Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for extraordinary writ. Marsha Slough, Judge. Super.Ct.Nos. J209605 & J209606
Au Lang T.N. Le for Petitioner.
No appearance for Respondent.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Real Party in Interest.
OPINION
McKinster, J.
Andrea W. (Mother) petitions for an extraordinary writ vacating the juvenile court’s order setting a hearing to consider terminating her parental rights or establishing guardianship for her two daughters, D.M. and T.G. (Welf. & Inst. Code, § 366.26). (Cal. Rules of Court, rule 8.452(a).) Mother contends the juvenile court erred in setting the hearing because (1) substantial evidence does not support the court’s finding that the San Bernardino County Department of Children’s Services (the Department) provided or offered reasonable reunification services to her; and (2) Mother substantially complied with her case plan. We deny the petition.
All further references to code sections are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS
1.
DETENTION
On July 27, 2006, when T.G. was seven years old and D.M. was four years old, an employee of the Department interviewed T.G., at her elementary school, after receiving a referral alleging that T.G. was the victim of physical abuse. During the interview, T.G. said that her cousin’s boyfriend sexually molested her, while at T.G.’s house. Mother saw the man molesting T.G. and told him to leave. T.G. said Mother disciplines her and her half sister, D.M., by hitting them with her hand, sticks, belts, and hangers, on various parts of their bodies. T.G. recalled one incident when Mother kicked her back and slapped her face for not wearing the correct shoes. In a separate incident, Mother pushed T.G.’s head into a couch, so that T.G. was unable to breathe. During that incident, Mother said, “I would have killed you.” T.G. stated that other relatives, such as her uncle, also hit her with belts, causing welts. T.G. informed the Department employee that she is often left alone in Mother’s house or left to care for D.M. T.G. stated Mother began leaving her alone at the age of four.
When the Department employee tried to speak to Mother about the sexual molestation allegation, Mother said, “if you think she’s been touched then you can just take her.” The Department employee informed Mother that T.G. and D.M. would be taken into custody.
T.G.’s alleged father is incarcerated at a federal prison camp, for transporting drugs across state lines, and is not scheduled to be released for several more years. D.M.’s alleged father is incarcerated in California state prison for 25 years to life, for first degree murder. When D.M. arrived at the foster home, she denied suffering any physical abuse. When the Department employee asked T.G. about other relatives, T.G. stated that she had a grandmother, and that Mother “cuts up white stuff and puts it in bags and gives it to my grandma for money.”
On August 1, 2006, the juvenile court ordered that T.G. and D.M. be detained in foster care. The court ordered that Mother be allowed to visit T.G. and D.M. at least one hour per week.
2.
JURISDICTION AND DISPOSITION
In the case plan attached to the Department’s August 22, 2006, status report, it is noted that Mother’s services are to include (1) general counseling; (2) domestic violence programs; (3) parenting education programs; (4) substance abuse counseling; (5) substance abuse testing; and (6) outpatient substance abuse treatment. Additionally, the Department was to be responsible for (1) arranging and maintaining a placement for T.G. and D.M.; (2) arranging transportation for T.G. and D.M.; and (3) providing crisis intervention for T.G., D.M., and Mother.
At the jurisdiction/disposition hearing on September 25, 2006, the court ordered that T.G. and D.M. continue to be detained. The court approved the reunification plan, and ordered Mother to participate. The court granted Mother supervised visitation with T.G. and D.M.
On December 11, 2006, the court held a hearing regarding the Department’s assessment of possible relative placements. The court ordered that T.G. and D.M. be placed with D.M.’s alleged father’s wife, i.e., D.M.’s stepmother.
3.
SIX-MONTH REVIEW
The Department’s March 26, 2007, status report reflects that an employee of the Department met with Mother on January 3, 2007, to discuss the service plan. The report reflects that Mother received eight referrals for services during August and September 2006. On October 4, 2006, Mother began participating in (1) individual counseling; (2) a parenting class; and (3) a domestic violence support group. Mother was also provided with weekly supervised visitation.
The Department recommended that the children remain in their placement and services be continued, because Mother had not completed the court-ordered treatment plan. At the hearing on May 8, 2007, a social worker, employed by the Department, testified that Mother had “completed all of the services that she was asked to participate in . . . [w]ith the exception of individual counseling.” Despite Mother completing the majority of her case plan, the Department did not feel it would be safe to return T.G. and D.M. to Mother’s custody, because (1) Mother did not acknowledge all the reasons that prompted the initial removal, such as physical abuse and drug sales; and (2) T.G. and D.M. expressed that they did not want to return to Mother’s custody, and wished to permanently stay with D.M.’s stepmother.
