Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Benito County Super. Ct. No. JV0700007
McAdams, J.
In this writ proceeding, the mother of five dependent children seeks review of the juvenile court’s findings and orders terminating reunification services and setting a permanency planning hearing. Finding no merit in her challenge, we deny the mother’s petition for an extraordinary writ.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner R.C. is the mother of five children, whose ages ranged from three to 10 years old at the start of this dependency proceeding. The four older children are girls who share the same father. The youngest child is a boy with a different father.
Dependency Proceedings
Detention; Petitions
In March 2007, the children were placed in protective custody when the mother was arrested for a probation violation. Several days later, a petition was filed on the children’s behalf by the San Benito County Health & Human Services Agency (Agency). The petition was brought pursuant to section 300 of the Welfare and Institutions Code. (Further unspecified statutory references are to that code.) In April 2007, the Agency filed an amended petition.
The amended petition alleged: “The mother fails to provide the children adequate food.” It further alleged: “The mother has a history of substance abuse that affects her ability to provide adequate care for the children” and she “uses illegal drugs in the presence of the children.” The petition also alleged: “The mother has a history of failing to protect the children from sexual abuse.” The second oldest child was the “suspected victim of a sexual assault by an adult male who lived at the residence” and the children stated that “there were subsequent incidents of molestation after they told their mother of the sexual abuse.” Based on these and other factual allegations, the petition asserted the mother’s general failure to protect the children and her specific failure to protect them from sexual abuse. (§ 300, subds. (b), (d).)
Jurisdiction
In April 2007, the Agency filed a jurisdiction report. As assessed by the Agency: “This is a family with multiple problems and an extensive child welfare history. The children have been exposed to neglect, sexual abuse, and the effects of parental substance abuse. The children are in need of a safe and supportive home. It is clear that the children come within the provisions of Welfare and Institutions Code Section 300.” The Agency recommended that the court sustain the petition and set a disposition hearing.
At the jurisdiction hearing, the mother submitted to the allegations of the petition. The court sustained the petition, and a disposition hearing was set.
Disposition
In May 2007, the Agency filed a disposition report. By then, the children were placed together in the home of their maternal uncle. According to the report, until the mother “demonstrates that she understands or accepts the detrimental effect of her substance abuse on her children” and also “demonstrates that she is able to engage and benefit from services the children will remain at great risk of further harm in her care.” The Agency recommended the children’s continued removal, with family reunification services for the mother.
At the disposition hearing, the mother submitted to the Agency’s recommendations. The court ordered reunification services for the mother, and it set a review hearing.
Review Hearings and Reports
Six Month Review
In September 2007, the Agency filed a status review report. The Agency described the reunification services offered to the mother, which “included individual counseling, psychotropic medication assessment, parenting education, substance abuse counseling, and substance abuse testing.” According to the Agency: “Although [the mother] has participated in some of the case plan activities, she has not completed all of them. Further, [the mother] has not met the service objectives that are also outlined in the case plan.” In the Agency’s view, the mother “does not appear to understand the reasons for the removal of her children nor has she taken responsibility for her actions.” The Agency recommended a finding that the mother “has made minimal progress toward alleviating or mitigating the causes necessitating placement of the children in foster care,” but it also recommended the continuation of services for the mother.
At the review hearing held in October 2007, the mother submitted on the report. With a modification related to the Agency’s ability to provide parenting classes, the court adopted the recommendations. The court thus continued family reunification services for the mother. It set a 12-month review hearing for April 2008.
Twelve Month Review
In April 2008, the Agency filed its status review report for the 12-month hearing. It recommended the termination of reunification services for the mother.
The report recounted the mother’s belief that “she has met the requirements of her case plan.” The report suggested that the mother’s “inability to properly care for her children may be more of psychological disorder than her use of drugs.” Attached to the report were two letters, one from the girls’ therapist (Sheila Kimura) and the other from the psychiatrist seen by the mother (Elizabeth Lee). According to Dr. Lee’s letter, the mother continued to deny having any problems and “appears to simply be going through the motions of therapy. If she is given an additional six months of therapy, I believe it unlikely that she will change her position.”
