S.B. v. Superior Court
Filed 3/5/13
S.B. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
S.B. et al.,
Petitioners,
v.
THE SUPERIOR COURT OF
STANISLAUS COUNTY,
Respondent;
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Real Party in Interest.
F066180
(Super.
Ct. No. 516238)
THE COURT
name="_ftnref1" title="">*
ORIGINAL PROCEEDINGS; petition for
Nadine Salim, for Petitioner S.B.
Alistair Sheaffer, for Petitioner
T.W.
No appearance for Respondent.
John P.
Doering, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for
Real Party in Interest.
-ooOoo-
Petitioners
Terry (father) and S.B. (mother) seek an extraordinary
writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders
issued at a contested six-month review hearing (Welf. & Inst. Code,
§ 366.21, subd. (e))
name="_ftnref2" title="">[1] terminating their reunification services and
setting a section 366.26 hearing as to their one-year-old son, T.W. Father and mother contend they did not
receive reasonable reunification services.
Therefore, they further contend, the juvenile court erred in terminating
their reunification services and
setting a section 366.26 hearing. We
disagree and deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
In
mid-February 2012, mother gave birth to a son, T.W., the subject of this writ
petition. During the pregnancy, mother
regularly consumed alcohol and had syphilis, which she did not successfully
treat. As a result, T.W. required
intensive treatment for a variety of medical complications. However, mother and father did not appear to
understand the severity of his medical problems. According to the hospital social worker,
Tracy Kemp, they appeared delayed in their presentation and their responses
seemed scattered and unclear. In
addition, when the hospital staff expressed concern about T.W.’s condition,
mother and father stated that “their baby was fine.â€
Kemp contacted the
Agency (agency) and emergency social worker Jorge Garcia met with mother and
father at the hospital. They denied
having any substance abuse problems or any criminal history. Mother disclosed, however, that four of her
children were removed from her care in Sacramento County because her home was
dirty and the children were eating off of the floor. In fact, mother’s children were taken into
protective custody in part because of her substance abuse. She was provided 12 months of reunification services
but failed to complete them. In
addition, mother has a criminal history of property crimes and disorderly
conduct and father has a history of burglary,
grand theft, false imprisonment and battery. In addition, he and mother have a history of
domestic violence. Notably, in February
2009, father grabbed mother by the neck and choked her when she tried to end
their relationship. When she fell to the
ground, he straddled mother and slapped her four times in the face. In June 2011, during an argument, father
struck her in the right eye with his fist.
Father told
Garcia that mother received Social Security Income (SSI) for a learning
disability and that he had also received SSI in the past for a learning
disability. Garcia informed the parents
that the agency intended to take T.W. into protective custody.
The agency
filed a dependency petition on T.W.’s behalf and in late February 2012, the
juvenile court ordered him detained. The
juvenile court also ordered the agency to refer mother and father for domestic
violence, anger management, substance abuse and parenting services. In mid-March 2012, T.W. was discharged from
the hospital and placed in foster care.
In its
report for the jurisdictional hearing, the agency informed the juvenile court
that mother and father wanted T.W. returned to their custody and expressed
their willingness to participate in services.
They frequently visited him while he was in the hospital and interacted
lovingly during their visits with him at the agency. They had also taken steps to initiate their
services. However, social worker Valerie
Castro, author of the jurisdictional report, stated that T.W. was medically
fragile and needed multiple followup appointments in multiple specialty
clinics. Castro did not believe mother
and father understood his fragile state.
In addition, Castro had difficulty helping them understand their
services requirements. She questioned
whether their delay in understanding was related to a delay in cognitive
functioning and/or comprehension or denial of T.W.’s medical condition.
In April 2012, the juvenile court
conducted a combined jurisdictional/dispositional hearing (combined
hearing). At the hearing, the juvenile
court adjudged T.W. a dependent child, ordered him removed from mother and
father’s custody and approved a reunification plan filed by the agency. The reunification plan required mother and
father to complete assessments in domestic violence and anger management at Sierra
Vista Child and Family Services (Sierra Vista) and follow any
recommendations. It also required them
to successfully complete a parenting education program at Sierra Vista. In addition, mother and father were required
to complete outpatient substance abuse treatment, she at First Step Perinatal
Program (First Step) and he at Nirvana Drug and Alcohol Institute
(Nirvana). Both were required to submit
to random drug testing.
At the
combined hearing, the juvenile court also expressed concern that mother and
father possibly suffered from cognitive delay and stated its desire that their
reunification plans address any such delay.
The juvenile court stated,
“There
[are] some concerns, but the [c]ourt doesn’t have any basis to make a finding,
based upon a preponderance of the evidence.
