In re David C.

Filed 11/28/07 In re David C. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Adele C. (Mother) appeals the termination of reunification services and a permanent plan of long-term foster care for her teenage son, David C. Mother argues that reasonable reunification services were not provided to her, and the evidence was insufficient for the court to conclude there would be a substantial risk of detriment to David if he were returned to Mothers custody. We conclude that the court correctly terminated services and the courts conclusion that David would be at risk if returned to his Mother is supported by substantial evidence, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

David tested positive for methamphetamine at birth in 1993. His familys experience with child welfare referrals began several years earlier when an older sibling was removed, and Mother was hospitalized for a psychiatric evaluation.

David was placed in foster care three times between 1996 and 2003. In 1996 he was removed from the family home because conditions there were hazardous to his health. That dependency was dismissed in late 1997. In 2000 he was again removed when the family home was discovered to be in total disarray and his parents were hospitalized on a psychiatric hold. Although David returned home during the reunification period of this dependency, he was removed again in 2002, when a person with a criminal history was determined to be living in the home in violation of a court order. The case was terminated in 2003 when it was determined David was no longer at risk of harm. A series of other referrals were informally resolved.

Then, in September 2005, this case began when two referrals reported Mothers bizarre and delusional behavior and expressed grave concerns about the ability of [Mother] to care for David while in this state. . . . During this time [Mother] called [the Departments] crisis line rambling incoherently and sounding quite agitated. In October 2005, a petition was filed pursuant to Welfare and Institutions Code section 300, subdivision (b). ^[1]In December the parents stipulated to jurisdiction, and Mother pled no contest to allegations that her health condition and substance abuse prevented her from providing adequate care and supervision for David. Mother agreed to drug test for 90 days, follow the recommendations of a psychiatrist, and attend therapy. David was removed from parental custody and placed in foster care.

Both parents have a history of mental illness, and family members described manic episodes where [Mothers] behavior appear[ed] markedly bizarre. Mother was diagnosed with bi-polar disorder and father with schizophrenia and depression. The parents had also allowed a family friend who was a drug addict to live in their home and share Davids room. Mother admitted she had purchased crack cocaine for herself and that friend, and family members reported parents prolonged history of drug abuse. David reported that Mother stops taking her medication and [her craziness] comes back. She also sent him on a regular basis to the homes of different neighbors to ask for drugs . . . [and] sometimes these neighbors come back to the house and smoke these drugs. At the time of the jurisdictional report, David did not wish to return home to his parents and [reported] that living with his parents is awful.

David has also been diagnosed with Aspergers Disorder. His social abilities are compromised, but he has exceptional abilities especially in the area of mathematics. His disorder makes him highly anxious when there [were] changes in routine and [he] require[d] and often demand[ed] a lot of consistency whether it be in the classroom or other environments. At Davids request, his visits with his parents were initially once a month, and he made it clear that he want[ed] to visit with his parents, but not live with them.

At the time of the six-month review hearing, the parents made minimal progress on their reunification plans. Their home remained in the same disorganized and filthy condition as it was when David was removed. Both parents were in therapy, and Mother continued to receive psychiatric care, although she missed her last appointment and her prescription for psychotropic medications had reportedly expired. Although neither parent ha[d] much insight into their mental instability or underst[ood] the reasons for Davids removal, her medication had noticeable and definite benefits for [Mother], who appeared more stable. Mother did not comply with drug testing because she states she cannot urinate on demand in a public facility.

David told the social worker that he really misse[d] his parents and would like to live with them if things could be normal again and his mother was not manic and acting crazy as she had before. David also mentioned that at times things were difficult because he felt loyalty to both his parents and his foster care mother. David clearly desire[d] a relationship with his parents and especially his siblings, who [were] very important to him. The court continued services.

At the 12-month review hearing, the Department submitted on its report that recommended terminating services and Davids placement in long-term foster care. The parents ha[d] made attempts to clean their home and organize it, but it remain[ed] disorganized and unclean. Mother remained on medication and in therapy, but her psychiatrist [did] not see any significant changes in her behavior since she first became medication compliant[, and he] has continued to observe hygiene issues, which . . . ma[d]e him concerned about her level of functioning and judgment. Davids visits with his parents were more frequent and they enjoyed playing cards together. But at a visit shortly before the report was prepared, David commented that the house was messy and unclean, and he talked about mold on the food in the refrigerator and a variety of other unsanitary conditions.

