Opinion
A132287
10-04-2011
Julie D., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. JD10-3230)
I. INTRODUCTION
Petitioner Julie D., the mother of 15-month-old J.D.-M., seeks extraordinary writ review of a juvenile court order entered at the conclusion of a contested six-month review hearing on family reunification. (Cal. Rules of Court, rules 8.400(2), 8.452.) The court terminated mother's reunification services and set the matter for a hearing on October 26, 2011, pursuant to Welfare and Institutions Code section 366.26 to determine the child's permanent placement. Mother contends that the trial court erred in finding that the San Francisco County Human Services Agency (agency) provided her with reasonable reunification services. She also claims the trial court abused its discretion when it refused to order additional services for her. We disagree, and deny the requested relief.
The child's alleged father is not a party to this proceeding.
All further unspecified statutory references are to the Welfare and Institutions Code. All references to rules are to the California Rules of Court.
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II. FACTUAL AND PROCEDURAL BACKGROUND
On July 2, 2010, the agency filed a section 300 original petition alleging that then two-month-old J.D.-M. was a child described by section 300, subdivision (b). The agency alleged that mother: had a substance abuse problem; had a medical condition that affected her ability to care for and keep the baby safe; dropped the baby on at least two occasions due to having a seizure; failed to follow medical advice to assure the baby's safety; failed to assure that the baby received enough food during the night; and failed to meet consistently with the public health nurse to ensure that the baby's medical needs were met. The agency also alleged that there were five prior referrals regarding J.D.-M. The agency placed J.D.-M. in foster care.
Agency social worker Maryela Padilla stated in the detention report that mother has had a seizure disorder since childhood that causes unexpected seizures resulting in her arms jerking. Mother had seizures while holding the baby and, as a result, had dropped the baby twice. Mother was under the care of a medical team at San Francisco General Hospital (SFGH) that was trying to stabilize her condition through medication; the team told the social worker that mother needed 24-hour supervision with J.D.-M. in her care. Mother was also seen weekly at a clinic to ensure that the baby was fed sufficiently because the baby was losing weight. At the detention hearing, the court detained J.D.-M.
On August 11, 2010, the agency filed a disposition report. Padilla described mother's troubled past including being raped at the age of 14, previous involvement with a gang in the Mission District of San Francisco, a history of drug and alcohol abuse, and a prior boyfriend who beat her. Mother's social support was described as minimal: she had an "on and off relationship" with her father. Mother was currently living with friends, one of whom she was romantically involved with, but did not recall their last names. Mother's monthly income was from SSI and SSDI. She attempted to get housing through Epiphany Center, but she missed the appointment and then called and cursed at the staff over the phone. SFGH staff expressed concern that the baby was underweight and mother's description of how much the baby was eating did not match up to the baby's actual weight. The other concern was that, although mother had been educated on how to hold the baby due to her medical condition, such as sitting versus standing, apparently mother failed to follow those directions because she later dropped the baby while standing and holding her. Mother was inconsistent in attending medical appointments. She admitted that she fell off a bus the previous week, but was not sure how it happened and not sure if she had a seizure.
The social worker attached a reunification plan to the disposition report. The plan included therapy to address domestic violence and trauma from being sexually abused; obtaining suitable housing; obtaining appropriate medical care for herself and following treatment recommendations; completing a parenting class, including customizing skills to address mother's medical condition and life situation; completing a drug and alcohol assessment, including counseling and testing if appropriate; undergoing a psychological evaluation and following any recommended treatment; and attending regular visits with J.D.-M.
At the jurisdictional/dispositional hearing on October 13, 2010, the court amended the petition and found the allegations true. The court declared J.D.-M. to be a dependent of the court, removed her from mother, and placed her in foster care.
On March 29, 2011, the agency filed a six-month review report. The social worker reported that mother said she was staying with friends. Although mother denied it, the social worker suspected that she was living with her ex-boyfriend who beat her.
The social worker stated that she had become aware of mother's unstable mental health as the case progressed. Mother's severe anger management issue was now of central concern and constituted a safety risk to herself, the baby, and others. Mother began an in-patient program at Ashbury House in early February 2011, but was discharged on February 25 because of her angry outbursts and severe impulse control problems. Staff at Ashbury reported that mother was threatening others in front of J.D.-M., throwing things, and screaming. She pushed another client, kicked a window, and punched and kicked walls around the baby and other mothers with their children. Police were called to the facility several times because mother was "out of control." Previously, mother had entered Jelani House in August 2010 due to an admitted alcohol problem, but left after a few weeks.
