Opinion
D0059926
10-06-2011
AUTUMN J., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Diego County Super. Ct. No. NJ13980H)
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Ana L. Espana, Judge. Petition denied. Request for stay denied.
Autumn J. seeks review of juvenile court findings and orders denying family reunification services to her under Welfare and Institutions Code section 361.5, subdivisions (b)(10) and (b)(11), and setting a hearing under section 366.26 to select and implement a permanency plan for her son, Z.J. We deny the petition.
Unless otherwise specified, all statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Z.J., who is now eight months old, is the son of Autumn J. Autumn has seven older children (collectively, siblings). The father of Autumn's six oldest children (the older children) is her estranged husband. A seventh child, A.J., was born in February 2010. The older children had previously been dependents of the juvenile court, and Autumn failed to unify with these children. A.J. was currently a dependent of the court. Child protective services detained Z.J. in protective custody at birth due to Autumn's significant history of child abuse and neglect, and her inability to reunify with the older children and A.J.
The juvenile court had not received the results of the alleged father's paternity test by the time of the dispositional hearing.
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From August 2001 to September 2010, the San Diego Health and Human Services Agency (the Agency) received 22 child abuse referrals regarding the family. Substantiated referrals included neglect due to Autumn's drug use; A.J.'s positive toxicology at birth; Autumn's absence as a caregiver to the children; severe neglect of her older children; a stabbing incident in the home that occurred while the older children were present in the home; filthy home conditions; lack of supervision of a two-year-old child who fell out of a second story window; domestic violence; and general neglect.
The Agency briefly detained the older children in protective custody in July 2008, but returned them to Autumn's care under a voluntary family services plan. Autumn was noncompliant with services and the Agency terminated the voluntary services plan in March 2009. In May 2009, Autumn and A.J.'s father were the victims of a gang related stabbing that occurred in the children's presence. Autumn was using methamphetamine and there was drug paraphernalia in the family's home. The Agency initiated dependency proceedings on behalf of the older children. Autumn received court-ordered services from July 2009 until October 2010, at which time the juvenile court granted sole legal and physical custody of the older children to their father.
Autumn's seventh child, A.J., was born in February 2010. A.J. tested positive for opiates at birth and was placed in foster care with an extended family member. Autumn received family reunification services in A.J.'s case from February to December 2010. Her parental rights to A.J. were terminated in May 2011.
Autumn's mental health condition was diagnosed as antisocial personality disorder. She had a history of aggressive and violent behaviors, including threatening to kill her children by running them over with a motor vehicle or stabbing them; threatening to kill her husband; physically attacking a therapist; threatening hospital staff with physical harm; being involved in a gang-related stabbing; domestic violence; and hitting one of her children with a dog leash and an iron. During the dependency proceedings of Z.J.'s siblings, Autumn tested positive for methamphetamine, opiates and cocaine. She did not complete a substance abuse treatment program or comply with court-ordered drug testing.
Due to the unresolved protective risks, child protective services detained Z.J. at birth and recommended that no reunification services be provided to Autumn in his case. At the jurisdictional and dispositional hearing, the court admitted in evidence the Agency's reports and took judicial notice of A.J.'s dependency file. Karen Lopez, the social worker assigned to the case, and Dr. Gretchen M. Slover, Autumn's therapist, testified.
Lopez testified that Z.J. was born healthy with a clean toxicology screen. The Agency's recommendation to deny family reunification services to Autumn was based primarily on Autumn's history with her older children. Autumn made very little progress in correcting the issues that necessitated dependency court intervention. She was resistant to change. Autumn continued to display symptoms of antisocial personality disorder and was verbally and physically aggressive when she was under stress. In addition, Autumn's compliance with her court-ordered case plan in A.J.'s case was minimal.
