Patricia C. v. Super. Ct.

Filed 8/8/08 Patricia C. v. Super. Ct. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Patricia C. (petitioner), the mother of the minor, seeks an extraordinary writ to vacate orders of the juvenile court, entered at the 18-month review, terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing. (California Rules of Court, rule 8.452; further section references are to the Welfare and Institutions Code.) Petitioner contends the juvenile court erred by finding that reasonable services were provided to her. She also claims the court abused its discretion by declining to continue the review hearing to allow her to complete services. We shall deny the petition and request for a stay.

FACTUAL AND PROCEDURAL BACKGROUND

A dependency petition was filed in July 2006 regarding the 21-month-old minor and her 6-year-old sibling after petitioner, who had psychiatric and emotional problems, asked for the children to be placed in protective custody because her mental instability rendered her unable to care for them. According to the minors sibling, petitioner had punched and kicked him and hit the minor.^[1] Petitioner, who had a history of child protective services intervention, reported that she had been diagnosed with chronic depression and anxiety (diagnoses later confirmed by a psychological evaluation) but had not taken medication for three weeks due to a problem with the [medical] coverage.

The juvenile court sustained the allegations in the petition, and the matter was continued for a dispositional hearing with an order that petitioner participate in a psychological evaluation as arranged by the social worker.

No psychological evaluation appears to have been completed by the dispositional hearing in November 2006. The court ordered services for petitioner as recommended by the social worker, and again ordered a psychological evaluation to assess petitioners ability to parent her children.

According to the report for the six-month review, the social worker had made referrals to an array of services, and petitioner had completed a medication evaluation, was attending therapy and a parenting class, and consistently attended visits. Petitioner had been very cooperative and her prognosis in short-term counseling was good, although she had not made progress in the area of parental effectiveness. Visits remained supervised, in part due to reports that [petitioner] was unable to assess age-appropriate behaviors and expectations of the children.

Although the social worker recommended termination of services based on petitioners lack of progress, the court made a finding at the review hearing in April 2007 that petitioner had made substantive progress. Thus, the court ordered services to continue. Finding that the Sacramento County Department of Health and Human Services (the Department) had complied with the case plan by making reasonable efforts to make it possible for the children to return home, the court again ordered a psychological evaluation to identify how to best tailor [petitioners] services.

A psychological evaluation in June 2007 did not support a very positive prognosis for [petitioner] to be able to successfully reunify with her children over the long term. The evaluator noted petitioner d[id] not appear to have the psychological resources necessary to effect changes in her circumstances, and it was very unlikely that she would be able to benefit from any services the Department could provide her over the next [12] months sufficiently that she would be able to provide a stable, secure home life for her children by the end of that time.

According to the 12-month review report, petitioner remained cooperative with the social worker, attended a housing workshop, and successfully completed the parenting class. However, it was reported that she was usually preoccupied during visits and not attentive to the children. The social worker again recommended that services be terminated.

In September 2007, the matter was continued so the social worker could obtain additional information regarding petitioners counseling and further analysis for tailoring services. In an addendum, the social worker reported that petitioner had remained stable on her medications for the preceding six months and had made progress on some of her therapeutic goals, but had been unable to meet other goals that her therapist deemed critical to the well-being of her children should re[]unification be granted.

The psychologist who performed petitioners psychological evaluation submitted a supplemental report with recommendations for tailored services, including a recommendation that petitioner be referred to a neurologist to determine whether she had a seizure disorder, based on physical symptoms she described experiencing after a fall in her shower the previous year. The psychologist also recommended petitioner meet regularly with her psychiatrist and create a behavioral contract regarding medication compliance; continue individual therapy; participate in hands-on parenting training; and be provided in-home independent living skills instruction.

At the 12-month review hearing in October 2007, the court found that reasonable services had not been provided and set the matter for an 18-month review hearing. An updated case plan was filed with the court one week later, containing most of the recommendations of the psychologist.

Shortly after the hearing, the social worker pursued possible resources for a neurological examination, although she did not follow up with petitioner or the providers with whom she had left messages. Similarly, the social worker made attempts to locate independent living skills training for petitioner, but she did not speak to anyone until several months after the 12-month review hearing, at which time she determined that there was a current class in symptom management. The social worker did not leave messages for petitioner regarding the class until April 2008, while the 18-month review hearing was pending. Likewise, she did not contact petitioners therapist to arrange for additional individual therapy until the review hearing was pending.

Soon after the 12-month review, petitioner was referred for hands-on parenting training. Although petitioner had been cooperative and had progressed to the second component of treatment, the service provider was concerned about [petitioners] ability to generalize the skills she is learning . . . [and] to independently initiate and respond appropriately to [the minors] day-to-day social needs across situations and settings. Petitioner was described as exhibiting a lack of initiation [of] basic acts of attunement [with the minor] such as holding [her] hand while walking, pushing [her] chair closer to the table, handing her toys, [and] following her play. She was able to perform tasks that [were] modeled and coached to her during [parent training] sessions, but it was felt that her ability to independently manage and actively care for [the minor] [wa]s questionable, particularly as [the minors] developmental needs change[d].

According to the social workers report for the 18-month review hearing, petitioner attended visits but continued to have trouble setting boundaries and engaging with the minor and her sibling. Despite petitioners participation in counseling, parenting classes, and hands-on parenting training, her interactions with the children had not improved. The social worker recommended that services be terminated.

Petitioner filed a pretrial statement challenging the adequacy of services and alleging the failure to provide her a neurological examination, independent living skills training, and additional therapy. In a subsequent brief, petitioner asked the court to continue the 18-month review hearing to give her more time to complete services.

