R.C. v. Super.
Filed 5/8/13 R.C. v. Super. Ct. CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
>
R.C., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, Real Party in Interest. | A137894 (San Francisco County Super. Ct. No. JD11-3076) |
INTRODUCTION
R.C.
(Mother) seeks writ review of an order terminating
of the 18-month review hearing for her two-and-a-half year old child and the
setting of a hearing for a permanent plan for the child. (Cal. Rules of Court, rule 8.452; Welf. &
Inst. Code, § 366.26.)
name="_ftnref1" title="">[1] Mother challenges the findings that
reasonable services were provided by respondent
(Agency). Specifically, she argues the
Agency did not provide her with the “intensive†individual therapy required in
her service plan, but allowed therapy to dwindle to once per month for five
months of the reunification period. She
contends that in the absence of reasonable services, the court erred in
terminating services at the 18-month review hearing (held 23 months after the
dependency was initiated) and abused its discretion in ignoring the exceptional
circumstances of the case warranting continuing the 18-month review to provide
more time for a special needs parent to reunify. We shall affirm.
FACTS AND
PROCEDURAL BACKGROUND
On
March 11, 2011, the Agency
filed a petition alleging that the seven-month-old child came under section
300, subdivision (b) as a result of Mother’s inability to provide her with
adequate care, supervision and protection.
The child was detained. The
detention report filed by the Agency described the circumstances leading to
detention. Mother and the child’s father
have a relationship characterized by domestic violence. On March
4, 2011, Mother and the child’s father began to argue about
Mother’s level of intoxication. Mother
pushed the father on the bed and began to punch him in the face with closed
fists. The father reacted by scratching
Mother’s face and neck. The father
called the police, mother was arrested, and an emergency protective order
issued. After Mother’s incarceration,
the Agency met with the child’s maternal grandmother to develop a safety plan
for the baby’s care, while child protective services investigated the referral.
The
child was premature and has severe medical problems. She has chronic lung disease. She required daily nebulizer and oxygen
treatment. Because of her severe medical
and respiratory problems, she was not able to come into contact with sick
children or adults. She required
supervised visitation where she would not come into contact with numerous
individuals.
Before
the detention hearing, the social worker met with the maternal grandmother to create
a safety plan for her care for the child and for the child’s older brother (who
was already living with the maternal grandmother) while CPS continued its
investigation. A team
decision-making meeting was held March 9, 2011, and Mother agreed to meet with
the domestic violence specialist from Positive Directions. The social worker referred Mother to Homeless
Prenatal Program (HPP) for a substance abuse assessment and to the National
Council on Alcoholism and Other Drug Addictions-Bay Area for drug testing. The worker also referred the parents and
child to Foster Care Mental Health for counseling, medication evaluation, and
therapeutic visits. At the continued
detention hearing on March 17, 2011, the child was detained in foster care.
Jurisdiction/Disposition
The report prepared for the
disposition hearing related that issues around violence and substance abuse
have caused the removal of the child from Mother. Upon meeting the social worker, Mother
presented as “very depressed.†She has a
history of mental illness and had been hospitalized for depression. Mother did not admit to any substance
abuse. However, she was testing and
attending services. She was also in a
domestic violence class at the Riley Center.
Although the violence between Mother and the father was severe, Mother
refused to discuss it at all. The Agency
had made referrals for individual therapy and a psychological evaluation and
was waiting for Mother to be assigned.
Mother was receiving therapeutic visits with the child twice a week at A
Better Way. The Agency also had obtained
and delivered a Fast Pass to Mother and, when she stated she lost the pass, she
was given tokens.
The
child remained medically fragile. She
required oxygen at night, along with a medication for lung distress. She used Pulmicort for her nebulizer twice
daily. She appeared alert and had a good
appetite. She was receiving services
from Golden Gate Regional Center for gross motor skill delays.
On
June 20, 2011, at the conclusion of the combined jurisdiction/disposition
hearing, the court declared a dependency for the child and found true the
following: “B1—The mother has a
substance abuse problem for which she requires assessment and treatment and
which impedes her ability to safely parent the child. [¶] . . . [¶]
B5—The mother has mental health issues, including psychiatric hospitalizations,
for which she requires assessment and treatment and which impede her ability to
safely parent the child.
[¶] . . . [¶] B9—The child is at risk of
physical harm in that the parents have a relationship in which they have
engaged in domestic violence with the child present. Further, both the mother and father have
sustained injuries during
these incidents.â€
Other
allegations regarding the father alone were also sustained. The court struck several other allegations,
including Count B6, which had alleged Mother had developmental delays requiring
assessment and treatment and which impeded her ability to safely parent the
child.
