Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD225420, JD225421
HULL, J.
L.F., the adoptive mother and biological maternal grandmother (hereafter Mother) of 12-year-old twins (hereafter Son and Daughter), appeals from an order entered at an Aryanna C. (In re Aryanna C. (2005) 132 Cal.App.4th 1234 (Aryanna C.)) hearing terminating her reunification services. (Welf. & Inst. Code, § 395; undesignated statutory references that follow are to the Welfare and Institutions Code.) Mother, who is 70 years old, argues the court’s finding that reasonable services had been provided is not supported by sufficient evidence, and this is not the “very infrequent” case in which services should be terminated. We affirm the judgment.
Facts and Proceedings
Mother has a child welfare history. In July 2002, a referral was made to Children’s Protective Services (CPS) alleging that Mother “is short tempered, has volatile behavior and appears to be stressed out,” and that she physically abused a child. On September 1, 2002, a reporter alleged that Mother passed out in the presence of the children after taking several “pills” while drinking beer. On September 18, 2002, a referral was made for general neglect, and the disposition was inconclusive. Following Mother’s fourth suicide attempt, a referral was made on September 23, 2002, alleging caretaker absence or incapacity and emotional abuse. In October 2005, there was a substantiated referral for general neglect: “Mother reported feeling overwhelmed while caring for the children, who were missing excessive amounts of school. [Mother] had been previously hospitalized for attempting to commit suicide; however, she was not placed on a [§ 5150] hold. [Mother] was non-compliant with her psychotropic medication. The synopsis was that [Mother] suffers from depression and anxiety. She has been hospitalized on multiple occasions for overmedicating and possible suicide attempts. She is non-compliant with medica[tion] for depression.”
Daughter was adopted as an infant, has endured physical and sexual abuse (including two rapes) as well as discrimination for being bisexual, and has a history of substance abuse and suicide attempts. She has “exceptional emotional needs” and “severe behavioral problems.” According to Son, Daughter also has a serious anger problem and a problem with drugs.
On February 2, 2007, as a suicide gesture, Daughter drank two wine coolers and took approximately 20 unidentified pills that had been prescribed to Mother. Daughter explained that “everything is confusing at [Mother’s] home,” and that she “didn’t want to deal with anything anymore.” On two prior occasions, she had tried to commit suicide by cutting her wrists.
The next morning, Mother felt “overwhelmed” and stated that she “cannot handle” Daughter. She took some pills and was taken by ambulance to a hospital.
In Mother’s absence, Daughter was left in the care of a family friend. That afternoon, the friend told Daughter to clean up her bedroom but she did not do so. As a result, the friend discarded Daughter’s property and she responded by throwing a hard shoe at the friend. Law enforcement was called, and Daughter disclosed her suicide attempt to the officers. She was taken to a medical center and, several hours later, to the Children’s Receiving Home. Two days later, Son was located and taken to the Receiving Home.
On February 6, 2007, petitions were filed alleging that the children were within section 300, subdivisions (b) and (c). As later amended, the petitions alleged that mother had been diagnosed with bipolar disorder and depression and had been hospitalized on numerous occasions, which impaired her ability to care for and supervise the children; and that Daughter has serious emotional damage, in that on more than one occasion she attempted to harm herself and was admitted to a medical center following a “suicide gesture.” On February 7, 2007, the children were ordered detained.
Two days after she was hospitalized, Mother was placed on a section 5150 hold at a psychiatric facility due to chronic depression. Mother admitted that she was unable to meet Daughter’s exceptional emotional needs. Mother stated that she has had ongoing problems with depression since her early teenage years; that she has abused pain medications prescribed for her arthritis; that she has a history of suicide attempts; that she recently has been diagnosed with bipolar disorder; and that both children have had emotional difficulties due to her multiple hospitalizations during the past five years.
Daughter told the social worker that Mother had been hospitalized more than 10 times during the past several years. Daughter stated that Mother drank alcohol and abused the maternal great-grandmother’s pain and mental health medications. Daughter admitted that she was mimicking Mother by drinking alcohol and consuming her psychiatric medications. Daughter also stated that she did not want to return to Mother’s home.
