In re Mariah J.

Filed 1/6/10 In re Mariah J. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed.

Darrick J. appeals orders from a six-month review hearing continuing his children, Mariah J., D.J. and Sierra J. (together the children), dependents of the juvenile court and denying his request that they be returned to his custody. He contends the court erred by finding he was provided reasonable reunification services and by not returning the children. He requests services be extended beyond the 18-month date. We reject his contentions and affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

Darrick and his former wife, Marcella P., divorced in 2002. In subsequent years they involved the children in contentious battles in family court over custody and visitation. The lives of the children were also affected by domestic violence between Darrick, Marcella, and Marcella's current husband, Michael S. After years of hostility and accusations, the children were detained in protective custody. On May 15, 2008, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of the children under Welfare and Institutions Code[1] section 300, subdivision (b), alleging they had been exposed to a domestic violence incident between Marcella and Michael, there is a history of domestic violence between Marcella and Darrick, and Marcella and Michael had a history of violent confrontations with Darrick.

The children showed behavior problems, anxiety, depression and withdrawal, and six-year-old Sierra acted out sexually. Each child described arguments and fights among the parents. Darrick is blind, but does not believe his blindness impedes his ability to care for the children. Counsel appointed for the children said when she visited Darrick's home during a time the children were living there it was bare, gloomy and dark. She expressed concern Darrick was not providing for the children's educational needs and said he appeared angry and refused help from social services.

After a hearing, the court found the allegations of the petition true, removed custody from Marcella, found placement with Darrick would cause a substantial risk of detriment to the children and ordered them placed with relatives. The court ordered services for each parent. This court affirmed the orders in a nonpublished opinion, In re Mariah J. et al. (Jul. 27, 2009, D054185).

In the report for the six-month review hearing, the social worker recommended continuing services. She reported there was concern that Marcella and Darrick made inappropriate comments to the children, and Darrick refused to acknowledge that his comments could be detrimental to them. He had one psychological evaluation and was referred for a second evaluation and to a new therapist. There were delays in completing the evaluation. Darrick appeared for one appointment, but the psychologist did not have all of the required materials. Darrick did not appear for follow-up appointments. His therapist reported although Darrick appeared motivated to begin therapy, he showed no understanding of why he was there and blamed Marcella for the family's problems.

At the six-month review hearing, the former social worker testified she had determined Darrick needed a therapist who was experienced in working with people with disabilities. She had made attempts to locate an appropriate therapist, but Darrick did not begin therapy because of scheduling conflicts.

The current social worker testified the Agency psychologist and Darrick advised her that Darrick did not need a specially trained therapist. Subsequently, the social worker located an appropriate therapist for him, but there were delays as the social worker could not reach Darrick for some weeks because his telephone was not working. She said Darrick did not maintain contact with her, and when they did communicate, he spent much of his time complaining about the children's caregivers and said he had not been treated fairly. She said Darrick and the children had successful visits. She expressed concern about Darrick's occasional use of marijuana for his eye pain.

The parties stipulated that if the children were to testify, Mariah would say she was not sure where she wanted to live, D.J would say he wanted to live with Darrick and visit Marcella, and Sierra would say she would agree to live with either parent and visit the other.

Darrick testified he had not been told he should return to complete the second psychological evaluation. He denied receiving the social worker's telephone messages, but acknowledged he had been without a telephone for several weeks. He said he had not received any referrals for therapy until the month before the hearing, he then began attending therapy sessions regularly and he was willing to work with the therapist. He testified he used marijuana for pain and believed he could obtain a prescription for the drug.

After considering the evidence and argument, the court found reasonable services had been provided and returning the children to either parent would cause a substantial risk of detriment. It ordered continued services and that the children would remain in relative placement.

DISCUSSION

I

Darrick contends he was not provided with reasonable services. He notes his case plan contained four elements: therapy, parenting education, random drug tests and a second psychological evaluation. He complains there was delay in referring him to a therapist, he was not referred to parenting classes or drug testing, and there was confusion about his referral for a second psychological evaluation. He argues because the Agency did not provide reasonable services during the initial six months, he should be provided with additional services and excused from the requirements of his case plan during this time period. His contentions are unfounded.

In determining the sufficiency of reunification services, the role of the appellate court is to decide "whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

Substantial evidence supports the finding Darrick was offered reasonable services. Although there was some confusion about whether he needed a specialized therapist and this was one cause of the delay in his beginning therapy, Darrick must accept a large part of the responsibility because the record shows he did not remain in touch with the social worker, he was without a telephone for a time, and he did not appear for some of his appointments. He was given a referral to one therapist, but missed appointments, telling the social worker he had scheduling conflicts. The social worker tried to locate a therapist trained to work with people with disabilities. She called a qualified therapist, but did not receive a return call. Subsequently, after the Agency psychologist and Darrick told her there was no need for a specialized therapist, she found another therapist. Then there was delay because she could not reach Darrick by telephone. After she sent him a letter of referral, he finally began therapy.

As for the psychological evaluation, there were questions about Darrick's first evaluation because he was not honest with the evaluator, and a new evaluation was scheduled. Darrick appeared, but the evaluator did not have all of the required materials. The evaluation was rescheduled, but Darrick missed follow-up appointments, causing further delay.

Regarding the parenting class, the record indicates Darrick was referred to a parenting class early in the case, but the social worker noted this was a less important component of Darrick's case plan because he had a basis of understanding about good parenting. As for the requirement he drug test, the social worker noted she was not especially concerned about his use of marijuana, but only wanted clarification that it was for medical use and she would expect him to drug test only if the children were returned to his care.

As to Darrick's request that services be extended beyond the 18-month date, at the six-month hearing the court ordered services extended to the 12-month date. Since we cannot predict the outcome of the 12-month review, we decline to address Darrick's request to order services beyond the 18-month date.

II

Darrick also asserts the court erred by not returning the children to his care. He argues substantial evidence did not support a finding that return would cause a substantial risk of detriment.

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.) " ' " ' "The rule is clear that the power of the appellate courts begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact." ' " ' " (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227, citations omitted.) "[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.' [Citation.]" (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) 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.)

Section 366.21, subdivision (e) provides in part:

"At the review hearing held six months after the initial disposition 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."

Substantial evidence was presented to show that returning the children to Darrick's custody would cause a substantial risk of detriment. Darrick did not show he had an understanding of how his actions had contributed to the family's problems and the children's emotional distress, but continued to focus on his own innocence. He argued with his therapist and tried to include language in his treatment plan that exculpated him from responsibility for the children's dependencies. The record showed the children could not be safely returned until he had made further progress in therapy. Substantial evidence supports the court's determination the children would be at substantial risk of detriment if returned to his care.

DISPOSITION

The orders are affirmed.

HUFFMAN, Acting P.J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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[1] Statutory references are to the Welfare and Institutions Code.