The
court found the Agency had made “reasonable efforts†to prevent or eliminate
the removal of the child from the home.
Services recommended by the Agency and ordered by the court for Mother
included: That she undergo “individual
counseling/Therapy which addresses Domestic
Violence, Trauma, Effective Communication, Self-Esteem and the Effects of
Violence on Childrenâ€; that she “remain under the care of a qualified mental
health professional and comply with the mental health professional’s
recommendations for psychotherapy and/or prescribed medicationâ€; that she
“maintain a clean and safe home for the child[]â€; and that she “refrain from
substance abuse and participate in services recommended from the substance
abuse assessment.†The court ordered the
father, but not Mother, to “actively participate in a 52-week DV [domestic
violence] program.â€
and 12-Month Reviews
At
the six-month review, the Agency reported that Mother was engaged in services,
appeared to be maturing, and was working towards completing her requirements to
reunify with the child. The Agency
reported it intended to move visitation to Mother’s home in an effort to
advance her progress toward reunification.
The social worker reported Mother’s home appeared neat and clean and
that Mother had worked hard to clean her home in preparation for the child’s
return. Mother had been working closely
and consistently with A Better Way to improve her parenting skills and had
visited consistently, demonstrating improved parenting skills.
All
Mother’s drug tests have been positive for marijuana. Mother had a cannabis card and tested within
the limits according to California law.
Mother stated she was making efforts to reduce her use and her test
levels were initially high, but were down recently.
Mother
had been referred to Jane Christmas for psychological testing on March 30,
2011. Mother reported she had completed
the testing over the summer, but when the worker contacted Christmas to obtain
a copy of the report in October, she learned that Mother had started the
testing but never finished it. The
worker arranged a follow up appointment with Christmas.
Mother
was being seen by Lindsey Ewick, a therapist at Bayview Mental Health for
therapeutic services. However Ewick had
not responded to the worker’s November request for information. Ewick stated she needed to confirm she had a
release of information from Mother. As
of January 5, 2012, she had not returned the worker’s phone calls. There had been no reported instances of
domestic violence during the reporting period.
The
report expressed the concerns of the child’s doctor that she not be exposed to
second hand smoke, given her chronic lung disease. Mother reported she did not smoke in the
house. According to the child’s physical
therapist, the child needed more tummy time to start crawling and her fine
motor skills were also delayed.
At
the March 1, 2012 hearing on the six-month status review, the court found a
substantial probability the child would be returned to the physical custody of
the parent within six months. It found
the Agency had made “reasonable efforts†to aid the parent to overcome the
problems leading to the initial removal and continued custody of the child. It also found mother’s progress had been
“substantial.†The court ordered
services continued to be provided to Mother and set the 12-month hearing for
April 26, 2012.
The
court also found the father had made no progress and terminated the supportive
services the Agency had been providing.
The
status review report for the 12-month hearing recommended an additional six
months of services be provided Mother.
The report related that in December 2011 and January 2012, Mother was
“5150’d due to depression[;] however she was discharged right away.†At the time of the report, Mother was on
medication. She continued to see Ewick
for therapeutic services. Ewick told the
worker on April 4, 2012, that she could not provide an update on therapy
without first reviewing the consent forms.
Ewick did not thereafter provide a progress report.
Mother
completed her psychological evaluation with Christmas and “the evaluation
indicated the presence of significant mental health problems, for which
[Mother] needs intensive support to address.â€
Mother had a dual diagnoses of depression, not otherwise specified;
alcohol abuse, and a personality disorder characterized by paranoid and
narcissistic traits; and limited cognitive capabilities. Insofar as Mother’s ability to care for the
child was concerned, Christmas recommended that Mother attend regular alcohol
treatment, ongoing anger management, parenting classes, and intensive
individual therapy. Mother continued to
use and test positive for marijuana. She
denied using alcohol or marijuana at the time the report was prepared; however,
Christmas found that Mother minimized her alcohol abuse and diagnosed her with
alcohol abuse. Mother was receiving
twice-a-week visits with the child, in her home, supervised by A Better Way.
At
the 12-month review hearing held April 26, 2012, the court found Mother’s
progress “substantial,†ordered an additional six months of reunification
services, and set the 18-month review hearing for September 27, 2012.
Review Report
In
addition to the information set forth above, the report prepared for the
18-month review related that the early interventionist with the Golden Gate
Regional Services expressed concern regarding Mother’s smoking habits and
reported her home smelled of smoke. Mother admitted she continued to use
marijuana, despite expiration of her card.
