Opinion
A157952
07-08-2020
In re DARRYL T., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. K.T. Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JD02889701)
Appellant K.T., the mother (Mother) of Darryl T., a dependent child, appeals from findings that the return of Darryl to her care would create a substantial risk of detriment to his safety, protection, or physical or emotional well-being (Welf. & Inst. Code, § 366.22, subd. (a)), and orders terminating reunification services, directing that Darryl remain in foster care, and continuing Mother's unsupervised visits. The whereabouts of the minor's father (Father), have at all material times been and remain unknown.
All statutory references are to the Welfare and Institutions Code.
The sole issue presented is whether the finding of detriment is supported by substantial evidence. Concluding that it is, we shall affirm the challenged ruling.
FACTS AND PROCEEDINGS BELOW
On October 23, 2017, after learning that Darryl, who was seven years of age, had been hospitalized for about three weeks due to a bone and bacterial infection in his left leg, and conducting an investigation, the Alameda County Social Services Agency (Agency) filed a petition (§ 300, subds. (b)(1), (g)) alleging that Mother delayed in obtaining medical treatment for Darryl when his left leg was swelling due to infection, and that the minor was in need of protection. Darryl had been admitted to Children's Hospital in Oakland suffering septic shock and was diagnosed with osteomyelitis and "Methicillin-resistant Staphylococcus aureus." Due to the delay in treatment, he was at risk of losing both legs. The Agency believed Mother failed to attend scheduled meetings with Darryl's medical team designed to educate her about the treatment Darryl would require from her after discharge.
Together with the section 300 petition, the Agency filed a "Detention/Initial Hearing Report" recommending that Darryl be detained. Among other things, the report asserted that a section 300 petition had been filed in Contra Costa County on behalf of Darryl more than five years earlier alleging general neglect of Darryl, and that he was then at substantial risk because Mother, then herself a dependent minor, failed to take Darryl's medication with her when she ran away from a placement in Fresno, and failed to provide him adequate shelter and assistance. That petition was sustained on May 25, 2011, and Mother received family maintenance services from April 14, 2011 to August 29, 2012.
At the initial hearing on the petition, a child welfare worker (CWW) testified that Mother had taken Darryl to an emergency room at Kaiser Hospital in September 2017, because he was limping and in pain. Although an X-ray revealed no injuries, his swollen left leg was placed in a splint. Mother was given a prescription of Motrin for Darryl, and told that if the swelling in his leg did not diminish she should seek further medical treatment. The swelling did not go down, Mother returned to the emergency room with Darryl, and tests showed he had a bone infection that had worsened. Darryl was then transferred to Children's Hospital, where two surgical procedures were conducted on his left leg.
Asked why she had previously missed appointments at Children's Hospitals to clean his infection, and failed to attend a meeting with Darryl's medical team to learn how to attend to his medical needs, Mother said she missed the first appointment because she was sleeping, and when she awoke it was late in the day and she had no time to go to the hospital. As to the missed meeting with the medical team, Mother stated, without elaboration, that she had to go to Las Vegas "for criminal court" but added that she was later relieved of the need to go there when the public defender learned her child was in the hospital.
The CWW who interviewed Darryl said he appeared healthy, well nourished, and had no visible marks or bruises indicative of child abuse. However, Darryl's doctor and a nurse told the CWW in October 2017, that Darryl's mother had been inconsistent in seeing him and making herself available to talk with medical staff when they needed to speak with her, as she "was always on the go," telling them she had to be in court or was otherwise occupied. Darryl's treating physician also expressed doubts whether Mother was "capable or willing to learn what [was] necessary to care for her son post discharge," which was concerning because Darryl needed a great deal of attention as an outpatient. Nurses and medical social workers interviewed by the CWW also harbored serious concerns about Mother's conduct and ability to adequately care for Darryl. Also, Mother declined the offer of assistance from an assigned public health nurse because she was then staying at the house of a cousin and did not want to bring another person into the limited living space. The treating physician told the CWW that Mother was constantly on her cell phone and inattentive during meetings with the medical team. Noting that prior to the time Mother first brought Darryl to the emergency room, she had never taken him to a medical provider nor enrolled him in school, the physician stated that if the delay in seeking medical assistance had lasted a few days longer, Darryl's left leg might have had to be amputated.
Mother's ability to care for Darryl was also compromised by her need to care for her daughter, Darryl's younger half sister. Medical social workers at Children's Hospital were unable to help Mother obtain needed daycare for Darryl and his sister because the daycare they have onsite would be for both minors to be together and interact. The "high possibility" that Darryl's contagious infection would endanger other youth eliminated the possibility that Darryl and his sister could participate in the daycare program.
