Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County Nos. DP015967 & DPO15968, Dennis J. Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition denied.
Juvenile Defenders and Lawrence A. Aufill for Petitioner.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Real Parties in Interest Orange County Social Services Agency.
Law Office of Patricia Smeets Rossmeisl, and Donna P Chirco for Minors, Daniel B. and Christian N.
IKOLA, J.
* * *
The court terminated the reunification services of Eileen V. with respect to her sons, Daniel B. (now four years old) and Christian N. (now two years old), and set a Welfare and Institutions Code section 366.26 hearing as to them, but not as to her daughter, R.B. (now ten years old), who was temporarily released to mother’s custody. Mother seeks a writ of mandate directing the juvenile court to order a 60-day trial release of Daniel and Christian (the boys) to her custody or family maintenance services for her and the boys, and six additional months of family reunification services for her with respect to the boys.
All statutory references are to the Welfare and Institutions Code. R.B. is not a subject of this appeal. References herein to “the children” collectively refer to all three children — R.B., Daniel and Christian.
FACTS
In August 2007, pursuant to section 301, mother agreed to comply with a supervision program by the Orange County Social Services Agency (SSA) in lieu of SSA’s filing a petition to have the children declared dependents. The agreement was precipitated by a substantiated report of mother’s neglecting the children by, inter alia, smoking methamphetamine; frequently picking up the children over two hours late from day care; failing to seek “adequate medical treatment” for an infected cut on R.B.’s leg “caused by a shard of glass”; and leaving R.B. responsible to change Christian’s diaper “and sometimes feeding him at nighttime.” The section 301 agreement required mother to “obtain and administer prescribed antibiotics for the infected cut on R.B.’s” leg and to participate in a substance abuse program that included twice weekly testing.
All dates refer to 2007 unless otherwise stated.
On September 11, “the children were taken into protective custody.” Daniel and Christian were placed together in a foster home, and R.B. in the maternal grandparents’ home.
On September 13, SSA filed a dependency petition alleging mother failed to protect the children under section 300, subdivision (b), failed to comply with the section 301 agreement, had a history of methamphetamine abuse, and was evicted with the children from a homeless shelter the previous month due to mother’s substance abuse. The petition further alleged mother had been offered numerous services to help her “maintain the children in her care,” including the section 301 agreement, a perinatal program, and a year of voluntary family services from October 2006 to September 2007.
When interviewed by a social worker, mother stated (1) she failed to drug test and missed her intake appointment for the perinatal program because she “‘had no one to watch the children’”; (2) she did not contact SSA to obtain child care because her cell phone service had been disconnected and it did not occur to her to use a public phone; and (3) she did not “have the money” to buy antibiotics for R.B. Mother’s sources of income were R.B.’s Social Security insurance survivor’s benefits, the boys’ “‘welfare’” payments, and the federal Women, Infants, and Children program. Because mother could not afford “to stay a full month at the Fullerton Lodge,... she stay[ed] one week a month with a friend.” Mother “admitted to feeling overwhelmed with the amount of tasks she has been asked to accomplish, such as obtain daycare for the children, attend the perinatal program, submit to drug testing and find a job in addition to getting R.B. to and from school.” In a subsequent interview, mother stated she had used methamphetamine “approximately once per week for ten years,” her last use was in September, and she did not believe R.B. needed medicine for her leg.
The maternal grandparent reported “‘R.B. does all the parenting with’” the boys, especially since mother was frequently asleep, and that in 2001, mother had been hospitalized for 14 days in a psychiatric hospital.
On November 7, mother pleaded no contest to the petition’s allegations and the court found them to be true. The court declared the children to be dependents. The court granted mother two monitored visits a week and required her to participate in general counseling, parenting education, and substance abuse treatment programs with twice weekly random testing. One objective of the case plan was for mother to “meet [the] children’s physical, emotional, medical, and educational needs.”
Five months later, SSA reported the boys had made dramatic developmental strides in their foster home. Mother did not visit the children for approximately six weeks because her whereabouts were unknown until mid-January 2008. Thereafter, she often arrived late to visits, sometimes left early, and was unable “‘to multi-task effectively [or] to create a safe and nurturing environment for the children.’” Mother’s progress on her case plan had been “less than satisfactory.” She was unemployed, had been terminated from the perinatal program after missing an individual session, terminated from a parenting education program after “three no-shows,” terminated twice from counseling after missing scheduled appointments, and had not drug tested “because she had been drinking alcohol, but only on days [when] she ‘didn’t see the babies.’” She did, however, complete an in-home parenting course.