She again claimed to be in the process of quitting. She claimed she had discontinued her alcohol
use and her test results showed no record of alcohol abuse. She was continuing individual therapy with
Ewick, but the therapy had been reduced to once-a-month sessions. Ewick told the social worker that Mother was
no longer benefitting from the weekly sessions and did not have much to talk
about. Ewick had worked with Mother for
more than a year. The therapist stated
it was a joint decision to move to monthly visits and reported that she did not
believe it would be therapeutically appropriate to expand visits to more than
once a month. Ewick would not elaborate
on Mother’s therapeutic services, stating that the only release Mother had
authorized was to give the worker a record of Mother’s attendance. She did inform the worker that Mother was
diagnosed with major depressive disorder recurrent in partial remission. She reported Mother was continuing to work on
managing her depression and that she was taking her medication regularly.
The
Agency was concerned about Mother’s relationship with the father, since it
appeared Mother was not engaging in protective measures to address the hostile
and violent nature of their relationship.
In May 2012, the therapeutic visitation worker told the worker that the
maternal grandmother had reported she thought that the father might have been
at the home during a visit. A service
tech responsible for transportation had reported that on one occasion Mother
would not allow her in the house during drop off and the service tech thought
this behavior was odd. Mother denied
this had happened and denied that the father had ever been present during a
visit. The social worker met with Mother
to discuss this information and made it clear to Mother that the father could
not be around when the child is visiting and that his presence created a safety
threat for the child. Mother stated that
she and the father continued to see each other, but are not in a relationship
and that she had no desire to get back together. The worker discussed the police service calls
to Mother’s residence (five between January and May 2012) and offered a
referral to Mother to undergo a domestic violence intake with the Agency’s
domestic violence specialist, Christine Leon, to address this continued
issue. Mother asked if she and the
father could just sign something saying they would stay away from each other.
On
June 1, 2012, Mother reported the father had tried again to come into the house
and she had refused. The worker
suggested she call Leon and discuss strategies for dealing with the
relationship. The worker also gave
Mother the number to Riley Center Crisis Line in the event the father attempted
to come to the house again. In a
conference call with Mother and Leon, they discussed her ongoing relationship
and strategies for being proactive and dealing with the relationship. Leon stated that Mother had previously
participated in eight weeks of domestic violence classes and had transitioned
to individual therapy to address issues related to domestic violence existing
in her relationship with the father.
Leon stated that she and Mother had contacted Mother’s counsel to obtain
a restraining order against the
father. On June 18, Mother admitted that
the father might still have a key to the home and that she would put in a
request to have the locks changed. A day
later, Mother stated she was backing off on requesting the restraining order
because she did not want to cause any more drama in her life. She said she had put in the request to change
the locks. On July 23, 2012, Mother
stated in response to the social worker’s inquiry that she did not think it was
necessary to change the locks. The
worker discussed with Mother the importance of this safety measure for the
child. Mother was told the most recent
call on the police log was July 13, 2012, and Mother denied the police came out
that day. The worker informed Mother
that she would no longer be able to have unsupervised visits due to the
Agency’s concerns about her interaction with the father. She was encouraged to follow through with the
various suggestions to change the locks, get a restraining order, follow
through with her therapy and with domestic violence services. The Agency referred Mother to another
domestic violence program, Casa De Las Madres, for a domestic violence support
group. Mother reported that she had completed
intake there and would begin a domestic violence group the week of August 27,
2012. She reported she had had her locks
changed.
The
two-year-old child was reported to be in the 12- to 18-month range in all
developmental domains. She had a
significant expressive language delay and used approximately 10 words. She failed all developmental milestones for
two year olds, except her ability to imitate adults, which she passed. She was not walking yet, but had learned to
pull herself up over the last couple of months and was very mobile. The child’s breathing condition was getting
better, although there were ongoing concerns regarding mother’s cigarette and
marijuana smoking and the effects on the child’s chronic lung disease. Although there was no direct evidence that
Mother was smoking in the home, the social worker and another service provider
each reported the home had a stale smokiness present during their visits.
The
Agency recommended termination of reunification services to Mother and the setting
of a section 366.26 selection and implementation hearing to implement a
permanent plan.
Changes
In August 2012, a dispute over
visitation arose when the Agency, which in July 2012 had exercised its
court-authorized discretion to move to unsupervised visits between Mother and
the child, required that visits again be supervised. The Agency required supervision upon
discovering Mother had continued her volatile relationship with the father,
inviting him to her home, resulting in conflict between the pair and police
intervention.
