Opinion
E042592
5-21-2007
PAULINA R., Petitioner, v. THE COUNTY OF SAN BERNARDINO, Respondent; SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Real Party in Interest.
Monica Cazares for Petitioner. No appearance for Respondent. Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
Petitioner Paulina R. (Mother) is the mother of two-year-old Alize R. Mother filed this writ petition pursuant to California Rules of Court, rules 8.452 challenging an order setting a Welfare and Institutions Code section 366.26 permanency planning hearing as to the child. Mother contends that the juvenile court erred in (1) denying her request for a continuance and (2) finding that return of the child to Mother would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. For the reasons provided below, we reject Mothers challenge and deny her petition.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
In September 2005, a petition was filed by the Department of Childrens Services (DCS) on behalf of Alize R., who was seven months old, and her half sibling, C.R., who was three years old, pursuant to section 300, subdivisions (b) (failure to protect), (e) (severe physical abuse of child under five) and (g) (no provision for support). The petition was filed following severe physical injuries sustained by Alize while left in the care and custody of Mothers boyfriend.
C.R. was subsequently returned to the care of Mother, and his dependency petition was dismissed. Therefore, he is not a party to this appeal.
In the early afternoon of August 13, 2005, the boyfriend called Mother to report that Alize did "not look[] good" and that she was throwing up. When Mother went home and saw Alize shaking, they took her to Arrowhead Regional Medical Center, where Alize continued to have seizures. Alize was subsequently transferred to Loma Linda University Medical Center (LLUMC). Medical examinations identified a possible subdural hematoma, a left skull fracture, and a large retinal hemorrhage. Alizes body and head/eye movements were not normal. Medical professionals deemed the injuries "abusive head trauma," and a neurology consultations findings were "suggestive of non-accidental trauma." A public heath nurses (PHN) noted that Alizes condition warranted a "medically fragile home" placement upon discharge. The social worker reported that upon discharge Alize would need "continued follow-up care . . . to Audiology, Opthalmology, Neurology, Physical Therapy, Occupational Therapy, Speech and Inland Regional Center [IRC] . . . ."
Mother gave several stories on how Alize sustained her injuries and appeared to be in denial that her boyfriend could have caused the injuries. Mother had one prior referral with DCS, in May 2005 for general neglect, which was unfounded; she also had a history of domestic violence with C.R.s father.
On September 6, 2005, the juvenile court ordered Alize and C.R. formally removed from Mothers custody and placed in a suitable home. DCS was ordered to provide Mother with reunification services.
The jurisdictional/dispositional hearing was held on September 27, 2005. After Mother submitted a waiver, all the allegations except numbers b.3 (Mother engaged in domestic violence with C.R.s father) and e.6 (Mother should have known that Alize was at serious risk while left in her boyfriends care) were found true. The children were declared dependents of the court, and Mother was ordered to participate in reunification services. DCS was ordered to facilitate medical training for Mother.
Alize was discharged from LLUMC on September 29, 2005. Though DCS had been hoping to place Alize with her maternal grandparents, Alizes medical fragility dictated that she be placed with Mrs. P., where she could be adequately cared for. When the social worker disclosed the severity of Alizes injuries, the long-term effects of her injuries, and the intense level of care required, the maternal grandmother appeared surprised to learn that Alize would require full-time care and that she had to be taken to doctor and rehabilitation appointments frequently. Alizes medical information showed a diagnosis of traumatic brain injury, skull fracture, left retinal hemorrhage, left paralysis, and seizures. She needed physical therapy twice a week and occupational therapy and speech therapy three times a week. Alizes daily schedule required her caretaker to provide 17 ten-minute therapy sessions. Even a month later, Alize still required round-the-clock "consistent and comprehensive" care. Because it was questionable whether the grandparents had the ability and resources to provide the extensive care Alize needed, it was agreed that Alize would remain in foster care.
On October 3, 2005, Mother was referred for psychological services. She contacted the psychologists on October 24, 2005, and had her first appointment on November 3, 2005. Mother told DCS that she had begun parenting education through an adult school, but she did not provide any documentation of her attendance. The social worker suggested that the grandparents be provided with education at IRC and that relatives attend CPR training. The social worker also directed Mother to attend all of Alizes doctor appointments.
