Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Super.Ct.No. RIJ119962
Joni Sinclair for Petitioner.
No appearance for Respondent.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Real Party in Interest.
OPINION
RICHLI J.
Petitioner M.A. (Mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court’s order terminating reunification services as to her 11-month-old daughter, V.R., and setting a Welfare and Institutions Code section 366.26 hearing. Mother contends that the juvenile court abused its discretion in terminating her services at the six-month review hearing and finding there was no substantial probability the child would be returned to her care within the next six months. We reject this contention and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Mother is a 12-year-old girl who is also a dependent child of the court. She and her siblings were detained from her parents in a separate dependency case after a 21-year-old paternal relative sexually abused Mother. As a result of the sexual abuse, Mother became pregnant around age 10. Mother gave birth to V.R. in June 2010 when she was 11 years old.
Mother reported that “she did not know she was pregnant until about four months along and only because her ‘tummy was getting big.’” Her parents made her take a pregnancy test for confirmation and became angry at her once the pregnancy was confirmed. Mother’s parents failed to report the sexual abuse to police and planned to protect the alleged father by sending him and Mother to Mexico to avoid legal consequences. Mother’s foster mother helped Mother with the remainder of the pregnancy.
The paternal relative was incarcerated as a result of the sexual abuse. DPSS was concerned that another adult male, specifically the maternal grandfather, may have also sexually abused and possibly impregnated Mother. Reportedly multiple adult males lived in Mother’s parent’s home at the time that Mother became pregnant. A paternity test later revealed that V.’s father was the incarcerated 21-year-old paternal relative.
On June 23, 2010, Riverside County Department of Public Social Services (DPSS) filed a petition on behalf of V. pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petition was later amended. V. was detained and placed with Mother in the same foster home as Mother and her siblings.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
Although Mother was bonding with V., Mother behaved like a normal 11 year old, enjoying sleeping in and watching cartoons. The foster mother taught Mother parenting skills and primarily cared for the baby. There was no question that Mother would require adult assistance in caring for the child due to her age and maturity level. Indeed, Mother had admitted to the social worker that she could not care for the baby without an adult helping her. She stated, “I need help to take care of [V.]” Mother also believed that the alleged father would care for the baby once he was released from prison.
Mother’s foster mother reported that Mother loved V. and attempted to help with her care; however, Mother was afraid to bathe the baby and could not stay awake to feed the baby during the night. The foster mother also expressed concern about Mother displaying sexualized behaviors around boys. The social worker determined that Mother was “too young and immature to appropriately care for her baby, V., at this time. She does not yet understand the responsibility associated with caring for an infant, and has admitted that she needs help from the foster mother to care for the baby.”
On August 4, 2010, V. was declared a dependent child of the court, and Mother was provided with reunification services.
Mother and V. were separated in October 2010 and lived in two separate foster homes essentially to allow Mother to address her own issues and to develop. By the six-month review hearing, the social worker recommended Mother be provided with an additional six months of services. The social worker noted that Mother, due to her young age, required further time to develop, grow, and stabilize. Mother had been participating in her services, but it was not determined whether she had benefitted from the services due to her young age. She had been visiting her child three times during the week for two hours each and for six to eight hours on Saturdays. V. recognized her and was comfortable with her. Mother had continued to work on improving the bond between herself and her child.
Mother had initially refused to participate in her therapy group, until she was given an “ultimatum that she either had to participate or her case [would] be closed.” She thereafter began participating in counseling that focused on sexual abuse. Her therapist reported that Mother had completed the counseling program, but did not have the cognitive maturity to benefit from therapy at that time. The therapist therefore recommended that Mother be provided with and participate in a socialization therapy group. In addition, Mother had completed one parenting program and was in the process of enrolling in an in-home parenting program. She had also worked with a public health nurse on bonding issues and child development education. She was improving in her school work with the help of tutoring.