Because the mother disagreed with the recommendation for termination of family reunification services, a contested hearing was set for April 21, 2008.
At the contested hearing, the Agency submitted on its report. The mother’s counsel requested a continuance to allow the mother “to undergo a psychological evaluation,” which the court denied. The mother then offered her own testimony in evidence. On direct examination, she recounted her participation in services. She answered in the negative when asked: “Do you believe that you have any problems that you still need to address?” But the mother expressed her willingness to accept further services and her desire to reunify with her children. On cross-examination, the mother stated that the only reason for her children’s removal was her arrest. She denied that the girls had been sexually abused.
After the presentation of the foregoing evidence, the court entertained argument.
The Agency’s attorney pressed for termination of reunification services, arguing that the mother would not “benefit from additional services. She’s had one year. I think a lot of the issues that were the underlying reason for the removal of the children still remain.”
The mother’s attorney argued “that she has been endeavoring to do the best she can,” specifically mentioning her completion of the parenting class and her attendance at NA meetings. The attorney asserted that the mother’s “principal issues” with case compliance related to “psychological testing,” he stated that she was willing to overcome those “stumbling blocks,” and he asked the court to “give her one last chance to comply with that.”
Agreeing that the mother might have undiagnosed psychological issues, the children’s attorney suggested “a look at the situation and … perhaps a psych eval.” She continued: “The children are in a safe placement … they’re old enough. We could give her six more months.”
The Agency’s attorney then observed, “we’re looking at five more months, not really a full six months. The 18 months is up in five because this matter has been continued for a contested hearing.” The attorney argued against offering the mother even five months’ more services, questioning “the realistic chance of her reunifying given that she – even up to this point she’s not even understanding or willing to accept” the reasons for her children’s removal.
The judge stated that he was not “convinced that there’s a psychological disorder or anything other than stubbornness operating here.” Nevertheless, he told the mother, “I’m hopeful, and I’ll give you the five months.” He continued: “You’re that close to ending it right now, and now you have a little bit more time. If you can’t do it within that little bit more time, then you won’t have the chance anymore.” After further admonishing the mother that this was her last opportunity to reunify, the judge said: “Okay. So I’ll order five more months of reunification. It won’t hurt the children. They’re in a good placement. They’re old enough that the temporary delay is not going to adversely affect them. … But we’re going to give [the mother] five more months.” The judge also ordered a psychological evaluation for the mother as well as continuing therapy. A review hearing was set for August 18, 2008.
Psychological Evaluation
A psychological evaluation of the mother was completed by Elaine Finnberg, Ph.D., which the Agency filed in June 2008.
In the evaluation, Dr. Finnberg summarized relevant aspects of the case, based on her review of the Agency’s reports and attachments. Finnberg discussed the sexual abuse allegations, including evidence supporting them and the mother’s reactions. She quoted the January 2007 police report, which was taken when the second child was hospitalized with a bruised and bleeding vagina. As reported by the police officer, the mother showed an “ ‘inability to express concern or comfort to her daughter, a disbelief approach to the situation. She displayed no affection to her 9-year-old daughter, who was in a traumatic state, and had minimal conversation.’ ” The child told the Child Protective Services that she and her sisters were molested by a man living in their garage, ostensibly as a renter. Her sisters “all gave very similar statements during their individual interviews” the next day. According to the police report, when the mother was interviewed, “ ‘she stated she understood what had transpired with her daughters but did not display any concern, remorse, or emotion. At the end of the interview, she made comments alluding that she did not believe the allegations….’ ” The renter was charged with three counts of child abuse. Elsewhere in the psychological evaluation, Finnberg noted two episodes in which the renter “had acted strangely” around the mother, once staring at her while she was showering and another time standing over her bed while she slept. “ ‘Despite such warning signs, [the mother] believes that there was nothing wrong, and that her daughters were not molested by the renter.’ ” The mother reported to Finnberg that “Child Protective Services had no concerns regarding her children, such as concerns regarding neglect, and they were only removed from her care because she was incarcerated.”