On November 1, 2005, the court found relative placement of Alize was not appropriate at that time and continued her in the care of Mrs. P. The social worker was ordered to continue to advise Mother of Alizes medical appointments and to provide her with medical training.
By March 2006, Mother had made substantial progress in her case plan, and the social worker recommended returning C.R. to Mothers care. Mother had completed a parenting program and 10 weekly sessions with a licensed clinical psychologist. In addition, Mother regularly began to attend Alizes medical appointments in December 2005 and was attending Alizes weekly therapy appointments. Mother had also completed CPR training.
Nonetheless, the social worker opined that Mother had "yet to learn the extent of the commitment needed to help insure Alizes continued progress." Mothers psychologist had noted that Mother initially was "sidestepp[ing]" the issue of Alizes permanent brain damage with an "avoidant, trivializing approach . . . ." After nearly six months with Mrs. P., Alizes condition remained "critical" with "major developmental delays." However, she was making progress with therapy despite "showing evidence of brain damage . . . ." A PHN emphasized that Alizes seizure medication "must not be stopped as . . . seizures . . . may cause further brain damage." Under a daily exercise regimen performed by Mrs. P., Alize was able to sit with assistance, had visual tracking from right to left, was holding her bottle, was rolling over, and had rudimentary language ability. The social worker developed a transition plan for Alize to be placed with the maternal grandparents and informed Mother and her relatives that "reunification with Alize will take a conservative and slow path due to the extent of Alizes injuries and the effort that needs to be expended for her care."
At the six-month review hearing in March 2006, the juvenile court found that Mother had made substantial progress in her case plan. Because there was "a probability" that Alize would be returned to Mother within six months, the court ordered that services with supervised visitation be extended. The court also approved the plan to transition Alize to Mothers care.
By September 2006, with continued intensive therapy, Alize was showing "a good deal of improvement in her physical and cognitive abilities." She was able to stand with the assistance of braces and walk with the use of a walker. She also could sit independently, crawl, and pull herself to a standing position. PHN Joan Williams reported that Alizes continued progress was "dependent on conscientious adherence to therapy and medical protocols." PHN Williams also noted that Alize would need lifelong treatment with her caregivers assistance and that her needs would change as Alize aged. PHN Williams noted, "The caregivers must be cognizant of this important issue, as she will require caregivers that can actively and professional advocate for Alize[]s best interest."
However, despite receiving nearly 12 months of services, Mother had "not shown that she can manage or competently care for Alize." A physical therapy report stated Mother, despite encouragement, had been inconsistent in demonstrating handling techniques and had been retrained on several different occasions on home exercises. Both Mrs. P. and the physical therapy staff reported that Mother did not correctly perform Alizes daily exercises. It had been repeatedly documented over the previous year that Mother had not been able to comprehend or perform the exercises. In addition, Alize had been returned from visits without her braces because Mother had difficulty putting them on correctly. Mother also became upset when Alize was uncomfortable with the physical therapy and showed anger when asked to attend to the task. Additionally, Mother was encouraging Alize to stand and walk, despite medical advice to the contrary. The social worker opined Mother did not understand the "systematic process" of physical therapy.
PHN Williams and the social worker were also concerned about Mothers denial of the extent of Alizes injuries and future functioning. The social worker questioned whether Mother could manage Alizes care alone due to her immaturity and also having C.R. to raise. The earlier phased plan to return Alize to Mothers care under the grandparents supervision had not come to fruition because the grandparents failed to attend Alizes physical therapy sessions or medical appointments and relied on Mother to inform them of Alizes progress. Mothers style of minimizing problems and displaying a positive outlook, in the social workers opinion, created a problem in that it prevented Mother from addressing Alizes prognosis and C.R.s behavior. Mothers counselor also noted that Mother, who had been inconsistent in keeping her counseling appointments, tended to minimize problems.
Thus, while acknowledging that Mother had completed most of her requirements under her case plan over the 12 months of services, the social worker recommended terminating those services. The social worker concluded Alizes permanent plan should be changed to guardianship with the grandparents, who should "attend the therapy and medical sessions" and "prepare to be the primary caretakers for Alize . . . ."
