Darla R. v. Superior Court

Filed 10/12/07 Darla R. v. Superior Court CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

A. M., born in November 2005, was made a dependent of the Contra Costa Juvenile Court in October 2006. (Welf. & Inst. Code,  300.)^[1] Pursuant to rule 8.452 of the California Rules of Court, his mother, Darla R. (petitioner), has filed a petition for extraordinary writ review of an order setting a hearing to select and implement a permanent plan pursuant to section 366.26 (hereafter .26 hearing). She contends reasonable services were not provided to her as a developmentally delayed parent and Contra Costa County Bureau of Children and Family Services (Bureau) did not establish that return of A. M. to her would create a substantial risk of harm to him.

Background

A. M. was born in November 2005 at 23 weeks gestation and was severely medically fragile, having received diagnoses of chronic conditions including microcephaly, lung disease and osteopenia. In April 2006, while A. M. remained hospitalized,^[2]the Bureau received a referral alleging caretaker incapacity, and there were significant concerns about petitioners ability to adequately care for and supervise A. M. because petitioner is significantly developmentally delayed. Additionally, petitioner and other family members were not visiting him regularly or communicating with medical and social work staff to learn how to care for him.

On May 9, 2006, the section 300 petition was filed alleging: (1) petitioner had significant developmental delays which impaired her ability to provide for A. M.s exceptional medical needs; (2) A. M.s severe medical problems required specialized care which petitioner was unable to provide due to her significant developmental delays and lack of support; and (3) petitioner failed to visit A. M. regularly while he was hospitalized, had not bonded with him, and had not communicated with the medical staff to learn about the nature of his problems. The next day A. M. was ordered detained and placed in the Bureaus custody.

Jurisdiction/Disposition Report

The Bureaus July 2006 jurisdiction/disposition report stated that petitioner was assessed as being significantly developmentally disabled, resided with her mother, had no notable work history, and had not demonstrated the capacity to live independently.

The report noted that Bureau had: referred petitioner and A. M. to the Regional Center of the East Bay (Regional Center), referred petitioner to Through the Looking Glass (TLG) for assessment and intervention, arranged visitation for petitioner and A. M., and provided petitioner transportation assistance. In April 2006, a Regional Center case manager met with petitioner at home to begin the intake process and arrange for petitioner to have testing for services eligibility. During the initial assessment, the case manager surmised that petitioner would not be able to provide adequate care for A. M. given the nature of her developmental disability and the fact that the home environment was dangerous to A. M..

The report stated that A. M.s numerous medical problems would require much attention and follow-up, and his prognosis depended on his caretakers ability to communicate with social workers, medical personnel and other services providers, and to administer his medications, make sure his medical equipment functioned properly and keep scheduled medical appointments. Petitioner had not demonstrated a level of commitment indicating an intention to assume full care and responsibility for A. M.. She had visited A. M. only once since his hospital discharge, had declined to accompany him to a follow-up medical appointment, and had failed to begin to bond with him.

On July 26, 2006, a guardian ad litem was appointed for petitioner; and, on August 28, the section 300 petition was sustained as to allegations that A. M. was born with severe medical problems requiring specialized care and petitioner had failed to visit him regularly, bond with him, and communicate with the medical staff to learn more about his medical problems.

Petitioners reunification plan required her to demonstrate her ability and willingness to have custody of A. M.; meet his physical, emotional, medical and educational needs; consistently, appropriately and adequately parent him; and, show her ability to adequately care for his special needs. Petitioner was to receive a developmental evaluation from the Regional Center; attend all scheduled appointments; follow treatment and intervention recommendations; receive a mental health assessment, counseling and other available mental health services from TLG; participate in a TLG parenting support program, including home-based parent/child intervention services and how to care for medically fragile infants; and, cooperate with the Regional Center to address A. M.s developmental needs.

In August 2006, petitioner was notified by mail of her eligibility for Regional Center services; the letter recommended parenting classes and independent living skills training.

An October 2006 Bureau memo regarding petitioners ability to provide for a medically fragile infant stated that the Regional Center had made numerous efforts between May and October but was unsuccessful at scheduling an appointment for a psychological evaluation. In September, petitioner was notified by mail that her Regional Center case would be closed in mid-October if she failed to contact the Regional Center or if its case manager could not reach her. In late October, the Regional Center case manager informed the Bureau social worker that petitioners case was closed due to the inability to contact petitioner. The memo reported that petitioner and the maternal grandmother arrived on time for the first assessment meeting at TLG, petitioner was an hour late for the second meeting, and petitioner was so late for the third appointment that it was cancelled. Subsequent meetings were suspended while the foster parents, in whose house the meetings were held, were traveling. A summary of parent/child visits and medical appointments showed petitioner cancelled several visits and arrived late for many medical appointments. The Bureau concluded that petitioner and the maternal grandmother continued to demonstrate very limited interest in caring for A. M.s special needs, had not consistently visited him to promote any bonding, and had had no communication with doctors, medical staff or social workers to participate in case planning or learn how to care for A. M., who remained medically fragile.

