Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County No. DP015210, Douglas Hatchimonji, Judge.
Juvenile Defenders and Susan Do, under appointment by the Court of Appeal, for Petitioner, A.P.
Kenneth Nielsen and Lawrence A. Aufill for Petitioner, D.A.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Toree, Deputy County Counsel, for Real Party in Interest.
Law Office of Harold LaFlamme, Regan Dean Phillips for the Minor.
OPINION
O’LEARY, ACTING P. J.
Petitioners, A.P. (Mother) and D.A. (Father), challenge the juvenile court’s order terminating reunification services and scheduling a permanency hearing pursuant to Welfare and Institutions Code section 366.26 with respect to their now two-year-old daughter, G.A. They maintain substantial evidence does not support the court’s determination G.A. would be at risk if returned to Mother or Father. The parents also argue they were not provided reasonable reunification services. Orange County Social Services Agency (SSA) and minor’s counsel request this court deny the writ petitions. We agree the petitions lack merit and deny them.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Facts
On April 23, 2007, the Anaheim Police Department took then two-month-old G.A. into protective custody after Mother was arrested for possession of methamphetamine. The alleged father (C.A.) could not be located (C.A. is not a party to these proceedings). The petition alleged Mother was G.A.’s primary and sole caregiver. Mother had a history of substance abuse and criminal activity. She lived a transient lifestyle. C.A. was addicted to drugs and had a drug-related criminal record. Mother and C.A. had a history of domestic violence issues, and they had already received (but not benefited from) services offered by Voluntary Family Services and from the Domestic Abuse Services Unit. The court ordered G.A. detained and placed her in the care of SSA.
In the report prepared for the jurisdiction/disposition hearing, the social worker stated G.A. was placed with caregivers, the W. family. The social worker delineated Mother’s prior child welfare and criminal history. Specifically, SSA had been in contact with the family 10 times since March 1999. Several reports were substantiated for general neglect regarding G.A.’s older brother. A maternal grandmother was now the legal guardian of Mother’s two older sons (ages 4 and 2). Mother’s criminal history included arrests and convictions for burglary, petty theft, child neglect, possession of a controlled substance for sale, and being under the influence of a controlled substance.
Twenty-seven-year-old Mother admitted she started using drugs at age 15. Mother claimed to have stopped using drugs while pregnant with her three children, she never used drugs around them, and she had never sought treatment for her drug use. The social worker questioned the veracity of these statements given that the police report stated Mother was smoking methamphetamine before her arrest, when G.A. was present in the motel room. Mother was often homeless, and she sometimes lived in motels or with friends.
The social worker opined the prognosis for the family was “fair” as Mother claimed she was quitting drugs and she started a perinatal program and her court ordered drug treatment program pursuant to Penal Code 1000 (the PC 1000 program). Mother also began individual therapy and drug testing. She visited G.A. a total of eight times in May. The court recommended reunification services be offered to Mother. The alleged father, C.A., was aware of the proceedings but had not yet contacted SSA or the court. No service plan was created for him. In July 2007, the court sustained an amended jurisdictional petition under section 300, subdivision (b). Soon thereafter, a paternity test determined C.A. was not G.A.’s biological father.
In July 2007, the social worker reported Mother was unable to participate in the PC 1000 program because she could not afford the classes. She had separated from C.A. due to his drug use. She was participating in the perinatal program, but had not attended any 12-step meetings. She could not drug test at Labcorp, but she was testing negative at her perinatal program. She had missed a few therapy sessions, but she was scheduled to start a Personal Empowerment Program (PEP). The hearing was continued to the end of August, and at that time, the court ordered reunification services for Mother. The six-month review hearing was scheduled for the end of February 2008.
In a report prepared in February, the court noted that in December 2007, Father’s paternity test indicated he was G.A.’s biological father. In November 2007, Mother relocated to live in Arizona with her boyfriend, and they were expecting twin girls (due to be born in May 2008). Mother and her boyfriend were living with his parents, and Mother was employed at a nearby McDonald’s Restaurant. She had not visited G.A. since moving to Arizona, blaming the price of gas and her work schedule.
In early January 2008, the social worker sent Mother referrals for a parenting class, counseling, and an outpatient drug rehabilitation program. Mother had not completed PC 1000 program. It was reported she was unmotivated and excessively absent. She missed three orientation sessions for individual counseling and approximately half of her scheduled drug tests from July to November 2008. In the three months from the time she moved (November) to the time of the next court hearing (February), she failed to test at all. During those three months she also had no visits with G.A.
In January, the social worker informed Father he was likely the child’s biological father. Father asked what he needed to do to obtain custody of G.A. He also contacted the W. family to request visits. He was granted two-hour monitored visits once a week. According to the “monitor/caretaker, [Father] was appropriate with the child, playing on the floor with [her] throughout the entire visit.”
Father worked full time in Las Vegas as a security guard. He lived in a three-bedroom apartment with his brother. Father was not currently paying rent as his brother was helping him until he paid off some of his bills. He told the social worker he and Mother had an on-again, off-again relationship for about eight years. Mother had told him about her substance abuse issues, but he believed her promise to stop using. He tried to help her quit.
Father asked the social worker what he could do to obtain custody of G.A. He was advised to ask about services in Nevada. He began attending a parenting class, “Nurturing Parents and Families program offered through the Clark County Department of Family Services.” He consistently traveled from Las Vegas to visit G.A. once a week. The social worker noted Father had “demonstrated a strong desire to be involved in the child’s life. He continues to make contact with the undersigned frequently to provide information about what he is doing to gain custody of his daughter.”
