Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ Super. Ct. No. RIJ118862. Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Bruce Williams for Petitioner.
No appearance for Respondent.
Pamela J. Walls, County Counsel and Anna M. Deckert, Deputy County Counsel, for Real Party in Interest.
OPINION
RAMIREZ P.J.
D.R. (father) challenges the juvenile court’s decision at the March 8, 2011, 12-month review hearing to set a hearing under Welfare and Institutions Code section 366.26 to consider termination of his parental rights to I.R. (age 16) and K.R. (age 14), and termination of his guardianship of A.T. (age 8), S.M. (age 7) and R.H. (age 4). Specifically, father agues: 1) the trial court erred when it determined he had failed to make substantive progress in his case plan and found there was no substantial probability that the boys would be returned to him within six months; 2) substantial evidence does not support the juvenile court’s finding that father received reasonable services; and 3) the juvenile court erred in terminating father’s legal guardianship over A.T., S.M., and R.H. because Riverside County Department of Public and Social Services (DPSS) failed to file a section 388 petition, DPSS failed to give father proper notice, and DPSS failed to establish by clear and convincing evidence that termination of the legal guardianship was in the younger boys’ best interest. As discussed below, we reject each of these contentions and deny the petition.
All section references are to the Welfare and Institutions Code unless otherwise indicated.
The children’s ages are listed as of the date of the 12-month hearing, March 8, 2011.
Facts and Procedure
1. Detention
On October 23, 2009, DPSS responded to an Immediate Response referral alleging Physical Abuse and General Neglect. The social worker interviewed thirteen-year-old K.R. at school. He stated that he last attended school four months ago, and that his family had moved to the area five months ago. He reported that none of his brothers go to school, and that they usually stay in the house and watch television most of the day, and that his oldest brother, I.R., has his own room while the rest of the boys sleep on the living room floor. K.R.’s shoes appeared to be worn out. He reported that I.R. is usually the only one who receives new clothes and shoes. He expressed fear about returning home because his mother would hit him if she knew he was at school talking to the social worker.
The previous day the school district’s child welfare and attendance representative had visited the home and had been giving conflicting stories about the children’s whereabouts.
The social worker and two police officers arrived at the family home later that day. Seven-year-old A.T. and five-year-old S.M. were in the living room watching television. A.T. was observed to have rotting teeth. He told the social worker that he had attended school at one time, but could not remember when. He said that both his mother and his older brother, I.R., spank him with an open hand. S.M. was observed to have rotting teeth, with the front teeth mere slivers. He told the social worker that he has never gone to school. He reported that his mother spanks him with an open hand and I.R. hits him in the head with an open hand. I.R. was also in the home but initially declined to speak with the social worker. He eventually told the social worker that he is in the ninth grade at Pilgrim School in Visalia (Tulare County), but did not know when he had last attended. He reported having been to the dentist just the previous week, but could not provide the name or location of the dentist. He stated that he does discipline his brothers because he does not want them to get hurt.
The family was living with the paternal grandmother.
The social worker interviewed father and the children’s mother when they arrived at the home. Father denied knowledge of any concerns in the home and reported that his wife (mother) takes care of all the children’s needs. Mother stated that she has power of attorney over father because he suffers from anxiety and “inappropriate behavior.” Father had with him current prescription bottles for the following medications: Zyprexa, Lorazepam, Clorazepam, and Flurazepam. Mother reported that she needs to be with father at all times and that she would answer any questions for him because he has difficulty in understanding the questions and may become confused. Mother insisted that each of the children had seen a dentist earlier in the year in Visalia but was unable to provide more detailed information. Mother “vehemently” denied spanking the children and stated she only used time outs.
DPSS took all five boys into protective custody because of concerns about the parents’ ability to effectively care for the children and to meet their immediate dental and educational needs. DPSS was particularly concerned about father’s ability to care for the children because he had been determined to have “inappropriate behavior.” Further, K.R. refused to return home because he feared for his safety and DPSS was concerned that the family might flee.
In April of 2009, father wandered the neighborhood in his bathrobe stating he was “going to see Blue, ” the family pit bull. Father knocked on a neighbor’s door and pulled a rock out of his bathrobe pocket.