The social worker reported that the baby was found to be eligible for regional center services including physical therapy at the foster home for gross motor delay. An early interventionist (EI) was assigned to meet with mother and the baby once a week during their visits. The baby appeared to have a healthy relationship with the foster parents and their home appeared to be appropriate for her.
The social worker stated that, at the time J.D.-M. was removed in June 2010, mother had three-hour visits twice a week with the baby at La Raza Visitation Center. Enrique Davila reported in November 2010 that the visits had been going well. He witnessed mother having seizures on October 27 (mother had two seizures; once while sitting on the couch holding the baby; the baby slipped and landed on the floor but was not hurt so the visit continued) and November 2 (mother fell while walking to the visiting room). The visits were transferred to Ashbury House when mother moved there in February 2011. When mother was discharged from Ashbury, the visits were transferred back to La Raza, but were scheduled only once a week because La Raza had only the one opening. The social worker indicated that she was continuing to follow up with La Raza for more availability.
Mother had been referred to Alison Acosta for therapy. She missed many appointments but attended her first session in October 2010. In January 2011, the ED service provider team transferred mother's therapy to SFGH.
The social worker reported that, despite "intervention after intervention," mother had made "little progress" during the six months of services. She felt that mother had tried to participate in services, but her problems were "just too intense and difficult," and "impossible to . . . resolve . . . within the next few months." "This situation is very unfortunate, but [t]his mother is so damage[d] internally that she just does not have the capacity to care for her daughter." The social worker recommended terminating services and setting a section 366.26 hearing for J.D.-M.
The social worker attached to the status report mother's psychological evaluation, conducted by Dr. Amy Watt. Watt diagnosed mother with post-traumatic stress disorder, substance abuse (alcohol and drugs), and personality disorder NOS. Watt described mother's history, which included suffering from a seizure disorder since age 16. The seizures come on suddenly with no warning. In school, she was in special education classes due to difficulty with reading and writing. Since the fifth grade, she had had trouble getting along with teachers and her peers. She started skipping school and getting into fights. At the age of 14, she was raped by some friends who set her up for the attack. She continued to suffer from the effects of this experience. She got pregnant in tenth grade and was forced by her parents to have an abortion. She then dropped out of school and spent days wandering the streets. When she was young, her father used to hit her mother. Her mother died suddenly in 2006.
Neuropsychological testing indicated a moderate level of cognitive impairment, serious impairment in motor coordination, concentration, and the ability to shift her attention from one task to another. Her level of intellectual functioning was extremely low. Her limited internal processing ability put her at risk for impulse control and anger issues, and she was likely to have poor stress tolerance. Watt determined that mother was "in need of a structured environment with clear limits and expectations in order to function adequately."
Personality assessment indicated a poor ability to tolerate ambiguous situations and to handle stressful situations. Her moods were unstable, and her thinking was disorganized and confused. She harbored a lot of negative emotions which manifested in depression, anxiety, and poor interpersonal relationships. Watt concluded that she needed psychological intervention and medication to help reduce symptoms and build adequate coping skills.
With respect to whether mother could provide adequate parenting and keep her daughter safe, Watt found it "highly doubtful." One concern was her uncontrollable jerky movements as a result of her seizure disorder. Watt advised that, until her symptoms were under control, mother should not pick up the baby. Another concern was mother's "highly unstable moods and her anger issues." Her inability to control her temper and her trouble understanding what is happening around her likely made it hard for mother to cooperate with service providers and likely resulted in a negative attitude towards people and the world. Watt concluded that mother's "prognosis to benefit from treatment and reunification services is considered to be poor."
Padilla also included with the status report a letter from Dr. Maria St. John of the University of California at San Francisco's Infant-Parent Program at SFGH. She had met with mother and J.D.-M. weekly since the baby's birth to provide infant-parent psychotherapy. St. John opined that the systems of care had failed mother in critical ways, such as discharging mother and baby to a shelter after the baby's birth without sufficient support to ensure mother could parent safely in light of her seizure disorder, but concluded that six more months of services would not stabilize mother's situation such that she could safely parent a baby. She based her conclusion on states of rage that come upon mother suddenly and unpredictably, and mother's inability to consistently implement coping strategies; mother's seizure disorder, which required a level of constant modifications to her life that mother was unable to make; and mother's longstanding history of intimate involvement with people who treat her badly, and her inability to resist being drawn into harmful situations.