Due to the foregoing developments, the Agency initiated proceedings to place Darryl in protective custody. The Agency's November 7, 2017 report to the court stated that "Darryl may be at risk of losing his legs without the proper care, medication and after-care or follow up visits." "Complicating factors," the report stated, were that Mother "did not enroll Darryl in school and [she] has not been consistent with minor's immunizations." Additionally, she "is transient and moving from one friend's home to another" and the father "is not actively present in the minor's life."
Mother reported to the Agency that Father is the biological father of the minor, but "is not listed on the birth certificate, and has not provided any financial assistance to Mother for the minor" but that Father "does hold Darryl as his biological son."
Neither Mother nor Darryl's alleged Father were present at the detention hearing held in January 2017. After the court found that a prima facie showing had been made under subdivisions (b)(1) and (g) of section 300, Darryl was detained and temporary custody was placed with the Agency, which placed Darryl in a foster home.
Prior to the 12-month jurisdictional hearing in January 2018, Mother consistently visited Darryl weekly; the visits went well during this period. Darryl had started school, had adjusted to his foster home, and a public health nurse had been assigned to visit him monthly. Mother was also caring for her minor daughter and living in her cousin's house.
The record does not indicate whether Mother's two other children were then living with her in the cousin's house.
In a November 2017 report prepared for the jurisdictional hearing, the CWW stated that Darryl was doing well in his foster placement, but also noted that Mother had been heard by a medical social worker telling him that his medical difficulties and placement in foster care were his fault due to his failure to take his medications and that both of them were "in trouble now because of him." The social worker also reported that because Mother delayed consent to surgery, and Darryl had to fast before the surgery began, he was unable to eat for two days; and during his fasting, Mother ate food in his presence.
The Agency's report also noted that Mother had herself been in foster care from the age of nine and emancipated when she was 21 and was at the time of the report still unemployed and still lacked adequate housing. Acknowledging Mother's awareness that Darryl required regular medical care and stable housing, the Agency believed that because Darryl's special medical needs had not abated, he could not safely be returned to her care. The Agency recommended Darryl remain in foster care and his health and use of medications be closely monitored, and that Mother obtain and maintain stable housing, adhere to a visitation plan, and demonstrate her ability to monitor Darryl's health, safety, and well-being by educating herself on his needs and demonstrating her ability to meet them.
In a January 2018 addendum to its November 2017 report in preparation for the jurisdictional hearing, the Agency recommended that the court sustain the petition, declare Darryl a dependent of the court, continue his out-of-home placement, and offer Mother reunification services. Mother contested the recommendations. The Agency believed Darryl was doing well in his foster home and at school despite some behavioral problems with sharing and reports that he hit other children at school. The Agency recommended that Darryl receive counseling services and continue weekly visitation with Mother. It also sought to be able to increase visitation in order to better assess the possibility of reunification.
At the January 2018 jurisdictional hearing, the court sustained the petition, adjudged Darryl a dependent of the court, and directed that Mother receive reunification services. The court also allowed Mother to have unsupervised visits, but noted that she had not made significant progress in alleviating the factors that caused Darryl to be placed in foster care.
An interim report filed by the Agency in April 2018, in advance of the six-month review stated that the cause of Darryl's continuing bed-wetting had been medically diagnosed as being due to the instability of Darryl's situation and not enuresis, as Mother believed. Moreover, Mother feared her inability to obtain suitable housing might jeopardize her current housing arrangement for herself and her minor daughter, which could not include Darryl and, even if it could, would end in May 2018. Because she was unemployed, Mother was financially unable to secure long-term housing that would include Darryl.
At the time of the interim report, Darryl was receiving individual therapy at school, appeared to be well adjusted, and was expected by school authorities to move from first to second grade. He told his CWW that he enjoyed living with his foster mother but wanted to go home, even though there was no bed for him there. Mother was then searching for housing in the Stockton area with assistance from a nonprofit program.
Just before the July 2018 six-month review hearing, the Agency issued a status review report recommending that dependency for Darryl and reunification services for Mother both be continued, with which Mother agreed. At that time, Mother was residing in a shelter, which was scheduled to end in about a month. Mother applied for an extension, but was not certain it would be granted. Mother remained unemployed but intended to resume looking for a job after she had bonded with her newborn son, with whom she was living, along with Darryl's younger half sister.
On June 28, 2018, Mother had completed her parenting class, the leader of which noted that "she attended all classes except for one which was missed because she was delivering a baby." He also observed that Mother was "an honest and straightforward student" who "used her peers for support and . . . offered her support back to them." During this period, Mother attended all of Darryl's medical appointments and reported summaries of them to his foster mother.
