Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. JV320078D
Pollak, J.
Adrian R. petitions for extraordinary relief from a juvenile court order denying reunification services and scheduling a permanency planning hearing for her newborn son Joshua. (Welf. & Inst. Code, § 366.26; Cal. Rules of Court, rule 8.452.) She contends the trial court erred in bypassing reunification services based on the prior termination of her parental rights to four of Joshua’s half-siblings. We agree and grant the petition.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
Factual and Procedural History
In March 2002, Adrian’s parental rights to her first daughter were terminated after a failed attempt at reunification. In October 2002, her second child was declared a dependent of the court. Despite her failure to reunify with the older child, Adrian was offered additional reunification services. Ultimately, Adrian was able to reunify with this child and in March 2006 the dependency proceedings were dismissed. While that case was pending, Adrian had two additional children. On October 19, 2006, just seven months after the second dependency case was dismissed, all three children were detained and declared dependents of the court. In December 2006, reunification services were bypassed as to all three children based in part on evidence that Adrian’s treatment and services through the Redwood Coast Regional Center (RCRC) had been terminated in December 2005 due to lack of compliance.
Joshua was detained shortly after his birth in August 2007. The dependency petition filed by the department alleged that Adrian “places the newborn minor at substantial risk of suffering serous physical harm or illness due to her developmental disabilities and mental health issues.” The petition alleged that Adrian had failed to comply with services, was unable to care for her son without prompting by and assistance from medical staff, has issues with depression and other mental health problems, and had requested medication “due to her self disclosed onset of an anxiety attack.” Joshua was declared a dependent of the court on October 15, 2007. On the same day, the court terminated Adrian’s parental rights with regard to the three older half-siblings.
On January 7, 2008, a contested dispositional hearing was held. The dispositional report submitted by the department on October 26, 2007, indicated that Adrian suffers from mental health problems. The report includes three psychological evaluations conducted in 2003, in which the doctors concluded that Adrian might suffer from a bipolar disorder and at a minimum “is functioning at the mild mentally retarded range” and opined that Adrian was “at a high risk to fail reunification” and another made a “very cautious recommendation for reunification services to continue.” Subsequent to these evaluations, Adrian’s parental rights were terminated as to the three children about whom these recommendations were made.
In addition, the October 26 report references 22 referrals to Child Protective Services between 2000 and 2007, seven of which were found to be inconclusive, untrue or insufficient to merit investigation. The report also states, “Since the order of non-reunification in December 2006, the mother has not been involved in RCRC, nor has she successfully integrated or demonstrated appropriate parenting skills.” Based on Adrian’s failure to engage in services and her mental health history, the department recommended “that reunification services not be offered to Ms. Robertson as she appears unable to treat the problems that led to the removal of four older half-siblings of this child.”
At the January 7, 2008 hearing, Adrian admitted that she had previously failed to participate in services, but testified that in late-October 2007 she began attending weekly individual counseling sessions and that, as of the date of the hearing, she had completed a parenting course, registered for support services with RCRC, and participated in regular visitation with Joshua. She acknowledged that in the past she had stopped attending her therapy sessions when she was no longer required to do so and that she refused services in the past because she thought she didn’t need any help, but now she knows these services will help her. She explained that the termination of her parental rights to Joshua’s three half-siblings “woke [her] up to realize, wow, I do need services because without services I’m not ever going to learn what being a parent is about.” She also testified that she was taking medication for her anxiety, which helped her considerably. Although she had some doubt as to whether she suffered from a bipolar disorder, she was willing to take medication for that if it would also help her. Adrian submitted documentary evidence supporting her testimony regarding her completion of a parenting class on November 13, participation in counseling and registration for services with RCRC on October 12, 2007.
The social worker confirmed that in October 2007 Adrian began participating in a parenting class and mental health counseling. She testified, however, that when she recommended Adrian seek support services through RCRS, Adrian refused because “she didn’t feel she needed the services. But she was open to having Joshua have those services but not for herself.” The social worker also reported that she had seen improvement in Adrian’s parenting during visitations with Joshua. Adrian “was paying more attention to those things, like supporting the [baby’s ] head and she was changing the baby’s diaper; and she was still directed sometimes, but she was taking more initiative.” A second social worker testified that at the time of Joshua’s detention, Adrian refused her offer of services through RCRC and for individual therapy or mental health treatment. She was, however, receptive to taking a parenting class.
Based on the testimony at the hearing, Joshua’s attorney indicated that she had “changed [her] opinion a lot” and requested that the court provide Adrian with reunification services. Adrian’s attorney also argued that Adrian had made a reasonable effort to treat the problems that led to the removal of the siblings so that reunification services should not be bypassed. The department, however, argued that consistent with her past behavior, Adrian waited until the last minute to engage in services and has focused only on the parenting issues, rather than addressing her underlying mental health issues.
