Melody M. v. Superior Court
Filed 4/26/13
Melody M. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
MELODY
M.,
Petitioner,
v.
THE SUPERIOR COURT OF
STANISLAUS COUNTY,
Respondent;
STANISLAUS COUNTY
COMMUNITY SERVICES AGENCY,
Real Party in Interest.
F066663
(Super. Ct. No. 516144)
O P I N I O N
THE COURT
ORIGINAL
PROCEEDINGS; petition for
writ review.
Ann Q. Ameral, Judge.
Nadine
Salim and Dependency Associates of Stanislaus, for Petitioner.
No
appearance for Respondent.
John P.
Doering, County Counsel, and Robin Gozzo, Deputy County Counsel, for Real Party
in Interest.
-ooOoo-
Melody M. seeks extraordinary writ review
(Cal. Rules of Court, rule 8.452) of the juvenile court’s orders issued at an
18-month review hearing (Welf. & Inst. Code, § 366.22)
section 366.26 hearing to select a
permanent plan for her three-year-old son, Christopher. Melody contends the juvenile court erred in
finding it would be detrimental to return Christopher to her custody. Alternatively, she contends the Stanislaus
County Community Services Agency (agency) did not provide her reasonable
visitation. We deny the petition.
Melody is a 28-year-old mother of two minor sons,
Christopher, the subject of this writ petition, and Joshua. Melody has an intelligence quotient (IQ) that
places her in the range of mildly mentally retarded.
Joshua, now
seven, resides with his father. In 2009,
Melody was arrested for not having a car seat for Joshua and for allowing her
friends to smoke marijuana in the car while he was present. She was convicted of misdemeanor willful
cruelty to a child and placed on two years of probation.
These
July 2011 after the agency learned that then 15-month-old Christopher was
living with Melody and her girlfriend in a motel room where adults were smoking
marijuana and methamphetamine.
The agency took Christopher into
protective custody and filed a dependency petition on his behalf alleging that
Melody’s drug use placed him at a substantial risk of serious physical harm and
that Christopher’s biological father, Charles E., was unable to take custody of
Christopher.
In October
2011, the juvenile court exercised its dependency
jurisdiction and ordered reunification services for Melody and
Charles. Melody’s case plan required her
to participate in individual counseling and a parenting program at Sierra Vista
Child and Family Services (Sierra Vista), submit to random drug testing and
complete a drug and alcohol assessment and follow all recommendations. The juvenile court also ordered weekly
two-hour visitation and set a six-month review hearing in April 2012.
In November
2011, Melody entered inpatient substance abuse treatment at Stanislaus Recovery
Services and completed the program in January 2012. However, she refused to live in a clean and
sober home, opting instead to live with her girlfriend. During this time, Melody was unable to
initiate individual counseling and parenting at Sierra Vista because of her
inpatient status. Charles got a late
start in initiating his services but by March was in a drug treatment
program.
In April
2012, at the six-month review hearing, the juvenile court continued
reunification services for Melody and Charles and set the 12-month review
hearing for September 2012. That same
month, Melody moved into Redwood Family Center (Redwood), a clean and sober
living facility.
By September 2012, Melody completed drug
treatment, was in an aftercare program and had been clean and sober for 104
days. In addition, she was having
daylong visits with Christopher and participating in individual counseling and
parenting classes with Melissa Hale at Sierra Vista. However, Ms. Hale noticed that Melody was
having difficulty retaining information.
She suspected that Melody had a learning disorder and recommended that
the agency refer her for a psychological evaluation. Charles, on the other hand, completed a
parenting program but discontinued drug treatment so that he could work and
support Christopher. When he had not
returned to drug treatment by the 12-month review hearing, the agency
recommended that the juvenile court terminate his reunification services.
In
September 2012, the juvenile court set a contested 12-month review hearing for
October 2012 and ordered Melody to complete a psychological evaluation. During the two-day contested hearing, the
juvenile court received the psychological evaluation conducted by Philip
Trompetter, clinical psychologist. Dr.
