Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HJ05001070, HJ05001071, HJ05001072
NEEDHAM, J.
R.P. (R.), mother of A.P., Ni.P., and Na.P., has filed a writ petition under rules 8.454 and 8.456 of the California Rules of Court, seeking reversal of the juvenile court’s order that set a hearing under Welfare and Institutions Code section 366.26. We deny R.’s petition and her related request for a stay of the juvenile court proceedings.
Except where otherwise indicated, all statutory references are to the Welfare and Institutions Code.
I. FACTS AND PROCEDURAL HISTORY
On April 14, 2005, the Alameda County Social Services Agency (Agency) filed a petition pursuant to section 300, subdivisions (b) and (d), alleging that: the minors’ father hit them with a belt; they were afraid of the father due to his angry outbursts; the father had molested the minor A.P. by fondling her breasts; the father had molested two nieces in 1998 and 1999; R. failed to protect A.P. from molestation despite her knowledge of the 1998 molestation; and A.P. was afraid of her father and refused to return to his home. The minors were detained.
After a contested hearing on June 2, 2005, the juvenile court sustained the allegations of the petition and ordered reunification services for both parents.
At the six-month review hearing on November 16, 2005, it was noted that R. had moved to a residence separate from the father, had completed a parenting class, and was participating in individual therapy. The court found that reasonable reunification services had been provided, observed that R.’s progress toward alleviating or mitigating the causes necessitating the dependency had been substantial, and adopted the Agency’s recommendation to continue services.
By the time of the 12-month review hearing on May 3, 2006, R. was permitted daily unsupervised visitation with her children and participated in weekly family therapy sessions. The family therapy sessions began in March 2006 but stopped in May 2006 due to the unavailability of the therapist. The juvenile court found that the Agency had provided reasonable reunification services and that R.’s progress to that point had been substantial. The court adopted the Agency’s recommendation to continue services.
The 18-month permanency hearing commenced on October 5, 2006. The court followed the Agency’s recommendations concerning the father, found that reasonable reunification services had been provided, and continued the uncontested hearing as to R. Family therapy had not re-commenced, despite an order on September 1, 2006, that it should begin “forthwith.”
At the continued 18-month permanency hearing on January 25, 2007, the court set the matter for a contested hearing. The contested 18-month permanency hearing began on March 15, 2007, was continued several times without objection, and concluded on August 9, 2007. The hearing included testimony by the child welfare worker, R.’s individual therapist, the family therapist, and the minor A.P., as well as R.
Child welfare worker Michelle Morineau testified that R. received reunification services including parenting classes, individual counseling, and a family therapy referral. R. was first provided with a referral for family therapy in August 2005, and the children and R. were to proceed with family therapy when their individual therapists recommended it. Family therapy began with therapist Fran George in March 2006 and continued until May 2006, when George became unavailable. George assured Morineau that another therapist in George’s agency would be assigned, but the assignment was stalled by difficulties that may have included R.’s schedule. An additional referral for family therapy was made in September 2006, but family therapy did not actually commence, which raised a concern that the family was not following through.
Family therapist Adrienne Oberstein testified that she had been working continuously with the family between January 2007 and August 2007, with the exception of some scheduled sessions that were cancelled by the family. Oberstein was concerned that there would be an emotional risk to the children if they were immediately returned to R., because the family was still unable to discuss the issues addressed in therapy on their own without “getting into fights.” In addition, Oberstein testified, the family therapy had not yet addressed future issues or the possibility of the children at some point living with R. again.
A.P. testified that she continued to have recurrent, strong fears that her father would come around and that R. would not protect her.
R.’s individual therapist, Marjorie Chaset, testified that she began seeing R. in September 2005 on a weekly basis, and continued to see her on a less regular basis. According to Chaset, R. disclosed that she had been in contact with the father, both face-to-face and by telephone, on a couple of occasions including within the previous six months.
R. testified that she visited overnight with the children in a hotel beginning in May 2007. At the time of the hearing she lived in a one-bedroom apartment, which the father helped her move into. R. indicated that she would get a larger place if the children came to live with her. R. also testified that she was not having the children over as frequently as possible because her residence was not safe for them.
