Opinion
A118374
4-25-2008
In re TIMOTHY M. et al., Persons Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. MICHAEL M. et al., Defendants and Appellants.
NOT TO BE PUBLISHED
Michael M. (Father) and Tamara M. (Mother) are the parents of Timothy and Phillip. The two boys were detained after their parents were found to have provided an unsanitary home and poor supervision. The boys were subsequently found to have significant mental and emotional impairments attributable to parental neglect. The juvenile court entered an order removing the boys from the home, and we affirmed that order in a prior nonpublished decision. (In re Timothy M. (Nov. 20, 2007, A116214).)
During the following six months, the Alameda County Social Services Agency (Agency) arranged for individual counseling for the parents and conducted caregiver competence evaluations, in addition to providing the parents the deposit on a new apartment. At the six-month review hearing, the parents argued that the Agency had not provided them reasonable reunification services. The juvenile court disagreed and continued the boys in foster care. We affirm.
I. BACKGROUND
The Agency filed juvenile dependency petitions with respect to Phillip and Timothy on July 8, 2005. (Welf. & Inst. Code, § 300.) At the time, Timothy was three years old, and Phillip was two. The petitions alleged that their parents did not supervise them adequately and maintained an unsanitary home. Although the boys were initially removed from their parents home, they were returned after only a few days.
All statutory references are to the Welfare and Institutions Code.
On May 12, 2006, 10 months after the filing of the initial petition, a supplemental petition was filed alleging similar deficiencies. (§ 387.) This time, the boys were taken into foster care, and reports from their caregivers suggested that both had serious emotional and developmental deficiencies. On November 7, 2006, the juvenile court issued an order continuing the boys status as dependents of the court and finding that they should be removed from their parents home. We affirmed the order in In re Timothy M., supra, A116214. That decision provides a more complete discussion of the circumstances and proceedings up to the date of the juvenile courts November 7, 2006 order, and we hereby incorporate it by reference.
In an April 2007 report prepared for the six-month status review hearing, the Agency reported only partial compliance by Mother and Father with the established case plan. For two months, Mother failed to participate in random drug testing, although when she began to report for the tests they proved to be negative. Similarly, when given a referral for individual counseling to focus on improving her parental skills, Mother delayed for over a month before beginning to attend her scheduled sessions. When Mother was scheduled for a caregiver competency evaluation, she repeatedly failed to attend, and it was ultimately necessary for the Agency caseworker to drive Mother to the appointment to obtain her cooperation. Although Mother reported using a device to improve her sleep apnea, it was evident that she continued to suffer from its debilitating symptoms. Mother regularly fell asleep while with caseworkers and visiting her children. Her personal hygiene continued to be a matter of concern.
Similarly, Father delayed in beginning random drug testing, although he also was found repeatedly to test negative. Father was more prompt in beginning individual counseling, but he also delayed for several months his participation in the caregiver competency evaluation. The family was also suffering financial difficulty. Although they had recently moved into a new home, Mother and her daughter were seen begging in the street for money.
The parents had been visiting their children regularly, often with additional family members. Initial visits tended to be rough and loud, and the boys would become overexcited, but with guidance the parents were learning to engage in more calming activities. At Seneca Center, where Timothy was staying, a therapist had been working with the parents on improving their interactions with Timothy, but Fathers work schedule began to interfere with his participation, and both parents eventually stopped participating. Both boys caregivers believed that parental visits should continue to be supervised to provide needed support to the boys. Neither boy enjoyed speaking with his parents on the telephone.
Timothy, nearly age six, was attending preschool and making good, but fragile, progress. The professionals at Seneca Center continued to be persuaded that Timothys developmental deficits resulted from " `neglect [and] lack of engagement and safety "during his early childhood. Indeed, because of the severity of his deficits, Seneca Center was persuaded that reuniting Timothy with his family could never succeed because he needed much more intensive skilled care than they were capable of providing. Philip, age four, was staying with a foster family and attending preschool only part-time as a result of continued behavioral difficulties. Both boys were engaged in individual therapy and were described as having "emotional instability."
On the scheduled date for the review hearing, April 16, 2007, all parties requested that the court continue the status review to permit completion of the Agencys caregiver competency evaluations.
The completed evaluations were contained in a memorandum report filed by the Agency on May 3, 2007. Mother was found to be chronically depressed, and her abilities as a caregiver were found to be " `compromised in several areas. " Her depression and sleep apnea limited her ability to interact with the boys, and she refused to accept personal responsibility for the boys conduct and condition. There was a gap between her perception of her parenting and the reality—for example, although she believed she provided adequate discipline, the caregivers reported that she did not intervene when the boys behaved violently or even self-destructively. It was clear that Mothers sleep apnea presented a serious problem, in part because Mother herself often failed to recognize when she had fallen asleep.
