Veronica V. v. Super. Ct.

Filed 2/10/10 Veronica V. v. Super. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Proceedings for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Garry G. Haenhle, Judge. Petition denied.

Veronica V., mother of Kevin J., seeks review of a juvenile court order terminating reunification services after 18 months and setting a hearing under Welfare and Institutions Code section 366.26.[1] Veronica challenges the court's finding that she was provided reasonable reunification services. She further contends the evidence was insufficient to support the finding that returning Kevin to her custody would create a substantial risk of detriment to him. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2007 the San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of then four-year-old Kevin under section 300, subdivision (a). The petition alleged Veronica struck Kevin, leaving contusions on his forehead, left cheek and left upper lip. Kevin disclosed that his mother had hit him and that this was not the first time she had done so. He admitted he loved Veronica but said he was afraid of her. Kevin stated he wanted to live with his paternal grandparents.

Veronica denied hurting Kevin and claimed he was lying and being influenced by paternal relatives. The court held a detention hearing and ordered that Kevin be detained with his paternal grandparents. The court authorized reunification services for Veronica.

Veronica participated in a psychological evaluation and enrolled in a parenting class before the jurisdiction and disposition hearing. The Agency evaluation reported that Veronica suffered from a character disorder and that Kevin would be at risk of harm until Veronica learned to control her anger. Veronica's progress remained restricted because of her denial and tendency to blame others for her problems. She also denied she had a criminal record, but the Agency social worker found Veronica had been arrested multiple times. The court made a true finding on the petition and placed Kevin in the care of his paternal relatives. The court ordered Veronica to comply with services and scheduled a six-month review hearing.

During the next 12 months Veronica attended therapy and participated in a parenting class. In a 12-month review report the Agency recommended that Veronica continue with services, and that she be allowed to have unsupervised visits should she continue to make progress with her case plan. The social worker reported that Veronica had a criminal conviction on her record as the result of the abuse she inflicted on Kevin. Veronica was on probation. She admitted she had abused Kevin on more than one occasion. She claimed the abuse stemmed from stress in her life and medication she had been taking. Her therapist acknowledged Veronica had made progress in therapy and that she was ready for unsupervised contact with Kevin.

In an addendum report filed in February 2009, the social worker reported that unsupervised visits between Kevin and Veronica were taking place and no problems had been reported in connection with these visits. Veronica completed her parenting class and continued with therapy. She also completed a 52-week child abuse treatment program.

In an 18-month review report, social worker Alvarez requested a one-month continuance to assess whether Kevin could safely be returned to Veronica's custody. Alvarez wanted to investigate Veronica's living situation and the quality of the overnight visits that had recently begun between Kevin and Veronica. Kevin had complained about being uncomfortable spending the night at Veronica's home because he was not used to sleeping in her house. He also disclosed that he heard Veronica and paternal grandmother speak negatively about each other. Kevin's therapist, Blake Zimmet, stated Kevin's complaints could be a result of the changes in Kevin's life. Zimmet stated he would like to see Veronica participate in therapy sessions with Kevin once reunification occurred.

In a May 2009 addendum report, Alvarez recommended that Kevin be returned to Veronica's care with family maintenance services. The court authorized conjoint therapy for Kevin and Veronica.

In July 2009 Alvarez filed another addendum report. She stated that Veronica and Kevin's father, Michael, had engaged in a fight in Kevin's presence. During the fight, Veronica yelled at Michael in front of Kevin. Kevin stated Veronica threatened to hire someone to kill Michael and she told Michael to die. Veronica claimed Michael started the fight, screamed at her and damaged her car door. Kevin stated Veronica was the only one who screamed during the fight. Michael obtained a restraining order following the incident. The order restricted Veronica from contacting Michael for five years.

Kevin told Alvarez he did not want to stay at Veronica's home and, instead, wanted his grandmother to adopt him. The Agency did not change its recommendation; it represented it needed additional information from Kevin's therapist before it could make any other recommendation.

At an initial 18-month review hearing, minor's counsel requested a continuance of the hearing to have Veronica participate in a psychological evaluation. Veronica's counsel objected. The court granted the request.

