Michelle B. v. Superior Court
Filed 4/19/13 Michelle B. v. Superior Court CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
MICHELLE B. et al.,
Petitioners,
v.
THE SUPERIOR
COURT OF SAN
DIEGO COUNTY,
Respondent;
D063054
(San Diego
County
Super. Ct. No. 517708A-B)
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Real Party in Interest.
PROCEEDINGS
in mandate after referral to a Welfare and Institutions Code section 366.26
hearing. Ronald F. Frazier, Judge. Petitions denied; requests for stay denied.
Michelle B.
and Tracy J. seek review of a juvenile court order setting a hearing under
section 366.26. They challenge the
juvenile court's findings that it would be detrimental to return their children
to their care, that there was no substantial probability that their children
would be returned home within the next six months, and that reasonable services
were provided to them. We deny the
petitions.
FACTUAL
AND PROCEDURAL BACKGROUND
Michelle
and Tracy are the parents of T.J., who is now three years old, and Nancy J.,
who is almost two years old (together, the children). Michelle and Tracy are developmentally
disabled. Michelle tested in the
borderline range of intellectual functioning.
She has physical conditions that limit her agility and mobility. Tracy
was diagnosed with cognitive disorder and mild mental retardation. Shortly after their respective births, T.J.
and Nancy were adjudicated
dependents of the juvenile court and removed from the custody of their
parents. T.J. and Nancy
are placed in the same foster home.
T.J.
suffers from severe asthma. In all other
respects the children are healthy and reaching normal developmental
milestones.
In July
2011, the juvenile court held both a 12-month review hearing in T.J.'s case and
the jurisdictional/dispositional hearing in Nancy's
case.
family reunification services and set a section 366.26 hearing. In Nancy's case, the juvenile court ordered a
plan of family reunification services
and specifically ordered the Agency to implement short, unsupervised visits
between Nancy and her parents; to notify the parents of, and encourage them to
attend, her medical appointments; not to allow the foster mother to supervise
visits; to engage the services of the public health nurse; to refer the parents
to Step into Success, a parenting program for parents with disabilities; and to
follow-up with the San Diego Regional Center (SDRC) to obtain services for
Michelle. (Tracy J., at p. 1427.)
Michelle
and Tracy petitioned for review of the order setting a section 366.26 hearing
in T.J.'s case, and appealed the jurisdictional and dispositional findings and
orders in Nancy's case. This court
affirmed the juvenile court's findings and orders in Nancy's case. (Nancy
J., supra, D060221.) In T.J.'s case, this court determined that
reasonable services had not been provided to the parents, and remanded the case
to the juvenile court with directions to vacate the order setting a section
366.26 hearing, to continue T.J.'s 18-month review hearing for six months, and
to order the Agency to: (1) expand the
parent's visitation with T.J., including unsupervised visitation as
appropriate; (2) provide services to the parents that are at minimum equivalent
to the services that the juvenile court ordered in Nancy's case; (3) request a
parenting assessment of Tracy by SDRC; and (4) refer Michelle to a medical
professional to determine whether she has Prader-Willi syndrome or other
conditions. (Tracy J., supra, 202
Cal.App.4th at pp. 1428-1429.)
In December
2011, the juvenile court implemented a new case plan in T.J.'s case. The social worker arranged for Michelle and
Tracy to attend T.J.'s appointments at Children's Hospital Asthma Clinic for
training to recognize the signs, symptoms and triggers of asthma, administer appropriate
medication and provide inhaler and nebulizer treatment. The parents no longer qualified for public
health nurse assistance, which is designed for prenatal and newborn care. They were participating in ACT, a program for
parents with disabilities that is equivalent to the Step into Success program.
The social
worker asked SDRC support staff to encourage Michelle to make a doctor's
appointment and to help her reapply for SDRC services once she obtained
additional information about her condition.
The Agency said that if additional services were recommended, it would
help Michelle obtain physical therapy, occupational therapy or other
services.
Michelle
and Tracy participated in follow-up psychological evaluations. Joyce A. Dingwall, Ph.D., who conducted
psychological evaluations of Michelle in April 2010 and October 2011, said that
Michelle appeared to have learned many skills during the past year and that she
had benefitted from services. Dr.
Dingwall reserved judgment as to whether Michelle would benefit from services
to the extent that she would be able to safely and independently parent her
children.
Alan R.
Flitton, Psy.D., conducted psychological evaluations of Tracy in April and July
2010, and August 2011. Dr. Flitton
stated, "It is clear that Mr. J[.] continues to suffer from various
cognitive deficits that will interfere with his ability to parent effectively
to, memory, reasoning, understanding, judgment, insight, planning and
decision[]making, and the ability to give adequate foresight into potential
consequences." Dr. Flitton noted
that Randene Ostlund, Tracy's independent skills (ILS) worker, believed that
the parents could adequately care for their children with supportive services
because they did not have any mental health or personality disorders, or
substance abuse or domestic violence issues.
