Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. Nos. 75142, 75143, 75144, 75145
Swager, J.
Margarita V. (Mother) and Francisco H. (Father) challenge an order of the San Mateo County Superior Court, Juvenile Division, which set a hearing under Welfare and Institutions Code section 366.26 to select permanent plans for Francisco H., Jr., (born October 1997), Maria H. (born January 1999), Rogelio H. (born July 2000), and Karla H. (born June 2005). We deny their petitions on the merits.
All further statutory references are to the Welfare and Institutions Code.
Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. (§ 366.26, subd. (l)(4)(B).)
Background
On January 21, 2006, Redwood City police officers went to the one-bedroom apartment of Mother and Father, to investigate a referral from the San Mateo County Human Services Agency (Agency). They found the apartment to be inhabited by Mother, Father, Mother’s 22-year-old son, her five minor children, and two unrelated adult males. The officers found the apartment to be “unsanitary and unlivable,” with an “overwhelming” odor of garbage and feces, both of which littered the floor. There was also clutter piled along the living room wall and in the hallway, stacks of dirty dishes in the kitchen, rotten and moldy food in the refrigerator, mold growing on the walls and window in the bedroom, and a broken window in the living room. After arresting Mother on a charge of shoplifting, the officers took the five minors into protective custody. Maria and Rogelio, then seven and five years of age, were found to suffer from encopresis and enuresis and had old fecal matter in their pants. Karla, then an infant of seven months, was found to have a heavily soiled diaper, a rash on her forehead, and dirt in her ears and on her neck.
Francisco, Jr., Maria, Rogelio, and Karla, four of the five minors, are full siblings. The oldest of the five minors, Juan S., is a half-sibling whose dependency proceeding is not at issue in the petitions before us.
The Agency released the five minors into Mother’s custody a few days after her arrest, at which time she informed the assigned case worker that she was pregnant. On January 26 the Agency filed petitions to establish the five minors as dependents of the juvenile court pursuant to section 300, subdivision (b). The petitions alleged the facts summarized above.
In the Agency report prepared for the jurisdictional/dispositional hearing, the assigned case worker noted that the children were “in charge,” as they did not mind Mother and Father. Mother failed to take responsibility for ensuring that Francisco, Jr., and Maria attended school regularly and often failed to pick them up from school on time. She refused to take responsibility for the condition of the apartment, as it was on January 21, 2006, and since then she had followed through with a medical appointment the Agency had arranged for Karla only after the assigned case worker threatened to remove the children again. The case worker concluded that parenting education alone would not be sufficient to maintain the children safely at home, and recommended Intensive In Home Services to assist the parents in developing and implementing home rules and responsibilities, and a Family Care Worker to provide one-on-one role modeling and parenting instruction. On March 21, 2006, the juvenile court established jurisdiction over the minors under section 300, subdivision (b), and adopted the Agency’s recommended family maintenance plan.
On June 6, 2006, the Agency filed supplemental petitions under section 387, indicating it had detained the children on June 2. The petitions sought to place the minors in a more restrictive placement—foster care, alleging that Mother and Father had failed to utilize the services provided to them. Consequently the home continued to be overcrowded and littered with garbage, smelled of urine and mold, and was infested with cockroaches. The parents had failed to provide appropriate medical care for Maria, who continued to suffer from encopresis and enuresis and had a urinary tract infection, for Rogelio, who also continued to suffer encopresis and enuresis, and for Karla, who upon being hospitalized in late February had been found to be clinically dehydrated because the parents had delayed in seeking medical attention for her diarrhea, vomiting, and fever. Mother had on several occasions left the children in the care of 13-year-old Juan S., she had failed to protect Rogelio from physical abuse inflicted by Salvador G., an unrelated adult, and had allowed Francisco, Jr., and Maria to witness the incident of the abuse. Father had allowed Francisco, Jr., Maria, and Rogelio to witness several instances in which Mother and Salvador G. engaged in sexual activities or drinking. Finally, Mother and Father were charged with being unable to manage Rogelio’s behaviors, which included kicking, fighting, and using profanity.
Later in June 2006 Mother gave birth to her seventh child, Salvador G., Jr. The Agency successfully petitioned to establish a dependency for Salvador, Jr. He is the subject of family maintenance services and his dependency, like that of Juan S., is not at issue here.
The juvenile court held the continued jurisdictional/dispositional hearing on these petitions some five months later, on November 15. At that time it sustained the allegations summarized above. The court further issued a formal order of out-of-home placement and adopted the Agency’s proposed reunification plan. The adopted case plan called for both Mother and Father to engage in individual therapy, in family therapy if recommended by a therapist, and to complete parenting courses offered by the Agency.
At the conclusion of the six-month status review hearing, on May 15, 2007, the juvenile court continued the minors’ out-of-home placement, and directed that reunification services for the parents continue to the 12-month permanency hearing. After completing the 12-month hearing on July 31, the court issued similar orders and continued reunification services to the 18-month permanency review hearing.