The parents have an extensive history of child welfare referrals, most of which were for general neglect, and all of which were determined to be unfounded or inconclusive: one in San Diego County in 2001 and, in Tulare County, one in 2002, two in 2005, one in 2006, one in 2008, and three in 2009. Despite this, the parents were allowed to become legal guardians for the three youngest boys, who are mother’s nephews. The parents adopted K.R. when he was three, and I.R. was the natural child of both parents.
The parents had not told K.R. that he was adopted. He found out from “law enforcement” when he was detained. K.R. stated he was not interesting in returning to the parents.
At the detention hearings held on October 28 and 29, 2009, the juvenile court found a prima facie case to detain the children, but authorized DPSS to return the children who desire to return home to the care of the parents. The court also ordered DPSS to assist K.R. in retrieving his personal items from the parents’ home.
2. Jurisdiction and Disposition
In the Jurisdiction and Disposition report filed November 30, 2009, the social worker reported that the five boys were placed in two foster homes, although I.R. expressed interest in returning home. The social worker was unable to interview the parents because mother claimed to have hired a new attorney for herself and father, and stated the attorney told her not to talk to the social worker. Mother never provided the attorney’s information. When the children were detained, Mother had told the social worker that the children had been under the care of a Dr. Singh in McFarland, CA, and signed a release of information form. The social worker contacted Dr. Singh’s office and was told that they had no record of any of the children. Mother then promised to provide the social worker with the children’s education, dental and medical records as she had promised, but failed to do so.
The children were doing well in foster care. I.R. was in 10th grade but unable to work at grade level because he was illiterate. The foster parents had requested the school enroll I.R. in a literacy program. I.R. stated he was previously home schooled through Pilgrim School, but the social worker was unable to confirm this. In November 2009, I.R. was taken to a dentist and had five cavities filled. He also needed two root canals and two extractions.
K.R. needed eight cavities filled and two root canals. K.R. was also illiterate but appeared quite eager to learn and was enjoying the eighth grade in his new school. K.R. practiced reading with the foster mother’s six-year-old daughter and was improving. K.R. expressed distress about his parents not telling him he was adopted and said he did not want to return to them. Mother told the social worker that K.R. suffers from schizophrenia, cerebral palsy and brain damage, but did not provide any medical records.
A.T. was attending first grade. His severely rotting teeth caused him pain and he had difficulty eating at times. His dental needs were being addressed.
S.M. was attending kindergarten. Mother reported that he had tested positive for drugs at birth, but did not provide any medical records regarding health concerns.
R.H. was three years old. He had upcoming doctor and dentist appointments. Mother had reported that he suffers from a hernia, but did not provide any medical records. R.H. entered foster care still using a bottle and not eating adult food. At that time he was also underweight.
The parents were attending weekly supervised visitation with the boys.
At the jurisdiction and disposition hearing held on December 2, 2009, the juvenile court found true each of the allegations in the second amended dependency petition (§ 300). I.R. was ordered returned to the parents under a plan of family maintenance. The rest of the children were to remain in foster care. Father was ordered to participate in a psychological evaluation, with the results to be available for the six-month review hearing, set for June 2, 2010. Father’s case plan also included parenting classes and, if clinically appropriate, individual counseling.
The allegations were all under the category of “failure to protect” (§ 300, subd. (b). The allegations consisted of: not enrolling the children in school; failing to seek dental care resulting in “severely decayed and rotting teeth”; and father’s “mental health issues which limits his ability to provide care and supervision for the children.”
3. Six-Month Review
The six-month review report was filed on May 20, 2010. DPSS recommended the parents receive six more months of reunification services.
At the beginning of the dependency, I.R. began attending the local high school. However, he began with only 5 of the 220 credits he would need to graduate. In addition, I.R. could not read. In January 2010, I.R.’s school counselor met with mother and I.R. and offered free after school tutoring for an hour each evening so he could learn to read. Mother and I.R. declined to participate. Mother later told the social worker that the tutoring was unnecessary because father had been helping I.R. with his homework and I.R. was reading at home. School personnel were very concerned about the lack of response by the parents to this offer of help. However, mother retained educational rights to I.R., so DPSS could not intervene. I.R. was eventually moved to a continuation high school because the local high school determined that it could not meet his educational needs.
K.R. was placed in a special education class at his middle school. Because he was illiterate and because of the lack of education records, school officials were not sure whether K.R.’s educational deficiencies were caused by a mental deficit/learning disability or simple lack of exposure to education. In May of 2010, K.R.’s classroom teacher told the social worker that she did not believe K.R. had a learning disability.