However, as the social worker noted, it was clear that Mother was “too immature” to make decisions “on her own without the guidance and support of an adult.” Mother was “quiet and at times” incapable of understanding what was asked of her. She had appeared “lethargic, sad, passive aggressive... [and] very immature, ” and displayed promiscuous behavior. It had also been reported that Mother was not bonding with V. and had neglected her by leaving her to cry excessively. The social worker was concerned that Mother might harm the child due to resentment issues, and believed Mother needed time to address her own mental and emotional issues and be a 12-year-old girl. The social worker pointed out that Mother was going through “puberty and dealing with mixed emotions” and that she required constant support.
In November 2010, Mother participated in a psychological evaluation. The psychologist concluded that Mother suffered mild retardation, depression, and low cognitive ability and lacked judgment and insight. The psychologist also noted that Mother “has demonstrated thought processes that were dangerous and included fantasies or intent to harm her siblings and has demonstrated dangerous behavior with her child.” The psychologist recommended that Mother continue in placement to allow her to stabilize and asserted that “[i]t is imperative that if the baby is placed with her that she is under constant supervision with parenting her child in order to ensure the baby’s safety and security.” The psychologist explained that “[t]here is no concern about [Mother] acting overly aggressive towards the child[;] however as a result of her limited ability she does not have the awareness of the baby’s immediate needs and she needs constant direction.”
The six-month review hearing was held on March 14, 2011. All parties agreed that Mother should be provided with an additional six months of services. The court disagreed and explained: “As I stated before, this case is a very sad case. None of this is [Mother’s] fault. [¶] She gave birth at the age of 11. She’s a victim in this case. However, I cannot focus on [Mother] and what is in her best interest. I have to focus on what is in [V.’s] best interest for purposes of this hearing. And if I were to focus on [Mother], I think I would probably conclude it was not in her best interest to be a 12-year old mother and have that responsibility, but I’m not considering that. [¶] I’m focusing on [V.], and she has a right and to permanence. This is a six month case. The child is under the age of three. So the court finds by clear and convincing evidence that the mother failed to make substantive progress and/or complete her case plan. [¶] Although the court understands it does have discretion at this point, the court does find that there is no substantial probability of return if given an additional six months of services.” The court also found that return of the child to Mother’s custody would create a substantial risk of detriment and that Mother had been offered reasonable services. The court terminated reunification services and set a section 366.26 hearing.
II
DISCUSSION
Mother argues the juvenile court erred in finding that she had failed to make substantive progress in her case plan and finding no substantial probability of return. DPSS agrees. We, however, cannot.
We review dependency determinations for substantial evidence (In re Shelley J. (1998) 68 Cal.App.4th 322, 329), viewing the evidence in a light most favorable to the juvenile court’s findings (In re Misako R. (1991) 2 Cal.App.4th 538, 545). Where there is any substantial evidence to support the juvenile court’s order, contradicted or not, we must affirm the court’s decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) We find substantial evidence supports the juvenile court’s order.
When a child is removed from a parent’s custody, the juvenile court ordinarily must order child welfare services for the minor and the parent for the purpose of facilitating reunification of the family. (§ 361.5, subd. (a).) For a child under three years of age at the time of removal, as V. was, reunification services are presumptively limited to six months. (§ 361.5, subd. (a)(1)(B).) The “‘unique developmental needs of infants and toddlers’” (Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 612) justifies a greater emphasis on establishing permanency and stability earlier in the dependency process “‘in cases with a poor prognosis for family reunification....’” (Id. at p. 611.)
The child’s status and the question whether services should be extended for an additional period must be reconsidered no less frequently than every six months. (§ 366, subd. (a)(1); Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009.) Pursuant to section 366.21, subdivision (e), the court is required at the initial six-month review to return any dependent 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... would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.... The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.”
Mother argues that since she had regularly participated in her case plan and had made substantive progress, the juvenile court was “mandated” under section 366.21, subdivision (e) to return V. to her care absent a showing of detriment. Although the record indicates that Mother had regularly participated in her case plan, we disagree with Mother’s assessment that she had made substantive progress. There was no question that Mother still required adult assistance in caring for the child due to her young age and maturity level. She also required further counseling and therapy to address her own emotional and mental issues. As the social worker noted, Mother required further time to develop, grow, and stabilize. Additionally, although Mother had been participating in her services, it was not determined she had benefitted from them. In fact, all of Mother’s service providers recommended that she be provided with additional services due to her cognitive maturity level, hence demonstrating that Mother had not made substantive progress. Accordingly, we disagree with Mother that she had made substantive progress in her case plan to the point V. could be returned to her care.
