Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jane Cardoza, Judge., Super. Ct. No. 05CEJ300092-1.
Monique R., in pro. per., for Petitioner.
No appearance for Respondent.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Vartabedian, Acting P.J., Harris, J., Cornell, J.
Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court issued at a contested review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughter E. 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
E. is a special needs child who suffers an array of medical conditions, the cumulative effect of which renders her medically fragile. She was diagnosed at birth with cerebral palsy and reactive airway disease and subsequently with gastroesophageal reflux and esophagitis.
However, what brought E. to the attention of the Fresno County Department of Children and Family Services (department) was her admission in May 2005 to children’s hospital with a right spiral femoral fracture indicative of child abuse. E. was four months old at the time of the incident and resided with both parents, petitioner and A., neither of whom could provide a reasonable explanation for her injury.
A. is not seeking extraordinary writ review.
The department took E. into protective custody and filed a dependency petition on her behalf alleging under section 300, subdivisions (a) (serious physical harm) and (e) (severe physical abuse) that E. suffered severe physical abuse at the hands of either or both parents. The juvenile court ordered E. detained pursuant to the petition and, following a contested jurisdictional hearing, dismissed the subdivision (e) allegations and adjudged E. a minor under subdivision (a).
In June 2005, E. was placed with foster mother P.M., a licensed vocational nurse. She would remain in P.M.’s care throughout the ensuing 27 months of reunification.
In September 2005, the juvenile court conducted the dispositional hearing and ordered reunification services for both parents. For petitioner, the court ordered parenting and anger management classes, substance abuse and mental health evaluations and recommended treatment, and weekly two-hour supervised visitation. The court also ordered both parents to participate in medical training so as to be able to take care of E. and set a post-dispositional mediation in October 2005 and the six-month review hearing in January 2006.
Petitioner and A. attended mediation in November 2005 along with the social worker and mediator. They discussed the restriction placed on visitation by E.’s primary care physician (hereafter the physician) that visitation occur under the supervision of a nurse once a week for two hours. The physician was concerned that increased visitation would increase E.’s risk of respiratory illness and difficulty breathing. According to the mediation report, petitioner and A. were then visiting with E. at the bonding home for two hours a week. At the November 2005 hearing on mediation, the court adopted the mediation findings and granted the department discretion to arrange unsupervised visitation with the physician’s written permission, consent of E.’s attorney and advance notice to all parties.
However, visits remained supervised and, according to petitioner, they were too infrequent and too brief to facilitate bonding. In addition, she alleged the department had not provided her medical training. These issues were litigated at a contested six-month review hearing in March 2006, at the conclusion of which the court found the department failed to provide petitioner reasonable services. The court again granted the department discretion to arrange unsupervised and liberal visitation. The court set the 12-month review hearing for July 2006.
In February 2006, petitioner and A. began intensive medical training for E. arranged through the children’s hospital. The training was provided by registered nurses and a certified respiratory therapist and encompassed administration and monitoring of E.’s medications, nutritional feedings from a gastric tube, use of respiratory equipment and application of breathing treatments, and the management of routine infant/toddler care. The respiratory therapist taught the parents how to use a nebulizer to treat E.’s asthmatic attacks. Petitioner stated that she had asthma and was aware of the signs and symptoms of an impending attack. However, when E. had an attack on two separate occasions with the respiratory therapist present, petitioner made no effort to administer the treatment or to comfort E. Instead, she waited for the foster mother to administer the treatment. According to the nurse reporting on the training sessions, petitioner seemed anxious and unsure contrary to her initial representation that she understood the treatments and how to administer them. There was a general sense that the parents were not yet capable of providing the treatments and that they were uncomfortable connecting with E. The nurse recommended extended trial periods to determine if the parents had the ability to care for E. on a permanent basis.
The 12-month review hearing was continued and conducted in November 2006. The court found the parents were not provided reasonable services and ordered them to continue. The court set the 18-month review hearing for November 30, 2006.
In its status report for the hearing, the department reported that petitioner and A. had separated but were both interested in reunifying with E. Petitioner completed a parenting class in October 2005 and a batterer’s treatment program in March 2006. She completed a psychological evaluation and, according to the psychologist, did not require therapy. In addition, she submitted to drug testing and tested negative. A. was equally compliant with his services but was referred to a father’s group as a result of his mental health assessment.