A.T. had one tooth removed, three fillings, and one root canal. A.T. was behind his peers in the 1st grade because he had not previously attended school. However, he stated that he liked school and was making progress. He also enjoyed playing on a baseball team.
S.M. received the following dental care: one filling, four teeth extractions, and one root canal. The dentist stated that he “was surprised at how badly [S.M.’s] teeth were decayed” and gave the foster parents two of S.M.’s severely decayed teeth as an example of his poor dental health. S.M. began kindergarten somewhat behind his peers because he had no prior education. He did not know his numbers or letters. However, he was improving. S.M. enjoyed playing on a baseball team.
R.H. had come into foster care with severe tooth decay. He needed a root canal and had been in pain for a long period of time. The foster parents gave R.H. pain relievers. R.H. was scheduled for a root canal. R.H. had been exposed to methamphetamine prior to birth. He was born premature and had suffered withdrawals. R.H. had no major physical impairments, but walked stiffly and favored his right side. He also had speech delays and still had some trouble with potty training. Mother reported that R.H. had received services in Tulare County similar to those provided by the Inland Regional Center.
Each of the five boys needed to be re-immunized because the parents did not provide their immunization records.
Father completed his parenting classes in April 2010. He was referred for his psychological evaluation in March 2010 and was seen on April 9, 2010. The psychologist stated that father has “little insight into the severity of the current problems or the unstable lifestyle he has provided for his children in the past.” The psychologist gave two diagnoses—generalized anxiety disorder and narcissistic personality disorder. He also stated that “compliance with the Department should be a critical aspect of the children being returned to them in the near future.” When asked if it would be clinically appropriate to provide father with individual therapy, the psychologist said that “we could provide the service and see if [father] would work on his issues.” The social worker referred father for individual therapy on May 2, 2010.
Both parents were visiting regularly with the children at the DPSS office and the visits generally went well. However, the parents appeared to be discussing the dependency proceedings with the children in Spanish during visits.
The six-month review hearing was held on June 2, 2010. The juvenile court found that father’s progress in mitigating the causes of the dependency was unsatisfactory. The court ordered six more months of reunification and family maintenance services and authorized DPSS to liberalize visitation with K.R. Counsel for father pointed out that father’s lack of progress was due in part to DPSS not scheduling his psychological evaluation until April 2010 after the court ordered it in December 2009, and ordering individual therapy for father only in May 2010. The juvenile court asked “Are you trying to set this for contest on reasonable services, is that what you are talking about?” Counsel indicated he was merely addressing the arguments by DPSS as to father’s lack of progress.
4. Twelve-Month Review
In the 12-Month Status Review report filed November 17, 2010, the social worker reported that I.R. had not had any dental or medical treatment since returning home on family maintenance in December 2009. His Medi-Cal coverage had expired on June 30, 2010, and the parents had not renewed it. The parents had sent I.R. out of the county for the summer 2010 break without permission and without informing DPSS. In the fall of 2010, I.R. missed 28 days of the first six weeks of school.
K.R.’s school determined that he did not have any brain damage (as mother claimed he had) or other mental impairment. K.R.’s low academic functioning was caused by many years of not attending school.
S.M. continued to have dental issues and the dentist told the foster parents not to give him sugary foods. The parents were informed as well, but S.M. stated that he was given candy and sugary drinks while on unsupervised visits with family members. S.M. was having some difficulties with reading and math.
R.H. was four years old. He had one tooth extraction, a root canal, and 13 caps on his teeth. He was eating healthy meals and gaining weight. R.H. was developmentally delayed and showed the signs of fetal alcohol syndrome, such as deficient growth and mental capacity, and physical abnormalities such as a small head and specific facial anomalies. The school district had approved R.H. for classes twice a week at a local child developmental center. R.H. was described as very loving and affectionate.
The social worker gave father a referral to Gate Way Counseling on May 2, 2010. However, in August 2010 father told the social worker for the first time that he had not been able to contact the agency. On August 16, 2010, the social worker referred father to New Hope, a faith-based counseling center. Father had stated that he and mother were seeing their own private therapists but never provided any confirming information to the social worker. The social worker subsequently confirmed that father had never contacted New Hope and so was not receiving individual counseling.
