Opinion
NOT TO BE PUBLISHED
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing No. J517011A. Susan D. Huguenor, Judge. Petition denied.
BENKE, Acting P. J.
Dominique S. seeks review of a juvenile court order setting a hearing under Welfare and Institutions Code section 366.26. She contends the court erred when it terminated reunification services because she made substantial progress with her case plan and the San Diego County Health and Human Services Agency (Agency) did not provide reasonable services to her.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
J.S. was born in January 2006 to Dominique S. On March 1, 2008, J.S. was hospitalized for multiple injuries secondary to nonaccidental trauma. J.S. had the following injuries: an unexplained new fracture of her left arm; bilateral ear bruising on the front and back of the ears, most likely from a direct blow to each ear or ear pulling; multiple fingertip bruises over her chest; an extensive liver injury and elevated cardiac enzymes indicating heart damage, each possibly life threatening; a likely pancreatic injury; an adrenal hematoma caused by trauma; and patterned marks on her lower back.
J.S.'s alleged father did not take steps to establish paternity.
Dominique stated she gave a belt to J.S.'s maternal grandfather (Grandfather) and he hit J.S. on February 27, 2008. Grandfather acknowledged he spanked J.S. on her bottom with his hand. Dominique admitted she hit J.S. with a belt and pushed J.S. into a bed rail on February 28. A neighbor stated she heard J.S. cry one night "like I've never heard a baby cry before." The crying persisted. The neighbor heard a loud banging against the common wall and Dominique saying, "Go to sleep."
Dominique and Grandfather were charged with willful cruelty to a child and corporal punishment resulting in a traumatic condition. (Pen. Code, §§ 273a, subd. (a), 273d, subd. (a).) Grandfather received a six-month sentence. Dominique was sentenced to two years' imprisonment.
The court sustained a two-count petition alleging J.S. suffered serious nonaccidental physical harm as a result of Dominique's actions and neglect. (§ 300, subds. (a), (b).) The court placed J.S. in foster care and ordered a plan of family reunification services.
From March to August 2008, Dominique was in local custody. She had a visit with J.S. on April 22. Dominique learned she was pregnant. She asked to be placed in protective isolation. As a result, she was not able to access services until August, when the Department of Corrections (DOC) transferred her to the Family Foundations Program (FFP). There, she participated in a full array of behavioral, counseling and educational programs including substance abuse and mental health treatment. FFP immediately identified Dominique's extreme problem with cannabis dependence.
When J.S. was first placed in foster care she had nightmares, night terrors and behavioral problems. She awoke several times during the night with night terrors followed by tantrums of biting, spitting, hitting and screaming. She ripped up all photos of Dominique. J.S. repeatedly stated, "No bad mommy, burn me. Doctor fix it." The court authorized therapy and ordered that Dominique's visitation with J.S. occur in a therapeutic setting when appropriate.
The court appointed a special advocate (CASA) for J.S. in August 2008. In a report filed September 30, the CASA reported J.S. was a perky, wide-eyed toddler who liked to read, sing and dance. J.S. recently went five weeks without getting out of bed during the night. Her foster parents (caregivers) enrolled her in a dance class and in preschool. They expressed an interest in adopting J.S. J.S. loved to play and work with her caregivers, whom she called "mommy" and "daddy." She was progressing well with play therapy.
In her report filed December 17, 2008, the CASA reported that J.S. was reenacting her abuse outside of therapy. She often appeared frightened and hysterical and her sleeping habits regressed. J.S. trembled and pointed to old scars, stating, "Dominique hurts me." She did not want to see her mother. J.S. became very dependant on her foster mother.
At the December 2008 six-month review hearing, the court found that reasonable services were provided and Dominique made minimal progress toward alleviating the causes that necessitated J.S.'s placement in foster care. The court granted the caregivers' request for status as J.S.'s de facto parents.