In April 2018, after learning Darryl had "camped" overnight with Mother and his half sister, the Agency felt the safety of Mother and her children made it necessary to discontinue overnight visits on Fridays, Saturdays, and Sundays, but allow her to continue day visits. Overnight visits were again allowed after May 14, when Mother entered a shelter.
At that time, Darryl's leg appeared to have healed, he met all of his developmental targets, had adjusted to school and foster care, and did not require summer mental health services. Also, Darryl and his foster mother seemed increasingly compatible. He liked living with her, and she had the same positive feelings about their relationship and believed herself able to meet his medical and other needs. The foster mother told the Agency that if reunification failed she would like to become Darryl's legal guardian.
For its part, the Agency remained doubtful Mother would soon be able to find employment and stable housing, ensure Darryl attended all of his continuing medical appointments, administer the medications still prescribed for him, monitor the adequacy of the counseling he received at school, and be able to collaborate with the foster mother.
The report of the court-appointed special advocate (CASA) for the six-month review hearing recommended to the court that Darryl remain in foster care, which she felt was a "good fit" because his foster mother "knew how to set boundaries and rules while still being loving toward Darryl." The CASA was impressed with Darryl's verbal and math skills and considered him a "thoughtful" child. However, the CASA was doubtful reunification would happen soon, as Mother was then living short-term in a shelter and the CASA was concerned that Darryl had slept with Mother in a car after her previous shelter expired. She was also concerned about Darryl's remaining health problems with food allergies and other sensitivities, and felt Darryl might benefit from some sort of behavioral therapy.
At the six-month review hearing on July 16, 2018, the court found by a preponderance of the evidence that return of Darryl to Mother would "create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of [Darryl]," that "out-of-home placement continues to be necessary and appropriate," and that the Agency had provided reasonable reunification services to Mother. Mother did not dispute that determination.
In a status review report filed some six months later, for the hearing initially scheduled for March 5, 2019, the CWW reported that Mother had told the Agency that, although she had secured employment, "she is couch surfing and does not have stable housing for herself and children." In addition, she "reported that she continues to look for housing outside the Bay Area for herself and her children." At the same time, she represented that she remains "engaged in her case plan activities."
The Agency also reported that in August 2018, Darryl's foster mother had expressed to the Agency her concern that he was returning to her home "extremely sick (red puffy eyes, itchy skin, vomiting) on a weekly basis." At about that time, Mother was "kicked out" of the Bay Area Rescue Mission shelter due to two unexcused absences, and she refused to return to the shelter because she would not comply with its curfew policy. Mother said she went to the shelter only because it was necessary to obtain overnight visitation with Darryl, but she would figure out something else because she was not returning to the shelter. In the meantime, she was "hopping between friends' houses, her sister's mom's house and renting hotels."
The Agency further informed the court that it had cancelled Mother's overnight visitation after learning she was not maintaining Darryl on the gluten and dairy free diet his physician had prescribed. The Agency was also concerned about his questionable condition when Mother returned him to his foster home. Mother said she thought Darryl had "grown out of" his allergies but provided no explanation for that belief. She also stated that she had no control over the food others provided Darryl when she was not present.
The Agency also remained worried about Mother's continuing inability to obtain stable housing and unwillingness to use a shelter. When asked whether she could provide stable housing for herself and her three children, Mother stated that "I'm not going to stay in no shelter because I have a life and I'm not trying to be in at 9 p.m." Finally, the Agency was concerned about Mother's increasing resistance to meetings with her CWW and others to jointly assess the progress she was making in reunifying with Darryl.
Darryl, who at this point was eight years old and in the first grade, seemed to be meeting his developmental goals and was performing at grade level at school, but did not attend school regularly and for that reason was assigned a behavioral coach. In early October 2018, Mother asked that Darryl be assessed for special education. During this period, Darryl's behavior was sometimes "extremely dysregulated." On one occasion when he physically "acted out," the cafeteria had to be cleared out to ensure the safety of other students. Darryl "displayed a blank look on his face and it appeared he had dissociated from reality." Some teachers wanted to call the police but mental health counselors were called instead and were able to calm Darryl. For this behavior, Darryl was suspended from school for a day and a half. He was also receiving individual therapy once a week to help develop his coping skills and techniques to deal with his frustration.
The report informed the court that in November 2018, the Agency completed an adoption assessment finding Darryl not adoptable as he was receiving "Intensive Services Foster Care" support services. According to the CWW, "[a]t the writing of this report, a permanent planned living arrangement with the goal of legal guardianship is the permanent plan as it would be detrimental to remove Darryl from the care of his current caregiver."
