C.H. v. Superior Court

Filed 12/1/08 C.H. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDING; petition for extraordinary writ. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Petition denied.

Charles Casey for Petitioner.

No appearance for Respondent.

Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Real Party in Interest.

Petitioner C.H. (Mother) is the mother of six-year-old J.S. Mother filed this writ petition pursuant to California Rules of Court, rule 8.452, challenging an order setting a Welfare and Institutions Code section 366.26^[1]permanency planning hearing as to the child. Mother contends that the juvenile court erred in denying her request to continue services beyond the 18-month statutory period and denying a continuance. For the reasons provided below, we reject Mothers challenge and deny her petition.

I

FACTUAL AND PROCEDURAL BACKGROUND

The child came to the attention of the Riverside County Department of Public Social Services (DPSS) in June 2005 after a referral was received with allegations of physical and emotional abuse to the child. It was reported that Mother had a substance abuse problem, that she drove while intoxicated with the then three-year-old child in the car, and that she left the child unattended while she slept all day. It was also reported that Mother was physically and verbally abusive to the child, as she could be heard screaming at her child by neighbors.

The social worker made numerous attempts to contact Mother and J.S. in person but without success. On July 10, 2005, Mother finally responded to the social worker by telephone. Mother was referred to drug test on July 11, 2005, and the results were negative, but the sample was too diluted to insure accuracy.

After several unsuccessful attempts, the social worker eventually contacted Mother on August 8, 2005, at her home. Mother denied all the allegations. No marks or bruises were observed on J.S. Mother submitted to another drug test; the results came back positive for methamphetamine.

After further investigation, Mother was offered Family Maintenance Voluntary (FMV) services. On September 28, 2005, Mother agreed to participate in FMV services. However, during an assessment, Mother declined the services, stating she did not have a substance abuse problem.

On October 5, 2005, police called the social worker with information that Mothers boyfriend was suspected of selling drugs out of Mothers house. When the police and the social worker arrived at the home, Mother denied any illegal activity, as well as drug use. Police found several methamphetamine pipes, one of which still had methamphetamine in it, and one gram of methamphetamine. In a field test, Mother tested positive for drugs. She and the boyfriend were arrested. J.S. was taken into protective custody and placed in a foster home.

The jurisdictional/dispositional hearing was held on November 10, 2005. Mother waived her constitutional rights, and the allegations in the petition were found true as amended. Mother was provided with reunification services. J.S. was returned to Mother in December 2005, after she enrolled in a drug treatment program.

On June 5, 2006, DPSS received a referral alleging general neglect and physical abuse of the child. It was alleged that Mother would lock her son in the closet and duct tape him to the chair as a form of punishment. On one occasion, Mother left the child in the closet all night long. It was also alleged that Mother had hit her child in the stomach, causing him to vomit, and that she had been drinking and driving with her son in the car. Mother repeatedly denied the allegations. The social worker attempted to make contact with Mother for over two weeks to no avail. On July 12, 2006, Mother was pulled over by police for driving without a license. During the stop, the officer observed Mother pushing the child, who appeared dirty and disheveled. Mother stated she was homeless and living with a friend. Mother again denied all the allegations, even though an officer suspected Mother of being under the influence. J.S. confirmed the abuse allegations in an interview with the social worker. Mother was arrested; J.S. was taken into protective custody and formally detained on July 18, 2006.

Mother eventually received a four-year sentence for being under the influence and child endangerment but failed to appear in court, and a bench warrant was issued for her arrest. Mother had a visit with her son on September 18, 2006. At that time, Mother was advised to resolve her criminal matter.

The jurisdictional/dispositional hearing was held on September 21, 2006. The allegations in the petition were found true as amended. J.S. was declared a dependent of the court. Mother was provided with reunification services.

By the six-month review hearing, the social worker recommended terminating Mothers services. Mother had been incarcerated and was attempting to participate in programs while in prison. Her anticipated release date was October 7, 2007. Prior to her incarceration, Mother had twice weekly supervised visits with her son. It was reported that Mother was appropriate during the visits. J.S. was in a foster home and appeared to be doing well. He was in the process of being placed with his half sister in a nonrelative extended family members home.