Documentary evidence admitted by the court included letters from the children, in which they described why they would not feel safe returning to R.’s home.
At the conclusion of the hearing on August 9, 2007, the juvenile court found that return of the children would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being, based on the facts contained in the reports of the Agency, including that R. had not made substantial progress in complying with the case plan, and had not alleviated or mitigated the causes necessitating out-of-home placement. The court found that reasonable reunification services had been provided, terminated services to R., and set a hearing pursuant to section 366.26 to take place on December 6, 2007.
R. filed her petition in this court and requested a stay of the juvenile court proceedings. We issued an order to show cause, and the Agency filed its opposition to the petition and R.’s request for a stay. The matter was placed on our November calendar, and oral argument was not requested.
II. DISCUSSION
The order that is the subject of R.’s petition was issued after the 18-month permanency review hearing held pursuant to section 366.22. (See § 366.21, subd. (g).) At an 18-month permanency review hearing: “The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. . . . 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. . . . [¶] If the child is not returned to a parent or legal guardian at the permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, guardianship, or long-term foster care is the most appropriate plan for the child. . . . The court shall determine whether reasonable services have been offered or provided to the parent or legal guardian.” (§ 366.22, subd. (a), italics added.)
R. contends: (1) the court erred in failing to return the children to her care, because substantial evidence did not support the court’s finding that return of the children would create a substantial risk of detriment to the children, and the court erred in finding that she had only made partial progress on her case plan; and (2) substantial evidence did not support the court’s finding that the Agency had provided reasonable reunification services. We address each in turn.
The juvenile court obviously took its task at the 18-month review hearing very seriously. As the judge stated on January 25, 2007: “[T]his is not a case where we should be at the point of separating on a permanent basis the children from their mother and I want everyone to know that I am extremely reluctant to do that. [¶] . . . [¶] The place for these children is in their home. The reason for them not to be in the home is only one reason and that is if it is not safe, and I am going to need to be convinced that it is not safe before I terminate this parental relationship.” (Italics added.)
A. Substantial Risk of Detriment to the Children
In reviewing the juvenile court’s finding that return of the children would create a substantial risk of detriment, we apply the substantial evidence standard. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 879-881.)
1. Prima Facie Case of Detriment
Part of the juvenile court’s reasoning for concluding that the children would face a substantial risk of detriment if returned to R. was that R. had not “made substantial progress in complying with the case plan,” and had not “alleviated or mitigated the causes necessitating out-of-home placement.” “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.” (§ 366.22, subd. (a).)
Substantial evidence supported the juvenile court’s conclusion that R. failed to make substantial progress in complying with the case plan as of the 18-month review hearing.
R.’s most recent case plan included a requirement to maintain a relationship with the children by following the conditions of the visitation plan. Visitation is an important component of reunification. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) By the time of the conclusion of the 18-month hearing in August 2007, on a number of occasions R. had failed to visit with her children in her home and refused overnight visits with them in her home. The juvenile court questioned R.’s reasons for her refusal to have the children in her home, particularly since such visits would alleviate the suspicion that the father was there at times as well.
“Q. Okay. This case has been going on for a long time, hasn’t it? [¶] A. Yes. [¶] Q. And you and I have had discussions during the course of the case about the suspicion that the kids have that you’re not interested or anxious to have them come over and spend time in the home because they think their father is still around. [¶] We’ve had those discussions, right? [¶] A. Yes. [¶] Q. And now, here we are in August of 2007. Why is it that you’re not having the kids over as frequently as possible, if only to show them that there’s nothing to be suspicious about? [¶] A. What I mentioned earlier is my place is not a safe place for them right now. [¶] Q. Well, okay. But is that in your mind a sufficient reason to allow these suspicions to continue and build up and go on? [¶] A. Well, it’s my honest answer. [¶] Q. Really. [¶] . . . [¶] So, you felt that the place was so dangerous that rather than just have one or more of them over to spend the night on the couch or whatever, you’d rather allow those suspicions which have been going on really throughout the entire length of this case to continue to exist? [¶] A. Well, this one just happened between May and when recent shootings happened in my apartment complex. [¶] Q. And what about just coming by during the day to say see the dog or something like that? Do you have a problem with them doing that? [¶] A. No. [¶] Q. Is it too dangerous for that? [¶] A. No. [¶] Q. Yes? [¶] A. No, it isn’t. [¶] Q. Okay. Well, I have also heard testimony to the effect that there was a request along those lines made and you made another excuse for it not to happen. [¶] You recall that happening? [¶] A. No. [¶] Q. You don’t remember? [¶] A. I don’t recall it.”
