Opinion
F080034 F080493
03-17-2020
In re VICTOR S., JR., et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. S.B., Defendant and Appellant. S.B., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party in Interest.
Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant. John W. Stovall III for Petitioner. Thomas E. Boze, County Counsel, and Sophia Ahmad, Deputy County Counsel, for Plaintiff and Respondent/Real Party in Interest Stanislaus County Community Services Agency. No appearance for Respondent Superior Court of Stanislaus County.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Stanislaus Super. Ct. Nos. JVDP-18-000027, JVDP-18-000028, JVDP-18-000029)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q. Ameral, Judge. Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant. John W. Stovall III for Petitioner. Thomas E. Boze, County Counsel, and Sophia Ahmad, Deputy County Counsel, for Plaintiff and Respondent/Real Party in Interest Stanislaus County Community Services Agency. No appearance for Respondent Superior Court of Stanislaus County.
Before Franson, Acting P.J., Smith, J. and Snauffer, J.
-ooOoo-
In this consolidated matter, S.B. (mother) seeks extraordinary writ review of the juvenile court's orders issued at an 18-month review hearing (Welf. & Inst. Code, § 366.22, subd. (a)(1)) in December 2019 terminating her reunification services and setting a section 366.26 hearing as to her now eight- and six-year-old sons, Victor S., Jr., and Fernando S., respectively, and four-year-old daughter, Jolene S. (the children). Mother contends in her writ petition and on appeal from the 12-month review hearing that the reunification services provided by the Stanislaus County Community Services Agency (agency) failed to address her special needs. She also contends the juvenile court erred in not returning the children to her custody under family maintenance services or continuing reunification services. We conclude substantial evidence supports the court's rulings and deny relief.
Statutory references are to the Welfare and Institutions Code.
We consolidated the appeal and writ proceeding on our own motion.
PROCEDURAL AND FACTUAL HISTORY
Dependency proceedings were initiated in May 2018 when mother, the children and Victor S., the children's father (father), were found living out of a car parked at a nursing home where father's wife, T.S., also mother's aunt, was a patient. The car was unsanitary, with old dirty diapers inside, and the children were not eating properly. The nursing home staff was feeding and bathing the children. The staff also gave them clothes, shoes and a blanket to keep warm at night. The children stayed in the car with mother all day in the heat or ran around the parking lot unsupervised.
The responding social worker noted that mother was overweight and appeared to be delayed. Mother said her mental health prevented her from caring for the children without father's assistance. She reported being diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and depression but was not taking medication. Father refused to consider services through the Modesto Gospel Mission (Gospel Mission), Children's Crisis Center or the welfare office because he wanted to be close to his wife. In addition to being homeless, father was an undocumented Spanish speaking immigrant with an expired permanent resident card ("green card"). He and the family subsisted on mother's social security income and proceeds from the occasional odd jobs he could find.
The agency was familiar with mother's circumstances, having previously responded to her home to investigate reports of child neglect and domestic violence. She lived with father and T.S., who was bedridden. She and father conceived four children with T.S.'s approval. The first was a daughter who was removed from her custody as an infant in March 2006 by the Arizona Department of Child Safety (department). The department declined to place the child with father because of a substantiated report out of California that he sexually abused mother when she was a young teenager. Mother was provided services to reunify with her child but was unable to benefit from them. Parental rights were terminated, and her daughter was freed for adoption.
The agency took the children into protective custody and filed a dependency petition, alleging the parents' neglect placed them at a substantial risk of harm. (§ 300, subds. (b)(1) & (j).) The children were placed in foster care.
The juvenile court ordered the children detained and appointed a guardian ad litem (GAL) for mother. Mother told the court she understood what was going on; she just could not read or write. The court provided the parents a parent mentor and the children a court-appointed special advocate. Following the hearing, the GAL told the social worker to reinstate mother's Valley Mountain Regional Center (VMRC) services. Mother was a VMRC client until 2017 when her case was moved to an inactive status.
Mother first became a VMRC client in 1996 at the age of 11 in Stockton. A case was opened in Stanislaus County in 2004 and remained active until 2017.
In July 2018, the juvenile court conducted a contested jurisdictional/dispositional hearing. Mother and father made offers of proof, which the court accepted. Mother denied the children were not eating properly, stating she did not ask the nursing home staff to feed the children but gratefully accepted the help. She denied the children lacked clean clothes and said the family had sleeping bags and blankets in the car. She relied on father for assistance with some tasks but could do many things independently. Her inability to read and write was her only impediment and she was willing to get help for her mental health issues. She tended to overeat as a coping mechanism and was considering gastric bypass surgery to improve her physical ability to care for the children. She used edible marijuana legally to aid with back pain but kept it out of the children's reach. She wanted her VMRC services reinstated. Father said he was focused on reunifying with the children and was participating in services.
