Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for extraordinary writ review No. 07CEJ300202-1,2,3, Jane Cardoza, Judge.
Julie A. Bowler, for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
OPINION
Before Levy, A.P.J., Cornell, J., and Kane, J.
This case arises from a contested 18-month review hearing at which the juvenile court terminated petitioner’s reunification services and set a Welfare and Institutions Code section 366.26 hearing as to her three children. Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the juvenile court’s orders. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In late December 2006, the Madera County Department of Public Welfare (department) took petitioner’s two daughters, then six and four years old, and 14-month-old son into protective custody after R.B., petitioner’s husband and the father of her two youngest children, engaged in a physical altercation with his sister in the presence of the children. Through its investigation, the department discovered the family had a history of instability and petitioner was being treated for bipolar disorder.
R.B. also filed a writ petition (F056162).
The juvenile court adjudged the children dependents and the department placed them together in foster care. Not long after, the foster parent reported the four-year-old masturbated while on the toilet and disclosed that R.B. “touched” her. As a result, the social worker generated a suspected child abuse report and arranged for the child to undergo a sexual assault examination, which yielded no evidence of sexual trauma. However, while supervising visitation between the parents and the children, the social worker had to tell R.B. to stop giving the four-year-old “wedgies” (pulling her underwear in an upward direction from behind). The social worker also saw R.B. kiss the four-year-old on the lips for what the social worker perceived as a prolonged period of time.
In February 2007, at the dispositional hearing, the juvenile court ordered both parents to participate in a plan of reunification. Petitioner’s plan only required her to complete a parenting course. R.B.’s plan required him to complete a parenting course as well as participate in substance-abuse related services. The court also ordered the two girls assessed for counseling and set the six-month review hearing for August 2007.
In February 2007, subsequent to the dispositional hearing, the department received a referral alleging R.B. sexually abused his six-year-old stepdaughter and four-year-old daughter. The foster mother told the investigating social worker the four-year-old said R.B. touched her vagina and the six-year-old said he hurt her a lot “down there,” pointing to her crotch. The four-year-old told the social worker R.B. would insert two fingers in her vagina, which she simulated by extending her right index and middle fingers, thrusting them upward as if into something and wiggling them. This occurred while she was on the toilet. The four-year-old also told the social worker that, while R.B. had his fingers in her vagina, he had his hand in his pants “on his peanuts.” Later, in an interview with a police officer, the four-year-old said R.B. touched her private parts five times. During the touching, R.B. told her she was a bad girl. The four-year-old also reported the abuse to petitioner who agreed it was bad. The six-year-old refused to be interviewed by the police officer. The department substantiated the sexual abuse allegations but did not file a subsequent petition.
By August 2007, the children were living with their maternal aunt in Madera and petitioner and R.B. had established a residence in Fresno. The parents had weekly supervised visitation with the children and R.B.’s inappropriate behavior continued. The social worker supervising visits saw R.B. pick the four-year-old up by his forearm between her legs, and give her a hard-pressed kiss on the mouth. The four-year-old later told her care provider that R.B. tried to lick her. In mid-June 2007, just before a three-hour supervised visit, the four-year-old disclosed to her therapist she was afraid R.B. would hurt her private parts. In late July, the care provider reported finding the four-year-old masturbating in the bathroom with two fingers inserted in her vagina. When the care provider talked to the child about her behavior, the child stated she missed her daddy.
In August 2007, at the six-month review hearing, the juvenile court found the department provided reasonable services and ordered them to continue for both parents and ordered the case transferred to Fresno County. The court also amended petitioner and R.B.’s case plans to include non-offender sexual abuse counseling and offender’s sexual abuse counseling respectively.
In January 2008, the Fresno County juvenile court (juvenile court) accepted the case and ordered the Fresno County Department of Children and Family Services (department) to offer petitioner and R.B. parenting classes, domestic violence, mental health and substance abuse assessments and any recommended treatment and random drug testing. The court set a review hearing which was continued and conducted in April 2008.
In March 2008, petitioner completed a mental health evaluation. The evaluator noted petitioner’s poor insight, judgment, and ability to empathize with her children as well as her seeming unwillingness to consider new information. Petitioner made it clear to the evaluator she did not want or see a need to change and blamed her circumstances on her birth family and associates. She had previously reported that she was physically and sexually abused as a child. The evaluator opined petitioner would need 5 to 10 years of intensive therapy to make significant changes and suggested the department refer her for a psychological evaluation. Meanwhile, the evaluator recommended the department closely monitor petitioner during visitation.
R.B. also completed a mental health evaluation in March 2008. The evaluator noted he was working full time and daily attending some sort of counseling, either domestic violence and/or sex offender counseling. The evaluator indicated petitioner needed therapy but recommended he wait until he completed sexual offender treatment.