In September 2007, then nine-month-old G.A. was referred to the Orange County Regional Center after her caretaker, Lisa W., noticed the child was experiencing some developmental delays. The assessment report in November indicated G.A.’s gross motor skills were approximately at a four to five month level and she began receiving in-home physical therapy for one hour a week. At the end of January, it was reported 11-month-old G.A.’s gross motor skills had improved to a six to seven month level. The social worker described G.A. as a “happy, well-adjusted child with no signs or symptoms of emotional or metal conditions warranting attention at this time. The child is social and smiles often in the presence of her caretakers.”
On April 1, 2008, at the six-month review hearing (held nearly 12 months after G.A. was detained due to many continuances), the court found Father to be G.A.’s presumed father, and it ordered reunification services. In the social worker’s next report prepared at the end of May 2008, she noted Mother gave birth to twins in mid-April, she was living with the twins’ father and his family in Arizona. Child protection officials had not detained the newborns. Mother’s doctor had placed Mother on bed rest in late March. Mother was unable to visit G.A., she was terminated from her drug treatment program, and she had not been drug testing or attending counseling. Mother’s case manager at the outpatient drug and alcohol treatment program, Arthur Arnold, advised the social worker Mother had been dropped from the program due to her lack of attendance. He had not been informed of Mother’s health condition or why she was not able to attend the group meetings or appointments. Arnold stated Mother would have to re-enroll in the program if she wanted to return after being released from bed rest. Mother completed a parenting course on March 13, 2008. Mother had not visited G.A. since the hearing on February 23, 2008. She telephoned weekly to ask about G.A.’s well-being and to talk to her on the telephone.
Father was still working full time, paying rent to his brother, and driving out to California once a week to visit with G.A. He completed the parenting class and agreed to drug test. On his way home to Las Vegas, he often spent the night at his sister’s house in Hesperia, California. Father asked if his sister, Karen C., could be considered as a possible relative placement option. Karen C. and her husband stated they would be willing to have G.A. placed with them if Father could not obtain custody and they were open to adopting her. The social worker stated she “refrained from initiating a change in placement, as [Father’s] progress in obtaining custody of his daughter look[ed] promising, and [G.A. was] bonded with the current foster family.”
Father continued to visit G.A. weekly for three hours every Tuesday. “The monitors report [he] is appropriate during the visits, and that he interacts well with the child, playing with her throughout the entire visit. Each visit the child’s father brings gifts for the child, whether it is clothes or toys. Additionally, the child’s father brings food for the child and feeds her.” The social worker summarized, Father “continues to report that he will do whatever is required of him to gain custody of his daughter and he wants her to live with him..... [He] has supported his declarations regarding being a parent to the child by participating in all the services required of him, by researching and finding resources needed to comply with this case plan without being handed referrals and by consistently driving to and from Las Vegas, Nevada to visit his daughter.”
The social worker reported G.A.’s last doctor’s appointment showed she was healthy, although underweight. One-year-old G.A. was eating table food and whole milk. She was still receiving physical and occupational therapy once a week at the Regional Center. It was reported G.A. had progressed quickly and was able to crawl and stand with support. G.A. was described as a happy, well-adjusted child. The W. family had “made it clear that they [did] not wish to adopt the child.”
Before the 12-month review hearing, the social worker recommended additional reunification services for both parents. She recognized Mother had been unable to participate in services due to her medical condition and, despite the lack of any progress, she believed Mother should be given an additional six months “to demonstrate her ability to care for the child and meet her physical, emotional, and psychological needs.”
As for Father, the social worker summarized he had “accessed both an appropriate parenting class and a drug testing laboratory to meet the demands of his case plan. He ha[d] also consistently visited with his child and inquired about the child’s well-being with frequent telephone calls to the caretakers. He continue[d] to be motivated to gain custody of the child.” The social worker stated she would be willing to liberalize visits after he had a month of testing negative for drugs. “The undersigned feels that liberalizing the visits for the father is the first step in reunifying him with his daughter.” The social worker noted she had some concerns about Father’s ability to be a single parent to an infant with special needs and he had only had a “little time to prepare for this child mentally, emotionally, and financially.” She recommended Father be given six more months to demonstrate his ability to parent the child on his own. On May 22, 2008, the court extended the parents’ reunification services for six more months. It concluded reasonable services had been offered or provided to the parents and that return of the child to the parents would create a substantial risk of detriment to the child’s physical or emotional well-being.
The next report prepared at the end of October 2008 stated Mother was released from bed rest on June 6, and she was still looking for employment in Arizona. SSA paid for Mother to visit G.A. by train each week. The social worker learned Mother was paying extra ($100) to change her train tickets and extend her visits by one day to coincide with Father’s visits. On three occasions she was present while Father was visiting G.A.
Father asked the social worker about having his sister and her family visit with G.A., but had only tried once to arrange a visit. Father was still employed as a security guard and had requested the day shift. He and his brother had moved to a three bedroom, two bathroom house in Las Vegas. Father had researched different daycare providers for G.A. and located a subsidized child care program for which he was eligible. Father had tested negative for drugs, and after August 27, 2008, he was no longer required to drug test. Father canceled a few visits in August and September due to financial issues, and he requested assistance with the travel costs. The social worker obtained approval from SSA to purchase train tickets for Father. The social worker also submitted an Interstate Compact on Placement of Children (ICPC) referral for a home study in Nevada. The referral she requested in May 2008 was postponed because Father indicated he planned to move. The social worker submitted a new referral on October 8, 2008.
