P.G. v. Sup. Ct.

Filed 4/13/06 P.G. v. Sup. Ct. CA4/1

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COURT OF APEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after reference to a Welfare and Institutions Code section 366.26 hearing. Julia Craig Kelety, Judge. Petition denied.

J.D. (J.) was taken into protective custody two weeks after he was born because his mother, P.G. (P.), suffered from untreated mental illness, including auditory hallucinations, and had a transient lifestyle. After six months of reunification services, the juvenile court found P. had been offered reasonable services and had not regularly participated in her case plan, returning J. to her custody would create a substantial risk of detriment to the child, and there was no reasonable probability that J. would be returned by the 12-month review date. The court terminated P.'s services and set a Welfare and Institutions Code^[1] section 366.26 hearing.

P. filed this petition for extraordinary writ relief (§ 366.26, subd. (l); Cal. Rules of Court, rule 38.1), challenging the juvenile court's findings that reasonable services were offered to her and she had not participated regularly in her case plan. P. also contends the court erred by terminating her visitation.

We issued an order to show cause, the San Diego County Health and Human Services Agency (Agency) responded, and the parties waived oral argument. We review the petition on its merits and deny it.

FACTUAL AND PROCEDURAL BACKGROUND

In addition to J., P. is the mother of Victor M. and Rachel D. who also are dependents of the court. In March 2004, Agency and P. entered into a voluntary contract for services because six-year-old Victor was always hungry, witnessed domestic violence in the home, and was physically abused. In April, Agency took the children into protective custody and filed dependency petitions on their behalf because P. did not follow through with services and continued to neglect them. After 12 months of services, the juvenile court terminated services and set a section 366.26 permanency planning hearing for the children. We upheld that decision by denying P.'s petition for writ of mandate. (P.G. v. Superior Court (Dec. 13, 2005, D047029) [nonpub. opn.].)

In mid-May 2005, P. gave birth to J. P. told hospital staff that the baby was the result of rape. P. was discharged from the hospital with J. to a friend's house and was given supplies for the newborn. Subsequently, P. left the friend's house with J., but left the baby supplies at the friend's home.

On June 1, 2005, Agency took J. into protective custody and detained him at a foster home. P. told a social worker that she stopped taking her psychotropic medication in early May because it made her and her unborn baby sick.

P. was living at a shelter, was unemployed, and could not afford to pay for her medication. Social worker Juan Estrada reported that P. had auditory hallucinations, failed to take her psychotropic medications, and did not attend therapy regularly. Estrada advised P. to contact her therapist and psychiatrist to set up appointments as soon as possible.

Psychologist Carmen De Llano, who was P.'s therapist in the sibling's case, reported P.'s attendance at appointments was inconsistent, and she would terminate therapy if this continued. P. acknowledged that she needed to attend therapy, resume taking her psychotropic medications, and comply with the treatment plan to reunify with J.

On June 3, 2005, Agency filed a dependency petition on behalf of J., alleging he was at substantial risk of harm because of P.'s metal illness.

On June 13, 2005, P. visited J. at the Agency's office. P. was appropriate and affectionate with J. and interacted well with him. She held him, fed him, and made eye contact with the baby. P. also inquired about J.'s feeding habits and formula. Agency gave P. a bus pass for the month of June.

On June 16, 2005, P. submitted to the petition, which the court sustained. The court authorized psychological and psychiatric evaluations and therapy for P.

On June 29, 2005, the court declared J. a dependent, removed him from P.'s custody and placed him in foster care. The court ordered P. to comply with her case plan, which required her to complete parenting and domestic violence courses, and psychological and psychiatric evaluations, to attend individual therapy, and to take psychotropic medications as prescribed by her psychiatrist.

During the next six months, reunification services in the siblings' case were terminated (after 12 months). P. visited J. and the siblings regularly, and the visits went well. P. supported herself by cleaning houses. However, P. did not have a stable residence and changed her address several times. On one occasion, the social worker had to meet her on the street to discuss the case plan.