Mother had been discharged from three separate therapists because she failed to take any responsibility for what had happened to the children. Mother failed to follow up on a fourth referral. She had been diagnosed with paranoid personality disorder.
The social worker described father’s role in the family as “minimal, as he allows his wife to make the decision as to the children’s care and really does not challenge or interject any authority in the home.” “[Father] allows [mother] to make most if not all of the decisions within their family and as such [mother] hardly allows him to have an opinion and when he does attempt to speak she talks over him. He is passive and this implies that he is non-protective.” [Italics added.] Neither parent had “insight regarding how their behavior has negatively impacted the children physically, emotionally, mentally and educationally.”
Regarding I.R., DPSS recommended terminating the dependency and allowing him to remain with his parents. I.R. was more self-sufficient than the younger children, in terms of feeding himself and getting himself to school, and had stated that he would run away from placement. Regarding the four younger boys, DPSS recommended terminating reunification services and limiting the parents’ educational rights.
The 12-month review hearing set for December 16, 2010, was continued to January 14, 2011, then to February 2, 2011, and finally to February 22, 2011. The contested hearing was held over a number of court sessions, on February 22, 24-25 and 28, and March 1-3 and 7-8, 2011. The juvenile court heard testimony from the foster parent to the three youngest boys, the social worker, the social worker’s supervisor, and the boys’ mother. On March 8, 2011, the juvenile court continued family maintenance services to the parents as to I.R. The court terminated family reunification services to the four younger boys. The court set a section 366.26 selection and implementation hearing for July 6, 2011, for A.T., S.M. and R.H. to consider adoption by the foster parents as their permanent plan.
Discussion
1. Findings re Substantive Progress and Detriment
Father argues the juvenile court erred at the 12-month review hearing in March 2011 when it: a) found that father failed to make substantive progress in his case plan; and b) failed to articulate the factors supporting a finding of detriment. Specifically, father contends that his completion of the parenting class in April 2010, his participation in the psychological evaluation in April 2010, his regular visits with the children, his good physical health and his compliance in taking his prescribed anti-anxiety medication constitute regular participation and substantive progress in the case plan. We disagree. As discussed below, the juvenile court clearly articulated that father failed to participate in any individual counseling at all between May 2010 and February 2011. This lack of participation in individual counseling constitutes failure to participate and make substantive progress in the case plan. This failure to participate and make substantive progress in the case plan itself supports the finding of detriment.
We review the juvenile court's findings of fact under the substantial evidence test, which requires us to determine whether there is reasonable, credible evidence of solid value to support the order. (In re Brian M. (2000) 82 Cal.App.4th 1398; Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470.) Whether the court correctly terminated services based upon these findings of fact is reviewed under the abuse of discretion standard. (In re Brian M., supra, at p. 1401, fn. 4; In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068.)
The statutory scheme for dependent children requires that at each periodic review hearing the juvenile court determine whether the child can be returned to parental custody. For the 12-month review hearing, the statute provides in part “The permanency hearing shall be held no later than 12 months after the date the child entered foster care.... The court shall order the return of the child to the physical custody of his or her parent or legal guardian 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 shall have the burden of establishing that detriment.... 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.” (§ 366.21, subd. (f).)
Here, the evidence was overwhelming that father had failed to both participate regularly and make substantive progress in the court-ordered treatment. We acknowledge DPSS’s initial delay in obtaining the court-ordered psychological evaluation for father and subsequent referral for individual counseling. However, father completely ignores the fact that, in the nine-and-one-half months between receiving the counseling referral on May 2, 2010, and first session of the12-month review hearing on February 22, 2011, he did not participate in any services whatsoever. This was despite the social worker providing him with an additional counseling referral on August 16, 2010 after she happened to find out that he had not contacted the first agency to which he was referred. Thus, substantial evidence supports the juvenile court’s finding that father did not participate in and make substantive progress in the case plan.
Father also argues the court failed to state its reasons for its conclusion that returning to his care would be detrimental to the children. These findings may be implied if necessary. (See In re Andrea G. (1990) 221 Cal.App.3d 547, 554-555 [implying finding pursuant to former section 366.25, subdivision (c), that minor would not be returned to parent’s custody within six months].) However, we need not imply the findings because the juvenile court specifically pointed to father’s complete lack of participation in the individual counseling component of his case plan as evidence of detriment.