The November 30, 2006 hearing was continued at county counsel’s request so that the department could provide reasonable services. On January 30, 2007, the court granted county counsel’s request pursuant to section 352 to continue the 18-month review hearing. The court ordered mediation to be conducted in March 2007 and continued the hearing to July 2007.
Meanwhile, in January and February 2007, petitioner and A. were provided additional medical training by a registered nurse. Over five sessions, they were instructed in the diagnosis, causes, signs and symptoms of cerebral palsy and reactive airway disease and how they affect E.’s developmental growth, administration of E.’s medications, including dosages, adverse effects and how to respond to an overdose, administration of oxygen therapy, feedings through the gastric tube, and the importance of being prepared. Petitioner verbalized her understanding, which she demonstrated by scoring a 90 percent on a 10-question exam.
In March 2007, petitioner and A. met with the case worker and mediator to discuss visitation. According to the mediator’s report, the parents were visiting E. at the bonding home twice a week from 9 a.m. to noon. At the conclusion of the meeting, they agreed the case worker would schedule a staffing with the parents and the physician to discuss visits. The court adopted the mediation findings and a staffing was scheduled for mid-May 2007.
The staffing occurred as scheduled. In attendance were E.’s physician, the bonding home nurse, E.’s mental health therapist, a public health nurse, and several social workers, including the case worker. The attendees discussed the extensiveness of E.’s medical problems, her underdeveloped lungs, frequent respiratory infections, oxygen dependence, and developmental delay.
The bonding nurse expressed her concern that petitioner never accepted her assistance when E. was having difficulty. She recounted an incident in which E.’s oxygen tank was not working. Instead of telling the nurse there was a problem, petitioner called the foster mother instead. Even though petitioner resolved the issue herself, it was discussed that she should have been able to demonstrate that she knew how to use the oxygen or knew when to give it to E. The physician was concerned that petitioner did not seem to know how to apply the oxygen and that she had to contact the foster mother. The physician believed petitioner should have more knowledge than she was demonstrating especially given all the training she had received.
E.’s mental health therapist expressed concern that petitioner minimized E.’s medical condition and its seriousness. The therapist stated that, during their first assessment, petitioner stated of E., “She can eat. They just don’t let her eat.”
The physician stated that when petitioner attended E.’s appointments, she never asked questions about E.’s condition. The physician was concerned that if petitioner did not begin unsupervised visitation, she may not recognize the signs that E. needed medical assistance.
The attendees also discussed that petitioner, who was pregnant, had missed some of E.’s appointments but noted that it could be because petitioner was very sick with her pregnancy. The physician stated that, given petitioner’s lack of understanding of E.’s medical condition, inability to recognize respiratory distress and missed visits and appointments, she would not recommend unsupervised visits.
After the staffing, the case worker met with petitioner and A. to discuss the concerns raised by the attendees and their conclusion that visits should remain supervised. They were told that the physician expected them to participate more during E.’s medical appointments. Otherwise, the physician did not know whether they understood what was going on or if they were interested. Petitioner became upset and stated she did not ask many questions because she believed she already understood E.’s medical conditions and knew how to treat them. The case worker also expressed the attendees’ concern that petitioner insisted on taking E. out to play during the winter months when it was too cold. They believed she should know that taking E. out into the cold would make her ill. Petitioner denied doing this. She acknowledged wanting to take E. outside but stated it was not cold that day. Petitioner was also told there was concern that she did not ask for assistance of the bonding home nurse when she needed it. Petitioner expressed her distaste for the nurse. She stated she had not gotten along with the nurse at all because the nurse used to talk about her case with strangers and make comments. She stated she would only ask for help if she felt she needed it. She stated she knew all about E.’s condition and what to do and that it was “not a problem.”
In a supplemental report following the staffing and discussion with petitioner, the department summarized the attendees’ concerns and recommended the parents continue to receive supervised visits at the bonding home.
On May 24, 2007, the juvenile court ordered visits to remain supervised at the bonding home and ordered the department to make up any missed visits. The following day, the bonding home nurse contacted the social worker and stated that petitioner arrived at the bonding home and was “very obnoxious.” She “meanly” told the nurse to stay out of the visitation room while she visited with E.
Petitioner’s hostility toward the bonding nurse continued. In late June, the bonding nurse told the case worker that petitioner refused to interact with the staff at the bonding home and reportedly “[ranted and raved] to the other parents who [were] visiting about how the [b]onding [h]ome writes down things that are not true about her.” By early July, the bonding home nurse had contacted the case worker to terminate petitioner’s visits at the bonding home. She stated she was tired of petitioner’s yelling and verbal abuse. Petitioner accused her of lying and fabricating in her notes.
