Opinion
D059640
08-24-2011
MARY B., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Diego County Super. Ct. No. SJ12221)
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Garry G. Haehnle, Judge. Petition denied. Request for stay denied.
Mary B. seeks review of juvenile court orders setting a hearing under Welfare and Institutions Code section 366.26. She challenges the finding that she was offered or provided reasonable reunification services. We deny the petition.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Mary B. is the mother of M.B. A few days after M.B.'s birth in September 2009, the San Diego County Health and Human Services Agency (the Agency) detained M.B. in protective custody and filed a petition alleging Mary was gravely disabled by schizophrenia and could not provide regular care to M.B. Mary had a 14-year history of psychiatric hospitalizations, homelessness, inability to manage her Social Security benefits and intermittent compliance with her medication regimen. M.B.'s father was
serving a five-year sentence in state prison.
M.B.'s father does not appeal.
In February 2010 the juvenile court ordered a plan of family reunification services for Mary. The case plan included Mary's participation in two psychological evaluations, parenting education and individual therapy, medication management and frequent supervised visitation.
Robert Kelin, Psy.D., and Christopher Carstens, Ph.D., conducted psychological evaluations of Mary. Dr. Carstens said Mary's mental health records "confirm the existence of a chronic debilitating psychiatric disorder, which remits while the patient is taking medication, but comes back in full force when she lapses." He diagnosed her mental health condition as "Bipolar I Disorder, Most Recent Episode Manic, Severe with Psychotic Features, in Partial Remission." Dr. Carstens said Mary was in profound denial about the nature of her psychiatric condition and "it [was] very difficult to foresee any conditions under which she could be considered a reliable primary caretaker for an infant child."
Dr. Kelin diagnosed Mary's mental health condition as bipolar disorder, mixed, with psychotic features, and schizophrenia, rule out. He said Mary's prognosis for reunification was guarded but she might benefit from services. Mary did not present with overwhelming symptoms of psychopathology during her evaluation but she was in severe denial about her problems. The primary issue was Mary's ability to consistently maintain her current level of functioning, and for that the prognosis was guarded.
A combined six-month and 12-month review hearing was held on December 7 and 10, 2010. The Agency recommended the juvenile court terminate Mary's reunification services and set a section 366.26 hearing.
The evidence showed that Mary was medication compliant and had been able to maintain an apartment and manage her finances for more than a year. She completed a parenting class and participated in weekly therapy with Don Miller, Ph.D. Dr. Miller praised Mary's cooperation in therapy. He said Mary made progress, met her treatment goals and was doing well maintaining her mental health.
The social worker reported that M.B. was an engaging, active, playful baby with no developmental concerns. She was bonded to her foster parents. The foster parents were willing to adopt M.B. and promote an open adoption.
Mary consistently visited M.B. during the review period. Mary struggled to read M.B.'s cues and relied on the foster father to soothe and comfort the baby. She took frequent breaks during the visits. With the foster father's encouragement, Mary became more comfortable around M.B. and began to interact and play with her. The social worker observed a visit between Mary and M.B. in November 2010 and reported that M.B. appeared to be very comfortable with Mary. M.B. was happy to see Mary and called her "momma."
Mary testified that she had been in therapy with Dr. Miller for eight months and understood it would always be necessary to comply with her medication regimen to avoid relapsing.
The juvenile court stated it was very impressed with Mary's progress, the clarity of her testimony and her compliance with her medication regimen. The court stated: "I'll order PCAT to be added to the case plan. I would like [that to . . . ] be an emergency referral. I know there's a wait. I don't know what we can do to get [Mary] to the top of that list, but I would like that done as soon as possible." The court asked the Agency to make PCAT for Mary a priority and "do whatever we can" to get her an appointment.
