Opinion
D042106.
7-22-2003
H. S., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
PROCEEDINGS in mandate after reference to a Welfare and Institutions Code section 366.26 hearing (all statutory references are to the Welfare and Institutions Code). Hideo Chino, Juvenile Court Referee. Petition denied.
H. S.s three sons were declared dependents in February 2002 after H. brought them to the San Diego County Health and Human Services Agency (HHSA) and said the family was destitute, she could no longer care for the boys and she did not want assistance or referrals. After H. was offered services for over 16 months the court found she made no substantive progress in alleviating the problems that led to the dependency proceeding and there was not a substantial probability the boys would be returned to her physical custody by the 18-month review date. The court terminated H.s services and set a permanency hearing.
H. petitions (§ 366.26, subd. (l); Cal. Rules of Court, rule 39.1B), challenging the finding of no substantial probability of return. She contends she now has appropriate housing for the boys, she regularly visited them, years earlier she participated in services through family court and she was evaluated by a psychologist. We issued an order to show cause, HHSA responded and the parties waived oral argument. We review the petition on the merits and deny it.
DISCUSSION
When a dependent child is not returned to parental custody at the 12-month review hearing, the court "shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent . . . ." (§ 366.21, subd. (g)(1).)
In order to find a substantial probability of return, the court is required to find the parent has consistently visited the child (§ 366.21, subd. (g)(1)(A)); the parent has made substantial progress in resolving the problems that led to removing the child (§ 366.21, subd. (g)(1)(B)); and "the parent . . . has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs." ( § 366.21, subd. (g)(1)(C).)
The record shows H.s sons were 14, 11 and 9 years old when she asked HHSA to take them into protective custody. The family had lived in a van for nearly a year and H. refused to send the boys to school. Although H. received $ 900 a month in public assistance funds and was eligible for subsidized housing, she said she was unable to feed the boys or maintain an apartment. She refused to stay in shelters. Although the boys had medical and dental coverage, H. would not take them for care. The family had an extensive child welfare history and H. had been convicted of spousal battery. She was diagnosed with bipolar affective disorder but refused treatment.
H.s case plan included psychiatric and psychological evaluations, general counseling and domestic violence classes. Evaluating psychologist Judy Matthews reported in April 2002 that H. suffered from schizophrenia, paranoid type, and functioned in the mildly retarded range of intelligence. H.s mental illness had been untreated for many years. Dr. Matthews thought H. could not provide for her sons on a consistent basis and H.s "level of suspiciousness and paranoia preclude her from receiving and using assistances."
The 12-month review hearing was conducted on May 5, 2003. HHSA reported H. repeatedly refused to participate in a psychiatric evaluation, counseling and domestic violence classes. She visited her sons every week but often acted inappropriately. The boys did not want to return to her care. H. had refused to disclose where she lived until six weeks before the hearing.
H. testified she refused services because they were "unfair" and she does not need them. She said the psychological evaluation was "terrible" and the doctor was a "liar." She refused medication for her mental health problems because she does not trust medical providers. She understood why her children were afraid of living with her because their past had been "terrible." H. said she has had an apartment for almost a year. She believed she was ready to care for her sons and all of her past problems were gone.
Although H. had obtained housing and consistently visited her sons, she made no attempt to receive treatment for her mental illness that rendered her unable to adequately parent. The 18-month date was five weeks after the review hearing and H. showed no capacity to complete her treatment plan or to protect and provide for her sons. Substantial evidence supports the order the boys could not be returned to H.s custody by the statutory deadline.
DISPOSITION
The petition is denied.
WE CONCUR: McDONALD, Acting P. J., OROURKE, J.