A
hearing on the visitation dispute was set for August 15, 2012. The attorney for the child filed a
declaration in support of an ex parte hearing on the request for a formal order
for supervised visits only, stating: “Mother misrepresented her continued
involvement with Father to both the Agency and to the Agency’s domestic
violence specialist. San Francisco
Police Department records of calls for service to Mother’s home indicate that
contrary to Mother’s representations, the police have been called to Mother’s
home on eight occasions since January
2012 to separate Mother and Father. By
her own declaration, Mother states that she has not sought police assistance
but rather that Father has sought police assistance following Mother’s visit
with Father and dispute or conflict arising during the interaction.†(Italics added.) Mother admitted that the father came to her
home unannounced and police records reflected calls for service at all
different times of the day and on different days of the week. Mother admitted the father had keys to her
home and continued to have those keys.
Police officers reported they had regular contact with Mother and the
father and, on at least one occasion in the previous two months, the officers
smelled alcohol on both parents’ breath while confronting them about a
conflict. Mother had consistently been
admonished that her continued relationship with the father would jeopardize
reunification.
On
August 10, 2012, after the Agency discovered this information and moved to
reinstate supervised visits, Mother’s attorney requested a restraining order
against the father. Mother’s declaration
stated the father had a “habit of coming by my apartment uninvited and
unannounced.†She admitted she sometimes
let him in, but stated he often refused to leave. She stated that the father had made the calls
to the police, falsely stating that she was being violent with him. She stated that he was trying to jeopardize
her efforts to reunify with the child and that he had told her so
directly. Mother maintained there was no
current physical violence between the pair.
She also maintained that the father had not been present during any of
her unsupervised visits with the child.
She admitted she had allowed him into her home and that she had not been
“entirely truthful with my social worker about my contact with him.†She also admitted the police repeatedly had
advised her not to let the father into her home. On August 13, 2012, the court denied the
temporary restraining order against the father.
On August 15, the court confirmed that Mother’s visits were to be
supervised by the maternal great grandmother.
The Agency was given discretion to move to unsupervised visitation with
24 hours notice to the child’s counsel.
Review Hearing Continued
On
September 18, 2012, Mother filed a section 388 request to change court order,
seeking to return to unsupervised visits with the child, and describing the
steps she had taken to follow up with regard to the relationship with the
father, including changing her locks, not allowing the father into the home and
engaging in domestic violence services.
The hearing on the section 388 petition was scheduled and later
continued to be combined with the 18-month review hearing that was continued to
November 16, 2012. Three days before the
review hearing, Mother moved to continue it pursuant to section 352, arguing
she was doing very well, that she had not shown any record of alcohol use and
her marijuana levels had dropped to zero recently. She had attempted to obtain a restraining
order against the father, had attended eight weeks of domestic violence classes
and transitioned to individual therapy to address issues related to domestic
violence. She maintained that the
therapy had been reduced to monthly, despite her need for intensive
therapy. Relying on In re Elizabeth R. (1995) 35 Cal.App.4th 1774, Mother’s counsel
requested a continuance in order to “clarify the relationship between the
parents and allow the mother . . . time to engage in intensive therapy.†The court approved a continuance to January
7, 2013.
On
January 3, 2013, the child’s counsel sought an order that Mother’s visits be
supervised by the Agency, rather than the maternal grandmother, and that visits
be reduced from 11 hours per week (two 5.5 hour visits) to two 3-hour visits
per week. Counsel did so after receiving
documentary proof on January 2, 2013, that Mother’s recent urinalysis tests
established that she continued to use alcohol and that she had seven positive
results over the preceding two months, one of which indicated use within eight
hours of testing. Mother admitted she
had resumed drinking because of “stress.â€
Six of the seven positive tests indicated Mother drank at or near the
time of her visits with the child. The
police made two service calls to Mother’s home in November (after Mother had
filed the section 388 petition to change the order to unsupervised visits and
overnight visits) to address conflicts between Mother and the father. Contrary to Mother’s August 2012 statements
that she was finished with her violent and unhealthy relationship with the
father, she admitted they had been attempting to reconcile. Further, Mother’s use of alcohol was
particularly troubling, as in the past she had been involved in violent
altercations while under the influence of alcohol. Counsel for the child argued that supervision
by the child’s elderly great grandmother was insufficient to assure Mother had not
consumed alcohol before a visit and that the maternal great grandmother was
under no duty to report to the court on such matters. On January 4, 2013, the court granted the
request to have mother’s visits supervised by the Agency, but denied the request
for a reduction in duration of the visits.
The 18-month review hearing was again continued.