The six-month review hearing was continued to allow mother to enroll in an “in-patient drug program.” In July 2008, mother entered a residential drug treatment facility where she was “randomly drug tested” and was “steadily working towards sustained sobriety and recovery.” From August through October 2008, the social worker monitored mother’s weekly four-hour visits with the children. The social worker observed that Christian (then two years old) would sob when leaving his foster mother to be taken to visit mother. Daniel (then three years old) would announce he wanted to go home after visiting mother for about an hour, but would cry when actually leaving. Mother was affectionate with the children, but would sometimes “‘space[] out’” and seem unaware “of anything/anyone in the room.” She did “not seem to know what to do with” the boys. The social worker’s observations supported “what previous monitors ha[d] reported all along: that mother cannot ‘multi-task’ or pay attention to more than one child at a time; that mother sometimes engages in behaviors by herself (e.g. coloring in a coloring book) without paying attention to the children, and that mother frequently is late for visits and/or leaves early.” Mother did “not enforce limits” with the boys; the boys did not follow her directives. Mother gave Christian a large unpeeled grape; the social worker intervened to prevent the choking hazard. Mother made the children watch a movie or videos during the bulk of two visits.
The boys’ foster parents were “willing to adopt both children.”
In October 2008, mother successfully completed the residential drug treatment program and moved into a transitional living center. The social worker gave mother instructions on where to resume drug testing and individual counseling, referred her to a parenting class, and arranged for twice weekly visits between mother and the children. The next month mother missed a random drug test. The following month she moved out of the transitional living center and into a motel “with her significant other[,] ‘David’”.
At the six-month review hearing for the boys (held in January 2009 after several continuances), the court found mother had been provided reasonable services and scheduled the 18-month review hearing for all three children for March 2009.
In SSA’s 18-month status report on the children, the social worker stated mother was discovered to be living in a motel room with her boyfriend, David, although mother had previously lied and said David had moved out. The social worker suggested to mother that mother could apply for a HUD residence or return to transitional housing so as to “present a stronger case for having the children returned to her care,” but mother replied “she would rather not because [she was] ‘doing it on [her own].’” Mother had “a part-time job at a 99-cent store,” but at age 33 had never worked at a job for longer than “five or six months in her entire working career.” She had missed the first two parenting classes, but had located a local parenting program. She had attended four out of eight counseling sessions. She did not perceive any need for further services, although she was “willing to do the activities requested of her.” Mother was consistent in visiting the children twice a week, and during “the past couple of months, [had] more consistently been on time and not terminated visits early, as she [had done] in the past.” She continued to have trouble “attending to all three children” at once. The social worker tried to arrange make-up visits for mother because some regular visits had been cancelled due to lack of monitoring or transportation (and through no fault of mother); however, “mother made it to only one [make-up] visit.” In January, mother did not show up for a make-up visit, causing Daniel to cry and ask, “‘Where is Mommy?’”
The boys appeared “well-adjusted in their placement” and to be “happy and playful little guys who seem[ed] very comfortable in their caretakers’ home.”
The social worker recommended that the court terminate mother’s reunification services and schedule a section 366.26 hearing as to all three children. Although mother had remained sober, had “availed herself of multiple services offered,” and seemed to truly love the children, after 18 months she was still “not in a position where she can provide full-time, adequate care of the children.” She lacked “stable housing or a solid work history,” and the “quality of [her] visits with the children remain[ed] poor.” The most recent visitation monitor had reported mother “‘goes off into space,’” does not always “look after the children,” failed to feed Christian or change his diaper, and continuously pulled Christian up by one arm.
At the 18-month review hearing held on April 22, 28, and May 5 of 2009, the social worker testified as follows. She inadvertently omitted from her status reports the fact that mother finished two separate parenting programs in March 2009. In recommending that mother’s reunification services be terminated, the social worker relied heavily on the visitation monitors’ notes. The comments of all visitation monitors, as well as the social worker’s own observations of visits, were consistent. “[M]ore than one person described mom as spacing out during visits[, and] as not monitoring her children’s behavior.”