In view of
the differing opinions about Michelle's and Tracy's ability to safely and
independently care for the children, Dr. Dingwall recommended that a neutral
psychological evaluator conduct a limited evaluation of the parents with their
children to address the appropriateness and safety of parental behaviors and
emotions, the quality of parent/child interactions and any other parameter that
might help in assessing whether reunification posed quantifiable or qualitative
risks to the children's safety and well-being.
The
juvenile court authorized a neutral evaluator to observe the parents and
children in the parents' home. Later,
Dr. Dingwall reported that she had not been able to locate a psychologist who
was willing to complete a limited evaluation of the parent/child
interactions. She recommended that the
evaluation be conducted by a qualified professional who had not previously been
involved in the case. The Agency said
that it would continue to seek a qualified clinician to conduct a neutral
professional assessment of the parent/child relationships.
In
February, the children's pediatrician, Jessica Coullahan, M.D., expressed
concerns about the parents' ability to safely care for the children. Dr. Coullahan said that the parents were
affectionate and loving with the children but lacked common sense when it came
to the children's care. On one occasion,
the parents left Nancy unattended on the examining room table, despite repeated
reminders that it was unsafe to leave her alone. The parents had difficulty picking up Nancy's
cues when she started to cry or fuss.
Dr. Coullahan said that the parents did not appear to have the ability
to identify medical conditions that would pose a risk to their children's
health and safety, such as irregular breathing or fever. She recommended that the parents not have
lengthy unsupervised visits with the children.
At a visit
in February, T.J. pulled away from Michelle while Tracy was putting Nancy into
her car seat, and ran down the sidewalk toward the street. Michelle pursued him, but he continued to
run. Michelle initially followed T.J.,
but stopped to seek assistance from Tracy, who was trying to buckle Nancy into
her car seat. When Nancy began to cry,
Michelle and Tracy turned to the baby and ignored T.J., who was playing in a
puddle approximately 20 to 25 yards away.
According to the social worker, the parents left T.J. unattended for
four minutes.
At Nancy's
birthday party, T.J. ran toward the street.
His parents did not realize that he was gone. The foster mother ran to get T.J. She returned with T.J. without the parents
having noticed his absence. In another
incident, Tracy left Nancy unattended on a bed.
Nancy crawled off the bed and fell on her head. She was not hurt. Michelle was nearby but was unable to move
quickly enough to prevent Nancy from falling.
In June, at
the foster parent's home, T.J. had a severe asthma attack, which required
emergency treatment and hospitalization.
The day after T.J. was admitted to the hospital, Michelle and Tracy
attended a doctor's appointment at which T.J.'s asthma plan was discussed. The parents did not appear to pay attention
to the doctor and were not able to answer his questions.
In August,
Michelle and Tracy received an eviction notice due to noncompliance with their
landlord's request to treat a pest problem.
In mid-August, they notified the Agency that they intended to rent an
apartment with the children's maternal grandmother, who would help them with
the children's care. The juvenile court
continued the review hearings to allow the Agency to assess whether the
children could safely live with their parents and grandmother.
In early
September, Michelle and Tracy moved to a downtown San Diego hotel that was
frequented by transients and the mentally ill.
It was not a safe environment for them.
They lost contact with the social worker, Ostlund, the foster parent and
their children, for approximately three weeks.
At some
point in time between late September and early October, the parents moved into
an unfurnished three-bedroom apartment with the maternal grandmother. On October 10, the social worker made an
unannounced visit to assess the parents' circumstances. During the visit, Tracy placed Nancy in a
lawn chair and turned his back. She
started to reach for a toy on the floor and nearly tumbled out of the
chair. Michelle tried to get Tracy's
attention, but she did not move to help Nancy.
Later, the smoke detectors in the apartment complex went off. Tracy walked to the front door of the
second-story apartment and looked outside.
He left the front door open. The
social worker and the children's court-appointed special advocate (CASA) walked
outside to make sure that the children did not go out the front door. Although the maternal grandmother commented
on the safety hazards, she did not intervene to protect the children or correct
the parents.
T.J.'s
18-month review hearing and Nancy's 12-month review hearing were heard
concurrently on November 2, 5, 16, 19 and 28.
The juvenile court admitted in evidence the Agency's reports, the CASA's
report and the parents' exhibits, and heard testimony from the foster mother,
social worker Anthony Scheri, the CASA, Tracy, Michelle and ILS worker
Ostlund. We briefly summarize the
evidence that is relevant to the issues raised in this proceeding.
The evidence showed that
Michelle and Tracy fully participated in their case plans. They successfully completed courses in
parenting education, child development, nutrition, CPR and first aid. During the parenting classes, they were very
attentive to their children's needs. The
parents visited the children regularly and attended their medical appointments
and hospitalizations. They were loving,
calm, gentle and affectionate with the children.