Summarizing her evaluation of the mother and her recommendations, Finnberg stated: “Records indicate serious problems with neglect, such as her children suffering from lice, not being fed by her, and suffering sexual abuse, which she continues to minimize and deny. She has been repeatedly described as expressing little to no concern for the wellbeing of her children as evidenced by the comments made in the Hollister Police Department reports about her reaction to her children’s allegations of being sexually abused. There is nothing in her current presentation, or records reviewed, to indicate that she has any further understanding of what her children have endured…. Therefore, I support the conclusions of Dr. Lee and Ms. Kimura that she is highly unlikely to make significant progress within the time allotted by law for her to successfully reunify with her children.”
Eighteen Month Review
In August 2008, the Agency filed its status review report for the 18-month hearing. The report recommended the termination of reunification services for the mother.
The report addressed specific areas of the mother’s case plan.
On the subject of counseling, the report advised: “On May 19, 2008, [the mother] was referred to Behavioral Health after the Court continued Family Reunification Services. [She] has had one counseling session with Michelle McDonald.” The report also noted that the mother had undergone a psychological evaluation, which was previously filed with the court. According to the Agency: “It is the consensus of Dr. Finnberg, Dr. Lee and Sheila Kimura that [the mother] is not capable of caring for her children adequately and she is unable to meet their daily basic needs.”
As for substance abuse testing, the Agency reported that the mother had previously “submitted to hair follicle testing” in August 2007 and March 2008, both times with negative results. She was given another referral in early August 2008, but she “refused to be tested.”
Concerning visitation, the Agency reported “very little interaction between [the mother] and the children during visits.” That had been a consistent pattern for the past six months.
More broadly, the Agency reported that the mother “feels that she is fulfilling the requirements of her case plan and that her children will be returned to her care. She has a difficult time sorting out facts and continues to be in denial about the circumstances that brought the children to the Court’s attention.” The Agency assessed: “It is detrimental to return the children to their mother. [She] has not made any significant changes in her life to safely return the children to her care. She continues to minimize the events that caused the removal of the children.” The Agency asked the court to find: “The mother has made minimal progress toward alleviating or mitigating the causes necessitating placement of the children in foster care.”
On August 18, 2008, the date set for the 18-month review hearing, the mother’s counsel asked the court to set the matter for a contested hearing. The court set the matter for September 15, 2008.
When the contested matter was called on September 15th as scheduled, the mother did not appear. Her attorney advised the court that he had met with her twice since the August 18th hearing, and that they had “discussed the defense that we were going to be presenting today.” He added that “she was to obtain some documents and help me get the defense prepared. … I have not spoken with her now for at least two weeks. … I was able to obtain a copy of some mental health records. I’ve shown those to the Agency. And basically the records say that she was trying to avail herself of mental health treatment because she knew she had this proceeding, and she knew she had to comply with counseling, and that was one of the issues she had.” The attorney acknowledged the statement in the Agency’s report that the mother had “refused to give a hair follicle test” the previous month. He said that he had advised the mother to submit to that test but he did not know if she had. The attorney then stated, “we would have to submit today because we have no other evidence we can offer other than, like I say, the report that I received dated July 25th from mental health showing that she did go to mental health and tried to schedule some appointments for herself.”
The Agency submitted on its report. Its attorney argued that the mother “is out of time, so at this juncture the Court either has to return the children to her, making a finding that they’re not at risk, or terminate services and set it for a [§ 366.26 permanency planning] hearing.”