In addition, R.’s most recent case plan required her to obtain resources to meet her children’s needs and provide a safe home, and further required her to obtain and maintain a stable and suitable residence for her and the children. Despite nearly two years of individual therapy and around 10 to 11 months of family therapy (including the immediately preceding period between January and August), R. had still not addressed a plan for the children to return to her physical custody. Although she no longer lived with the father, R. still lived in a one-bedroom apartment, in an area she did not consider safe for the children, and where she had most recently been refusing to visit with them.
R. contends that she has complied with her case plan and the children should therefore be returned to her. In particular, she asserts that the evidence did not support the court’s finding that her progress toward alleviating or mitigating the causes necessitating the dependency had only been partial, because she completed everything she was required to do by the beginning of the 18-month review hearing in October 2006: she lived in a separate residence from the father, visited daily with the children, participated in individual therapy, participated in family therapy, and completed a parenting class. Our role, however, is not to reweigh the evidence. Notwithstanding the evidence R. cites, the other evidence we reference above is substantial and sufficient to support the juvenile court’s finding and a presumption of detriment.
In any event, the question of whether R. had complied with her case plan only determines whether there is a prima facie showing of detriment. Even if a parent complies fully with the case plan, detriment still can be shown by other evidence. Moreover, it is the well-being of the children at the time of the review hearing, not whether the parent has completed the case plan or corrected the problem necessitating dependency, that determines whether the children should be returned to parental custody. (In re Joseph B. (1996) 42 Cal.App.4th 890, 901.)
2. Direct Evidence of Detriment to Physical and Emotional Well-Being
Admitted into evidence were letters written by the three minors. In these letters, the children explained that they would not feel safe returning to R.’s home because they: (1) suspected, based on a number of experiences, that R. had still been in contact with their father; (2) believed that R. did not fully accept that their father had molested A.P.; and (3) were concerned that their father would try to call or visit them and R. would not stand up to him. The minors referenced indications that the father had been in R.’s home and in contact with her, such as R.’s purchase of personal items used by the father, including nasal spray, and R.’s admission that the father helped her move into the home (indicating that he knew where she lived and where the minors would be).
In addition, A.P. testified in chambers about her strong continuing fears that the father would come around and R. would not protect her.
Furthermore, the family therapist testified that there would be an emotional risk to the children if they were immediately returned, because the family admitted they are unable to talk on their own about the issues they discuss in therapy without fighting. Substantial evidence supported the juvenile court’s finding that the children would suffer detriment if returned to R.’s home.
R. argues that no one, including the Agency, felt it necessary to have the children participate in individual therapy to address any issues the children had. From this she speculates, without any authority in the record, that “[t]he reason the Department did not refer the children to individual therapy is that the concerns raised by the children were not real, corroborated in any way, and without any support.” She further argues, in bold-face underlined text, that the court’s finding of substantial risk of detriment is supported only by “the children’s imagination and baseless accusations which lack any foundation or support.” In addition, she urges, the children’s letters were the product of R.’s sister, who, she states in her petition, is the caretaker of one or more of the children.
R.’s arguments are unavailing. In the first place, the children’s concerns were not unsupported, as they testified to specific facts underlying their belief that the father would be allowed into R.’s home when the children were there. Furthermore, in addition to A.P.’s testimony and the children’s letters, the family therapist testified that the children would face an emotional risk if they were returned. In any event, while R. argues an inference from the evidence that is contrary to the inference drawn by the court, our task is not to reweigh the evidence or select between competing inferences, but merely to determine if there was substantial evidence from which the juvenile court judge could reasonably reach the conclusion he did. In this regard the evidence was sufficient.