An
addendum report filed in advance of the 18-month review hearing set for
February 8, 2013, confirmed many details set forth in the child’s counsel’s
request to change mother’s supervised visits.
Mother admitted she had been drinking, that she had tested positive for
alcohol use on seven occasions since October, that she had invited the father
to her home to “work on†the relationship, and that police were called on two
occasions in November in response to altercations between the couple at
Mother’s home. Mother informed the
worker she was now staying away from the father, that she had changed her phone
number and had put in a request to the housing authority to move her
residence. She said she had begun
participating in weekly domestic violence classes with a local domestic
violence support group and with the Riley Center. Mother reported that she had recently resumed
weekly therapy with Ewick, after having once monthly therapy for a period of
about five months. The therapist
informed the worker that Mother was working on domestic violence issues,
parenting topics, and managing her depression.
The therapist reported Mother had demonstrated progress in that she left
the relationship with the father, stayed on her medication and had not had a
major depressive episode in some time.
Mother
had been referred to HPP for substance abuse at the outset of the
dependency. According to the initial
assessment, she had been drinking alcohol for 11 years, and had periods of
heavy drinking for the last two years.
Mother did not start case management with HPP until 2012, and attended
regularly for a brief period until July 2012, at which point she began
canceling appointments and did not return.
Mother was provided with relapse prevention counseling during the
monthly meetings and was encouraged to continue going to AA meetings on a
regular basis. Mother only participated
in AA for a two-month period and was not attending at the date of the report.
Review Hearing
The
18-month review hearing was held on February 8, 2013, some 23 months after the
child’s initial detention. Social Worker
Candace Seagrove was the only witness.
The status review report and the addendum were admitted into
evidence. Seagrove confirmed the
Agency’s recommendation to terminate reunification services, despite the
Agency’s extensive work with Mother to resolve the safety issues giving rise to
the dependency. The primary concern was
Mother’s continued involvement in the volatile relationship with the
father. Notwithstanding more than 18
months of services and continued admonitions that the volatile relationship was
putting her reunification at risk, Mother admitted she had invited the father
to her home and was trying to work on the relationship. The worker testified there had been numerous
911 calls involving disputes between the pair, but conceded she was unaware of
any arrests for domestic violence since the March 2011 incident that precipitated
the dependency. Seagrove testified that
Mother reported the two would argue and the argument would escalate to either
her calling the police to get the father to leave or he would end up calling
the police because she was asking him to leave.
With respect to the requirement that Mother participate in intensive
individual therapy services, Seagrove testified that Mother’s therapist was in
the best position to implement the recommendations set forth in the
psychological evaluation. Mother was referred
for weekly individual therapy with Ewick, in which Mother had participated for
a substantial amount of time. However,
for a period of approximately five months the weekly therapy transitioned to
once monthly sessions because, according to the therapist, Mother was not
benefitting from the weekly sessions and did not have much to discuss during
their therapy sessions. The decision to
reduce the frequency of sessions was a joint decision by Mother and the
therapist. Seagrove testified that one
of the issues addressed in Mother’s therapy was
Mother had made progress in the relationship with the father. The Agency worked with Mother over the course
of the dependency to address the domestic violence and social workers had
repeatedly explained to Mother that the child could not be exposed to that
relationship due to the history of violence and the nature of the
violence. They had believed Mother was
“on track†to unsupervised overnight visits when everything halted in August
due to discovery of Mother’s reengagement with the father and her admission
that she had not been truthful with the Agency about that relationship. Mother had been receiving domestic violence
services from the Riley Center since August 2012, as well as through the
Agency’s domestic violence specialist.
Upon referral by the Agency, Mother had also participated in an
eight-week domestic violence group at the beginning of the case.
Seagrove
also testified that in addition to the domestic violence issues, the Agency had
ongoing concerns about Mother’s substance abuse issues, particularly her
continuous use of alcohol and her smoking habits. Seagrove related that Mother had recently
begun testing positive for alcohol beginning in October 2012, and as recently
as January 2013, one month before the 18-month review hearing. Mother never completed a program or committed
to AA, even after numerous referrals issued to HPP to assist her in overcoming
her substance abuse. Asked why the
Agency did not provide alternative services, the social worker explained that
Mother was not testing positive for alcohol before her relapse in October 2012,
and there was no indication that she needed a more rigid program. Seagrove testified Mother tested positive
for marijuana on at least one occasion since September, although her most
recent tests had been negative. The
worker stated the Agency’s concern about Mother’s use of alcohol and marijuana to
cope with stress and about the impact on Mother’s cognitive abilities when she
is under the influence of these substances, insofar as her ability to care for
this special needs child.