Social
worker Scheri recommended that the juvenile court terminate reunification
services and set a section 366.26 hearing.
He said that even after having worked on their parenting skills for
three years, the parents did not show the ability to apply what they had
learned in real life situations. Scheri
did not believe that the grandmother understood that her role was to ensure the
children's safety. Michelle and Tracy
engaged in fundamentally unsafe parenting, such as putting a one-year-old child
in a chair and walking away, and leaving the outside door of a second-story
apartment open while the children were present.
In addition, T.J. had severe asthma.
His life depended on rapid intervention in a medical emergency. Scheri said that due to their developmental
disabilities, the parents were unable to adapt to changing circumstances, make
safety decisions and protect the children.
Ostlund
testified that the parents required assistance to be able to care for their
children. If the children were returned
home, SDRC could provide up to 60 hours of in-home services per month.
The CASA
said that Michelle and Tracy did well in highly structured settings with
guidance and redirection, but they did not appear to be capable of managing the
children on their own. The CASA believed
that the parents clearly cared about their children and said that they were
working hard to be able to reunify with the children.
Michelle
testified that she was capable of taking care of her children with help. Tracy said that he was able to parent the
children. He said that Michelle and
Ostlund had helped him to become a better parent.
The juvenile
court stated that Michelle's and Tracy's efforts to reunify their family were
extraordinary and that they had made substantial progress with their case plans
in all areas but one. Citing the number
of incidents that had jeopardized the children's safety, the juvenile court
found that the parents' limited ability and capacity to assess, and respond to,
an emergency created a substantial risk of detriment to the children's safety,
protection and well-being. The juvenile
court found that there was not a substantial probability that the children
could be returned to the parents' care within the next six months, and that
reasonable services had been provided to the parents. The court proceeded to set a section 366.26
hearing.
Michelle and Tracy each petitioned
for review of the court's order under California Rules of Court, rule
8.452. In addition, they join in each
other's petition. The parents request
that this court reverse the order setting a section 366.26 hearing. This court issued an order to show cause, the
Agency responded and the parties waived oral argument.
DISCUSSION
A
There Is
Substantial Evidence to Support the Juvenile Court's Finding That Reasonable
Services Were Offered or Provided to Reunify the Family
Michelle and Tracy argue that reasonable visitation
services were not provided to them. In
addition, they contend that they were not offered or provided reasonable
services because the Agency did not adequately train them to administer T.J.'s asthma
treatment, request a parenting assessment for Tracy or help Michelle obtain a
court-ordered psychological assessment and medical evaluation. Finally, the parents assert that they were
denied reasonable services because the Agency conducted only a cursory
evaluation of the maternal grandmother's ability to assist them with their
children.
Family reunification services play a critical role in
dependency proceedings. (§ 361.5;
Cal.App.4th 555, 563; In re
Joshua M. (1998) 66 Cal.App.4th 458, 467; see 42 U.S.C. § 629a(a)(7).) Services "may include provision of a
full array of social and health services to help the child and family and to
prevent reabuse of children."
(§ 300.2.) Reunification
services should be tailored to the particular needs of the family. (David B.
v. Superior Court (2004) 123 Cal.App.4th 768, 793-794 (David B.), citing In re
Alvin R. (2003) 108 Cal.App.4th 962, 972.)
At each review hearing, the court
is required to determine the "extent of the agency's compliance with the
case plan" in making reasonable efforts to return the child to a safe
home. (§ 366, subd. (a)(1)(B).) "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. (1991) 2 Cal.App.4th 538, 547.) To support a finding that reasonable services
were offered or provided to the parent, "the record should show that the
supervising agency identified the problems leading to the loss of custody,
offered services designed to remedy those problems, maintained reasonable
contact with the parents during the course of the service plan, and made reasonable
efforts to assist the parents in areas where compliance proved
difficult . . . ."
(In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The "adequacy of reunification plans and
the reasonableness of the [Agency's] efforts are judged according to the
circumstances of each case." (
33 Cal.App.4th 1158, 1164 (Robin V.).) If reasonable services are not provided or
offered to the parent, the court is required to continue the case for the
period of time permitted by statute.
(See § 366.21, subds. (e) & (g)(1).)
We review a
reasonable services finding to determine if it is supported by substantial
evidence. (In re Christina L. (1992) 3 Cal.App.4th 404,
413-414.) The burden is on the petitioner to show that the
evidence is insufficient to support the juvenile court's findings. (In re
L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
1.
services
In December
2011, the juvenile court implemented a new visitation plan. The plan provided for three hours of in-home
visitation once a week, including a one-hour unsupervised visit. The parents would also have additional visits
with the children at the children's medical appointments, "Mommy &
Me" classes and language enhancement classes.