In September 2009 the Agency recommended services for Veronica be terminated and that Kevin remain with his grandparents. In July 2009 Veronica participated in a psychological evaluation conducted by Dr. Marvin Galper. Veronica admitted she did say to Michael that she hoped he would die for starting a fight with her and for breaking her car door. She further admitted that Kevin was present during the fight. Dr. Galper reported Veronica continued to have problems with impulsivity when she was stressed and continued to blame others for her problems. He noted Veronica was not seen as a danger to herself or others at this time but, based on her inability to control her impulses, needed to participate in additional therapy sessions.

Veronica met with social worker Alvarez and claimed Kevin lied about the incident between her and Michael. She stated Michael and the paternal grandparents coerced Kevin into lying for them. Alvarez received a report from Kevin's therapist following a conjoint visit between Kevin and Veronica. Zimmet concluded that additional conjoint visits "would not be clinically indicated at this time." He observed that Veronica focused on her belief that she was being victimized by the Agency. Alvarez reviewed the psychological evaluation, her reports and Zimmet's report, and concluded that although Veronica had completed her service plan, she had not been able to apply what she had learned and Kevin remained at risk.

In an addendum report, Alvarez stated Veronica had left voice messages that indicated Veronica had reverted to minimizing her behaviors and blaming others for her problems. Veronica portrayed herself as the victim and claimed everyone was against her. The social worker reported that the voice messages were disjointed and showed Veronica did not take responsibility for her choices or actions.

The court held an 18-month review hearing on October 26, 2009. The parties stipulated that Alvarez was an expert in risk assessment. Alvarez testified she originally believed Veronica's completion of her case plan made any risk to Kevin moderate. Alvarez changed her opinion following the most recent altercation between Veronica and Kevin's father. The altercation took place in front of Kevin, involved death threats and showed that Veronica had not been able or was not willing to apply what she had learned from services. Alvarez noted the most recent psychological evaluation supported her opinions. In addition to the altercation and the recent psychological evaluation, Alvarez reported that Kevin's therapist did not recommend conjoint therapy because Veronica's behavior during therapy did not benefit Kevin.

The court found that reunification services were reasonable and Veronica had made some progress. However, the progress was insufficient to allow the court to consider returning Kevin to her care. The court noted Veronica continued to lack insight and impulse control even though she had received appropriate services. The court terminated services and scheduled a section 366.26 hearing.

Veronica petitions for review of the court's order. ( 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency responded, and the parties waived oral argument.

DISCUSSION

I

Veronica contends the court erred by finding that reasonable reunification services were provided to her.

A

Family reunification services play a crucial role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563; In re Joshua M. (1998) 66 Cal.App.4th 458.) The purpose of the reunification plan is "to overcome the problem that led to removal in the first place." (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) Any reunification plan must take into account the special needs of a parent who is physically disabled, developmentally delayed or mentally ill. (See In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1792; In re Misako R. (1991) 2 Cal.App.4th 538, 545-546.) If reasonable services are not provided to the family, the court is required to continue the case for the period of time permitted by statute. ( 366.21, subds. (e), (g)(1).)

To support a finding of reasonable services, "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 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.)

When a party challenges the finding that reasonable services were offered or provided, we determine whether there is substantial evidence to support the court's finding by reviewing the evidence most favorably 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.) In applying the substantial evidence test to a finding of reasonable efforts, we keep in mind that clear and convincing evidence must support the finding. (In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.) The party challenging the finding bears the burden to show the evidence is insufficient to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

B

The Agency provided Veronica reasonable services designed to address the problems that led to Kevin's dependency. In addition to visitation, she was offered parenting education, anger management classes, child abuse prevention classes and psychological evaluations. Veronica participated in therapy throughout the proceedings. The record shows Veronica's therapist had been asked to address anger management as part of Veronica's therapy program requirements. All of the services were consistent with Veronica's needs. At no time during the proceedings did Veronica complain that the services she received were inadequate. Veronica substantially complied with her case plan.

Veronica claims she did not receive adequate therapy sessions after her evaluation with Dr. Galper. She asserts social worker Alvarez did not re-refer her to therapy. The record does not support her claim. Veronica completed therapy in December 2008. Alvarez contacted Veronica's therapist after the altercation occurred and before Dr. Galper's evaluation was scheduled to take place. Alvarez asked the therapist to resume sessions with Veronica. The therapist was not available to meet with Veronica but agreed with the need for a new evaluation. Veronica further has not shown that participating in therapy in the two-month period between the evaluation and the

18-month hearing would have led to the Agency providing different or further services. The record instead shows Veronica received 18 months of services, including therapy, and the services had not been sufficient for her to reunify with Kevin. The finding of reasonable services is supported by substantial evidence.