At the jurisdiction and disposition hearing, the petitions were amended to read as noted above. Mother submitted to the amended allegations and to the recommendations in the social worker’s report. The court ordered her to comply with a case plan that required her to abstain from alcohol and unlawful drugs, submit to drug testing, participate in counseling and mental health services, and participate in parenting education and substance abuse treatment. A pre-permanency review hearing (§ 366.21, subd. (e)) was scheduled for August 2007.
The social worker’s August 31, 2007, pre-permanency review report revealed the following: The worker had had face-to-face contact with Mother on May 14 and August 9, 2007. Two other scheduled appointments evidently were not kept because Mother forgot about them or wrote down the wrong date. Mother was described as “a frail and elderly woman who has a difficult time remembering dates as well as an inability to advocate for herself and utilize community resources.”
Mother had not participated in individual counseling sessions due to “either forgetting when they are or not having transportation.” The social worker several times suggested that Mother apply for paratransit services and twice sent her an application.
Mother had not participated in an Alcohol and Other Drug Assessment. Mother had been referred for random alcohol and drug tests. She was tested once, with negative results, in August 2007. She did not participate in a parenting education program.
Mother had visited the children only sporadically, “due to her lack of transportation or having a difficult time remembering the appointments.” The children expressed concern that Mother “may have been under the influence during the last visit.” In the presence of the foster parent and a visitation monitor, the children shared with Mother their feelings “about her drug use and their desire to remain in placement.”
On June 1, 2007, Mother was hospitalized at a psychiatric facility “after feeling overwhelmed and depressed over the current proceedings.” Nine days after learning that Mother had been hospitalized, Daughter began suffering from depression and had to be hospitalized.
Based on Mother’s continuing struggle with mental illness, her noncompliance with the case plan, and the children’s thriving in their foster placement, the social worker recommended that an Aryanna C. hearing be set to evaluate whether Mother would benefit from continued reunification services.
Over the objections of Mother and her counsel, the juvenile court scheduled an Aryanna C. hearing for December 7, 2007.
Aryanna C. Hearing
The social worker’s December 6, 2007, progress report for the Aryanna C. hearing revealed the following: On September 12, 2007, the social worker received a telephone call from Mother. She stated that she “had considered the words of Referee Hertogh[e] at the last hearing and has spoken to friends and relatives and has determined she is unable to care for the children.” Mother “stated although she is working hard to manage her medication and her depression, she recognize[s] her frailty in health does not allow her to properly care for two ranbuncous [sic] teens.” Mother reiterated this view in a telephone conversation the next month. However, in November 2007, Mother left the social worker a message stating that she had changed her mind and would be willing to participate in services.
The social worker reported that, “[a]t the writing of this report [Mother] has not engaged in any of the services that she has been referred for.” Visits with the children had “not been consistent,” because Mother lacked transportation and relied on others to transport her. During visits that were held, Mother had been unable “to control her emotions” and would “become upset and cry.” “These emotional outbursts left the children feeling upset and on at least one occasion refusing to go to a visit.”
The social worker concluded that “[c]ontinued services will not likely result in these children reunifying” with Mother.
Mother was not present at the Aryanna C. hearing on December 7, 2007, where her counsel entered “an objection on her behalf.” Observing that visitation had become “an even more difficult situation for everyone involved,” the juvenile court terminated reunification services. The court adopted the proposed findings in the progress report, including a finding that the agency has made reasonable efforts to make it possible for the children to safely return home.
Discussion
Mother contends the juvenile court erred when it terminated her reunification services at the Aryanna C. hearing. Specifically, she claims (1) the court erred when it determined that reasonable services had been provided, and (2) the standard for terminating services at an Aryanna C. hearing has not been, and must be, established; moreover, this is not the “very infrequent” case in which parental unfitness is so well established that there is no longer reason to believe that positive, nurturing parent-child relationships exist. (Citing In re Derrick S. (2007) 156 Cal.App.4th 436, 450.)
I Contentions of Error
Mother contends the trial court erred when it found that reasonable services had been provided. Specifically, she claims (1) the court failed to specify the standard of proof it was applying, and (2) the finding is not supported by substantial evidence. We consider these claims in turn.