Mother’s therapist testified mother met her counseling goals of increasing her coping skills, elevating her self-esteem and assertive behaviors, and increasing her ability to communicate her feelings. The therapist, however, was not a “trained provider [of] parenting skills.”
Mother testified she lived alone at a motel and had not seen David for two weeks. She had applied for HUD housing and for childcare from Children’s Home Society, and would apply for food stamps and Medi-Cal if the children were returned to her. She had not used methamphetamine in 16 months or alcohol in 13 months. She had worked at the “99 Cent Store” for three months, had passed the probationary period, and had received a pay raise. She worked approximately 20 hours a week. Mother denied ever picking up her son by one arm during visits, and believed Angie Wellborn was the only monitor to have alleged that. Mother felt uncomfortable during visits monitored by Wellborn. Mother did not find it hard to handle all three children at once; she tried to do “the best” she could. She did not usually engage in one activity simultaneously with all three children because of their age differences and disparate interests. The court, noting that having the children returned to mother’s care was “considerably more involved than a two-hour visit,” asked mother to describe her “plan.” Mother replied: “The kids would go to day care [while I worked], and then after work, I would... cook for them, bathe them, read them stories, watch movies with them, do different activities with them.” The court inquired how mother would “handle the day in, day out challenges of taking care of the children?” Mother replied: “I am capable of coping with my kids and interacting with all three. I could do it. I know I can. [¶]... I was there for my brother and sister when I was eight years old.” She explained that her parents had worked and that she took care of her two siblings from the time she was eight years old until she was 13; she changed their diapers and fed them. As to liberalized visitation, mother testified she did not know she could request unmonitored visits or more visitation time. Had she known, she would have requested more time and unmonitored visits.
Angie Wellborn testified she had been employed as a visitation monitor for about six years; had a bachelor’s degree in sociology with an emphasis in early childhood education, parenting, and family dynamics; and received weekly job training. She had been monitoring mother’s visits with the children since March, including two or three visits at a baseball field where R.B. had games. During these visits at the baseball field, mother sometimes watched and played with the boys, sometimes talked with their grandfather, and sometimes stood around. While mother talked with the grandfather or stood around, Wellborn or the grandfather would watch the boys. Wellborn was especially concerned about the boys’ safety because a parking lot was located down the slope from the baseball field (although she did not document this in her report). During one such visit, “the oldest boy came up and... grabbed the little one around the neck and kind of... pushed him over,” possibly in a hug. “The toddler fell on the back of his head and got a knot on the back of his head.” Mother was standing about five to six feet away, talking to the grandfather. “The baby started crying.” Mother came over and picked him up. The monitor asked her “to put something cold” against his head, so mother held an iced tea bottle to it. On cross examination, Wellborn admitted her report stated (apparently erroneously) she (Wellborn) personally found ice and that the grandfather held the boy after the accident, and failed to recount that mother picked up the toddler and found an iced tea bottle for his head.
Wellborn testified most visits took place at the Eckhoff facility. To Eckhoff visits, mother usually brought food, games, play-doh, arts and crafts, and coloring books. Mother usually interacted with only one child at a time, leaving the other two to be supervised by the grandfather or Wellborn. Once, when one of the boys was running toward a door that a person was about to open into the child, mother “yanked” him up by one arm, and then picked him up by both arms. Whenever Wellborn offered mother parenting suggestions or modeled appropriate child supervision, mother reacted by ignoring or laughing at the monitor. In response to the court’s inquiry, Wellborn opined “it would be risky if [mother] had [the children] by themselves” because “she parents on a one-to-one” basis.
Jorge Ramirez testified he monitored two of mother’s visits with the children. Mother generally played with only one child at a time. For example, while reading a book to one child, she would not keep her eye on the other two although she would sometimes redirect them. In response to the court’s query, Ramirez opined the children would not be safe with mother without a monitor. As an example, Ramirez related an incident where mother was reading a book to herself, R.B. was doing homework, and the boys were throwing fish crackers and running around with toys strewn across the floor. R.B. stopped the boys’ hazardous activity by picking up one of them and sitting him in her lap.
