G.R. v. Super. Ct.

Filed 6/18/08 G.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

At the conclusion of the six-month status review hearing, the Marin County Juvenile Court entered orders terminating reunification services and setting a hearing under Welfare and Institutions Code[1] section 366.26 to select permanent plans for Bobbi Jo R. (born June 2002) and Dusty R. (born February 2005). G.R. (Mother) challenges those orders, contending that several underlying findings were not supported by the evidence. As discussed post, we find no merit in her claims and deny her petition for extraordinary writ on the merits.[2]

I. Background

On June 7, 2007, the Marin County Department of Health and Human Services (Department) received a general neglect referral. In response, a Department social worker and deputies from the county sheriffs office conducted a welfare check of Mothers apartment. The deputies placed Mother under arrest when she became combative, and the social worker took the children into temporary protective custody. Several days later the Department filed a petition under section 300, subdivision (b).

At the jurisdictional/dispositional hearing held on July 19, 2007, the juvenile court sustained the allegations as amended. These allegations stated Mother had failed to provide the children with appropriate shelter, in that the Department had found her home to be in deplorable condition, hazardous to the childrens health, and unfit for human or animal habitation. Both children had also been found to suffer from emotional and cognitive effects of neglect. Specifically Dusty, two years of age, did not speak, exhibited an extremely flat affect, and was indiscriminately clingy, whereas Bobbi Jo, five years of age, spoke in words mixed with fantasy language, and did not speak in sentences. Neither child displayed age appropriate separation or stranger anxiety, and did not ask for [Mother]. The sustained allegations further stated that Mother had failed to provide the children with adequate dental care, in that both were found to suffer from serious tooth decay and infection requiring treatment that included multiple cavity fillings, tooth extractions, and baby root canals. Bobbi Jo additionally suffered from a gum infection requiring treatment with penicillin. The court ordered out-of-home placement for the children, adopted the Departments proposed case plan, and ordered reunification services for Mother and Richard H., the noncustodial presumed father.[3]

In its report prepared for the six-month status review hearing, completed in mid-January 2008, the Department recommended that the juvenile court terminate the parents reunification services and set the matter for a hearing under section 366.26, based on a finding that neither parent had made substantive progress in their court-ordered reunification plans. (See 366.21, subd. (e).) A trial brief submitted by the minors counsel agreed with this recommendation. The court held the contested review hearing in late March 2008. At its conclusion on March 27, Mother argued that the children should be returned to her custody, or her reunification services should be continued, because she had made substantive progress with her case plan requirements. Alternately she argued for a continuation of services based on the Departments failure to provide reasonable services during the period under review.

For its part, the juvenile court noted Mother had shown notable progress in her case plan, but stated that her inability or unwillingness to accept responsibility for the circumstances that caused her childrens removal [was] a matter of serious concern. The court also expressed concern over Mothers use of marijuana to treat chronic pain, due to its effect on her ability to care effectively for two children with special needs. The court accordingly adopted the Departments recommendation, ordered the termination of reunification services for Mother, and set the matter for the selection of permanent plans pursuant to section 366.26. Mothers writ petition followed. ( 366.26, subd. (l).)

II. Discussion

A. Introduction

At a six-month status review hearing (six-month hearing) the juvenile court is required to return a dependent child to his or her parents physical custody unless [it] finds, by a preponderance of the evidence, that [such] return . . . 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 social services agency has the burden to establish such detriment, and may make a prima facie showing with proof of the parents failure . . . to participate regularly and make substantive progress in court-ordered treatment. (Ibid.)

Here Bobbi Jo and Dusty are a sibling group, and Dusty was under the age of three years at the time of their initial removal from Mothers physical custody. Once a juvenile court has determined, as here, that such children cannot be returned to their parents custody at the six-month hearing, it has two statutory options. The court may set a hearing under section 366.26 if it finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan. ( 366.26, subd. (e).) Alternately the court must continue services until the 12-month permanency hearing (12-month hearing) if it finds eitherthat there is a substantial probability that the child[ren] . . . may be returned to [their] parent . . . within six months or that reasonable services have not been provided. (Ibid.)

The juvenile court here determined that returning Bobbi Jo and Dusty to the physical custody of either parent would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being. It then set the matter for a section 366.26 hearing after finding the parents had not made substantive progress in complying with the case plan or in alleviating or mitigating the causes necessitating placement of the children in out of home care. The court otherwise found that there was not a substantial probability that the children [could] be returned to the physical custody of the parents by the time of the 12-month hearing, and that the Department had offered or provided reasonable reunification services.

