Opinion
A132289
09-07-2011
S. K., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO CITY & COUNTY, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County
Super. Ct. No. JD09-3088)
By this petition for an extraordinary writ (Cal. Rules of Court, rule 8.452) petitioner S.K., the mother of P.R., seeks to overturn the order of respondent Superior Court of San Francisco terminating reunification services and setting a hearing to terminate her parental rights in accordance with Welfare and Institutions Code section 366.26. S.K. contends that substantial evidence does not support the court's finding that reasonable reunification services were provided by real party in interest San Francisco Human Services Agency (Agency). Having already approximately 24 months of reunification services, petitioner contends the court abused its discretion by not ordering that even more services be provided to her. We conclude these contentions have no merit, and deny the petition on its merits.
Statutory references are to the Welf. & Inst. Code.
BACKGROUND
In April 2009, the Agency filed a petition in which it was alleged that P.R. should qualify as a dependent child by reason of numerous instances of petitioner's inability to provide for and protect the six-year-old child (§ 300, subds. (b), (g), (j)). In one of its reports to the court, the Agency summarized the family's general situation:
"In assessing this family, it is clear that there are several dynamics that have plagued this family including (1) mental health (2) homelessness (3) abuse and neglect (4) domestic violence and (5) allegations of sexual abuse. [Petitioner's] life has been chaotic. Her environment of constant abuse, neglect and domestic violence with the fathers of her children and other partners has proven to exacerbate her already fragile emotional and mental health. [Petitioner] has a history of conducting intakes with programs for her mental health issues and not following up. With the exception of her most recent participation in the sub-acute outpatient treatment program at Heritage Oaks, [petitioner] has refused to be consistent in receiving mental health treatment."
The court promptly ordered P.R. removed from petitioner's custody and detained. At an unreported combined jurisdictional and dispositional hearing conducted in January 2010, petitioner admitted the allegations of the petition, whereupon P.R. was declared a dependent child. The Agency was directed to continue providing reunification services to petitioner, who was advised that services could be terminated after 12 months if she failed to make progress with her reunification plan.
Two other children were removed at the same time, but only one—P.R.'s half-sister—remained in the dependency with him. The other went to Oklahoma and lives with his father. Neither of these minors figure in this proceeding. It appears that P.R.'s father was incarcerated at this time. Although he was involved in the dependency, he too is not a party to this proceeding.
Several reasons may explain the long period between the original filing and the dispositional hearing, which was scheduled for May 2009. One of the fathers of the other minors (see fn. 1, ante) was in prison, and the other father was living in Oklahoma. The petition was twice amended. P.R.'s father was successfully moving to be recognized as the presumed father. There was the obtaining of a court order for P.R. to receive psychotropic medication. Finally, petitioner and P.R.'s presumed father both lived in Sacramento, and at one point the Agency contemplated asking to have the dependency transferred to Sacramento.
The unreported combined 6-and 12-month review hearing was held in August 2010. The status review report prepared by the Agency for the hearing advised that P.R. was placed in foster care and was generally doing well. Petitioner was pregnant and living alone. Nevertheless, she was making sufficient progress with her case plan that the Agency recommended she be given an additional six months of reunification services. The juvenile court adopted this recommendation, finding that the Agency had provided reasonable services to this date.
Due to this case not following a rigid timetable, the hearing is variously described at points in the record as a 6-month review, a 12-month review, and a combined 5-and 12-month review. Because it is the most commonly used, and because it seems most chronologically accurate, we treat the hearing as combining the 6-month and the 12-month reviews.
The 18-month review hearing was originally set for October 2010, but it was not actually held until 2011. In its status review report, the Agency noted that petitioner had given birth to a daughter in September 2010. Petitioner had been examined by a psychologist, who concluded: "[T]he mother's core level of intellectual ability is in the borderline range. Individuals with low IQ have difficulties learning and processing new information, profiting from their experience and coping with novelty. She is liable to get overwhelmed easily when faced with complex tasks. [¶] . . . [¶] [T]he mother's low IQ and executive function weakness are chronic conditions. These are brain-based problems that will not improve over time. She will need to compensate for these weaknesses by developing good habits and routines that she can fall back in times of increased stress."
According to the social worker, the psychologist's prognosis was grim: "[H]e has no optimism that the mother can provide adequately for her children or keep them safe, without ongoing monitoring or support. When combined with her mental health problems, personality problems, and history of poor social adaptation the picture is even bleaker. The mother hasn't been able to look after herself independently. If she needs her own 'parental figure', she can't be a parent herself."