The court held a contested hearing on June 1, 2011, and admitted into evidence the agency's six-month report, Watt's evaluation, and St. John's letter, among other things. Padilla testified on behalf of the agency. Mother argued that she should be provided additional reunification services because the agency had not provided reasonable services in March, April, and May 2011, when she received only one weekly three-hour visit with J.D.-M. Mother also argued that she had regularly and consistently participated in services.
On June 3, 2011, the court issued written findings terminating further reunification services and setting a section 366.26 hearing. "The evidence presented compels the conclusion that mother is now and will be unable to [re]unify with the child within the next three months (the date of the twelve month review) or six months from the date of the six month review. It is not for a lack of trying. Rather, mother's inability is attributable to her past years of physical and emotional abuse, substance abuse and her medical diagnosis of Juvenile Myoclonic Epilepsy. The Agency provided services to address mother's issues and mother did her best to take advantage of the resources. However, mother's issues cannot be resolved to a sufficient level to consider reunification within the time constraints of the Welfare & Institutions Code." The court found, by clear and convincing evidence, that there was not a substantial probability that J.D.-M. could be returned to mother in the next six months and that reasonable services were provided to mother. The court also found that mother's progress toward alleviating the causes necessitating placement had been minimal.
Mother's counsel filed a timely notice of intent to file a writ petition challenging the court's order terminating services and setting a section 366.26 hearing.
III. DISCUSSION
A. Whether Reunification Services Were Reasonable.
Mother contends the juvenile court erred in terminating her reunification services because there is no substantial evidence to support (1) the finding that the agency provided her with reasonable services, and (2) the finding that mother made only minimal progress on her case plan. Mother argues that reunification services should be extended to the 12-month review hearing. (Pet. 8, 10, 11)
Section 361.5 governs the provision of family reunification services. For a child who was under the age of three on the date of removal from the parent's physical custody, as here, "court-ordered services shall be provided for a period of six months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months from the date the child entered foster care . . . unless the child is returned to the home of the parent or guardian." (§ 361.5, subd. (a)(1)(B).) Courts have construed this provision as generally limiting reunification services to six months as to a child under the age of three. (See, e.g., Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009, fn. 4 ["When the child is under the age of three, the maximum period of reunification services is generally six months."]; In re Derrick S. (2007) 156 Cal.App.4th 436, 444-445 ["If the child is under three, the default position is six months of reunification services."].)
The status of every dependent child in foster care shall be reviewed by the juvenile court at least every six months. (§ 366, subd. (a)(1).) Section 366.21, subdivision (e), governs the first six-month review hearing and provides that the court shall order the return of the child to his or her parent unless, by a preponderance of the evidence, the court finds that such return would create a substantial risk of detriment to the child. Subdivision (e) of section 366.21 also provides: "If the child was under three years of age on the date of the initial removal . . ., and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to section 366.26 within 120 days. If however, the court finds there is a substantial probability that the child, who was under three years of age on the date of initial removal . . ., may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing. . . . [¶] If the child is not returned to his or her parent or legal guardian, the court shall determine whether reasonable services that were 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 have been provided or offered to the parent or legal guardian. The court shall order that those services be initiated, continued, or terminated." (§ 366.21, subd. (e).) B. Whether Reunification Services Were Reasonable.
A juvenile court's finding that a parent was offered adequate reunification services will be upheld on appeal if supported by substantial evidence. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) "The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary conclusion. [citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]" (In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.)
Only reasonable, not ideal, services are required. (In re Jasmon O. (1994) 8 Cal.4th 398, 425.) Whether services were adequate depends on the unique circumstances of each case. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011; Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) "[I]n reviewing the reasonableness of the reunification services provided by the Department, we must also recognize that in most cases more services might have been provided, and the services which are provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) "Visitation is an essential component of any reunification plan." (In re Alvin R. (2003) 108 Cal.App.4th 962, 972.)
Mother's only argument that services were not reasonable is her claim that during the months of March, April, and May 2011, the agency failed to provide reasonable visitation. Mother's twice weekly visits were reduced to one per week when visitation was transferred back to La Raza following mother's discharge from Ashbury House. The reduction was a matter of capacity; at the time of the transfer, La Raza had only one opening per week. The social worker stated that she would "continue to follow up with La Raza for more availability." By the first of June 2011, mother's second visit per week had been reinstated.