The monitor reported visits between Father and G.A. were positive and he met the child’s needs. However, in one summary report, the monitor (who may have been the foster mother, Lisa W.) stated, “[Father did] not have a good working knowledge of what discipline [was] appropriate for a child 18 months old and that [he was] unclear as to how to encourage the child’s developmental growth. In addition, the caretaker (Lisa W.) reported that she [had] some concerns that the child’s father did not really acknowledge the child’s special needs as evidenced by the caretaker repeatedly providing [him] with [a] list of appropriate foods...” and Father was ignoring the list. Father often brought baby food, which G.A. had outgrown, or fast food, which G.A. had difficulty eating. When the caretaker discussed this issue with him, “he has reported that ‘he knows.’”
G.A. was overall healthy, although her caretakers and doctor were closely monitoring her weight gain because she was still underweight. G.A.’s physical and occupational therapy was increased from two to four hours a week in August. Lisa W. reported she was concerned about G.A.’s speech and the way she ate her food. G.A. was eating table food, but sometimes she did not chew or swallow her food immediately and instead pushed the food into her left cheek to save for eating later. She was receiving physical, occupational, and speech therapy at the Cornerstone Therapies facility.
Despite being off bed rest since June 6, Mother made a slow start with respect to several components of her case plan. On July 18, she missed her first scheduled appointment with Arnold, after re-enrolling with the outpatient drug and alcohol treatment program. She missed the next rescheduled appointment on July 30, and Arnold called the social worker to discuss the case. Mother rescheduled and kept her appointment on August 4, where she was told she could begin to attend meetings scheduled on Tuesdays, Wednesdays, and Thursdays beginning August 5. Mother did not attend the meeting on August 5, or any other meeting after that. A few weeks later, on August 18, Arnold sent Mother a letter and tried to contact her regarding her case being closed due to lack of participation. In response to the letter, Mother contacted Arnold and scheduled an appointment for August 28. On that day, she canceled the appointment claiming there was an emergency in California. Arnold stated he did not hear or see Mother until September 12, when she called and left a message on his voice mail stating she needed to make an appointment immediately.
Mother had not been participating in individual counseling or PEP counseling. Mother reported she had attended a few Narcotics Anonymous (NA) meetings but had no documentation to verify her attendance. Mother resumed drug testing in July, and had positive results due to her prescribed pain medication.
The social worker noted Mother and Father were “meeting up in California when they visit the child and each has brought the other to the respective visits.” The social worker spoke to the parents about this issue, and asked that they keep their visits separate. She expressed concern about whether Father would be able to set limits with Mother and be able to protect the child from Mother. The social worker stated she was beginning to question if Father’s true motivation for reunifying with G.A. was really to get back together with Mother. Due to these new issues, the social worker decided not to liberalize Father’s visits to unmonitored or for overnights.
The social worker concluded that while Mother stated she wanted to regain custody of G.A., her actions did not support this. Mother called the social worker two to three times a week to discuss “what she plans on doing rather than what she has done.” As for Father, the social worker acknowledged he had complied with his case plan, and he wished to reunify with G.A., who meant “the world to him.” However, the social worker concluded Father was visiting less and “presents as if he is all knowledgeable with regard to parenting and tends not to listen to others who have suggestions on how to handle a situation with his daughter.” The social worker noted Father appeared to be pursuing a relationship with Mother and had ignored requests to not bring Mother to visits: “Although [Mother] remains in the car during visits, she is still there when the child is walked out to the monitor’s car.” Father no longer stayed with his sister after visits but paid for a hotel room with Mother. The social worker questioned this expenditure, and expressed concern about Father’s ability to care for G.A. if travel expenses were now a problem for him. The social worker stated she hoped her concerns would be resolved by the completion of the ICPC home study. Nevertheless, she recommended termination of services for both parents and the court schedule a permanency hearing “[g]iven that the time for reunification is running out....”
In anticipation of the 18-month review hearing, the W. family submitted a “caregiver information form” for the court’s consideration. The caregivers discussed the challenges and progress G.A. has made with her developmental delays. They described what she liked to do and eat. They also listed over a page of “concerns” they had about G.A. being reunited with her parents. The caregivers stated that since January 2008, Father has spent the equivalent of about three days with G.A. Father told them he was using inheritance money, but now money was an issue and he was missing visits. They noted he appeared to have money to stay in hotel rooms with Mother for several nights when they came to town for visits. Lisa W. also expressed frustration that Father would not listen to her advice on how and what to feed G.A. during visits. The caretakers stated Mother’s telephone calls to ask about G.A. have been infrequent and she had come to California on her own to visit other people, but she has not requested to visit G.A. on those occasions. The caregivers ended the letter stating G.A. should be allowed to remain in their home and continue with her therapy and daily routine. The caregivers submitted several other letters from their friends and G.A.’s therapist concerning the excellent care G.A. had received while in their care.
The 18-month review hearing scheduled for the end of October was continued to December. The caregivers submitted papers requesting de facto parent status. In the addendum report prepared for the hearing, the social worker stated Mother continued to be inconsistent with her treatment. Mother reported she was attending the outpatient drug treatment program, but her counselor, Arnold, stated Mother had missed many group meetings. Mother also reported she was drug testing on a regular basis, and missed two tests due to being in California. The social worker discovered Mother tested only once in October and it was positive for opiates. Mother told the social worker it was due to a Vicodin prescription she had for a knee injury, but she could not produce a doctor’s prescription for the medication. The drug testing company stated that since October 2008, Mother had failed to call the test hotline 16 times and had failed to test when instructed to do so 11 times. Mother was still visiting G.A., but the monitor reported that in late October, G.A. took a long time to respond to Mother and clung to Lisa W.