II

Veronica contends the court should have ordered Kevin returned to her custody because it was in Kevin's best interest to reunify with her. The Agency disagrees and contends there was sufficient evidence that returning Kevin to Veronica's custody would create a substantial risk of detriment to him.

A

The juvenile court must return a dependent child to the custody of the parent at the 18-month review hearing "unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. . . . In making its determination, the court shall review and consider the social worker's report and recommendations and . . . shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself of services provided . . . ." ( 366.22, subd. (a).) However, "the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child." (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.)

In explaining the purpose of the section 366.22 hearing, it has been noted: "[T]he Legislature has determined a child's need for stability and security within a definitive time frame becomes paramount. The cutoff date for fostering family reunification is the 18-month status review. At this hearing, the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children." (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788.) Mandatory reunification services are limited to no more than 18 months. ( 361.5, subd. (a)(3).)

We review an order terminating services and setting a permanency planning hearing to determine if it is supported by substantial evidence. If substantial evidence exists, we must affirm the order. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) "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 had it believed other evidence." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

B

The record shows there is substantial evidence that Veronica had not learned to control her anger and impulses, which continued to pose a risk of detriment to Kevin. Even though Veronica made strong efforts to address the issues that led to the dependency, there was substantial evidence that returning Kevin to Veronica would be detrimental to Kevin's well-being. The problems leading to the dependency were serious. Kevin suffered injuries as a result of physical abuse inflicted by Veronica. Veronica participated in more than 18 months of services and, toward the end of the reunification period, engaged in an altercation with Kevin's father, Michael. Kevin stated that he heard Veronica tell Michael she was going to hire someone to kill him and that she wanted Michael to die. Kevin stated Veronica was the aggressor in the altercation. Veronica admitted having this fight with Michael while Kevin was present. As a result of the fight, Kevin told social workers that he did not want to go to Veronica's house for overnight visits and that he missed his grandparents. Kevin also told social workers that he wanted his grandmother to adopt him. Rather than take responsibility for her actions, Veronica continued to blame others for the fight and stated Kevin was lying about the fight and what he had seen. The social worker concluded that although Veronica completed her case plan, she had not been able to apply what she had learned and Kevin remained at risk in her custody. Further, the statements made by Kevin following the altercation were indicative that Kevin was uncomfortable with Veronica, and his emotional well-being remained at risk.

We acknowledge that Veronica completed the provisions of her case plan before the 18-month review hearing. However, this progress does not mandate returning Kevin to her custody. Even completion of the reunification plan does not guarantee the child can safely be returned to the parent. The court must still determine whether returning the child will create a substantial risk of detriment. (In re Brian R. (1991) 2 Cal.App.4th 904, 917-918.) Although failure to comply with a reunification services plan supports a detriment finding, it does not logically follow that compliance with a reunification services plan precludes a detriment finding. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704.) A parent's compliance with his or her case plan must be considered by the juvenile court, but it is only one factor in determining whether returning the child presents a risk of detriment. (In re Joseph B., supra, 42 Cal.App.4th at p. 899.) "By authorizing the continued removal of a child from parental custody based on the risk of either physical detriment or emotional detriment, [section] 366.22 . . . focus[es] on the child's well-being at the time of the review hearing rather than on the initial basis for juvenile court intervention. [Citation.] Thus, while the court must consider the extent the parent has cooperated with the services provided and the efforts the parent has made to correct the problems which gave rise to the dependency ( 366.22, subd. (a)), the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child." (Ibid.)

Veronica participated in services but there was evidence she had not benefitted from the services to the point that Kevin's emotional well-being would be secure were he returned to her custody. Her altercation with Michael, the threatening voice messages left for the social worker, and the recommendation by Dr. Galper that Veronica needed additional therapy to address her impulse control problems are not insignificant to Kevin's well-being. Therefore, the court was required to follow the legislative mandate that dependent children wait no more than 18 months for their parents to reunify with them before moving to the permanent planning stage. ( 366.22.) If Veronica later is able to apply what she has learned through services, she has the opportunity to present changed circumstances to the court by filing a petition under section 388.

DISPOSITION

The petition is denied.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

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[1] Statutory references are to the Welfare and Institutions Code.