Mother relies on In re Elizabeth R. (1995) 35 Cal.App.4th 1774 (Elizabeth R.) in arguing that the reduction in visitation hours rendered her services unreasonable. In Elizabeth R., the mother was hospitalized to treat her mental illness during most of the reunification period. (Id., at p. 1787.) At the 18-month review, the juvenile court terminated services and ordered a permanency planning hearing, believing it was required to either reunify the family or terminate services at that point in the proceedings. The court of appeal reversed, holding that the juvenile court erred in believing it had no discretion to extend the reunification period despite mother's substantial compliance with her case plan. The appellate court faulted the social services agency for failing to accommodate mother by providing her with visitation during her hospitalization notwithstanding her attendance at every visit she was permitted and her persistent efforts to increase visitation with her three children. (Id., at pp. 1790-1792, 1799.)
Petitioner's reliance on Elizabeth R. is misplaced. Here, we do not have a situation in which a reunification plan failed to accommodate an extraordinary situation or external factor, such as mental illness or incarceration, thereby preventing a parent from maintaining visitation and causing "involuntary estrangement." (35 Cal.App.4th at p. 1792.) Rather, for three months, petitioner had one weekly visit instead of two. This is a far cry from the months of no contact endured by the mother in Elizabeth R. Also unlike the situation in Elizabeth R., the decrease in visitation here was not cited by the agency as a factor weighing in favor of terminating services. The temporary reduction in visitation from six hours per week to three did not render this service unreasonable. Moreover, mother was at all times represented by counsel and could have petitioned the court for additional hours if she believed her visitation time was inadequate.
The agency provided numerous services, including visitation, designed to help mother live safely and safely parent her baby. Services included infant-parent psychotherapy with Maria St. John of the Infant Parent Program (IPP) which included safety training so she would not drop the baby when a seizure occurred. Mother received housing services through Epiphany Center, Jelani House, and Ashbury House . Individual therapy was prescribed to address issues of domestic violence and sexual abuse, and she was referred to Alison Acosta. For mother's medical issues, including her seizure disorder, she received care at SFGH. When it came to light that she was having trouble tracking and reporting her symptoms and seizures, taking her medications, and showing up for appointments, she was referred to the ED program at SFGH for case management and to centralize her care. Her individual therapy was transferred to ED, which also took on her drug testing to address her history of drug and alcohol abuse. Weekly supervised visitation took place at La Raza with the exception of mother's time at Ashbury. Mother was referred to Amy Watts for a psychological evaluation to address mother's "ability to adequately protect and parent the child" and any ''[r]ecommendations for therapy and/or medication." After several appointment cancellations and no-shows, mother completed the psychological evaluation. The record amply supports the juvenile court's finding that the agency provided reasonable services, including reasonable visitation, to mother. C. Whether Mother Failed to Make Progress on Her Case Plan.
Mother also argues that the juvenile court erred in refusing to order additional reunification services based on a finding that she made only "minimal" progress on her case plan. She contends the court's determination that her progress was minimal is not supported by substantial evidence. Rather, according to mother, the evidence shows that she regularly and consistently engaged in court-ordered services and made progress in addressing the issues that brought the matter into court, i.e., her inability to keep her daughter safe due to her seizure disorder, substance abuse, and mental health problems.
Once again, we review the juvenile court's findings and orders for substantial evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212.) We draw all reasonable inferences in favor of the court's rulings and affirm them if supported by substantial evidence even if other evidence in the record supports a contrary conclusion. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) It is mother's burden to show that the finding or order is not supported by substantial evidence. (Ibid.)
Here, the court found that returning J.D.-M. to mother would create a substantial risk of detriment to J.D.-M.; the conditions still existed which justified the initial assumption of jurisdiction; by clear and convincing evidence, there was not a substantial probability that the child could be returned to mother in the next six months; the child's placement was necessary and appropriate; the agency complied with the case plan; reasonable services were provided to mother; and mother's progress "toward alleviating the causes necessitating placement ha[d] been minimal." Based on these findings, the court terminated reunification services, scheduled a section 366.26 hearing, and advised mother of her right to file a writ petition.
Mother describes her efforts to avail herself of the services provided, including her participation in therapy and drug testing, attending medical appointments and taking her medications, visiting her daughter and attending her daughter's medical appointments. From this evidence, she argues that she "did indeed regularly and consistently engage in court-ordered services." She also cites her progress in controlling her seizures, clean drug tests, consistent attendance at therapy and IPP sessions, and the report from staff at La Raza that visits have been regular and positive. She notes that the only negative information regarding visits was from Ashbury House. She contends that this is evidence that she made substantial progress on her case plan.
We agree with mother that there is evidence supporting her position that she engaged in services and made progress on her case plan. However, the issue on appeal is whether substantial evidence supports the finding the court made, not whether there is evidence in support of a contrary finding.
