Angelina B. v. Super

Filed 8/27/07 Angelina B. v. Super. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy B. Williamsen, Commissioner.

Maria Elena Ramos, for Petitioner.

No appearance for Respondent.

Michael H. Krausnick, County Counsel and Linda S. Macy, Deputy County Counsel, for Real Party In Interest.

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Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) from the juvenile courts orders issued at a contested 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to her daughter A. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner is the mother of four children including A. Petitioner suffers from schizophrenia and has a long history of intravenous heroin and methamphetamine use. As a consequence, her three oldest children are being raised by relatives.

In April 2006, A. was born prematurely at 32-weeks gestation and suffering from respiratory distress. Petitioner admitted using methamphetamine throughout her pregnancy with A. and having only one prenatal visit. She also lacked stable housing and supplies for the baby. Consequently, the social services agency (agency) took A. into protective custody, filed a dependency petition on her behalf and placed her with her maternal aunt. The whereabouts of A.s alleged father were unknown.

The juvenile court adjudged A. a dependent and ordered a plan of reunification requiring petitioner to take her psychotropic medication as prescribed, participate in mental health treatment, complete a substance abuse assessment, submit to random drug testing and complete a course in parenting. The court also ordered the agency to arrange a minimum of two visits a month for petitioner and gave the agency discretion to increase visitation. The court also denied reunification services to A.s alleged father.

Initially, petitioner expressed little interest in participating in services or in visiting A. In addition, her mental health status was deteriorating. In June 2006, she attempted suicide by harming herself with a razor and a screwdriver. She subsequently left the state to live with her boyfriend and only returned after he abandoned her.

However, in July 2006, petitioner began to visit A. and in mid-August, she was admitted to an inpatient drug treatment program. By the six-month review hearing scheduled for October 2006, petitioner had completed inpatient drug treatment and was living in a clean and sober environment and attending outpatient treatment. She was also medication compliant, meeting twice monthly with a psychiatrist and participating in group sessions. However, because petitioner had only begun to participate in services and because she struggled with managing the day-to-day demands of her life, the agency recommended the court terminate her services and proceed to adoption planning.

The court declined to follow the agencys recommendation and, at the six-month review hearing, continued services to the 12-month review hearing, which it set for April 2007. The court also ordered petitioner to undergo a psychological evaluation to determine if she could benefit from services.

In December 2006, petitioner was evaluated by a clinical psychologist, who reviewed her medical documentation and conducted a two-hour interview and administered a personality inventory. Although petitioners testing confirmed her mental disorder, the psychologist observed no evidence petitioner was hallucinating or experiencing delusions or disorganized thinking. Rather, he reported her associations [were] tight, linear and organized. He found her mental status during the evaluation far more remitted than that described in the medical reports. He concluded that she could benefit from services and that, if she maintained treatment compliance and sobriety, reunification was feasible based on her presentation.

In January 2007, after several trips to the emergency room, A. was diagnosed with a respiratory condition, which required medication and follow up.

The 12-month review hearing originally scheduled for April was continued and conducted as a contested hearing in June 2007. By the time of the hearing, petitioner was living in a board and care facility and on a waiting list for government-funded housing. She had completed inpatient and outpatient drug treatment and remained drug-free for seven months. She was regularly participating in mental health counseling and taking her medication. She was also receiving supportive services to help her plan and organize her schedule including medical appointments for A. However, despite petitioners progress, the agency recommended the court terminate her services at the 12-month review hearing because petitioner had not completed the parenting component of her case plan or demonstrated her ability to properly care for A. Though she began parenting classes in October 2006, she did not regularly attend until March 2007. Consequently, petitioner had completed only 9 of 10 required parenting classes and half of the individual reviews. In addition, she had not even begun the parent/child sessions.

At the contested hearing in June, petitioner argued the court should continue services to the 18-month review hearing, which if scheduled would occur in October 2007. She persuaded the court, based on the reports and testimony, that she regularly visited A. and that she made significant progress in resolving the problems that led to A.s removal. Consequently, the courts decision whether to continue services hinged on whether petitioner had demonstrated the capacity and ability to both complete the objectives of her case plan and provide for A.s safety.

Petitioners case worker testified that she had worked with petitioner since May 2006 and that petitioner had progressed within the structure of the board and care facility but even then she continued to struggle with managing the day-to-day demands of her own life and could barely take care of herself. In addition, because petitioner had not had custody of A., she had not had the opportunity to demonstrate whether she could safely care for her. She also testified that she increased visitation from bimonthly to weekly recently so that A. would be more comfortable with petitioner.

On cross-examination, the case worker conceded she had not received any reports that petitioner could not care for A. but added that the service providers had not reached a stage of evaluation where that would have been assessed. She also explained that she had not increased visitation sooner because petitioner had not been showing up for visitation or asking for visitation.

Petitioner testified and was asked several straight forward questions, including what her understanding was of A.s medical condition. She believed A.s medical condition involved A.s eye and blood in As brain. As the court would later comment, petitioners responses in general reflected her confusion and difficulty understanding what was being asked of her.