A. Standard of Proof
Mother has forfeited her claim that the wrong standard of proof was used. “In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been [forfeited] and may not be raised for the first time on appeal. [Citations.]” (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) This includes issues related to the standard of proof by which particular findings must be made. (Ibid., citing In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.) By failing to object that the juvenile court was required to apply a standard of clear and convincing evidence, Mother has forfeited any contention that an inappropriate standard was applied.
In any event, there was no error. The court in Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 594 (Katie V.) stated, without qualification, that “At the six- and 12-month review hearings, the standard of proof for the reasonable services finding is expressly clear and convincing evidence. (§ 366.21, subd. (g)(1) & (2).)” Because this Aryanna C. hearing followed the six-month review hearing, it was effectively an accelerated 12-month review hearing.
But, Katie V.’s statement of the standard of review is overly broad.
Section 366.21, subdivision (g)(1)(C) states in relevant part: “The court may not order that a hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian.” (Italics added.) Subdivision (g)(2) provides that the court may “Order that a hearing be held within 120 days, pursuant to Section 366.26, but only if the court does not continue the case to the permanency planning review hearing and there is clear and convincing evidence that reasonable services have been provided or offered to the parents or legal guardians.” (Italics added.)
Under the statutory scheme, the standard is clear and convincing evidence where the court orders a section 366.26 hearing. Here, however, no section 366.26 hearing was ordered because, among other reasons, the children are 12 years old and object to termination of parental rights, and the foster parent is unwilling to adopt. Nothing in the statutory scheme or in Katie V. requires the court to apply a standard of clear and convincing evidence even though no section 366.26 hearing is being ordered. Mother’s argument that the “applicable standard” was “clear and convincing evidence” has no merit. If the court applied a standard of preponderance of evidence, its action was not error.
B. Sufficiency of the Evidence
When the sufficiency of the evidence to support a finding or order is challenged on appeal the reviewing court must determine if there is any substantial evidence--that is, evidence that is reasonable, credible and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the judgment and that issues of fact and credibility are questions for the trier of fact. (Jason L.,at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Mother claims the offered services were “meager,” rather than reasonable, in part because the “social worker stated that she had only two direct contacts” with Mother during the first six months of reunification. Mother overlooks the fact that the social worker scheduled two additional meetings, which Mother did not attend. The social worker explained that Mother “has had difficulties attending the scheduled appointments as she forgets about them or has them written down for the wrong dates.” Mother does not contend that four meetings in six months would have constituted an unreasonable level of service. Nor does it appear that Mother was unreasonably denied any service that would, or could, have directly addressed her forgetfulness.
Mother complains that the social worker “only referred [her] for a drug/alcohol test once” during the first six months of reunification. The Pre-permanency Review Report states that the social worker “referred [Mother] to Valley Toxicology for random alcohol and other drug urinalysis.” The report reveals neither the number of tests that were requested in the referral nor the intended interval between them; nor does the report suggest that each test required a separate referral.
Any failure to order additional random tests could not have been prejudicial. Mother was referred for an alcohol and other drug assessment but she did not participate. Additional negative tests would not have justified the striking of the assessment requirement. Nothing in the record suggests that additional positive tests would have persuaded Mother to complete the assessment and obtain needed treatment.
Mother complains that the social worker’s “response to being repeatedly told by [Mother] of her transportation difficulties was to refer [her] for Paratransit services.” In fact, the Pre-permanency Review Report states, “The undersigned has suggested on several occasions [that Mother] apply for Paratransit services. On August 14, 2007, the undersigned mailed [Mother] a second application.” Thus, rather than suggest that Mother made “repeated[]” complaints of “transportation difficulties,” the report actually suggests the social worker made repeated efforts to persuade Mother to apply for Paratransit service. Nothing in the record suggests that Paratransit refused to provide service or was unable to provide the level of service that Mother required. The juvenile court could deduce that Mother was offered transportation service but she failed to take advantage of it.