The contested 12-month review hearing was scheduled in February 2019, but continued because the Agency informed the court Mother had recently obtained housing and was making progress in reunifying with Darryl. The contested hearing began on March 5, 2019, but five additional hearings were conducted on March 20, April 2, April 17, May 10, May 22, and June 3. As the 18-month date was April 19, the proceedings effectively constituted a combined 12- and 18-month review of the progress of reunification.
Mother testified at the hearing. When asked on the March 20 hearing date whether she was concerned about the "tantrums" requiring Darryl to be removed from the class, Mother stated that she did not think it was a problem for other students because a teacher she talked to "didn't say he was removed from the class. They said that when he has the tantrums the only thing they were concerned about was Darryl hurting himself because he hits his head on the wall and kick[s] the doors. They said that's what they were concerned about, and that's why they wanted him to see his behavioral therapist to see what's going on as far as the major act out."
In her testimony, Mother further stated that Darryl had an individualized education program (IEP) and teachers at the school recommended that he see a behavioral therapist. Mother felt that the therapists the Agency wanted him to see all erroneously labeled Darryl as depressed and emotionally disturbed but failed to see that his emotional state resulted instead from "being in foster care." As she stated, "[e]very thing about this case is what's making my son emotional[ly] depressed, emotionally unstable. This whole case is what's wrong with my son. . . . How do you think he's supposed to feel? He's bouncing from home to home. He's missing activities and things we've been doing. Like the family cycle has been broken. Like how is my son supposed to act? . . . He's not at home with us is what's wrong with my son. It's real simple to me. I feel like this is the whole problem. This case is the problem. Like, him being take[n] from my home for really no reason in my mind is the problem." Mother stated that she found a specific therapist from outside the school who realized that Darryl's problem was not at school but related to being in foster care, but this idea was "shot down" by the social workers.
Mother stated that she obtained housing a month earlier and Darryl had a room there for his weekend visits where he could keep his belongings. She keeps his medications at the home and there had been no problems. When Darryl was at her house the previous weekend, he was itching and had chapped lips; she thought it was an allergic reaction and provided him hydrocortisone.
Mother admitted that in February she missed two visits with Darryl, one because she was late and the other because it was never scheduled, but she had not since then missed any visit.
Mother testified that because Darryl's foster mother did not provide him adequate skin care and clothing, and meet his dietary needs, she tended to satisfy those needs.
Glorialee Fields, who became Darryl's CWW in October 2017, testified at the hearing. In her opinion, reunification services for Mother should be terminated because her visits with her son had been inconsistent—particularly during the last six weeks in December and January when she made no visit—and she failed to follow-through in addressing his developmental needs and did not adequately support and facilitate his medical treatment.
For example, at the continued review hearing on April 17, Fields explained that the "therapeutical behavioral coaching" Darryl received three times a week at school, which Fields considered essential, required Darryl to participate in an IEP, but his participation in that program was possible only if Mother, who was a judicially designated "holder of educational rights," approved of that in writing, and Mother refused to sign off. The services provided by the IEP were important for Darryl because of the difficulty he had in expressing his emotions. When he encountered challenges "[h]e will shut down. He will throw things. He will walk out [of] the classroom." The extra support he would obtains from the IEP "will help him to stabilize his emotions in class so that he can stay in class and won't be sent out of class" and will be "able to learn techniques to use when he's disappointed or upset." Fields testified that Mother's current delay in approving the IEP was inimical to Darryl's interests.
At the close of the April 17, 2019 hearing, the court declared that, pursuant to section 319, subdivision (g), "[t]he educational rights of the child by the mother are hereby temporarily limited." The court also directed that the co-holder of rights, Stephanie Stone, the CASA, remain in place. Stone and Mother were previously co-holders of educational rights for Darryl and both had to agree to the educational and developmental programs proposed for Darryl.
When the 18-month hearing was completed in June, the court found that the Agency had complied with the case plan by making reasonable efforts to return Darryl to a safe home and completing the necessary steps to finalize the child's permanent placement. The court also found by a preponderance of the evidence "that return of the child to [Mother] at this time would still create a substantial risk of detriment to the child's safety, protection, or physical or emotional well-being. This is because Mother has not yet participated regularly and made substantive progress in court ordered treatment programs."
Commenting on its view of the case, the court stated as follows: "This case began after findings were made that Mother failed to take the minor to the doctor in a timely manner after noticing the minor had a swollen left leg. The child was admitted to the hospital in septic shock. The delayed medical attention placed him at risk of substantial medical harm, including in the reported potential loss of his leg.