Moreover, contrary to Mother’s claim, there is substantial evidence to support the juvenile court’s finding of detriment. While age does not necessarily compel a finding of detriment, Mother has shown that she is incapable of independently caring for the child or that she will place the child’s needs over her needs as she approaches puberty. As the social worker noted, it was clear that Mother was “too immature to make... decisions on her own without the guidance and support of an adult.” Mother suffered mild retardation, depression, and low cognitive ability and lacked judgment and insight. She was incapable of understanding what was asked of her, which is reasonable considering her age and low cognitive ability. Furthermore, the record indicates that Mother was not bonding with V. and had neglected her by leaving her to cry excessively. The social worker was also concerned that Mother might harm the child due to resentment issues and believed Mother needed time to address her own mental and emotional issues and be a 12-year-old girl. Substantial evidence supports the juvenile court’s finding of detriment.
Mother also argues that she should have been provided with additional services, because the services needed to be tailored to address her specific needs. The third paragraph of section 366.21, subdivision (e) requires a specialized inquiry at the six-month review for children like V. who are “under the age of three years on the date of the initial removal” and are not being returned to the custody of their parents at that time. For such dependent children, if “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... 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.” (§ 366.21, subd. (e), italics added.)
Thus, there are two distinct determinations to be made by juvenile courts applying the third paragraph of section 366.21, subdivision (e). First, the statute identifies specific factual findings -- failure to participate regularly and make substantive progress in the court-ordered treatment plan -- that, if found by clear and convincing evidence, would justify the court in scheduling a 366.26 hearing to terminate parental rights. However, this inquiry does not require the court to schedule a 366.26 hearing (“the court may schedule a hearing”). (§ 366.21, subd. (e), italics added.) Instead, it authorizes the court to set such a hearing if the required findings have been made. As previously discussed, there was substantial evidence here to support the juvenile court’s finding that Mother, by clear and convincing evidence, failed make substantive progress in a court-ordered treatment plan.
The second determination called for by the third paragraph of section 366.21, subdivision (e) protects parents and guardians against premature 366.26 hearings. Notwithstanding any findings made pursuant to the first determination, the court shall not set a 366.26 hearing if it finds either: (1) “there is a substantial probability that the child... may be returned to his or her parent... within six months”; or (2) “reasonable services have not been provided” to the parent. (§ 366.21, subd. (e).) In other words, the court must continue the case to the 12-month review if it makes either of these findings.
To the extent that Mother challenges the reasonableness of services, we find the claim waived and forfeited. Mother failed to object to the reasonableness of services below. “Many dependency cases have held that a parent’s failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court. [Citations.] As some of these courts have noted, any other rule would permit a party to trifle with the courts. The party could deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable. [Citation.]” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339; see also In re Jesse W. (2001) 93 Cal.App.4th 349, 355.) This policy applies full force to the instant case, as neither the juvenile court nor DPSS was put on notice that reunification services were inadequate or that DPSS had failed to tailor the services to meet Mother’s needs. In fact, at the six-month review hearing, Mother’s counsel admitted that services provided were reasonable but argued that Mother required additional services to accommodate her developing maturity. Mother’s counsel also acknowledged that “services to the mother ha[d] been in a state of flux and changing to suit her requirements” and that DPSS had tailored some of the services to address Mother’s needs.
In any event, as Mother’s counsel essentially admitted at the six-month review hearing, we would find that reunification services to Mother were reasonable. “[W]ith regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court’s finding that reasonable services were provided or offered. [Citations.]” (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) “We must view the evidence in the light most favorable to the department and indulge all legitimate and reasonable inferences to uphold the order. [Citation.]” (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.) “The adequacy of the reunification plan and of the department’s efforts to provide suitable services is judged according to the circumstances of the particular case. [Citations.]” (Id. at p. 1011.)