Because there was substantial evidence that return of the children to R. would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being, the juvenile court did not err in refusing to return the children to R.’s physical custody and ordering the section 366.26 hearing. (§ 366.22, subd. (a).)
B. Reasonable Services
To be reasonable, the reunification plan should be tailored to meet the family’s circumstances, offer services designed to remedy the problems that led to loss of custody, provide for reasonable contact with the parent, and be backed by reasonable efforts on the part of the Agency to assist the parent if compliance becomes difficult. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010-1011 (Mark N.).) We review a finding that reasonable services were provided or offered for substantial evidence. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1467.)
Substantial evidence supported the conclusion that the Agency provided reasonable reunification services. The services included 23 months of individual therapy for R., individual therapy for the children, a course of parenting classes for R., and about 10 or 11 months of family therapy (March-May 2006 and January-August 2007).
R. points out that there was a gap in family therapy between May 2006 and January 2007. As of the hearing on August 9, 2007, however, family therapy had been occurring continuously for seven or eight months. Furthermore, family therapy was just one aspect of the overall package of services provided to the family over the course of more than two years. Parents in dependency cases are generally entitled to a maximum of 18 months of child welfare services, starting at the time of removal. (§ 361.5, subd. (a); In re N.M. (2003) 108 Cal.App.4th 845, 852.) Here, the minors were removed on April 14, 2005, and services continued to the time of the hearing on August 9, 2007—about 28 months later. Substantial evidence supported the juvenile court’s finding that reasonable reunification services were provided.
R.’s reliance on In re Alvin R. (2003) 108 Cal.App.4th 962 (Alvin R.) is misplaced. In Alvin R., the key to the reunification plan, including visitation between the minor and his father, was for the minor and father to have joint counseling. (Id. at pp. 965, 972.) According to the original plan, however, conjoint counseling would not begin until after the minor had received individual counseling. (Id. at p. 965.) Despite numerous continuances to allow the department to arrange individual counseling for the minor, it failed to do so, offering no explanation other than to blame the maternal grandmother. (Id. at p. 972.) The court observed that the department had done nothing to overcome the difficulties posed by the maternal grandmother, besides referring the minor to a therapist who had no available time. (Id. at p. 973.) As a result, Alvin was unable to participate in individual therapy or family therapy and there was little visitation between father and son, while the father had done all he could under the case plan. (Ibid.) The court concluded that reasonable reunification services had not been provided. (Id. at p. 975.)
Alvin R. is distinguishable from the matter at hand. The parent in Alvin R. never received any of the family therapy that was key to reunification. Here, in stark contrast, R. received 10 months of family therapy, as well as all of the other reunification services referenced above, over the course of more than two years of services.
Moreover, while a finding regarding reasonable services must be made at the 18-month permanency review hearing, such a finding is not required for the court to set the section 366.26 hearing. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1511-1512; Mark N., supra, 60 Cal.App.4th at pp. 1015-1016; see § 366.22, subd. (a) [if minors are not returned to the parent at the permanency hearing because return would create a substantial risk of detriment to the minors, the court “shall order” the section 366.26 hearing].) Indeed, while the court in Alvin R. ordered additional reunification services, it also pointed out that “[t]he remedy is not to return the child to the parent in spite of a finding of a substantial risk of detriment to his emotional well-being.” (Alvin R., supra, 108 Cal.App.4th at p. 975, italics added.)
R. fails to establish error in the trial court’s setting of the section 366.26 hearing.
R. concedes that the remedy for the Agency’s failure to provide reasonable reunification services is a finding that reasonable services have not been provided and an order for the continued provision of services, beyond the 18-month review hearing. Because we conclude that the court’s finding of reasonable services was supported by substantial evidence, and setting the section 366.26 hearing was not erroneous, we need not address her request for additional services further. (See § 366.22, subd. (a); Cal. Rules of Court, rule 5.720(c)(1) [court must terminate reunification services at 18-month review hearing if § 366.26 hearing is set].)
III. DISPOSITION
The petition and request for stay are denied.
We concur. SIMONS, Acting P. J., GEMELLO, J.