When Mother objected to the above recommendation, the parties were ordered to mediation. On September 19, 2006, the parties agreed to extend further reunification services to Mother, based on detailed assurances by Mother and the grandparents. All of the requirements were spelled out carefully in a letter to Mother, the number one condition being that Mother must gain competence in learning Alizes daily exercises. DCS reserved the right to recommend adoption if reunification efforts did not succeed.
On September 27, 2006, the juvenile court concurred with the mediation agreement, describing Mothers progress as "moderate" and finding "reunification with mother remains as substantial probability . . . ." The case plan was updated accordingly.
In October 2006, the court ordered unsupervised visits with Mother. On November 21, 2006, Alize apparently suffered a seizure during an unsupervised visit with Mother, and Mother failed to take appropriate action and showed poor judgment. In addition, when Mother returned Alize to Mrs. P., the foster mother noticed Alize had a red and irritated eye. Mother reported that she had placed a home remedy into Alizes eye. As a result, on December 4, 2006, the court ordered that weekly visits with Mother be supervised. In January 2007, the court denied Mothers application for liberalized visitation.
In January 2007, Alize continued to have significant developmental delays. She was still receiving occupational and physical therapy twice a week to "reorganize and rehabilitate" the brain. She was extremely cross-eyed, and corrective surgery was anticipated. Alize had to be supervised whenever she ate, as she choked very easily. In addition, Alize still had to wear leg braces, and Mrs. P. continued to perform six 30-minute physical and occupational therapy sessions on Alize every day. It was due to Mrs. P.s continued care that Alize was progressing. Alizes pediatric neurologist noted that if these interventions were stopped, Alizes progress would deteriorate, and she would regress back into a nonfunctional state.
Meanwhile, the grandparents were minimizing the severity of Alizes injuries, and staff had to reiterate to them numerous times how severe and significant the injuries were. In fact, the maternal grandfather was in such great denial of Alizes injuries that he did not even believe Alize suffered any injuries or was abused. The maternal grandparents also had not become familiar with the ongoing treatment for Alize and had failed to regularly attend Alizes therapy sessions and medical appointments.
Mother had consistent contact with Alize about four times a week. She regularly attended Alizes medical appointments and therapy sessions; however, despite receiving additional training, as of January 2007, it appeared that she was not benefiting from the sessions. After many months of training, both Mother and the maternal grandmother still demonstrated an inadequate understanding of Alizes medical treatment. However, Maria Marquez, a teacher at IRC, verbally reported that the entire family was "learning a lot" and "appear[ed] to benefit," despite Mothers distracting efforts to play with Alize during therapy, which Marquez described as "not beneficial."
The social worker discussed these problems with Mother, who acknowledged them and proposed that the grandparents assume legal guardianship of Alize. This proposal was declined due to the grandparents failure to become familiar with Alizes ongoing medical treatment. Alize was well bonded to her current caretakers (the Ps.), who wished to adopt her. Alize recognized Mother and appeared glad to receive her attention, but she appeared "to understand that [Mother] is only a visitor, as child seems glad when she is returned to [the P.s]."
Therefore, the social worker recommended that reunification services be terminated and a section 366.26 hearing be set with the intent of having Alize adopted by her current caretakers.
The contested 18-month review hearing was held on March 12, 2007. At the inception of the hearing, Mothers counsel requested a continuance to subpoena Marquez, the in-home service teacher at IRC. County counsel objected. The court denied the continuance request.
The court subsequently terminated reunification services and set a section 366.26 hearing. The court found by a preponderance of the evidence that custody by Mother continued to be detrimental to the child and that return of the child to Mothers care would create a substantial risk of detriment to the physical or emotional well-being of the child. The court found visitation not to be detrimental and continued supervised visitation for Mother.
On March 16, 2007, Mother filed a notice of intent to file a writ petition pursuant to California Rules of Court, rules 8.452 and 8.456.