Concerning P.R. and his half-sister, the Agency's conclusions were as follows:
"[T]he history of neglect and abuse of the children is disturbing. . . . [P.R.] was just a year old in . . . 2003 when he was first removed from his mother's care . . . . The mother participated in services for almost two years. The case was finally dismissed in December 2005, with the belief that the mother was stable and could protect the children. However, her situation deteriorated so much that the children were removed again in March 2009, leading to the current dependency. This time, the children had been hurt and neglected to the point of very serious emotional and behavioral disturbances.
"The children have been in their current placements for about a year. They have made dramatic improvements and are doing well because of the structure and stability offered to them by their respective foster parents, along with the myriad of services provided to them . . . Both children continue to need the intensive support and services they currently are receiving.
"The mother has been putting in a lot of effort, has actively participated in services, and seems to be doing well in this area. [¶] . . . [¶]
". . . [T]he mother has a newborn baby to care for now and has chosen to live with the father of the baby, . . . who has an extensive criminal history. It is the assessment of this PSW [Protective Services Worker] that the mother will need to devote most, if not all of her time and efforts to take care of herself and raise this baby. [P.R. and his half-sister] require more structure and attention than the mother can provide to them. They have made many improvements since being out of the home and are connected and comfortable in their current placements."
"There is a need for continuing Court intervention and/or placement, and return of the child would be detrimental to the safety, protection, or emotional or physical well being of the child. The [Agency] recommends termination of services because the mother's mental health condition poses too great of a danger of keeping [P.R. and his half-sister] safe if they were to be in her care full time." The Agency therefore recommended that reunification services be terminated, and "set a § 366.26 Selection and Implementation Hearing in order to select and implement a permanent plan because the current caretaker . . . has expressed interest in becoming [P. R.'s] legal guardian."
Petitioner filed a trial brief opposing the Agency's recommendation. Petitioner asserted that the Agency "cannot prove that it would be detrimental to her children's physical and emotional safety to return them to her care. [¶] However, if the children are not ordered returned to her care, Mother should receive six additional more months of reunification services. The evidence adduced at trial will show that the services provided since the last review hearing (the 6-month review of August 4, 2010) have not been reasonable and the Agency, bearing the burden of showing clear and convincing evidence of reasonable services, cannot carry this burden. Therefore, if the Court cannot return the children to Mother at this juncture, the Court is compelled by law to extend Mother's services another six months so that reasonable services might be offered to her."
P.R.'s presumed father made the same arguments in his trial brief.
The 18-month review hearing was held on April 4, 5, and 6, 2011, and the matter was then submitted.
On May 12, the court filed something very rarely seen in this type of proceeding— a detailed 15-page order reviewing the evidence and discussing the legal issues. After eight pages of analysis, the court concluded that neither petitioner nor Mr. R. had the present ability to care for P.R. The court then determined that the reunification services provided by the Agency were adequate. The court's final conclusion was that, even if statutorily permitted, it would not be in the minors' best interests to continue providing reunification services to the parents. The pertinent portions of court's "Final Findings" were as follows:
"The conditions still exist which would justify the initial assumption of jurisdiction under W & I § 300 and such conditions would be exacerbated if supervision is withdrawn.
"A return of the children to their parents would create a substantial risk of detriment to the safety, protection and physical and emotional well-being of each child
"Reunification services to the parents are hereby terminated. The 18-month reunification period has elapsed. Assuming services could be extended beyond that period, there is no showing under W & I § 352 that an extension is in the best interest of the children.
"Reasonable services have been provided to the parents that were designed to aid the parents to overcome the problems which led to the initial removal and continued custody of the children.
"The placement of [the minors] is necessary and appropriate. The Agency has complied with the case plan by making reasonable efforts to return the children to a safe home and to complete whatever steps are necessary to finalize the permanent placement of the children. The extent of progress made by mother and father towards alleviating or mitigating the causes necessitating placement has been insufficient. The likely date by which the children may be placed for adoption or appointed a legal guardian is six months from the date of this Statement of Decision.
"By clear and convincing evidence, reasonable services were provided to mother and father.
"Dependency status of [the minors] are renewed. Each child is to remain in the care and custody of the Agency for placement, planning and supervision. The Court approves the present foster home for each child. It is in the best interest of the children to maintain contact with mother and father as recommended by the Agency as well as with each other."
