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In re R. C.

California Court of Appeals, Third District, Sacramento
Apr 13, 2009
No. C059179 (Cal. Ct. App. Apr. 13, 2009)

Opinion


In re R. C., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. P. C., Defendant and Appellant. C059179 California Court of Appeal, Third District, Sacramento April 13, 2009

Super. Ct. No. JD224550.

SIMS, J.

P. C. (appellant), the mother of the minor, appeals from the juvenile court’s order terminating reunification services. (Welf. & Inst. Code, § 395; undesignated statutory references are to the Welfare and Institutions Code.) Appellant contends the juvenile court erred by finding that reasonable services were provided to her and by declining to continue the 18-month review hearing to allow her to complete services. As appellant was not offered any services during the review period preceding the hearing to assist her in reunifying with the minor, we agree. Thus, although we reject appellant’s additional claim that the minor should have been returned to her care, we shall reverse the juvenile court’s order terminating services with the minor.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2006, the Sacramento County Department of Health and Human Services (the Department) filed a dependency petition regarding the six-year-old minor and his 21-month-old sibling after appellant requested the children be placed in protective custody because her mental instability rendered her unable to care for them. According to the minor, appellant regularly punched and kicked him and hit his sibling. Appellant, who had a history of child protective services interventions going back more than 10 years and had three other children who were living with relatives, had been diagnosed with chronic depression and anxiety and had not taken medication for three weeks due to a problem with her medical coverage. Appellant was receiving mental health treatment at El Hogar Mental Health and Community Service Center (El Hogar).

This appeal does not pertain to the minor’s sibling, whose matter was set for a hearing pursuant to section 366.26 to select a permanent plan. Appellant filed a writ petition concerning the sibling, which was denied. (Patricia C. v. Superior Court (Aug. 8, 2008, C059175) [nonpub. opn.].)

The juvenile court sustained the allegations in the petition, and the matter was continued for a dispositional hearing with an order that appellant participate in a psychological evaluation as arranged by the social worker.

A psychological evaluation was not completed by the time of the dispositional hearing. The juvenile court ordered services for appellant as recommended by the social worker and again ordered a psychological evaluation.

According to the report for the six-month review, appellant had completed a medication evaluation, was attending therapy and a parenting class, and consistently attended visits. She had been very cooperative, and her prognosis in short-term counseling was good, although she had not yet addressed issues of “parental effectiveness and feelings of confidence as a mother.” In addition, although appellant was reportedly “very attentive and nurturing” during visits with the minor and his sibling, visits remained supervised, in part “due to reports that [appellant] was unable to assess age-appropriate behaviors and expectations of the children.” Again, no psychological evaluation had been completed.

Although the social worker recommended termination of services based on petitioner’s “lack of progress,” the juvenile court ordered services to continue. In addition, the court found the Department had complied with the case plan and again ordered a psychological evaluation “to identify how to best tailor [appellant’s] services.”

Rather than making recommendations for tailored services, the psychological evaluation -- which was completed by Jason Wilkenfield, Ph.D., in June 2007 -- found that appellant “d[id] not appear to have the psychological resources necessary to effect changes in her circumstances” and concluded it was “very unlikely” she could benefit from services sufficiently within 12 months such that she would be able to parent her children. Testing suggested appellant was in the “[b]orderline intelligence” range. She was described as having “difficulty keeping her attention focused,” and “conspicuous impairments were apparent with regard to her facility to exercis[e] appropriate practical and social judgment, her abstract thinking ability and her psychological insight.” The evaluation noted appellant had reported that her ability to care for her children had steadily declined since May 2006, when she fell in the shower and began experiencing seizures.

According to the 12-month review report, appellant remained cooperative with the social worker, had attended a housing workshop, and had successfully completed a parenting class. However, she had canceled almost one-third of her visits, and when she attended, she seemed preoccupied and inattentive to the minor and his sibling. In particular, appellant “tend[ed] to provide more attention to [the sibling] while [the minor] [was] ignored more often than not.” The social worker again recommended that services be terminated.

In September 2007, the juvenile court continued the matter so the social worker could obtain additional information regarding appellant’s counseling and to obtain a recommendation from Dr. Wilkenfield for tailored services, as previously ordered.

Dr. Wilkenfield submitted recommendations for tailored services, which included a recommendation that appellant be referred to a neurologist to determine whether she had a seizure disorder. In addition, Dr. Wilkenfield recommended that appellant meet regularly with her psychiatrist and create a behavioral contract regarding medication compliance, that she continue individual therapy, that she participate in hands-on parenting training, and that she be provided in-home independent living skills instruction.