In the Department’s April 19, 2007, addendum status report, it is noted that D.M. and T.G.’s therapist, Dr. Hunt, met with the children six times. On March 28, 2007, a Department employee spoke to Dr. Hunt about including Mother in the therapy sessions with D.M. and T.G., because “the children are expressing [that] they do not wish to go home because they are fearful of mother.” Dr. Hunt informed the Department that after two more therapy sessions D.M. and T.G. would be ready to have Mother participate in the therapy sessions with them. Mother agreed to participate in joint therapy sessions with D.M. and T.G. The Department recommended that D.M. and T.G. not be returned to Mother until the joint therapy sessions occurred in order “to allow the children an opportunity to address their concerns with their mother in therapy.”
At the hearing, Mother’s counsel argued that the joint therapy sessions should have started sooner, so that D.M. and T.G. could promptly be returned to Mother’s custody. Mother’s counsel essentially argued that reasonable services had not been offered to Mother because Mother had not been given an appropriate opportunity to complete joint therapy prior to the six-month review hearing.
The court asked the Department employee why joint counseling had not begun sooner. The employee responded that when the children began therapy, the plan was that Mother would participate in joint therapy with D.M. and T.G., but Dr. Hunt first wanted to establish a relationship with D.M. and T.G. to create an atmosphere of support for the children. Also at the hearing, Mother’s individual counselor testified, and Mother testified.
The juvenile court found that Mother had made moderate to substantial progress with her case plan, but was concerned that Mother was not addressing the physical abuse issues and was minimizing the sexual molestation. The court concluded that joint therapy was necessary to build trust between Mother, D.M. and T.G. Over Mother’s objection, the court found by clear and convincing evidence that reasonable services had been provided. The court ordered that the children continue to be placed with D.M.’s stepmother. Additionally, the court ordered that a licensed therapist, rather than an intern, handle Mother’s therapy sessions, and that visitation be liberalized to include overnight and weekend visits.
Mother appealed the court’s order. (San Bernardino County Dept. of Children’s Services v. Andrea W. (Mar. 13, 2008, E043081) [nonpub. opn.].) In that appeal, Mother argued that the juvenile court erred by finding that reasonable services had been provided to her and not returning the children to her custody. (Id. [at p. 6].) This court affirmed the order of the juvenile court. (Id. [at p. 12].)
4.
12-MONTH REVIEW
The Department’s November 9, 2007, status report reflects that on the day the six-month review hearing concluded, Mother contacted the Department “and left a message that she was ‘giving the girls up for adoption’ and she wanted to waive reunification services . . . and ‘move on.’” The next day the Department sent Mother forms for waiving reunification services, but the forms were never returned. On May 24, 2007, an employee of the Department telephoned Mother and asked if she was interested in visiting with the children, and Mother responded that she was not interested in visitation. Mother told the Department employee “that she needed to take some time for herself.”
On July 30, 2007, Mother contacted the Department and requested visitation with T.G. and D.M. On August 6, 2007, the Department provided Mother with a new service plan, referrals for therapy, and information regarding joint therapy with her children and Dr. Hunt. Mother began individual therapy with Dr. Bresolin on September 3, 2007. In September, Mother began joint therapy with her children and Dr. Hunt. The joint therapy sessions were interrupted around November, due to a death in Dr. Hunt’s family. The report reflects that T.G. and D.M. were still expressing a desire to permanently stay with D.M.’s stepmother, and not return to their Mother’s custody. The Department recommended that Mother receive six more months of services, since she had just recently begun to participate in services after taking time for herself.
At a hearing on November 27, 2007, after realizing that the time for the 18-month permanency hearing (§ 366.22) would be January 27, 2008, the Department stated that it could not recommend that services for Mother be continued, because “Mother lapsed on her own accord . . . for a significant amount of time.”
In an addendum status report, dated December 18, 2007, several updates were noted regarding services. First, during a joint therapy session, T.G. overheard a conversation wherein Mother asked Dr. Hunt for a letter explaining that the therapy sessions had been interrupted due to the death in his family, rather than due to the fault of Mother or the children. The children misinterpreted the conversation as Dr. Hunt siding with Mother. T.G. said, “I thought he was supposed to be on our side?” As a result, on November 5, 2007, the Department submitted a request for the joint therapy sessions to be transferred to the Center for Healing Childhood Trauma, because Dr. Hunt stated that he would need to terminate the joint sessions if they interfered with his individual counseling of T.G. and D.M.