Padilla noted in her report that the agency's initial concern in this case was stabilizing mother's medical care and educating her on caring for her baby and keeping the baby safe. It became apparent that mother had other major problems—unstable mental health, anger issues, and substance abuse. Padilla chronicled mother's history of exhausting her housing options: beginning at a Compass shelter, she was asked to leave when her partner (the baby's father) allegedly stole an electronic device belonging to another resident. Mother then went to Epiphany House and received intensive case management services, but she did not follow through or commit herself, and her case was closed. Mother then went to Jelani House, but that lasted only a few weeks before mother left. She then entered a shelter for victims of domestic violence before being accepted into Ashbury House. She lasted only a few weeks at Ashbury before being discharged "because of her aggressive, combative, threatening behavior which put herself, others, and her baby in danger." Padilla stated that "mother has a huge heart and has really tried to participate and get along with her providers, but her problems are just too intense and difficult." She noted that both Watt, who performed the psychological evaluation, and St. John, who provided infant-parent psychotherapy, both recommended terminating services.
The psychological evaluation by Dr. Watt indicated, with respect to mother's neuropsychological screening, a moderate level of cognitive impairment, seriously impaired motor coordination, concentration, and ability to shift her attention from one task to another. Testing showed "an extremely low level of intellectual functioning." Watt stated, "With limited internal processing ability, [mother] is at risk for impulse control issues and anger issues. She is also likely to have poor stress tolerance. [Mother] is in need of a structured environment with clear limits and expectations, in order to function adequately." The personality assessment indicated poor ability to tolerate ambiguous situations and to handle stressful situations. Mother had unstable moods and difficulty cooperating with the testing process; her responses on the test indicated much confusion and disorganized thinking. Watt expressed concern about mother's judgment and impulse control. She concluded that mother had poor ability to adequately parent her daughter and that, overall, her prognosis to benefit from treatment and reunification services was poor.
Maria St. John stated in her letter that she had worked with mother and J.D.-M. consistently on a weekly basis since the day the baby was born. St. John concluded that, despite tremendous effort, mother had "not been able to achieve the level of safety, security and predictability that would make it realistic for her to assume the care of an infant." She explained her reasons, citing (1) mother's "states of rage that come upon her suddenly and unpredictably," and which, despite having worked on strategies to alter the pattern, mother is "incapable" in the moment "of stopping herself from acting out in anger;" (2) mother's seizure disorder, which, despite understanding "in theory" that she needs to make constant accommodations and adaptations to ensure a baby's safety, she finds "difficult to maintain in practice as rigorously as would be necessary;" and (3) a long history of intimate involvement with people who treat her badly. St. John provided examples of this pattern including, following the baby's removal, becoming involved with a romantic partner who held her by the hair and punched her in the face while calling her "stupid and worthless." He then urinated on some of her clothing. Mother went to a domestic violence shelter and successfully completed the program there, but she then reunited with the man. St. John felt it would be difficult for mother to avoid such relationships consistently enough to prevent a child in her care from being exposed to violence. St. John also cited the troubled relationship mother has with her own father. In sum, mother "has repeatedly put herself in harm's way in the course of the time I have known her. Although she has struggled mightily to achieve stability and safety so that she could reunify with her daughter, this has not been possible." St. John also concluded that mother would not be able to stabilize her situation with another six months of services.
In this case, the juvenile court acknowledged that mother "did her best to take advantage of the resources" provided, but concluded that her "issues cannot be resolved to a sufficient level to consider reunification within the time constraints of the Welfare & Institutions Code." The evidence of mother's inability to follow safety rules related to her seizure disorder, as described by St. John and staff at Ashbury House; her exhaustion in rapid succession of numerous housing options, as described by Padilla; her inability to manage her anger, as described by St. John and staff at Ashbury House; a recent history of domestic violence and difficulty avoiding such relationships, as described by St. John; and the results of the psychological evaluation that document her troubled history and her mental and emotional problems, all support the juvenile court's finding that mother did not make substantive progress on her services plan, or that her progress was "minimal." We agree and conclude substantial evidence supports the finding.
IV. DISPOSITION
The petition for extraordinary writ relief is denied on the merits. (§ 366.26, subd. (l)(1)(C); Cal. Rules of Court, rule 8.452(h)(1); see Kowis v. Howard (1992) 3 Cal.4th 888, 893-895.) Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(3).)
Haerle, Acting P.J. We concur: Lambden, J. Richman, J.