The Agency had concerns about Autumn's unresolved mental health issues. She had a history of noncompliance in treatment. When Z.J. was detained in protective custody, Autumn falsely claimed that she lived with six of her children in Mexico. She denied that there was an open dependency case for A.J., explaining that A.J.'s father and her estranged husband were in rival gangs and she had asked the paternal aunt to adopt A.J. for safety reasons. Autumn told a social worker that she was a parenting instructor. She claimed that she had completed four or five parenting classes and two anger management programs, but had thrown away her certificates of completion. Autumn also falsely claimed that she had successfully completed reunification services with respect to the older children, and that the reason they were not placed with her was because she lived in an unsafe gang area.
The record shows that Autumn visited Z.J. in January and February 2011. At approximately the end of February, Autumn told Z.J.'s caregiver that the visits were not worthwhile because Z.J. slept during the visits. She did not visit him again for six weeks. Autumn visited Z.J. once in April. On May 18, Lopez informed Autumn that visits were scheduled every Wednesday at the Agency's offices. Autumn did not attend any of the weekly visits that were scheduled before June 14, the date of the jurisdictional and dispositional hearing.
Dr. Slover testified that the Agency referred Autumn to her for therapy in July 2010. After family reunification services were terminated, Autumn continued therapy with Dr. Slover at least once a month. Autumn had a total of approximately 15 therapy sessions with Dr. Slover.
Dr. Slover was working with Autumn to address the issues that the Agency had identified in the siblings' dependency cases. Those issues included anger management; showing empathy for her children; providing a safe environment for her children; putting the children's needs first; and overcoming her substance abuse problems.
Dr. Slover said that Autumn was not visiting Z.J. because Autumn was depressed and it was difficult for her to see him. She advised Autumn to visit her physician for a medication assessment.
Dr. Slover testified that she had received copies of two psychological evaluations of Autumn that were completed in 2010. Autumn was diagnosed with methamphetamine abuse, in full remission, and antisocial personality disorder. Dr. Slover did not believe that Autumn had used methamphetamine during her pregnancy with Z.J.
Dr. Solver did not agree with the previous diagnoses of Autumn's mental health condition as antisocial personality disorder. In view of Autumn's traumatic childhood, Dr. Slover believed that Autumn was suffering from posttraumatic stress disorder. Dr. Slover did not conduct any type of psychiatric testing on Autumn and had not reviewed the clinical data from the psychological tests that Autumn completed in 2010. Dr. Slover discounted the results of the psychological testing because Autumn had a comprehension and reading disability that had not been taken into consideration in the testing process. Dr. Slover said that Autumn was benefitting from therapy and believed that she would continue to benefit from therapy. Dr. Slover thought that Autumn had made significant progress since July 2010, and believed that she would need "a lot of support" to make further progress.
The juvenile court found that Autumn had failed to reunify with her six older children; that her parental rights to A.J. had been terminated; and that Autumn had not subsequently make a reasonable effort to treat the problems that led to the removal of Z.J.'s sibling's from her care. The juvenile court denied reunification services to Autumn under section 361.5, subdivisions (b)(10) and (b)(11), and set a section 366.26 hearing to select and implement a permanency plan for Z.J.
Autumn petitions for review of the juvenile court's orders. (Cal. Rules of Court, rule 8.452; § 366.26, subd. (l).) She asks this court to reverse the order setting a section 366.26 hearing, and to remand the matter with directions to the juvenile court to enter orders for family reunification services and visitation. On July 1, 2011, this court issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
Autumn contends that the juvenile court erred when it bypassed family reunification services for her under section 361.5, subdivisions (b)(10) and (b)(11), and set a hearing to select and implement a permanency plan for Z.J. Autumn maintains that there is not substantial evidence to show that she did not make reasonable efforts to treat the problems that led to the removal of Z.J.'s siblings' from her care. She also argues that the juvenile court did not use the correct legal standard when it denied family reunification services to her. A. Legal Standards for the Denial of Family Reunification Services Under Section 361.5, Subdivisions (b)(10) and (b)(11)
Family reunification services play a critical role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) To deny family reunification services to a mother or statutorily presumed father, the court must find by clear and convincing evidence that the parent is described by one or more of the provisions in section 361.5, subdivision (b). (§ 361.5, subd. (b)(1)-(15); see also 42 U.S.C. § 671(a)(15)(D).)