Mother contends the court erred in making its initial finding, that a substantial risk of detriment precluded return of the children to her custody. She further objects to the negative findingthat there was no substantial probability the children could be safely returned to her custody if services were continued to the 12-month hearingand the finding that the Department had afforded her reasonable services.

B. Substantial Risk of Detriment

With respect to the substantial risk of detriment finding, it is apparent the juvenile court relied on a determination that Mother had failed to make substantive progress with her court-ordered case plan. (See 366.21, subd. (e).) The court necessarily made this same finding, by clear and convincing evidence, before setting the matter for a section 366.26 hearing. ( 366.26, subd. (e); see 366.21, subd. (e).) In challenging the finding, Mother suggests the juvenile court ignored the significant progress she had made in satisfying the requirements of her case plan, and instead focused improperly on her denial about the extent of her neglect of the children. She also suggests the juvenile court improperly considered her legal use of marijuana in making the finding.

Our review of the finding is limited to an examination of the record to determine whether there is substantial evidence that would permit a reasonable trier of fact to make the finding under the clear and convincing standard of proof. (See In re Marina S. (2005) 132 Cal.App.4th 158, 165.) We do not reweigh the evidence, but view it in the light most favorable to the courts order, drawing every reasonable inference and resolving all conflicts in its favor. (Ibid.)

Mothers case plan called for her to complete a psychological evaluation and follow its recommendations. The completed evaluation, in turn, required that she participate in individual counseling in order to address, among other things, the issues underlying her past neglect of her children. One explicit goal of the therapy was that Mother will accept responsibility for the neglect [of] her children and will be able to acknowledge that she might have lessened or eliminated the childrens dental problems and developmental delays with proper parenting.

Evidence submitted or elicited on this issue showed Mother had excused the condition of her home at various times with various reasons: she had been preoccupied caring for a relative; she had been storing items belonging to a relative; a burglar had ransacked the house; incontinent or frightened pets were source of urine and feces on the carpet; the carpet was wet not from urine but from using a steam carpet cleaner; and the sheriffs deputies had deliberately made a mess before taking photographs. Mother had blamed the childrens health care providers for not warning her about the childrens dental problems,[4] and had deemed those problems to be the result of genetic[s] rather than neglect. Mother had minimized the childrens delayed speech development, claiming they had no need to speak because she [had been] speaking for them.[5] The overarching significance of Mothers failure to acknowledge her role in the events leading to the removal of her children may reasonably be inferred from the opinion testimony given by the social worker: In effect, there was no reason to expect that Mother would act more responsibly in the future, by consistently applying any skills she may have learned, until she was able to admit that certain past conduct had been irresponsible.

Another objective of Mothers case plan was that she demonstrate an ability to live free from drug dependency. Toward this end the plan required that she set up an intake appointment with the Family Service Agency of Marin (FSA) and engage in its outpatient substance abuse recovery program, pursuant to a recommendation in the drug abuse assessment she had completed in September 2007.

As to this issue the assigned social worker testified that, although she had sent Mother a letter emphasizing the requirement in mid-October 2007, Mother continued to claim, as late as December 6, that there was no need for her to engage in the recovery program because she had stopped using drugs during her first pregnancy. Mother thus delayed contacting FSA until January 2007, and did not begin its outpatient recovery program until February 2008, several weeks after the initial date the juvenile court had, by law, set for the six-month hearing. (See 366.21, subd. (e).)

With regard to Mothers medical use of marijuana, there was evidence that the social worker had urged Mother to consult a physician for alternate methods of pain management, so that she could be more alert and responsive to her children and their special needs. Mother declined to do so, and refused to consider that her marijuana use might have a negative impact on her parenting ability. Although Mother argued below that her marijuana use was legal, it is apparent the juvenile court took that use into consideration when it made the challenged finding, deeming that use to be anything but . . . appropriate . . . for the effective rearing of two damaged children whose needs require exceptional vigilance.

In our view there was no impropriety in the juvenile courts consideration of Mothers medical use of marijuana. The need for the objective in Mothers case planto demonstrate an ability to live free from drug dependencywas supported by one of the conclusions set out in her psychological evaluation, which was included with the reports admitted into evidence. That is, Mother was at substantial risk of abusing substances in order to maintain a relatively even keel. Moreover, Mothers marijuana use is legal only in the sense that she has obtained a medical marijuana card that shields her from criminal liability under otherwise applicable state penal statutes. (Heath & Saf. Code,  11362.5, subds. (b)(1)(B), (d); see Health & Saf. Code, 11362.7 et seq.) The medical marijuana law is not intended to supersede other legislationsuch as the dependency lawthat may properly apply to prohibit marijuana use in situations in which it may pose a risk of danger to others. (See Health & Saf. Code, 11362.5, subd. (b)(2).)