The
Agency was also concerned about Mother’s smoking cigarettes and her minimizing
the importance of her smoking in light of the information provided by the
child’s doctors and the Agency regarding the detrimental effects her smoking
had on the child, whose lung function was already seriously compromised and the
referral to HPP to receive support to stop smoking. A pulmonary specialist monitors the child and
in light of the child’s condition, a smoke-free home is essential “so as not to
trigger any kind of asthma conditions relating to the chronic lung disease.†Mother indicated she wanted to stop smoking
only a few weeks before the 18-month review hearing. The social worker again referred Mother to
HPP to assist her with smoking cessation.
The social worker opined that in light of the child’s multiple medical
and developmental needs and appointments, it was extremely important that the
child’s caretaker be drug free, very organized and very present and aware.
At
the end of the hearing, the court terminated reunification services to
Mother. It found that Mother had made
some effort to comply with reunification requirements, but that she had not
reached a point where she could be entrusted to provide the necessary
protective measures the child required.
The court also rejected Mother’s argument that she had not received
sufficient therapeutic services, finding “the therapist herself had assessed
that mom wasn’t benefiting from the therapy sessions, and that they jointly
decided that they would go to monthly sessions and that mom didn’t have much to
talk about and things were just not moving.â€
The court found by clear and convincing evidence that Mother did not and
was not able to participate fully in the court-ordered treatment plan, that the
Agency had made reasonable efforts to provide or offer services designed to
overcome the obstacles leading to the dependency, and that the Agency complied
with the case plan by making reasonable efforts to return the child to a safe
home. The court further found that
return of the child to the parents would create a substantial risk of detriment
to the safety, protection, emotional or physical well being of the child. The court set a section 366.26 hearing.
On
February 14, 2013, Mother filed a notice
of intent to file a writ petition and this petition followed.
DISCUSSION
Mother challenges the finding that the Agency provided
reasonable services and the refusal of the court to find that “extraordinary
circumstances†warranted further continuance of the 18-month review in order to
provide more time for her to reunify with the child. (§ 352;
Cal.App.4th at pp. 1793-1799.)
I. The Agency Offered Reasonable
Services
Standards of
Review
The
court at every review hearing where a child is not returned must find, and in
this case did find, that the Agency had provided or offered the parent
reasonable services, defined as services designed to aid the parent in
overcoming the problems that led to the initial removal and continued custody
of the child. (See § 366.21, subd.
(e).) The case plan must be appropriate
to the individual parent and based on the unique facts of that individual. (In re
Misako R. (1991) 2 Cal.App.4th 538, 545.)
“In almost all cases it will be true that more services could have been
provided more frequently and that the services provided were imperfect. 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.†(Id.
at p. 547; accord, Elijah R. v. Superior
Court (1998) 66 Cal.App.4th 965, 969.)
The
juvenile court is required to have clear and convincing evidence when it finds
the reunification services offered were adequate. However, we review that finding on appeal for
substantial evidence. (In re
Alvin R. (2003) 108 Cal.App.4th 962, 971.)
“The issue of sufficiency of the evidence in dependency cases is
governed by the same rules that apply to other appeals. If there is substantial evidence to support
the findings of the juvenile court, we uphold those findings. [Citation.]
We do not evaluate the credibility of witnesses, reweigh the evidence,
or resolve evidentiary conflicts.
Rather, we draw all reasonable inferences in support of the findings,
consider the record most favorably to the juvenile court’s order, and affirm
the order if supported by substantial evidence even if other evidence supports
a contrary conclusion. [Citation.] The [petitioner] has the burden of showing
the finding or order is not supported by substantial evidence. [Citation.]â€
(In re L.Y.L. (2002) 101
Cal.App.4th 942, 947.) Hence, we review
reasonableness of services offered by viewing the evidence in a light most
favorable to the finding. So viewed, it
is clear that substantial evidence supports the finding that reasonable
services were offered by the Agency.
Reasonable Services Were Provided
Services
provided by the Agency to Mother here included, but were not limited to:
referral for a psychological evaluation; referrals to individual therapy for
domestic violence treatment and for her depression; referrals to other domestic
violence programs and resources, including an eight-week program at the outset
of the dependency; supervised therapeutic visitation; drug testing; passes for
public transportation; referrals to a parenting program; and referrals to
substance abuse programs.