Father was promoted to a supervisor position, working the swing shift. He visited G.A. every other week using bus tickets provided by SSA. Once he missed the bus, and used some savings to drive to California so he would not miss his visit. A social worker monitoring a visit in early November noted Father acted appropriately during visits, interacted with G.A., fed her food, and changed her diaper. He stated Father was “affectionate and endearing” with G.A. However, the social worker also opined Father “does not really know how to parent the child; his expectations of the child are much too high.” Father’s sister and her family also visited G.A. in November and expressed an interest in being considered for placement. However, the social worker told them the W. family had decided they were willing to adopt G.A. “despite her special needs” and the social worker felt G.A. had bonded with the W. family. The social worker told Father’s sister it would not be in G.A.’s best interests to be moved. The social worker stated Father’s ICPC home study was due at the end of the month. The court granted the W family’s de facto parent request and continued the case to January 13, 2009.
The January addendum report noted Mother had not yet reinstated outpatient drug and alcohol services. She had not drug tested in several months. Since the last court date, she had only visited G.A. one time and blamed the lack of transportation and her own mother’s hospitalization. During the one visit, Lisa W. reported Mother expressed concerns about Father caring for G.A. Mother alluded to a rumor Father had been inappropriate with his nieces and nephews, he was not a safe driver, he had a bad temper, and he was self-serving. Mother told Lisa W. she had rebuffed Father’s multiple requests to move to Las Vegas.
Father visited G.A. three times in December, and after the social worker asked why he did not visit more, he asked for additional visits. It was reported Father was “overall” appropriate during visits. However, Lisa W., who was now monitoring the visits, wrote detailed notes and included many criticisms, opinions, and concerns regarding Father. For example, Father admitted to her that he did not get along with some of his family members, and his youngest sister refused to be a character reference for him. Father shared with Lisa W. that his brother-in-law believed Father had been inappropriate with one of his nieces or nephews. Father also told Lisa W. about his difficult financial situation. Father’s sister, Karen C., came to one of the visits and told Lisa W. that she did not fully understand what they were supposed to do to get custody of G.A. and they were always interested in having her. Father’s sister stated the classes were at inconvenient times and she was busy with her kids, their school, and daycare.
The social worker asked the ICPC evaluator to interview more of Father’s family members after what Father had disclosed to Lisa W. On January 7, the ICPC evaluator, Charity Kelly, stated she could not recommend the placement for a variety of reasons. However, only two reasons were stated in the social worker’s report: (1) Father had demonstrated immaturity; and (2) it was unclear if Father’s older brother was committed to helping Father raise G.A. The social worker asked Karen C. for her opinion on Father’s ability to care for G.A. Karen C. stated the brothers and sisters in her family have all had their differences with Father, who has always been a bit immature. Karen C. did not have concerns about Father parenting G.A. “as long as her older brother was a big part of raising [G.A.]” She was unsure if the older brother was available or willing to assist Father.
Based on the above information, the social worker concluded services should be terminated for both parents. She stated that despite Father’s compliance with his case plan, everyone involved in the case had concerns about Father’s “ability to provide the level of care this child needs.... [The social worker believed Father did] not know or [was] in denial about the difficulty and time needed to care for a child of this age and a child that has special needs.... It is the opinion of the [social worker] that the child will be at risk if the child is placed with Father without a significant level of support.” The social worker noted it was questionable whether Father’s family would support him. And because Nevada’s family services did not recommend placement with him “they will not be monitoring the case or providing ongoing support.” The social worker in Nevada indicated services there were limited and difficult to access, requiring a very proactive advocate parent. Finally, the social worker stated she was concerned Father had the financial ability to care for G.A. because he was unable to visit her unless transportation was provided for him.
The 18-month review hearing was continued another month. The final addendum report prepared in early February discussed more details about the contents of the ICPC home study. Father admitted to the Nevada social worker that he got into a lot of trouble when he was younger. He had never gotten along with his younger sister, and his brother’s ex-girlfriend accused him of molesting her handicapped son. Father stated he was grateful and loved his brother, who is also his roommate. He admitted they sometimes got into arguments about Father’s poor housekeeping. The Nevada social worker stated that based on her interview of the social worker assigned to the case in California and one other reference, there were concerns that Father lacked maturity, he procrastinated, he had poor “housekeeping standards,” and he had trouble taking care of himself. The reference provided by Father informed the social worker they would not trust Father with their own children. The Nevada social worker relied on statements made by the California social worker about (1) Father’s failure to understand G.A.’s development, special needs, and the expectations of care based on his conduct during visits, (2) a purported incident of molestation with a niece or nephew, and (3) his failure to “understand boundaries.”
The final entry in the social worker’s report is her own observations of Father’s visit with G.A. in late January. The child was visibly tired and clingy to both Father and Lisa W. Father was having trouble finding something to entertain G.A. and Lisa W. gave him some books. He gave G.A. the books to hold, but he did not attempt to read the books to her. Lisa W. told the social worker Father’s behavior was “typical” and she often gave him ideas on how to engage G.A. Lisa W. stated Father had ignored her repeated suggestions to visit with G.A. in places other than the visitation center.
