Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of Court, rule 8.452). Valerie Skeba, Juvenile Court Referee. Los Angeles County Super. Ct. No. CK53553
Los Angeles Dependency Lawyers, Inc., Law Office of Emma Castro, Ellen Bacon Wiley and D. Michael Miller for Petitioner.
No appearance for Respondent.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Real Party in Interest Los Angeles County Department of Children and Family Services.
RUBIN, Acting P. J.
INTRODUCTION
Petitioner is the father of R.F., a dependent of the juvenile court. On December 1, 2010, the juvenile court denied father reunification services and set a permanency planning hearing under Welfare and Institutions Code section 366.26. Father contends there was no substantial evidence to support the court’s finding that he had not “made a reasonable effort to treat the problems that led to the removal” of R.F.’s older sibling under section 361.5, subdivisions (b)(10) and (11). We disagree and deny the petition.
All further statutory references are to the Welfare and Institutions Code.
PROCEDURAL BACKGROUND AND FACTS
Father and Los Angeles County Department of Children and Family Services (DCFS) set out the complete history of the lengthy juvenile court proceedings in this case, which does not require repetition except when necessary to address directly the specific claims for extraordinary relief.
This case began years ago when R.F.’s older half-brother (E.S.) was detained due his mother’s mental health problems. In July 2004, the juvenile court sustained DCFS’s dependency petition with allegations that mother was incapable of caring for E.S. because she had paranoid and delusional thoughts about harming him, was diagnosed with schizoaffective disorder, and because she had a history of drug abuse. After failing to reunify, mother’s parental rights over E.S. were terminated in February 2007.
Mother is not a party to this writ proceeding.
Mother and father had a son, J.F., in September 2008. The newborn was detained due to mother’s mental health problems and failure to reunify with E.S. In addition to other psychological problems, she also had bipolar disorder and was on psychotropic medication. Father likewise had his own mental health problems, having been diagnosed with depression since age 12 and bipolar disorder later in life. He had taken anti-depressant medication for many years. Mother and father were also both homeless.
The social worker’s report to the juvenile court also indicated father had a criminal history, having been convicted of exhibiting a deadly weapon in 2001, vandalism in 2004, convicted twice of possession of controlled substance paraphernalia in 2005, and served time in prison due to a conviction for grand theft in 2006.
Consequently, in January 2009, the juvenile court sustained allegations that mother had a history of mental and emotional problems that rendered her unable to care for J.F., and that the older sibling was receiving permanency planning services due to mother’s mental and emotional problems. As to father, the court sustained allegations that he resided with mother and had been hospitalized for bipolar depression, all of which placed J.F. at substantial risk of harm.
The juvenile court ordered family reunification services for mother and father. For 18 months, mother and father received services, including parenting classes, psychiatric treatment and medication management, and counseling. Yet, they failed to make the substantive progress need to reunify with J.F. There were still unresolved concerns of domestic violence in the home, including mother’s violent outbursts, financial issues, inconsistent visitation, and failure to follow through with family and individual counseling as well as with psychiatric appointments for medication. In addition, mother had been arrested in February and March 2010 for domestic violence against father and assault against a Walmart employee. Also, in February 2010, J.F.’s foster mother had observed bruises on mother that looked like finger marks. Consequently, the parents’ reunification services were terminated in April 2010.
Parental rights were terminated as to J.F. on September 22, 2010.
In July 2010, the social worker questioned mother and father about their plan to travel to Las Vegas, Nevada to deliver their new child. The parents would not discuss the subject with the social worker even though they had already told the foster parent and their therapist about the plan. The parents assumed that if the baby was born in Nevada it would not be detained. Due to the parents’ mental illness, their domestic violence, financial instability, and failure to reunify with E.S. and J.F., the social worker categorized the family as being at high risk for future abuse. R.F., born in August, was therefore detained and placed in the same foster home with his brother, J.F.
The social worker’s September 2010 report for the jurisdiction hearing indicated mother had last seen her psychiatrist on June 10, 2010 and that she had cancelled her appointments for July and August. Even though mother said she was consistently taking her medication, her prescription bottle (dated June 10, 2010) was full of pills. The maternal grandmother stated that mother becomes violent “now and then” and had been arrested in February and March due to an argument and assault against father and a Wal-Mart employee.