By May 2007, J.S. had been placed with his half sister; he appeared to be happy and doing well. The caregiver reported that J.S. had had an outburst after having been read some letters from his mother wherein he threw things and knocked things over. The caregiver was taking J.S. to see a therapist three to four times a week.

At the contested six-month status review hearing on May 15, 2007, the court found that reasonable services had not been provided to Mother. The court ordered services to begin anew for Mother and also ordered DPSS to arrange reasonable visitation, including telephone contact, between Mother and child at prison.

In July 2007, DPSS filed an ex parte application to temporarily suspend visitation between Mother and J.S., except in a therapeutic setting. DPSS received a letter from the childs therapist noting that J.S. had chronic posttraumatic stress disorder and that the child was traumatized all over again at seeing any letters or pictures of, or hearing mention of, Mother. The therapist further noted that J.S. had recently experienced distressing recollections, tearfulness, and acting-out behaviors, due to the viewing of a picture of [Mother]. The therapist therefore recommended that J.S. have no contact with Mother. On July 11, 2007, the court temporarily suspended visitation.

By October 11, 2007, Mother, a citizen of Germany, had been released from state prison and was in jail awaiting deportation. Mother had utilized services while in prison. However, she had not proven she could remain sober and safely parent her child outside of prison. She had a long history of substance abuse and did not have her own residence or employment. The social worker therefore recommended six more months of services to measure [M]others success while she is not incarcerated. The social worker opined that there were no assurances that J.S. would be safe in Germany, as he did not have any strong bond with anybody in Germany. J.S. had been having visits with the maternal grandmother when she came from Germany, but there appeared to be no bond between the two.

J.S. was developing well in his caregivers home. He was happy and had developed a strong bond with his older half sister and caregiver. He truly enjoyed being with his teenaged half sister and called his caregiver mom.

J.S.s therapist reported on October 2, 2007, that J.S. was still very fearful of Mother and past events. The therapist reported, When the mom subject arises, or specific toy characters are labeled the mom in session, [J.S.] will throw, hide, bury, or avoid the toy completely. He needs to be consoled after these exchanges as he is tearful, scared, and/or angry. A number of days after these therapy sessions, his foster mom reports noticeable regression in [J.S.] He would have increased nightmares and night[]terrors, oppositional behaviors, and angry outbursts throughout the day. Currently, the mere mention of her name, sets [J.S.] back. The therapist therefore recommended no contact in any form with Mother. Mothers letters had been forwarded to the therapist, who had completely read the letters but had not reviewed them with J.S. The therapist opined J.S. was too emotionally fragile to process Mother or her writings.

By December 2007, Mother had been deported to Germany and was working in a senior center caring for the elderly on a full time basis. She moved into an apartment owned by her parents and was making about $400 a week. She was also participating in services in Germany. The social worker opined that though Mother was doing a good job with her case plan services, the damage J.S. suffered psychologically from his mother was very severe and therefore continued to recommend out-of-home placement. The social worker also recommended terminating services. J.S.s therapist continued to recommend no contact between Mother and child as J.S. continued to be fearful of his mother and of past events. The therapist explained, He experiences intense psychological distress at the exposure to any internal or external cues that symbolize or resemble any aspect of the traumatic events he has been through.

On January 9, 2008, Mother was provided with six more months of services.

By March 2008, J.S., his half sister, and his caregiver had moved to Arizona, and the caregiver had been appointed de facto parent status. As of May 2008, J.S. had been residing with his half sister and caretaker for over a year and had built a trusting, loving, and healthy relationship with them, which was reciprocated.