But there [are] some current concerns about possible cognitive delays
that the parents have. And so I want to
make sure that the case plan addresses … any cognitive delays … , so they don’t
hamper the parents[’] ability to successfully reunify.â€
The juvenile court then inquired,
“[A]re there going to be any requests to make any amendments to the case
plan?†Mother’s attorney responded in
the negative and father’s attorney did not respond to the court’s question.
The
juvenile court also advised mother and father that their reunification services
could be limited to six months and set a progress review hearing for July 2012
and the six-month review hearing for October 2012.
In June
2012, the agency filed an interim report informing the juvenile court that T.W.
was placed with a maternal great aunt, Velma, in Stockton and was in fair
condition. His eyes had not yet
developed. He was completely blind in
his right eye and 95 percent blind in his left eye.
The agency
also reported that mother completed alcohol detoxification in early June 2012
and participated in one day of outpatient treatment. She was referred to First Step for outpatient
treatment and to Redwoods for clean and sober living. She attended one interim group at First Step
and lived with her mother rather than in sober living. Father was admitted to Nirvana in early May
2012 for inpatient treatment. Upon his
admission, he tested positive for marijuana.
In early June, he tested positive for an illicit drug and was discharged
from the program for being absent without leave. He returned to Nirvana near the end of
June. Mother and father did not initiate
any of their other services. Even though
mother and father had not consistently utilized their services, the agency
recommended that the juvenile court continue reunification services for them
pending the six-month review hearing.
In July
2012, the juvenile court convened the interim review hearing and commented that
mother and father did not appear to be making adequate progress. Mother’s attorney said she thought mother had
difficulty understanding and suggested that the agency review her services plan
with her again. Father’s counsel
suggested the same for father. He also
asked that the agency provide father transportation to T.W.’s medical
appointments. Father said he wanted to
participate in the medical appointments but was not offered
transportation.
The
juvenile court stated that the agency should be informing mother and father of
the medical appointments but advised father that he needed to notify the agency
in advance that he needed help getting to them.
The juvenile court told him that if he got confused about his case plan,
that he needed to let someone know. The
court also confirmed the six-month review hearing set for October 2012.
In its
report for the six-month review hearing, the agency recommended the juvenile
court continue reunification services for mother and father. The agency reported that T.W. had multiple
medical needs for which he was receiving specialty care. He had a “soft spot†on his forehead that had
not closed and he was being referred to a neurologist for microcephaly. He saw an ophthalmologist every six months
because of his blindness and an underdeveloped tear duct. T.W. also had asthma for which he saw an
asthma specialist and had an appointment with a geneticist to assess him for
fetal alcohol syndrome. He also suffered
from growth retardation and was under the care of a cardiologist for anomalies
of venous return. He was evaluated by a
gastroenterologist for difficulty feeding and gaining weight and was being
followed for a swallow dysfunction.
Velma told the social worker that she administered T.W.’s asthma
treatments and that he required around-the-clock supervision as he only slept
30 minutes at a time. The social worker
was impressed with how well Velma was attending to T.W.’s medical needs.
The agency
reported that mother began Phase I at First Step in late July 2012 and was
making progress. She regularly attended
group sessions, shared in group and turned in a journal. She was also participating in the First Step
parenting program and was attentive in group sessions but reportedly needed to
share more. She tested positive for
benzodiazepine twice in June but subsequently tested negative. She was not participating in domestic
violence and anger management counseling.
The agency
also reported that father tested negative for drugs in June and July 2012, but
was discharged from Nirvana a third time in July 2012 for violating the program
rules. In late July, he was admitted to
Nirvana for the fourth time, but discharged a month later for not complying
with the rules and guidelines. The discharge
report noted he did not attend all of the outside Alcoholics/Narcotics
Anonymous (AA/NA) meetings and forged his signature on the meeting slips. In mid-September, father entered Stanislaus
Recovery Center Outpatient Program. In
addition, father completed seven parenting sessions and in mid-September 2012
attended his first anger management/domestic violence assessment
appointment.
Though the
agency recommended the juvenile court continue reunification services, it was
dubious that mother and father could reunify with T.W. given their lack of
consistency in their case plan participation and their continuing minimization
of his special medical needs. When
questioned about T.W.’s disabilities, mother and father stated he was healthy
and had no medical problems. When the
social worker pointed out he was blind in one eye and nearly blind in the
other, they denied he had any problems with his eyes. They said he could see well but would need to
wear glasses. They said T.W. could
follow their fingers with his eyes.
In October
2012, the juvenile court convened but continued the six-month review hearing as
the agency wanted to change its recommendation.
In an addendum report, the agency recommended the juvenile court
terminate mother and father’s reunification services because father was at risk
of being discharged from Nirvana for lack of attendance and participation, and
mother had not completed a domestic violence/anger management assessment. The agency opined that if mother and father
could not meet their responsibilities, they could not effectively manage T.W.
and his special medical needs.
