Filed 9/14/10 In re N.M. CA2/6
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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
In the Matter of N.M., a minor.
TANISHA M.
Petitioner,
v.
THE SUPERIOR COURT OF THE COUNTY
OF SAN LUIS OBISPO,
Respondent.
SAN LUIS OBISPO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Real Party in Interest.
2d
Civil No. B225169
(Super.
Ct. No. JV 48287)
(San
Luis Obispo County)
Tanisha M., mother of
two-year-old N.M., seeks extraordinary
writ review of a juvenile court order terminating reunification services
and setting the matter for a permanency planning hearing. (Cal. Rules of Court, rule 8.452; Welf. &
Inst. Code, § 366.26.)[1] Mother contends, among other things, that
reasonable services were not provided.
We deny the petition for extraordinary writ.
On May 22, 2009, San Luis Obispo County Department of Social
Services (DSS) filed a petition to detain minor (17 months old) for lack of
supervision and protection. (§ 300,
subd (b).) Mother (age 16) suffered from
substance abuse and had a violent temper, rendering her unable to provide for
the care and safety of the minor.[2]
Before minor was
detained, mother agreed to voluntary services but failed to participate in
treatment or attend school. On May 12, 2009, mother tested positive
for amphetamine, benziodiazepine, and marijuana at Drug and Alcohol
Services. Mother was so intoxicated,
that an adult was called to pick up and care for the minor.
After mother
relinquished care of the minor to a paternal aunt, the trial court ordered reunification
services and visitation. Mother,
however, did not participate in the treatment programs and her visits were
sporadic.
On June 14, 2009, mother was arrested for being
under the influence of methamphetamine.
Mother told DSS that she was using marijuana to deal with stress and
abstain from using methamphetamine. The
arrest and drug use was a concern because mother was already on probation in Mariposa
County on a battery charge.
At the July 21, 2009
jurisdiction/disposition hearing, the trial court declared minor a dependent of
the court, continued minor's placement with the aunt, and ordered reunification
services.
A few days later mother
was detained at the San Luis Obispo County
Juvenile Service
Center on an outstanding warrant
and as a safety risk. Mother's
probation, as a juvenile offender, was transferred to Mariposa
County. DSS coordinated the case plan with Mariposa
County to assure that mother
received reunification services to meet the case plan. DSS, at mother's request, changed the
visitation schedule and made travel arrangements so that mother could travel
back and forth from Mariposa County
for supervised visits.
Mother appeared at an October 20, 2009 three month review
hearing and did not request the case plan or visitation be modified. The trial court continued minor's placement
and set the matter for a six-month review hearing.
Contested Six
Month Review Hearing
At the May 11, 2010 six-month review
hearing, evidence was received that petitioner tested positive for
methamphetamine on December 3, 2009. On February
15, 2010, mother used methamphetamine and absconded during a
scheduled visit. Following the incident,
Mariposa County
placed mother in Grace Homes,
a residential drug treatment program for teenage girls in Tulare
County.
Although mother showed
progress at Grace Homes,
DSS recommended that reunification services be terminated. Mother had already received 12 months of
services and had not progressed beyond supervised monthly visits. DSS Social Worker Teresa Smithson testified
that mother lacked insight concerning minor's special needs and opined that
extending services would be detrimental to the minor. Minor suffered from pre-natal exposure to
drugs and was neglected as a baby.
Therapists were treating minor for intense behavioral problems that
included screaming fits, tantrums, aggression toward peers (biting) and adults
(hitting), kicking, crying, sleeplessness, and emotional and behavioral
dysregulation. DSS reported that the
behavioral problems escalated after mother's visits and that reunification
would be detrimental to minor's safety, protection and emotional
well-being.
The trial court
terminated reunification services and
set the matter for an adoption placement hearing.
Reasonable Services
Mother argues that the
evidence does not support the finding that reasonable services were
offered. As in any substantial evidence
case, we review the evidence and draw all reasonable inferences in favor of the
trial court's order. (Elijah R. v.
Superior Court (1998) 66 Cal.App.4th 965, 969.) "[I]n reviewing the reasonableness of
the reunification services provided by the Department, we must also recognize
that in most cases more services might have been provided, and the services
which are 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. [Citation.]" (Ibid.)
Here the probation and
DSS case plans were coordinated to provide supervised visitation, mental health
referrals, drug and alcohol services, parenting and anger management classes,
and individual therapy. Mother was
instructed to keep in touch with minor's therapist to gain an understanding of
minor's needs and developmental problems.
It was "a big priority."
Mother told the social worker, "I'm going to parent my own
way" and that minor "doesn't do any of these behaviors when she's
with me so how can I help her." The
therapist for the minor reported that mother's participation in therapy and
treatment was minimal.
In December 2009, mother
had a drug relapse and claimed that visitation and travel to and from San
Luis Obispo was too stressful. DSS provided bus/train fare but mother
attended only half of the scheduled visits.
In February 2010, mother
claimed she was overwhelmed by too many responsibilities and needed a
"break." Rather than seek help
from her therapist or social worker, mother absconded for six days and used
methamphetamine. Maricopa
County arrested mother on a warrant
and, on March 15, 2010,
placed her in Grace Homes,
a residential drug treatment program.
Mother argues that too
many services were offered and that she was overwhelmed by the case plan
requirements. The DSS social worker,
however, met with mother on a regular basis to review and simplify the case
plan. DSS tailored the case plan to
meet mother's reunification needs, apprised mother of the case plan objectives,
offered special services and transportation, and changed the visitation
schedule to accommodate mother. The
trial court did not err in concluding that the services provided were reasonable
and appropriate. (See e.g., In re Christina
L. (1992) 3 Cal.App.4th 404, 417-418; In re Misako R. (1991) 2
Cal.App.4th 538, 546-547.)
