A.S. v. Super. Ct.

Filed 2/3/10 A.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A.S. (Mother) challenges an order of the San Francisco City and County Superior Court, made November 16, 2009, in which the court set a hearing under Welfare and Institutions Code[1] section 366.26 to select a permanent plan for the minor C.Q. (born March 2008). Mother challenges the juvenile courts finding that the San Francisco Human Services Agency (Agency) offered or provided her with reasonable services. As discussed below, we conclude substantial evidence supports the finding and deny Mothers petition on the merits.[2]

I. Background

The Agency initiated this proceeding on August 28, 2008, and the juvenile court formally detained the minor in foster care the following day. The minor, then five months of age, had been earlier diagnosed with a severe form of dilated cardiomyopathy, or enlarged heart. He needed to be seen weekly by a physician, and needed to take aspirin and three other medications every day. His condition was deemed potentially fatal if his heart [was] stressed by illness or inconsistent medical and basic care.

At a combined jurisdictional and dispositional hearing on February 4, 2009, the juvenile court sustained the following allegations under section 300, subdivision (b): On August 22, 2008, the minor missed a scheduled medical appointment because Mother left the clinic after fighting with C.Q. (Father); Mother and Father had neglected the minors medical requirementsincluding medicationsand such neglect could result in great physical harm; and Mother and Father had a relationship characterized by domestic violence.

The courts dispositional orders continued the minor in foster care and directed the Agency to provide Mother with reunification services. It also ordered supervised visits for Mother, while giving the Agency discretion to arrange overnight [and] unsupervised visits. In addition to regular visitation with the minor, Mothers case plan called for her to participate in individual therapy, complete an anger management program, participate in parenting classes or infant parent therapy, complete a CPR class, and meet with the minors medical care providers in order to gain understanding both of the minors condition, with its possible risks and complications, and also his medical needs, including medication. An Agency report completed a few weeks before the hearing stated Mother had begun many efforts to address her case plan, including traveling to visit the minor, taking classes and maintaining contact. Mother, however, appeared much younger . . . emotionally and developmentally than her actual age of 19 years, and concern remain[ed] over her ability to accept and integrate information and react . . . responsibl[y] . . . to keep the minor safe.

The caseworker assigned to the case in February 2009 reported Mother had made significant progress with her case plan requirements until the latter part of March, when her participation in parenting classes and therapy decreased for a number of weeks. As of late April, after resuming her participation in services, Mothers wish was to have the minor placed with her in the home of her maternal great-aunt, P.P. (Aunt). On May 7, the caseworker informed Mother that if she continued participating in her case plan until the next progress review, set for late May, the caseworker would consider returning the minor to her care provided she lived with Aunt.

The next day, Mother requested, and the caseworker granted, an unsupervised visit to take place on May 10, Mothers Day. Mother was to pick the minor up at his foster care placement at 11:00 a.m. and return him at 7:00 p.m., in time for the foster parent to give the minor his scheduled evening medications. Mother did not return the minor until 2:00 p.m. the following day, May 11. On the morning of May 11, the caseworker, unsure of the minors whereabouts and concerned that he had missed taking critical medications both that morning and the previous evening, sought a protective custody warrant. [S]crambling to locate and secure the minors return, the caseworker had to search out [Mother] and tell her that she needed to return the child to the foster mother [and] assist in coordinating a plan for the return trip to happen. Mother returned the minor only with the assistance of her advocate at Positive Directions Equals Change (PDEC), a provider of parenting education and therapy services.

Because of Mothers poor judgment in this incident, the caseworker was unable to recommend that the minor be returned to Mother at the end of May. Aunt, meanwhile, had expressed a willingness to care for the minor on a permanent basis if necessary. The caseworker accordingly continued to investigate the possibility of moving the minor from foster care to placement with Aunt, and in July obtained an order from the juvenile court effecting this change.

In mid-July 2009, the caseworker completed a report for the six-month status review hearing set for the following month, in which she recommended terminating Mothers reunification services and setting a hearing under section 366.26 to select a permanent plan for the minor. (See 366.21, subd. (e).)

Reports and testimony admitted at the six-month hearing indicated Mother had visited the minor on a regular and consistent basis and taken care to continue her relationship with [him]. She had, in particular, visited on a frequent basis after the minors placement with Aunt, at one point staying at Aunts home for a week. The caseworker testified Mother had been allowed to visit as often as she wished within reason and with Aunts supervision.