TLG Parenting Evaluation

A January 23, 2007 parenting evaluation report stated that petitioners ability to provide adequate care and supervision for a medically fragile child was evaluated during 11 sessions over a three-month period. It noted that the Regional Centers case manager said petitioner had been unresponsive to attempts to contact her, petitioner said she had not called the case manager and could not remember being called by her. The evaluation noted that bathing, preparing food for A. M. and feeding him were too stressful for petitioner, and that petitioner had difficulty recognizing when A. M. was hungry or tired. It also stated there appeared to be little connection between petitioner and A. M. She was not well attuned to his needs and tended to take care of herself first.

The evaluation concluded it was not clear whether petitioner could follow through with what she needed to do. She had not yet contacted the hospital social worker to set an appointment to learn to care for A. M.s needs, replaced her lost identification, or contacted the Regional Center case manager. Her inability to comfort A. M. when he was distressed was a serious concern. The evaluation report recommended that petitioner receive the necessary services from the Regional Center as appropriate for a person with an intellectual disability, and the family needed to demonstrate competence in managing A. M.s medical needs. However, the report noted that at each session petitioner was asked whether she had contacted the Regional Center case manager and petitioner consistently responded not yet.

March 2007 Status Review Report

The Bureaus March 21, 2007 status review report stated petitioner continued to demonstrate insufficient comprehension of A. M.s medical needs and ability to ensure his safety and good health. Petitioner said when A. M. was returned to her home and care she would remove his oxygen tube because he no longer needs it. She had made no attempt to meet with his medical providers to better understand his medical needs. He remained a medically fragile infant requiring weekly in‑home services. Petitioner had difficulty changing his diaper, bathing, feeding and holding him. She was unable to read his cues and discern whether he was in distress, happy or content. Petitioner still had not contacted her Regional Center case manager. She continued to miss some of A. M.s medical appointments and, at appointments, failed to ask questions regarding his medical needs.

A. M. continued to receive continuous oxygen therapy and oxygen and heart monitoring as well as numerous daily breathing treatments. He has weekly in‑home occupational and physical therapy services. At a March 2007 medical appointment, petitioner had difficulty holding A. M. so he could be examined and he became agitated and distressed. She also failed to call the doctor regarding A. M.s test results and failed to attend his medical follow‑up visit. The Bureau remained alarmed and concerned with petitioners lack of attendance and participation in A. M.s medical treatment and appointments, and she had not learned to care for a medically fragile infant. It concluded that, although petitioner loves A. M., she is overwhelmed and intimidated by the thought of caring for him. Despite 12 months of reunification services, petitioner had not completed her case plan objectives. The Bureau recommended termination of petitioners reunification services and setting of a .26 hearing.

July 2007 Status Review Report

The Bureaus July 6, 2007 status review report noted that A. M.s physical development had improved and he was able to breathe on his own, without oxygen. Petitioner continued to miss numerous medical appointments scheduled for A. M. His pediatrician reported that petitioner has never inquired about his medical treatment. Petitioner said she could care for A. M., and just needed to take a parenting class. However, she remains uncomfortable and has difficulty attending to his basic needs. She cannot change his diaper in a timely manner and he is agitated and easily distressed in her presence. The report concluded that petitioner was unable to care for him and provide him with a safe living environment, and recommended terminating reunification services to her.

July 2007 Status Review Hearing

At the July 25, 2007 contested 12-month status review hearing, Bureau social worker Valerie Memnon testified she had been the social worker for petitioner and A. M. since November 2006. Memnon said she learned in March 2007 that the Regional Center does not offer parenting classes for medically fragile infants. Thereafter, Memnon requested that petitioner attend appointments with all of A. M.s service providers to ask questions about his medical conditions. Memnon believed that was sufficient parenting support for petitioner. Memnon said A. M. no longer required breathing treatments and a caregiver would not need any specialized medical training to care for him. However, she said he was still medically fragile, was 50 percent below his developmental target, and continued to see a pulmonologist, cardiologist, internist, nephrologist and occupational therapist. She said, during the two visits she observed, A. M. was not in danger and there was no significant risk to him. Memnons main criticism of petitioner during the two visits was petitioners inability to recognize A. M.s cues, communicate with him and engage with him as he wanted.