By March 2012, visitation was
occurring two or three times a week. On
Tuesdays, the parents and the children participated in a two-hour "Mommy &
Me" class, which was followed by an unsupervised visit for one to one and
one-half hours (Tuesday visits). On
Wednesdays, when Ostlund helped Tracy with independent living and parenting
skills, the children stayed with the parents for approximately six hours
(Wednesday visits). One hour of the
Wednesday visit was reserved for unsupervised visitation. On alternate Thursdays, the parents had an
unsupervised visit with the children for one and one-half to two hours at a
park in North San Diego County (Thursday visits).
Ostlund
provided transportation to the parents for the Tuesday visits and for most of
the children's medical appointments, and shared transportation responsibilities
for the children with the foster mother on Wednesdays. The foster mother transported the children on
Tuesdays, and took them to all of their medical appointments. The Agency expected the parents to provide
their own transportation to the Thursday visits in North San Diego County from
their home in East San Diego County. The
parents relied on public transportation.
Their travel time to the Thursday visits was approximately four to five
hours each way. From January through
May, the parents regularly attended the Thursday visits. They attended another visit in August and then
stopped. Michelle explained that the
10-hour round trip was too difficult for them.
Ostlund
described the 10-hour round trip as "horrific" for the disabled
parents and testified that she had asked Scheri to rearrange the visitation
schedule. After the "Mommy &
Me" classes ended, Ostlund observed that the parents were missing out on
their visitation and offered to supervise one or two more visits each
week. Ostlund testified that Scheri did
not respond to Ostlund's request to rearrange the visits or to her offer to
supervise the visits.
Scheri
acknowledged that once the "Mommy and Me" classes ended, Michelle and
Tracy no longer visited the children on Tuesdays, and further acknowledged that
Ostlund had asked him to expand visitation services. He testified that he had discussed the issue
with his supervisor, who had said that the Agency was not inclined to expand
visitation because the parents were not taking advantage of the Thursday
visits. Scheri acknowledged that the
parents had to travel 10 hours to attend the Thursday visits. He said, "I was open to look into
[changing the visitation schedule], but like I said, it was the visitation
schedule that we had already previously arranged." Scheri said that he had explained the
transportation problems to his supervisor, but the supervisor said that it was
"the parents' responsibility to get to the visits."
The record
shows that visitation services increased from December 2011 to March 2012, but
decreased during the summer and after August 2012, when the "Mommy &
Me" classes ended and Michelle and Tracy decided not to attend the
Thursday visits because of the difficult commute. At the time of the November hearing, the
parents had visitation with the children every Wednesday for six hours,
including one hour of unsupervised visitation.
The record shows that the Agency was unwilling to reschedule the Tuesday
visits or otherwise expand visitation until the parents regularly attended the
Thursday visits as "previously arranged."
To promote family reunification,
visitation must be as frequent as possible, consistent with the well-being of
the child. (§ 362.1, subd. (a)(1)(A);
and his or her parents is an essential component of a reunification plan, even
if actual physical custody is not the outcome of the proceedings." (In re
Mark L. (2001) 94 Cal.App.4th 573, 580; In re J.N. (2006) 138 Cal.App.4th 450, 458.)
We are disappointed that the Agency
would think that it is reasonable to require any parent, let alone a
developmentally disabled parent, to regularly travel 10 hours to visit his or
her child during the reunification period.
(See §§ 16501.2, subd. (c), 16000; Fam. Code, § 7950, subd.
(a).) We reject the Agency's argument
that the visitation arrangement was reasonable per se because the children and
parents resided in the same county. (See
In re Anthony T. (2012) 208
Cal.App.4th 1019, 1030-1031 [describing factors that determine whether the
child's placement will facilitate reasonable visitation]; David B., supra,
must be tailored to meet the family's needs].)
The Agency's refusal to reinstate Tuesday visits, to expand visitation
or to modify the Thursday visits until the parents resumed the Thursday visits
without modification or assistance, placed the parents in a
"Catch-22" situation. (See
Heller, Catch-22 (1961).) It is particularly
egregious in this case because Michelle's and Tracy's efforts to comply with
their case plans were exemplary.
The Agency's recalcitrance
contravenes the long-standing rule that the Agency is required to make
reasonable efforts to assist the parents in areas where compliance proves
difficult, including providing transportation services (or modifying the
location of the visits). (
Cal.App.4th at p. 1165; Amanda H. v.
Superior Court (2008) 166 Cal.App.4th 1340, 1345.) Even if the Agency believed that Michelle and
Tracy were unlikely to regain physical custody of the children, it had a
continuing obligation to provide visitation services as frequently as possible,
consistent with the well-being of the children.
(§ 362.1, subd. (a)(1)(A); Tracy
J., supra, 202 Cal.App.4th at
p. 1428 [ordering expanded visitation on remand]; In re Mark L., supra, 94
Cal.App.4th at p. 580; In re J.N.,
also § 366.26, subd. (c)(1)(B)(i) [regular contact and visitation plays a
role in establishing a beneficial parent/child relationship].)