At the September 2010 hearing, the juvenile court scheduled a contested hearing and appointed Dr. Michael Ward to conduct a psychological assessment of mother and father. Dr. Ward had previously conducted a similar assessment of the parents with regard to J.F.’s dependency case. At this same hearing, the court terminated mother and father’s parental rights over J.F.
Mother and father later submitted to allegations that they had mental health and emotional problems which rendered them incapable of providing regular care to R.F., that they had both been hospitalized for treatment of their mental conditions, that parental rights over E.S. and J.F. had been terminated due to mother’s emotional and mental health problems, and father’s parental rights over J.F. were terminated due to his own mental and emotional condition, all of which placed R.F. at substantial risk of harm.
For the contested hearing in December 2010, Dr. Ward reported that mother discounted her arrest for violence against father, simply stating they were being “silly” and mother had accidently scratched father. As to her violence against the Walmart employee, mother said she was falsely accused, even though she had pled no contest to criminal charges. In order to justify their unsuccessful sessions with their former therapist, father accused the therapist of being an alcoholic.
Dr. Ward recommended that the parents receive reunification services, just as he had with respect to J.F.’s dependency case. But he said any such services should be provided “in a careful and conservative manner.” He believed the parents’ psychiatric histories should not be held against them as long as “they have truly changed their lives and are dealing appropriately with their psychiatric problems.”
The social worker reported that the parents did not visit R.F. consistently, fought during the visits, and were not truthful about the reasons for their missed or late visits. Mother told the foster parent that father was not present for a visit in November 2010 because they had been fighting and he “took off.” Father would leave the family home for three days and return at 3 a.m.
A letter from Dr. Joy Cong-Dyal, father’s psychiatrist since August 31, 2010, indicated father had not taken any of his psychotropic medication for the past 14 months, and that during the three sessions she had with father she had not noticed obvious or prominent psychiatric symptoms. She cautioned, however, that she could not give conclusive recommendations or come to a conclusion as to his diagnosis, “especially with the awareness of his history of significant impairment of mental illness, ” because she had not seen father for a sufficient period of time. She intended to “follow [father] over time and make further observations and evaluation regarding his need of psychiatric medications.”
Father testified that he had previously been diagnosed as having bipolar disorder, requiring that he daily take medication to prevent mood swings. He had taken psychotropic medications, but had decided on his own to stop taking them and had done so for more than 14 months. He had seen a therapist for the past 14 months, but was now looking through referrals for a new counselor.
Counsel for DCFS and for R.F. both argued that the parents should not be given any reunification services under section 361.5, subdivisions (b)(10) and (11). Counsel for R.F. argued that it had now been two years since J.F. had been detained, yet the parents “still have the same existing problems.” While mother stated she would seek therapy, she was not willing to accept what the therapist said. Counsel for R.F. also pointed out that the parents’ visits had been inconsistent and “[e]ven if reunification services were given, it does not appear that the problems would be alleviated, as the parents have been given ample time, and, unfortunately, the problem still exists.”
The juvenile court found that even after a full 18 months of reunification services in an attempt to reunify with J.F., the parents had not made any progress due to mother’s angry and violent episodes and father’s failure to recognize this problem and separate from mother. The court was concerned that father “does not recognize the risk that the mother poses, and he has chosen to stay with mother even though she’s a lot of –a lot of problems in this case have been caused by mother’s mental illness.” The court concluded:
“[A]s long as father stays with mother, I think the outcome, or the real – the likelihood of reunification is pretty much minimal.... [¶] [W]e’ve done the full complement of reunification services to the parents, even to the point of having unmonitored visits with [J.F.] And we had to go backwards because of mother’s behavior. [¶] And, you know, I – I don’t think that anything is going to change. Either the parents understand that their relationship and the conflicts and the fighting is a serious problem and they address that, or they don’t. And they haven’t. And I think it’s evident that that’s still continuing.”
The court finally concluded mother and father had failed to make reasonable efforts to address the problems that led to J.F.’s removal and that a substantial danger existed to R.F.’s physical and emotional health and safety. The court denied the parents’ reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(11). This timely writ petition followed.
