Opinion
B166494.
7-11-2003
In re HUNTER H. et al., Persons Coming Under the Juvenile Court Law. JUANITA H., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Murray S. Berns for Petitioner; joined by Darold M. Shirwo for Minors Hunter H. and Chloe H. No appearance for Respondent. Lloyd W. Pellman, County Counsel, and William D. Thetford, Deputy County Counsel, for Real Party in Interest.
Petitioner Juanita H. (Mother) seeks extraordinary writ review (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 39.1B) of an order terminating reunification services and setting a section 366.26 hearing. Her children, Hunter H. and Chloe H., join in the petition. Mother contends: (1) she substantially complied with the court-ordered case plan; (2) the court erred in not returning Hunter and Chloe to her care; and (3) the court erred in not ordering additional reunification services. We deny the petition.
BACKGROUND
Hunter was born in September 1998. On October 10, 2001, the Los Angeles County Department of Children and Family Services filed a section 300 petition on behalf of Hunter, alleging that Mother suffers from mental and emotional problems including depression, paranoid schizophrenia, and bipolar disorder; Hunter was exposed to verbal confrontations between Mother and her companion, Sasha K., despite the issuance of a restraining order; and Hunters fathers identity and whereabouts are unknown ( § 300, subd. (b) [failure to protect]). The court sustained the petition on January 16, 2002.
On February 6, 2002, the court adopted a case plan providing that: (1) Hunter was to remain in shelter care; (2) Mother was to have reunification services; (3) Mothers visits (a minimum of three per week) were to be unmonitored in placement and monitored outside of placement; (4) Mother was to complete parenting, anger management, and domestic violence programs, individual counseling, and follow all treatment recommendations of her medical doctor; (5) Hunter was to have no contact with Sasha; and (6) Mother was to submit to a psychological evaluation (Evid. Code, § 730).
Chloe was born in March 2002. On April 2, 2002, the Department filed a section 300 petition on behalf of Chloe, based on the same allegations as with regard to Hunter. The court sustained the petition on May 22, 2002.
Chloe and Hunter live with the same foster family in a confidential placement.
On June 4, 2002, the Department filed a section 388 petition for modification based on several incidents, which had caused the Department to fear that Mother and Sasha (who was to have no contact with the children) were planning to kidnap the children. The petition alleged that on May 29, 2002, Mother, in violation of court order, had brought Sasha (who was waiting outside) to the foster family agency to visit the children, and had tried to move the visit outside to the parking lot. When the social worker refused to hold the visit outside, Mother had Hunter speak to Sasha through the window. After the social worker terminated the visit, Mother and Sasha threatened the social worker and refused to depart until the police arrived. In addition, the foster father reported that he had seen Mother outside his home, calling out for Hunter. The petition also alleged that previously, Mother and Sasha had threatened to abduct Chloe from the hospital rather than have her detained. As a result of these concerns, the foster family agency was no longer willing to monitor the visits. At the contested hearing on the Departments section 388 petition, the court ordered that Sasha be banned from all visits, and that all visits be monitored by, and held at locations approved by, the Department.
On March 11, 2003, the court held a 12-month permanency hearing for Hunter ( § 366.21, subd. (f)) and a 6-month review hearing for Chloe ( § 366.21, subd. (e)). The Departments report for the March 11 hearing included the following: Despite being provided reasonable services, Mother had failed to comply with the case plan and court orders. Although Mother had completed a parenting class, "her parenting skills have been observed by several people to be questionable. Recently, [Mother] had a visit at the [family foster agency] cut short due to her inappropriate comments and baiting behavior in front of Hunter. Mother has been observed repeatedly baiting Hunter to make allegations of physical abuse against his foster mother." Although Mother attended over 30 different anger management classes at three different agencies, she has yet to complete an entire program due to her poor attendance. In addition, she "still displays a significant anger management problem." For example, in February 2003, she stood outside the home of the legal guardian of her two older children (who are not involved in this proceeding), yelling, behaving erratically, frightening the children, and refusing to leave. Mother also repeatedly lost her temper with social workers and called them obscenities. Despite being ordered to undergo individual counseling, Mother failed to do so. Although she was allowed to have a minimum of three visits a week, between September 2003 and February 2003, Mother missed 26 visits and attended 18. Although Mother claimed to have a restraining order against Sasha, "a known criminal with a violent history," Mother was seen repeatedly in Sashas company. Mother "can[]not be trusted to protect her children from [Sasha] if the children were to be placed back into [Mothers] care." Regarding Mothers psychological condition, she recently changed medications, needs long-term psychotherapy, missed many psychiatric appointments in the past months, and due to her erratic and explosive behavior, "either [] is not taking her medication or [] is taking it, but it is not working." According to Dr. Zhang, "[Mother] suffers from a Schizoaffective Disorder and Borderline Personality Disorder, [Mothers] illness is poorly controlled at this time and . . . [Mother] is unable to provide a stable, safe and nurturing environment for her children if they were returned to her care at this time." The Department recommended that reunification services be terminated.
The court continued the March 11 hearing until April 15, 2003, by which time Hunters 12-month hearing was actually an 18-month permanency review hearing ( § 366.22) and Chloes 6-month hearing was actually a 12-month permanency hearing ( § 366.21, subd. (f)). The Department submitted an interim review report for the April 15 hearing that stated Mother: (1) was continuing to misbehave at visits (resulting in the foster family agency refusing to monitor visits), (2) had missed over half of her visits, (3) was allowing Sasha to live with her (at least part-time) but was hiding this fact from social workers, (4) had obtained a letter from Tammy Long, a Women Shelter Outreach Coordinator who had never seen Mother with her children, advocating that the children be returned to Mother (when informed of Longs letter, Women Shelter requested the letter be removed from the file as contrary to the agencys policy against advocating on the issue of reunification), (5) failed to sign the medical consent form needed for Chloes ear tube placement procedure, and (6) continued to fail to enroll in individual therapy. The Department continued to recommend that reunification services be terminated and a section 366.26 hearing be set for both children.
