Opinion
D042692.
11-14-2003
M. C., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
The San Diego County Health and Human Services Agency (HHSA) took seven-year-old A. L. and one-year-old E. S. into protective custody after they were exposed to domestic violence between their mother, M. C. (M.), and her live-in boyfriend, Vernon C. After Mariyah C., the daughter of M. and Vernon, was born six months later, she too was taken into protective custody. All three children were declared dependents of the juvenile court. At the combined 12-month review hearing for the older children and the six-month review hearing for Mariyah, the court terminated reunification services and set a permanency planning hearing for the children.
M. seeks writ review (Welf. & Inst. Code,[] § 366.26, subd. (l); Cal. Rules of Court, rule 39.1B). She challenges the courts findings that she was provided reasonable reunification services and there was not a substantial probability the children would be returned by their next review dates. We issued an order to show cause, HHSA responded, and the parties waived oral argument. We review the petition on the merits and deny it.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On February 23, 2002, police officers responded to a domestic violence call. M. told the officers that Vernon returned from an "all nighter" with his friends and forced his way into the residence, kicking a hole in the door. M. also reported Vernon took her property, disabled the telephone and pushed her before fleeing.
Over the next two months, a social worker could not locate M. for an interview. When she was found, M. said she had been living with her grandmother but then moved back with Vernon, with whom she had reconciled. M. also minimized the February domestic violence incident and she said it was the first violent confrontation between her and Vernon.
On April 25, 2002, HHSA filed dependency petitions on behalf of A. and E. under section 300, subdivision (b), alleging the children were at risk because they were exposed to domestic violence. The children were ordered detained at Polinsky Childrens Center; the court also ordered supervised visitation.
Despite M.s previous history with the agency,[] HHSA recommended reunification services be provided to her. M. told the social worker that she and Vernon had decided to work on their relationship and began seeing separate therapists in March. M. planned to stay with Vernon; she was pregnant with his child. The social worker provided M. and Vernon with referrals and told them to enroll in domestic violence and anger management classes and to continue in therapy.
In November 1995 A. was taken into protective custody, along with two older brothers, because of physical abuse by M. The children were declared dependents of the court. A. reunified with M. and jurisdiction was terminated in January 1997. M. failed to reunify with the oldest boy, and he was adopted. The middle brother was declared a dependent three times: first, for domestic violence and child endangerment in 1991; second, for physical abuse in 1995; and third, for child abandonment in 1999. M. did not reunify with this child, and the court ordered a permanent plan for him.
After a contested hearing on May 2, the court sustained the petitions as to A. and E.; the contested dispositional hearing was continued. Meanwhile, the social worker reported M. had not enrolled in a domestic violence program and had only attended two intake sessions with a psychologist. The psychologist opined M. continued to deny there was domestic violence with Vernon. On June 12 M. withdrew her request for a trial on dispositional issues and submitted on HHSAs recommendations. The court ordered M. to comply with the case plan, which included enrollment in domestic violence and parenting education programs, individual counseling and a psychological evaluation.
According to the psychological evaluation, M. was a risk to her children because she had poor insight, judgment and impulse control, and because she minimized her ongoing relationship with Vernon. The psychologist also reported M. suffered from mild depression.
During the first six months, M. completed a domestic violence program but did not attend therapy.
On November 9 M. gave birth to Mariyah. On November 20 HHSA filed a dependency petition on Mariyahs behalf. (§ 300, subd. (b).) Mariyah was detained in out-of-home care. The court sustained the petition on January 9, 2003, declared Mariyah a dependent of the court, removed her from parental custody and ordered M. to comply with her reunification plan.
On January 15, 2003, the court held the six-month review hearing for A. and E. The court found M. had made moderate progress on her case plan and ordered continued reunification services.
During the next six months, M. did not complete any additional requirements of her case plan. M.s attendance at scheduled visits with her children was poor; she missed almost half of the visits and arrived late for some. One time M. left early because only A. was present; M. was disappointed that the other two children were not there. During this period, M. lost her housing and was homeless for a while before she began living at the Saint Vincent DePaul shelter on June 1. According to the social worker, M. renewed her efforts to comply with her case plan only after learning that HHSA was recommending that services be terminated. On June 2 M. began weekly therapy sessions with Dan Desmond.
On August 6 the court held the contested 12-month review hearing for A. and E. and the six-month review hearing for Mariyah. Social worker Steve Wells testified that M. focused on her needs rather than the needs of her children. For example, M. did not realize how much her children, particularly A., were disappointed when she missed scheduled visits. Wells also questioned M.s motivation to complete her case plan, noting her failure to engage in individual therapy for almost a year. The social worker opined there was not a substantial probability that A., E. or Mariyah would be returned to parental custody by the next scheduled review date.[]
For A. and E., the next review date was in two and one-half months.
Desmond, who had seen M. for eight sessions, testified that she was motivated to become a better parent and was actively participating in the sessions. Desmond opined M. suffered from, among other things, depression, and attributed the visits she missed with the children to her depression. Desmond said M.s depression was lifting as her therapy continued. Desmond related that M. blamed herself rather than the system for the childrens removal and she believed her poor choices in dealing with men were responsible.
M. testified that she became very depressed around March when she was evicted from her residence and left homeless. Regarding the drop in her visitation, M. said she was unable to focus on doing "what I needed to do that was important." M. testified her mood lifted after she was accepted at the shelter, and Desmond was one of two therapists with whom she ever felt comfortable. M. testified she had learned self-esteem for herself, respect for her family, the importance of protecting her children and "ways to avoid be[ing] in that situation again." She was now aware of the effect of domestic violence on her children and she had a safety plan for herself and the children if she was in a domestic violence situation again.