Mother complains that
she was not provided adequate bonding and instructional time with minor. Mother, however, requested that visitation be
reduced from biweekly to weekly visits.
After mother suffered a drug relapse and was placed in Grace
Homes, mother thought it would be a
good idea to change visitation to once a month.
DSS granted the request but asked mother to visit the child as much as
possible. Mother limited the visits to
one day a month and did not request additional visitation or parenting
time.
The evidence clearly
shows that reasonable services were offered and provided. As an unwilling parent, mother could not be
forced to participate in reunification services. (Angela S. v. Superior Court (1995) 36
Cal.App.4th 758, 763; Katie V. v. Superior Court (2005) 130 Cal.App.4th
586, 599.)
Substantial Probability That Minor
Could Be Returned Within 18 months
Mother argues that it is
substantially probable minor will be returned in 18 months if more services are
provided. Where, as here, the child is
under three years of age at time of removal, the parent is entitled to six
months of services. (§ 361.5, subd. (a)(1)(B); In re Jesse W.
(2007) 157 Cal.App.4th 49, 59.) The
trial court may extend reunification services beyond the six 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" within the extended
time period. (§ 361.5, subd. (a)(3).)
Mother received 12
months of services but made little progress in meeting her case plan
goals. It is uncontroverted that minor
is a special needs child who suffers extreme behaviors due to pre-natal
exposure to drugs and neglect. The
behavioral problems escalate after mother's visits. Extending services or placing minor with
therapists geographically closer to mother would be detrimental to the child's
welfare and emotional well being. DSS
Social Worker Smithson testified that minor "has great difficulty with
transitions. And having -- yanking her
out of these stable services that she is receiving now for a long time, where
she has established a relationship with her therapist, . . . and having to end
that and start anew with someone else, is a big concern for me."
Mother received services
well beyond the six-month period proscribed by section 361.5, subdivision (c)
and failed to avail herself of the services offered. "Where, as the record shows in this
case, the likelihood of reunification is extremely low [citation], a
continuation of the reunification period would waste scare resources and delay
permanency for dependent minors." (In
re Aryanna C. (2005) 132 Cal.App.4th 1224, 1242.)
Barriers Caused By Placement In Residential Substance Abuse Treatment
Program
Mother argues that the
trial court failed to consider how the residential drug treatment program
impaired her ability to access services and maintain contact with the
minor. (§ 366.215.)[3] Mother, however, was provided services that
were streamlined and focused on reunification.
Mother claimed that too many services were offered and is barred from
arguing, for the first time on appeal, that her placement impaired her ability
to access court mandated services or maintain contact with her child. (See e.g., Steve J. v. Superior Court
(1995) 35 Cal.App.4th 798, 810-811.)
Waiver aside, the
evidence shows that DSS coordinated the case plan with Mariposa
County to insure that mother was
offered and received a wide assortment of reunification services. The trial court found that mother made
progress at Grace Homes but "had a long way to go in a short period of
time to get herself stable, clean, and sober, and in a position to take care of
N[]. N[] has very special needs. She has a lot of needs that I don't believe
the mother yet understands . . . .
[M]other had difficulty visiting with the minor, but the fact is that
there has not been the kind of commitment to the case plan that the mother
needed or the level of contact between her and the child that she needed in
order for me to be able to make the finding . . . that there is a substantial
probability that she could be returned within the next four to six
months."
Mother was asked to
visit as much as possible but claimed it was stressful and took a nominal interest in minor's
therapy and development. DSS Social
Worker Teresa Smithson testified that mother has still not acknowledged minor's
special needs or that mother's drug use and neglect traumatized the child. "[A]s recently as my last visit with
[mother] in March, [mother] denied . . . N. had ever been neglected or that she
had ever suffered any trauma . . . [Mother] reiterated to me that the trauma
that [minor] experienced was from her removal from the home only."
It was an on-going
concern and supported the finding that it was unlikely that mother could
reunify with minor if services were extended.
The trial court that "mother is taking care of her own needs now
and she needs to do that. But she had
several serious relapses that came at bad times during the reunification
process and N[] is not in a position to be able to wait until her mother
establishes enough stability to insure that [N]'s best interest is going to be
dealt with and . . . to address N[]'s needs. "
Although mother is
sincere about overcoming her substance abuse and mental health problems, she is
unable to care for minor and, in all likelihood, could not reunify with minor
if services were extended another six months.
Childhood is brief and does not wait for the parent to become
adequate. (In re Marilyn H.
(1993) 5 Cal.4th 295, 310.) "The
trial court is only required to order that reasonable reunifications services
be provided; it cannot make the parents accept those services.
[Citation.]" (In re Joanna Y.
(1992) 8 Cal.App.4th 433, 442.)
The petition for
extraordinary relief is denied.
NOT TO BE PUBLISHED.
YEGAN,
Acting P.J.
We concur:
COFFEE, J.
PERREN, J.
Ginger
E. Garrett, Judge
Superior
Court County
of San Luis Obispo
______________________________
Mary A. Foster, for
Petitioner.
No appearance for
Respondent.
Warren R. Jensen, County
Counsel, County of San Luis Obispo, Leslie H. Kraut, Deputy County Counse, for
Real Party in Interest.
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[1]
All statutory
references are to the Welfare & Institutions Code.
[2]
The biological father,
T.C., was uninvolved in minor's life, had a criminal record, and suffered from
depression and substance abuse problems.
At the six-month review hearing, father submitted on DSS's
recommendation to terminate reunification services.