At the 18-month review hearing in April 2008, the Department concurred that a continuance of the hearing would be appropriate to see whether the hands-on parenting training would assist petitioner and whether a medical diagnosis (presumably through a neurological exam) would reveal barriers that could be addressed.

The juvenile court stated that it could grant a continuance only if there were exceptional circumstances and that this was a separate issue from whether reasonable services had been provided; if it found reasonable services had not been provided, it could continue [the matter] anyway. The court noted all of the experts had found that, although petitioner tried, she had been unable to internalize information, and that no one had indicated she was likely to be able to reunify by a specified date or with additional treatment. The court concluded it could not find exceptional circumstances warranting a continuance.

The social worker testified regarding the efforts made by the Department, after the 12-month review hearing, to obtain a neurological examination and independent living skills training for petitioner; the lack of response from the providers slowed down this process. The social worker acknowledged that the Departments efforts to obtain a neurological examination ceased in February, when told that the agency monitoring petitioners medications could not perform the evaluation.

Petitioners attorney argued that the lack of reasonable services throughout the proceedings warranted a continuance of the review hearing.

The juvenile court reiterated it did not believe petitioners circumstances warranted a continuance; the only way she would be legally entitled to a continuance for additional services was if the court found that reasonable services had not been provided. The court found that the Department had diligently attempted to provide the services recommended by the psychological evaluation, and petitioner was receiving services from numerous providers, which also suggests that [she] is receiving ongoing services regarding her mental health issues, her psychotropic medication needs, her mental health counseling needs, and other needs as well. As to the failure to provide a neurological examination, the court noted this recommendation was based on an indication that petitioner may have developed a seizure disorder as a result of an accident in 2006, but that this appeared to be unrelated to her parenting deficits and, thus, would not be a basis for finding that services should be extended.

Accordingly, the juvenile court adopted the social workers recommendation to terminate services.

DISCUSSION

Petitioner argues she was not provided reasonable services, and the Departments failure to offer such services warranted a continuance of the 18-month review hearing.

A party may not appeal a finding in the absence of an adverse order resulting from that finding. (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1154.) Thus, even if we were to agree with petitioners assessment of the reasonableness of services, we would not vacate the juvenile courts finding unless an adverse order resulted.

The juvenile court must determine at the 18-month review hearing whether reasonable services have been offered. ( 366.22, subd. (a).) But an adverse finding on that issue does not prevent the court from setting a section 366.26 hearing.^[2] It becomes relevant at the section 366.26 hearing only if [a]t each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided, in which case the court may not terminate parental rights. ( 366.26, subd. (c)(2)(A).) Here, the juvenile court found at the six-month review hearing that reasonable services had been provided, and petitioner did not appeal said finding.

Nonetheless, petitioners claim that she was not provided with reasonable services is the basis for her claim that the juvenile court abused its discretion by denying her request to continue the 18-month review hearing. Depending on the particular circumstances, the failure to provide reasonable services could provide a basis for a court to exercise its discretion by continuing an 18-month review hearing to allow a parent additional time to reunify with a child. (See, e.g., Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1017 and In re Daniel G. (1994) 25 Cal.App.4th 1205, 1216.) However, as we will explain, we are convinced the juvenile court would not have so exercised its discretion, even if it found that reasonable services had not been provided.

Section 352, subdivision (a) states a hearing in a juvenile dependency matter may be continued beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. Several appellate courts have recognized a juvenile courts discretion to continue the 18-month review hearing to allow a parent additional time to reunify. (See, e.g., Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1465; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798-1799; Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1017 and In re Daniel G., supra, 25 Cal.App.4th at p. 1216.) However, [t]he express language of section 352 circumscribes the courts discretion by emphasizing the minors need for prompt resolution of his or her custody status. (In re Elizabeth R., supra, 35 Cal.App.4th at p. 1799.)

Only in rare instances, when warranted by the best interests of the child, is it appropriate to extend reunification services beyond 18 months. (In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1798-1799.) We review, for abuse of discretion, the juvenile courts determination in this regard. (In re Daniel G., supra, 25 Cal.App.4th at p. 1216.)

The juvenile court concluded the circumstances did not warrant a continuance to provide more reunification services because the service providers who worked with petitioner had found it unlikely that she would be able to independently parent her children anytime soon even with additional services. Despite therapy and hands-on parenting training, petitioner had not made significant progress in her ability to parent the children--bearing out the psychological evaluations poor prognosis for reunification. As the prospects for reunification with petitioner were, by all accounts, grim, the minors best interests would not be served by a continuance for additional services.

Petitioner urges that her circumstances are comparable to those in In re Elizabeth R., in which this court remanded for the juvenile court to determine whether to exercise its discretion to continue an 18-month review hearing to allow a mentally ill parent additional time to reunify. (In re Elizabeth R., supra, 35 Cal.App.4th at p. 1799.) At the 18-month review hearing in that case, the juvenile court stated it was impressed with [the mothers] progress and optimistic about her ability to sustain her mental health but believed the only available alternatives were to return the children or terminate services. (Id. at p. 1783.)

Here, on the other hand, the juvenile court was aware of its discretion to continue the review hearing but declined to exercise such discretion, concluding that additional services were unlikely to result in a different outcome. We discern no abuse of discretion in this determination.

DISPOSITION

The writ petition is denied. The request for a stay is denied as moot.

SCOTLAND, P.J.

We concur:

NICHOLSON , J.

BUTZ , J.

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^[1] This writ petition does not pertain to the minors sibling, for whom a permanent plan of long-term foster care was ordered at the 18-month review hearing with a goal of guardianship.

^[2] In contrast, at a six-month or 12-month review hearing, a finding that reasonable services have not been offered requires that additional services be provided. ( 366.21, subd. (e); 366.21, subd. (g)(1).)