Opinion
No. B167380.
7-22-2003
CRISTINA C., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Marilyn Sipes for Petitioner. Lloyd W. Pellman, County Counsel, and Jerry M. Custis, Senior Deputy County Counsel, for Real Party in Interest. No appearance for Respondent.
A mother petitions for relief from a dependency courts finding of substantial detriment and order terminating reunification services with regard to two of her minor children. We deny the petition.
FACTS
In December 2000, a general neglect allegation brought Cristina C. and her seven minor children to the attention of the Department of Children and Family Services. Cristina entered into a voluntary family maintenance contract in which she agreed to keep a clean home and participate in a family preservation program. She was offered counseling, parenting classes, and homemaking, education, healthcare, and mental health services, transportation, and auxiliary funds, but she only partially cooperated. On unannounced visits in late 2001, the social worker found the home in a completely uninhabitable condition (with trash-filled rooms and no operating stove, refrigerator, or plumbing). The six youngest children (Sebastian C. (14), Veronica G. (12), Ruben P. (9), Maria G.P. (7), Carla V.P. (5), and Gabriel P. (2)) were detained, and the eldest child, 17-year-old Araceli C. was "at large," living with a boyfriend.
At the time, Cristina also had two adult children, Fernando T. and Moises O., who during their minority were also dependents of the juvenile court (as were Araceli, Sebastian and Veronica) but jurisdiction terminated with regard to that undetermined referral in February 1993. A second allegation of neglect was made in December 1997, but it too was undetermined.
In October 2001, the Department filed a petition, alleging the uninhabitable condition of the home, Cristinas failure to provide for her childrens nutritional needs, and her failure to ensure regular attendance at school. (Welf. & Inst. Code, § 300, subd. (b) [all section references are to this code].) The court found a prima facie case, the children were placed in foster care, and family reunification services were ordered. The four youngest children were released to the care of their father, Ruben P., leaving only Sebastian and Veronica in foster care (and they are the only subjects of this petition).
In a November 2001 report, the Department said Sebastian was having trouble at school. He told the social worker that the family showered at his uncles home, and sometimes ate there, or at school, or sometimes Cristina bought food. He said their "house has always been like this," and that "at [his] mom[s] house [he doesnt] have to go to school if [he doesnt] want to. [He doesnt] do homework. [He] hates school." Veronica said her mother "says shes going to clean." Veronica needed tutoring and had head lice. Neither child was certain about returning to Cristina, who had made "no progress" and did not know the whereabouts of school books, immunization records, or Sebastians prosthetic hand (which he had outgrown years earlier). Cristina was uncooperative with a counselor and failed to make appointments for the ordered preservation services. The dependency court sustained the petition as amended, ordered family reunification services, and ordered monitored visits for Cristina. Sebastian and Veronica remained in their foster homes.
Cristina came to California from Mexico at age 7, had several years of schooling in Mexico but none in the United States, worked in a "sweatshop" environment and was pregnant by age 13. She was socially and intellectually immature, tested in the "mild mental retardation" range, and had trouble disciplining and nurturing her children. Although she wanted the children with her, she also had "limited ability to show adequate planning and judgment in looking after [them or] providing a secure and protected environment."
In May 2002, the Department reported that Sebastian and Veronica had been placed in the same foster home in January, and both willingly attended counseling and were in tutoring programs. Both children missed Cristina but were visiting with the younger siblings. Veronica was more verbal, more involved in school activities, and had improved her school performance. Sebastian put in limited effort at school, performed poorly, and had a difficult time with house rules, hygiene, and regular school attendance. He wanted to return to his mother so he would not have to go to school or "do anything."
Cristina did not comply with the case plan, and expressed no intention to comply. She failed to take advantage of transportation services or to arrange visits or maintain contact with the minors, expressed no interest in them, and failed to follow up with therapy. Cristina misinformed the Department about her residence, and demonstrated no insight with regard to the uninhabitable home. Neighbors told the social worker that Cristina used to bring their trash into her home and stole their mail.
At a May hearing, the court found reasonable services had been provided, that Cristina had not complied with the case plan, and that return of the minors presented a substantial risk of detriment. The court ordered continued family reunification services and, specifically, that Cristina participate in parent education, individual counseling, and a psychological evaluation. In June, the foster parents successfully applied for permission to take Sebastian and Veronica to Mexico to visit relatives, noting that they wanted them to feel a part of their very close family.