The court granted mother a conditional 60-day trial visit with R.B. As to the boys, the court terminated mother’s reunification services, and found she had been provided reasonable services. The court further found that returning the boys to mother’s care “would create a substantial risk of detriment to the physical or emotional well-being of both Daniel and Christian.” It scheduled a section 366.26 hearing for September 14, 2009 with respect to the boys.
In explaining its reasons, the court found mother participated in services and had resolved her substance abuse problem. The court stated it did not fault mother for providing individual attention to the children, and noted it is not uncommon for an older sister to help care for younger siblings. In addition, the court placed no significance on mother’s residing in a motel and noted she has a job. But, focusing on the dependency petition’s sustained allegation that mother had neglected R.B.’s “health and well being,” the court stated the risk of returning the boys to mother’s care lay in her inability to care for the children. The court expressed concern that mother’s monitored visits with the children did not reflect she had developed appropriate skills in the parenting classes she had taken. Rather, mother’s visits with the children revealed “a lack of attention, a neglect.” The court contrasted mother’s inattention with R.B.’s skills and insight in redirecting and comforting her brothers, even though R.B. had never taken a parenting course. Thus, the court based its finding of detriment on mother’s inability to care for and pay adequate attention to the boys — a problem that, together with mother’s substance abuse, had first caused the children’s dependency.
DISCUSSION
Substantial Evidence Supports the Court’s Finding That Returning the Boys to Mother’s Custody Would Create a Substantial Risk of Detriment to Their Well-Being
Mother contends the court erred by finding that returning the boys to her care would create a substantial risk of detriment to them. She points out she completed her case plan, and the court found she had resolved her substance abuse problem, which was the main reason the children were removed from her custody. She asserts that, although the dependency petition alleged she failed to obtain an antibiotic for R.B., there is no substantial evidence she “failed to attend to any of the children’s needs when they hurt themselves in [her] care.” Mother asserts the social worker relied “exclusively” on the statements of other visitation monitors, since the social worker herself had not monitored a visit since October 2008. Mother argues the testimony of monitors Wellborn and Ramirez contained no substantial evidence the children would be at risk of harm if placed with her. For example, mother argues, there was no evidence that after the incident at R.B.’s ball game, “Christian needed to see a doctor or that the bump on his head had a long-term impact [on] his health.” Nor, she continues, does substantial evidence show “either child was ever injured during monitored visitation at Eckhoff.” Mother notes (not entirely accurately) that a third monitor’s visitation “logs did not express any concerns as to mom’s ability to supervise or protect the children.” Mother contends she will be better able to supervise the children in her motel room compared with Eckhoff’s “large building... with [its] challenging areas.” She emphasizes the trial court did return R.B. to her care. She points out there “will always be risks when parenting children,” but under the applicable standard, the boys must be returned to her custody unless there is a substantial risk of detriment to them. Quoting from this court’s decision in David B. v. Superior Court (2004) 123 Cal.App.4th 768 (David B.), mother suggests a trial court, in assessing a parent’s ability to care for a child, should “look[] for passing grades..., not straight A’s.” (Id. at p. 790.)
The social worker testified this monitor conveyed her concerns about mother’s parenting skills to the social worker “in person.” In addition, the monitor’s logs reported at least twice that two of the children played by themselves.
We summarize the law governing a court’s finding of detriment at the 18-month review hearing. Under section 366.22, at the 18-month hearing a court must return a child to a parent’s care unless the social worker proves the return “would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a).) The statute provides guidelines for a court to follow in assessing detriment. A parent’s failure “to participate regularly and make substantive progress in court-ordered treatment programs” is prima facie evidence of detriment. (Ibid.) In assessing the risk of detriment, the court must consider the parent’s efforts and progress “and the extent to which [the parent] availed himself or herself of services provided....” (Ibid.)
In David B., this court recognized that the detriment standard, “while vaguely worded to be sure, must be construed as a fairly high one.” (David B., supra, 123 Cal.App.4th at p. 789 .) “It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.” (Ibid.) “The parents who come through the dependency system are more in need of help than most. If we are lucky, they are parents who can learn to overcome the problems which landed their children in the system, and who can demonstrate the dedication and ability to provide for their children’s needs in an appropriate manner.” (Ibid.)
Thus, a court should not set the bar for dependency parents too high. But at the same time, the best interests of dependent children cannot be adequately protected if the bar is set too low. David B. recognized that, at bottom, a parent seeking the return of a child should be capable of providing for the child’s needs. (David B., supra, 123 Cal.App.4th at p. 789 .)