Finding no basis for returning the children, the court made “the recommended findings and orders specified in the report.” It set a permanency planning hearing for January 12, 2009.
Petition for Extraordinary Writ
The mother gave notice of her intent to file a writ petition. Acting through her trial attorney, the mother petitioned this court for extraordinary writ relief in October 2008. She appended a declaration, but provided no memorandum of points and authorities.
The Agency opposes the writ petition. Procedurally, the Agency argues that the mother has failed to provide an adequate basis for writ relief. Substantively, the Agency defends the order, arguing that substantial evidence supports it.
DISCUSSION
To provide the proper framework for assessing the mother’s challenge to the order, we begin by setting forth the general legal principles that guide our review.
I. Legal Principles
A. Reunification
“If the child is removed from the parents’ custody, the court must make orders regarding reunification services. (§ 361.5.)” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) “Until permanency planning, reunification of parent and child is the law’s paramount concern.” (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 546; accord, Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 596; see §§ 361.5, subd. (a); 366.21, subd. (g)(1).) “When the state removes children from their parents, it is obliged to make reasonable efforts to reunify the family.” (In re Julie M. (1999) 69 Cal.App.4th 41, 49.)
Generally speaking, parents of dependent children are entitled to reunification services “aimed at assisting the parent in overcoming the problems that led to the child’s removal.” (Judith P. v. Superior Court, supra, 102 Cal.App.4that p. 546; see In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242-1243.) “The reunification phase of dependency proceedings is a critical aspect of the entire dependency system. If the parent fails to reunify with the minor, then the juvenile court must conduct a selection and implementation hearing, which may result in the permanent severance of the parent-child relationship.” (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 755.) Reunification plans “should be specific and internally consistent, with the overall goal of resumption of a family relationship.” (In re Luke L. (1996) 44 Cal.App.4th 670, 678.) They must be tailored to the particular situation. (Ibid.)
In some cases, reunification services may be provided for up to 18 months. (§§ 366.21, subd. (g)(1), 366.22, subd. (a).) “Sections 366.21 and 366.22 require that if a child may not safely be returned to the child’s parents within a maximum of 18 months from removal from the parents’ care, the trial court must terminate reunification efforts and set a section 366.26 hearing.” (In re Julia U. (1998) 64 Cal.App.4th 532, 543; see Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1008-1009.)
However, as this court long ago observed: “Reunification services are voluntary, and cannot be forced on an unwilling or indifferent parent.” (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220 [although reunification plan was adequate, father “showed little interest in complying with its requirements”]; see also, e.g., Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 970 [father “showed little willingness to utilize [reunification] services”].) “The goal of family reunification is not served when a parent has shown no interest in reunifying. Because reunification services are a benefit, not a constitutional entitlement, the juvenile court has discretion to terminate those services at any time, depending on the circumstances presented.” (In re Jesse W. (2007) 157 Cal.App.4th 49, 60.)
B. Appellate Review
A petition for extraordinary writ may be brought in the Court of Appeal to challenge a juvenile court’s decision to terminate reunification services and to set a permanency planning hearing pursuant to section 366.26. (See Cal. Rules of Court, rules 8.450, 8.452, 5.600; see generally, Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 577-578 [discussing former rule 39.1B].) The writ procedure, as outlined in the statute and implemented in the rules, enables a party to obtain expeditious review of the juvenile court’s decision. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.)
Whether appellate review is sought in a writ proceeding or in an appeal, we apply the general rule that the trial court’s judgment or order is presumed correct and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We review an order following a review hearing for substantial evidence. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020 [order under § 366.21]; see In re Brooke C. (2005) 127 Cal.App.4th 377, 382 [order under § 361.5].) The party challenging the order “has the burden to demonstrate that there is no evidence of a sufficiently substantial character to support” it. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420 [proceedings under predecessor statute].)
“In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; see also, e.g., Katie V. v. Superior Court, supra, 130 Cal.App.4th at p. 598.)