Memnon concluded that petitioner was unable to understand A. M.s medical needs, was unable to adhere to a medication schedule for him, and was unable to differentiate between when he was fussy and when he needed medical attention. She also concluded that even if petitioner had every service available to her, she would not be ready in six months to assume A. M.s care because she was unable to care for his basic needs and there was no connection between them.

Memnon said she had encouraged petitioner to contact the Regional Center. She also said petitioner had requested services for independent living, and the Regional Center told Memnon they would not provide in-home parenting teaching. Memnon said at that point there was really nothing the Regional Center could do to help reunify petitioner and A. M.

The court found that reasonable services had been provided and that returning A. M. to petitioner would create a substantial risk of detriment to his physical or emotional well-being. The court found that further services would not change the result and there was no reasonably probability that reunification would happen within the next review period. The court ordered reunification services terminated and set a .26 hearing for November 8, 2007.

Discussion

I. Reasonable Reunification Services Were Provided

Petitioner contends there is insufficient evidence that reasonable reunification services were provided that were tailored to her developmental disability needs. In particular, she argues that although TLGs report stated that the Regional Center provides parenting services regarding medically fragile babies, the Regional Center did not provide such classes and no further such services were explored by the Bureau. She argues that as a result, she was not able to carry out TLGs recommendations as ordered by her reunification plan.

A finding that reasonable reunification services have been provided must be made upon clear and convincing evidence. [Citation.] (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) We review such finding for substantial evidence. (Ibid.; Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) In doing so, we view the evidence in the light most favorable to the judgment; and, if the juvenile courts finding is supported by substantial evidence, it cannot be disturbed. (Angela S., at p. 762; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Reunification services should be tailored to meet the needs of a particular family. (In re Alvin R., at p. 972.) Services will be found reasonable if the [Bureau] has 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 . . . . [Citation.] (Id. at pp. 972-973.) The test is not whether the services provided were the best that might be provided, but whether they were reasonable under the circumstances. (In re Misako R., at p. 547.)

A developmentally disabled parent is entitled to services responsive to the familys special needs in light of the parents particular disabilities. (In re Victoria M. (1989) 207 Cal.App.3d 1317.) In re Victoria M. recognized that regional centers are specifically designed to provide services to developmentally disabled persons. (Id. at p. 1329 & fn. 8.)

We conclude that substantial evidence supports the courts implied finding that petitioner was provided reunification services that were adequately tailored to her developmental disability. Petitioners developmental disability was apparent to the Bureau from the outset and it referred her to the Regional Center for a developmental and psychological evaluation. Following TLGs evaluation, TLG recommended that petitioner receive services from the Regional Center. The Regional Center informed her of her eligibility for services and recommended parenting classes and independent living skills training. As we see it, the problem was not the inadequacy of the Regional Centers services, but petitioners unwillingness to follow through with contacting the Regional Center case manager to schedule an appointment for an initial psychological assessment. Nothing in the record suggests that petitioners developmental disability rendered her incapable of contacting the Regional Center case manager. Until petitioner was properly assessed by the Regional Center, its services could not be appropriately tailored to meet her needs. Petitioner has failed to show that reasonable reunification services were not provided.

II. Substantial Evidence Supports the Finding of Detriment

Petitioner also contends there was insufficient evidence to support the juvenile courts finding that A. M.s return to her would create a substantial risk of detriment to his physical or emotional well-being. She asserts that, at the 12-month review hearing, Memnon testified A. M. was currently healthy, no longer needed breathing treatments, and a caregiver would not need special medical training to care for him. She notes that during her two visits with A. M. observed by Memnon, A. M. was not in danger or at significant risk. She argues, [t]he bases for sustaining the petition are no longer valid because A. M. is healthy and his caretaker does not need specialized training.

We conclude substantial evidence supports the courts finding of detriment. Abundant evidence in the record establishes that petitioner is unable to read A. M.s cues as to how he is feeling and what he needs. A. M. continues to be a medically fragile infant with multiple medical problems requiring particularized and consistent attention and intervention. The evidence establishes that petitioner is unable to understand A. M.s medical needs, provide for his basic needs such as diaper changing, feeding and holding, and follow through on his medical and other appointments. Based on this evidence, the court reasonably concluded that A. M.s return to petitioner would create a substantial risk of detriment to his safety and physical and emotional wellbeing.

Disposition

The petition is denied on the merits. (Cal. Const., art. VI,  14; Cal. Rules of Court, rule 8.452; Kowis v. Howard (1992) 3 Cal.4th 888, 894.) Because the .26 hearing is set for November 8, 2007, our decision is immediately final as to this court. (Cal. Rules of Court, rule 8.264(b).)

SIMONS, J.

We concur.

JONES, P.J.

GEMELLO, J.

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^[1] All undesignated section references are to the Welfare and Institutions Code.

^[2] A. M. was hospitalized from birth to early July 2006.