"[Mother] failed to follow through after the minor's hospitalization. She has not participated in scheduled meetings at Children's Hospital to learn more about how to care for and treat the minor after his hospital discharge. This is significant for several reasons. Among them the treating doctor recommended the child be monitored by a physician through regular visits through the year 2020. The evidence in this case has established that during the last reporting period, Mother lacks appreciation for the seriousness of the event that brought Darryl under Juvenile Court jurisdiction in the first instance.
"[Mother's] testimony was that the child, . . . was removed from her care for, in her words, no reason and for circumstances around the surgery but not due to anything she did. In fact, Mother's testimony has it that she was adequately attending to the minor's needs when CPS became involved. . . . [¶] [M]other has not adequately addressed the minor's physical health and allergies. She has assumed incorrectly that this child outgrew certain allergies. Mother said she cannot control what other people give her son to eat. Mother has not demonstrated the understanding of how to address her son's allergies and . . . is unfamiliar with medications the minor must take and when he must take them."
Though the court had not finished stating its findings, Mother then erupted in a tirade, starting with, "It's bull shit. Half the shit you saying ain't even correct. First of all, I know what the fuck what the process is. . . . [¶] Even the foster mom don't even want him. She's emailing me telling me when the fuck are you gon take him back. Yesterday she emailed me when are they going to give you your son." At that point the court stated that "[w]e will go off the record now.
After the passage of an unindicated period of time, the court went back on the record in order to "make the record as to what happened when we went off the record." Among other things, the court stated that Mother "spoke in a raised voice directing her comments on occasion to minor's counsel and to the court, but it felt like a general expression of dissatisfaction. Mother is very upset and appeared to be crying through her words and used much profanity. The court ultimately directed her to stop again after giving her an extended period of time to air her complaints. Mother was given an opportunity to talk privately with her lawyer about the current posture of the case. Mother was given an opportunity to excuse herself if she felt unable to listen to the court's articulation of today's decision. That's kind of like where we stopped. Mother and counsel went out to talk and we are now on the other side of that." --------
After the proceedings went back on the record, the court asked counsel whether either of them wanted to memorialize anything for the record. Mother's counsel did not, but counsel for the Agency said that during the break she learned that Darryl had accompanied Mother to the court and was with her in the hallway. When counsel went there to check, she learned they had left, and went to the parking lot to find them but did not. After pointing out that Mother and Darryl were properly together because that day was an extension of Mother's weekend visit, counsel expressed her concern about Darryl's well-being, "given the level of animosity and distress his mother was expressing here in the courtroom," and asked that the extended visitation be terminated and the Agency be directed to check whether Darryl's safety or well-being was at risk. The court allowed the Agency to check Darryl's condition, but denied counsel's request to terminate the current visitation.
Resuming the statement of its findings in the absence of Mother, the court stated that "it is clear [Mother] has not appropriately addressed the minor's educational and emotional needs. By her own testimony she knew her son was having tantrums at school and even destroyed a classroom. Mother testified she did not understand why he did that. Mother knew that professionals supporting the child's needs felt it important to have the child assessed for an IEP and for the youth to receive counseling. Mother, who acknowledges she did not understand the specifics of a behavioral plan or an individual education program, decided that she knew better and declined services that were offered or created delays in following through that cut against her child's best interest."
The court found Mother "obstructed progress through her delays and missed meetings" and noted the conflict between her testimony in court that she was opposed to certain support services from the beginning and the various explanations she gave child welfare workers for failing to make appointments or follow through "that did not appear related to her opposition voiced during the trial." The court deemed Mother's belief that Darryl does not now need to see a therapist "unreasonable and defies everything we know about what young Darryl has been through. Even if Mother is correct that some part or even a large part of Darryl's acting out is related to the trauma he's experiencing being separated from Mother and siblings, it does not follow that denying him the opportunity to participate in counseling or declining the services would advance the child's best interest." As the court saw it, Mother "lacks insight as to how her actions and decisions have jeopardized the minor and the ability of others to meet the child's needs."
Notwithstanding this assessment, however, the court acknowledged that Mother possessed some significant strengths, and had been and remained confronted with significant difficulties not of her own making. Despite meager assets, the absence of a supportive family, and the demands of three children, one of whom was an infant, she ultimately managed to secure a stable residence and obtain gainful employment, appeared able to manage the demands of her job, provide for the children with whom she lived, and more consistently visit Darryl. Also, as the court pointed out, the "reality" was that Mother "cares for two other small children and transportation with or without a car sometimes can create difficulty in making appointments and making them on time."
Finally, based on the finding that returning Darryl to Mother would create a substantial risk of detriment to his physical and emotional well-being, the court terminated reunification services, ordered the continuation of visitation as previously ordered, and found clear and convincing evidence that "a section 366.26 hearing would not be in the child's best interest" because Darryl "is not a proper subject for adoption" and "[t]here is no one able or willing to become the child's legal guardian as of today's hearing."