In April 2008, the department filed a 12-month status review, in which it reported R.B. was employed and on probation for a misdemeanor assault charge and petitioner had applied for disability income because of a brain injury she received in an auto accident in 1998. Both had completed their parenting courses and petitioner was participating in therapy and was on medication. In addition, petitioner began non-offender sexual abuse counseling in February 2008 but denied that R.B. touched the girls even though the four-year-old reported it to her. She stated she was only participating in counseling because she was court ordered to attend. R.B. began sex offender counseling in March 2008. He denied sexually abusing the girls and blamed family members for the accusations. His therapy was expected to last 6 to 12 months depending on his progress.
The department also reported concerns about visitation. The six-year-old told her care provider she did not want to attend visits. She frequently sat alone while the other children visited their parents. The department recommended the court terminate reunification services and set a permanency planning hearing. The department also initiated a referral for therapeutic visitation.
In April 2008, the juvenile court conducted a contested 12-month review hearing at which it found petitioner and R.B. were not provided reasonable services. The court ordered the department to continue providing reunification services until the 18-month review hearing which the court set for June 2008.
Prior to the June 2008 review hearing, the department removed the children from their aunt after petitioner’s middle child, then five, told the social worker her aunt placed her (the child’s) head in the toilet. The department filed a supplemental petition (§ 387) and the children were placed in foster care.
In August 2008, petitioner completed a psychological evaluation during which she discussed interpersonal boundaries with her own father and requested self-help material to help enhance her progress in treatment. The psychologist expressed some concern that petitioner was “overly defensive” in psychological testing, suggesting petitioner would need to be monitored if the children were returned to her care. However, the psychologist did not believe petitioner’s judgment was so poor that she would not be able to protect the children from sexual abuse. The psychologist concluded her report recommending petitioner continue individual therapy and listing four self-help books. The psychologist provided the names of the self-help books in a personal letter to petitioner dated five days after the evaluation.
The juvenile court set a combined contested hearing on the 18-month review and disposition of the supplemental petition for September 2008. In its reports for the hearing, the department reported neither petitioner nor R.B. had sufficiently addressed their mental health issues and the therapist supervising visits believed the children would be at risk if left unsupervised with the parents. The visitation therapist was also concerned about avoidant behavior demonstrated by the children toward R.B. In addition, both girls stated they did not want to return to their parents.
In September 2008, the juvenile court conducted the combined contested hearing. The social worker testified that R.B. had completed all of his court-ordered services except sexual abuse counseling and mental health therapy. The social worker did not know when he would complete his sexual abuse counseling, stating it was based on his progress and no one had given her an expected completion date. She did not believe the children could be safely returned to R.B. or that he had made substantial progress in his services because he had not completed sexual abuse counseling. As to petitioner, the social worker testified she did not provide the self-help books recommended by the psychologist. Mother was appropriate with the children during visitation.
Petitioner testified she received a copy of the psychologist’s letter approximately a couple of weeks before the hearing. Asked if she would separate from R.B. in order to resume custody of the children, she said she would consider it and most likely would.
Following testimony and argument, the court found petitioner and R.B. were provided reasonable services but had only made moderate progress. The further found it would be detrimental to return the children to their custody and terminated reunification services and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Petitioner argues the juvenile court erred in terminating reunification services on three grounds: she was not provided reasonable services, she made substantive progress in her reunification plan, and the court should have exercised its discretion to continue services. We disagree.
Reunification services are limited by statute to 18 months from the date the child was originally removed from the physical custody of his or her parent. (§ 361.5, subd. (a)(3).) Nevertheless, the juvenile court may extend services beyond that if it determines the parent was not provided reasonable services and/or continued services would serve the child’s best interest. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.) If the court does not continue reunification services, it must set a hearing pursuant to section 366.26 to establish a permanent plan for the child. (§ 366.22, subd. (a).)
Petitioner claims her services were not reasonable because they did not address her learning disability. She faults the department for ignoring the psychologist’s opinion that she needed additional educational materials to facilitate reaching her counseling goals. In essence, she argues, the department was unreasonable in not providing her the self-help books recommended by the psychologist.
First of all, there is no evidence in the record, including the psychologist’s report, that petitioner suffers from a learning disability. In fact, in reporting on petitioner’s cognitive functioning, the psychologist stated that she excelled academically prior to her brain injury and that, despite her injury, she tested average with respect to her verbal intelligence quotient (IQ) and above average in her nonverbal IQ. From that the psychologist concluded petitioner would have no difficulty using her reasoning skills and processes to obtain custody of the children. It was in that context that the psychologist reported, “[G]iven [petitioner’s] high level of achievement and efficiency in academics, use of self-help materials may greatly [enhance] this mother’s progress in treatment.” Consequently, petitioner’s argument the department failed to accommodate a learning disability is unfounded. Further, she fails to show how the social worker was unreasonable in not providing her the recommended self-help books. The books were recommended as an aid to treatment rather than as a necessity. In addition, the psychologist provided petitioner a list of the books and she could have obtained them herself.
Finally, there is no evidence that continuing services would have served the children’s best interests. Even assuming for the sake of argument petitioner made substantive progress in her court-ordered services, she continued to pose a detriment to the children so much so that visitation had to be supervised. Perhaps more importantly, neither of petitioner’s daughters wanted to visit her much less be returned to her custody. We find no error on this record.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.