In other respects, Mother had not complied with her case plan. After May, Mother discontinued participation in services at PDEC, ceasing her therapy without closure, and leaving her parenting education and anger management components uncompleted. Mother had also failed to follow through with Agency arrangements for CPR training, and the caseworker had not been able to confirm Mothers purported training elsewhere. According to the caseworker, Mother had not resumed full participation in her services until October 2009, several months after the initial date scheduled for the six-month status review hearing.

In the caseworkers assessment, Mother was bonded with the minor as a result of her visitation efforts.[3] But the minors serious medical condition . . . require[d] constant medical care . . . and monitoring of his condition by his caregiver [and it] appear[ed] [Mother] [was] not able to provide the extent of care needed for her child to be returned to her. Additional concerns were the lack of maturity Mother had displayed during her unsupervised Mothers Day visit, as well as a certain roughness in her parenting style, which had been noted by the caseworker, medical care providers, and Mothers former infant parenting therapist.

At the conclusion of the six-month status review hearing on November 16, 2009, Mothers counsel argued, among other things, that the Agency had not provided Mother with reasonable services because, after Mothers unsupervised visit on Mothers Day; it had not gradually reintroduced unsupervised visitation in order to determine whether Mother was capable of caring for the minor without supervision, despite his medical condition. Minors counsel joined in this argument. The juvenile court, however, found that the Agency had provided Mother with reasonable services. It further adopted the Agencys recommendations, terminating Mothers services and setting the matter for a hearing under section 366.26. Mothers petition followed. ( 366.26, subd. (l).)

II. Discussion

Mother argues, as she did below, that the Agency failed to provide adequate services . . . in terms of visitation. In her view, the Agency should have set up a plan for gradual unsupervised visitation to determine if [she had] learned from her mistake and was able to properly care for [the minor].

In effect Mother challenges the juvenile courts reasonable services finding. In reviewing that finding, we examine the record in the light most favorable to the juvenile courts order, to determine whether there is substantial evidence from which a reasonable trier of fact could have made the finding under the clear and convincing evidence standard. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694.) We construe all reasonable inferences in favor of a finding regarding the adequacy of an agencys reunification plan and the reasonableness of its efforts. (In re Julie M. (1999) 69 Cal.App.4th 41, 46.) We likewise resolve conflicts in favor of such a finding and do not reweigh the evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) If the finding is supported by substantial evidence, we affirm the ruling, even though other evidence might support a contrary conclusion. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)

As noted above, the juvenile courts visitation order issued at the dispositional hearing called for Mother to have supervised visitation. It also gave the Agency discretion to arrange unsupervised visits, and the caseworker agreed to such a visit in May 2009, when it appeared that Mother was progressing well. Mothers failure to return the minor on time in that instance was a serious error in judgment, resulting in the issuance of a protective custody warrant. Even Mother admitted the minor had been in harm without his medication. In our view, the caseworker did not abuse the discretion granted by the court when she declined thereafter to allow unsupervised visitation. She permitted frequent visitation otherwise, especially after the minor was placed with Aunt, so long as Aunt was on hand to monitor the minors condition. It is clear from the caseworkers reports and testimony that Mothers noncompliance with her case plan was not so much a visitation issue as her discontinued participation in other components of her plan that were designed to assist Mother in gaining the skills she needed to care for an infant with a serious medical condition.

The Agencys duty was to make a  good faith effort  to provide reasonable reunification services. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) Services may be deemed reasonable when the case plan has identified the problems leading to the loss of custody, the agency has offered services designed to remedy those problems, has maintained reasonable contact with the parent, and has made reasonable efforts to assist the parent in areas in which compliance has proven to be difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The standard is not whether the agency could have provided better services in an ideal world, but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

We conclude substantial evidence supports the juvenile courts finding that the Agency offered or provided Mother with reasonable reunification services, including visitation.

III. Disposition

The request for stay is denied and the petition for extraordinary writ is 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.

_________________________

Margulies, Acting P.J.

We concur:

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Dondero, J.

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Banke, J.

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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] Because the minor was currently placed with Aunt, who desired to be appointed as the childs legal guardian, the caseworker noted Mother could continue her important role in the minors life.