PCAT is an acronym for Parent-Child Attunement Therapy, a treatment intervention for children ages 12 to 30 months who have been maltreated and/or are experiencing attachment difficulties. It is designed to strengthen caregivers' relationships with their children and to facilitate learning of appropriate child management techniques. (Dombrowski et al., A Positive Behavioural Intervention for Toddlers: Parent-Child Attunement Therapy, Child Abuse Review Vol. 14, pp. 132-133; see <http://www.chhs.ca.gov/initiatives/CAChildWelfareCouncil/Documents/PCIT%20and% 20PACT.pdf> [as of Aug. 19, 2011].)
Mary's attorney asked the juvenile court to order similar type services until Mary could begin PCAT. The court instructed the parties to "work that out" and to request a special hearing if necessary. The court found that there was a substantial probability M.B. would be returned to Mary at the 18-month review hearing.
Mary telephoned the social worker on December 13, 16 and 20 to inquire when PCAT would begin. On December 20 the social worker told Mary she would work on her case "after the holidays."
On January 7, 2011, four weeks after the court directed the Agency to make an emergency referral to PCAT for Mary, the social worker left a telephone message for the program coordinator. She spoke to the coordinator on January 19, who said two therapists would be available at the end of the month. On January 24 the social worker generated the payment authorization and sent in the necessary paperwork. On February 3 the social worker learned the therapists no longer had space available as of January 27. On February 17 the social worker contacted the program's clinical supervisor for assistance. In late February the supervisor informed the social worker a therapist would be available sometime after mid-March. On April 4 the social worker learned that services were ready to begin. Mary appeared for intake on April 14 and began PCAT one week later.
The contested 18-month review hearing was held on April 27 and 29, 2011. The juvenile court admitted the social worker's reports, addendums and attachments in evidence. The social worker and Mary testified.
The social worker acknowledged she was present in court on December 10, 2010, and was aware of the juvenile court's order to refer Mary to PCAT. She acknowledged she told Mary on December 20 she would work on her case after the holidays, and she did not make any effort to secure alternative services for Mary. The social worker did not submit a new case plan, as ordered by the court.
The social worker believed Mary had reached the limits of her abilities to parent M.B. Mary decompensated with stress. The social worker and foster father recently observed episodes during which Mary did not appear to be aware of her surroundings, did not hear her name repeatedly called and did not appear to realize the foster father and M.B. were standing next to her. The social worker believed that Mary's attention lapses placed M.B. at risk of physical harm and neglect.
Mary testified M.B. was removed from her care because the hospital staff was rude, and she was not getting along with them and overreacted to their unprofessional behavior. When asked about the social worker's and foster father's concerns about her attention lapses, Mary said she was not going to agree or disagree with them.
The juvenile court said it had been very impressed with Mary at the 12-month review hearing and thought at that time PCAT would be helpful. It now believed that Mary would not make any further progress with services. The court noted the social worker detailed her efforts to secure PCAT services and explained why alternative services had not been offered to Mary. The court found that reasonable services were offered or provided to Mary, terminated reunification services and set a section 366.26 hearing.
Mary petitions for review of the juvenile court's findings and orders under California Rules of Court, rule 8.452. She requests this court reverse the finding that reasonable services were offered or provided to her, and reverse the order setting a section 366.26 hearing. On June 8, 2011, this court issued an order to show cause and the Agency responded. The parties waived oral argument.
DISCUSSION
A
We are appalled by the Agency's failure to comply with juvenile court orders to make an emergency referral to PCAT and to update the case plan. The record is clear. The social worker was present in court on December 10, 2010. The juvenile court's oral directives and written orders were precise. The court stated, "I'll order PCAT to be added to the case plan . . . . I would like that done as soon as possible." The December 10 minute order states: "P-C-A-T IS TO BE ADDED TO THE MOTHER'S CASE PLAN; AN EMERGENCY REFERRAL IS TO BE MADE SO THIS CAN BE DONE AS SOON AS POSSIBLE."
Ten days later, when Mary telephoned the social worker for the third time to inquire about the PCAT referral, the social worker told Mary she would work on her case "after the holidays."
The record shows that the Agency initiated the PCAT referral on January 7, 2011, four weeks after the court ordered the Agency to make an emergency referral on Mary's behalf. The social worker did not speak to the service provider about Mary's case until January 19. The record supports the reasonable inference that Mary's PCAT services would have started at the end of January had the social worker made a timely referral as directed by the court.