Dominique's second child, Jeremiah, was born in November 2008 and was made a dependent of the juvenile court. After the court denied Dominique's request to place Jeremiah in her care at FFP, DOC transferred her to other prison facilities in January 2009. Because of her short incarceration, Dominique was not able to access services.
Dominique was released from custody in April 2009. As a condition of parole she was not to have any contact with J.S. or other children under the age of 18 years. With the social worker's assistance, Dominique enrolled in the SARMS program and entered a residential treatment center. She was motivated to begin treatment and to utilize all resources to address the protective issues.
The 12-month review hearing was held on June 25 and July 9 and 10, 2009. On June 25 Dominique filed a section 388 petition asking the court to revoke the caregivers' status as J.S.'s de facto parents and to place J.S. with an approved relative or in another foster home. She attached a summary of the social worker's and CASA's concerns about the caregivers' oft-stated desire to adopt J.S., their resistance to relative visitation and the accuracy of their reporting about J.S.'s behaviors.
The court admitted in evidence the social worker's report and addendum, dated April 6 and June 1, 2009, the CASA's report of April 6, a summary of J.S.'s visit with Dominique on April 22, 2008, and a letter from Dominique's current substance abuse counselor and case manager. The court heard the testimony of the social worker, the CASA, Dominique, J.S.'s maternal great-uncle (Uncle) who was willing to care for her, and Rachel G., Jeremiah's foster mother and the caregiver's sister. The court accepted the stipulated testimony of a TERM therapist and Dominique's counselor at FFP.
In addition to the underlying facts described above, we summarize the evidence relevant to the issues raised in this proceeding, keeping in mind we view the evidence in the light most favorable to the prevailing party. (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1096, citing Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
The social worker stated Uncle's home was approved for placement and he was appropriate with J.S. during his visits. He interacted well with her. His visits in May and June were cancelled due to the social worker's schedule. The caregivers asked the social worker to discontinue J.S.'s visits with Uncle. The social worker was concerned about the de facto parents' often-stated desire to adopt J.S. while the case was in the reunification phase. However, the social worker did not recommend J.S.'s removal from the caregivers' home.
J.S.'s therapist did not consider reunification to be a goal of therapy. She did not allow J.S. to see photos of Dominique and would not help prepare J.S. for relative visits. The social worker was concerned about the therapist and took steps to locate another therapist who would provide a higher level of therapeutic services to J.S.
The social worker recommended proceeding to a section 366.26 hearing. J.S. was not emotionally prepared for any transition. She would spontaneously hit her stomach with her fist and say, "bad, bad Dominique." Dominique was in the beginning stages of treatment. She took responsibility for spanking J.S. and pushing her into a bed rail, but questions about the child's injuries remained unanswered.
Dominique stated she was responsible for not protecting J.S., for hitting her with a belt on two occasions and for pushing her on the bed. J.S. had cigarette burns because she had walked into Dominique's cigarette. Dominique wanted J.S. to live with Uncle because then Dominique would see her more frequently. Her probation officer recently changed conditions of parole to allow her to have contact with J.S. and Jeremiah.
The CASA reported during a visit that J.S. showed her a new baby doll and began throwing it against the floor. When the CASA explained they did not want to hurt the baby, J.S. said, "Dominique does. Dominique hurts babies." The caregiver came into the room and soothed J.S. The CASA observed J.S. was making significant progress in the caregivers' home and her symptoms of posttraumatic stress disorder had improved significantly. J.S. was a part of the caregivers' extended family and was doing well in school.
Rachel G. testified that her sister wanted to adopt J.S. That was not true early in the process, but her sister fell in love with J.S. and "things changed."
The court denied the section 388 motion, finding that Dominique did not meet her burden of proof. The court viewed the caregivers as protective. Dominique continued to minimize the abuse J.S. suffered; she did not accept responsibility and did not demonstrate the ability to move beyond her own feelings and needs to empathize with J.S. The court found that reasonable services were provided or offered to Dominique and she did not make substantive progress with the provisions of her case plan. The court set a section 366.26 hearing.