As much as we take issue
with the Agency's poorly-reasoned decision with respect to visitation, it is
our obligation to review the evidence most favorably to the prevailing party and to indulge
in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R., supra, 2 Cal.App.4th at
p. 545.) The record shows that the
juvenile court and the Agency complied with this court's directive to expand
visitation services, including unsupervised visitation as appropriate, and that
the parents received adequate visitation services throughout most of the review
period. (Tracy J., supra, 202
Cal.App.4th at p. 1428.)
In December 2011, the Agency
implemented a three-hour weekly visit in the parents' home, including a
one-hour unsupervised visit. Despite the
onerous transportation requirements, the record shows that the parents had
unsupervised visits with the children on alternate Thursdays from January
through May, without complaint, and attended another visit in mid-August. By March, the Agency had expanded the
Wednesday in-home visits and added the Tuesday visits. In addition, Michelle and Tracy were informed
of the children's medical appointments and hospitalizations, and had the
opportunity to parent their children at those times. The parents did not visit their children for
three weeks in September.
While the Agency's refusals to
modify the parents' visitation schedule to eliminate the 10-hour commute on
Thursdays and reinstate the Tuesday visits were unjustified, the error occurred
approximately four months after the 18-month review date in T.J.'s case and
three months after the 12-month review date in Nancy's case. (See §§ 361.5, subd. (a)(1), 366.21, subd.
(f) & 366.22.) The record shows that
during the review period, the parents received more than eight months of
reasonable visitation services.
name="_ftnref3" title="">[3] Thus, the record contains substantial
evidence to support the finding that reasonable visitation services were
offered or provided to the parents.
2. Asthma Treatment
Training
Michelle
and Tracy contend that they did not receive reasonable services because the
Agency did not include hands-on training in administering T.J.'s asthma
medication and other treatment. They
contend that the Agency trained them only once to administer T.J.'s daily
asthma treatments, and that the social worker should have set up a morning
visit to provide a special training session.
We are not
persuaded by the parents' argument that the training that they received in
administering T.J.'s asthma plan was deficient.
Michelle and Tracy acknowledge that they had a hands-on training in
administering T.J.'s asthma treatment.
The record shows that the parents received regular training and
instruction on T.J.'s asthma plan. T.J.'s
physicians instructed the parents in how to recognize asthma symptoms and
reviewed the asthma plan with them. The
parents received copies of T.J.'s asthma plan during his pediatric and
specialist appointments, emergency room visits and hospitalizations. Ostlund testified that she reviewed T.J.'s
asthma plan with the parents two or three times a month. During T.J.'s hospitalization in June, the
physician reviewed the asthma plan with the parents. On that occasion, the parents did not appear
to pay attention to the physician, and were unable to answer his
questions. The physician then had a
respiratory therapist review the asthma plan with the parents. She had to pause repeatedly to get their
attention. Although the therapist
explained all the steps of T.J.'s asthma plan to the parents as clearly and
simply as she could, she remained concerned about their ability to understand
the plan and to follow through with the treatment. In September, when T.J. was again hospitalized
after an asthma attack, the physicians informed the parents about his necessary
treatment and aftercare appointments.
The Agency
made reasonable efforts to educate and train the parents with respect to T.J.'s
asthma treatment plan. The Agency could
reasonably conclude that it was not in T.J.'s best interests for the parents
and foster mother to share responsibility for administering that treatment, or
to disrupt T.J.'s established daily schedule to allow the parents to provide a
portion of his treatment.
3. Tracy's Parenting Assessment
Michelle
and Tracy contend that they were not provided reasonable services because the
Agency did not comply with this court's directive to request a parenting
assessment of Tracy by SDRC. They argue
that such an assessment would have allowed the Agency to provide individualized
and specific services to Tracy to facilitate reunification.
The record
shows that the Agency's new case plan did not include a formal parenting
assessment of Tracy by SDRC. Instead,
the Agency consulted with SDRC to provide more specific services to Tracy and
Michelle. The record does not indicate
that any party objected to Tracy's new case plan or requested that the plan
include a formal parenting assessment.
The record
also shows that Ostlund had provided independent living and parenting services
to developmentally disabled persons for more than 27 years. She worked closely with Tracy under the
auspices of ACT, a program that SDRC had selected for Tracy. Ostlund provided individualized parenting
instruction to Tracy, adjusting the method and content as needed. In that capacity, Ostlund continually
assessed Tracy's needs for parenting instruction.