Further, the record clearly shows the Agency did not comply with the court's order to update the case plan. On February 28 Mary asked the social worker if her updated case plan was ready. The social worker said she had not updated the case plan because therapy had not yet started. At the 18-month hearing, the social worker acknowledged she did not submit an updated case plan as directed by the court.
A case plan describes the services to be provided to assist in reunification, thus the social worker's representation to Mary on February 28 did not reflect a full understanding of applicable statutory requirements. (§ 16501.1, subd. (d)(10).) The Legislature emphasizes the importance of the case plan. (§§ 16501.1, subd. (a)(1) [the Legislature finds and declares that the foundation and central unifying tool in child welfare services is the case plan]; 16501.1, subd. (b)(1) [the Legislature finds and declares the case plan ensures that services are provided to the child and parent, as appropriate].) The child welfare agency is required to update the case plan at minimum every six months or as the service needs of the child and family dictate. (§ 16501.1, subd. (d).) The Agency's lack of compliance with the statute, and the order of the juvenile court directing it to add a specific service to the case plan, is unacceptable.
The Agency states to the extent the parent felt that the Agency did not act quickly enough in arranging PCAT, she should have contacted her attorney and immediately brought the issue to the court's attention to safeguard her rights. (In re Christina L. (1992) 3 Cal.App.4th 404, 416 [a parent has the duty to safeguard his or her legal rights and bring any infringement of those rights to the court's attention].) The Agency may want to tread lightly here. This is not a situation in which the juvenile court left the general implementation of the case plan to the child welfare agency, and the parent is not satisfied with the services that were offered or provided. This issue involves the failure of a child welfare agency to implement a valid court order, and implicates the power of the juvenile court to impose sanctions on the Agency were it to find that the lack of compliance with its order was willful or intentional. (§ 213 ["[a]ny willful disobedience or interference with any lawful order of the juvenile court or of a judge or referee thereof constitutes a contempt of court[]"]; see, In re Ashley M. (2003) 114 Cal.App.4th 1, 10, fn. 5 [suggesting contempt could be used to force an unwilling child welfare agency to provide services].)
"As a general rule, the elements of contempt include (1) a valid order, (2) knowledge of the order, (3) ability to comply with the order, and (4) willful failure to comply with the order." (In re Ivey (2000) 85 Cal.App.4th 793, 798.)
The juvenile court specifically ordered the Agency to implement a particular service for the benefit of parent and child, and to do so on an emergency basis. The court also ordered the Agency to update the case plan. (§ 16501.1, subd. (d).) There is no excuse for the Agency's lack of compliance with the juvenile court's orders of December 10. Were it not for the length of time the parent received other services, including the extraordinary assistance of the child's foster father, and the fact the child has been in protective custody from birth and is now almost two years old, we would not hesitate to conclude that reasonable services were not offered or provided to the parent.
The Agency submits "it was unfortunate the holidays interfered with the social workers ability to expedite PCAT . . . ."
B
18-Month Review Hearing: Legal Framework
At an 18-month review hearing, the court is required to order the return of the child to the physical custody of the parent unless the court finds by a preponderance of the evidence 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. (§ 366.22, subd. (a).)
If a parent has been institutionalized or incarcerated, and meets other statutory requirements, the court may continue the case for up to six months, provided the review hearing occurs within 24 months of the date the child was originally placed in protective custody. The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent and safely maintained in the home within the extended period of time, or that reasonable services have not been provided to the parent. (§ 366.22, subd. (b); see also, In re Elizabeth R. (1995) 35 Cal.App.4th 1774 (Elizabeth R.); In re Daniel G. (1994) 25 Cal.App.4th 1205 (Daniel G.) [court has discretion to continue the 18-month hearing if a disabled or institutionalized parent did not receive reasonable services].)
To support a finding reasonable services were offered or provided, "the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . ." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The "adequacy of reunification plans and the reasonableness of the [child welfare agency's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.)