Second, Dr. Bresolin requested more individual therapy sessions for Mother, and stated that her wish for Mother would be for therapy to continue for an extended period of time. The Department approved 12 more sessions for Mother.
Third, on November 15, 2007, at a visitation appointment, D.M. informed a Department employee that she did not want to visit with Mother any longer. The employee encouraged D.M. to tell Mother how she felt, but D.M. said she was afraid. The employee offered to tell Mother, on behalf of D.M., and D.M. agreed to the offer. The employee told Mother that D.M. no longer wanted to visit. Mother became defensive and said, “I’ll be here next week and you can’t hurt my feelings.” T.G. then told the Department employee, “This is why I was crying at school all day.” The employee suggested T.G. share that with Mother, which T.G. did. Mother accused the employee of being unprofessional. Mother said to T.G., “I never did anything to you. This has been hard on me, hard on you, hard on everyone. I’m just gonna keep doing what I’m doing. I’ll be here next week and the week after that. You can’t hurt my feelings.” T.G. began crying, and the Department employee ended the visit.
Fourth, on November 29, 2007, the new joint therapy counselor had difficultly scheduling a joint therapy appointment around the children’s individual counseling, mother’s individual counseling, and their visitation. The Department informed Mother that visitation would need to be rescheduled in order to accommodate the schedule of the new joint therapy counselor. Mother stated that she did not believe she would be able to attend the new visitation appointment.
At the 12-month review hearing on January 28, 2008, the court made the following finding: “By clear and convincing evidence, the services that were offered to [Mother were] reasonable. Granted, there was a delay; however, the delay was compounded by Mother’s voluntarily absenting herself from the services that were offered to her.”
The record reflects that this was the 12-month review hearing, despite it occurring 18 months after the children were detained.
The court found that Mother failed to make substantive progress in her treatment plan; that returning the children to Mother would be detrimental; and that there was not a substantial probability that the children would be returned to Mother within the statutory timeframe. The court terminated Mother’s reunification services.
DISCUSSION
1.
SERVICES
Mother contends the juvenile court erred in terminating her reunification services and setting a hearing to consider terminating her parental rights or establishing guardianship for T.G. and D.M. (§ 366.26) because substantial evidence does not support the juvenile court’s finding that reasonable services had been provided or offered to her. We disagree.
At a 12-month permanency review hearing, if a court rules that a child will not be returned to her parent, then the court must specify the factual basis for why it concluded returning the child would be detrimental. (§ 366.21, subd. (f).) When the court makes its determination of detriment, one factor to consider is whether reasonable services were offered to the parent. (§ 366.21, subd. (f).) Reasonable services are services that aid the parent in overcoming the problems that led to the initial removal. (§ 366.21, subd. (f).) The reasonableness of services is judged according to the circumstances of each case. (Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554.) “In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
An appellate court’s “sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court’s finding that reasonable services were provided or offered.” (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) When determining whether substantial evidence supports the court’s finding that reasonable services were provided, we review the evidence in a light most favorable to the prevailing party and indulge all reasonable inferences to uphold the court’s ruling. (In re Misako R., supra, 2 Cal.App.4th at p. 545.) “If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.” (Ibid.)
The problems that caused D.M. and T.G. to be detained included physical abuse, sexual abuse, and drug abuse. In order to address these issues, Mother and the children were provided individual and joint therapy, and Mother was offered parenting classes, domestic violence classes, and drug treatment. We conclude that these programs were reasonably designed to address the issues that caused D.M. and T.G. to be detained, because they are directly related to the issues that caused the children to be removed from Mother’s care.
Additionally, the record contains testimony from Mother’s individual therapist discussing Mother’s progress in therapy, reports that Mother completed parenting classes and domestic violence classes, and reports of Mother’s negative drug tests. Accordingly, the record contains proof that Mother participated in the offered services.
In sum, the services offered to Mother were reasonable, sensible, and fair, and were properly designed to prevent a recurrence of the circumstances that led to the removal of the minors. (See In re Dino E. (1992) 6 Cal.App.4th 1768, 1776-1777.) We conclude there is substantial evidence to support the juvenile court’s finding that the Department provided Mother with reasonable reunification services.
We now address Mother’s arguments. First, Mother essentially contends that the joint therapy was not a reasonable service. Mother argues that she was “set up to fail” because the Department suspected Dr. Hunt would eventually have a professional conflict with conducting both the joint therapy sessions and individual therapy sessions for the children. We disagree with this argument for two reasons. First, the record reflects that the Department did not anticipate a conflict occurring with Dr. Hunt. Rather, the record reflects that the Department had a plan in place in case, by chance, a conflict occurred. Second, the record reflects that the Department transferred the joint therapy sessions to a new counselor as soon as a potential conflict developed; this action supports a finding that the Department wanted the joint therapy sessions to succeed.