II. Analysis
As indicated above, the Agency defends the order on both procedural and substantive grounds. We address each in turn.
A. Adequacy of the Writ Petition
A party seeking extraordinary writ relief is obliged to submit a petition that “substantively addresses the specific issues to be challenged and is supported by an adequate record.” (Glen C. v. Superior Court, supra, 78 Cal.App.4th at p. 582.) As the Agency points out, the mother’s petition falls short of that requirement. It lacks the requisite memorandum arguing and supporting her specific claims of error. (Id. at p. 577; Cal. Rules of Court, rule 8.452 (a)(3), (b)(2).)
Despite its deficiencies, we shall entertain the mother’s petition on the merits. “The interest at stake in [such] petitions is of extreme importance, as the termination of reunification services in most instances ensures the subsequent termination of parental rights at the section 366.26 hearing.” (Glen C. v. Superior Court, supra, 78 Cal.App.4th at p. 580.) Moreover, the statute encourages reviewing courts to consider such petitions on their merits. (§ 366.26, subd. (l)(4)(B); Steve J. v. Superior Court, supra, 35 Cal.App.4th at p. 807.)
B. Validity of the Challenged Order
In her writ petition, the mother claims error on the ground that the Agency’s August 2008 status review report “failed to show mother/petitioner’s progress with the case plan despite mother’s recent progress.” She asserts that she “did not attend the hearing due to calendaring error.” In an attachment to the petition, the mother similarly contends that the Agency’s report “was incomplete.” She asserts that she “did complete many of the programs and requirements as mandated by her case plan.” According to the mother, had she not missed the hearing, “she could have provided proof that she has continued to comply and has made satisfactory progress with her case plan.” In her declaration, the mother states, “I had been in contact with my attorney concerning the hearing and was aware of my right to present evidence.” She further declares her “belief” that she “would have provided sufficient evidence to the court” to prove “significant progress” and the ability “to continue to receive services.”
We reject the mother’s claims of error. For one thing, having reviewed the challenged status review report and compared it to the mother’s writ papers, we disagree that the report is incomplete. The mother has neither identified nor attached any contemporaneous evidence that she would have proffered to add to the evidentiary record at the hearing. Furthermore, the mother has not shown how any available evidence would have changed the outcome of the hearing.
1. There is no basis for the mother’s attack on the report’s completeness.
We reject the mother’s claim of incompleteness.
In the first place, any lack of evidence before the juvenile court resulted from the mother’s failure to appear at the hearing. It was the mother who requested a contested 18-month review hearing, and she was present in court when the court set the date of that hearing. She adverts to a calendaring error but offers no details justifying her failure to attend this critically important hearing. On that basis alone, the mother could be deemed to have forfeited the opportunity to challenge the completeness of the report. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 502.)
Moreover, the mother has not demonstrated the existence of any then-available evidence that could have been included in the Agency’s report or otherwise offered at the hearing. The mother’s reference to drug testing is one example. In support of her writ petition, the mother declares: “I have been testing negatively for drugs and have complied with the requirements to give hair follicle samples.” But she fails to tether that statement to any particular date or time period. Nor does she attach any documentary proof that might pinpoint the time frame. For that reason, the statement does not demonstrate that the mother had been successfully testing as of the date of the contested 18-month hearing. A similar situation obtains with respect to the requirement for counseling. The mother declares: “I am attending all of my required mental health sessions.” Again, however, current attendance does not bear on the question of compliance with this aspect of the case plan as of the date of the hearing.
In short, the mother has failed to support her claim of error with any cognizable facts.
2. The mother has not shown prejudice.
Nor has the mother demonstrated prejudice. Here, even if we were to accept the mother’s assertion that she complied with her case plan, that factor alone would not tip the balance. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1341.)