In May and June, the court terminated jurisdiction with regard to Araceli, who reached adulthood, and with regard to the four younger children pursuant to a family law order granting legal and physical custody to their father.
In November, the Department reported that the children had "continued to progress." The foster mother taught both to groom themselves and to clean up after themselves (things they had never learned). Both continued in counseling, and were receiving appropriate medical and dental care. Veronica was doing well [* 7] in school and had asked her foster mother if she would be willing to adopt her. Sebastians adjustment and behavior had improved. Visitation with the younger siblings continued. Cristina partially complied with the case plan but she was dismissed from a parenting program for non-attendance, had not enrolled in counseling, and failed to maintain contact with the children (she visited Sebastian only twice and Veronica only once during the entire period of supervision). She still failed to express an understanding of the problem, and she had no home.
At a November hearing, Cristina presented evidence that she had completed a parenting class. The court found Cristina was in partial compliance with the case plan, and that a prior social worker had not provided reasonable services to Cristina (because she had failed to arrange the court-ordered psychological evaluation recommended for Cristina). Based on that failure, the court extended reunification services, and ordered the Department to arrange a psychological evaluation. In December, and again in March 2003, the court permitted the children to go on vacations with their foster parents.
In March 2003, Cristina was given notice of the 18-month review hearing (in April), and of the Departments recommendation for termination of family reunification services and for an order setting a section 366.26 permanent plan hearing. In April, the social worker reported that Cristina had no job and no home, and was living with her daughter, Araceli. New counseling referrals had been made in late 2002, and an appointment for the psychological evaluation had been arranged. Cristina was diagnosed with depression disorder, but the assessment was not completed because Cristina missed subsequent appointments. The social worker arranged weekly visits for Cristina for about a month, and she attended all but one, but when Cristina was left to arrange her own visits, she failed to do so and had not visited the children since February. The children were no longer interested in visits with Cristina, and did not want to return to her. Cristina acknowledged she was "not ready" to have her children return to her.
At an April hearing, Cristina said she had been hospitalized for a week in February, which she claimed kept her from working and finding an apartment. She said she was feeling better and had the money for an apartment, and that she wanted to complete the psychological evaluation (and had made an appointment). The Department and the minors lawyer opposed the request for a continuance, but the court continued the matter at Cristinas request.
Later in April, Cristina told the court she was unable to complete her psychological evaluation because the evaluator was ill the day of her appointment. She had a new appointment in May, and claimed to have an apartment the social worker had not yet evaluated. She claimed reasonable services had not been provided and that her visitation had been "thwarted." She requested a contested section 366.22 hearing. The court granted the request for a contested hearing, ordered Cristina to complete the psychological evaluation, and ordered the Department to provide a bus pass and "ensure . . . regular visitation."
The contested hearing was held in May. Cristina had not completed the psychological evaluation, and had another new appointment. She requested another continuance, which the court denied. The Department and the childrens lawyer asked the court to terminate services.
The social worker testified that he had called Cristina numerous times to encourage her to complete the evaluation, and only stopped when the court ordered (in April) that it was Cristinas responsibility to complete it. Contrary to Cristinas claim that her last appointment was rescheduled because no Spanish-speaker was available that day, the therapist told the social worker that Cristina had failed to show. The children told the social worker they did not want to visit or return to Cristina because they felt their mother had not changed and they feared they would end up in the "same situation." Cristina was living in the back area of a house with her adult daughter, a space that was not large enough for Sebastian and Veronica.
Cristina testified that her living space was large enough for Sebastian and Veronica, that she had three beds and an extra room. Cristina was not working or receiving aid, but was receiving financial help from her eldest sons. Cristina claimed she had had alternate Sunday visits with Sebastian and Veronica since January 2003, during which they talked and hugged.
The Department and the childrens lawyer asked the court to terminate services and explained that the foster parents and the children (who were doing "remarkably well" in their care) wanted legal guardianship. The court found that reasonable efforts to enable the minors return had been made by the Department, that Cristina only partially complied, that return of the minors to Cristina would create a substantial risk of detriment, and that guardianship was the proposed plan. The court terminated services and set a section 366.26 hearing for August 18. Cristina petitions for relief. (Cal. Rules of Court, rule 39.1(B).)