DISCUSSION
As we have said, the sole issue presented by this appeal is whether the finding, by a preponderance of the evidence, that return of Darryl to Mother would create a substantial risk of detriment to the child's physical or mental well-being is supported by substantial evidence.
The Standard of Review
Until reunification services are terminated, there is a statutory presumption that a dependent child will be returned to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) Section 366.22, subdivision (a) requires the juvenile court at the 18-month review hearing to return the child to the custody of the parent unless it determines, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment to the child's physical or emotional well-being.
The Agency has the burden of establishing detriment. (§ 366.22, subd. (a).) The reviewing court considers the entire record to determine whether there is substantial evidence to support the juvenile court's conclusions. Due to the juvenile court's ability to observe the demeanor of the witnesses and get "the feel of the case," the reviewing court reviews the record in a light "most favorable to the court's order and indulges every inference in favor of the court's decision so long as those inferences . . . rest on the evidence" [citation]' not 'mere speculation or conjecture.' " (In re R.M. (2009) 175 Cal.App.4th 986, 988-989.)
Mother's Claims
Mother's contention that return of Darryl to her custody would not be detrimental is based on the claims that (1) she had "eliminated the problem that necessitated jurisdiction in the first place," as shown by the testimony of Fields that she "attended all medical appointments related to the minor's legs"; (2) she "had adequately, successfully and properly" attended all of the minor's other medical needs and appointments, as shown by all of the Agency's reports; (3) she completed her parenting class; (4) she had been gainfully employed since August 2018, and secured housing in February 2019; and (5) Darryl loved his mother and siblings and wanted to live with them.
The Relevant Evidence of Detriment
Some of Mother's claims are true, as the trial court expressly acknowledged; but Mother's central claim—that she had "eliminated the problem that necessitated jurisdiction in the first place," as shown by evidence that she attended all medical appointments related to Darryl's leg infection—is not among them. The assertion is belied by the record and unsustainable.
The juvenile court initially sustained the petition because Mother delayed seeking medical assistance for an infection that came close to requiring the amputation of Darryl's leg. But it was also sustained because of Mother's failure to attend the postsurgical meeting at which she was to be taught how to open Darryl's wound and "wash out" infection. When asked why she did not show up, Mother said she was sleeping. She explained that she missed another meeting with medical staff because she had to attend a court hearing in Las Vegas but admitted the hearing was at some unexplained point continued due to Darryl's hospitalization. Mother's failures to adequately focus her attention on Darryl's medical and developmental needs are amply chronicled in the many Agency reports to the court in conjunction with the numerous review hearings. As we have earlier described, Mother failed to be present at several important meetings with the physicians, nurses, and hospital social workers who treated or attended Darryl's medical and other needs, and with the CWW and others charged with assessing her compliance with reunification services.
Indeed, Darryl's treating physician, nurses and social workers who also assisted Darryl, as well as the CWW assigned to him, all felt Mother's failure to attend important meetings with medical staff to learn how to clean his leg wound and deal with his dietary problems and allergies, cast doubt on her ability to provide Darryl the daily support he required. Even at the detriment hearing that took place more than 18 months after Darryl was removed, Mother was confused about how to administer his medications for asthma, about which she had recently been instructed. She also failed to seek medical assistance or at least call an advice nurse when Darryl had an allergic reaction during a visitation with her.
The Findings of the Juvenile Court
It is abundantly clear from the juvenile court's explanation of its finding of detriment that the main reason was Mother's failure to eliminate "the problem that necessitated jurisdiction in the first place." As the court stated, Mother "failed to follow through after the minor's hospitalization," and that "over the last reporting period, Mother lacks appreciation for the seriousness of the event that brought Darryl under Juvenile Court jurisdiction in the first instance."
The court's statement of findings also made clear that the reason Mother was insufficiently attentive to Darryl's medical and emotional needs during the 18-month review period was her failure to appreciate "the seriousness of the event that brought Darryl under Juvenile Court jurisdiction in the first instance." Darryl was removed from her care, Mother believed, not for "anything she did" but for "no reason." As the court observed, "the mother's testimony has it that she was adequately attending to the minor's needs when CPS became involved"; and that is why, during the 18-month review period, she "has not adequately addressed minor's physical health and allergies."
The court was aware of and admired the loving relationship between Mother and Darryl and his desire to live with her and his younger sister, but it reasonably concluded that these positive factors were outweighed by Mother's failure to appreciate the gravity of Darryl's medical and emotional needs and the connection between the satisfaction of those needs and her conduct. The failure to appreciate that connection was the reason Darryl was removed from her custody in the beginning, and the court reasonably concluded that it had not been adequately rectified. As the case law and the dependency statutes make clear, the purpose of the reunification process is " 'to overcome the problem that led to removal in the first place.' " (In re Mary B. (2013) 218 Cal.App.4th 1474, 1483, citing Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748; § 366.21, subd. (e).)