In addition
to Ostlund's ability to adapt her instruction to meet Tracy's needs, the record
shows that the Agency arranged for Tracy to undergo three psychological
evaluations. The third evaluation was
filed in the juvenile court record after this court issued its decision in
This evaluation contains an assessment of Tracy's ability to safely
parent his children. Dr. Flitton, who
conducted the evaluation, concluded that Tracy continued to suffer from various
cognitive deficits that interfered with his ability to effectively and
independently parent his children because Tracy's memory, reasoning, understanding,
judgment, insight, planning and decision making, and his ability to recognize
potential consequences, were impaired.
In view of
the juvenile court's authorization of an informal parenting assessment in
Tracy's new case plan, the individualized parenting training that was provided
to Tracy by an experienced provider and Tracy's three
assessing his ability to benefit from services and safely parent his children,
we conclude that Tracy received reasonable services to assess his parenting
skills and provide individualized and specific services to him to facilitate
reunification.
4. Michelle's Psychological Evaluation and
Medical Referral
Michelle
and Tracy argue that services were inadequate because the Agency did not obtain
a limited evaluation of Michelle by a neutral evaluator, as recommended by Dr.
Dingwall and ordered by the juvenile court on January 24, 2012. In support of their position, Michelle and
Tracy rely on In re K.C. (2012) 212
Cal.App.4th 323, 333-334 (K.C.),
in which the reviewing court reversed a reasonable services finding because the
social services agency did not provide a recommended psychotropic medication
evaluation to the parent.
In contrast to the limited efforts
made by the social services agency in K.C.
to assist the parent, here the Agency contacted medical professionals to
determine whether Michelle had Prader-Willi syndrome, referred her for a
medical consultation, arranged for support services and encouraged her to
contact her doctor to schedule an appointment.
The record shows that unlike the parent in K.C., Michelle was capable of obtaining and following through with
her own medical treatment. Ostlund
testified that Michelle was capable of setting up her own medical appointments
and that Michelle preferred to remain as independent as possible. Thus, the record shows that the Agency met
its obligation to "refer Michelle to a medical professional to determine
whether she has Prader-Willi syndrome or other conditions."
J., supra, 202
Cal.App.4th at p. 1429.)
The
parents' contend that the Agency did not secure a neutral professional
assessment of Michelle's relationship with the children, as ordered by the
juvenile court. The record supports this
contention. The Agency attempts to
justify its failure to find a qualified neutral professional by asserting that
the order for the neutral professional assessment was not a part of this court's
disposition in Tracy J. The Agency's argument is disingenuous. The record clearly shows that
undergo a limited psychological evaluation by a neutral evaluator, and ordered
the Agency to "contact Dr. Dingwall to determine what specifically is
being requested." The juvenile
court specifically authorized the neutral evaluator to observe the parents in
their home with the children.
The record
shows that the Agency complied with the juvenile court's order to contact Dr.
Dingwall. Dr. Dingwall said that she had
been unable to locate a psychologist to complete a limited evaluation of the
parent/child interactions, and recommended instead that the evaluation be
conducted by another qualified professional, such as an in-home parenting coach
with no previous involvement in the case.
The Agency then contacted the public health nurse, who said that the
parents did not qualify for the service because the children were not in their
care. The Agency also contacted the
Chadwick Center, which did not have any clinicians who could perform an
assessment of Michelle's interactions with the children.
Unlike the
social services agency in K.C., whose
only attempt to secure a recommended pharmacological evaluation for the
mentally ill parent was to send the parent to a public mental health clinic,
and made no further efforts to assist the parent when he did not meet the
clinic's criteria for treatment, the record shows that the Agency made
reasonable efforts to comply with the juvenile court's order. (K.C.,
supra, 212 Cal.App.4th at p.
329.) While Michelle's assessment
services were not perfect, they included two psychological evaluations, reports
from neutral professionals who observed her with the children during parenting
and "Mommy & Me" classes, and favorable observations from
Ostlund, who observed Michelle with the children every week. The record shows that Michelle received the
necessary referrals for a medical evaluation and that she also received
parenting assessments from different providers.
5. The Agency's Assessment of the Maternal
Grandmother's Role
Tracy and
Michelle contend that they were denied reasonable reunification services
because the Agency did not conduct an adequate assessment of whether the
maternal grandmother's presence in their home would allow them to safely care
for the children. They argue that the
Agency conducted a cursory assessment that unreasonably prejudiced their
ability to reunify with their children.
In August
2012, after the Agency learned that the maternal grandmother was willing to
share a home with the parents, it asked the juvenile court to continue the
review hearings to allow the social worker to complete an investigation of the
maternal grandmother's capacity to follow through and protect the children, the
parents' new home and the interactions among the family members.
The Agency
conducted initial background checks of the maternal grandmother and met
separately with her and the parents. In
October, the social worker made an unannounced visit to the parents' new
home. The maternal grandmother told the
social worker that she planned to observe the parents with their children to
gain insight to see where she would best fit in. She was concerned about encroaching on
Tracy's autonomy and authority. The
social worker told the grandmother that her role was to assist the parents in
parenting. During the visit, the
grandmother did not assist or correct the parents when safety issues
arose. The grandmother had not come
forward earlier in the case to help the parents with the children, and Scheri
testified that there was no guarantee that the grandmother would continue to
live with the parents if the children were returned home.