DISCUSSION
"We begin with confirmation of the fundamental principle applicable here, a principle that cannot be repeated too often: 'It is difficult, if not impossible, to exaggerate the importance of reunification in the dependency system. With but few exceptions, whenever a minor is removed from parental custody, the juvenile court is required to provide services to the parent for the purpose of facilitating reunification of the family.' [Citations.]" (In re Derrick S. (2007) 156 Cal.App.4th 436, 444.)
The statutory authority governing the provision of reunification services is section 361.5. Its subdivision (a) reflects the different treatment afforded to minors above and below the age of three: "[W]henever a child is removed from a parent's . . . custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother. . . . [¶] (1) Family Reunification services, when provided, shall be provided, as follows: [¶] (A) . . . [F]or a child who, on the date of initial removal from the physical custody of his or her parent . . . was three years of age or older, court-ordered services shall be provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care. . . . [¶] (B) For a child who, on the date of initial removal from the physical custody of his or her parent . . . was under three years of age, court-ordered services shall be provided for a period of six months from the dispositional hearing . . . but no longer than 12 months from the date the child entered foster care." (§ 361.5, subd. (a)(1).)
The same statute further provides: "Notwithstanding subparagraphs (A) [and] (B) . . . of paragraph (1), court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent . . . if it can be shown, at the hearing held pursuant to subdivision (f) of Section 366.21, that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period." (§ 361.5, subd. (a)(3).) Finally, "Notwithstanding paragraph (3), court-ordered services may be extended up to a maximum time period not to exceed 24 months after the date the child was originally removed from physical custody of his or her parent . . . if it is shown, at the hearing held pursuant to subdivision (b) of Section 366.22, that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period." (§ 361.5, subd. (a)(4).)
Prior to setting a hearing to terminate parental rights, the juvenile court must determine, among other things, whether—using the substantial evidence standard— returning the dependent child to parental custody entails "a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. . . . The court shall also determine whether reasonable services that were designed to aid the parent. . . to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent . . . . In making its determination, the court shall review and consider the social worker's report and recommendations . . . [and] . . . shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself of the services provided . . . ." (§ 366.21, subd. (f).)
Petitioner correctly recognizes that a juvenile court's finding that a parent was offered adequate reunification services will be upheld if supported by substantial evidence. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) "The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]" (In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.)
Only reasonable, not ideal, services are required. (In re Jasmon O. (1994) 8 Cal.4th 398, 425.) The adequacy of services is to be determined in light of the unique circumstances of each case. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011; Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) "[I]n reviewing the reasonableness of the reunification services provided by the Department, we must also recognize that in most cases more services might have been provided, and the services which are provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
One of the witnesses at the 18-month review hearing was Dr. Molesworth, a psychologist who examined petitioner six times during the period from May to September 2010. He is the centerpiece of both of petitioner's contentions. Dr. Molesworth prepared a written report that he summarized within the context of stating why reunification would entail a substantial risk for the children's safety:
"First of all, her mental health diagnoses, and I'll explain what they include. First of all, one of my primary findings was that [petitioner] had a diagnosis of borderline intellectual functioning, which means that her I.Q., overall intellectual functioning, cognitive functioning is poor, which puts her at risk for problems with things like decision making, problem solving, adapting to complex problems as they present themselves, issues with making unwise choices, and poor judgment. [¶] This in itself is one area of concern. And her history reflects ongoing problems in these areas . . . .
"In addition, there is a history of mental health problems, which provides another layer of problems over these—what we call cognitive, brain-based problems. And there is a history of a diagnosis of posttraumatic stress disorder and personality disorders.
And these problems . . . in the past have been expressed in a variety of ways, including problems with regulating her emotions, impulsive behavior, propensity to get overwhelmed when difficult problems present themselves, and . . . also, especially with the personality issues, a propensity to get involved in relationships with men . . . where there is a substantial risk for violence and abuse." Dr. Molesworth "ruled out a diagnosis of mental retardation." His recommended treatment was "individual therapy" but not medication, "at this time." The only program he thought might be efficacious in mitigating petitioner's problems was a 12-month program of "dialectical behavior therapy." Dr. Molesworth's ultimate conclusion that reunification might be successful "for a short period of time, but I think it's inevitable that chaos will emerge at some point" when petitioner would suffer a "psychological meltdown." One of the reasons for his lack of optimism was petitioner's failure to benefit from previous therapeutic efforts.