At the hearing, the court heard testimony from Lisa W. and the social worker. Counsel asked the social worker why she had not invited Father to the Regional Center or provided him with any reports regarding G.A.’s developmental needs. The social worker stated Father had not asked about appointments or for information from the Regional Center. She tried to arrange case activities so as to not disrupt his employment. The social worker stated Lisa W. began monitoring Father’s visits because of budget constraints and because Lisa W. was willing to help. She stated Father took the only parenting class available, and she was unable to find a more specialized class that addressed parenting a child with special needs until late January 2009. The social worker was not comfortable with Father’s ability to parent G.A. (due to her special needs), or to protect G.A. from Mother. As for Mother, the social worker concluded Mother had not complied with any of the case plan and showed no improvement after her short period of bed rest.
Lisa W. testified about her observations of Father during visits. She said he seemed to lose interest in G.A., he once taunted her with a toy, and he often gave her inappropriate foods, i.e., candy. In sum, she did not believe Father could meet the child’s unique developmental needs. Neither Father nor Mother testified.
The court determined reunification should be terminated and it set a permanency hearing. It concluded SSA provided both parents with reasonable services. Mother failed to meaningfully participate in her case plan. Father complied with his case plan, but the court found the two witnesses “very credible” and Lisa W. to be “forthright” despite Father’s counsel’s suggestion she was biased due to her desire to adopt G.A. The court concluded G.A. would be at substantial risk of physical or emotional detriment due to evidence Father could not attend to G.A.’s special needs, there would be no oversight in Nevada, Father showed poor judgment in maintaining a relationship with Mother, and Father appeared unwilling or unable to expand the nature and scope of his visits. The court noted Father appeared to show no proactive interest in G.A.’s therapeutic services.
Discussion
A. Substantial Risk of Detriment
“At the 18-month permanency review hearing the juvenile court either orders the return of a dependent child to parental custody or terminates reunification services and sets a hearing for the selection and implementation of a permanent plan pursuant to section 366.26. (§ 366.22, subd. (a); rule 5.720(c)(1) & (3).) ‘Absent extraordinary circumstances, the 18-month review hearing constitutes a critical juncture at which “the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children.” [Citation.]’ [Citations.] [¶] As was true at the six-month and 12-month review hearings, unless the court finds by a preponderance of the evidence that returning the child to the physical custody of his or her parents would create a substantial risk of detriment to the child’s safety, protection or physical or emotional well-being, the court must order the child returned. (§ 366.22, subd. (a); rule 5.720(c)(1).) ‘If the child is not returned to a parent or legal guardian at the [18-month] permanency review hearing, the court shall order that a hearing be held pursuant to section 366.26 in order to determine whether adoption, guardianship, or long-term foster care is the most appropriate plan for the child.... The court shall also order termination of reunification services to the parent or legal guardian.’ (§ 366.22, subd. (a).) A finding of reasonable services offered or provided is not a precondition to ordering a section 366.26 hearing. [Citation.]” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 306-307, fn. omitted; see also In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788 (Elizabeth R.) [“The Legislature has determined that the juvenile court must embrace or forsake family preservation at this point by circumscribing the court’s options”].)
This court reviews the juvenile court’s ruling for sufficiency of the evidence. “Evidence sufficient to support the court’s finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials which the law requires in a particular case. Where, as here, a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. In the presence of substantial evidence, appellate justices are without the power to reweigh conflicting evidence and alter a dependency court determination.” (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705, internal quotation marks and citations omitted.)
Mother and Father argue they participated regularly with their case plans and made the requisite progress to justify the juvenile court returning G.A. to their custody. However, as we will discuss, neither parent’s argument is supported by the record.
(a) Mother’s argument
Mother argues the court erred in failing to return the minor to her care because substantial evidence did not exist showing the child would be at risk in her care. She argues there was compliance in all respects with the reunification plan, and her case is like Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 (Blanca P.). In Blanca P., a different panel of this court recognized the easy cases in deciding whether it would be detrimental to return a child are “ones where there is a clear failure by the parent to comply with material aspects of the service plan. In Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763-764..., for example, a mother continued to test positive for illegal drug use, continued to move from place to place, failed to ‘regularly’ attend therapy, and failed to complete her parenting class. This was obviously enough to support a finding of detriment. [¶] The harder cases are, like the one before us, where the parent has complied with the service plan, but for some reason has not convinced a psychologist or social worker that it would be safe to return the child to the parent. The problem is not, as it were, quantitative (that is, showing up for counseling or therapy or parenting classes, or what have you) but qualitative (that is, whether the counseling, therapy or parenting classes are doing any good). These are sensitive cases, fraught with emotional overtones, because they invariably deal with an evaluation of the personality, character and attitudes of the parent.” (Id. at p. 1748, fn. omitted.) We disagree with Mother’s comparison. This is not a hard case with respect to Mother.
Mother’s case plan included outpatient drug treatment, individual counseling, a PEP, a parenting program, substance abuse testing, and participation in a 12-step program. Other than completing a parenting class in March 2008, Mother repeatedly failed to actively participate in any other component of the plan. She had several starts at the outpatient drug treatment program in Arizona, but she failed to remain for any substantial length of time or show any progress. She completely disregarded the counseling or PEP requirements. She could not support her claims to have attended NA meetings and had long periods of time where she failed to drug test. Her visits with G.A. were limited and sporadic. In sum, her issues were far from resolved by the time of the 18-month review hearing (which was in fact almost 22 months after detention).