The juvenile court sustained the allegations in the petition, removed the children from parental custody and ordered the parents to complete a parenting program and individual counseling through Sierra Vista Child and Family Services (Sierra Vista), a substance use disorder (SUD) assessment and participate in random drug testing. Mother was also ordered to complete a clinical assessment through Sierra Vista to determine if there were additional services that would benefit her, and father was ordered to complete a domestic violence program.
By the six-month review hearing in March 2019, T.S. was deceased, and father and mother were married. They remained homeless and unemployed. However, they were cooperative with the agency and regularly visited the children. They completed SUD assessments and did not require treatment. They also participated in random drug testing with negative results. However, mother had difficulty focusing during counseling sessions. Berenice Sanchez, who completed mother's clinical assessment, reported she discussed unrelated topics, had difficulty retaining information, and blamed her social worker and service providers for the children not being in her custody. Sanchez recommended mother attend one-on-one domestic violence sessions for victims and additional individual sessions to focus on codependency and coping skills. She also recommended mother undergo a psychological evaluation to address potential mental health issues. Father also completed a clinical assessment and was referred for sexual abuse counseling for perpetrators. The clinician was concerned about his poor judgment in having a sexual relationship with mother while she was a minor. Father denied having sexual intercourse with mother before she was 19 and did not believe he needed domestic violence and sexual abuse counseling. He knew he and mother were not taking good care of the children but blamed T.S. for wanting him with her at the nursing home.
On March 12, 2019, mother appeared with her GAL and Erica White, her support person from VMRC, at the six-month review hearing. County counsel informed the juvenile court the parents were working with a parent mentor to assist them with housing and parenting. Father objected to the court finding the services provided by the agency were reasonable given his immigration status and inability to obtain housing and employment. The juvenile court acknowledged the parents' dilemma but found the agency provided them reasonable reunification services and continued them to the 12-month review hearing, which it set for June 2019.
Father appealed the court's reasonable services finding, arguing the agency failed to assist him with housing and immigration. We affirmed. (In re V.S. et al. (Oct. 9, 2019, F078985) [nonpub. opn.].)
Two days after the hearing, the agency filed an updated services plan, requiring mother to meet with her parent mentor a minimum of three times per month and to complete a psychological evaluation to determine whether she was capable of utilizing reunification services. If it was determined she was incapable of utilizing reunification services, the modified plan required the agency to refer her for a second psychological evaluation.
Dr. Edward A. Moles conducted mother's psychological evaluation and reported his findings in April 2019. He noted that mother was able to read and understand the written testing materials but was very slow and had difficulty with some words. He diagnosed her with moderate intellectual disability and a personality disorder not otherwise specified with avoidant and dependent features. He opined there was little likelihood she was capable of developing the ability to adequately parent the children given her diagnoses. He recommended the juvenile court terminate mother's reunification services, stating, "Overall, this very dependent, intellectually limited, developmentally delayed young woman has consistently shown significantly impaired judgement when [it] comes to providing an adequate stable home for her children and, in my opinion, she lacks the potential for becoming an adequate parent .... In this case, the best single predictor of her future potential is her past behavior." The agency did not refer mother for a second psychological evaluation.
The agency recommended the juvenile court terminate reunification services at the 12-month review hearing. Although mother completed her parenting classes and most of her individual sessions, Sanchez considered her progress minimal because she had difficulty retaining the information or staying on topic. She was unable to implement any type of positive discipline and instructed the children by yelling at them while seated on the couch. She did not like being told what to do and was unhappy with her parent mentor for not finding her housing.
Father was more effective in parenting the children during parenting sessions but acquiesced to mother during visits and was sometimes resistant to the parent mentor. He demonstrated limited understanding of domestic violence and denied it was an issue for him.
The juvenile court conducted a contested 12-month review hearing in July 2019. Social worker Karina Prado testified mother completed her counseling sessions and the parent mentor worked with her during weekly visitation. However, Prado was concerned that mother did not understand why the children were removed. She was aware mother was a VMRC client but did not inquire what services VMRC offered to developmentally delayed clients. She considered Dr. Moles's report in deciding whether to recommend additional services, but it was not the sole factor. She was "not sure" whether there were any services that would have helped mother reunify. She knew mother was working with VMRC and had a parent mentor who modeled appropriate parenting for her. However, mother did not like working with her parent mentor. Prado gave father and mother referrals to the Gospel Mission and Permanent Supportive Housing program to assist with finding housing.
The juvenile court found it would be detrimental to return the children to the parents' custody. It considered father's progress good overall, with the exception of domestic violence, noting that his work in individual counseling and parenting was paying off. The court was concerned, however, about mother's inability to retain information and considered her progress more limited. The court was also concerned about the agency's compliance with the case plan, particularly Prado's failure to consult with VMRC and refer mother for a second psychological evaluation. Though not ideal, the court found the services overall were reasonable and ordered the agency to modify the case plan. The court found there was a substantial probability the children could be returned to parental custody and continued reunification services to the 18-month review hearing set for November 8, 2019. Mother appealed.