DISCUSSION
I.
Cristina contends the dependency courts finding that there was a substantial risk of detriment to the well-being of the children if they were returned to her was not supported by the evidence. (§ 366.22.) We disagree.
Assuming Cristina has a home for the children, assuming she participates in some measure in the care of her younger children, there remains substantial evidence that Sebastian and Veronica are likely to suffer detriment in Cristinas care — because her failure "to participate regularly and make substantive progress in court-ordered programs [is] prima facie evidence that return would be detrimental." (§ 366.22, subd. (a).)
The dependency court ordered regular monitored visitation and Cristinas participation in parenting classes, individual therapy, and a psychological evaluation, but the only aspect of the plan Cristina completed was a parenting program. Despite a significant amount of assistance and prompting by the Department, Cristina never enrolled in individual therapy, never completed the psychological evaluation, failed to maintain regular contact with Sebastian and Veronica, and failed to demonstrate an understanding of the problems that led to Department involvement or an intent to improve, thus lending credence to Sebastian and Veronicas wish not to return to Cristina on the ground she had not changed. Substantial evidence supports the courts finding of risk of physical and emotional detriment to the children if returned to Cristina. (In re John V. (1992) 5 Cal.App.4th 1201, 1212; In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
II.
Cristina contends the order terminating services and setting the matter for a section 366.26 hearing must be vacated because she did not receive adequate reunification services. Specifically, she claims (A) the Department knew from the beginning that she had problems that would make compliance with the plan difficult, "set [her] up for defeat," and that the Department undermined all offers of services by failing to set a psychological evaluation in the very beginning; and (B) the Department failed to consider her particular needs. We reject her claims.
A.
The Department did not immediately know of the need for a psychological evaluation, and a possible need became apparent only over time. Services were originally provided as ordered by the court, and the court found the services provided were reasonable. It was only after that initial period that the social worker wondered whether a psychological evaluation might reveal the reason for Cristinas lack of insight and willingness to comply, and the evaluation was then recommended and ordered.
During the next six-month period, Cristina completed a parenting program, demonstrating some capacity to understand and comply (In re Christina L. (1992) 3 Cal.App.4th 404, 415), but failed to enroll in individual counseling or to regularly visit the children. The court found all offered services appropriate. During the last six months, the Department maintained diligent contact with Cristina, provided additional referrals for individual therapy, arranged transportation, visitation, and her initial evaluation appointment (complete with directions and a bus pass), and cajoled Cristinas participation. It was up to Cristina to continue with her visits and complete the appointments for the evaluation. Despite the stakes, she failed to do so (In re Christina L., supra, 3 Cal.App.4th at pp. 414-415 [services are voluntary and cannot be forced on an unwilling parent]), and her failure to complete the evaluation meant that the root problem was never identified. The courts ultimate finding that reasonable services had been provided was supported by the evidence. (Id. at pp. 417-418.)
The court stated that, aside from the failure to arrange the psychological evaluation, the "other services [were] appropriate," and the court was very clear that it was "not saying across the board [that] the Department didnt make appropriate services," and services were extended only because "this particular necessity (the evaluation] wasnt provided."
The record belies Cristinas claim that she was not provided referrals for individual counseling. The Departments reports show Cristina had available to her referrals during each six-month period. Also, contrary to Cristinas claim that she was not provided reasonable visitation, the social worker testified that weekly visits were arranged.
B.
In contending that inadequate services were provided and that the Department failed to take into account her particular needs, Cristina identifies her limited English as the only "need." While the psychological evaluator was English-speaking, the social worker spoke with the psychologist himself and arranged the initial session, the receptionist spoke Spanish, and a Spanish interpreter was and would have been present for Cristinas sessions. The Department made a good faith effort to accommodate Cristina, and the fact the psychological evaluation was not completed had nothing to do with a language barrier, but everything to do with Cristinas failure to attend subsequent sessions. Cristina never complained in the trial court that an inability to communicate was responsible for her noncompliance with the case plan.
DISPOSITION
The petition is denied.
We concur: SPENCER, P.J., MALLANO, J.