In late
October 2012, the juvenile convened a contested six-month review hearing, which
spanned four sessions and concluded in November. Mother and father’s position at the hearing
was that the agency failed to provide them reasonable services because the
social worker did not inform them of T.W.’s medical appointments and their case
plan did not accommodate their cognitive difficulties. Therefore, they argued, the juvenile court
should continue reunification services.
In addition, they took the position that they made substantive progress
toward reunification and there was a substantial probability T.W. could be returned
to their custody if services were continued.
During the
course of the proceedings, Sierra Vista social worker Melissa Hale faxed the
agency a letter regarding father’s progress in domestic violence/anger
management counseling at Sierra Vista.
She stated that he was eager to reunify with T.W. but had difficulty
providing her information to thoroughly assess him. He told her about his learning disability and
having sustained a brain injury that left two bullets lodged in his head. He told her that he suffered from “black
outs†after prolonged sun exposure. Ms.
Hale questioned what effect father’s brain injury had on his overall
functioning and recommended that the agency refer him for a neuropsychological
evaluation to determine his ability to reunify with T.W.
Social
worker Beth Morrison testified that she was the supervising social worker on
mother and father’s case since August 2012.
Prior to that, social worker Pedro Rodriguez was assigned the case. He was no longer employed by the agency. Morrison asked mother and father if they had
problems with comprehension. Both denied
having such a problem and said they were able to read their program
materials. Morrison also asked the staff
at First Step if mother had difficulty reading and writing and/or understanding
medical documentation and instructions and was told that she did not.
On
cross-examination, father’s attorney questioned Morrison about an entry in the
services log book dated August 15, 2012.
Social worker Rodriguez made the entry to document a contact from a
Nirvana staff member stating that father turned in his AA/NA card with two
forged signatures. When confronted,
father first denied forging the signatures.
He later disclosed that he forged them because he felt pressured to
complete the meetings. The staff member
felt that father may have a mental disorder that impeded his substance abuse
recovery. Morrison was asked whether
father was referred for any services to address a possible mental disorder. She stated that he had not been. Morrison also testified that father had not
been discharged from Nirvana for problems related to his comprehension. Rather, his discharges were the result of
noncompliance. She said father never
told her that he was shot in the head.
Morrison
further testified that, to her knowledge, mother and father were not notified
of T.W.’s medical appointments between April and August 2012, when she took
over the case.
Velma
testified that she took T.W to all of his doctor’s appointments and that she
notified the social worker in advance of the appointments. She also informed mother whenever mother
called her. However, she said mother and
father’s telephone did not always work so she did not tell them about every
appointment. She told them about two eye
appointments in July and they accompanied her to an eye appointment in
August. She also told them about a
nutrition appointment in August. She
said they never asked her about upcoming appointments or how to take care of
T.W.
Father
testified and denied forging his AA/NA attendance cards. He said he was never diagnosed with a mental
disorder and denied have a learning disability.
He also said he did not have difficulty understanding the materials. He said he was aware of T.W.’s medical
needs. He knew T.W. was blind in one
eye, virtually blind in the other, and
had asthma. Father said he did not go to
T.W.’s medical appointments because Rodriguez would not arrange transportation. He also testified that Rodriguez did not
notify him of T.W.’s appointments and that he was not told of appointments
before August 9, 2012.
Father also
testified about his head injury. He said
someone tried to rob him, shot him five times in the head, and stabbed him 37
times when he was 14 years old. Two of
the bullets remained in his head. He
said the bullets did not affect him but that sometimes when he sat too long and
then got up, he became dizzy. He said he
told Morrison that he had bullets in his head but she did not listen.
Father denied having anger
management problems and denied assaulting mother in June 2011. He also denied needing substance abuse
treatment but said he would participate in anger management and substance abuse
treatment if the juvenile court continued his services.
Father testified that it would not
be difficult to take care of T.W. Asked
whether he thought it was important to get information about T.W. and his
medical care, father stated that he already knew about it because he listened
to what the doctor said. He had attended
five appointments. He believed he had
all the medical information he needed to take T.W. home that day.
Mother also testified that she did
not have problems understanding the material.
She said she and father called Velma every day when their phone was
working. She said Velma told her about
T.W.’s appointments from the time he was placed with her. She said she did not go to the earlier
appointments because she did not have a ride and Rodriguez told her that he
could only arrange transportation for Velma and T.W. She said Morrison helped her get to the
appointments.
Mother denied having a problem with
alcohol even though she testified she used alcohol daily while pregnant with
T.W. She denied there were problems with
domestic violence in the home or that she needed domestic violence
counseling. She denied father choked her
in 2009, but acknowledged that he hit her in the right eye with his fist in
June 2011.
Mother also believed she was ready
to take care of T.W. without any help.
She knew that he was very sick, had asthma, and “something with his
head†and “his eyes.†No one had shown
her a list of T.W.’s medications or shown her how to use his nebulizer.