After J.S. moved to Arizona, he began seeing Dr. Larry Grimm, a pediatric psychologist in Arizona. On May 8, 2008, after five sessions, the psychologist provided DPSS with a report. Dr. Grimm concurred with J.S.s previous therapist that J.S. suffered from posttraumatic stress disorder and added a secondary concomitant diagnosis of reactive attachment disorder. Dr. Grimm also supported the previous recommendation of no maternal contact given the retraumatizing effect on J.S. of any such contact. Dr. Grimm reported that J.S. was a severely traumatized young boy who associated his mother with his traumatic experience and noted that the mere mention of his mother caused J.S. to be in hyperarousal, dissociation, and/or constriction.. Dr. Grimm recommended that J.S. continue to be seen twice weekly for individual therapy for at least the next five years and reiterated absolute no maternal contact given the retraumatizing effect of any such contact.

The contested 12-month review hearing was held on July 22, 2008. At that time, Mothers counsel requested a continuance to allow counsel to contact Dr. Grimm to discuss the doctors conclusions with him. The court denied the continuance, noting the age of the case and the fact that J.S. had been in dependency for almost two years. The court also noted that in addition to Dr. Grimms findings another doctor has examined the minor and presented . . . the exact same conclusion, and for that reason, the Court at this time will deny the request to continue. Following admission of evidence and argument from counsel, the juvenile court found that it was not in the childs best interest to continue services. The court then terminated services and set a section 366.26 hearing.

II

DISCUSSION

A. Failure to Continue Services Beyond 18-Month Period

Mother contends the juvenile court erred in denying her request to continue services beyond the 18-month period pursuant to section 352. A juvenile courts dispositional orders, including those respecting reunification services, are subject to that courts broad discretion. To reverse such an order, a reviewing court must find a clear abuse of discretion. (In re N.M. (2003) 108 Cal.App.4th 845, 852.) The juvenile court here did not abuse its discretion in denying Mothers request to extend the reunification period.

In enacting the dependency statutes, the Legislature recognized that, in order to prevent children from spending their lives in the uncertainty of foster care, there must be a limitation on the length of time a child has to wait for a parent to become adequate. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) The reunification period typically is 12 months when the child was older than three years of age at the time of removal from the home. If certain statutory prerequisites are met, court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from [the] physical custody of his or her parent . . . . ( 361.5, subd. (a)(3).)

However, despite the maximum 18-month limitation . . . a juvenile court may, in rare instances, continue reunification services beyond 18 months. (In re N.M., supra, 108 Cal.App.4th at p. 852.) The court must determine that the best interests of the child warrant the continuation, despite the recognized need for a prompt resolution of his or her custody status. (Ibid.) Continuances shall be granted only upon a showing of good cause ( 352, subd. (a)), and [c]ircumstances that have been held to justify extension of services beyond 18 months include a parents hospitalization for all but five months of the reunification period or the fact a reunification plan has not been implemented during most of the reunification stage. (N.M., supra, at p. 856.)

Mother identified no such extraordinary circumstances justifying extension of the reunification period. J.S. was detained for a second time in July 2006, over two years ago, when he was about four years of age. Mother had essentially been given 18 months of reunification services.

In support of her argument, Mother asserts she did not receive reasonable services since she was denied visitation, essentially claiming the complete denial of visitation with J.S. rendered the reunification services she received per se unreasonable.

Visitation rights arise from the very fact of parenthood and the constitutionally protected right to marry, establish a home, and bring up children. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 756-757.) Section 362.1, subdivision (a)(1) requires that a reunification plan provide for visitation between parent and child, as frequently as possible. Visitation is a critical element of any reunification because it is critical to the promotion of a parents interest in the care and management of his or her children. (In re Luke L. (1996) 44 Cal.App.4th 670, 679.) While visitation is a key element of reunification, the court must focus on the best interests of the children and on the elimination of conditions which led to the juvenile court's finding that the child has suffered, or is at risk of suffering, harm specified in section 300. [Citation.] This includes the possibility of adverse psychological consequences of an unwanted visit between mother and child. [Citation.] (In re Julie M. (1999) 69 Cal.App.4th 41, 50.)

In this case, the denial of visitation was based on the best interest of the child. As set out in detail, ante, two different psychologists opined that contact between Mother and J.S. was extremely detrimental to the child and both strongly recommended no contact whatsoever between Mother and J.S.