On July 11, 2005, psychologist Beatriz Heller evaluated P. and found her extremely disorganized and paranoid with intense and unregulated emotionality. Heller also reported that P. was unable to understand the negative impact of her emotional instability. P. also had "difficulties in organizing her environment and maintaining stability and consistency [, which] have contributed to the current circumstances. This feature is a manifestation of her impairment in her ability to relate to others . . . her intense self-focus, and . . . the absence of discomfit or estrangement from her behavior," Heller reported.^[2]

After P. had missed eight therapy appointments, Psychologist De Llano dropped P. from her caseload in early September 2005. De Llano opined that P. needed to stabilize her psychotic condition before she should resume therapy. P. denied she had stopped taking her psychotropic medications, but she could not produce proof otherwise.

On September 30, 2005, social worker Estrada sent P. a list of bilingual therapists and advised her to contact him when she chose a therapist. P. contacted Estrada; however, the therapist she had selected was not available. Estrada sent P. a second list of therapists, but she did not follow through.

On December 15, 2005, P. visited the children and was loud and aggressive toward them and the visitation monitor. In a harsh voice, P. told Rachel and J. that they were not her children, and Victor was her only child. Rachel and J. reacted by crying.

On January 4, 2006, the court followed Estrada's recommendation that P.'s visits be immediately suspended, pending the contested six-month review hearing later that month. The parties stipulated that if the social worker from the siblings' case were called as a witness, he would testify that (1) P. did not react violently when told her visits would be suspended, and (2) she showed him what appeared to be cut-out pictures from magazines and told him the children in the pictures were her children.

At the six-month review hearing on January 17, 2006, Estrada testified that P. had completed a psychological evaluation, a parenting course, and a domestic violence course. P.'s case plan also required her to attend individual therapy, consult a psychiatrist, and take the medications prescribed by the psychiatrist. When Estrada received the case the previous June, P. was under the care of a psychiatrist and he advised her to continue seeing the psychiatrist. Estrada repeated this advice every time he spoke with P., which was two to three times a month. P. told Estrada that she was taking her psychotropic medications.

Estrada said often when he provided referrals to parents he telephoned the service providers to set up services. He decided not to do this in P.'s case because he wanted her to put some effort in addressing her mental health problems.

On January 10, 2006, P. went to Estrada's office and claimed someone had replaced her children and Agency was hiding J. P. was very upset. Estrada, who had worked for the Agency for 14 years, had never heard of an instance when the wrong child was brought to a visitation site.

P. testified the previous June a psychiatrist had prescribed Risperdal and she had been taking the medication since then. For a time, the psychiatrist asked her to stop taking Risperdal to see how her body reacted without the medication. P. resumed taking Risperdal the previous month and planned to continue taking the medication.

P. believed the children she visited on December 15, 2005 were not her children because Victor told her so. P. did not recognize J. and did not believe the baby she was visiting was her child. He looked different from the photographs that were taken before J. was removed from her custody.

P. said she was willing to go back to therapy to reunify with J.

The court found Agency had offered P. reasonable services and she had not made substantial progress with her case plan.^[3] The court also found returning J. to P.'s custody would be detrimental to him and there was no substantial probability of return within the next six months. The court terminated reunification services and scheduled a section 366.26 hearing. The court also found visitation would be detrimental and reaffirmed the suspension of visitation without prejudice.

DISCUSSION

I. Order Terminating Reunification Services

P. contends the court erred by terminating reunification services because Agency did not provide reasonable services and she made substantive progress with her case plan. The contention is without merit.

Reasonable Services

When a child is removed from a parent's custody, the juvenile court must order the child welfare agency to provide the parent with services designed to help the family reunify. (§ 361.5, subd. (a).) "[T]he focus of reunification services is to remedy those problems which led to the removal of the children . . . ." (In re Michael S. (1987) 188 Cal.App.3d 1448, 1464.) A reunification plan must be tailored to the particular individual and family, addressing the unique facts of that family. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) A social services agency is required to make a good faith effort to address the parent's problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult. (Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554-555.) Nonetheless, we recognize that in most cases more services might have been provided and the services provided are often imperfect. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) "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.)

We determine whether substantial evidence supports the trial court's findings that reasonable services were provided, reviewing the evidence in a light most favorable to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R., supra, 2 Cal.App.4th at p. 545.)