The juvenile court may deny family reunification services to a parent in a subsequent dependency case when the court has terminated that parent's reunification services for the child's sibling because the parent failed to reunify with the sibling (§ 361.5, subd. (b)(10)) or has terminated the parental rights of the parent to the child's sibling (§ 361.5, subd. (b)(11)), and the court finds that the "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." (§ 361.5, subds. (b)(11); K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393-1394.) The juvenile court may order reunification services to a parent described by section 361.5, subdivisions (b)(10) and/or (b)(11), if the court finds, by clear and convincing evidence, that reunification is in the best interest of the child. (§ 361.5, subd. (b).)
The "reasonable effort" prong of section 361.5, subdivisions (b)(10) and (b)(11), mitigates an otherwise harsh rule that would allow the court to deny services simply on a finding that a parent had not reunified with, or that the parent's parental rights had been terminated as to, the child's sibling. (In re Harmony B. (2005) 125 Cal.App.4th 831, 843.) To show a reasonable effort, a parent is not required to have resolved the problems that led to the removal of the sibling from his or her custody. The reasonable effort standard "is not synonymous with 'cure.' " (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) Rather, the reasonable effort prong allows "a parent who has worked toward correcting his or her problems an opportunity to have that fact taken into consideration in subsequent proceedings." (In re Harmony B., supra, at p. 843; K.C. v. Superior Court, supra, 182 Cal.App.4th at p. 1393 [to be reasonable, the parent's efforts must be more than lackadaisical or half-hearted].)
We review an order denying reunification services under section 361.5, subdivision (b), for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) "When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence - - that is, evidence which is reasonable, credible and of solid value - - to support the conclusion of the trier of fact. [Citations.] In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. [Citations.] The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence." (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) The party challenging the ruling of the trial court has the burden to show that the evidence is insufficient to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) B. There is Substantial Evidence to Support the Finding that Autumn Did Not Make Reasonable Efforts to Treat the Problems that Led to Z.J.'s Removal from Her Custody.
Autumn argues that there is not substantial evidence to support the finding that she did not "subsequently [make] a reasonable effort to treat the problems" that led to the removal of Z.J.'s siblings from her care. (§ 361.5, subds. (b)(10), (11).) Those problems included Autumn's violent and aggressive behaviors, substance abuse, her lack of empathy for the children and inability to meet their needs, lack of proper supervision and exposing the children to violence in the home. Autumn received voluntary services from July 2008 to March 2009, and court-ordered services from July 2009 to February 2011. Autumn was offered or provided parenting education, drug testing, counseling and anger management programs.
Although Autumn maintained her relationship with her therapist after reunification services were terminated in A.J.'s dependency case, the record shows that Autumn had made little, if any, effort to treat the problems that led to the siblings' removal from her care. The social worker stated that Autumn was noncompliant with court-ordered services in the dependency cases of her six oldest children, and only minimally compliant with court-ordered services in A.J.'s dependency proceedings. A.J. was born with a positive toxicology to opiates. After Z.J.'s birth, Autumn did not appear at any of her random drug tests. The tests were therefore presumed to be positive for drug use. She admitted that she had used methamphetamine approximately three to four times, and said that she was a "social drinker." The social worker reported that Autumn's resistance to change was strong and said that Autumn had made little progress in correcting the issues that led to her children's dependency proceedings.
Autumn said that the reason she did not visit Z.J. was because the visits were not worthwhile. Her therapist said that Autumn did not visit Z.J. because Autumn was depressed and it was too hard for her to see him. Yet, there is no indication in the record that Autumn complied with her therapist's advice to seek a medication assessment for depression. The record supports the finding that Autumn had not made a reasonable effort to develop the skills and understanding necessary to place her child's needs ahead of her own.
