Opinion
E053931 Super.Ct.No. RIJ113371
09-28-2011
C.J., Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.
David A. Goldstein for Petitioner. Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
OPINION
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition denied.
David A. Goldstein for Petitioner.
No appearance for Respondent.
Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Real Party in Interest.
Petitioner C.J. (Mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court's order terminating her reunification services, reducing her visitation with her child (born July 2010), and setting a hearing pursuant to Welfare and Institutions Code section 366.26. Mother argues she was not provided with reasonable reunification services, and the court did not have a sufficient factual basis for terminating her services. She also contends the juvenile court abused its discretion by reducing her visitation with her child, because there was no showing of detriment to the child. We deny Mother's writ petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On July 27, 2010, the Riverside County Department of Public Social Services (DPSS) filed a petition pursuant to section 300 alleging Mother had an extensive history of child neglect, substance abuse, and unresolved mental health issues. Mother had previously been offered reunification services as to three of her four other children, but did not benefit from services. All four of Mother's other children had been permanently removed from her custody. Amendments were filed on August 19, 2010, September 24, 2010, and October 21, 2010, as the social worker's investigation proceeded, so that the petition would include appropriate allegations about alleged fathers.
When interviewed at the hospital on July 25, 2010, Mother indicated she had used methamphetamine regularly for the first four months of pregnancy but had been sober since her fifth month of pregnancy, when she entered treatment. She also used marijuana until January 11, 2010. Mother further acknowledged she was schizophrenic and stopped taking off her medications when she found out she was pregnant. Since that time, she had not been treated by a psychiatrist; she said her symptoms had decreased.
When the child was born, Mother was living in a residential treatment facility, was doing very well, and had completed a parenting education course. A program counselor told the social worker Mother would have adequate support from fellow residents and staff to care for the child under a family maintenance plan. Pending further investigation, the social worker originally recommended the child remain in Mother's care so long as she stayed in the residential treatment program and submitted to a psychological evaluation. However, by July 28, 2010, the recommendation had changed to removal, and the child was immediately placed in a foster home. At the detention hearing on July 28, 2010, the juvenile court found there was a prima facie case for removal. Reunification services and visitation once per week were ordered for Mother.
Mother complied with her substance abuse treatment program and graduated on September 24, 2010. She was then scheduled to move to a nearby sober living home. Despite Mother's progress, the social worker recommended no further services pursuant to subdivision (b)(10) and (b)(11) of section 361.5, because she had failed to reunify with three other children, and was not offered reunification services as to a fourth child. In addition, the social worked reasoned that Mother had a long history of methamphetamine abuse and untreated schizophrenia. She had only been sober for a brief period of about six months while in a treatment environment. As a result, her ability to maintain her sobriety outside a treatment program was untested.
On August 31, 2010, the court continued the jurisdictional hearing and ordered the alleged father to submit to paternity testing. On October 4, 2010, a genetic test report confirmed the alleged father was the child's biological father, so the court continued the jurisdictional hearing once again. In an addendum report dated November 2, 2010, the social worker indicated Mother was no longer living in a sober living environment, and had made a "poor choice" by moving in with Father. Father had an extensive criminal history that included violent offenses, as well as a history of domestic violence against Mother, and substance abuse with Mother. Once again, the social worker recommended Mother not be provided with further services.
Father is not a party to this proceeding, so facts pertaining to him have only been included to the extent they are relevant to Mother's petition.
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At the jurisdiction/disposition hearing held November 17, 2010, the juvenile court found Mother made minimal progress in alleviating the causes necessitating removal. The court found true the allegations that Mother had an extensive history with child protective services, had lost custody of four other children, failed to benefit from prior reunification services, and was not offered services as to one other child. The court also found Mother had an extensive history of substance abuse, and had abused methamphetamine in the first four months of her pregnancy. However, the court did not find true the allegation that Mother had unresolved, untreated mental health issues and continued to experience hallucinations. This finding appears to be based on a letter in the record from Mother's treating psychiatrist, which said Mother's schizophrenia symptoms appeared to be under control without medication while she was living a sober lifestyle, and that she would be evaluated monthly.
As to Father, the court found true the allegations he had an extensive criminal history, including violent offenses, as well as a history of domestic violence and methamphetamine abuse. The court also found true an allegation of substantiated child neglect against Father in a prior juvenile court matter. In the prior case, Father was offered reunification services, but services were terminated when he failed to benefit.
Based on the best interests of the child, reunification services were ordered for Mother but not for Father; Mother was ordered to participate in the case plan. As part of the case plan, Mother was required to participate in programs for victims of domestic violence, parenting education, as well as substance abuse treatment and testing. She was also required to participate in counseling, be assessed for psychotropic medication needs, and follow a treatment plan for her mental health issues. Supervised visitation was ordered for three times per week.