Petitioner further testified neither her sister, A.s caregiver, nor the case worker kept her informed about A.s medical condition. She stated she did not attend A.s medical appointments because she was not told when they were scheduled. On rebuttal, the case worker testified that she explained A.s medical condition to petitioner in February 2007 but that petitioner did not ask her any questions about it.

Following testimony, the court found it would be detrimental to return A. to petitioners custody. The court also found that petitioner was provided reasonable services but that she had not demonstrated the ability and capacity to complete the objectives of her case plan and provide for A.s safety and well-being. The court specifically commented on petitioners delay in committing her efforts to reunification and failure to inquire about A.s respiratory condition. The court also expressed concern about petitioners ability to properly care for A. while managing her own mental health needs. Consequently, the court found there was not a substantial probability A. could be returned to petitioner by the 18-month review hearing and terminated reunification services and set a section 366.26 hearing. This petition ensued.

DISCUSSION

I. Petitioner was provided reasonable services.

Petitioner argues the agency impeded her ability to demonstrate she could safely parent A. by waiting until just months before the 12-month review hearing to arrange weekly visitation and by not making sure she was advised of A.s medical appointments. Consequently, she claims the courts finding that she was provided reasonable services was error.

We review the juvenile courts findings and orders for substantial evidence, resolving all conflicts in favor of the court and indulging in all legitimate inferences to uphold the courts finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) On review of the facts, as summarized above, we conclude substantial evidence supports the juvenile courts reasonable services finding.

With respect to visitation, the agency was authorized but not required through the court-ordered case plan to increase visitation to more than twice a month. The case worker explained during her testimony that she did not increase visitation sooner because petitioner was not showing up for visitation or asking for visitation. Under these circumstances, the agency could properly choose not to exercise its discretion to increase the frequency of visitation. Therefore, the agencys provision of visitation was not unreasonable.

A.s medical condition was diagnosed after the case plan was ordered into effect at the dispositional hearing and no one, including petitioner, moved the court to modify it. Therefore, there were no court-ordered instructions to the agency with respect to educating petitioner about her daughters condition. The question then becomes whether the agency, in fulfilling its general duty to assist a parent to reunify, was unreasonable in not identifying petitioners need to know and in not making that happen.

In answer to the above, several general dependency principles come to mind. First, the parent of a dependent child is presumed capable of participating in an appropriate case plan and is expected to do so. (In re Raymond R. (1994) 26 Cal.App.4th 436, 441; In re Christina L. (1992) 3 Cal.App.4th 404, 415.) Further, while the supervising agency is required to assist in the reunification process, the assigned social worker is not expected to take the parent by the hand and escort him or her through the process. (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.) Finally,

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. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

In this case, petitioner knew A. was ill and that she required ongoing medical treatment and yet she made no effort to inform herself or involve herself in A.s medical treatment. She never asked the case worker any questions about A.s medical condition or arranged with A.s caregiver to accompany them to A.s medical appointments. Certainly, under ideal circumstances, the case worker would have ensured petitioners presence at A.s medical appointments and arranged for any special medical instruction that petitioner would have needed to care for A. However, the fact that the case worker could have done more, does not make what she did not do unreasonable. And it does not absolve petitioner of her responsibility to prepare herself to assume full care of her child. In light of the above, we concur petitioner was provided reasonable services.

II. The juvenile court properly terminated petitioners reunification services.

Petitioner contends the trial court erred by terminating reunification services and scheduling a section 366.26 hearing. She claims the psychologists opinion she could benefit from services and her improved mental status and sobriety evidence a substantial probability A. could be returned to her care by the 18-month review of dependency. We disagree.

Under the statutory scheme for dependent children, the court has discretion to extend services beyond 12 months only if it finds there is a substantial probability that the minor will be returned to parental custody and safely maintained in the home within the extended period of time, or if it finds that reasonable services have not been provided to the parent. ( 361.5, subd. (a); 366.21, subd. (g)(1).) Having concluded petitioner was provided reasonable services, we are concerned only with the courts finding there was not a substantial probability of return within the extended time period.
In assessing whether there is a substantial probability of return, the juvenile court must consider the parents capacity to meet the objectives of the case plan and provide a safe home for the child. ( 366.21, subd. (g)(1)(C).) On this record, the court had ample cause to question petitioners ability to assume custody of A. and provide for her safety within the ensuing four months. Despite her progress, petitioner suffers from chronic mental illness and remains at risk for relapse. In addition, she significantly delayed engaging herself in services and remained uninformed about A.s medical condition. Moreover, she had yet to demonstrate her ability to live independently or to parent A. and, even during the setting hearing, she appeared confused to the court.

Petitioners reliance on the psychologists opinion petitioner can benefit from services is misplaced. As real party in interest points out, petitioners ability to benefit from services does not signify that she can ensure A.s safety. And there was no reason for the court to believe another four months would alter the circumstances.

In light of the foregoing, we conclude substantial evidence supports the juvenile courts finding there was not a substantial probability A. could be returned to petitioners custody by the 18-month review hearing. Consequently, we affirm the juvenile courts orders terminating petitioners reunification services and setting the section 366.26 hearing.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Harris, Acting P.J., Cornell, J., and Kane, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.