In assessing the juvenile court’s decision to terminate reunification services, a number of considerations come into play. The parent’s compliance with the case plan is one consideration. (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at p. 1341.) But there are others, particularly including the parent’s progress toward alleviating the circumstances that led to the child’s removal. (Id. at p. 1344.) Another key concern is the child’s well-being. (In re Joseph B. (1996) 42 Cal.App.4th 890, 901.)
a. The Parent’s Compliance
“Compliance with the reunification plan, though not determinative, is a pertinent consideration at a section 366.22 hearing.” (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at p. 1341; Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) “The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (§ 366.22, subd. (a).) But even where compliance is established, that alone may not be sufficient to avoid the termination of services. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.)
b. The Parent’s Progress
Beyond compliance with the case plan, “the court must also consider progress the parent has made towards eliminating the conditions leading to the children’s placement out of home.” (In re Dustin R., supra, 54 Cal.App.4th at pp. 1141-1142.) In other words, “simply complying with the reunification plan by attending the required therapy sessions and visiting the children is to be considered by the court; but it is not determinative. The court must also consider the parents’ progress and their capacity to meet the objectives of the plan; otherwise the reasons for removing the children out-of-home will not have been ameliorated.” (Id. at p. 1143.)
In this case, there is substantial evidence to support the finding that the mother made only “minimal progress toward alleviating or mitigating the causes necessitating placement of the children in foster care.” The children’s removal was prompted by a number of factors, including the mother’s substance abuse and her failure to protect them from sexual abuse.
In addressing the mother’s substance abuse problems, the court ordered several types of services, including drug testing. The mother took two tests but refused a third. “Drug testing is an important component of the reunification plan, and we must consider the missed tests to be positive tests.” (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at p. 1343.) As explained above, we need not credit the mother’s declaration in this court that she has successfully drug-tested, since the mother fails to tie that statement to any relevant time period. Thus, we find nothing in the mother’s writ papers to overcome the implied finding that she failed to address one of the problems that led to the children’s removal, her substance abuse. (See Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 398 [while mother “did participate in some services,” she failed to address the most critical element, substance abuse]; disapproved on another point in Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 848.)
Another key factor in the children’s removal was the mother’s failure to protect the children from sexual abuse. According to the June 2008 psychological evaluation, the mother continued “to minimize and deny” the sexual abuse allegations and showed no indication “that she has any further understanding of what her children have endured….” In its August 2008 report for the 18-month hearing, the Agency echoed that concern, saying the mother “continues to be in denial about the circumstances that brought the children to the Court’s attention.” This is persuasive evidence that the mother failed to make progress in alleviating the problems that led to the children’s removal. (In re Dustin R., supra, 54 Cal.App.4th at p. 1141 [affirming the termination of reunification services where “the parents as a unit appeared to have a very limited awareness of the needs of their children” and how their past behaviors had harmed them].)
c. Risk to the Child
Another consideration is the child’s well-being. “The fact [that a parent has] satisfied the requirements of the reunification plan does not mean she was entitled to custody of the minor regardless of the substantial risk of detriment that reunification would have on the minor’s emotional well-being.” (In re Joseph B., supra, 42 Cal.App.4th at p. 901.) “Hence, the question whether to return a child to parental custody is not governed solely by whether the parent has corrected the problem that required court intervention; rather, the court must consider the effect such return would have on the child.” (Ibid.)
In this case, according to the Agency’s assessment in its August 2008 report: “It is detrimental to return the children to their mother. [She] has not made any significant changes in her life to safely return the children to her care. She continues to minimize the events that caused the removal of the children.” That assessment was shared by other professionals, including Lee, Kimura, and Finnberg. This constitutes persuasive evidence of a substantial risk of harm to the children if returned to the mother’s care.
In sum, the mother has presented no basis for overturning the challenged order.
DISPOSITION
The petition for extraordinary writ is denied.
WE CONCUR: Bamattre-Manoukian, Acting P.J. Duffy, J.