Davids parents acknowledged that they needed to clean and organize their home, and had told the social worker that perhaps by next summer they could have David back in their care. David shared their hope, but thought it might be another year or two before his parents are ready, and did not mind staying in foster care until [then]. The report concluded that Davids parents did not seem to be capable of meeting the high demands of Davids needs for care and organization . . . [which required] an environment that is highly organized and structured to enhance Davids abilities and keep him focused on his school and increase his social contacts with others.^[2]

David reportedly like[d] the organization of his foster care parents home and [was] very content to stay there. At the 12-month review hearing, Davids counsel reported he was doing well, but that he wanted reunification services extended for his parents and would like to be able to eventually return to their care.

The social worker testified the current case arose in September 2005, based on reports of Mothers bizarre behavior. Mothers plan focused on psychiatric care and counseling, appropriate medication, and substance abuse treatment. At the time of the 12-month hearing, Mother was under psychiatric care, stabilized on medication and no longer actively psychotic. Her therapist reported that Mother was making progress, had gained some insight into her illness and more readily recognized her limitations. Mother had not complied with the random substance abuse testing required by her plan, but had attended several sessions of substance abuse counseling. The services provided by the Department were supportive and David was feeling more comfortable with his parents when they visited. David wanted to continue to visit his parents at their home, and hoped to return there to live, possibly during the summer, if the home was cleaner and more orderly.

While the parents therapist had commented that the couple almost always met their weekly goals, such as cleaning a certain portion of the home, the social worker noticed no significant change on her repeated visits to the home, and she reported it to be still quite filthy and disorganized. After a visit to his parents home, David stated: The home needs to be more clean when I come back. The Department did not provide in-home house cleaning services, and the social worker had assumed that when I made the case plan that some of the other things, dealing with substance abuse, psychiatric, and therapy would lend itself to that.

Due to Davids Aspergers Disorder, his social skills are limited and he needs an organized and structured environment. His parents were somewhat limited in their social environment and how they relate to other people, in particular perhaps [Father], but also maybe [Mother].

The trial court determined that parents had made some progress in dealing with their issues of psychiatric, psychological, and house maintenance issues, but given the diagnoses and the history as reported in the . . . status review report, reluctantly I am afraid I have to follow those recommendations. The court did not make the findings required for an extension of services for the remaining four months of the statutory period. His parents progress on resolving the problems that led to Davids removal was substantial but not sufficiently significant, and they had not demonstrated they would be able to safely care for him within the time set by statute. The court also pointed out that the parents can at any time file a [petition pursuant to section] 388 if they and their Counsel feel its appropriate . . . .

The court concluded that the Department had provided or offered reasonable services designed to aid the parents in overcoming the problems that led to Davids removal, and that his return to parental custody would create a substantial risk of detriment to his safety, protection or physical or emotional well-being . . . . The court terminated reunification services, found that a hearing pursuant to section 366.26 was not in Davids best interest, and ordered a permanent plan of long-term foster care that included ongoing visitation with his parents. Mother timely appealed.

DISCUSSION

A. Reasonable Services

Mother argues the court was wrong to conclude that reasonable reunification services had been provided because she was not given in-home housekeeping services or housekeeping instruction, or any instruction on Davids special needs. We disagree.

When the trial court considers sufficiency of services at the 12-month hearing, the court shall . . . determine whether reasonable services that were designed to aid the parent or legal guardian to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent or legal guardian. ( 366.21, subd. (f).) Each reunification plan must be appropriate to the particular individual and based on the unique facts of that individual. [Citations.] [] In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

Here, the court concluded that the services provided to parents were reasonable, but the parents had not demonstrated the capacity and ability both to complete the objectives of their treatment plan and provide for the childs safety, protection, physical, and emotional well-being . . . given the minors special needs and the parents psychiatric needs . . . . The courts conclusion was supported by substantial evidence, including the reports of Mothers psychiatrist and therapist, and the observations of the social worker.

The social worker testified about her expectation that once the parents dealt with their substance abuse and psychiatric issues, the issues of health and safety in the home environment would also be resolved, and that the therapist worked with the parents to set weekly goals to clean specific portions of the home.^[3] The social worker also testified about her unsuccessful efforts to locate an appropriate parent education program that would be suitable for these particular parents in order for them to learn more about Aspergers Syndrome.