Second, Mother essentially argues that she was not given sufficient joint therapy sessions, and therefore the joint therapy services were unreasonable. The record reflects that on May 9, 2007, the court ordered Mother to participate in joint therapy. Later that day, Mother contacted the Department and told an employee that she wanted to waive reunification services and surrender the children for adoption. On July 30, 2007, Mother contacted the Department and stated that she wanted to visit the children. On August 6, 2007, the Department gave Mother a referral for joint therapy with Dr. Hunt. Mother met with Dr. Hunt, individually, in September 2007. Dr. Hunt then suffered a death in his family. The joint therapy began November 1, 2007. Twelve joint therapy sessions should have occurred between August and November 2007; however, only two took place.
Mother does not explain why it was unreasonable for only two sessions to have occurred between August and November, given the circumstances in the case. Nevertheless, to the extent Mother is contending that the Department acted unreasonably by not transferring the joint therapy sessions to a different therapist when it became aware that Dr. Hunt would be unavailable due to the death in his family, we disagree with such an argument. The record reflects that Dr. Hunt began meeting with D.M. and T.G. in March 2007. Dr. Hunt stated that in May 2007, the children would be ready for joint therapy, because he had established a relationship with them, so that they felt comfortable and supported when speaking with him. We infer that if the children had been transferred to a new therapist while Dr. Hunt was unavailable, a greater amount of joint therapy sessions likely would not have taken place because the new therapist would also have needed to establish a relationship with the children. Accordingly, it was reasonable for the Department to keep the joint therapy sessions with Dr. Hunt, despite his month-long absence. Additionally, we note Mother could have participated in more joint therapy sessions had she not “take[n] some time for herself” during May, June, and July 2007.
Third, Mother essentially contends that the visitation services were not reasonable. Mother argues that the Department employee’s suggestion that D.M. and T.G. tell Mother that they no longer wish to visit her “fostered animosity and resentment instead of rebuilding the bond with mother.” We disagree. While testifying, the employee explained that she encouraged D.M. and T.G. to express their feelings to Mother because the children had expressed similar feelings on prior occasions. There is nothing in the record indicating that the Department employee was trying to sabotage Mother’s visitation. Rather, the record reflects that the Department employee was trying to encourage the children to not fear Mother and to feel comfortable in discussing their emotions with her. Accordingly, we are not persuaded by Mother’s argument that the visitation services were unreasonable.
2.
CASE PLAN
Mother contends the juvenile court erred in terminating her reunification services and setting a hearing to consider terminating her parental rights or establishing guardianship for T.G. and D.M. (§ 366.26) because she substantially complied with her case plan. We disagree.
At the 12-month review hearing the juvenile court must determine whether returning a child to his or her parent’s custody would cause the child to be at substantial risk of detriment. (§ 366.21, subd. (f).) One factor for the juvenile court to consider when analyzing the risk of detriment is “the extent to which [the parent] availed himself or herself of services provided.” (§ 366.21, subd. (f).)
Our review of the juvenile court’s finding that returning the children to Mother’s custody would be detrimental is limited to considering whether substantial evidence supports the finding. (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625.)
The record reflects that during the six-month review period Mother attended parenting classes, domestic violence classes, anger management classes, therapy, and submitted to drug testing. During the 12-month review period, Mother did not participate in any services during May, June, and July 2007 in order to take time for herself. However, Mother began participating in services again starting in August 2007. Although the record reflects that Mother availed herself of services, that does not equate with a finding that the children would not be at substantial risk of detriment if returned to Mother’s care.
Three facts support the court’s finding that the children would be at risk of detriment: (1) the children did not want to be returned to Mother’s custody; (2) Mother was not taking full responsibility for the actions that caused the children to be removed from her care, as evinced by Mother’s comment to T.G., “I never did anything to you”; and (3) after Mother completed the parenting classes and domestic violence classes, Mother stated that she wanted to surrender the children for adoption and did not participate in any services for three months. These facts support a finding that Mother did not progress in improving the behaviors that caused the children to be removed from her custody.
In sum, we find substantial evidence supports the court’s finding that the children would be at substantial risk of detriment if returned to Mother’s care, and we are not persuaded by the argument that the children would not be at risk of detriment because Mother availed herself of the services offered to her.
DISPOSITION
The petition for an extraordinary writ is denied.
We concur: Hollenhorst, Acting P.J., Richli, J.