Mother argues her compliance with the case “cannot be categorized as a clear failure” because she was “generally compliant” with some aspects of the plan. She concludes, “An addict is in a constant struggle to remain clean and sober, and while this struggle may not make Mother an ideal parent, she, nonetheless, has made formidable progress. As such there is not a substantial risk to the Minor.” But in this case, the record shows the minimal haphazard progress Mother made at the start of these dependency proceedings completely disappeared by the time of the last review hearing. Mother showed utterly no sign of committing to a program of drug treatment, counseling or testing. There is no dispute Mother loves G.A., but the evidence supports the court’s finding that in two years, Mother had not proven she is able to take care of her herself, as well as for G.A.
(b) Father’s argument
Father’s case is more difficult. He was declared a presumed father nine months after G.A. was detained, and he was never named in the petition, i.e., he was a noncustodial, nonoffending parent. Unlike Mother, his statements about wanting to reunite with G.A. were supported by his actions. Father completed a parenting class, complied with drug testing to prove he was not addicted, maintained a steady job, secured permanent housing, and traveled a great distance to consistently visit his daughter. He was described as affectionate and endearing with G.A. But despite Father’s best efforts to prove he was a worthy father deserving custody, his voluntary submission to SSA’s case plan, and his full compliance with all the required components, he was unable to convince the social worker or the juvenile court it would be safe to place G.A. in his care.
The trial judge (who was newly assigned to the case the day before the 18-month review hearing) made his ruling based on the reports and the testimony of the only two witnesses who testified and who both agreed G.A. would be at risk of harm if placed with Father. The primary reasons cited were Father’s immaturity, his deficient parenting skills, his inability to assist a child with developmental special needs, his financial situation, his poor judgment with respect to Mother, and his failure to seek more visitation. In addition, the court relied on the fact Father’s ICPC was denied and there were limitations to the services available to Father if G.A. was placed with him in Nevada.
Father’s response in his writ petition, at first glance, is very compelling: Father became a first time dad at age 27, and there is necessarily a “learning curve” for every new parent: His counsel argues, “This father has shown an ability to follow court orders, and a substantial commitment toward his daughter. The dependency foundation is based on identifying risk of harm and providing services to reduce the risk.... Placing [G.A.] with her father will not come without any risk. But placing [G.A.] with her father does not put her in ‘substantial risk of detriment.” He asserts the court could have ordered SSA to monitor the minor in his custody in Nevada or ordered Father to bring the child to California on a regular basis for monitoring. He concludes the court’s ruling he cannot adequately care for G.A. is based on speculation, the biased testimony of a foster parent who wishes to adopt G.A., and the conclusions of a social worker who could have done much more to help him reunite him with his daughter.
We find there are some aspects of this case that are troubling. We question the wisdom of having a very vocal person with self-interests contrary to the reunification goals serving as a visitation monitor. In addition, we find it difficult to fault Father for not inquiring about G.A.’s current developmental delays, when SSA could not clarify at the hearing whether G.A. may have improved to a point that she was close to her goals developmentally. Little credit seems to have been given to the facets of Father’s life where he showed a great deal of maturity. For two years he showed an incredible commitment to his daughter, proactively addressed every issue and concern raised by SSA, and at the same time excelled at his job and obtained a promotion. The reasons offered by the social worker for not giving unmonitored visits to a presumed father, who was also a nonoffending parent after he proved to be drug free is somewhat problematic. Understandably, SSA initially needed some time to establish Father was not addicted to drugs or unstable like Mother. But once these fears were eliminated, the reasons for denying unmonitored visits related entirely to the social worker’s disapproval of Father spending time with Mother before and after his visits with G.A. (which coincided often with Mother’s visits with their child). There was no evidence Father ever placed G.A. in danger or would not have been willing to protect G.A. or keep Mother away if his visits were unmonitored. Father had a solid history of complying with every court order. Based on our review of the record, it appears Father was sometimes treated like an offending parent. Why was an ICPC home study required for a nonoffending, noncustodial parent? If maturity was a criteria for custody of children, the State would need to hire an army of social workers. Finally, we note the excessive continuances and delays in these proceedings made it increasingly difficult for Father to achieve his goal of custody, especially given that his residence and job were in Nevada.
In his brief, Father discusses the evidence showing he was mature, cooperative, and would never harm G.A. He argues there was inadequate evidence to demonstrate a substantial risk to G.A. if she were placed with him. But our review of the record is limited to whether there is substantial evidence to support the juvenile court’s order, and this court cannot reweigh the evidence. The record shows that Father’s failure to testify, or otherwise rebut the opinions of the testifying witnesses, unfortunately, left the court with little reason to doubt their observations or conclusions regarding Father’s capabilities as a parent.
As noted by the juvenile court, “The court did not have the opportunity to observe [Father’s] demeanor inasmuch as a portion of the basis for this court’s finding turns on [Father’s] skill, judgment, temperament and maturity to parent a child that he has never parented. Since [Father] did not testify, this court has no clue or impressions controverting the testimony of the witnesses and the evidence of the [SSA] reports regarding his shortcoming with regard to skill, judgment, temperament and maturity to parent. [¶] On the other hand, as noted, the court did observe the demeanor and character of the testimony of the social worker... and the current caretaker, Lisa W. The court found both witnesses to be very credible.” The court rejected Father’s counsel’s suggestion Lisa W. was biased, stating, “Certainly, there was no evidence offered to directly impeach any aspect of her testimony.”