This requirement applies equally to a parent who has completed a reunification plan. In Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, this court recognized the difficult issues presented when a parent has technically completed the case plan, yet the trial court makes a finding of detriment. “[T]he easy cases are ones where there is a clear failure by the parent to comply with material aspects of the service plan.” (Id. at p. 1748.) “The harder cases are, like the one before us, where the parent has complied with the service plan, but for some reason has not convinced a psychologist or social worker that it would be safe to return the child to the parent. The problem is not, as it were, quantitative (that is, showing up for counseling or therapy or parenting classes, or what have you) but qualitative (that is, whether the counseling, therapy or parenting classes are doing any good). These are sensitive cases, fraught with emotional overtones, because they invariably deal with an evaluation of the personality, character and attitudes of the parent.” (Ibid.)
Harder still is the case where the parent has gone beyond technical compliance with the service plan to make good progress in reaching its objectives and overcoming the problems that caused the dependency, yet a further basis exists for finding detriment. In In re Joseph B. (1996) 42 Cal.App.4th 890(Joseph B.), the appellate court considered whether “the statutory scheme... permit[s] removal of a child from parental custody for one reason (here, the risk of physical harm) and allow[s] retention of the child in out-of-home placement for another reason (here, the risk of emotional harm).” (Id. at pp. 897-898.) Joseph B. concluded, “[T]he question whether to return a dependent child to parental custody is not governed solely by whether the parent has corrected the problem which required court intervention; rather, the court must consider the effect such return would have on the child.” (Id. at p. 894.) “By authorizing the continued removal of a child from parental custody based on the risk of either physical detriment or emotional detriment, sections 366.21 and 366.22 focus on the child’s well-being at the time of the review hearing rather than on the initial basis for juvenile court intervention. [Citation.] Thus, while the court must consider the extent the parent has cooperated with the services provided and the efforts the parent has made to correct the problems which gave rise to the dependency (§ 366.22, subd. (a)), the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child.” (Id. at p. 899.) “[I]f returning the child will create a substantial risk of detriment to his or her physical or emotional well-being [citations], placement must continue regardless of whether that detriment mirrors the harm which had required the child’s removal from parental custody [citations].” (Id. at p. 900.) In other words, the detriment need not “involve the same type of harm which formed the basis for the dependency.” (Id. at p. 898.) Thus, Joseph B. arguably supports a finding of detriment based on reasons entirely separate and unrelated to the initial problems which caused the parent to lose custody.
In In re Dustin R. (1997) 54 Cal.App.4th 1131 (Dustin R.), the mother contended Joseph B. “is bad law” (Dustin R., supra, at p. 1139), complained “she was essentially sandbagged with new requirements at the 18-month review hearing” (id. at p. 1141), and argued that parents should not be “‘denied reunification based on problems the parents have which have never been addressed by the juvenile court until the parents have completed the entire reunification plan and then find their parental rights terminated in spite of their successful efforts to overcome the cause of the dependency’” (Id. at p. 1140). The appellate court in Dustin R. narrowly read Joseph B. as not permitting a “court to raise new issues at the 18-month review hearing.” (Dustin R., supra, at p. 1140.) Rather, in Dustin R.’s view, “Joseph B.’s holding applies only when the risk of detriment at the 18-month hearing was caused by the parent’s actions leading to the out-of-home placement.” (Ibid.) (In Joseph B., the basis for the child’s dependency was the mother’s physical abuse of him, and the reason for not returning the child was his resulting resentment and fear of his mother. [Joseph B., supra, 42 Cal.App.4th at pp. 894-896 .]) By reading Joseph B. so restrictively (and possibly misinterpreting the decision), Dustin R. may have created “a conflict of decisional law on this issue.” (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2007) §§ 2.151[5], pp. 2-357-2-358; 2.154[1], p. 2-375.)