The heart of Mother’s
challenge to the reasonableness of services is her claim that the Agency did
not provide or insist upon intensive individual
therapy as recommended by the psychologist, to address the domestic violence
concerns. We disagree. Referral
to Ewick for therapy addressed the key concern of the Agency with regard
to Mother’s volatile relationship with the father and the domestic violence
that accompanied that relationship. The
record belies Mother’s suggestion that “domestic violence services were not a
part of her disposition/reunification requirements before†the end of the
reunification period. The detention was
precipitated by an instance of domestic violence between the parties, leading
to Mother’s arrest. The jurisdiction
findings included a finding that, “[t]he child is at risk of physical harm in
that the parents have a relationship in which they have engaged in domestic
violence with the child present.
Further, both the mother and father have sustained injuries during these
incidents.†Services recommended by the
Agency and ordered by the court for Mother included that she receive
“individual counseling/Therapy which addresses Domestic Violence, Trauma,
Effective Communication, Self-Esteem and the Effects of Violence on Children,â€
and that she “remain under the care of a qualified mental health professional
and comply with the mental health professional’s recommendations for
psychotherapy and/or prescribed medication.â€
It was understood and reiterated throughout the dependency that domestic
violence concerns were being primarily addressed in the individual therapy and
through additional referrals by the Agency to entities offering domestic violence
support, classes and counseling.
In re
Riva M. (1991) 235 Cal.App.3d 403, 414, observed, “[i]t is the job of [the Agency] to assist parents with inadequate
parenting skills in remedying the sources of the problem, not to eradicate the
problem itself.†The record should show
that the supervising agency identified the problems, offered services designed
to remedy them, maintained reasonable
contact with the parents during the course of the service plan, and made
in areas where compliance proved difficult.â€
The Agency did all this and much more.
Mother
argues that the reduction in therapy with Ewick from weekly to once a month
that occurred in May 2012, and continued for approximately five months until
weekly therapy was resumed, did not constitute the intensive therapy
recommended by Christmas and required to meet Mother’s situation. However, Mother’s counsel acknowledged in
seeking a change in the visitation order to unsupervised visits that Ewick had
decided the monthly visits were therapeutically appropriate. Mother began therapy with Ewick early in the
dependency and at the time individual therapy was reduced because Mother was
not benefiting, Mother and Ewick had been engaged in individual therapy for over
a year. Counsel for Mother also
acknowledged that the Agency urged Mother to return to weekly
appointments. According to Ewick, goals
for Mother’s therapy were to work on issues related to domestic violence with
the father, to remain sober, and to discuss things that depress her and how to
manage these things. The Agency was in
contact with Ewick throughout Mother’s treatment with her, although Mother
apparently would agree only to release of attendance information to the
Agency. Acceding to the judgment of the
therapist as to what was therapeutically appropriate at the time and to
Mother’s wish to reduce the frequency of individual therapy to once a month for
five months in the circumstances did not constitute abandonment of Mother by the Agency or
abdication of its duty, as Mother suggests.
Substantial evidence supports the court’s finding that the Agency
provided reasonable circumstances in this case.
II. Extraordinary Circumstances Exception
Inapplicable
Nor
are we persuaded by Mother’s claim that the court should have found exceptional
circumstances warranting a continuance of proceedings pursuant to
section 352 and provision of services for additional time beyond the
18-month review to allow her to reunify because she is a “special needs parent
with ‘quite limited cognitive abilities’ who ‘will need a great deal of
help.’ †Section 352,
subdivision (a) provides in relevant part:
“Upon request of counsel . . . the court may continue any hearing under
this chapter 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.
In considering the minor’s interests, the court shall give substantial
weight to a minor’s need for prompt resolution of his or her custody status,
the need to provide children with stable environments, and the damage to a
minor of prolonged temporary placements.â€
Because
the child was younger than three years of age when she was removed, Mother was
statutorily entitled to six months of services.
(§ 361.5, subd. (a)(1)(B).)
Services were extended to 12 months.
At the 12-month review hearing, services may be extended to 18 months
from the date of removal where it can be shown the permanent plan is that the
child will be returned and safely maintained during the extended period of
time. (§ 361.5, subd. (a)(3).)
We
reject the claim that the court erred in refusing to find “extraordinary
circumstances†or special needs warranting a further continuance beyond the
time set for the 18-month review hearing.
Although
Mother refers to herself as a “special needs†parent throughout the writ
petition, at the jurisdiction and disposition hearing, the juvenile court
struck Count B6, which alleged Mother had developmental delays for which she
required assessment and treatment. The
psychological evaluation of Dr. Christmas found Mother had “limited cognitive
capabilities,†in addition to “significant mental health problems,†requiring
“intensive support,†depression, alcohol abuse, and a personality
disorder. However, there was no judicial
finding that she was a special needs parent or that her alleged developmental
delays were significant factors in the dependency. Nor had Mother or her counsel characterized
her as a special needs parent before
filing the instant writ petition. The
services she received were tailored to her circumstances.