At the 12-month contested hearing, in denying Mothers request for a continuance, the court noted that both therapists came to the exact same conclusion after examining J.S. In accordance with In re Julie M., supra, 69 Cal.App.4th at p. 50, the court appropriately relied upon the evaluations of J.S.s treating therapists regarding his emotional condition and needs and in ultimately finding that Mother had been provided with reasonable services.

We review the correctness of an order pursuant to section 366.21 to determine if it is supported by substantial evidence. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) That standard requires us to determine whether there is reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged . . . . (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) In reviewing the reasonableness of the reunification services, we recognize that in most cases more services might have been provided, and the services provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) A court-ordered reunification plan must be tailored to fit the circumstances of each family and designed to eliminate the conditions that led to the juvenile courts jurisdictional finding. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.)

The record in this case, set out above, reveals the services offered were reasonable â€‘‑ they were tailored to fit the circumstances and to eliminate the conditions that led to the juvenile courts jurisdictional finding â€‘‑ and Mother consented to them. In fact, Mother does not dispute that she was not provided with programs to complete her case plan. Visitation appears to be the only issue. However, as noted above, visitation was properly terminated between Mother and child for the best interest of the child. The services provided here were certainly reasonable under the circumstances. Substantial evidence reveals that DPSS provided Mother with reasonable reunification services.

As noted above, [a] court may extend the 18-month maximum for reunification efforts only under very limited circumstances, that is, when: no reunification plan was ever developed for the parent [citation]; the court finds reasonable services were not offered [citation]; or the best interests of the child would be served by a continuance (see 352) of an 18-month review hearing [citation]. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.) A juvenile court may exercise its discretion to extend family reunification services beyond the statutory limit in a special needs case. [Citations.] However, in these cases, there were extraordinary circumstances which militated in favor of extension of family reunification services beyond the 18-month limit. These circumstances uniformly involved some external factor which prevented the parent from participating in the case plan. (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388.) [S]ection 352 provides an emergency escape valve in those rare instances in which the juvenile court determines the best interests of the child would be served by a continuance of the 18-month review hearing. The express language of section 352 circumscribes the courts discretion by emphasizing the childs need for prompt resolution of his or her custody status. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798-1799.) There were no exceptional circumstances here to warrant a continuance of services beyond the 18-month period.

B. Denial of Continuance

Mother also claims that the court erred in denying her request to continue the matter. We disagree.

A request or motion for a continuance is governed by section 352. Section 352, subdivision (a) provides, in relevant part: Upon request of counsel for the parent . . . , the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a minors need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause. Further, neither a pending criminal prosecution nor family law matter shall be considered in and of itself as good cause.

A motion for a continuance requires written notice of the motion and supporting documents detailing specific facts showing that a continuance is necessary served at least two days prior to the hearing on the motion. ( 352, subd. (a).) However, an oral motion for a continuance may be made if good cause is shown. (Ibid.)

Courts have interpreted the policy behind section 352 as an express discouragement of continuances. [Citation.] The courts denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. [Citation.] Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. [Citation.] (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.)  . . . The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citation.] (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.)

Here, J.S. had been a dependent of the court for over two years. He deserved the permanency and stability the dependency system is intended to provide. It was in his interest to proceed with the hearing. To overcome this, Mothers counsel supported his request for a continuance with only his statement that he wanted a continuance in an attempt to contact J.S.s therapist in Arizona to discuss the conclusions in the therapists report. Significantly, counsel gave no indication that the therapists conclusions were in error or inadequate, nor did he argue or suggest that Mother would be prejudiced in any way by denying the continuance. He did not indicate how long of a continuance would be needed. Moreover, as the record reveals, the matter had been continued several times, and counsel was put on notice in the early part of June 2008 regarding the therapists recommendation and thus had ample time to contact the therapist prior to the hearing. Under these circumstances, the court did not abuse its discretion in denying the request.

III

DISPOSITION

The petition for extraordinary writ is DENIED.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

KING

J.

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^[1] All future statutory references are to the Welfare and Institutions Code unless otherwise stated.