At the conclusion of the hearing,
the juvenile court found the agency provided mother and father reasonable
services and there was not a substantial probability T.W. could be returned to
their custody. In ruling, the juvenile
court expressed its concern with mother and father’s denial, citing father’s
denial of his anger management problem, mother’s denial of her alcoholism and
both of their denial about their domestic violence. The juvenile court believed that Rodriguez
did not tell them about the medical appointments and stated that if their
inability to address T.W.’s medical needs were the only problem, it would continue
reunification services. However, the
fact that they denied obvious problems demonstrated they had not made
substantive progress or regularly participated in their services plans, nor did
it bode well for future participation.
Consequently, the juvenile court found it would not be in T.W.’s best
interest to continue services and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Mother and father contend the
agency failed to provide them reasonable services because the services offered
did not address their cognitive delays or their need to learn about T.W.’s
medical problems and needs. We disagree.
When, as here, a child is younger than three years old on
the date of initial removal from the parent’s physical custody,
six months. (§ 361.5, subd. (a)(1)(B); Tonya
M. v. Superior Court (2007) 42 Cal.4th 836, 843.) At the six-month review hearing in such a
case, the agency has the burden of proving, by
offered or provided reasonable services to reunify the family. (§ 366.21, subd. (e).) If the juvenile court finds the parent was
provided reasonable services but failed to participate regularly and make
substantive progress in a court-ordered plan, the juvenile court may terminate
reunification services and set a section 366.26 hearing. (§ 366.21, subd. (e).) If, however, the juvenile court finds
reasonable services were not offered or provided or there is a substantial probability the child
could be returned to parental custody with continued services, it must continue
the case to the 12-month review hearing.
(Ibid.)
On
a challenge to the juvenile court’s reasonable services finding, we view the evidence
in a light most favorable to the agency, indulging in all legitimate and
reasonable inferences to uphold the finding.
(In re Misako R. (1991) 2
Cal.App.4th 538, 545.) If substantial
evidence supports the juvenile court’s finding, we will not disturb it. (Ibid.) Moreover, under our review,
services need not be perfect to be reasonable.
Rather, the “standard is ... whether they were reasonable under the
circumstances.†(Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) Since mother and father bear the burden of
demonstrating error on appeal (Winograd
v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632), they must
show that the juvenile court’s reasonable services finding
is not supported by substantial evidence. We conclude they
failed to meet their burden.
With respect to cognitive delay, there may have been suspicion but
there was no evidence that mother and/or father suffer from it. They both denied having any difficulty
understanding their course materials and father denied having a learning
disorder and/or mental disorder.
Further, the juvenile court inquired if counsel wanted the case plan
amended to address any cognitive delay and neither mother nor father’s attorney
requested a revised case plan then or thereafter. Consequently, mother and father accepted
their case plans as they were written and cannot now claim that they were
unreasonable in content. (
47.)
With respect to T.W.’s medical
appointments, the juvenile court concluded that Rodriguez did not inform mother
and father of them while he was assigned their case. However, the juvenile court did not believe
that Rodriguez’s failure to inform them rendered their services unreasonable and
we agree. Mother and father had serious
problems with substance abuse and domestic violence for which they were
provided services. However, they did not
regularly participate in their services and denied having such problems. Consequently, the juvenile court found they
made limited progress. In addition,
mother and father did not fully understand the severity of T.W.’s medical
condition and mistakenly believed they were capable of taking over his
care. Had their inability to take care
of T.W. been the only obstacle to eventual reunification, their inability to
participate in T.W.’s medical appointments would have been more
significant. However, given their
general denial and lack of progress, that one failure on the part of the agency
did not in this case render services unreasonable.
In support of their contention that
they were denied reasonable services, mother and father cite
Cal.App.4th 1415 (Tracy J.), a case
involving developmentally disabled parents whose reunification services were
terminated at the 18-month review hearing.
(Id. at pp. 1419-1423.) In Tracy
J., the appellate court concluded the agency did not provide the mother
services designed to address her physical disabilities, unnecessarily limited
visitation, did not inform the parents of their child’s medical appointments in
advance, and did not instruct them on how to treat their child’s asthma. (Id.
at pp. 1426-1427.) As a result, the
appellate court issued a writ of mandate directing the juvenile court to vacate
its reasonable services finding. (
Tracy
J. is unavailing for two reasons.
Mother and father cite the case but do not explain how it supports their
contention. More importantly,
facts. In Tracy J., the parents, unlike mother and father, had known
disabilities and fully complied with their services plans. (Tracy
J., supra, 202 Cal.App.4th at pp.
1419-1420.)
We find no error on this record and
deny the petition.
The petition for extraordinary writ
is denied. This opinion is final
forthwith as to this court.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Poochigian, J. and Peña, J.
name="_ftn2" title="">[1] All
statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