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., supra, 2 Cal.App.4th at p. 547.) Mother received services designed to address the issues that led to Davids removal from her home, including her needs for psychiatric treatment, medication, and substance abuse counseling. The courts conclusion that, despite these services, Mothers psychiatric needs preclude her from successfully caring for David is supported by substantial evidence. Mother has not shown that additional services would have given her the ability to keep a safe home, or meet Davids special needs within the limited time allowed by the law.

Mother contends there was evidence that her housekeeping skills had improved, apparently referring to the therapists report that Mother usually met the therapists weekly goals for cleaning a certain portion of the home. Yet the social worker did not notice a significant improvement in the condition of her home. This court has neither the duty nor the right to resolve conflicts in the evidence, pass on the credibility of the witnesses, or determine where the preponderance of the evidence lies. The trier of fact decides each of these matters; our power on appeal begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. (In re Walter E. (1992) 13 Cal.App.4th 125, 139-140.) Substantial evidence supports the courts determination that the services provided in this case were reasonable under the circumstances. (See In re Christina L., supra, 3 Cal.App.4th at p. 416 [circumstances to be considered include the mental condition of the parent and her insight into the familys problems].)

B. Substantial Risk of Detriment

Mother also argues there was insufficient evidence to conclude there would be a substantial risk of harm to David if he were returned to her home. We disagree.

At the 12-month hearing, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. ( 366.21, subd. (f).) In certain circumstances, the court may continue services for up to 18 months only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian. ( 366.21, subd. (g)(1).)

For the court to find there is a substantial probability a child will be returned to a parent, the court shall be required to find all of the following: [] (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 childs 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 childs safety, protection, physical and emotional well-being, and special needs. ( 366.21, subd. (g)(1).)

The court here determined that David regularly visited with his parents and that they made substantial progress in resolving the problems that led to his removal. But given the depth of the issues that they are dealing with the court did not find the parents progress was significant enough. Nor could the court find that the parents had demonstrated the capacity and ability both to complete the objectives of their treatment plan and provide for the childs safety, protection, physical, and emotional well-being, and special needs within the 18-month period which means in reality within the next four months, and given the minors special needs and the parents psychiatric needs [the court did not] believe [it could] make that finding. As stated in part A, ante, there was evidence that the condition of the parents home was not significantly remediated during the dependency period, and that Mothers psychiatric condition impaired her ability to provide for David.

Although Mother made substantial progress on certain aspects of her plan relating to medication and psychiatric care, she did not take a single required drug test, and attended her out-patient drug treatment only a handful of times. Mothers psychiatrist saw no significant changes in her behavior, and continued to observe hygiene issues, which . . . ma[d]e him concerned about her level of functioning and judgment. The home remained quite filthy and disorganized, despite some attempts to clean up.

The parents told the social worker that perhaps by next summer they could have David back in their care, and David expressed an interest in such an arrangement. But even David later recognized it might be another year or two before his parents are ready, and he [did] not mind staying in foster care until he sees that his parents are ready. The timeline for all these hopes exceeded the 18-month maximum for provision of services, which expired only 4 months after the 12-month review hearing. The fact that David and his parents had enjoyable and increasingly frequent visits did not demonstrate that David could be safely returned home. While in her reply brief Mother claims that Davids request for increased home visitation speaks louder than any of the psychological guesswork engaged in by the trial court, she overlooks her familys own perception that it would be many months, or possibly years, before the parents were ready to care for David. The trial courts findings that Mother would not be able to provide the home environment required to meet Davids special needs within the 18-month period prescribed by statute, and that his return to her home would be detrimental are supported by substantial evidence. (See In re Brian R. (1991) 2 Cal.App.4th 904, 913-914.)

DISPOSITION

The orders are affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Pollak, Acting P.J.

_________________________

Horner, J.^*

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

^[2] The report also noted there is no guarantee that the parents after long periods of non-compliance with medication and therapy would continue to stay on the course they have been pursuing for the last year. Even if they were to maintain their present condition, they still do not have the ability to care for David in the way that he needs.

^[3] Mothers reply brief argues that the housekeeping issue had not resolved itself even though [she] was in full or semi-compliance with these [mental health and drug treatment] areas of the plan. Consequently, the social worker should have taken affirmative steps to provide services to help the parents with their ability to maintain a clean and organized environment for David. But the social worker is not required to  take the parent by the hand  to help him or her overcome the problems underlying the dependency, and [i]f Mother felt during the reunification period that the services offered her were inadequate, she had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan . . . . (In re Christina L. (1992) 3 Cal.App.4th 404, 414, 416.)

^*Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.