Father was found to have minimal interaction with his children. He rarely engaged them, and, like Mother, did not intervene when they behaved badly. Also like Mother, he refused to accept responsibility for the boys conduct and condition. The competency evaluator listed a number of activities designed to improve the skills of both parents.
A contested review hearing was ultimately held on June 12, 2007. A psychiatrist from Seneca Center, Dr. Frank Stanton, testified regarding Timothys condition, largely confirming the information in the Agencys status report from Seneca. During cross-examination by Fathers counsel, Dr. Stanton mentioned the Intensive Foster Care Program, a program run by Seneca Center to train foster parents to care for children, like Timothy, who need particularly attentive care. Dr. Stanton described this as a program "which people need to apply for. And then people are accepted or not accepted on what we think their skills are." If Father and Mother were accepted into the program, Dr. Stanton testified, they would be given training similar to that given Seneca Centers employees. Dr. Stanton did not know, however, whether the program had ever accepted biological parents for training.
During Fathers testimony, he acknowledged that both boys had "special needs" and contended that he and his wife were ready to accommodate them. However, he rejected the characterization of Timothy as severely emotionally disturbed, commenting, "Well, every time we see him hes happy to see us. Hes always outgoing, doing stuff. Wants to go learn. Hes always telling us how he can spell now, and read now. And interacting with us, and being playful, and all that." Father had not seen Timothy behaving "out of control" for "a long time." Although he acknowledged that he and Mother had not been "the worlds best parents," they had "[c]leaned up our act" by getting a larger home, keeping it clean, stocking food, and providing more educational activities.
Mother testified that she had not sought any further treatment for her sleep apnea in the last six months, despite continuing to fall asleep during visits with the boys. She rejected the suggestion that her disorder affected her parenting, since "theres always someone with me" and she did not fall asleep if she was "active." Mother denied that Timothy had any "behavioral problems," other than missing his family, but she acknowledged that Phillip was sometimes violent. She believed that such conduct had developed since he was removed from her home. In Mothers view, both boys conduct had deteriorated since they were removed.
Following testimony and argument, the juvenile court rejected the parents contention that they had not been provided adequate reunification services. The court concluded that the services provided had been "less than perfect, but certainly reasonable." Further, the court added, "I am very concerned that the parents do continue to minimize or in some cases, deny that their parenting skills ha[ve] contributed to these childrens problems. And thats not a good thing. I need to see the parents acknowledging that the way they have parented these children has at least contributed . . . to the behavioral problems that both of these boys are exhibiting now. [¶] It may be critical . . . for the parents and particularly the mother, to be in her own therapy so she can begin to understand some of the dynamics and behaviors in her own life that have resulted in her parenting style. That is critical that the parents acknowledge that they do have a role, a critical role to play here, in changing these boys behavior."
In discussing its decision not to return the boys, the court noted, "[I]ts obvious that these parents care very much about these children. They are genuinely and deeply committed to their childrens welfare. And they have demonstrated their willingness to take action and to do things. [¶] I think what they need at this point is a much firmer direction in what they need to do. To understand and to get into place the right conditions, so that when these children are returned to their care, they will be able to effectively parent them. That time is not here. If we were to return the children at this time, it would be detrimental because the parents are not ready to do that."
II. DISCUSSION
Both parents contend on appeal that they were not provided reasonable reunification services by the Agency because the Agency failed to enroll them in the Intensive Foster Care Program conducted by Seneca Center or a similar program. In addition, Father contends that there was no substantial evidence that the boys return would subject them to a risk of substantial detriment.
A. Reunification Services
Preservation of families is the first priority of the child dependency laws. (In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1112.) Accordingly, when a child is removed from a parents home, the supervising agency is required to formulate a plan for reunification of the child and parent and to provide to the parent reasonable reunification services "that [a]re designed to aid the parent or legal guardian in overcoming the problems that led to the initial removal and the continued custody of the child." (Welf. & Inst. Code, § 366.21, subd. (e).) These reunification services "implement `the laws strong preference for maintaining the family relationships if at all possible. [Citation.]" (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.)