As the juvenile court acknowledged, there was additional evidence showing Mother had made progress with respect to other components of her case plan. Nevertheless, we conclude the foregoing evidence was sufficient to permit a reasonable trier of fact to find, under the clear and convincing evidence standard, that Mother had not made substantive progress in her court-ordered treatment plan. As such, the same evidence provides substantial support for the courts finding that an immediate return of the children to Mothers physical custody would create a substantial risk of detriment to their safety, protection, and physical and emotional well-being.

Mothers reliance on the decision in Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 does not persuade us to the contrary. In that case the parents refused to admit or accept an act of molestation by the father, an alleged event that the juvenile court had erroneously regarded as a properly established fact. (Id. at pp. 17411742, 17461747.) Here Mother did not challenge those earlier rulings by which the juvenile court established the jurisdictional facts and adopted the case plan designed to address them.

C. Substantial Probability of Return

In objecting to the finding that there was no substantial probability that the children might be returned to her physical custody within the time for the 12-month hearing, Mother argues, with little further elaboration, that it was a virtual certainty the children could safely be returned to her custody had the court continued services until the time for 12-month hearing.[6]

If Mother means, by virtual certainty, to claim that the evidence favored a contrary finding in her favor, we note simply that our review focuses instead on whether substantial evidence supports the negative finding the juvenile court actually made. (See In re Sarah F. (1987) 191 Cal.App.3d 398, 405.) In resolving this question we view the evidence in the light most favorable to the juvenile courts ruling, resolving conflicts and indulging all reasonable inferences in its favor. (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.)

It is essentially the parents burden to prove that his or her services should be continued due to a substantial probability of return by the time of the 12-month hearing. The parent must show, for example, that he or she has the capacity and ability to complete the objectives of his or her treatment plan and thus provide for the childs safety, protection, physical and emotional well-being, and special needs. (Cf. 366.21, subd. (g)(1)(C).)

We have discussed ante the evidence pertaining to Mothers failure to make substantive progress with her case plan. That evidence indicated, among other things, Mothers failure or inability to satisfy the explicit requirement that she accept responsibility for her past neglect. As we noted, this failure might reasonably be deemed significant because it effectively undermines any confidence in Mothers ability to utilize consistently any tools or insight she may otherwise have gained, and so avoid future neglect. Mother offered no evidence below to indicate her willingness or ability to complete this aspect of her case plan. As the juvenile court noted, it was possible Mother might see the light by the time for the 12-month hearing, but there was no evidence to show that Mothers attainment of insight within that time was probable. On this basis alone we conclude that Mother failed to demonstrate her ability to complete the objectives of her case plan within the time remaining for the 12-month hearing. Hence we see no error in the courts finding that there was no substantial probability that the children might be returned to her custody within that time.

D. Reasonable Services

Mother urges that the reasonable services finding was erroneous because the Department failed to provide a copy of her psychological evaluation to her individual therapist and failed to follow two recommendations in that evaluationthat is, it failed to refer Mother to an individual therapist trained in dialectical behavior therapy (DBT) and it failed to arrange for her to perform volunteer work at her childrens schools. She contends additionally that the Department failed to explain the importance of DBTthat its main purpose was to help her overcome her denial of responsibility. She urges the Department further delayed providing her with a referral to FSAs recovery program and failed to explain that it was necessary for her to begin this recovery program before she could participate in an FSA group utilizing DBT. Finally, Mother complains that the Department failed to allow unsupervised visits with her children even though Mothers parenting mentor supported such visits.

We review the reasonable services finding to determine whether the record discloses substantial supporting evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) Again, we view the evidence in the light most favorable to the courts ruling, drawing all reasonable inferences and resolving all conflicts in its favor. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75; In re Julie M. (1999) 69 Cal.App.4th 41, 46.)

Reunification services may be deemed reasonable when the evidence shows the case plan identified the problems leading to the loss of custody, the offered services were designed to remedy those problems, and the agency maintained reasonable contact with the parent and made reasonable efforts to assist that parent in areas in which compliance proved 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.)

It does not appear unreasonable to us that the social worker failed to provide Mothers therapist with a copy of the psychological evaluation. The social worker testified she did not do so because the evaluation was confidential and had been submitted to the court under seal. She stated she had essentially used the evaluations recommendations to determine what services were appropriate for Mother and to make referrals accordingly. When asked if a copy of the evaluation would have been useful to her at the outset, Mothers individual therapist replied, Perhaps. The therapist also stated the social worker had provided, albeit briefly, the necessary information for her to address the issues she and Mother were to addressthat is, anger management and the issues of hoarding and child neglect.