The court found reasonable services had been provided to M. and she had made some progress in her case plan but there was not a substantial probability that Mariyah would be returned to her within the next six months or that A. and E. would be returned to her by the 18-month date. The court terminated reunification services and set a section 366.26 hearing for all three children.
DISCUSSION
I. Reasonableness of Reunification Services Offered
M. contends the court erred in finding HHSA offered reasonable services because she was not provided with appropriate referrals addressing her depression. The contention is without merit.
A reunification plan must be tailored to the particular individual and family and address the unique facts of that family. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) "[T]he focus of reunification services is to remedy those problems which led to the removal of the children . . . ." (In re Michael S. (1987) 188 Cal.App.3d 1448, 1464.)
In reviewing the reasonableness of the services provided, we view the services provided in the light most favorable to HHSA. We must indulge in all reasonable and legitimate inferences to uphold the order. (In re Misako R., supra, 2 Cal.App.4th at p. 545.) We conclude substantial evidence supports the courts conclusion that the services were reasonable and tailored to M. and her family. The petitions were sustained on allegations that the children were at risk because of exposure to domestic violence. In direct response to the petitions, the case plan required completion of domestic violence and parenting education programs, individual therapy and a psychological evaluation.
M.s complaint about the lack of referrals for her depression is unavailing. The case plan directed M. to undergo a psychological evaluation in which her depression was noted. M. also was to undergo individual therapy, but she virtually ignored this requirement for almost a year. HHSA was not required to take M. by the hand and lead her to counseling. (In re Christina L. (1992) 3 Cal.App.4th 404, 414.) "Petitioners real problem was not a lack of services available but a lack of initiative to consistently take advantage of the services that were offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) When M. finally began to regularly attend counseling sessions, the therapist noted she suffered depression. Thus, the record belies the claim that M.s depression was not addressed in her case plan.
To the extent that M. challenges the services because she did not receive a referral for a medical evaluation to address her depression, she cannot prevail. It is significant that neither the psychologist who evaluated her nor the only therapist she regularly saw recommended or suggested that M.s depression warranted such a referral. Depression can be treated in different ways, including counseling and with medications. It was reasonable for HHSA to rely on the opinions of mental health professionals to decide whether a medical evaluation was indicated.
HHSA was "required to make a good faith effort to . . . implement a family reunification plan" when the court ordered reunification services. (In re Christina L. (1992) 3 Cal.App.4th 404, 414.) "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., supra, 2 Cal.App.4th at p. 547.) We conclude HHSA provided reasonable services under the circumstances of this case.
II. Finding of No Substantial Probability of Return By Next Review Hearing Dates
M. contends the court erred in finding there was not a substantial probability the children would be returned to parental custody by the next review hearing dates. Such a finding is significant in determining whether reunification services should be continued.
For Mariyah, as well as other children under the age of three at the time of removal, the length of time reunification services will be offered is governed by section 366.21, subdivision (e). If the court finds at the six-month review hearing that the parent has failed to participate and make substantive progress in his or her court-ordered treatment programs, the parent is not entitled to further services unless the court finds a substantial probability that the child will be returned to parental care within six months or that reasonable services have not been provided. (§ 366.21, subd. (e).)
As to A. and E., the court was conducting a 12-month review hearing pursuant to section 366.21, subdivisions (f) and (g). When a dependent child is not returned to parental custody at the 12-month review hearing, the court must set a permanency hearing, order long-term foster care or continue reunification services to the 18-month date. (§ 366.21, subd. (g).) "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 . . . ." (§ 366.21, subd. (g)(1), italics added.)
In order to find a substantial probability of return, the court is required to find the parent has consistently visited the child (§ 366.21, subd. (g)(1)(A)); the parent has made substantial progress in resolving the problems that led to removing the child (§ 366.21, subd. (g)(1)(B)); and "[t]he parent . . . has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1)(C).)
On appeal we must defer to the factual determinations of the juvenile court. It is not our function to redetermine the facts. As long as the courts decision was supported by substantial evidence, we must affirm. (In re Sheila B. (1993) 19 Cal.App.4th 187, 198-200.)
Substantial evidence supports the trial courts finding there was no substantial probability that A. and E. would be returned to M.s custody by the 18-month review date, which was two and one-half months away. Substantial evidence also supports the finding there was no substantial probability that Mariyah would be returned within the next six months. Contrary to the requirement of section 366.21, subdivision (g)(1)(A), there was sufficient evidence that M. did not maintain consistent visitation with the children in the most recent reporting period. Of the eight previously scheduled visits for A. and E., M. was late for two visits, cancelled two visits, and failed to show at three visits, one of which was a make-up visit. She left for part of one visit when only A. was present. Of the 13 previously scheduled visits for Mariyah, M. was a no-show for four, cancelled two and arrived late for two.
The court had ample cause to question M.s progress toward eliminating the conditions that led to the dependency—namely the protective issues surrounding domestic violence. (§ 366.21, subd. (g)(1)(B).) Although M. completed the domestic violence component of her case plan, it had taken her a year to start therapy on a regular basis. Also, M. had not yet completed her parenting program.
There also was substantial evidence that M. lacked the willingness, determination and capacity to meet the objectives of the reunification plan. (§ 366.21, subd. (g)(1)(C).) Although therapist Desmond opined M. was motivated to become a better parent, social worker Wells expressed an opposite point of view. It was up to the juvenile court, as fact finder, to assess the conflicting expert opinions. It is not within our purview to second guess the juvenile courts determination.
DISPOSITION
The petition is denied.
WE CONCUR, McCONNELL P. J., and IRION, J.