siblings in T.P.'s care under a plan of family maintenance services, and Susana was parenting a non-dependent infant. The children's siblings had positive relationships with their parents. However, the record shows the parents' relationships with Aurora and Tomas were detrimental to the children.

The record permits the reasonable inference Aurora and Tomas were traumatized by the conditions in the parental home, which included methamphetamine and alcohol abuse, domestic violence, physical abuse and neglect. The children were placed in a safe, stable foster home. That the children may have grown to trust their foster parents and want the security of a safe home does not mean reunification efforts were unreasonable.

We are not persuaded by Susana's arguments the Agency impermissibly denied her a means to improve her relationships with the children and allowed the foster parents to undermine visitation. The Agency provided Susana with weekly visitation services for more than one year. During this time she was unable to regain the children's trust. On Pea's recommendation, visitation was suspended in August 2007, with Susana's concurrence. The foster parents continued to facilitate Roberto's visits with his parents, which led to the two year old's reunification with his father and siblings. We infer the foster parents would have continued to facilitate the children's visits had that been the order of the court. We agree with the trial court's assessment there is no evidence to support the allegation that the foster parents impeded the children's visitation with Susana or T.P.

Susana also asserts the Agency did not make reasonable efforts to initiate therapeutic visitation with the children. The record shows the Agency encouraged Aurora and Tomas to participate in conjoint therapy with Susana. Aurora adamantly refused to have any contact with her parents, even in a therapeutic setting. Pea opined that it would be detrimental to Aurora to pressure her to engage in conjoint therapy. Tomas appeared to be frightened when the issue of therapeutic visitation was raised. (See, e.g., In re Mark L. (2001) 94 Cal.App.4th 573, 581 [the trial court properly denied visitation where forced contact with an abusive parent would harm the child emotionally].)

The record shows the Agency reasonably tailored visitation services to ensure the children's well-being. (In re Alvin R., supra, 108 Cal.App.4th at p. 972.) Substantial evidence supports the finding that reasonable services were offered or provided to Susana.

DISPOSITION

The petition is denied.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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^[1] Unless otherwise specified, further statutory references are to the Welfare and Institutions Code.

^[2] The minors are Ivan, Aurora, H.P., Tomas and Roberto, now ages 12, 11, 9, 5 and 2-1/2 years respectively. Ivan, H.P. and Roberto were returned to their father's care at the 18-month review hearing.

^[3] Susana and T.P. separated in October 2007. Their sixth child was born after they separated. The child remained in Susana's care.