In reviewing the reasonableness of the reunification services, we “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.) A court-ordered reunification plan must be tailored to fit the circumstances of each family and designed to eliminate the conditions that led to the juvenile court’s jurisdictional finding. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.)
The record in this case, as set out above, reveals the services offered were reasonable: they were tailored to fit the circumstances and to eliminate the conditions that led to the juvenile court’s jurisdictional finding. As Mother’s counsel acknowledged, services were also evolving to meet Mother’s needs. The record belies Mother’s contention on appeal that the services provided to her were not tailored to meet her needs. Mother was provided with parenting classes, counseling that focused on sexual abuse, a psychological evaluation, tutoring to assist with her schooling, sessions with a public health nurse to assist her with bonding issues, and visitation. Mother received multiple services from the time the dependency petition was filed in June 2010 until the review hearing in March 2011, leading to the termination of her reunification services. Contrary to her suggestions, there is no evidence to show that Mother’s needs were not addressed.
Substantial evidence reveals that DPSS provided Mother with reasonable reunification services. Further, the services offered were reasonably geared to overcoming the problems that caused the dependency and were appropriate under the circumstances. (See In re Jasmon O. (1994) 8 Cal.4th 398, 424-425; In re Christina L. (1992) 3 Cal.App.4th 404, 417.)
We now turn to the issues of whether “there is a substantial probability that the child... may be returned to his or her parent... within six months....” (§ 366.21, subd. (e).) Mother does not challenge the court’s finding pertaining to “substantial probability” on appeal, and counsel for DPSS merely asserts there was insufficient evidence to support the juvenile court’s finding that there was no substantial probability the child could be returned to Mother within six months.
Section 366.21, subdivision (e), which relates solely to the conduct of the six-month review hearing, does not provide further guidance concerning how to determine at the six-month review whether there is a “substantial probability” the child “may be returned” to a parent within the following six months. (§ 366.21, subd. (e).) California Rules of Court, rule 5.710(c), restates subdivision (e) and in addition provides a three-factor test for assessing the probability of return at the six-month review: “(1) The court may set a hearing under section 366.26 within 120 days if: [¶]... [¶] (D) The child was under the age of three when initially removed... and the court finds by clear and convincing evidence that the parent has failed to participate regularly and make substantive progress in any court-ordered treatment plan. If, however, the court finds a substantial probability that the child may be returned within 6 months or within 12 months of the date the child entered foster care, whichever is sooner, or that reasonable services have not been offered or provided, the court must continue the case to the 12-month permanency hearing.. [¶] (i) In order to find a substantial probability that the child may be returned within the applicable time period, the court should consider the following factors along with any other relevant evidence: [¶] (a) Whether the parent or legal guardian has consistently and regularly contacted and visited the child; [¶] (b) Whether the parent or guardian has made significant progress in resolving the problems that led to the removal of the child; and [¶] (c) Whether the parent or guardian has demonstrated the capacity and ability to complete the objectives of the treatment plan and to provide for the child’s safety, protection, physical and emotional health, and special needs.” (Cal. Rules of Court, rule 5.710(c).)
In the present case, the record demonstrates that there was no substantial probability the child might be returned to Mother if provided with an additional six months of services. Though we are sympathetic to Mother and acknowledge Mother’s participation in services and visitation, the record fails to demonstrate that Mother would be able to provide for the child’s safety, protection, physical and emotional health if given an additional six months of services. In six months’ time, Mother will merely be about 13 years of age and will be entering the teen years, developing, growing, and dealing with her own educational, emotional, and mental well-being. The record shows that Mother suffered mild retardation, depression, and low cognitive ability and lacked judgment and insight. She constantly required direction and support and had limited awareness of a baby’s immediate needs. Moreover, Mother desired to be a child herself, which is understandable given her age, and not be responsible for 10-month-old. Under the circumstances of this case, we cannot conclude the juvenile court erred in finding there was no substantial probability of return if given an additional six months of services.
III
DISPOSITION
The petition for extraordinary writ is denied.
We concur: HOLLENHORST Acting P.J. CODRINGTON J.