In anticipation of the six-month review hearing, the social worker reported Mother had moved at least five times during the reporting period to different sober living homes; she was currently living in a motel. Mother was asked to leave one sober living home because of bizarre behavior. Mother was only in partial compliance with her case plan, and the social worker questioned whether she had benefitted from services. On the other hand, Mother was testing negative for substance abuse and was consistently visiting with the child twice a week for two hours. In the opinion of the social worker, the child could not be returned to Mother; Mother was unable to secure safe, stable housing for herself or her child, and had not sufficiently benefitted from services. Based on these factors, and the age of the child, the social worker recommended no further services for Mother.
The six-month review was held on June 27, 2011, almost a year after the child was placed in foster care on July 28, 2010. At this time, the juvenile court heard testimony from Mother and the social worker. The court did not find Mother a credible witness and concluded she had not regularly participated in the case plan or made substantive progress on the case plan. In addition, the court stated that based on the testimony, Mother had not sufficiently dealt with her psychiatric and anger issues. Reunification services were terminated and a permanency hearing was set pursuant to section 366.26. Mother's visits with the child were reduced to once per month.
DISCUSSION
A. REUNIFICATION
Mother argues reunification services were inadequate; the social worker did not request a psychological evaluation for Mother or have any meaningful contact with Mother's psychiatrist, but then relied on Mother's psychiatric diagnosis to recommend termination of reunification services. Mother also challenges the evidence relied on to support the trial court's termination of her reunification services. She argues the record shows she made significant progress on her case plan, was drug free, and by the time of the six-month review hearing, had stabilized her life to the point where she had her own residence and transportation.
Subdivision (a)(1)(B) of section 361.5 states as follows: "For a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under three years of age, court-ordered services shall be provided for a period of six months from the dispositional hearing[,] but no longer than 12 months from the date the child entered foster care . . . ." At the six-month review hearing, the juvenile court is required to return any dependent child to "the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. . . ." (§ 366.21, subd. (e).)
Reunification services must be "designed to eliminate those conditions that led to the court's finding that the child is a person described by Section 300." (§ 362, subd. (c).) The social services agency "must make a good faith effort to develop and implement a family reunification plan. [Citation.] '[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . .' [Citation.]" (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) "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.) "The applicable standard of review is sufficiency of the evidence. [Citation.]" (Amanda H., at p. 1346.) "A reviewing court may imply a finding if substantial evidence supports it." (Jose O. v. Superior Court (2008) 169 Cal.App.4th 703, 708.)
Under subdivision (e) of section 366.21, a "specialized inquiry" is required at the time of the six-month review if the child "was under three years of age on the date of the initial removal" and is not being returned to the parent's custody at that time. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175.) If "the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child . . . may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (§ 366.21, subd. (e).)
To determine whether there is a substantial probability of return, the court may consider such factors as whether the parent maintained consistent and regular visitation with the child, made progress in addressing the issues leading to the dependency, and demonstrated the ability to provide for the child's safety, protection, and health. (M.V. v. Superior Court, supra, 167 Cal.App.4th at pp. 177, 180.) However, the court is not limited to these factors and "may take all of the evidence into consideration in making its findings." (Id. at p. 181.)
As Mother contends, the record does show the social worker did not order a psychological evaluation for Mother even though there was concern about Mother's diagnosis of schizophrenia. In the delivered service log, the social worker indicated she asked Mother at the beginning of the proceeding on July 30, 2010, whether she had ever been psychiatrically assessed while sober from drugs and alcohol. Mother said she had been using methamphetamine, alcohol, and/or marijuana whenever she was taken in for mental health treatment. The social worker acknowledged it was possible the diagnosis was the result of drug induced psychosis. The social worker told Mother she would submit a referral for a psychiatric evaluation, but it is apparent from the record that this was never done.
In all other respects, the record shows services provided to Mother throughout the proceeding were designed to address the reasons the child was removed from Mother's custody. Reunification services were first ordered for Mother at the detention hearing on July 28, 2010. On July 25, 2010, the social worker gave Mother a family assistance packet which included information about the dependency process, a list of substance abuse and mental health treatment centers, and a list of many other available services.
On August 12, 2010, the social worker met with Mother again and referred her to individual counseling and a domestic violence victims' group. At that time, Mother was not referred to substance abuse treatment or testing, because she was already participating in a program that was providing these services. Since she completed a parenting course as part of this treatment, the social worker also did not refer Mother to parenting education. Apparently, no mental health referral was made at that time, because Mother's treating psychiatrist sent a letter to the social worker, stating Mother was being evaluated monthly, and symptoms had been under control while Mother was sober and in substance abuse treatment.
As outlined above, the jurisdiction/disposition hearing took place on November 17, 2010, and the court ordered reunification services despite the social worker's recommendation to deny services based on Mother's failure to benefit from services in other cases or to reunify with four other children. As Mother contends, it is true she completed an inpatient substance abuse program and courses in parenting and domestic violence. At the time of the six-month review hearing, she had consistently tested negative for substance abuse.