In an addendum, the social worker reported that appellant had remained stable on her medications for the preceding six months and had attended 12 individual counseling sessions, in which she had made progress on some of her therapeutic goals but had been unable to meet other goals her therapist deemed “‘critical to the well-being of her children should re[]unification be granted.’”

At the 12-month review hearing in October 2007, the juvenile court found reasonable services had not been provided because the psychological evaluation initially did not address the tailoring of services. The court ordered the Department to utilize the plan of services developed by Dr. Wilkenfield, and the matter was set for an 18-month review hearing. An updated case plan was filed one week later containing most of Dr. Wilkenfield’s recommendations.

Shortly after the hearing, the social worker made efforts to refer appellant for a neurological examination and to locate an independent living skills program for her, but the social worker did not follow up with the various agencies where she had left messages. Several months later, the social worker spoke to personnel at El Hogar about an independent living skills program through that agency, but she did not attempt to contact appellant about the program until the week before the 18-month review hearing. Similarly, the social worker did not contact appellant’s therapist to arrange for additional individual therapy until a few days before the 18-month review hearing.

Appellant was referred for hands-on parenting training with the minor’s sibling shortly after the 12-month review hearing, but the training did not include the minor. Appellant had progressed to the second component of the training, although the service provider was “concerned about [appellant’s] ability to generalize the skills she is learning... [and] to independently initiate and respond appropriately to [the sibling’s] day-to-day social needs across situations and settings.”

According to the social worker’s 18-month review report, appellant was “relatively consistent” in attending visits but continued to have trouble setting boundaries and reading her children’s “cues.” Additionally, appellant was described as exhibiting a “‘child[]like demeanor’” and a “lack of ‘cognitive and emotional’ ability to care for her children without supervision.” She “continue[d] to struggle with active engagement with her children” and with “interact[ing] [with them] in a nurturing way.”

The minor had been placed with his sibling in November 2007, although he previously had been removed from placement with her due to his sexually acting out behavior toward her. The foster parents were interested in pursuing adoption of the sibling but not the minor.

The minor’s removal from this foster home was being pursued approximately one month after the 18-month review hearing because he continued to exhibit sexual behavior with his sibling and other female children.

Appellant filed a pretrial statement challenging the adequacy of services based on the failure to provide her a neurological examination, independent living skills training and additional therapy. In a subsequent brief, she asked the court to continue the 18-month review hearing to give her more time to complete services.

The social worker submitted an addendum report in April 2008, on the date set for the review hearing, describing her efforts during the preceding week to contact appellant’s therapist for additional sessions and to refer appellant to the independent living skills program at El Hogar. Appellant had informed the social worker that she was given a neurological evaluation when she applied for SSI based on her seizures but that she had been unable to obtain the results of the evaluation, and the social worker also attempted to obtain this information with negative results.

At the 18-month review hearing, the Department concurred with appellant’s request for a continuance. The juvenile court stated it could grant a continuance only if there were exceptional circumstances or if it found reasonable services had not been provided. The court noted all of the experts had found that, although appellant tried, she had been unable to internalize information, and that no one had indicated she was likely to be able to reunify with additional treatment. It concluded it could not find exceptional circumstances warranting a continuance.

The social worker testified that, shortly after the 12-month review hearing, she called appellant’s psychiatrist and another agency to attempt to arrange a neurological examination, and that she also had left a voice mail at a third agency that appellant said might be able to provide the evaluation. Appellant’s psychiatrist did not respond to the social worker’s inquiry for several months, at which time he stated he would not be able to perform the examination. According to the social worker, the Department’s efforts to obtain a neurological examination ceased at that time. She testified that, if it had been during the first six months of services, she would have “look[ed] for other resources, and... probably push[ed] a little bit more with [appellant’s psychiatrist]....”

With regard to independent living skills training, the social worker testified that appellant’s service coordinator at El Hogar told a previous social worker that he would “follow up with [appellant] to make sure that she starts attending,” but it was “unclear” whether appellant in fact had ever been told about the classes. The social worker stated that, if services continued, appellant could participate in this program, although the social worker did not know whether “this is what she needs or would benefit from.”

Appellant’s attorney argued that the lack of reasonable services throughout the proceedings warranted a continuance of the review hearing. Appellant’s attorney also sought return of the minor and his sibling to appellant’s care.

The juvenile court reiterated it did not believe appellant’s circumstances justified a continuance and stated that the only way she would be “legally entitled” to a continuance was if it found that reasonable services had not been provided. Apparently relying on the minute order from the 12-month review hearing, which did not reflect the order for the Department to utilize Dr. Wilkenfield’s recommendations, the court noted: “There is not a specific reference to making sure that the Department complies with everything in Dr. Wilkenfield’s report.” The court found that, nonetheless, the Department had “diligently attempted” to provide the services recommended by Dr. Wilkenfield, and inferred that, in any event, appellant had received ongoing mental health services from the mental health “providers” who had been involved with her prior to the initiation of dependency proceedings.