The Agency argues, and we agree, that even if Mother could show, as she has not, that she fully complied with her case plan, satisfied all of Darryl's medical and emotional needs, and attended all meetings related to those needs, that would not necessarily guarantee Darryl's return to her custody, because "[s]imply complying with the reunification plan by attending required therapy sessions and visiting the children is to be considered by the court; but it is not determinative. The court must also consider the parents' progress and their capacity to meet the objectives of the plan; otherwise the reasons for removing the children out-of-home will not have been ameliorated." (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143; accord, Blanca P. v. Superior Court, supra, 45 Cal.App.4th at pp. 1747-1748.)
The order Mother challenges was based on the findings that, as the court stated, she still "lacks insight as to how her actions and decisions have jeopardized the minor and the ability of others to meet the child's needs," and that this continuing deficiency would create a substantial risk of detriment to Darryl's physical and emotional health if he were now returned to her custody. The findings are unquestionably supported by substantial evidence.
The Legal Authority Mother Relies Upon is Inapposite
The case Mother primarily relies upon, because she considers it most factually similar to this case, is In re Yvonne W. (2008) 165 Cal.App.4th 1394 (Yvonne W.). In that case, the minor, Yvonne, was removed from parental custody because of the mother's use of drugs. During the first six months of reunification, the mother, Celeste, participated in a residential drug treatment program, completed a parenting class, participated in therapy, submitted to psychological evaluation and random drug testing. According to her therapist, Celeste "was knowledgeable about positive parenting techniques, took responsibility for her bad choices, and showed empathy for Yvonne." (Id. at p. 1397.) She and Yvonne had regular unsupervised visits, which went well and progressed to overnight and weekend visits. Yvonne remained in her group home until a foster care placement could be found. At the end of the six-month review period, Celeste gave birth to a baby boy who remained in her care. (Ibid.)
After Celeste was discharged from residential drug treatment she continued to make progress in individual therapy, and maintained her sobriety, but was having difficulty finding stable housing and temporarily lived with relatives. Yvonne remained in her group home, but was having behavioral and emotional problems for which she was receiving therapy. "Yvonne loved Celeste and felt emotionally connected to her," but also felt "a great deal of rage toward her," because she "wanted to live with her mother and baby brother." (Yvonne W., supra, 165 Cal.App.4th at p. 1398.) An evaluator recommended that Yvonne continue in conjoint therapy with her mother, and receive referral for an IEP. At the 12-month review hearing, the court found that the mother had made substantive progress with the provisions of her case plan but that returning Yvonne to her would create a substantial risk of detriment and ordered six more months of reunification services.
In a report prepared for the 18-month hearing, the social worker stated that Celeste had found "appropriate housing" at St. Vincent de Paul Village shelter, where she could stay for two years. The report stated that Celeste had complied with reunification services "and was able to provide a safe environment" for Yvonne and her six-month-old son. At that time, Yvonne was in a foster home capable of providing supervision and emotional support, was doing well, and had attained "emotional stability." She was also having unsupervised visits with her mother at the shelter, where Yvonne had a bed and space for her personal belongings. "However, Yvonne complained that she sometimes felt uncomfortable visiting Celeste at the shelter and that she often felt sick after visits. [Celeste] reported that Yvonne sometimes had a negative attitude toward people at the shelter and appeared 'to look down' on them. Yvonne expressed her fear of being homeless. She was addressing these and other concerns in therapy." (Yvonne W., supra, 165 Cal.App.4th at pp. 1398-1399.)
At the close of the contested 18-month hearing, the court found, by a preponderance of the evidence, that returning Yvonne to her mother's custody would create a substantial detriment to Yvonne's physical and emotional well-being "because Yvonne had expressed fear, anxiety and unhappiness with Celeste's living arrangement." (Yvonne W., supra, 165 Cal.App.4th at p. 1399.)
The Court of Appeal reversed this ruling because "nothing in the record shows that conditions at the shelter pose a risk of harm to Yvonne in any identifiable way. Indeed, Celeste is successfully raising her young son in that environment and is able to provide for his safety, health and well-being. Yvonne was having unsupervised weekend visits at the shelter with no reported problems other than her dislike of the shelter and its residents. A child's dislike of a parent's living arrangement, without more, does not constitute a substantial risk of detriment within the meaning of section 366.22, subdivision (a). Proving substantial detriment cannot mean merely proving that a parent's living arrangement is less than ideal. [Citation.] Celeste's limited financial resources, which require her to live in a shelter until she can obtain alternative housing, is not a legitimate ground for finding detriment. [Citation.] 'We cannot separate parents and their children merely because they are poor.' [Citation.]" (Yvonne W., supra, 165 Cal.App.4th at pp. 1401-1402.)