In early November 2007, the Agency’s assigned case worker completed his initial report for the 18-month review hearing. He reported that both parents had engaged actively in visitation and services. Yet he concluded they not been able to benefit from services sufficiently to rectify the problems that had led to the minors’ removal, and recommended that the juvenile court terminate reunification services as to Francisco, Jr., Maria, Rogelio, and Karla, and set their cases for a hearing under section 366.26 to select a permanent plan of adoption. The court adopted the recommendations on December 17. These petitions followed. (§ 366.26, subd. (l).)
On January 29, 2008, this court directed that Mother’s and Father’s petitions be consolidated for decision. The petitions are virtually identical.
Discussion
A. Substantial Risk of Detriment
At an 18-month permanency review hearing, the juvenile court must “order the return of the child to the physical custody of his or her parent . . . unless [it] finds, by a preponderance of the evidence, that [such] return . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a).) The juvenile court made this finding before continuing the minors in out-of-home care and setting the section 366.26 hearing.
Mother and Father contend the court erred in making this finding. They argue essentially that they visited consistently with the minors and performed the necessary requirements for reunification, and the Agency failed to meet its burden to prove there was a risk of substantial detriment should the children return to their care.
In reviewing the challenged finding we do not reweigh the evidence. We examine the record to determine whether it is supported by substantial evidence. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) In doing so we view the evidence in the light most favorable to the juvenile court’s ruling, resolving all conflicts and indulging all reasonable inferences in its favor. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.)
The updated case plan adopted by the juvenile court at the 12-month permanency hearing required both Mother and Father to continue their individual therapy and family therapy if recommended. Both parents were noted to be largely in compliance with their service objectives. Mother however, still “need[ed] to improve adequate parenting” and still “need[ed] to improve knowledge on how to correct children’s behavior.” (Italics added.) Father, too, still “need[ed] to [do] further work on using proper parenting.” (Italics added.)
In the Agency’s initial report admitted at the 18-month permanency review hearing, the assigned case worker reported that the parents visited the minors but continued to be “unable to set limits with the children and between the children,” or to “provide structure.” Because they were unable “to provide proper direction and supervision,” they had never achieved unsupervised visitation. The worker stated he had observed that, as a result of their inability to provide appropriate structure, the two boys engaged in aggressive and disruptive behavior during the parents’ weekly one-hour supervised visits. When conflicts between siblings arose, they were “unable to intervene.” At the hearing, the case worker elaborated, stating that “stuff . . . would happen in front of [the parents and] they wouldn’t react . . . or properly address.” He described instances in which the two boys had thrown objects over Father’s head, and had “pull[ed] themselves around by their legs” in front of him, yet had drawn no reaction from Father.
The case worker, in his initial report, additionally stated the family therapist had concluded the parents “did not have the cognitive ability to utilize and benefit from therapy.” In their therapeutic interactions with the minors, they had “shown minimal progress in their ability to provide consistent and clear behavioral interventions for them.” She opined they would have the same inability at home, where there would be no therapist present to provide support. She concluded that “significant additional progress” was necessary for the parents “to demonstrate their ability to emotionally and physically care for the children.”
The case worker further reported that, while Mother and Father had attended parent education classes prior to the 12-month permanency hearing, they had initially “failed to grasp the parenting education material.” They did complete a second, 12-week parent education class in April 2007, but the facilitator of those classes had reported continuing problems: Mother’s “attitude towards social services prevent[ed] her from growing and benefitting from the services provided to her”; Mother had “difficulty establishing co-parenting agreements”; and Father had “difficulty expressing his feelings . . . and need[ed] to work in co-parenting agreements.” He noted that, whereas Francisco, Jr., Maria, and Rogelio had demonstrated an ability to accept the control and direction of their foster caregivers, Mother and Father were unable to provide similar control and direction. The case worker concluded that Father and Mother continued to be unable to incorporate the skills presented to them through their services, skills which were necessary to enable them to set “boundaries and structure for the children.”
As we have noted, the minors were initially removed from the parents’ physical custody in June 2006, under circumstances indicating, on the part of Mother and Father, an extreme ignorance of, or indifference to, basic parenting techniques that are essential for the safety, protection, and well being of young minors. The foregoing evidence was in our view sufficient for the juvenile court to conclude that Mother and Father had not adequately overcome this problem by the time of the 18-month permanency review hearing. We conclude its finding as to the risk of substantial detriment is supported by substantial evidence.
B. Reasonable Services
At the 18-month permanency review hearing, the juvenile court “shall determine whether reasonable services have been offered or provided to the parent.” (§ 366.22, subd. (a).) The standard of proof required for this finding is a preponderance of the evidence. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 595.) The court in this case found that the Agency had offered or provided reasonable services.