A treatise has criticized Dustin R.’s reading of Joseph B.: “This does not appear to be an accurate interpretation of the Joseph B.decision. Although the Joseph B.court did indicate that under the facts of that case the detriment to return was a ‘manifestation of the original basis for dependency’ [citation], that was not the basis of its ruling. Instead, the court in Joseph B. was very clear that if return would be detrimental[,] out-of-home placement ‘must continue regardless of whether that detriment mirrors the harm which had required the child’s removal from parental custody’.... [T]he Joseph B.decision is the better supported and reasoned decision....” (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2007) §§ 2.151[5], pp.2-357-2-358; 2.154[1], p. 2-375.) We do not comment on the possible conflict between the two cases except to note that in a situation where a parent’s entirely new problems endanger the child, the state may be well advised to initiate a new dependency proceeding.
Dustin R. distinguished its own facts from those in Joseph B., stating that while Joseph B.’s “parents had corrected the problem causing court intervention,” Dustin R.’s mother “had not met the objectives of the plan and had not sufficiently ameliorated the conditions giving rise to the jurisdictional hearing.” (Dustin R., supra, 54 Cal.App.4th at p. 1142.) In Dustin R., an objective of the mother’s reunification plan was to gain an appreciation of the significance of the father’s physical abuse and the children’s resulting psychological problems. (Id. at p. 1141.) She failed to do so. (Id. at p. 1142.) The appellate court stated: “[S]imply complying with the reunification plan by attending the required therapy sessions and visiting the children is to be considered by the court; but it is not determinative. The court must also consider the parents’ progress and their capacity to meet the objectives of the plan; otherwise the reasons for removing the children out-of-home will not have been ameliorated.” (Id. at p. 1143.)
The substantial evidence standard of review applies to a “juvenile court’s finding that returning the children to the mother’s custody would be detrimental.” (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625.) “We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court’s order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
We turn to the case before us. Undisputedly, mother loves her children, has consistently visited them, and has overcome her substance abuse problem. Her progress and accomplishments are reflected in the trial court’s decision to return R.B. to her care. Yet substantial evidence supports the court’s finding that returning Daniel and Christian to mother’s care would have created a substantial risk of detriment to their physical and emotional well-being. Even applying Dustin R.’s more stringent standard for finding detriment when a parent has completed a case plan and overcome a cause of the dependency, mother failed to achieve her plan’s objective of meeting the boys’ physical and emotional needs. As the trial court noted, mother failed to make sufficient progress in her parenting classes and failed to overcome the inattention and neglect that was one cause of the boys’ dependency (as stated in the petition’s allegation on R.B.’s infected leg). Just as mother believed in September 2007 that R.B. did not need antibiotics for her infection, in 2009 (as reflected in SSA’s 18-month report) mother did not perceive a need for further reunification services, would not accept parenting suggestions from Wellborn, and lied about living in a motel room with David. Substantial evidence (summarized in our recitation of facts) showed she consistently failed to pay adequate attention to each child during visits, sometimes resulting in hazardous situations for the young and energetic boys. Although no traumatic injuries resulted, the risk existed. Mother’s inability to appreciate or care about this risk (and the consequent need for attention and vigilance) is the problem.
The trial court reached its finding of detriment with great care, after asking questions of witnesses and counsel to focus the issues. Substantial evidence supports the court’s finding returning the boys to mother’s custody would have created a risk of detriment to their well-being.
Substantial Evidence Supports the Court’s Finding SSA Provided Reasonable Services to Mother
Mother contends insufficient evidence supports the court’s finding SSA provided her with reasonable reunification services. She argues SSA should have increased her visitation time because she completed a drug treatment program, three parenting classes, individual counseling, and drug testing. She asserts the social worker should have referred her “to Wrap-Around services or a Parent-Aid to observe [her] during her visitation.” Finally, she complains the “social worker never spoke with [her] individual therapist about the progress [she] was making in therapy” or with her “parenting class instructors to see what progress mother made,” and therefore the social worker did not know if the referred services were appropriate.
“Reunification services implement ‘the law’s strong preference for maintaining the family relationships if at all possible.’” (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787-1788 (Elizabeth R.).) After a court has declared a child a dependent, “‘the court must review the case at intervals of no less than six months and determine, among other things, whether reasonable reunification services have been offered.’” (Ibid.) This holds true for the 18-month hearing, where the court must “determine whether reasonable services have been offered or provided to the parent” (§ 366.22, subd. (a)) and may not order that a section 366.26 hearing “be held unless there is clear and convincing evidence that reasonable services have been provided or offered....” (§ 366.22, subd. (b)).