Reunification services must be tailored to the unique needs of the particular family. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 793.) The supervising agency must identify the problems leading to the loss of custody, offer services designed to remedy those problems, maintain reasonable contact with the parents during the course of the service plan, and make reasonable efforts to assist the parents in areas where compliance proves difficult. (Id. at p. 794.) All that is required, however, are reasonable services. "In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. 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 a juvenile court finding after a six-month review hearing that reasonable reunification services have been provided, we apply the substantial evidence test. (In re Misako R., supra, 2 Cal.App.4th at p. 545.) Although the parents contend that clear and convincing evidence of reasonable services must be demonstrated, that showing is required only if the court orders a hearing for termination of parental rights pursuant to section 366.26. (Compare § 366.21, subds. (e) & (g)(1)(C), (g)(2); In re Monica C. (1995) 31 Cal.App.4th 296, 306 [citing § 366.21, subd. (g).)
We conclude that the juvenile courts finding that reasonable services have been provided is supported by substantial evidence. During the period in question, the Agency (1) scheduled drug tests to ensure that the parents efforts were not compromised by drug abuse; (2) arranged for personal counseling for both parents, which the Agency had concluded was a necessary prerequisite to improving their parenting skills; (3) arranged for a caregiver competency evaluation, which could guide further efforts at reunification; and (4) provided financial support, including the deposit for the apartment and transportation assistance. In addition, Seneca Center attempted to provide individual instruction for the parents in interacting with their children.
Despite the parents claims that they would do whatever was necessary to obtain the return of their children, their cooperation with the Agencys program was less than ideal. Although Father was prompt in beginning counseling, Mother delayed initiating counseling for at least a month. Both parents dragged their heels for two to three months before appearing for the competency evaluation. In the case of Mother, the Agency was required to drive her to the appointment to obtain her cooperation. Further, the parents abandoned the family instruction provided by Seneca Center, which puts their current contention that they should have been provided additional Seneca Center classes in realistic perspective.
The Agencys effort was by no means perfect, but perfection was not required. The drug testing appears to have been questionable, since there was no suggestion in the record—other than their neglect for their boys—that the parents were abusing drugs. However, the personal counseling provided by the Agency appears to be vital to reuniting these parents with their children. As the juvenile court recognized, both parents are unrealistic about the nature of their care for their children. Mothers parenting appears to be seriously impaired by her sleep apnea, perhaps exacerbated by depression. Yet she has not gotten treatment for the physical condition for months. Instead, she denies falling asleep and blames the boys behavior problems on their new placements. Although Father has a more realistic view of the problems confronting his children, he appears not to recognize his own lack of attention to them. Personal counseling that assists the parents in recognizing the nature of their conduct and its role in their boys conditions is a precondition to real change in their parenting. There is substantial evidence to support the finding that, at the stage of the six-month review hearing, the services provided by the Agency have been reasonable.
It bears emphasis that reunification is a process that takes place over a time period as long as 18 months. There is little doubt that the parents would benefit from receiving training in caring for children with special needs before their boys are returned, such as that provided by Seneca Centers training program. However, because it appears that the parents have obstacles to overcome before they can obtain the maximum benefit from such a program, we do not fault the Agency for failing to provide such services at this point in the reunification process. Regarding the Intensive Foster Care Program in particular, it is Seneca Center that determines admission to the program, not the Agency. Assuming Seneca Center would be willing to consider accepting the parents into a program intended for foster parents, a willingness that has not been demonstrated, the parents presumably will be required to convince Seneca Center that they can be successful parents of children with special needs. The services the Agency has arranged hopefully will assist them in making this case.
The parents rely largely on In re Alvin R. (2003) 108 Cal.App.4th 962 (Alvin R.), in which the court detained a child who had been physically abused by his father and placed him with his grandmother. (Id. at p. 966.) The agency recognized that in order to reunify the father and child, the two would need joint counseling, since the child strongly resisted even visiting with, let alone living with, his father. Because of the childs resistance, however, the agency also recognized that the child would need individual counseling before joint counseling could succeed. (Id. at pp. 967-968.) Despite this recognition, the agency was slow to obtain an individual counselor for the child. (Id. at pp. 968-969.) By the time of the six-month review hearing, the child still resisted visiting with his father and had yet to complete individual counseling, let alone begin the necessary joint counseling. (Id. at p. 969.) The court found that the agency had not made a good faith effort to obtain counseling for the child, which was a necessary prerequisite to visitation, which in turn was a prerequisite to unification. (Id. at pp. 972-973.)