Petitioner confirmed her belief that the bonding nurse was not truthful in her reports. She stated she and the nurse had not gotten along for many months. The case worker arranged for visitation at the department facility with a public health nurse providing direct supervision and the foster mother remaining in the reception area for backup assistance.
In June 2007, the department filed an interim report documenting its efforts to make up missed visits. The department explained that petitioner was then visiting E. two days a week for three hours each visit at the bonding home. However, because a nurse had to be present and because the nurse was only available at that time, the department could not increase the bonding home visits. However, the department explained that petitioner also had an opportunity to visit and interact with E. during their two-hour weekly parent therapy group, during their conjoint counseling, and during her numerous medical appointments.
In July 2007, the department filed its report for the review hearing. It recommended the court terminate services to the parents and proceed to permanency planning. The department based its recommendation on petitioner’s inability to graduate to unsupervised visitation and information that she had difficulty attending to E.’s medical needs. The department cited the concerns raised by E.’s treatment team at the May 2007 staffing meeting.
At petitioner’s request, the court set a contested hearing on the department’s recommendation to terminate reunification efforts. In her statement of issues, petitioner claimed it was unreasonable not to provide her unsupervised visitation when the department failed to test her competency to independently manage E.’s medical condition. She also claimed it was unreasonable for the department not to make up her missed visits.
The contested hearing began on August 23, 2007, was conducted over six days and concluded on October 2, 2007. Extensive testimony was taken from the case worker, the various professionals involved in E.’s medical care as well as from petitioner. Petitioner augmented the appellate record to include the reporter’s transcripts of the hearings. Unfortunately, she neglected to augment the record to include the testimony taken on August 23, which included, among others, the testimony of the physician. Though we do not have the benefit of the physician’s testimony, we also do not conclude it is dispositive of the issues petitioner raises given the juvenile court’s comments regarding the physician’s testimony and our review of the record. Consequently, we consider the record adequate for our review.
Of the many witnesses, the case worker’s testimony bears most directly on the issue of missed visits. She testified that she attempted to increase visitation in June 2007. She presented a plan to conduct visitation at the department facility and provide nursing supervision by having the onsite public health nurse available as well as the foster mother in the waiting area. After petitioner’s visits were terminated at the bonding home, visitation occurred at the department facility where the public health nurse looked in on visits in July. The public health nurse testified he observed E. sleeping both times he looked in on E. He, like several others who testified, found it unusual that E. would sleep so much during visitation since none of her medications caused drowsiness. The nurse attributed it to E.’s tendency to “check out” and fall asleep when she is uncomfortable in her situation.
The bonding nurse testified about the incident with the oxygen tank, which she stated occurred in February 2007. She acknowledged that petitioner handled the problem but felt that petitioner should have alerted her instead of contacting the foster mother. On cross-examination, she admitted that had she known, her only recourse would have been to do what petitioner did and contact the foster mother. In her testimony, the foster mother stated petitioner had called her because the oxygen tank was not turned on and confirmed that petitioner handled the problem on her own.
The bonding nurse also testified on cross-examination that she observed petitioner successfully give E. a tube feeding and that petitioner told her when she gave E. medical treatment.
The early childhood specialist testified she had been seeing E. since 2005 and that petitioner did not participate in the sessions unless asked to and did not ask questions. The foster mother, on the other hand, actively participated and asked questions.
E.’s mental health therapist of 13 months testified she no longer had any concerns about increasing visitation to unsupervised or even returning E. to petitioner’s custody based on petitioner’s relationship with E. She felt petitioner was benefitting from the parent therapy group and dyadic therapy and needed more dyadic therapy. She was not sure how much more therapy petitioner needed but estimated she needed more than three months but possibly no more than six months.
Petitioner testified at length about her contentious relationship with the bonding nurse and her negative experiences at the bonding home. She also testified as to her knowledge of E.’s medical diagnoses and specific medications and treatment. She stated she believed she could care for E. without the supervision of a nurse but acknowledged E.’s bond to her foster mother. Petitioner described how E. became distressed and asthmatic when she wanted her foster mother who she called “Mommy.” E. only calmed down when she was back in her foster mother’s care.