Nor does it appear unreasonable that the social worker referred Mother to an individual therapist untrained in DBT. The evaluation noted Mother had developed a personality trait, one consequence of which posed one of the biggest hurdles to effective treatment. That is, Mother was likely to have trouble acknowledging her personal shortcomings and may tend to place the blame on others. The evaluation thus recommended that anyone trying to help herwhether therapist, parenting trainer, or social workerbe respectful of this defense mechanism and avoid comments that [Mother] might experience as critical or shaming. On the other hand, the evaluation did not explicitly recommend DBT as a method of treating this avoidant trait. Rather, it recommended DBT as one approach that Mother might find . . . more acceptable . . . than others in her psychotherapy, as a means of addressing her problem with anger and her impulsive behavior. Finally, while Mothers therapist stated she was not trained in DBT, we note she also testified that she did have training in the area of anger managementthe issue that the evaluation actually specified in connection with DBTand that she had provided Mother with effective anger management tools that utilized cognitive behavior.

Mothers psychological evaluation did recommend that Mother participate as a volunteer a few hours a week in each of her childrens schools, in order to observe her own children next to their peers and to see for herself any special needs her own children may have, as well to observe the way in which their teachers and others responded appropriately to those needs. But the social worker explained that she did not attempt to arrange such volunteer work for Mother because she had concluded it would not be appropriate for her to be in a classroom of preschool or kindergarten children. She had observed that Mother tended to be injudicious in her use of [c]urse words and tended to challenge people in [an] abrasive way. School personnel had, moreover, indicated to the social worker that they were actually uncomfortable with [Mothers] behavior in an IEP meeting at Bobbi Jos school in September 2007.[7] Lastly, the social worker stated that Mothers parenting mentor had worked with Mother on the same issue that the recommended volunteer work was intended to addressthe developmental delays of Mothers children. In light of these circumstances, we see nothing unreasonable in the social workers failure to pursue the recommendation concerning volunteer work in her childrens classrooms.

According to the social worker, Mothers drug abuse assessment, which recommended her completion of an outpatient drug abuse treatment program, was completed in September 2007. She first referred Mother to an outpatient program specializing in dual diagnosis individuals shortly afterward, on October 2. She gave Mother a second referral to FSAs recovery program only two weeks later, on October 15, because that program better fit Mothers schedule. The social worker further testified that she did explain to Mother what was involved in DBT, that it was a therapy utilized commonly to address problems with interpersonal skills. Finally, she stated that her referral letter of October 15 did make it clear that Mother needed to call FSA herself in order to set up an intake appointment for participation in both its recovery program and its DBT group. In view of this evidence we see neither an unreasonable delay in the Departments referral to FSAs recovery program, nor an unreasonable failure on its part to explain either the purpose of DBT or the steps that Mother needed to take in order to initiate her participation in FSAs recovery program and its DBT group.

Finally, we see nothing unreasonable in the Departments decision to maintain supervised visitation between Mother and her children during the service period under review. The social worker testified that she did not authorize unsupervised visitation because the childrens father had expressed a concern that Mother, if unsupervised, might flee with the children. She noted also that was it still necessary, on occasion, for the visit supervisor to intervene and redirect Mothers behavior toward the children. Mothers parenting mentor stated she would support a modification of the existing visitation so as to allow Mother to have future visitation unsupervised within a Department facility. She had not, however, made any express recommendation to that effect before the six-month hearing. Hence it does not appear the Department unreasonably ignored her recommendation in maintaining supervised visitation up to the time of that hearing.

In sum, we conclude the Departments efforts to provide reunification services to Mother were reasonable under all the circumstances, and find no merit in Mothers specific objections. The evidence, viewed in the light most favorable to the ruling, provides substantial support for the juvenile courts finding that the Department offered or provided reasonable services.

III. Disposition

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. (Cal. Rules of Court, rule 8.264(b)(3).)

_________________________

Margulies, J.

We concur:

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Marchiano, P.J.

_________________________

Stein, J.

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

[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] Mother and Richard H. are married, but the two had been separated for several years by the time of the childrens removal from Mothers custody in June 2007.

[4] According to the Department report prepared for the detention, a public health nurse had contacted Mother numerous times, beginning in March 2007, concerning Dustys need of immediate dental treatment.

[5] Other evidence submitted at the hearing indicated a rapid improvement in the childrens speech development following their removal from Mothers custody.

[6] Whereas section 366.21, subdivision (e) speaks of the probability of return within six months, it is now settled that the phrase refers to the period remaining between the date of the actual six-month hearing and the date by which the 12-month hearing must be held pursuant to section 366.21, subdivision (f). (See Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 840.)

[7] An individualized education program. (See 20 U.S.C. 1414.)