As the preceding discussion makes clear, the circumstances of Alvin R. are quite different from those presented here. Unlike Mother and Father, the father in Alvin R. cooperated fully with the agency. Blame for the delay in providing services in Alvin R. rested entirely with the agency, which made inadequate efforts to obtain counseling that was a recognized prerequisite to reunification. In this case, the means to reunification is not as clear-cut, and the Agency has arranged for personal counseling as a prerequisite for further attempts at reunification. Unfortunately, the parents have delayed in taking advantage of the services offered by the Agency, delaying the commencement of personal counseling and the competency evaluation. In light of the parents conduct, the Agencys efforts have been reasonable under the circumstances.
Other cases cited by the parents are distinguishable. Of most importance, all of them other than Alvin R. featured appellate review after the completion of services. As noted above, because reunification is a process, the adequacy of the entire reunification program cannot be judged at a six-month review hearing. (See In re Daniel G. (1994) 25 Cal.App.4th 1205, 1207; In re Dino E. (1992) 6 Cal.App.4th 1768, 1777; In re Victoria M. (1989) 207 Cal.App.3d 1317, 1321.)
B. Detriment
Under section 366.21, subdivision (e), which governs six-month review hearings in dependency proceedings, "the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." Father challenges the juvenile courts conclusion that a substantial risk of detriment existed in these circumstances. We apply a substantial evidence review to the juvenile courts finding of a substantial risk of detriment. (Alvin R., supra, 108 Cal.App.4th at p. 974.)
In our last decision, In re Timothy M., supra, A116214, addressing a similar argument, we concluded: "The evidence was clear that, at the time the boys were removed, their parents home had become extremely unsanitary. The police report documents an overpowering stench in the motel room from urine and rotting food, yet the windows could not be fully opened. Unattended food and garbage had persisted long enough to result in a massive infestation of insects, and mold covered the bathroom. Phillip was found to have hair lice, and the boys clothes were sufficiently filthy that they were thrown out by their caretakers. Such conditions breed disease and ill health.
"More seriously, the evidence suggested that the parents neglect of the boys care and supervision put them at risk. When the Agency first intervened in 2005, it was because the boys were roaming freely next to a busy street. Workers at the motel subsequently told the Agency that they frequently observed the boys outside without supervision, certainly presenting a danger to the health and safety of both of them. The parents indifference to the boys also was suggested by the testimony of a relative that they permitted the boys to fight freely until one was hurt. Further, the boys emotional and social development was behind schedule in a manner that suggests neglect. When the police first intervened, neither boy could yet talk, and neither was toilet trained. When the boys were examined later by psychological experts, it was found that they had been neglected to a degree sufficient to have affected their emotional health.
"At the Seneca Center, Timothy was diagnosed with a serious emotional condition directly traceable to parental neglect. While there was no reason to believe Phillips ADHD was the result of parental neglect, the examining psychologist believed that some of his behavioral problems stemmed from `environmental deprivation. In short, the evidence left the strong impression that Mother and Father were not merely neglecting the boys home environment, but were also neglecting the boys themselves to a degree that presented a substantial danger to their physical and emotional health. [Fn. omitted.] It fully supports the juvenile courts finding of `a longstanding and very deeply embedded style of parenting and parenting dynamics which really . . . neglect the minors needs for guidance and structure. . . ."
Since the time of that decision, the parents have apparently corrected the sanitation problems, but there is no indication they have changed the parenting style that created a danger for their boys. Mothers sleep apnea continues to cause her to fall asleep repeatedly during the day, but she has not attempted to get additional treatment. On the contrary, she denies that she has a problem and blames the boys behavior on their placements. As a result, there is no reason to believe that, if the boys were returned, her parenting would change. Father appears to have a better grasp of his sons problems, but there is only modest indication that he recognizes how to change his parenting to avoid neglect in the future.
Fathers brief addresses only his own progress in the reunification program. As long as Father depends upon Mother to provide parental supervision for most of the boys waking hours, however, the risk of detriment must be judged by the nature of the household created by both parents.
While it is true, as Father argues, that past acts on their own do not establish a substantial risk of harm (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379), the juvenile courts decision was not based solely on the parents past acts. The risk of detriment to these boys is created by the parents attitudes and practices, which were evidenced by their past conduct. The risk will remain until those attitudes and practices have changed. The juvenile court heard substantial testimony about developments since the time of its November 2006 order. This testimony caused the court to conclude that, while the parents may have cleaned up their home, there is little indication that they have changed their approach to parenting. Accordingly, substantial evidence supports the juvenile courts conclusion that the boys continued to be at a substantial risk of harm from return to their parents.
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur:
Marchiano, P.J.
Swager, J.