II
DISCUSSION
A. Denial of Continuance
At the inception of the contested 18-month review hearing, Mothers counsel requested a continuance to subpoena Marquez. County counsel objected, arguing there was no good cause to continue and noting the case had been "set for trial for awhile. In addition there is an oral report from that person . . . ." The court denied the continuance request, pointing out that "[t]his case originally came on calendar February the 7th. It was set contested at that date. There was a settlement conference scheduled for February 23rd that was continued because mothers counsel was not prepared with an at-issue memorandum to the March the 5th. Its now March the 12th. Its been almost five weeks. I think thats adequate time to have subpoenaed a witness. Its certainly not good cause to continue the entire matter. Im going to deny the request for a continuance of the matter in its entirety. Well hear all of the testimony from the witnesses that are here today. At the conclusion of all testimony if . . . mothers counsel wishes to make an offer of proof I may reconsider [whether] or not I would delay any ruling in the matter to allow that one additional witness to come into court, but I would need an offer of proof as to what additional information that witness could provide over and above whats already set forth in the social workers report."
When testimony ended, counsel renewed the request, arguing Marquez "could certainly have some input as to the mothers benefit from the services that have been provided thus far." When the court asked mothers counsel for some offer of proof as to what Marquez would testify to that was different than that in the social workers report, counsel replied, "I believe that she would testify to her observations of the mothers ability to actually engage the child in the exercises that shes been instructed to do as well as her ability to incorporate what shes also learning in the physical and occupational therapy sessions which occur separately."
The court responded that it was inexcusable that counsel did not take appropriate steps to have the witness present at the hearing. The court also pointed out that based on Mothers failure to accept that her ex-boyfriend had caused Alizes injuries, the grandparents denial on Alizes injuries, and Mothers suspect credibility, the additional testimony from Marquez was unnecessary. The court explained, "[R]eally Ill have to indicate I dont find good cause to continue the case to get the testimony of this additional witness because I dont believe there is much of anything that witness could say even accepting your offer of proof that there has been some benefit by the mother that is going to overcome these other concerns I have. [¶] You know, mother clearly indicated, would the return of this child cause you any stress? No. I thin[k] the return of a child with those kind of medical needs would cause any reasonable parent stress and the answer that I would have liked to have heard is, yes, it will be stressful but I have a plan in place as to how Im going to meet that stress, how Im going to respond when I get stressed out about a child that requires multiple medical appointments, therapy appointments, has needs, has difficulties."
Without citation to any authority, Mother contends the court erred in denying the continuance request and in finding there was no good cause for a continuance.
Section 352, subdivision (a) provides that continuances shall be granted only on a showing of "good cause" and that "written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance." Moreover, "no continuance shall be granted that is contrary to the interest of the minor. In considering the minors interests, the court shall give substantial weight to a minors need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352, subd. (a); accord, Cal. Rules of Court, rule 5.550(a).)
The policy articulated in section 352 has been interpreted as "an express discouragement of continuances. [Citation.] The courts denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. [Citation.] Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. [Citation.]" (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180; accord, In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
Here, Mother establishes neither that the juvenile courts decision was arbitrary or capricious nor that the decision resulted in a manifest miscarriage of justice. Initially, we note Mother failed to comply with (or give a reasonable explanation of why she failed to comply with) the statutory requirement that requests for continuances be in writing and filed at least two court days before the hearing. (See § 352, subd. (a).) In addition, as observed by the court, Mother had plenty of time to subpoena Marquez as a witness. The court noted that it was "inexcusable" that Mother and/or her counsel did not take "appropriate steps to have this witness present for the hearing or even have a report." Moreover, "delay of the [section 366.26] hearing would have interfered with [the childs] need for prompt resolution of [her] custody status and [her] right to a permanent placement . . . ." (In re Ninfa S., supra, 62 Cal.App.4th at p. 811.)
The juvenile court did not abuse its discretion when it found a failure to show good cause and denied the oral request for a continuance at the section 366.26 hearing. (See In re Karla C., supra, 113 Cal.App.4th at pp. 179-180; In re Ninfa S., supra, 62 Cal.App.4th at pp. 810-811.)
Moreover, assuming error in denying the continuance, any error was harmless. (In re Jesusa V. (2004) 32 Cal.4th 588, 624-625 [violations of statutory rights are reviewed for harmless error pursuant toPeople v. Watson (1956) 46 Cal.2d 818, 836];In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122.) As the court noted, even if Marquez were to have testified, the court did not believe there was anything the witness could have said, "even accepting [the] offer of proof[,] that there has been some benefit by the mother that is going to overcome these other concerns I have." No one was disputing that Mother had some ability to do what she had been trying to learn for the last 18 months. However, Marquezs testimony would not have altered the courts mind in respect to whether the extent of Mothers abilities was sufficient to meet Alizes special needs. In other words, even if Marquez had testified, the court was not persuaded that Alize should be returned to Mothers care in light of Mothers credibility, the grandparents denial of Alizes injuries, and other concerns the court had concerning Mothers case. Under the harmless error analysis, we find that it was not reasonably probable that the outcome would have been more favorable had Marquez been present at the hearing as a witness. Marquezs appearance was not essential to the hearing, nor was her testimony the only means by which evidence in support of Mothers position could have been presented.