The agency filed an amended case plan on August 2, 2019, requiring mother to complete a second psychological evaluation and participate in VMRC services to assist her in better understanding and retaining parenting education information. That same day, Prado consulted with White, mother's former VMRC service coordinator, who explained mother was receiving supportive living services (SLS) through one provider, Kelsea Bronson, who assisted her with all her personal needs. VMRC did not have specialized parenting classes for parents with developmental delays or learning disabilities or services to assist with retaining information. White suggested Bronson attend mother's parenting education sessions to help reinforce the material. If the children were returned to mother's custody, Bronson could monitor and guide mother.
On September 27, 2019, Bronson told Prado she had been working with mother two or three times per week reviewing the parenting education material but mother's focus was elsewhere. A month later, Bronson reported that working with mother was " 'like pulling teeth' " because she did not want to review the material.
In its 18-month review report, the agency recommended the court terminate reunification services. The children were placed in a concurrent home in August 2019. They were bonding with their caregivers who were committed to meeting their needs. Mother continued to work with Sanchez but did not like listening to other people, telling Sanchez " 'it goes in one ear and out the other.' " She denied her relationship with father was codependent or that there was domestic violence between them. Mother completed a second psychological evaluation with Dr. Cheryl K. Carmichael who concurred mother did not have the capacity to provide the children a safe home. Dr. Carmichael opined there were no modifications that could be made to her case plan that would improve her potential for success. Dr. Carmichael reported mother had "significant intellectual limitations," but the "primary interference in her functioning as a parent is directly related to her personality style, emotional maturity and attitude." Dr. Carmichael reported:
"[T]he [v]isitation [l]ogs provide[] 'real life' indications of [mother's] lack of progress and the results of her major functional limitations. Her behavior toward her children, the staff and the parent mentor has not changed throughout the [d]ependency proceedings. The visits are chaotic, and require continual instruction from visitation staff and the mentor just to keep the children contained and emotionally reasonable. [Mother's] behavior is sedentary, passive and unaware of her role in the chaos and the normal need to manage her children for their benefit. She remains immune to instruction, does not alter her interactions with the children ... [, and] clearly states that she doesn't like anyone telling her what to do. She does not believe there is anything wrong with how she has lived with her children and believes the only thing missing in her parenting role is housing."
The 18-month review hearing was conducted on December 13, 2019. The parents made offers of proof, which were accepted, stating they loved their children and wanted additional time to reunify. Mother said the children could live with her at Gospel Mission. She denied intentionally hurting or neglecting them. She was drug free and was utilizing services at VMRC. She had done her best but the staff at Sierra Vista kept giving her homework when she could not read or write. She kept all of her appointments, but Sierra Vista often cancelled them. Father said he tried his very best and was still looking for housing and work. He would continue to work hard for the children.
The juvenile court found the agency provided the parents reasonable reunification services but their progress was limited. Although the court acknowledged the parents' homelessness and father's undocumented status made reunification difficult, their circumstances did not constitute a legal basis for continuing reunification services. The court also found it would be detrimental to return the children to the parents' custody. Drs. Moles and Carmichael established mother did not have the ability to safely parent and there were no services to assist her. Father, despite completing the domestic violence program, was still considered a moderate risk of reoffending. He also required prompting to redirect the children during visits, at times did not follow the parent mentor's advice and had limited interaction with the children. The court questioned how it could return the children to parental custody under the circumstances when the parents had not progressed to community visits. The court terminated reunification services and set a section 366.26 hearing.
DISCUSSION
Substantial Evidence Supports the Juvenile Court's Detriment Finding
Mother contends the juvenile court erred at the 18-month review hearing in not returning the children to her custody. She asserts the only barrier to returning them to her was housing and that she could have moved into the Gospel Mission and taken care of them there with family maintenance services. We disagree.
There is a statutory presumption operative at all the review hearings, including the 18-month review hearing, that the juvenile court will return the child to parental custody unless it finds by a preponderance of the evidence that the child's return would create a substantial risk of detriment to the child's safety, protection, or physical or emotional well-being. Prima facie evidence of detriment can be found in the parent's failure to participate regularly and make substantive progress in court-ordered treatment programs. (§ 366.22, subd. (a)(1).) However, ultimately, the court's decision hinges on whether the child would be safe in the parent's care. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.) We review the court's substantial risk of detriment finding under the substantial evidence standard. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
Here, the children were removed from mother's custody because she was living with them out of the family car and neglecting their basic needs. She acknowledged she could not take care of them without father's assistance and declined emergency housing. Eighteen months later, mother was still homeless and no better situated to care for the children. Despite individualized services to improve her parenting skills, mother had shown no improvement or insight into how her neglect endangered the children. In addition, she was resistant to any instruction and unable to retain, much less apply, the parenting skills presented. Nor was there any prospect that her circumstances would improve. Drs. Moles and Carmichael concluded she had an intellectual disability and personality disorder that significantly impaired her judgment and prevented her from safely parenting the children and acting in their best interest. Consequently, mother was not capable of independently caring for the children and could not safely parent them even if she moved with them into the Gospel Mission.