The portion of the opinion Mother relies on relates not to the basis of the court's detriment determination but to the different bases upon which the Agency urged the court to find detriment, which the Court of Appeal rejected, and which Mother apparently finds similar to the position taken by the Agency in this case. The agency in Yvonne W. claimed Yvonne should not be returned to Celeste because the mother and child needed to participate in conjoint therapy, Celeste needed to develop a supervision plan for Yvonne and become organized enough to participate in Yvonne's life, and Yvonne needed more time to reunify with Celeste as part of a transition plan. (Yvonne W., supra, 165 Cal.App.4th at p. 1402.)
The Court of Appeal determined that none of these reasons "overcome the presumption in favor of reunification by proving that returning Yvonne to Celeste's custody would create a substantial risk of detriment to Yvonne's physical or emotional well-being. [Citation.] Whether conjoint therapy . . . would benefit the parent-child relationship is not a proper inquiry at the 18-month [review] hearing, where the court's analysis necessarily focuses on detriment. . . . [Citations.] . . . [¶] Similarly, Celeste's lack of a supervision plan, her lack of organizational skills and Yvonne's incomplete IEP assessment do not pose any particular danger to Yvonne within the meaning of section 366.22, subdivision (a). Thus continuing Yvonne in out-of-home care based on these facts is unwarranted. [Citation.]" (Yvonne W., supra, 165 Cal.App.4th at p. 1403.)
The Agency in this case did not at the 18-month hearing engage in any improper inquiry about the benefit of prolonging reunification, as was the case in Yvonne W. Instead, it properly focused on the substantial risk of substantive detriment to Darryl if returned to his mother. Furthermore, neither the reason relied upon by the juvenile court in Yvonne W., nor the minor's dislike of living in a shelter, nor the different reasons advanced by the Agency in that case, are germane to the issue presented in this case, the mother's failure to acknowledge the seriousness of her child's medical and emotional needs and the connection between the satisfaction of those needs and the mother's conduct.
Mother's reliance on David B. v. Superior Court (2004) 123 Cal.App.4th 768 (David B.) is also unjustified because factually inapposite. The minor in that case was placed in protective custody because her mother had substance abuse and mental health problems and her father was absent. After the father was located and requested visitation, he was provided reunification services. During the 6-month and 12-month review periods, the Agency reported its concern about the father's unsuitable housing and the fact that his daughter was not "attached" to him. (Id. at p. 777.) At the contested 18-month hearing, the court the court observed that the father satisfied all of the requirements for reunification set by the agency except that he had not " 'prepared himself for the return of his child' " in that he was unemployed and lacked an apartment. (Id. at p. 787.) The court noted that the father's lack of preparedness was also shown by his questions to the social worker and foster parents about what to feed his daughter and how to make her sit still. (Ibid.)
The Court of Appeal reversed on the ground that the minor's bond with her father was an improper consideration at an 18-month hearing, at which point the issue is "whether placing [the daughter] in her father's care represents some danger to her." (David B., supra, 123 Cal.App.4th at p. 788.) Likewise, the bond between Mother and Darryl is not at all at issue in the present case. What is at issue is only whether Darryl's mother has the capacity to ensure his physical and emotional well-being if he is returned to her custody, the issue the juvenile court properly addressed at the 18-month hearing.
There are some similarities between the situations in this case and those in Yvonne W. and David B., but neither of those two cases involved a minor with severe health problems requiring close monitoring, daily administration of multiple medications, and frequent medical assistance from and consultation with health professionals. Nor did Yvonne W. or David B. involve a parent who, after 18 months of intense reunification services—as well as the services provided her years earlier after the sustaining of a section 300 petition alleging neglect of Darryl in 2011—is still unable or unwilling to appreciate the severity of her child's condition and the heightened responsibilities that condition imposes on a custodial parent. The significance of this problem at the 18-month hearing, exceeds that of the problems discussed in Yvonne W. and David B.
We conclude that Mother's stated beliefs that Darryl was removed from her custody "for no reason" and that his problems would end only if he was permitted to live with her and his siblings, together with the inadequacy of her attention to her son's medical and emotional needs during the 18-month review period, were shown by substantial evidence and would present a substantial risk of detriment to Darryl's physical and emotional well-being if he were returned to Mother's custody.
DISPOSITION
The challenged order is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.