Dominique petitions for review of the court's order under California Rules of Court, rule 8.452. She requests this court reverse the order setting a section 366.26 hearing. On July 27, 2009, we issued an order to show cause; the Agency responded and the parties waived oral argument.
DISCUSSION
A
The Parties' Contentions
Dominique contends the court erred when it set a section 366.26 hearing because substantial evidence does not support the court's findings that (1) she did not make substantive progress in court-ordered treatment plans, and (2) she received or was offered reasonable services. Dominique argues that in view of her sporadic access to services the court should have continued family reunification services past the 18-month review date.
The Agency asserts substantial evidence supports the reasonable services finding. It argues the Agency made a good faith effort to offer and provide services to Dominique. The Agency states there was no basis for continuing services to the 18-month review date because Dominique did not make substantive progress and she was not prevented from participating in services by circumstances beyond her control, such as an extended hospitalization, but by her own criminal behavior.
B
Statement of Law and Standard of Review
At the 12-month permanency review hearing, the court shall order the return of the child to the physical custody of his or her parent unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker has the burden of establishing that detriment. The court shall also determine whether reasonable services have been provided or offered to the parent. (§ 366.21, subd. (f).)
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. In making its determination, the court shall review and consider the social worker's report and recommendations and the report and recommendations of any CASA, and shall consider the efforts or progress, or both, demonstrated by the parent and the extent to which the parent availed herself of services, taking into account any barriers to an incarcerated parent's access to those court-mandated services and ability to maintain contact with her child. (§ 366.21, subd. (f).)
If the time period in which court-ordered services were provided has met or exceeded the relevant statutory time period and the child is not returned to his or her parent, the court must order one of three options: (1) under specified circumstances, the court may continue the case for up to six months, provided the permanency review hearing occurs within 18 months of the original date of removal from the parent's physical custody; (2) order a section 366.26 hearing, but only if there is clear and convincing evidence reasonable services have been provided or offered to the parent; or (3) under certain circumstances, order a permanency plan of long-term foster care. (§ 366.21, subd. (g).)
These circumstances are described in part C.2, post.
We review the trial court's findings for substantial evidence. We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) We view the evidence and indulge in all legitimate and reasonable inferences to uphold the court's ruling. (Cf. In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
C
Analysis
1. Reasonable Services
Dominique argues she did not receive reasonable services because the Agency belatedly attempted to locate an approved TERM-team therapist and allowed J.S.'s therapist and caregivers to interfere with the reunification process. Dominique states J.S.'s therapist did not consider reunification to be a goal and allowed the foster mother to be present during the therapy sessions. Dominique asserts the caregivers wanted to adopt J.S. and, to that end, encouraged J.S. to refer to Dominique by her given name rather than as "mommy," resisted J.S.'s visits with Uncle and coached J.S. to make false accusations against Uncle, the CASA and the social worker.
To support a finding reasonable services were offered or provided, "the 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 Riva M. (1991) 235 Cal.App.3d 403, 414.)
Reunification services should be tailored to the particular needs of the family. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 793.) 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.) "The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R., supra, 2 Cal.App.4th at p. 547.)
We are not persuaded by Dominique's arguments. The record clearly shows, and Dominique implicitly acknowledges, she received many services, including a full range of behavioral and mental health programs at FFP and residential substance abuse treatment and therapy after her release. With the exception of short periods in which DOC transferred her from one facility to another, the social worker maintained monthly contact with Dominique, met with her within days of her release and helped her obtain court-ordered and other services.