The reasonableness of SSA’s efforts to provide mother with visitation services is “judged according to the circumstances” of the case. (In re Ronell A., (1995) 44 Cal.App.4th 1352, 1362.) An agency must try “to provide suitable services, in spite of the difficulties of doing so or the prospects of success.” (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) What is needed is a good faith effort. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) “[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 (such as helping to provide transportation[)].” (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) “[I]n reviewing the reasonableness of the reunification services provided by [SSA], we must also recognize that in most cases more services might have been provided, and the services which are provided are often imperfect.” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) “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. (1991) 2 Cal.App.4th 538, 547.)
“In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all reasonable and legitimate inferences to uphold the judgment. [Citation.] ‘If there is any substantial evidence to support the findings of a juvenile court, a reviewing court is without power to weigh or evaluate the findings.’” (In re Ronell A., supra, 44 Cal.App.4th at pp. 1361-1362.)
In arguing SSA should have increased her visitation time, mother relies on Elizabeth R., supra, 35 Cal.App.4th 1774, where the mother had an “exemplary” visitation record and “made persistent attempts to increase her visitation” even though “most of her efforts were rebuffed” (id. at pp. 1790-1791), and in the review period prior to the 18-month hearing, was denied visitation at a mental hospital where she was confined, because “the hospital was too far” (id. at p. 1781). Elizabeth R. held the court had discretion under section 366.22 as then in effect to continue the mother’s reunification services. (Elizabeth R., supra, at p. 1799.) Here, in contrast, mother never asked for more frequent or liberalized visits. Nor do the facts demonstrate any basis for SSA to have offered them. Initially, mother missed six weeks of visits due to her whereabouts being unknown, and for the next year she often arrived late to, and left early from, her visits with the children. During the review period prior to the 18-month hearing, mother did not take advantage of some make-up visits that were available to her and even missed a scheduled one, causing Daniel to suffer distress. The evidence showed mother was unable to safely supervise the three children on her own and thus the presence of a visitation monitor was essential at visits throughout the dependency.
The version of section 366.22 considered in Elizabeth R. required the court at the 18-month hearing to either “return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children.” (Elizabeth R., supra, 35 Cal.App.4th at p. 1788.) Elizabeth R. held that, despite this statutory mandate, the juvenile court had discretion under section 352 to continue the 18-month hearing and to order the provision of additional reunification services to the mother. (Id. at pp.1798-1799.) In 2008, the Legislature added subdivision (b) to section 366.22 to empower the court, at the 18-month hearing, to continue the case and order additional reunification services for a parent making progress in a substance abuse treatment program or “recently discharged from incarceration or institutionalization and making significant and consistent progress in establishing a safe home for the child’s return,” even if the child is not returned to the parent at that time. (Assem. Bill No. 2070 (2007-2008 Reg. Sess.) § 3)
As to mother’s assertion SSA should have referred her to Wrap-Around services or provided her with a Parent-Aid at visits, the social worker testified she did not believe Wrap-Around services would have been the best referral for mother’s parenting problems. Instead the social worker believed a parenting class was “the best referral for such an issue.” The social worker also testified that the visitation monitor’s role is to monitor and assist the parent during visits. As was evident from both mother’s and Wellborn’s testimony, mother did not appreciate any parenting advice Wellborn sought to offer.
Finally, mother contends the social worker should have spoken with her parenting class instructors and individual therapist about her progress. But the social worker testified she knew mother had participated in one parenting class and “there were no expressed concerns from” the instructor. As to another parenting class, the social worker testified she received a detailed written report that obviated the need for her to speak with the instructor. The social worker also testified she had “no information from [the] therapist despite repeated requests for information” and that the therapist never phoned her back. Although the social worker would have liked to have talked with the therapist, such a conversation was unnecessary “[b]ecause regardless of what the therapist says, the issue is how is Mom as a parent.” (The social worker herself was a licensed therapist with a master’s degree in marriage and family therapy.)
The social worker testified she had left three phone messages for the therapist “in the last six weeks.” The therapist testified she did not receive three messages in March and April from the social worker and that she (the therapist) did leave one message for the social worker.
In short, substantial evidence supported the court’s finding SSA provided mother with reasonable reunification services.
DISPOSITION
Mother’s petition for a writ of mandate is denied.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.