DISCUSSION
Father contends the juvenile court erred in denying him any reunification services. He argues there is no substantial evidence to support the court’s decision because he made reasonable efforts to treat the problems that led to J.F.’s removal. We disagree.
1. Applicable Law and Standard of Review.
Typically, when a child who is under three years of age is removed from a parent, section 361.5 mandates that the child and parent be provided 6 months of child welfare services in order to facilitate family reunification, which may be extended to a maximum of 12 months. (§ 361.5, sub. (a)(1)(B).) However, in specified cases, section 361.5, subdivision (b), precludes the granting of reunification services because the Legislature has recognized “‘that it may be fruitless to provide reunification services under certain conditions.’” (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163; see also In re Baby Boy H. (1988) 63 Cal.App.4th 470, 488 [the exceptions in section 361.5, subdivision (b), demonstrate a legislative determination that it may be fruitless in some situations to provide reunification services, and the general rule favoring reunification is replaced by a legislative assumption that offering the services would be an unwise use of governmental resources].)
Subdivisions (b)(10) and (11) apply when, in cases such as this, a parent has failed to reunify with the child’s sibling or parental rights over the sibling have been terminated. These subdivisions provide that reunification services need not be provided when the court finds (1) that either parental rights or reunification services were previously terminated with regard to a sibling and (2) the same parent “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling... from the parent.” (§ 361.5, subds. (b)(10) & (11).)
The juvenile court’s application of section 361.5, subdivision (b) is reviewed for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96, fn. 6; see also In re Jose M. (1988), 1103-1104 [juvenile court has broad discretion at dispositional hearing to decide what is in the best interest of the children].) “‘If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.’” (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472; see also In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 [trial court orders denying reunification services cannot be disturbed unless the court exceeds the bounds of reason]; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881 [even though section 361.5, subdivision (b), has a “clear and convincing standard” in the juvenile court, that standard disappears in the appellate court, which applies the usual rule of substantial evidence].)
2. Substantial Evidence Supports the Juvenile Court’s Ruling.
J.F. was removed from mother and father’s custody due to their mental health and emotional problems and mother’s violent outbursts. Those outbursts continued and mother made no progress toward resolving the issues that led to J.F. and then R.F.’s removal. Instead of recognizing the risk that mother’s psychological problems and violent outbursts posed to J.F. and R.F., father made excuses for her. Even when mother was arrested for assaulting father in February 2010, father told Dr. Ward that they were merely engaging in horseplay. And father apparently acquiesced when mother maintained that her conviction for assaulting a Walmart employee was fabricated.
The juvenile court correctly found it had offered mother and father a full 18 months to reunify with J.F., yet they had both failed to do so and their parental rights were terminated. The bench officer, who had sat through virtually every hearing in this long case, understood precisely what father needed to do to reunify with J.F. and R.F. – separate himself from mother. Yet there is no indication in the record that father ever contemplated leaving mother for the sake of his children. He tolerated mother’s behavior and even planned to marry her. The juvenile court’s apt conclusion bears repeating – father did “not recognize the risk that the mother poses, and he has chosen to stay with mother even though she’s a lot of – a lot of the problems in the case have been caused by mother’s mental illness.”
We recognize that “the ‘reasonable effort to treat’ standard found in... subdivision (b)... is not synonymous with ‘cure.’” (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) But the standard requires a true and whole-hearted effort that corresponds with the underlying problems in the case. (See Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 99 [“the Legislature used the adjective ‘reasonable’ to ensure that lackadaisical or half-hearted efforts would not be deemed adequate rather than to additionally require a certain level of progress”]; In re Albert T. (2006) 144 Cal.App.4th 207, 217-218 [section 361.5, subdivision (b)(10) requires the parent to have worked to correct the underlying problems in the case].)
The juvenile court properly assessed that while the parents had gone through the motions of attending counseling, mother was incapable of benefitting from the services provided to her and father had failed to recognize and was unwilling to do the one thing that was necessary to reunify with his child – separate himself from mother. We thus conclude there is substantial evidence to support the court’s finding that father failed to make reasonable efforts to treat the problems that led to J.F.’s removal.
DISPOSITION
The petition is denied. This opinion is final forthwith as to this court under rule 8.490 of the California Rules of Court.
We concur: FLIER, J., GRIMES, J.