On the other hand, the social worker's report dated May 3, 2011, which was prepared in anticipation of the six-month review hearing, states that Mother had only complied with part of the case plan. She was referred to individual counseling on August 23, 2010, December 15, 2010, and April 5, 2011. She was discharged by one counselor for failure to attend appointments. She had only attended one appointment at the time the six-month report was prepared. Later, at the time of the six-month review hearing, the social worker did testify Mother had seen a newly referred counselor twice—once in April and once in May. Prior to that time, she had chosen not to attend. The social worker also reported Mother was unable to express how she benefitted from services, and she continued to have a relationship with her abuser. At the time of the six-month review report, the social worker said Mother was not participating in any substance abuse aftercare programs. At the time of the six-month review hearing, Mother did testify she was currently involved in a 12-step program. However, when viewed as a whole, Mother's involvement in aftercare was inconsistent.
Based on the foregoing, we conclude Mother was offered reasonable services throughout the proceeding. All services were designed to address the reasons the child was removed from Mother's custody. As outlined above, Mother's progress in completing the case plan was adequate in some components but deficient in others. Thus, Mother did not make substantive progress on the case plan.
Mother's lack of progress in key areas of the case plan was sufficient for the court to conclude it would be detrimental to return the child at the time of the six-month review hearing or within the next six months. In reaching its decision, the juvenile court was also entitled to consider Mother's relatively brief period of sobriety and participation in services, compared with her long history of substance abuse, and her significant prior history with child protective services.
Mother's testimony at the six-month review further indicated it would be detrimental to return the child to Mother. Although Mother had her own apartment at this time, she had only had it for a month. She admitted she had unstable living arrangements prior to that time, and had not lived in any one place more than three months. At one point during the proceeding, she was living with Father in a car. Mother also said she was pregnant again, and Father was the baby's father. Mother planned to live with Father after she was "done with CPS." She acknowledged Father had a history of methamphetamine abuse but she did not know if he had received any type of substance abuse treatment. As outlined above, Father had an extensive criminal history, including violent crimes and domestic violence. He was denied services in this proceeding, and services to him had been terminated in a prior proceeding because he failed to benefit. In sum, Mother's testimony confirmed that she continued to make poor choices, and had not benefitted from the services she received in this proceeding. As a result, the juvenile court was justified in terminating Mother's reunification services and setting a section 366.26 hearing.
We also reject Mother's contention that services were inadequate because the social worker did not request or obtain a psychological evaluation for Mother. Although the social worker had lingering doubts about Mother's mental health throughout the proceeding, and did not obtain a psychological evaluation, there is nothing in the record to indicate resolution of this issue would have changed the outcome of the proceeding. As we read the record, the court did not rely heavily on the social worker's concerns about Mother's schizophrenia diagnosis in reaching its decision to terminate reunification services and set a section 366.26 hearing. First, at the jurisdiction/disposition hearing held November 17, 2010, the court did not find true the allegation that Mother had unresolved, untreated mental health issues and ongoing hallucinations. Second, as outlined more fully above, the record includes ample evidence Mother lacked progress in key components of the case plan and did not benefit sufficiently from services. As a result, the court could reasonably conclude a psychological evaluation was not necessary, because it would not change the likelihood of return or the risk of detriment to the child.
B. VISITATION
Mother argues the trial court abused its discretion when it reduced her visitation with the child to once per month, because she had consistently been visiting twice a week for over six months and was interacting appropriately with the child. Mother believes it was important to continue frequent visitation, because it had become necessary to change the child's placement, and Mother's visits would ensure consistency for the child. In addition, Mother claims the reduction in visitation unfairly reduced her chance of prevailing under the parent-child benefit exception to the termination of parental rights under subdivision (C)(1)(b)(i) of section 366.26.
"The parent is given a reasonable period of time to reunify and, if unsuccessful, the child's interest in permanency and stability takes priority." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) At this time, "the focus shifts to the needs of the child for permanency and stability." (Marilyn H., at p. 309.) On the other hand, subdivision (h) of section 366.21 provides as follows: "In any case in which the court orders that a hearing pursuant to Section 366.26 shall be held . . . [t]he court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child." The juvenile court determines "when, how often, and under what circumstances visitation is to occur." (In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690.) We review visitation orders under the abuse of discretion standard. (In re James R. (2007) 153 Cal.App.4th 413, 434.)
Although it is true Mother was visiting the child regularly, the record shows she was unable to progress to unsupervised visitation. As a result, public resources were required for Mother to continue frequent, weekly visitation. As noted above, resources at this stage of the proceeding must shift and be focused on establishing permanency and stability for the child. Given the stage of the proceeding, Mother's lack of progress on the case plan, and the court's finding there was no probability the child could be returned to Mother within the next six months, we cannot conclude the juvenile court abused its discretion by reducing Mother's visitation to once per month. Mother did not cite, and we were unable to locate, anything that precludes the court from reducing visitation after reunification services were terminated, as long as some visitation was still taking place. Nor are we convinced by Mother's contention that the reduction in visitation unfairly reduced her chance of prevailing under the parent-child benefit exception to the termination of parental rights. "The kind of parent-child bond the court may rely on to avoid termination of parental rights under the exception provided in section 366.26, subdivision (c)(1)(A) does not arise in the short period between the termination of services and the section 366.26 hearing." (In re Richard C. (1998) 68 Cal.App.4th 1191, 1196.)
DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.