The Agency
was not evaluating the maternal grandmother as the children's guardian or adoptive
parent. Rather, it was conducting an
assessment of the parents' home to see whether their circumstances were
sufficiently changed to allow the children to safely return home, with support
services. The Agency concedes that the
better practice would have been to assess the grandmother's interactions with
the family more than once. However, the
record shows that the Agency asked the juvenile court for additional time to
conduct an assessment, performed initial background checks, interviewed the
grandmother and the parents, waited until the parents and grandmother had time
to settle into their new home and then observed the grandmother's interactions
with the parents and children. Even
after the social worker advised the grandmother that her role was to protect
the children, the grandmother continued to act as an observer and did not
intervene in any of the safety issues that arose during the visit. Thus, there is substantial evidence to
support the finding that the Agency's evaluation of the parents' new home and
grandmother's ability to ensure the children's safety was reasonable.
The record
shows that during the last review period, Michelle and Tracy were provided with
reasonable reunification services. Those
services included extensive in-home parenting support, parenting education
classes, parenting assessments, visitation, the opportunity to parent the
children during their medical appointments and hospitalizations, and medical
referrals. There is substantial evidence
to support the juvenile court's finding that reasonable reunification services
were offered or provided to the parents.
B
Discretion When It Denied the Parents' Requests to Extend Reunification
Services
Michelle
and Tracy contend that the juvenile court erred when it denied their requests
to extend services in the children's cases for another six months. They maintain that they clearly proved that
they could provide a safe home for the children.
When a
child is removed from parental custody, unless specified exceptions apply, the
juvenile court must order family child welfare services for the child and the
parent to facilitate family reunification.
(§ 361.5, subds. (a) & (b).)
For a child under three years of age on the date of the initial removal
from parental custody, reunification services are presumptively limited to six
months, and may be provided "no longer than 12 months from the date the
child entered foster care . . . ." (Id.,
subd. (a)(1)(B).)
At the 12-month
review hearing, if the child is not returned to parental custody, the juvenile
court has the discretion to continue the case to the 18-month review date, set
a section 366.26 hearing, or order a permanent plan of long-term foster care
for the child. (§ 366.21, subd. (g)(1), (2) & (3).) The juvenile court may extend services to the
18-month review date to the parent only if the court finds that there is a
substantial probability that the child will be returned to the physical custody
of his or her parent and safely maintained in the home within the extended
period of time. (§§ 361.5, subd. (a)(3), 366.21, subd. (g)(1).)
To find a substantial probability that the child will
be returned to parental custody and safely maintained in the home, the juvenile
court is 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 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." (§ 366.21,
subd. (g)(1).)
The juvenile court reasonably determined that although
the parents regularly visited and contacted their children and made
extraordinary efforts to resolve the problems that had led to the continuation
of the children's dependency proceedings, they did not meet their burden to
show that they had the capacity and ability to complete the objectives of their
treatment plans and provide for the children's safety, protection, physical
well-being and special needs. (§ 366.21,
subd. (g)(1).)
The record shows that Michelle and Tracy were gentle,
loving and affectionate with their children.
Through instruction, repetition, correction and assistance, Michelle and
Tracy learned basic parenting tasks and took them to heart. However, the record shows that Michelle and
Tracy continued to have difficulty assessing and responding to new or emergency
situations. Their parenting skills were
not ingrained or instinctive. Despite
having had more than two years of in-home parenting services and other classes,
their lack of attention or judgment placed the children at risk on more than a
few occasions. In T.J.'s case, because
of his severe asthma, an improper assessment or delay in obtaining treatment
could be a matter of life and death. The
social worker, Ostlund and the CASA agreed that Michelle and Tracy could not
provide for the children's safety, protection, physical well-being and special
needs without exceptional assistance from the maternal grandmother or SDRC, or
both.
The record supports the finding that Michelle and Tracy
did not demonstrate the capacity and ability both to complete the objectives of
their treatment plans and to provide for the children's safety, protection,
well-being and special needs. (§ 366.21,
subd. (g)(1).) The juvenile court thus
did not abuse its discretion when it denied the parents' requests to extend
reunification services to them for another six-month period.
C
There Is
Substantial Evidence to Show That Return to the Parents Would Create a
Substantial Risk of Detriment to the Children's Safety and Protection
Michelle
and Tracy contend that there is no substantial evidence to support the juvenile
court's finding that returning the children to their care would create a substantial
risk of detriment to the children's safety and protection. They argue that the Agency made only a
cursory assessment of the grandmother's ability to ensure the children's safety
in the home, and that the evidence shows that the grandmother was engaged in
helping the parents care for the children.