Our review of the record shows substantial evidence supports the court's finding that reasonable services were offered to P. J. was taken into protective custody because P. suffered from untreated mental illness and had a transient lifestyle. P.'s case plan required her to undergo a psychological evaluation, attend individual therapy, consult with a psychiatrist and take the medications prescribed by the psychiatrist, and complete a domestic violence program and a parenting course. The case plan appropriately focused on P.'s mental health problems, which "led to the removal" of J. (In re Michael S., supra, 188 Cal.App.3d at p. 1464.)

The problem was not with the services offered to P.; rather, it was with her willingness and/or ability to follow through with the services and become able to safely parent J. Although P. complied with much of her case plan, she did not (1) participate in individual therapy after she was dropped from her therapist's caseload for poor attendance, and (2) she stopped taking her prescribed psychotropic medications --undoubtedly the two most important requirements of her case plan. "It is . . . well established that reunification services are voluntary, and cannot be forced on an unwilling or indifferent parent." (In re Christina L. (1992) 3 Cal.App.4th 404, 414.) It "is not a requirement that a social worker take the parent by the hand and escort him or her" to the service providers. (In re Michael S., supra, 188 Cal.App.3d at p. 1463, fn. 5.) "The fact that a parent suffers from emotional problems does not excuse her from the statutory requirement of participating in a reunification plan, as some capacity to achieve the reunification goals is presumed." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)

P.'s reliance on In re Victoria M. (1989) 207 Cal.App.3d 1317 is misplaced. The mother in Victoria M. tested mentally retarded at one point and later tested in the borderline range of intelligence. (Id. at pp. 1321-1322.) A counselor found the mother had an " . . . 'inability to grasp and understand the skills' " required for parenting, that she needed simplified and repetitive teaching of parenting skills, and that " '[h]er low level of functioning makes it difficult for her to learn the necessary skills she needs to adequately parent her children as well as manage her unstable life-style.' " (Id. at p. 1323.) The appellate court concluded that the reunification plan was not tailored to the mother's special needs even though "[e]veryone was aware that [the mother] had mental limitations." (Id. at p. 1329.) Here, however, P.'s reunification plan was tailored to her special needs. Agency offered services designed to treat P.'s mental illness and enable her to parent J. safely, but she did not attend individual therapy and did not take her psychotropic medications.

P. complains social worker Estrada, who sent her two lists of referrals, did not do enough to help her find a new therapist. P. claims Estrada should have telephoned therapists and set up an appointment. Certainly, Estrada could have done this considering P.'s limited ability to communicate rationally. However, P. did not tell Estrada she was incapable of setting up an appointment, and P. demonstrated she was able to telephone therapists by doing so with the first list of referrals. We agree with the juvenile court that Estrada's failure to contact therapists and set up an appointment for P. with a new therapist "did not rise to the level of unreasonableness." (See footnote 3, ante.) As this court has observed, "[t]he 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.) Although the services provided to P. were not perfect, we conclude they were reasonable under the circumstances.

Substantive Progress with Case Plan

Ordinarily, when a child under the age of three years is removed from parental custody, reunification services are not to exceed a six-month period. (§§ 361.5, subd. (a)(2), 366.21, subd. (e).) In establishing the six-month provision, the Legislature intended "to give juvenile courts greater flexibility in meeting the needs of young children, 'in cases with a poor prognosis for family reunification (e.g., chronic substance abuse, multiple previous removals, abandonment, and chronic history of mental illness).' [Citation.] '[V]ery young children . . . require a more timely resolution of a permanent plan because of their vulnerable stage of development. . . . [G]iven the unique developmental needs of infants and toddlers, moving to permanency more quickly is critical.' [Citation.]" (Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 611-612.)

Section 366.21, subdivision (e), provides that if the court finds at the six-month review hearing that the parent has failed to participate and make substantive progress in his or her court-ordered treatment programs, the parent is not entitled to further services unless the court finds a substantial probability that the child will be returned to parental custody within six months or that reasonable services have not been provided.

