Daniel P. v. Super. Ct.

Filed 10/4/07 Daniel P. v. Super. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Proceedings for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Cynthia A. Bashant, Judge. Petitions denied. Request for stay denied.

Cheryl P. and Daniel P. (together the parents) seek review of orders terminating their reunification services regarding the dependency of their son, Nicholas P., and referring the case for a Welfare and Institutions Code section 366.26 hearing.^[1] They contend the court erred by not returning Nicholas to their custody. They argue they participated regularly and made substantive progress in reunification services and there was insufficient evidence to show returning Nicholas would create a substantial risk of detriment. They also assert the court erred by not extending services for another six months. We deny the petitions.

FACTUAL AND PROCEDURAL BACKGROUND

On October 7, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant Nicholas under section 300, subdivision (b), alleging he was at risk in the parents' care because Daniel has a mental illness, including mood and impulse control disorders; Cheryl has borderline intellectual function and mild mental retardation; and Nicholas's sibling was removed in May 2004 and had not been returned because the parents did not comply with their reunification plans. The sibling, Daniel P., Jr., was removed from the parents at age two when police found him and the parents asleep on a downtown sidewalk and were unable to wake them. The court ordered Nicholas detained and ordered supervised visits.

A psychologist who conducted an evaluation of Cheryl reported she had extremely low average to borderline intelligence and significant cognitive impairments, but would not accept services from the San Diego Regional Center. The psychologist said both parents received disability payments because of their cognitive problems. When the social worker explained to Cheryl that Nicholas could not go home from the hospital with her she appeared not to understand and said, "That's not fair. We didn't do anything wrong."

A psychologist who evaluated Daniel said he appeared not to understand about adequate parenting or a child's developmental needs, could not appropriately address conflicts and acknowledged a history of emotional problems. Another psychologist who evaluated him said Daniel acknowledged being an alcoholic for 21 years, but said he then stopped and attended AA. Daniel said his anger problems were worse when he was actively drinking and that medication had helped his mood and anger problems. The psychologist diagnosed him as having a mood and impulse control disorder. The social worker reported Daniel believed the social workers were conspiring to keep Daniel P., Jr., from being returned home and that he had been removed only because he had dental problems.

On October 24, 2005, the court sustained the petition. On January 12, 2006, it declared Nicholas a dependent child, continued him in foster care, denied services and set a section 366.26 hearing. The parents challenged the orders by filing petitions with this court. This court granted the petitions in part and ordered the juvenile court to vacate its previous order denying services in Nicholas's case and to issue new orders directing the Agency to provide services. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 99-100.) The juvenile court vacated its previous order and ordered the parents to comply with their service plans, which included therapy, another psychological evaluation for Daniel, in-home parenting instruction and visitation.

At the six-month review hearing on November 6, 2006, the court continued reunification services and set a 12-month hearing. For the 12-month hearing the social worker reported the parents had begun programs at the San Diego Regional Center and were participating in parenting education. However, the court had earlier suspended Daniel's visitation for a time because he behaved inappropriately during a visit. Daniel continued to show frustration and problems with anger management and, during a March 16, 2006 visit, he swore and told Cheryl she was stupid and to "shut up."

At the contested 12-month hearing on June 20 and 25, 2007, the social worker testified Daniel had improved in his ability to manage his anger but it was still a concern. The social worker said Daniel knew how to feed and diaper Nicholas although he sometimes required prompting. Nicholas appeared calm during visits. The social worker testified Cheryl needed instruction on providing balanced meals and nutrition and did not fully understand how Daniel's anger problems presented a risk.

The independent living skills instructor testified she had worked with the parents for about one year. She said they consistently attended appointments and had benefited from the support she offered.

Daniel's therapist testified he began treating Daniel in February 2007 for parenting and anger management issues. Daniel stopped therapy for a time because he was frustrated about a conversation the therapist had with the social worker. He later returned to therapy. The therapist said Daniel had made some progress in managing his anger and advised continued anger management treatment.

The in-home family support worker testified he had provided parenting education and anger management services to the parents from November 2006 through May 2007. They followed instructions and successfully participated in services.