At the conclusion of the hearing, the court commented on the physician’s testimony and the questioning by petitioner’s attorney that the physician’s opinion was based on the negative reports of the other health professionals. The court stated:
“[W]hat has stayed in the court’s mind is that even though [the physician] received information, and one of the sources being the nurse at the bonding home and what, if anything, occurred at the bonding home concerning [petitioner’s] ability to demonstrate her competency in regards to her medical training and meeting [E.’s] needs. It was still abundantly clear from [the physician’s] testimony that it was her direct interaction with [petitioner] that was of significance to [the physician]. That she did consider all the sources of information, but it was mother’s interaction with [the physician] at the number of appointments that [petitioner] actually was present.”
The court also concurred with the observations of the witnesses that, while petitioner was able to articulate her understanding of E.’s medical condition and appropriate treatment, she was unable to demonstrate it. The court also noted that while the department’s efforts at making up missed visitation were not perfect, the court could not find under the circumstances that its efforts were unreasonable. Having made its comments on the evidence, the court found it would be detrimental to return E. to her parents’ custody, that petitioner and A. were provided reasonable services but that petitioner’s progress was moderate and A.’s progress minimal. Consequently, the court terminated their reunification services and set the section 366.26 hearing. This petition ensued.
DISCUSSION
Petitioner claims the court’s decision to deny her unsupervised visitation was driven by the physician’s opinion and that the physician’s opinion was based on false information provided by the bonding nurse. Further, because unsupervised visitation was critical to bonding with E., the court’s decision undermined her ability to successfully reunify. Consequently, she argues, the court erred in not continuing services. We disagree.
Preliminarily, we note that the court’s order denying petitioner unsupervised visitation was issued in May 2007 and was not appealed. Consequently, it is a final judgment and petitioner is barred from now challenging the court’s decision. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812.) That said, even if petitioner had preserved the issue for review, we would not have reversed the juvenile court’s order on the facts of this record. The court enjoys broad discretion in fashioning a visitation order that will serve a child’s best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Given the concerns and consensus of E.’s medical team, we would not have found an abuse of discretion in the court’s decision to continue supervised visitation.
Having waived her right to challenge the court’s visitation order, petitioner is limited to those issues arising from the findings and orders made by the court at the setting hearing. Petitioner apparently seeks to challenge the reasonableness of services through what she claims are false reports by the department and perjured testimony of the bonding nurse. Specifically, she accuses the bonding nurse of lying about the oxygen tank incident, about petitioner wanting to take E. out into the cold weather, about not observing petitioner administer medical treatment, and about refusing to let the bonding nurse observe her during visitation. Because all of this information was admitted into evidence through the department’s report and covered extensively in testimony, petitioner is essentially asking this court to reweigh the evidence. However, it is not our role to reweigh the evidence. (In re Walter E. (1992) 13 Cal.App.4th 125, 139-140.) Rather, we determine whether substantial evidence supports the juvenile court’s findings and orders based on the evidence before it. (Ibid.) In this case, we conclude that it does.
The findings from which this petition arises were issued from an 18-month review hearing continued under section 352. Having already extended services beyond the 18-month limitation of reunification, the juvenile court’s options at this point were very limited. In fact, the court’s only option was to terminate services and proceed to permanency planning unless it found reasonable services were never provided to petitioner. (§ 366.26, subd. (c)(2)(A); Renee J. v Superior Court (2002) 96 Cal.App.4th 1450, 1466.)
In this case, the reasonableness of services centered on the provision of medical training and increasing the duration or frequency of supervised visitation. The record reflects that petitioner received extensive medical training. Further, her visits would have increased had she not antagonized the bonding nurse. In fact, much of petitioner’s difficulty throughout the reunification process stems from her own attitude, which is reflected in her petition: “I know more about [E.’s] medical conditions than anyone else.” (Writ pet. at p. 11; original underscoring.) We conclude the evidence supports the court’s finding petitioner was provided reasonable services.
Having found petitioner was provided reasonable services, the only other basis for continuing services would have been a discretionary call that continued services would serve E.’s best interest. (§ 352, subd. (a).) In considering the child’s best interest, the court must give substantial weight to the child’s need for prompt resolution of his or her custody status and the need for a stable environment. (Ibid.)
In this case, there is no evidence that continued services would in any way serve E.’s best interest. E. was strongly bonded to her foster mother who wanted to adopt her. Further E. was only becoming increasingly distressed and consequently more at risk of medical complications in petitioner’s presence. For the reasons set forth above, we find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.