Thus, we must conclude there was sufficient evidence to support the court’s ruling at the 18-month review hearing. In addition to the witnesses’ testimony, it could be reasonably inferred G.A. still had some degree of special needs as she was still receiving therapy from the Regional Center twice a week. There was no evidence to rebut Lisa W.’s and the social worker’s observations that Father failed to acknowledge his daughter had developmental delays, Father ignored requests he provide a healthy diet due to G.A.’s issues of being underweight, and Father often required assistance on how to interact and discipline his daughter. It is undisputed Father never asked about what services G.A. was receiving or made any effort to educate himself about her current developmental goals or needs. As aptly stated by minor’s counsel on appeal, “Father further proved his immaturity by blaming SSA for not inviting him to attend Regional Center appointments rather than acknowledging he failed to take a proactive approach to better understanding [G.A.’s] needs.”
Father’s argument all new parents will have a steep learning curve and cannot be expected to be perfect falls short in this case where Father was dismissive when offered any advice or suggestions from those caring for G.A. on a daily basis and who had first hand knowledge of her challenges and special needs. It is very telling that this “first time” parent expressed no interest or curiosity in G.A.’s therapy goals and took no role in trying to assist or help her overcome her developmental problems. Father’s veracity and motivations for reunification were challenged by evidence he required financial assistance for transportation to visit G.A., but yet he seemed to have money to stay in motel rooms with Mother. Father completed the services requested of him but qualitatively failed to establish he was capable to parent, nurture, and protect a child with developmental delays.
B. Adequate Services?
Mother complains the services she received were unreasonable because the social worker (1) referred her to a service provider who would not return her telephone calls, (2) failed to verify Mother received referrals, (3) failed to evaluate Mother’s home for placement, (4) failed to invite Mother to G.A.’s appointments, and (5) failed to have face-to-face contact between November 2008 to January 2009.
Similarly, Father challenges the quality of services offered to him. He also reminds this court he agreed to comply with SSA’s case plan voluntarily and there were no allegations he was unfit or addicted to drugs. He asserted SSA failed to keep its promise to lift the visitation monitor after he tested clean for one month. He argued it was unfair for the social worker to conclude at the hearing that Father needed further parenting classes to deal with G.A.’s special needs but failed to find an appropriate class until one month before the hearing. He speculated SSA “purposely withheld the parenting class that Father required to reunify with his daughter....” He also maintained the social worker never informed him about or gave him the opportunity to attend G.A.’s therapy appointments.
Without deciding whether SSA provided reasonable services to Mother and Father, we conclude the juvenile court properly proceeded to setting a permanency hearing at this stage of the proceedings. The 18-month review hearing at which the court terminated reunification services actually took place approximately 22 months after G.A. was detained. In Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1511 (Denny H.), the court rejected father’s contention he had not been provided reasonable services, stating: “At the critical juncture of the 18-month hearing, the authority of the juvenile court to set a section 366.26 hearing is not conditioned on a reasonable services finding. In mandatory, unequivocal terms, section 366.22, subdivision (a), states that if the minor is not returned to parental custody at the 18-month review, ‘the court shall order that a hearing be held pursuant to [s]ection 366.26....” Even if the court finds reasonable reunification services have not been provided, section 366.22, subdivision (a), does not prohibit it from ordering a.26 hearing. (Denny H., supra, 131 Cal.App.4th at p. 1511, citing Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1015-1016.)
C. Exceptions to the Rule
As correctly noted by Mother, there are exceptions to the 18-month rule. Services could be extended beyond the statutory period if there were extraordinary circumstances involving an external factor that prevented the parent from participating in the case plan. (Denny H., supra, 131 Cal.App.4th at p. 1510; Elizabeth R., supra, 35 Cal.App.4th at pp. 1793-1799.) Mother asserts the “external factor” creating an extraordinary circumstance for Mother was her physician-ordered period of bed rest for two months (March 31, 2008 to June 6, 2008). Assuming for the sake of argument her bed rest qualifies as an external factor and precluded her from having regular and consistent contact with G.A., Mother had ample time following her release from bed rest to demonstrate her commitment to reunification. Services were not terminated until eight months later. She had ample opportunity to participate in her case plan and address the issues necessary for reunification. She failed to make any significant progress. (C.f. Elizabeth R, supra, 35 Cal.App.4th at pp. 1793-1799.)
In addition, Mother cites to the newly enacted statute providing that at the 18-month hearing, “[i]f the child is not returned to a parent or legal guardian at the permanency review hearing and the court determines by clear and convincing evidence that the best interests of the child would be met by the provision of additional reunification services to a parent or legal guardian who is making significant and consistent progress in a substance abuse treatment program, or a parent recently discharged from incarceration or institutionalization and making significant and consistent progress in establishing a safe home for the child’s return, the court may continue the case for up to six months for a subsequent permanency review hearing, provided that the hearing shall occur within 24 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian. The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian.” (§ 366.22, subd. (b).)
Here, the evidence clearly showed there was no substantial probability that G.A. would be returned to Mother’s custody and safely maintained in her home within the extended period of time of two additional months (since the review hearing took place at 22 months and only 24 months is permitted). Additionally, Mother does not meet the criteria of a parent making “significant and consistent progress in a substance abuse treatment program[.]” She argues a parent on bed rest encounters the same insurmountable barriers to completing a case plan as those encountered by incarcerated or institutionalized parents. Perhaps so, but the statute only contemplates offering additional services to those parents “recently discharged” from their confinement. After the medical barriers to participating in her case plan were removed, Mother was given eight additional months of services. This is more time than what was contemplated by section 366.22, subdivision (b). No more was warranted.