The juvenile court could have reasonably concluded that Autumn did not make a reasonable effort to address the myriad of problems that led to the removal of Z.J.'s siblings from her care. (K.C. v. Superior Court, supra, 182 Cal.App.4th at p. 1393.) The purpose of the reasonable effort prong of section 361.5, subdivisions (b)(10) and (b)(11), is not to create further delay for a child by allowing a parent, who up to that point has not addressed his or her problems, another opportunity to do so. (In re Harmony B., supra, 125 Cal.App.4th at p. 843.) The record contains substantial evidence to support the juvenile court's finding that Autumn did not subsequently make a reasonable effort to treat the problems that led to the removal of Z.J.'s siblings from her care under section 361.5, subdivisions (b)(10) and (b)(11). C. The Juvenile Court Properly Considered Whether it was in Z.J.'s Best Interests to Reunify with Autumn.
Autumn contends that the juvenile court applied an incorrect legal standard when it denied family reunification services to her under section 361.5, subdivisions (b)(10) and (b)(11). Specifically, Autumn argues that the juvenile court improperly focused on her significant past history and her failure to make substantive progress with the services that were offered to her in the dependency cases of Z.J.'s siblings, rather than determining whether she had subsequently made a reasonable effort to treat the problems that led to the removal of Z.J.'s siblings from her care.
The juvenile court noted that Autumn had a significant history of behaviors that caused her children to come into protective custody, and that there was no evidence to show that Autumn subsequently made reasonable efforts to treat the many problems that led to the removal of Z.J.'s siblings from her care. The juvenile court found that Dr. Slover did not appear to have a full picture of the issues that had to be resolved before Autumn could safely parent a child, and for this reason, discounted Dr. Slover's testimony. Emphasizing Autumn's minimal visitation with Z.J., the juvenile court found that additional family reunification services were not likely to lead to family reunification within the statutory six-month time period.
"A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. (Citations.) Forfeiture, also referred to as 'waiver,' applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)
Autumn failed to bring to the juvenile court's attention her assertion that the court applied an incorrect legal standard when denying reunification services to her under section 361.5, subdivisions (b)(10) and (b)(11). If she had done so, the court could have considered her claim, and, if it found her argument meritorious, determined and applied the appropriate legal standard. (In re Dakota H., supra, 132 Cal.App.4th at p. 222.) A party may not assert theories on appeal which were not raised in the trial court. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489.) Autumn has thus forfeited the right to raise this issue on appeal.
Even if the doctrine of forfeiture did not apply, we would conclude that the juvenile court did not err. The juvenile court has the authority to order family reunification services to a parent who is described by section 361.5, subdivision (b)(10) or subdivision (b)(11), if the court finds, by clear and convincing evidence, that reunification is in the best interest of the child. (§ 361.5, subd. (c).)
Although the juvenile court could have expressed its conclusions more clearly, the court's remarks indicate that the court was considering whether it would be in Z.J.'s best interest to reunify with Autumn, as provided under section 361.5, subdivision (c). We presume that the juvenile court properly followed the law and carried out its duties accordingly. (Evid. Code, § 664.) The juvenile court reasonably considered the history and severity of Autumn's problems, her minimal participation in previously offered family reunification services, her lack of progress in those services and, significantly, her lack of visitation with Z.J. The juvenile court's remarks indicate that it implicitly determined that reunification with Autumn would not be in Z.J.'s best interest.
In view of Autumn's past performance in utilizing court-ordered reunification services, the record supports the reasonable inference that offering a period of family reunification services to Autumn would serve only to delay permanency for Z.J., and therefore would not be in his best interest. (§ 361.5, subd. (c).) "The intent of the Legislature, especially with regard to young children, is that the dependency process proceed with deliberate speed and without undue delay." (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) In enacting section 361.5, subdivision (b), the Legislature recognizes that there are cases where delay attributed to a reunification effort may be detrimental to the child. (Marlene, supra, at p. 1151.) The record supports the denial of reunification services to Autumn under section 361.5, subdivisions (b)(10) and (b)(11).
DISPOSITION
The petition is denied. The request for a stay is denied.
AARON, J. WE CONCUR:
BENKE, Acting P. J.
NARES, J.