With regard to the failure to provide a neurological examination, the court noted that this recommendation was based on an indication that appellant may have developed a seizure disorder in 2006 but this appeared to be unrelated to her parenting deficits and, thus, would not be a basis for extending services.

The court concluded: “We have run out of time. These kids are bonded to the current caretaker. These kids are entitled to permanency. [Appellant] has had services, and it may be a situation where if we even extended those services because of some legal basis to do so, we still might not see her ability to parent independently.” The court also noted that it “sense[d]” appellant was either “not as active as she could have been or had some reluctance to follow suggestions of the Department,” but concluded that, even if this were not the case, “I still don’t think that we’re going to have a better prognosis.” Accordingly, the court adopted the social worker’s recommendation to terminate services.

DISCUSSION

I

Appellant maintains she was not offered reasonable services during the last six months of reunification efforts. We agree that the juvenile court erred at the 18-month review hearing in finding appellant received reasonable services.

At the 12-month review hearing, a finding was made that reasonable services had not been provided because a plan tailored to appellant’s particular needs had not been developed. Thus, additional services were ordered, incorporating the recommendations contained in her psychological evaluation, and the Department was required to make a good faith effort to provide such 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; In re Kristin W. (1990) 222 Cal.App.3d 234, 254.)

This the Department did not do. Appellant was not provided most of the services in her updated case plan, including individual therapy, independent living skills training and a neurological examination. In fact, the only service provided to appellant following the 12-month review hearing (other than facilitating visits) was hands-on parenting training with the minor’s sibling, who was three years old at the time and four and one-half years younger than the minor. We cannot assume this parenting training sufficed to impart skills appellant could utilize to reunify with the minor.

No other services were offered to assist appellant in reunifying with the minor following the 12-month review hearing. Instead, after some initial attempts to comply with the newly tailored case plan, the Department did next to nothing to assist appellant in her efforts to reunify with the minor. And it is beyond dispute that at least some of the services required by the case plan -- including individual therapy and independent living skills training -- were available. The social worker also acknowledged that there was more she could have done to obtain a neurological evaluation. Thus, contrary to the juvenile court’s assessment, the Department’s efforts to comply with the case plan appear to have been far from diligent.

Appellant argues that the juvenile court applied an erroneous standard when it found services were reasonable because it focused on the Department’s “diligen[ce]” in attempting to provide services rather than the quality of the services actually provided. While we agree that the social worker’s efforts to provide services cannot be the sole determining factor in adjudging the reasonableness of services, such efforts are relevant to show that the services provided were reasonable under the circumstances.

However, a party may not appeal a finding “in the absence of an adverse order resulting from that finding.” (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1154.) Thus, we will not vacate the juvenile court’s finding unless we determine an adverse order resulted. Appellant asserts the juvenile court abused its discretion by denying her request to continue the 18-month review hearing based on the lack of reasonable services provided to her.

Section 352, subdivision (a), provides that a hearing in a juvenile dependency matter may be continued “beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor.” Several appellate courts have recognized a juvenile court’s discretion to continue the 18-month review hearing to allow a parent additional time to reunify. (See, e.g., Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1465; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798-1799; Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1017 and In re Daniel G. (1994) 25 Cal.App.4th 1205, 1216.) “[I]nterpreting the statutes to provide the juvenile court with discretion to order continued family reunification services at the 18-month review is consistent with the legislative intent to preserve the family unit whenever possible and with the specific statutory provisions addressing the requirements for family reunification services.” (In re Daniel G., supra, at pp. 1214-1215.)

The failure to provide reasonable services can provide the basis for an exercise of discretion to continue the 18-month review hearing. (See, e.g., Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1017 and In re Daniel G., supra, 25 Cal.App.4th at p. 1216.) However, “‘[s]ection 352 mandates that before the court can grant a continuance it must “give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.”’” (In re Elizabeth R., supra, 35 Cal.App.4th at p. 1798.) Thus, in evaluating whether to exercise its discretion to continue the 18-month review hearing, “the court should consider the services already provided..., the likelihood of success of any further reunification efforts, whether [the child]’s need for a prompt resolution of his status outweighs any benefit from further reunification services,” and any other relevant factors. (In re Daniel G., supra, at pp. 1216-1217.)

Turning to the matter before us, we conclude the juvenile court abused its discretion by refusing to continue the 18-month review hearing as to the minor. We begin by noting that the court based its exercise of discretion, in part, on the misconception that the Department had not been ordered to utilize the plan of services recommended by Dr. Wilkenfield. We also note there is no evidentiary basis for the court’s suggestion that the “ongoing services” appellant was receiving on her own for her mental health issues were adequate to satisfy the requirements of her case plan. Nor does the record support the court’s “sense” that appellant, who consistently was described as cooperative by the Department, was reluctant to participate in services.