Further, even though mother and father were an intact couple, there was insufficient evidence she could safely parent the children even with his assistance. According to the parent mentor, father tended to be passive and allowed mother to " 'manage' " the children. This was evident from reports the agency responded to their home multiple times over the years preceding the children's removal and found the children neglected and the home filthy. Father also tolerated the conditions which required the children's removal. There is no evidence the children's circumstances would be any different or that they would be safe in emergency housing under the care of their parents.
Substantial Evidence Supports the Juvenile Court's Reasonable Services Findings
Mother's sole issue on appeal is that the services provided by the agency were not tailored to address her developmental and intellectual delays. Specifically, she contends, the agency did not include VMRC services in her case plan or follow up on her request for VMRC services, did not address her inability to read or write, which she claims delayed her clinical assessment, did not include a psychological evaluation in the initial case plan, despite knowing she had ADHD and depression, and did not recommend further services as a result of the psychological evaluations. She also faults the agency for not addressing the family's lack of housing. In her writ petition, mother contends the agency's delay in referring her to VMRC was unreasonable.
We assume mother can challenge the reasonable services finding from the 12-month review hearing, and conclude substantial evidence supports the juvenile court's reasonable services findings at the 12- and 18-month review hearings.
A reasonable services finding by itself is not appealable unless the juvenile court takes adverse action based on that finding. (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1156.) For example, a parent could appeal from the court's order not to return a child to parental custody if the reasonable services and detriment findings were intertwined and resulted in some negative consequence to the parent. (Id. at p. 1154.) Mother, however, does not challenge the court's detriment finding on the appeal and did not suffer any adverse consequences associated with the court's reasonable services finding. Rather, the court continued her services and found a substantial probability the children could be returned to her custody. We need not, however, decide the appealability issue in order to address the merits of mother's claim because we could, if necessary, treat her appeal as a petition for writ of mandate. (Id. at p. 1157.) --------
" ' "Reunification services implement 'the law's strong preference for maintaining the family relationships if at all possible.' ..."... The [agency] must make a " ' "good faith effort" ' " to provide reasonable services responsive to the unique needs of each family.... "[T]he plan must be specifically tailored to fit the circumstances of each family ..., and must be designed to eliminate those conditions which led to the juvenile court's jurisdictional finding...."... The effort must be made to provide reasonable reunification services in spite of difficulties in doing so or the prospects of success.... The adequacy of the reunification plan and of the [agency's] efforts to provide suitable services is judged according to the circumstances of the particular case.... "[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 ...." ' " (In re K.C. (2012) 212 Cal.App.4th 323, 329-330.)
At each review hearing, if the child is not returned to parental custody, the juvenile court is required to determine whether "reasonable services that were designed to aid the parent ... in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent ..." (§§ 366.21, subds. (e)(8) & (f)(1)(A), 366.22, subd. (a)(3).) The "adequacy of reunification plans and the reasonableness of the [agency's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) "[O]ur sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court, supra, 36 Cal.App.4th at p. 762.)
By the 12-month review hearing, mother had received the benefit of nearly a year of individual counseling, parenting instruction and parent mentoring. She had also completed a psychological evaluation with Dr. Moles, who diagnosed her with an intellectual disability and personality disorder. Contrary to mother's assertion, there is no evidence any delay in obtaining a psychological evaluation was unreasonable in this case given Dr. Moles's opinion that she could not benefit from reunification services. On that evidence, the juvenile court could justifiably find the services offered by the agency were reasonable.
However, even if the juvenile court found reunification services were not reasonable, the remedy would be to continue them to the next review hearing, which the court did. In that interim period, the agency ascertained VMRC did not provide any services designed for parents with developmental delays or learning disabilities. The agency also obtained Dr. Carmichael's opinion that mother did not have the capacity to safely parent and there were no additional services that could assist her.
We conclude the agency provided mother all known services to address her special needs but ultimately, she was not capable of benefitting from them. Therefore, we affirm the juvenile court's reasonable services findings. We further conclude substantial evidence supported the court's finding at the 18-month review hearing that the children could not be returned to her custody without placing their safety and well-being at a substantial risk of detriment. Consequently, we deny the writ petition.
DISPOSITION
The juvenile court's reasonable services finding from the 12-month review hearing is affirmed. The petition for extraordinary writ is denied. Our decision as to the denial of the writ petition is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)