In reviewing the factual findings of the dependency court, "we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)

Although P. complied with many aspects of her case plan, she did not fulfill two significant requirements -- attending individual therapy and taking her prescribed psychotropic medications on a regular basis. Moreover, even if P. had participated in all aspects of her case plan, that in itself would not be enough. Section 366.21, subdivision (e) requires that the juvenile court find both regular participation and substantive progress. Although availing oneself of the services and technical compliance with one's case plan is an important consideration with respect to the juvenile court's decision to continue or terminate reunifications, it is not determinative. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.) Instead, the court's decision turns on whether the parent's progress has eliminated the conditions leading to the child's placement out of the home. (Ibid.) Moreover, substantive progress implies real rather than apparent progress and real progress implies progress that can be sustained. If the purpose of the reunification plan is family preservation, then the court must be able to find that the offending parent resolved the problem necessitating the child's removal and that the parent can provide for the child's safety and well-being. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343-1345, italics added.)

Substantial evidence supports the juvenile court's finding that P. had not made substantive progress in her case plan. P.'s mental status had not changed. P. exhibited unruly and bizarre behavior during her December 15, 2005 visit with J., insisting that J. and Rachel were not her children. Heller's psychological evaluation showed P.'s mental status had not changed in the 11 months since she last evaluated her. As the juvenile court observed, "[w]e're no further along today in addressing the mother's serious mental health issues than we were at the start of this case."

Moreover, in order to continue reunification services in this case, the juvenile court would have had to find that P. was denied reasonable services or that there was a substantial probability J. would be returned to her custody within another six months. (§ 366.21, subd. (e).) Since we have already rejected P.'s claim that she was denied reasonable services and P. does not argue that there was a substantial probability of return, the court acted properly in terminating reunification services and setting the matter for permanency planning. We find no error.

II. Visitation Order

P. contends the court erroneously terminated visitation. We disagree.

A parent's right to the care and custody of her children and her interest in visitation is a serious, major concern in dependency proceedings. (In re Julie M. (1999) 69 Cal.App.4th 41, 49.) At the same time, the child's best interests and well-being are of paramount importance. (Id. at pp. 48-51.) Visitation "shall be as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) However, "[n]o visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(B).) "It is ordinarily improper to deny visitation absent a showing of detriment." (In re Mark L. (2001) 94 Cal.App.4th 573, 580.) A complete denial of visitation is reviewed for substantial evidence. (Id. at pp. 580-581.)

Viewing the evidence in the light most favorable to the decision rendered below, we find substantial evidence supported the juvenile court's visitation order. The court suspended visitation between P. and J. after the December 15, 2005 visit, where P. was loud and aggressive toward the children and in a harsh voice told Rachel and J. that they were not her children. Although the preverbal J. was too young to understand P.'s words, he was not too young to be affected by P.'s negative tone and demeanor. J. as well as Rachel reacted by crying. Social worker Estrada testified that young children get scared when someone talks in a loud, harsh voice. Estrada also opined that P. presented a risk to the children if she continued to visit them. The court agreed:

"I think visitation at this point with [J.] would be detrimental. Mother doesn't even believe it's her child. How can she have a good visit with a baby she doesn't feel is her baby? It's sort of a pointless exchange. And I think that the stress and anxiety that that causes mother has to translate over to the child, has to have a detrimental effect on him. And, certainly, [it] is not a positive experience for child or mother."

We note the court ordered suspension of visitation without prejudice and gave the social worker discretion to reinstitute visits if P.'s mental status stabilized. The court expressed optimism that if P. followed her medication regimen this would occur and visitation would resume.

DISPOSITION

The petition is denied.

IRION, J.

WE CONCUR:

HALLER, Acting P. J.

O'ROURKE, J.

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

^[2] Heller had evaluated P. in August 2004 in connection with the siblings' dependency case. Heller said there was no change in P.'s mental condition since the prior psychological evaluation.

^[3] With respect to the reasonable services finding, the court agreed with P.'s counsel that social worker Estrada should have assisted P. in finding a therapist by setting up an initial appointment because of her "uniquely special needs." "Nonetheless, I don't think the failure to do that rises to the level of unreasonableness," the judge added.