In
any event, the extraordinary circumstances required in order to continue
services for a longer time under the exception are not present here and the
cases upon which Mother relies for her claim the court erred are
distinguishable. As described in
Cal.App.4th 1377, 1388-1389 (Andrea L.):
“The
Legislature has recognized there must be a limitation on the length of time a
child has to wait for a parent to become adequate in order to prevent children
from spending their lives in the uncertainty of foster care. (In re
Marilyn H. [(1993)] 5 Cal.4th [295,] 308.)
Thus, family reunification services ‘may be extended up to a maximum
time period not to exceed 18 months if it can be shown that the objectives of
the service plan can be achieved within the extended time period.’ (§ 361.5, subd. (a)(2).) . . . .
“A
juvenile court may exercise its discretion to extend family reunification
services beyond the statutory limit in a special needs case. (In re
Elizabeth R. [(1995)] 35 Cal.App.4th [1774,] 1793-1799;
1205, 1213-1214; In re Dino E. (1992)
6 Cal.App.4th 1768, 1777-1778; § 352.)
However, in these cases, there were extraordinary circumstances which
militated in favor of extension of family reunification services beyond the
18-month limit. These circumstances
uniformly involved some external factor which prevented the parent from
participating in the case plan.
1790-1792, involved a mother who had worked hard to comply with the case plan
but had been hospitalized during a critical stage of the reunification
period. In In re Daniel G., supra, at page 1216, the family reunification
services provided to a mentally disabled parent ‘in the last 12 months of the
reunification stage were virtually nil—a “disgrace†as the trial court put
it.’ In In re Dino E., supra, at page 1777, adequate family reunification
services were not provided the parent.
at page 1407, . . . involved a case in which an incarcerated parent was not
provided reasonable visitation.†(
p. 1388.)
Cal.App.4th 996, also cited by Mother, is also inapposite as the Court of
Appeal determined that there was no substantial evidence that reasonable
reunification services had been offered to the incarcerated father over the
term of the dependency. (
In
the court determined the mother had received reasonable family reunification
services and that the mother’s drug relapse did not constitute the extraordinary
circumstances or special needs necessary to support such an extension. (Id. at
pp. 1389.) The court there
concluded: “The failure of the case plan
was not caused by inadequate services or an external force over which mother
had no control, but by mother’s relapse into cocaine abuse. The juvenile court reasonably could conclude
such a relapse does not constitute the extraordinary circumstances or special
needs necessary to support an extension of family reunification services beyond
the statutory limit.†(
So, too, in this case the failure of the case plan was not caused by
inadequate services or by an external force over which Mother had no
control. Rather, Mother’s repeated engagement
with the father, allowing him in to her home, continuing the conflict with him
to the point that the police were called on numerous occasions, lying to the
Agency and her social workers about the continuation of her relationship with
the father, as well as her lapse from sobriety during the waning weeks of the
dependency support the court’s refusal to find extraordinary circumstances or
special needs supporting extension of family reunification beyond the statutory
limit.
DISPOSITION
The
petition is denied on the merits. (
894 [barring later challenge by appeal].)
Our stay of the section 366.26 hearing is dissolved. Our decision is immediately final as to this
court.
_________________________
Kline,
P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
name="_ftn1" title=""> [1] Unless
otherwise indicated, all statutory references are to the Welfare and
Institutions Code and all rule references are to the California Rules of Court.
361.5, subdivision (a)(4), in 2008, absent
extraordinary special needs, the juvenile court’s extension of services
beyond 18 months was an abuse of discretion and in excess of its
jurisdiction. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1509; 10 Witkin,
Summary of Cal. Law (2012 Supp.) Parent and Child, § 643, p. 325.) Notwithstanding section 361.5, subdivision
(a)(3) [18-month maximum], services may
be extended up to a maximum of 24 months after the date the child was
originally removed from parental custody, only
if it is shown at the permanency planning hearing that the child will be
returned and safely maintained in the home within the extended time period
best interest to have the time period extended and there is a substantial
probability the child will be returned to the physical custody of the parent
within the extended time period or that
reasonable services have not been provided to the parent. (§ 361.5, subdivision (a)(4); 10 Witkin,
Summary of Cal. Law, supra, § 643,
p. 325.) Mother does not rely upon this
section and we would find no support for its application in this case.
We also note that the court had
18-month review hearing at Mother’s request pursuant to section 352. The 18-month hearing actually occurred
23 months after the child was removed from her physical custody.