Mother and Father challenge this finding. They argue specifically that the Agency delayed providing therapy for the minors until September 2007 and also failed to tailor visitation adequately to meet the special needs of their large family. Mother and Father reason they could have better demonstrated their parenting abilities during visits if there had been earlier therapeutic intervention with respect to the children’s “troublesome behaviors,” and if they themselves had not been limited to supervised, one-hour visits where all the children, including Salvador, Jr., were present.
In reviewing this finding, we examine the evidence in the light most favorable to the juvenile court’s determination, indulging all reasonable inferences in its favor. “If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.” (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
We note initially that we need review only the reasonableness of services offered or provided to Mother and Father, as distinguished from those provided to the minors. We observe further that it is somewhat disingenuous to complain over a delay in mental health treatment for the children, when such treatment was in all probability needed only to address issues occasioned by Mother and Father’s neglect.
In any event, the record indicates the following. Individual and family therapy, if appropriate, was adopted as a component of each child’s service plan in November 2006. Francisco, Jr., Maria, and Rogelio began receiving family therapy services through Edgewood Center in San Mateo the preceding month. At the same time, Karla began to receive mental health services through the “Prenatal to Three” program administered by the county’s health department. Rogelio received treatment from a therapeutic behavioral specialist until late December 2006, when it was deemed no longer necessary. Maria was referred to such services in March 2007. Francisco, Jr., and Rogelio received individual therapy services that ended in December 2006 when they were deemed no longer necessary. In May 2007, therapist Karen Rugama at Edgewood Center took over family therapy services for Francisco, Jr., Maria, and Rogelio. At that time she was also designated to provide individual therapy for each of these children. The case worker testified that Rugama started the individual therapy in September 2007. Evidently it is this delay—between the time Rugama was designated to provide individual therapy and the time it actually commenced—that Mother and Father claim was unreasonable. Yet the record indicates this delay was caused not by the Agency but by the children’s summer school schedule. As we see it, the record shows that the Agency made every effort to provide, and did provide, appropriate therapy services for the children.
We see as well nothing unreasonable about the visitation arrangements. There is no indication Mother and Father ever asked to visit the children individually or in subsets. Moreover, the visits with all the children properly mirrored—for one hour—the conditions Mother and Father would have faced at home if the children were returned to their care. It is evident the Agency did not consider at-home visits or visits of greater duration because Mother and Father never progressed to a point permitting unsupervised visitation. We question whether the Agency had the resources either to supervise at-home, lengthy visits or to provide child care for Salvador, Jr., during the parents’ visits with Francisco, Jr., Maria, Rogelio, and Karla. The standard for reasonableness is not whether the agency could have provided better services in an ideal world, but whether the services were reasonable under the circumstances. (In re Misako R., supra, 2 Cal.App.4th 538, 547.)
Reunification services may be deemed reasonable when the case plan has identified the problems leading to the loss of custody, the Agency has offered services designed to remedy those problems, has maintained reasonable contact with the parent, and has made reasonable efforts to assist the parent in areas in which compliance has proven to be difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The record in this case indicates, overall, that the Agency went to great lengths to provide intensive, appropriate services from the inception of these proceedings. We conclude there is substantial evidence to support the court’s finding that the Agency provided reasonable services to Mother and Father.
We note further that, had the Agency not provided reasonable services during the period under review, a finding to that effect would not have precluded the juvenile court from proceeding to set the section 366.26 hearing. (See Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1511–1512.) Section 366.22, subdivision (a), merely required the court to make the finding one way or the other.
The juvenile court made a “reasonable services” finding at every critical stage of the proceedings, and the prior, appealable orders including such findings are long since final.
C. Statement of Factual Basis for the Decision Not to Return the Minors
The juvenile court must state the factual basis for its decision, at the 18-month permanency review hearing, to return or not return a dependent child to his or her parent. (§ 366.22, subd. (a).) Mother and Father complain that the juvenile court erred by failing to do this.
This statutory requirement is clearly designed to insure meaningful review of the juvenile court’s decision. When that court decided not to return the children to the custody of Mother and Father, it commented that it did so because the parents had not “made enough progress in their parenting skills for the children to be safe in the home.” The Agency, for its part, made its case entirely on the admission of its reports, and declined even to question the case worker after Mother’s counsel called him as a witness. Therefore the factual basis of the court’s decision must have come from the Agency’s reports. The facts from those reports relevant to the issue on which the court based its decision are summarized above. We found those facts to be sufficient to support a finding that the return of the children to Mother and Father posed a risk of substantial detriment to their safety, protection, and well being. Accordingly, we conclude the juvenile court’s failure to articulate the specific facts underlying its decision was necessarily harmless error.
Disposition
The petitions for extraordinary writ are denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur: Marchiano, P. J., Margulies, J.