Trompetter determined that Melody was mildly mentally retarded based on her IQ
and that she suffered from a nonpsychotic mood disorder that was in remission
in response to treatment. He stated that
he did not have the expertise to determine if Melody’s intellectual disability
affected her ability to utilize reunification services and recommended that the
agency refer her to Valley Mountain Regional Center (VMRC) to assess her
capacity and recommend services for her.
At the conclusion of the contested
12-month review hearing, the juvenile court continued services for Melody and
set an 18-month review hearing for January 2013. In addition, the juvenile court ordered the
agency to refer Melody to VMRC for an assessment and gave the agency discretion
to arrange overnight visits as long as Melody remained in a clean and sober living
environment. The juvenile court ordered
Melody to continue her individual counseling at Sierra Vista and her parenting
counseling at First Step and terminated Charles’s reunification services.
Over the
ensuing four months, Melody remained in Redwood and visited with Christopher
there on Fridays from 10:00 a.m. to 5:00 p.m.
She continued to test negative for drugs; however, she was reportedly
unmotivated for drug treatment. She did
not have a sponsor and minimally participated in group sessions. In addition, she was given a referral for
VMRC but did not follow through in making an appointment. As a result, she was still awaiting an
evaluation in January 2013.
Further,
there were concerns that Melody was not adequately feeding Christopher and
attending to his health during their visits.
According to the foster mother, on one occasion, Melody fed Christopher
only a few goldfish crackers during a daylong visit, explaining that he was not
hungry. The foster mother said he was
very hungry when she picked him up. On
another occasion, Melody took Christopher out in the rain even though he had an
ear infection and a cough.
In its report for the 18-month
review hearing, the agency recommended that the juvenile court terminate
Melody’s reunification services. The
agency opined that Melody made some progress in her services plan, but not
enough to demonstrate that she could independently care for Christopher.
In February
2013, the juvenile court conducted a contested 18-month review hearing. Melissa Hale testified that she had been providing
Melody individual mental health counseling and individual parenting counseling
since July 2012 and parenting group counseling since May 2012. Melody was placed on a hold status in late
October of 2012 but returned for services a month later.
Ms. Hale
further testified that she noticed that Melody had difficulty processing and
retaining information as early as August 2012.
Ms. Hale immediately tailored the material she provided according to
Melody’s ability, gave her concrete examples and checked to see if she
understood the information provided. She
believed the accommodations contributed to Melody’s progress. She said that Melody set an individual
counseling goal of stabilizing, identifying and learning to express her
emotions, but Melody told Ms. Hale she did not believe she had met her
goals. Ms. Hale could not estimate how
many more individual sessions were required to meet Melody’s counseling
goals.
Sandra
Santos, parent educator at First Step, and Paula McDowell, program manager at
Redwood, testified that Melody’s parenting skills were improving. Ms. Santos testified that Melody was engaged
in learning and Ms. McDowell testified that Melody interacted well with
Christopher during visitation. Ms.
McDowell further testified that, at one point, Melody had visitation with
Joshua and Christopher together. Melody
became overwhelmed and impatient and yelled at Joshua. However, the situation improved after the staff
discontinued Joshua’s overnight visitation and counseled Melody.
Rebecca
Gile, intake coordinator from VMRC, testified that Melody was a client of VMRC
when she was 13 years old. However, her
services were discontinued after two years because her family severed contact. She said that Melody would be reinstated as a
client and that as soon as she left Redwood, VMRC could provide her independent
living services.
Melody
testified that she was unaware that she was a VMRC client. She said she tried to contact VMRC multiple
times between September and November of 2012 but only got the answering
machine. She did not ask for help
because she wanted to do it herself.
Melody conceded that she sometimes did not remember the parenting
material that was presented and needed more counseling to meet her treatment
goals.
Following
testimony, Melody made an offer of proof that she had a sponsor until her
sponsor was incarcerated. She found a
new sponsor that she planned to meet that night.