Michelle and Tracy further contend that the juvenile court should have
evaluated the level of risk separately for each child. They argue that even if there is substantial
evidence to sustain the detriment finding in T.J.'s case, the evidence is
insufficient to sustain a detriment finding in Nancy's case because Nancy does
not have asthma and is no longer an infant.
At the
12-month review hearing, the court must return the child to the physical custody
of his or her parent unless the Agency proves, by a preponderance of the evidence, that return
to the parent would create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child (detriment
finding). (§ 366.21, subd. (f); see
In re Marilyn H. (1993) 5 Cal.4th 295, 308; In
re Jasmon O. (1994) 8 Cal.4th 398, 420.)
At a review hearing, the focus is on the child's well-being,
rather than on the initial grounds for juvenile court intervention. (In re
Joseph B. (1996) 42 Cal.App.4th 890, 899.)
affirm an order setting a section 366.26 hearing if it is supported by
substantial evidence. (James B. v.
Superior Court (1995) 35 Cal.App.4th 1014, 1020.) "When a trial court's factual determination is attacked
on the ground that there is no substantial evidence to
sustain it, the power of an appellate court begins and ends with
the determination as to whether, on the entire
there is substantial evidence,
contradicted or uncontradicted, which will support the
determination . . . ."
(Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874; Elijah
R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) The judgment will be upheld if it is
supported by substantial evidence, even though substantial evidence to the
contrary also exists and the trial court might have reached a different result
if it had believed other evidence. (
Cal.App.4th 212, 228.)
The record
shows that Michelle and Tracy were able to care for the children in a highly
structured setting with guidance and redirection. Tracy suffers from various cognitive deficits
that adversely affect his memory, reasoning, understanding, judgment, insight,
planning and decision making and the ability to have adequate foresight into
potential consequences. While Michelle's
abilities are not as limited as Tracy's abilities, her lack of physical
mobility makes it difficult for her to respond to the children's basic needs and
protect them in the event of an emergency.
The record shows that the parents left Nancy unattended on a bed, a
chair and an examining room table. When
Michelle became aware that Nancy was at risk of falling from the bed and chair,
she was unable to protect her. The
parents were unable to prevent T.J. from running away from them on several
occasions. On one occasion, they did not
appear to realize that T.J. was no longer in their care.
Dr.
Coullahan said that Michelle and Tracy did not appear to pay attention to the
health care information that was provided during the children's medical
appointments. They were unable to repeat
the children's medical plan after Dr. Coullahan gave it to them. Ostlund agreed that the medical appointments
were not satisfactory. Without rapid
intervention in a medical emergency, T.J.'s asthma was potentially life
threatening. Dr. Coullahan questioned
the parents' ability to identify medical conditions that would pose a risk to
T.J.'s and Nancy's health and safety, such as irregular breathing or
fever.
The parents
contend that the presence of the maternal grandmother in their home negates any
risk to the children that they might otherwise face if returned home. Under section 366.21, subdivision (f), the
issue is whether the children would be safe in the care of the parents, who
would have custody and control of the children.
The Agency was not assessing the maternal grandmother for a guardianship
role. The record lacks any guarantee
that the current living arrangement would be permanent. Ostlund testified that it would "[not]
be healthy for anybody involved" to leave the children in the sole care of
their parents. When asked whether the
parents would ever be able to safely care for the children, Ostlund testified
that the parents had the "skill capacity" for parenting, but said
that she could not offer an opinion until the parents had more visitation,
including overnight visitation, with the children. Ostlund believed that the parents still
needed training to learn the children's daily routines.
Finally, we
are not persuaded by the parents' argument that Nancy would not be at
substantial risk of detriment if she were returned to their care. The parents left Nancy without proper supervision
on three occasions―on an examination table, a bed and a
chair―placing her at risk of injury.
Dr. Coullahan's concerns about the parents' ability to identify medical
conditions were not limited to T.J. She
was as equally concerned about Nancy's medical care.
The parents
are to be commended for their efforts to learn to care for their children. However, despite these efforts, there is
substantial evidence to support the juvenile court's finding that returning the
children to the parents' care would create a substantial risk of detriment to
T.J. and Nancy. (§ 366.21, subd.
(f).) Accordingly, we deny the parents'
requests for relief.
DISPOSITION
The petitions are denied. The requests for stay are denied.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
name="_ftn2" title="">[2] On our own motion, we take judicial notice of this court's
opinions in Tracy J. v. Superior Court
(2012) 202 Cal.App.4th 1415 (Tracy J.)
and In re Nancy J. (Feb. 16, 2012,
D060221) [nonpub. opn.] (Nancy J.). (Evid. Code, § 452, subds. (a) &
(d).) The early history of the parents'
reunification efforts are described in those opinions.