B. Finding of Detriment
Mother contends the juvenile court erred in finding that returning the child to her would create a substantial risk of detriment to the childs safety, protection, or physical or emotional well-being. She asserts that the court should have returned Alize to her, as she had substantially completed her case plan and had benefited from services. We disagree.
Under section 366.22, subdivision (a), at the permanency review hearing or the 18-month review hearing, the court must order the return of the child to his or her parents unless the court finds, by a preponderance of the evidence, that returning the child to parental custody would create a substantial risk of detriment to the safety, protection, or emotional or physical well-being of the child. (§ 366.22, subd. (a).) DCS bears the burden of establishing detriment. (Ibid.) "The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental." (Ibid.) In determining detriment, the court must consider whether the parent participated regularly, made progress, and cooperated or availed herself of the services provided in the court-ordered treatment plan. (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) Technical compliance with the requirements of the treatment plan, however, does not automatically result in achieving the goals and objectives for which the plan was designed. Other unresolved issues may prevent the childs return. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704-706, and cases cited therein; see also In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)
Our review of the juvenile courts finding that returning the child to Mothers custody would be detrimental is limited to considering whether substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, supports the finding. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75; Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625.) "All conflicts must be resolved in favor of the respondent and the reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court." (In re Albert B. (1989) 215 Cal.App.3d 361, 375.) Issues of fact and credibility are questions for the lower court. (Constance K. v. Superior Court, supra, 61 Cal.App.4th at p. 705.) If supported by substantial evidence, the courts ruling will not be disturbed on appeal absent a clear showing that the court exercised its wide discretion in an arbitrary, capricious, or patently absurd manner. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; Constance K., at p. 705.)
Substantial evidence supports the courts finding that although Mother had regularly participated in her court-ordered treatment plan and made "moderate progress towards alleviating or mitigating the causes that necessitated placement of this child," Mother did not demonstrate the skills and mind set necessary to parent a child with special needs without a substantial risk of detriment. The social worker testified that based on various medical opinions Mother had not benefited from the training and was not knowledgeable of Alizes needs. Throughout Alizes dependency, as noted in part II.A., ante, the record is replete with warnings that Mother was not absorbing or understanding either the extensive instruction and training she was receiving about proper therapy for Alize or how to render it in a firm and consistent manner. As noted by Mothers therapist and Mothers actions and statements to medical professionals, Mother displayed a consistent tendency to minimize and deny the cause and extent of Alizes problems. The court reasonably could infer that Mothers thinking would impair her capacity to recognize and protect Alize from dangerous situations, as had occurred when Mother was given a chance at unsupervised visitation. Though there is no question Mother loved her child, despite extensive counseling, at the time of trial Mother still did not accept that it was her boyfriend who had probably inflicted Alizes injuries or that Alize "has had permanent damage thats going to be there always." Meanwhile, Alize had been residing with her current caretakers, who had been providing Alize with exceptional care, since September 2005 and had grown very attached to them.
It would have been detrimental to return Alize to Mother, who could not provide her with a safe home or meet Alizes life-long special needs. (See In re John V. (1992) 5 Cal.App.4th 1201, 1213.) Despite Mothers accomplishments, it appears that the consensus of those experts who had contact with Mother and were aware of Alizes medical needs was that her daughter would be safe in her care only if they were supervised at all times. In other words, no one believed that Mother, on her own, could provide a safe environment for her daughter. Although Mother was complying with her case plan, the evidence supports the courts finding that the return of Alize into Mothers custody would have been detrimental under the current circumstances. We conclude that the trial court properly terminated reunification services and scheduled the section 366.26 hearing.
III
DISPOSITION
The petition for extraordinary writ is DENIED.
We concur:
HOLLENHORST, Acting P.J.
McKINSTER, J.