Reunification services should be tailored to the particular needs of the family. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 793.) The social services agency must make a "good faith effort" to provide reasonable services that are responsive to each family's unique needs. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.) "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.)
We review an order terminating services and setting a section 366.26 hearing to determine if it is supported by substantial evidence. If substantial evidence is present, we must affirm the order. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) We do not resolve conflicts in the evidence, pass on the credibility of witnesses, or determine where the preponderance of the evidence lies. We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) The burden is on the petitioner to show the evidence is insufficient to support the juvenile court's findings. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
C
There Is Substantial Evidence to Support the Juvenile Court's Findings
Mary asserts the juvenile court should have continued services to the 24-month date because she did not receive reasonable services. She contends there is not substantial evidence to support the finding that she did not have the capacity or ability to provide for M.B.'s safety and protection, and argues the court erred when it set a section 366.26 hearing because her circumstances were similar to the parents in Elizabeth R., supra, 35 Cal.App.4th at pages 1798-1799 and Daniel G., supra, 25 Cal.App.4th at page 1213, in which the reviewing courts reversed the reasonable services findings and remanded the cases with directions to provide services to the parents.
As we previously said, were it not for the length of time services were offered to Mary and the state of the record, we would not hesitate to reverse a reasonable services finding where the Agency did not comply with a juvenile court's order for services. We do not do so here for the following reasons:
M.B. was removed from Mary's custody at birth. A parent of a child under three years of age at the time of initial removal is entitled to at least six months of family reunification services from the date of the dispositional hearing, but no longer than 12 months from the date the child entered foster care. (§ 361.5, subd. (a)(1)(B).) The social worker provided referrals for therapy, parenting education and psychiatric services to Mary in October and December 2009. Mary started participating in recommended services in February 2010. The Agency provided weekly therapy services to her from March 2010 to April 2011. During that time, the social worker consulted Mary's therapist and brought issues that arose during visitation to his attention, and monitored Mary's compliance with her medication regimen.
As Mary acknowledges in her petition, the foster father's kindness to her and his efforts to facilitate family reunification were extraordinary. The foster father provided Mary with exceptional support services, scheduling visits at her home, running errands with her and teaching her how to interpret and respond to M.B.'s nonverbal cues and cries. He explained principles of child development to Mary in the context of M.B.'s behavior and helped her when she did not know how to respond to M.B. Mary did well with visits when they remained highly structured but struggled with changes in routine. At the time of the 18-month review hearing, Mary's interactions with M.B., although improved, were inconsistent. At approximately half the visits, Mary had a flat effect and did not consistently interact with M.B.
Unlike the parents in Elizabeth R. and Daniel G., Mary received 18 months of supportive visitation services, and more than a year of therapeutic services. During visits, Mary relied on support from the foster father and visitation center staff to guide her interactions with M.B. Although Mary remained compliant with her medication regimen, the social worker and foster father observed several recent episodes during which Mary appeared unaware of her surroundings, did not hear her name being called and did not seem to realize M.B. was standing next to her. In April 2011, as she did in October 2009, Mary insisted the hospital staff was to blame for M.B.'s removal from her care, allowing the reasonable inference that after 12 months of therapeutic and psychiatric services, Mary had not made progress understanding the nature of her mental health condition and the risks it presented to M.B. Because of concerns about M.B.'s safety in Mary's care, the social worker could not in good faith recommend unsupervised visitation.
This is not a situation in which a parent is almost ready to provide a safe, permanent home for his or her child and but for the child welfare agency's nonfeasance, an extended period of reunification services would allow the child to be returned to the parent and safely maintained in the home before the 24-month date. (Cf. § 366.22, subd. (b).) Although the record clearly shows the Agency did not comply with an order of the juvenile court, we conclude there is substantial evidence to support the finding that reasonable services were offered or provided to Mary, and an extended period of reunification services would not be in the child's best interests. (Ibid.)
DISPOSITION
The petition is denied. The request for a stay is denied.
HUFFMAN, Acting P. J. WE CONCUR:
MCDONALD, J.
IRION, J.