The Department requests we take judicial notice of our unpublished opinion in the writ proceeding involving the minor’s sibling -- in which we held it was not an abuse of discretion to deny a continuance of the sibling’s 18-month review hearing -- to support its argument that appellant’s claim regarding the failure to grant her a continuance is moot. We decline this request, agreeing with appellant that the minor is not similarly situated to his sibling, in that the sibling was under three years old when dependency proceedings were initiated, had participated in hands-on parenting training with appellant during the final six months of reunification efforts, and was not facing a permanent plan of long-term foster care. As the minor was not the subject of the writ proceeding, we reject the Department’s claim that the law of the case renders the issue moot on appeal in the minor’s matter.

In In re Daniel G., the services provided during the last 12 months of reunification efforts were deemed “virtually nil,” and the appellate court remanded the matter for the juvenile court to exercise its discretion as to whether to continue the 18-month review hearing so additional services could be provided. (In re Daniel G., supra, 25 Cal.App.4th at p. 1216.) Acknowledging the mother “appear[ed] to have serious emotional problems” and might never be able to care for her child, the appellate court held that this did not allow the social services agency to “g[i]ve up on this case without really trying.” (Ibid.)

A similar assessment can be made with regard to appellant’s circumstances vis-à-vis the minor. Despite appellant’s long-standing mental health problems, a case plan tailored to her particular needs was not developed until the 12-month review hearing. After a tailored plan was finally in place, the only service that was made available to her was directed at promoting reunification with the minor’s sibling, not the minor. Thus, although there is reason to question whether appellant will be able to reunify with the minor with additional services, it is difficult to assess this given the minimal services she was provided during the latter portion of the reunification period.

Appellant was entitled to adequate reunification services before her efforts to reunify with the minor could be terminated. “[O]ne of the ‘precise and demanding’ substantive requirements [the Department] must meet to satisfy due process is affording reasonable reunification services. Where reasonable services are not afforded there is a substantial risk the court’s finding the child cannot be returned to the parent will be erroneous.” (In re Daniel G., supra, 25 Cal.App.4th at pp. 1215-1216.)

We acknowledge that the minor has an interest in stability and permanency, which will be frustrated to some extent by continuing the 18-month review hearing. However, the permanent plan that has been established for the minor is long-term foster care “with a goal of guardianship or adoption,” and there was no identified long-term caretaker for the minor at the time of the 18-month review. Furthermore, when asked what his preference was for foster care placement, the minor stated he would like to live with appellant. Thus, pursuing reunification with appellant may well be the minor’s best hope for stability and permanence.

Accordingly, we conclude the juvenile court erred in finding appellant was offered reasonable services to assist her in reunifying with the minor and that, under the circumstances, it was an abuse of discretion to deny a continuance of the 18-month review hearing to provide her such services.

II

Appellant also argues the evidence was insufficient to support the juvenile court’s finding that the minor could not be safely returned to her care. We reject this claim.

At the 18-month review hearing, the child must be returned to the parent’s physical custody unless return would create a substantial risk of detriment to the child’s safety or well-being. (§ 366.22, subd. (a).) A parent’s failure to make substantive progress in court-ordered services is prima facie evidence of such detriment. (Ibid.) Although compliance with the case plan is a factor in this determination, “[t]he 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.” (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.)

In the present matter, appellant’s mental health problems led to her inability to care for the minor and his sibling, and were the basis for dependency jurisdiction. Although appellant’s stability had improved during the reunification period, her interaction with the minor had not. She tended to ignore him at visits and often seemed preoccupied and inattentive to both children. In sum, appellant had not made substantive progress in addressing the problems underlying dependency jurisdiction, and return of the minor to her care continued to pose a substantial risk of detriment to him.

DISPOSITION

The juvenile court’s order terminating reunification services is reversed. The matter is remanded with directions to the juvenile court to order additional reunification services for appellant with the minor.

We concur: BLEASE, Acting P. J., ROBIE, J.


Summaries of

In re R. C.

California Court of Appeals, Third District, Sacramento
Apr 13, 2009
No. C059179 (Cal. Ct. App. Apr. 13, 2009)
Case details for

In re R. C.

Case Details

Full title:In re R. C., a Person Coming Under the Juvenile Court Law. SACRAMENTO…

Court:California Court of Appeals, Third District, Sacramento

Date published: Apr 13, 2009

Citations

No. C059179 (Cal. Ct. App. Apr. 13, 2009)