The court denied reunification services based on its finding that Adrian had not made a reasonable effort to treat the problems that led to the removal of Joshua’s half-siblings. The court explained that its decision to bypass reunification services was “not an easy decision.” The court recognized that Adrian “ha[d] taken some steps recently, but in the court’s mind they are belated steps and they are not completed steps and they are not reasonable in terms of correcting the overall problems that led her various children into the [Child Protective Services] dependency court system.” The court observed that “[t]o the extent that she has periodically got some benefit from and participated in services from the various agencies, it’s been partial and reluctant and minimal and sporadic . . . .” The court noted that “perhaps down the line there might be enough for a 388 petition” but “[t]hat’s not what the history is pointing to in the future.” The court set a section 366.26 hearing for May 5, 2008. Adrian filed a timely notice of intent to file a writ petition.
Discussion
Section 361.5. subdivision (b)(11), provides that reunification services need not be provided to a parent when the court finds, by clear and convincing evidence “[t]hat the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent.” We affirm an order denying reunification services if the order is supported by substantial evidence. (In re Harmony B. (2005) 125 Cal.App.4th 831, 834-840; Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474.)
Adrian acknowledges that the first requirement of section 361.5, subdivision (b)—permanent severance of parental rights of a parent over any sibling or half-sibling—is established by the evidence. She argues, however, that the department failed to prove by clear and convincing evidence that she had not made reasonable efforts to treat the problems that led to the removal of Joshua’s half-siblings from her care.
“The inclusion of the ‘no-reasonable effort’ clause in the statute provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems.” (In re Harmony B., supra, 125 Cal.App.4th at p. 842.) In Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464 the court explained, “If the evidence suggests that despite a parent’s substantial history of misconduct with prior children, there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so. Courts must keep in mind that ‘[f]amily preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced.’ [Citation.] The failure of a parent to reunify with a prior child should never cause the court to reflexively deny that parent a meaningful chance to do so in a later case.” The court advised further that the “ ‘reasonable effort to treat’ standard [under section 361.5, subdivision (b)(11),] is not synonymous with ‘cure.’ ” (Ibid.) Rather, the provision is meant “to ensure that lackadaisical or half-hearted efforts would not be deemed adequate rather than to additionally require a certain level of progress.” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 99; see also In re Albert T. (2006) 144 Cal.App.4th 207, 221 [“Although further reunification services may ultimately be unsuccessful in allowing [child] to return home, [mother] has earned the right to try”].) Thus, “[t]he mere fact that [a mother] had not entirely abolished her drug problem would not preclude the court from determining that she had made reasonable efforts to treat it.” (Renee J. v. Superior Court, supra, 96 Cal.App.4th at p. 1464.)
Substantial evidence does not support the trial court’s finding based on clear and convincing evidence that Adrian had not made a reasonable effort to treat her parenting and mental health problems. The department relied on unchallenged evidence that for more than five years Adrian was repeatedly offered services but failed to follow through, resulting in the termination of her parental rights to four children. The department’s report, however, was submitted to the court in October 2007 just days after Adrian’s parental rights were terminated to three of Joshua’s half-siblings. Although addendums were filed, none contained updated evidence relating to Adrian’s participation in services between October 2007 and the hearing in January 2008. Likewise, the department relies heavily on the psychological evaluations conducted in 2003, but no effort was made to obtain updated evaluations or opinions from Adrian’s current mental health provider. As such, the department presented little evidence regarding the unreasonableness of Adrian’s efforts in the time between the termination of her parental rights to the other children and the dispositional hearing in Joshua’s case.
In contrast, the evidence presented at the hearing was that Adrian had been participating in services since shortly after the birth of Joshua and was making progress. The social worker acknowledged that beginning in October Adrian took the initiative to obtain services on her own. The social worker observed that she has seen Adrian “significantly stay in those services” and believed that Adrian was “making an effort.” She also noted improvement in her parenting skills during visitation.
The court’s finding that these efforts were not reasonable is not supported by the record. First, the court faulted Adrian’s efforts for not being “completed steps,” but a reasonable effort does not require Adrian to complete her treatment. Nor does it require a particular measure of progress. (Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 99.) There was no evidence that Adrian’s efforts were not sincere and sustained, albeit over a limited period of time. Likewise, the court found that her efforts were not “reasonable in terms of correcting the overall problems” she was facing. Without current evaluations, however, it is not possible to measure her needs or amenability to treatment. Moreover, contrary to the department’s argument, the evidence presented at trial showed that Adrian was participating in mental health counseling, was taking medication for her anxiety and was open to additional treatment if necessary. While she was certainly focused a great deal on parenting issues, her testimony at the January 7 hearing suggests that she had an increased understanding of her need for additional services, including mental health treatment. Finally, while Adrian undoubtedly has a way to go and may not ultimately be successful, we see no substantial evidence that her efforts thusfar were unreasonable and that there is not “a reasonable basis to conclude that the relationship with the current child could be saved.” (Renee J. v. Superior Court, supra, 96 Cal.App.4th at p. 1464.)
Disposition
Let an extraordinary writ issue directing respondent court to vacate its order of January 8, 2008, bypassing reunification services and setting a section 366.26 hearing, and to conduct a new dispositional hearing consistent with this opinion. Our decision is final immediately. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur: McGuiness, P. J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.