The court found it would create a substantial risk of detriment to return Nicholas to the parents' care, and, although they had made some progress in their case plans, there was not a substantial probability Nicholas could be returned by the 18-month date. It terminated services and set a section 366.26 hearing.

Daniel and Cheryl petition for review of the court's orders. ( 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.

DISCUSSION

The parents contend the court erred by terminating reunification services and setting a section 366.26 hearing. Cheryl argues the court erred by finding there would be a substantial risk of detriment to returning Nicholas to their care and, at a minimum, it should have ordered six more months of services. Daniel asserts there was insufficient evidence to support the finding they would not be able to reunify with Nicholas after an additional six months of services.

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) Determinations of credibility of witnesses and resolutions of conflicts in the evidence are for the trier of fact. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Under the required standard of review, we hold there was substantial evidence to support the court's findings and orders. Although the parents had participated in services, had worked hard and were able to make some improvement, they did not progress sufficiently for the court to find that Nicholas would be safe in their care. Cheryl was involved in in-home parenting sessions through two programs, but did not show she understood and could use the instruction she received so that she could provide adequate care without supervision. Daniel completed psychological evaluations, participated in parenting classes, anger management programs and individual therapy, but did not progress sufficiently to allow a finding that he could provide safe care for Nicholas.

Daniel's anger management problems remained a significant concern. The evidence showed he has a history of acting out in anger, and, despite his claims that he has had 18 years of counseling, he still struggled with this problem. Additionally, Daniel's therapist noted Daniel did not see how his problem with anger could have a negative impact on his children and his ability to be an effective parent to them. He had displayed anger toward the Agency, services providers and visitation staff in Daniel P., Jr.'s, case. Although he had worked toward managing his anger through services in both Nicholas's and Daniel's cases and had shown some improvement, he continued to have anger problems, including losing visitation with Nicholas for a time as he had earlier done in Daniel, Jr.'s, case. During a visit three months before the 12-month hearing, he had trouble dealing with his anger. He tried the anger management technique he had learned and walked away during the visit, but each time he returned, his anger escalated. He then roughly grabbed a stroller from Cheryl, swore, told her she was stupid and she should "shut up." By the time of the next visit he remained agitated.

Cheryl's cognitive limitations presented concern as well. The social worker opined Cheryl did not understand Nicholas's developmental stages and it would be very difficult for her to care for Nicholas on her own. Daniel's previous therapist had noted Cheryl was very dependent on Daniel.

Moreover, although the parents had had many months of services in the cases of their two sons, they still had not been able to show they were ready to have unsupervised visitation with Nicholas. Because they had not progressed to a level that would allow them to have even brief visits without supervision, Nicholas could not be placed safely in their care. Substantial evidence supports the court's finding that returning Nicholas to the parents would create a substantial risk of detriment.

The court also did not err by finding there was not a substantial probability that Nicholas could be safely returned by the 18-month date. Under section 366.21, subdivision (g)(1), a court may continue a case to the 18-month date only if there is a substantial probability that the child will be returned to the parent's physical custody and safely maintained in the home by that time. In considering whether to extend the case for 18 months the court must make all of the following three findings:

"(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child.

"(B) That the parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home.

"(C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs."

Substantial evidence supports the court's decision not to extend services to the 18-month date. The parents consistently and regularly visited Nicholas and participated in extensive services, but, although there had been improvement, they had not made significant progress in resolving the problems that led to Nicholas's removal, nor had they demonstrated the capacity and ability to complete the objectives of their service plans or to provide for his safety, protection and well-being. No evidence was presented to show they would be able to care for him after six more months of services. Indeed, by the time of Nicholas's 12-month hearing, the parents had already received 30 months of services in connection with the two children; 12 months for Nicholas and 18 months for Daniel P., Jr. Substantial evidence supports the court's finding there was not a substantial probability Nicholas could be returned to their care by the 18-month date.

DISPOSITION

The petitions are denied. The request for stay is denied.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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^[1] All statutory references are to the Welfare and Institutions Code.