“‘Reunification services are voluntary . . . and an unwilling or indifferent parent cannot be forced to comply with them. [Citations.]’ [Citation.]” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365.) Mother was offered individual counseling, which she did not attend. She did not participate in an alcohol and other drug assessment. Nor did she participate in parenting education. The finding that Sacramento County Department of Health and Human Services (DHHS) complied with the case plan by making reasonable efforts to make it possible for the children to return safely home is supported by substantial evidence. (In re Angelia P., supra, 28 Cal.3d at p. 924.)
II Standards for Terminating Services
Noting that “no hard and fast parameters have been set by the appellate courts for the exercise of discretion by the juvenile court in terminating services before the end of the nominal reunification period,” Mother asks that this court establish standards for the exercise of such discretion. She argues that the present ruling was an abuse of discretion because this case “does not present such poor or utter non-performance” as to justify early termination.
As Mother recognizes, this court held in Aryanna C. that the six-month period for reunification with a child under three years old is a maximum, not a minimum, and the juvenile court has discretion to terminate reunification services for a parent at any time after services are ordered. (Aryanna C., supra, 132 Cal.App.4th at p. 1242.) As Mother further recognizes, the holding in Aryanna C. was extended to cases involving children over the age of three years. (In re Derrick S., supra, 156 Cal.App.4th at p. 439.)
Although no appellate court has established “hard and fast parameters” for early termination of services, the Legislature has acted to fill this gap by enacting Assembly Bill No. 2341 (2007-2008 Reg. Sess.). (Stats. 2008, ch. 457.) Effective January 1, 2009, section 361.5, subdivision (a), provides that a motion pursuant to section 388, subdivision (c), shall be brought to terminate reunification services early. (Stats. 2008, ch. 457, §§ 1, pp. 2-3; § 1.5, p. 10; § 2, pp. 18-19.) Section 388 will permit the court to terminate reunification services if (1) a change of circumstances or new evidence exists that justifies termination (§ 388, subd. (c)(1)(A)), or (2) the “action or inaction of the parent or guardian creates a substantial likelihood that reunification will not occur, including, but not limited to, the parent or guardian’s failure to visit the child, or the failure of the parent or guardian to participate regularly and make substantive progress in a court-ordered treatment plan.” (§ 388, subd. (c)(1)(B); see also Stats. 2008, ch. 457, § 2, p. 19.)
The DHHS contends that termination of reunification services was proper even under the test suggested by Mother--because “‘parental unfitness is so well established that there is no longer “reason to believe that positive, nurturing parent-child relationships exist” [citation].’” (Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 613; see In re Derrick S., supra, 156 Cal.App.4th at p. 450.) We agree.
The present record offers no reason to believe that Mother shares a positive, nurturing parent-child relationship with either child. In requesting the Aryanna C. hearing, the social worker explained, “[t]he barriers to reunifying the children with [Mother] at this time is [sic] [Mother] is not compliant with her Court ordered services. [Mother] is also having difficulty maintaining stability with her mental health. Also the children have expressed a desire to remain in the foster home and not be returned to [Mother].”
According to the pre-permanency review report, Mother failed to participate in individual counseling and visited the children only sporadically because she either forgot about her appointments or did not have transportation. Mother failed to participate in an alcohol and other drug assessment or a parenting education program. The children expressed concern that Mother “may have been under the influence during the last visit,” and they shared with Mother their feelings about Mother’s drug use and their desire to remain in placement. The children continued to be adversely affected by Mother’s unstable mental health. Both children have “stated that they do not desire to reunify with the mother.”
Following these observations, the progress report for the Aryanna C. hearing noted that Mother’s inability to control her emotions during visits “left the children feeling upset and on at least one occasion refusing to go to a visit.” Although she later retracted her statement, Mother twice acknowledged that, due to her frail health, she is unable to care for the children and successfully participate in reunification services. Instead, Mother desired to “maintain a close relationship such as a grandmother with the children.” On this record, Mother’s unfitness was so well established that there is no reason to suspect the existence of a positive, nurturing parent-child relationship. (Daria D. v. Superior Court, supra, 61 Cal.App.4th at p. 613.)
Disposition
The judgment is affirmed.
We concur: BLEASE, Acting P. J., ROBIE, J.