At the
conclusion of the hearing, the juvenile court decided that it could not return
Christopher to Melody’s custody because to do so would be detrimental. In addition, the juvenile court found that
the agency provided Melody reasonable services and that her progress was
“fair.†The juvenile court terminated
Melody’s reunification services and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Melody
contends she complied with her reunification plan and benefitted from it. Therefore, she argues the juvenile court
erred in finding it would be detrimental to return Christopher to her custody.
court must return the child to parental custody unless the court finds, by a
preponderance of the evidence, that doing so would create a substantial risk of
detriment to the child’s safety, protection or physical and emotional
well-being. The failure of the parent to
regularly participate and make substantive progress in the court-ordered
reunification plan constitutes prima facie evidence of detriment. (§ 366.22, subd. (a).) If the juvenile court decides
it would be detrimental to return the child, then, by law, the court
must terminate reunification services and set a section 366.26
hearing to select a permanent plan for the child. (§ 366.22, subd. (a).)
juvenile court’s ruling at the 18-month review hearing, we consider the entire
appellate record to determine whether it contains substantial evidence, i.e.,
evidence that is reasonable, credible, and of solid value, to support the
juvenile court’s finding. (
Cal.App.4th 689, 705.) In so doing, we
view the evidence in a light most favorable to the juvenile court. (In re
Misako R. (1991) 2 Cal.App.4th 538, 545.)
If there is any substantial evidence to support the juvenile court’s
decision, we must affirm it. (
107, 113.)
In this case, the juvenile court
found that Melody’s progress was fair and substantial evidence supports that
finding. By the 18-month review hearing,
Melody had not completed parenting counseling and conceded she was unable to
retain the parenting material and manage her emotions. On that basis alone, the juvenile court could
find prima facie evidence of detrimental return because Melody did not make
substantive progress in her services plan.
Nevertheless, Melody contends that she was situated to care for
Christopher. She points out that she
maintained her sobriety for a year, had a stable residence at Redwood, and was
eligible for independent living assistance from VMRC. The essence of her argument is that she
substantially complied with her services plan and that with assistance, she
could safely parent Christopher. The
problems with her argument are threefold.
First, it ignores evidence that she made only fair progress in the
parenting component of her services plan.
Secondly, it presumes that substantial compliance is sufficient. It is not.
Compliance no matter how complete is not determinative. Rather, the juvenile court must be satisfied
that the child would be safe in parental custody. (In re
Dustin R. (1997) 54 Cal.App.4th 1131,
1141, 1142.) Finally, there is no
evidence that Melody can safely parent even with assistance. Presumably, the staff at Redwood provided
some oversight while Melody visited with Christopher at the facility. Yet, there were concerns that Melody did not
properly feed him and exposed him to inclement weather when he was sick. Perhaps the best evidence that Melody was not
yet able to safely parent Christopher was her own admission that she did not
understand or remember the parenting concepts.
We conclude substantial evidence supports the juvenile court’s
finding that Christopher could not be returned to Melody without exposing him
to a substantial risk of detriment.
Reasonableness of
Services
Melody contends the juvenile court’s reasonable services finding
was error because the agency did not arrange overnight visitation. The reasonableness of visitation is
significant because, even though the juvenile court can terminate reunification
services at the 18-month review hearing if it finds detriment, it can also
exercise its discretion and continue reunification services beyond the 18-month
review hearing if it decides that services were not reasonable. (Carolyn
R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.) In this case, however, we conclude
substantial evidence supports the juvenile court’s reasonable services
finding. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)
Here, the juvenile court granted the
agency discretion to arrange overnight visitation at the 12-month review
hearing. Thus, the question on review is
whether the agency acted reasonably in the months between the 12- and 18-month
review hearings in not exercising its discretion. We conclude that it did. During that interim period, Melody was caring
for Joshua overnight on weekends and Christopher during the day on
Fridays. However, she became overwhelmed
and verbally abusive to Joshua. As a
result, Redwood had to put her visits with Joshua on hold. During this same time, Melody was not
properly tending to Christopher’s basic needs.
Under the circumstances, the agency could reasonably conclude that if
Melody could not properly care for Christopher during the day and if overnight
visitation overwhelmed her then she was not prepared to care for Christopher
overnight.
Having concluded substantial
evidence supports the juvenile court’s reasonable services finding, we find no
error in its orders terminating Melody’s reunification services and setting a
section 366.26 hearing.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this
court.
statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