The social worker responded to Dominique's concerns about J.S.'s use of Dominique's first name and discussed the issue with the caregivers. The caregivers reported they did not encourage J.S. to call them "mommy" and "daddy" and tried to identify Dominique as J.S.'s mother. With respect to Dominique's complaint about the provision of a TERM-team therapist, the social worker believed Dominique was receiving therapeutic services from a therapist at FFP who was qualified to address child protective issues. When she learned in late November 2008 the FFP therapist's treatment plan was not adequate, she made efforts to locate a TERM-team therapist that would travel to FFP to provide therapy. Even had the social worker immediately located a therapist, the record shows Dominique would not have been able to participate in therapy after January 5, 2009, when DOC transferred her to a locked-down prison facility. Further, the social worker clearly explained to the caregivers that J.S.'s visitation with Uncle would continue and described his protective behaviors with J.S. and their close interactions during visitation.
The record also shows the social worker visited J.S. regularly, explored the possibility of placing J.S. with a suitable relative, supervised visitations between J.S. and Uncle, and monitored J.S.'s therapeutic progress and foster care placement. When the social worker had concerns about the therapist and J.S.'s emotional dependence on her caregivers, she conscientiously raised the issues and examined alternatives. That the Agency resolved those concerns in favor of the child's best interests, and not necessarily in favor of the parent's interests, does not mean reasonable reunification services were not provided to the parent.
The appellate record before us does not indicate Dominique appealed from the court's denial of her section 388 petition in which she requested relative placement.
At trial, Dominique acknowledged J.S.'s placement with Uncle would not lead to reunification but would allow her access to J.S. after the selection and implementation of a permanent plan.
The record contains ample evidence to support the reasonable services findings; therefore, the court correctly determined section 366.21, subdivision (g)(2) did not prevent the court from setting a section 366.26 hearing.
2. Substantive Progress
Dominique contends she participated in court-ordered services to the fullest extent her circumstances allowed and showed substantial progress in court-ordered treatment programs. She argues she was currently participating in SARMS and a residential treatment program and the court erred when it did not continue the reunification period to the 18-month review date, when it would then have the option of extending services to the 22-month date. (§§ 361.5, subd. (a)(3); 366.22, subd. (b).)
Dominique's argument is without merit. The court may not continue reunification services to the 18-month review date unless it finds there is a substantial probability the child will be returned to the parent's physical custody and safely maintained in the home within the extended period of time. (§ 366.21, subd. (g)(1); see also § 361.5, subd. (a)(2).) To make that finding, the court is required to find all of the following: (1) the parent has consistently and regularly contacted and visited with the child; (2) the parent has made significant progress in resolving problems that led to the child's removal from the home; and (3) the parent has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs. (§ 366.21, subd. (g)(1)(A)-(C).)
Dominique does not assert she had regular visitation with J.S., made significant progress in resolving problems, or demonstrated the capacity and ability to provide for J.S.'s safety, protection, physical and emotional well-being and special needs. Had she raised those issues, we would have concluded there was ample evidence to support the court's findings.
Other than a visit with J.S. at the beginning of the dependency action while in local custody, Dominique was prevented from contacting J.S. because of J.S.'s continuing emotional needs and recovery from severe abuse. When Dominique was released from state prison, conditions of parole prevented contact with any child, including her own.
Despite receiving five months of intensive services at FFP, including substance abuse counseling, when she was released from custody in 2009, Dominique denied she had a substance abuse problem. At the time of the review hearing, Dominique was in the beginning stages of treatment. She was on step 1 of a 12-step program.
Dominique continued to blame J.S.'s emotional trauma on her therapist and caregivers. The record clearly shows J.S. had been traumatized by severe child abuse. J.S.'s spontaneous statements, beginning soon after her placement in foster care, indicate she identified Dominique as the primary perpetrator of the abuse. There is no evidence to show Dominique could connect her own acts and omissions to J.S.'s extraordinary needs to feel safe, protected and cherished.
In the absence of these findings, the court had no discretion to continue the case to the 18-month hearing date. There is no error.
DISPOSITION
The petition is denied.
WE CONCUR: McDONALD, J., McINTYRE, J.