Disposition
The petitions are denied.
I CONCUR: FYBEL, J.
Aronson, J., concurring:
I concur in the majority opinion, including the disposition, except that unlike the majority I would reach the juvenile court’s conclusion Orange County Social Services Agency (SSA) provided reasonable reunification services. I write separately to make clear that unreasonable services may require the juvenile court to continue the 18 month review hearing instead of setting the Welfare and Institutions Code section 366.26 hearing (.26 hearing). I also write separately to make clear SSA provided unreasonable services in relation to an important part of father’s reunification prospects: addressing G.A.’s developmental delays.
All further statutory references are to the Welfare and Institutions Code.
According to the social worker’s January 13, 2009, report, she concluded — in October 2008 — that father needed “a more comprehensive, specialized parent education course,” presumably because of his daughter’s special needs. She omitted that conclusion, however, from her October 2008 report. Nor does the record disclose she otherwise informed father of the new requirement. She did not locate a suitable class in Nevada until the week before the 18-month review hearing held on February 6, 2009. The social worker blamed the extensive delay — unreasonable, in my view — on Nevada’s “limited and not very accessible” network of services. In failing to provide notice to father, SSA never gave him the opportunity to locate the class himself, even though he had demonstrated resourcefulness in navigating Nevada’s system to obtain subsidized daycare for G.A., who was not even in his custody. Nor did the social worker offer father a class in California, making the judgment for him that it was too inconvenient. She ignored the commitment he demonstrated by rearranging his work hours to visit G.A. and finding, for example, a way to California when he missed his bus.
Almost 10 months earlier, back in April 2008, father had completed the more general parenting class SSA recommended at that time.
She also blamed the difficulty in obtaining “Medi[c]aid and financial assistance” and “services for [a] child,” but the issue was a class for father, not these other services.
The trial court seems to have excused SSA’s dereliction with respect to a special needs class for father by, ironically, faulting father for his lack of appreciation for G.A.’s special needs. Specifically, the trial court noted his apparent lack of curiosity about her special needs classes, commenting “[t]he desire to know more about your child and what it takes to care for her is a desire which has to come from within an individual,” and implying that, “You can send someone to classes all day long, but if they don’t have that internal mechanism within themselves to make that happen, no amount of services” matter. This is not the law. As this court has held in extending the reunification period beyond 18 months based on unreasonable services, “Even assuming father could have done more for himself, the issue is whether SSA gave him the services to which he was entitled.” (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1167 (Robin V.); accord, In re Daniel G. (1994) 25 Cal.App.4th 1205, 1214.) And apart from express statutory authorization for services beyond 18 months (see § 366.22, subd. (b)), unreasonable services also may require the juvenile court — sua sponte if necessary — to continue the 18-month hearing for additional services instead of setting the.26 hearing. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1017.)
I concur fully in the disposition, however, because a more favorable result for father is not reasonably probable (see Robin V., supra 33 Cal.App.4th at p. 1166, citing Cal. Const., art. VI, § 13) had SSA timely provided the special needs class. True, since father demonstrated alacrity in meeting obligations imposed by his case plan, the class may have redressed not only his failure to appreciate G.A.’s remaining developmental delays but also issues potentially related to that lack of insight — such as the importance of proper nutrition given her special needs and more appropriate ways to interact with and discipline her.
But there was more, entirely apart from finding a class to help father appreciate and meet G.A.’s special needs, that justified the trial court’s decision to set the.26 hearing. Perhaps most troubling, despite SSA’s warnings, father not only ignored that mother’s failings brought his daughter into the dependency system, he increased rather than decreased his ties with her as she continued to fail at reunification. (See In re Joseph B. (1996) 42 Cal.App.4th 890, 903 [problems leading to court intervention must be redressed, including any “manifestation of the original basis for dependency”].) As the majority observes, “Mother showed utterly no sign of committing to a program of drug treatment, counseling or testing.” (Maj. opn. ante, at p. 19.) Father nevertheless brought mother to visits against SSA’s admonition and arranged most visits to rendezvous with mother, thereby carelessly exposing G.A. to mother and her problems and increasing the risk of future contact.
Additionally, without referring to G.A.’s particular needs, father’s sister declined to endorse him as a child caretaker absent his brother’s help, and the reference father provided similarly admitted she would refuse to allow him to care for her children. The Legislature generally requires that parents progress sufficiently by the 18-month review to be entrusted with the care of their children by that date. (§ 366.22, subd. (a); Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 306-307.) Yet as the juvenile court observed: “The record reveals no requests by the father to change the nature of his visits from monitored to unmonitored or to overnight. The record reveals no apparent efforts by the father to change the location of his visits. The record reveals no effort to change the two-hour monitored visits at the visitation center.” (Cf. In re Casey D. (1999) 70 Cal.App.4th 38, 51 [requisite showing of parenting relationship “difficult to make” where one has never “advanced beyond supervised visitation”].) Simply put, substantial evidence supports the juvenile court’s conclusion father’s inability to care for and protect G.A. was more fundamental than a failure to grasp her special needs. Put another way, father fails his burden to demonstrate that had SSA timely provided a class directed at special needs parenting, the juvenile court’s legitimate concerns about his ability to parent and protect a child — with or without special needs — would be unfounded. I therefore agree father is not entitled to an extraordinary writ overturning the juvenile court’s ruling.