“The evidence is pretty clear to the court that neither mother nor father completed their case plan. The counseling component it looks like the father, there is no evidence that he participated in any counseling at all. There was one referral for father that apparently did not work out because they were not returning father’s phone calls. But, the evidence indicates that the Department was never informed of that. They provided a new referral for father. He failed to follow through with that, and has provided no evidence regarding church counseling which we know nothing really about that....” This is more than a sufficient statement of reasons to support the juvenile court’s very specific finding of detriment.
2. Reasonable Services
Father also argues that the trial court’s finding that DPSS provided reasonable services to him is not supported by substantial evidence. This is because, despite the juvenile court’s order at the December 2, 2009, jurisdiction and disposition hearing that father participate in a psychological evaluation, the social worker did not provide him with this referral until March 2010. Because of this four-month delay, the evaluation did not take place until April 9, 2010, and the referral for individual counseling was not made until May 2, 2010. As discussed below, we conclude that this four-month delay in beginning the process to provide father with mental health services did not constitute a failure to provide reasonable services. This is because father completely failed to participate in the services once DPSS sought to provide them.
“[W]ith regard to the sufficiency of reunification services, our 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. [Citations.]” (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) “We must view the evidence in the light most favorable to the department and indulge all legitimate and reasonable inferences to uphold the order. [Citation.]” (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.) “The adequacy of the reunification plan and of the department’s efforts to provide suitable services is judged according to the circumstances of the particular case. [Citations.]” (Id. at p. 1011.) In reviewing the reasonableness of the reunification services, we “recognize that in most cases more services might have been provided, and the services which are provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances.” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
Here, as discussed above, the social worker provided father with a referral for counseling on May 2, 2010, which we acknowledge was not as timely as it should have been. DPSS provided father with a second referral in August 2010 after father stated he was having trouble contacting the first referral. Between May and August father never contacted the social worker to ask for help in this regard. DPSS did not cause this three-month delay in father obtaining services. Between August 2010 and February 2011, father made no effort to participate in services despite the second referral from the social worker. DPSS did not cause this six-month delay in services. Thus, the four-month delay in offering counseling services to father does not constitute unreasonable services, especially compared with the total of nine months during which father had been offered referrals to individual counseling but failed to participate. Substantial evidence supports the juvenile court’s finding that DPSS provided reasonable services, but father simply declined to participate.
3. Termination of the Guardianship
Finally, father contends the juvenile court erred when it terminated his guardianship over the three youngest boys, A.T, S.M., and R.H. This is because: 1) DPSS failed to file a section 388 petition for modification and this deprived father of his due process rights to notice and an opportunity to be heard; and 2) DPSS failed to establish by clear and convincing evidence that the termination of the legal guardianship was in the best interest of the three boys. Father appears to assert that this is based on the bonds the boys share with the parents and with I.R., but does not elaborate.
The essence of due process in the statutory dependency scheme is fairness in the procedure employed by the state to adjudicate a parent’s rights. (See In re Crystal J. (1993) 12 Cal.App.4th 407, 412.) The due process attributes of a dependency hearing include notice of the hearing and the right to present evidence and cross-examine adversarial witnesses—that is, the right to be heard in a meaningful manner. (In re Matthew P. (1999) 71 Cal.App.4th 841, 851; Crystal J., at pp. 412-413; see also In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. 16.) Here, although DPSS never filed a section 388 petition for modification, father cannot credibly argue that he lacked either notice that DPSS sought to terminate the legal guardianship nor the opportunity to present his own evidence and cross-examine the witnesses that DPSS called at the 12-month review hearing.
Further, even assuming that father was denied his due process right to the section 388 process, we are convinced beyond a reasonable doubt that any error was harmless in this case. (Chapman v. California (1967) 386 U.S. 18, 24.) Father does not say what he would have done differently had DPSS filed a section 388 petition or what additional evidence he would have presented to establish that the legal guardianship should not be ended. The juvenile court had before it voluminous evidence that return of the three youngest boys to father’s custody would not have been in their best interest because father had learned absolutely nothing from having the children removed or from the services provided to him during the dependency. Thus, the filing of a section 388 petition would have been to no avail to father, and delaying the adoption of these three boys so that DPSS could do so would not change the outcome.
Disposition
The petition is denied.
We concur: HOLLENHORST J.McKINSTER J.