At the April 15, 2003, hearing, Mother testified that she had completed a parenting class and an anger management program with Long. (The Department, however, produced evidence showing that Mother never completed an entire 26-week anger management class from start to finish, and that Long was giving Mother credit, against the Departments policies, for partially completing other programs.) Mother testified that she recently began individual therapy with a licensed therapist (Dr. Sturgiss) and completed two sessions. Mother claimed that financial limitations had precluded her from commencing individual therapy earlier. (The Department contended, however, that Mother had failed to inform Telecare Homeless Outreach Program, the social services agency that assists her, of the requirement for individual counseling.)
Mother is presently under the care of a Telecare psychiatrist, Dr. Reantaso, who monitors her medications. According to Dr. Reantaso, Mother suffers from post traumatic stress disorder, major depressive disorder (in partial remission), anxiety disorder, and "personality disorders of anti-social, paranoid personality disorder, and borderline traits." Dr. Reantaso did not find Mother to be suffering from paranoid schizophrenia, but found she "still has nondelusional misperception[.]"
Mothers counsel (Mr. Berns) argued that Mother was in substantial compliance with the case plan and has made substantial progress. Berns requested that the court order family preservation services and return the children to Mother. Alternatively, Berns asked "the court to find that this is a special needs mother and to order her additional family reunification services for an additional period of time of three to six months."
The childrens attorney (Mr. Shirwo) asked the court to give Mother an additional six months of reunification services, at least with regard to Chloe, who, having been removed at birth, was a year old. Shirwo argued that Mother was in "full compliance" with the case plan. In addition, Shirwo contended that Mother was denied adequate reunification services. In support of his contention, Shirwo cited an incident that had occurred more than six months earlier when a social worker allegedly had discouraged the former Evidence Code section 730 evaluator, Dr. Ward, from conducting the evaluation by saying, "dont go in the same room with her." Shirwo stated that the delay in finding another evaluator was detrimental to Mothers progress. The deputy county counsel pointed out, however, that "the issue of Dr. Ward was quite a long time ago, not in the last six-month period . . . ." According to petitioners brief, the incident with Dr. Ward occurred some time before August 8, 2002.
The trial court found, with regard to Hunter, that 18 months of reasonable reunification services had been provided, returning Hunter to Mother at this time would create a substantial risk of detriment, there was no reason to believe that Hunter could be safely returned to Mother in the near future, and there was no reason to extend reunification services to Mother beyond the 18-month period. The court terminated reunification services for Hunter and set the matter for a section 366.26 hearing.
As for Chloe, the court found that 12 months of reasonable reunification services had been provided, returning Chloe to Mother at this time would create a substantial risk of detriment, and there was no sign that Chloe could be safely returned to Mother within the next six months. The court terminated reunification services for Chloe and set the matter for a section 366.26 hearing.
DISCUSSION
I
Mother contends she has substantially complied with the court-ordered case plan. The trial court, however, found her compliance was only partial, not substantial, based on evidence of her failure to complete an anger management program, her continued displays of anger, her poor attendance at visitation, her continued relationship with Sasha, and her failure to commence individual therapy until shortly before the April 15, 2003, hearing. As these failures amply justify the courts finding (see In re Monique S. (1993) 21 Cal.App.4th 677, 682-683), we reject Mothers contention as unsupported by the record.
II
The statutory scheme required the court to return the children to Mother at the April 15, 2003, hearing unless it found, by a preponderance of the evidence, that to do so would create a substantial risk of detriment to the childrens safety, protection, or physical or emotional well-being. ( §§ 366.21, subd. (f); 366.22.) Mother contends the court erred in not returning the children to her care. The record, however, contains substantial evidence to support the courts finding that returning the children to Mother would create a substantial risk of detriment. Both section 366.21, subdivision (f) and section 366.22 provide that a parents failure to participate regularly and make substantive progress in the case plan shall be prima facie evidence that return would be detrimental. As noted above, the record contains ample evidence of Mothers failure to make substantive progress in complying with the case plan. We uphold the courts finding that returning the children would pose a substantial risk of detriment.
III
In her petition, Mother refers to the argument raised below by the childrens attorney that reasonable services were not provided. That argument was based on an incident involving Dr. Ward which occurred more than six months before the April 15, 2003 hearing. To the extent Mother is attempting to raise this issue on appeal, we conclude it has been waived by the failure to raise it in a timely manner. (See Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-813.)
Mother contends she has "special needs due to her mental illness as outlined by Dr. Reantaso, and despite her best efforts to complete all requirements of the reunification plan, she needs additional services to allow her to complete her individual counseling." The trial court found there were no special needs to justify extending reunification services for another six months. The record supports this finding. This is not a case where Mother was hospitalized for the majority of the reunification period (In re Elizabeth R. (1995) 35 Cal.App.4th 1774), or the court had failed to prepare a case plan (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777), or the Department had failed to make reasonable efforts to reunify the family (In re Daniel G.(1994) 25 Cal.App.4th 1205). Given the absence of exceptional circumstances, we uphold the termination of reunification services.
DISPOSITION
The petition is denied.
We concur: SPENCER, P.J., and VOGEL (Miriam A.), J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code.