However, in his report, which he labeled as only "preliminary," Dr. Molesworth was careful to note that "I have not come to a firm conclusion about [petitioner's] mental health diagnoses." An additional complicating factor was that P.R. is a "special needs" child, which would tax petitioner's ability to adapt and function.
Petitioner insists that the Agency did nothing to implement Dr. Molesworth's treatment recommendations, thus demonstrating that substantial evidence does not support the juvenile court's finding that the Agency provided reasonable reunification services to petitioner. We do not agree.
Dr. Molesworth's report was not completed until January 2011, four months after the combined six-and 12-month review hearing was held in August 2010. However, he had completed a preliminary version of his report that was incorporated into petitioner's case plan.
Petitioner's case worker, Wade Ichimura, was asked at the 18-month hearing whether, in light of "the recommendations by Dr. Molesworth," he would have "changed your recommendation in any way for therapy" for petitioner, and "is there any service you would have changed for her now." To both questions the case worker answered "No."
The Agency's opposition to this petition has a cogent recital of the circumstances refuting petitioner's contention. Having verified it against the record, we adopt it as our own:
"Here, the court considered ample evidence to support its finding that the Agency provided [petitioner] with reasonable services. . . . The Agency set up an intake appointment at [petitioner's] request at Jelani House, a residential treatment program for dual-diagnosis patients, but [petitioner] never followed through. [Petitioner] also participated in intake appointment for mental services through Mission Mental Health, but failed to follow up with recommended services. . . . . [¶] The Agency referred [petitioner] to a therapist early in the case in Sacramento, Michelle Irish, but [petitioner] never went to see that therapist. Instead, she secured her own therapist, Ms. Tucker, who never completed necessary paperwork for the Agency to pay her. Then, [petitioner] began therapy with Susan Miranda through Native American Health center in Sacramento and participated in therapy there for three months, from June through September 2010. In November 2010, [petitioner] began therapy with a new therapist, Juan Martinez, who she saw on a weekly basis. The Agency also gave [petitioner] the opportunity to participate every other week in family services through Seneca Center, but [petitioner] only attended twice. "
It is clear from the circumstances that petitioner often chose not to avail herself of services offered by the Agency—or chose to have them on her own terms. "Reunifications services are voluntary, and cannot be forced on an unwilling or indifferent parent." (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.) The parent receiving reunification services is not allowed to pick and choose the services he or she will accept, but must participate in the process in accordance with the case plan as implemented by the social services agency. (In re Raymond R. (1994) 26 Cal.App.4th 436, 441; In re Christina L. (1992) 3 Cal.App.4th 404, 414; In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.)
The fulcrum of both of petitioner's arguments is Dr. Molesworth's tentative embrace of the 12-month course of "dialectical behavior therapy." Petitioner first uses it to demonstrate that this was what the Agency should have offered from the beginning of the dependency. Because it did not, all other services offered are inadequate. Moreover, on the assumption that this new course of therapy would put her on her feet once and for all time, petitioner then argues that it justified extending the period of services beyond the statutory maximum.
Petitioner's first contention must fail because she assumes that compared to the 12-month course of "dialectical behavior therapy" all other services must stand condemned as inadequate. But she forgets that services can be reasonable even if not ideal. (In re Jasmon O., supra, 8 Cal.4th 398, 425; Elijah R. v. Superior Court, supra, 66 Cal.App.4th 965, 969.) We conclude that substantial evidence support's the juvenile court's determination that the Agency did offer petitioner reasonable reunification services.
Petitioner cannot attack the adequacy of the case plan approved at the dispositional hearing because she did not challenge it at the time. (In re Julie M. (1999) 69 Cal.App.4th 41, 47; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.)
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It is undisputed that by the time the 18-month review hearing petitioner had already received reunification services that the juvenile court stated was "now approaching 24 months." By that time, as the court recognized, the crucial emphasis has shifted from assisting reunification to ensuring the child's needs for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The court could have ordered more services had it concluded that there were extraordinary circumstances, such as either the case plan or the reunification offered were patently inadequate (see Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1465-1466), or if there was " 'some external factor which prevented the parent from participating in the case plan.' " (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510, quoting Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388.) Because we uphold the court's finding that the Agency's services were reasonable, there was no extraordinary circumstance that would warrant ordering more services.
DISPOSITION
The petition is denied on the merits. (Cal. Rules of Court, rule 8.452(h)(1).) This decision is final as to this court forthwith. (Id., rule 8.490(b)(1).)
Richman, J.
We concur:
Kline, P.J.
Haerle, J.