Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy B. Williamsen, Commissioner. Super. Ct. No. 508407
Maria E. Ramos, for Petitioner.
No appearance for Respondent.
Michael H. Krausnick, County Counsel and Linda S. Macy, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Levy, A.P.J., Dawson, J., and Kane, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court issued at a contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her son D.D. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Dependency proceedings were first initiated in June 2005 when the Stanislaus County Community Services Agency (agency) removed then two-month-old D.D. from his teenage parents, petitioner and J.D., after petitioner was arrested for drug possession. J.D., a probationer, was not arrested on this particular occasion but was nevertheless considered a serious drug dealer according to his probation officer.
J.D. did not file a writ petition.
The juvenile court exercised dependency jurisdiction and, in July 2005, ordered reunification services for both parents. D.D. was placed in a foster home where he remained throughout these proceedings.
Petitioner received reunification services through a group home where she was placed by her probation officer. In October 2005, J.D. was arrested and held in juvenile hall for drug possession and violating his probation. He made his first appearance at the six-month review hearing in January 2006 at which the juvenile court terminated his services. J.D. appealed (F050003) and, in November 2006, was granted relief a consequence of which was that the juvenile court vacated its findings and orders subsequent to detention and, in March 2007, convened a contested jurisdictional/dispositional hearing on a first amended dependency petition. At the conclusion of the hearing in June 2007, the juvenile court issued its jurisdictional and dispositional orders and findings. In so doing, the court specifically commented on petitioner’s lack of attentiveness, denial of her problems, and resistance to mental health treatment. The court also questioned petitioner’s ability to protect D.D. from J.D. based on her testimony that she did not know if they were still in a relationship and her inability to deny J.D. his son. The court ordered six months of services for petitioner and J.D. and set the six-month review hearing for November 2007. Petitioner appealed from the juvenile court’s jurisdictional and dispositional findings and orders, which this court affirmed (F053165).
In re D.D. (2006) 144 Cal.App.4th 646, 655.
On our own motion, we take judicial notice of the appellate records in F050003 and F053165. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
At the end of June 2007, petitioner was transferred to Redwood Family Center (Redwood), a long-term, faith-based, clean and sober living environment, and the juvenile court ordered a revised case plan which required her to participate in mental health counseling, complete a parenting program, complete a substance abuse assessment, and submit to random drug testing. The court also ordered the agency to provide visitation at least twice a month with discretion to increase visitation, including extended visits, commensurate with petitioner’s progress in her case plan objectives. By the end of August 2007, petitioner had progressed to overnight visitation.
Petitioner complied with her case plan requirements. However, any concern that she would resume a romantic relationship with J.D. materialized shortly after she was placed at Redwood. She initiated contact with J.D. and in mid-July 2007, they were seen with their arms around each other getting on a bus. J.D. proclaimed petitioner “the love of [his] life” and stated their plan to raise D.D. together. Several times in early to mid-October 2007, petitioner snuck out of Redwood to see J.D. and lied about where she was going. She told her caseworker she could not choose between J.D. and D.D. This despite J.D.’s lack of interest in D.D. and the court’s warning at an interim hearing in September 2007 that J.D.’s failure to participate in his court-ordered services required petitioner to choose between J.D. and her son. Given the unlikelihood petitioner would reunify with D.D., her caseworker reduced overnight visitation to one night a week.
In addition, the staff at Redwood echoed concerns reported by the staff at petitioner’s previous placement - that is, that she was inattentive to D.D. during visitation and, on one occasion, took D.D. out to the driver a half an hour early as if she were ready for D.D. to leave. Despite petitioner’s participation in her case plan, the agency recommended the juvenile court terminate reunification services for both parents at the six-month review hearing and establish a permanent plan of adoption for D.D.
Petitioner challenged the agency’s recommendation and, at a hearing in December 2007, the juvenile court set the matter for a contested six-month review hearing. The court also heard concerns raised by petitioner’s attorney that Redwood was requiring petitioner to attend a church meeting called “God’s Way Out” on the evening she had overnight visitation. Petitioner indicated she was fearful it would be held against her if she did not attend. Minor’s counsel added that the meeting was not part of the recovery process and that the Redwood staff stated attendance was not mandatory yet when a parent tried to opt out, the staff became very difficult and aggressive. The court declined to issue an order exempting petitioner from attending the meeting and directed the caseworker to work it out with the staff at Redwood.
In January 2008, the juvenile court conducted the contested six-month review hearing. J.D. was in jail facing charges of attempted murder, home invasion robbery, and assault with a firearm. Petitioner provided police the information that led to his location and arrest.
Petitioner was the sole witness. She testified D.D. was more important to her than J.D. but also stated that she desired a relationship with J.D. She did not believe J.D. posed a threat to her or D.D. despite J.D.’s lifestyle and criminal activity.
Petitioner also testified that church attendance, bible study, and prayer were part of the daily routine at Redwood. Church services were conducted in a Baptist Church and while she did not adhere to the tenants of the Baptist denomination, she considers herself a Christian. She mainly objected to participating in a prayer meeting conducted on Monday nights. She objected because it involved praying out loud. On one occasion, she resisted going and asked one of the staff members if attendance was optional. When told it was a requirement of her program and that she needed to go, petitioner stated she had been at Redwood seven months and had not attended the prayer meeting. The staff member reminded petitioner that Redwood is a faith-based program and asked her why she was there if she did not want to participate. Petitioner testified she did not believe that participation in religious activities was optional and could not remember if she discussed the issue with the caseworker. She did however attempt to be assessed for another program but was told there was no reason to transfer to another program since the problem had been addressed.
At the conclusion of petitioner’s testimony and argument, the court found it would be detrimental to return D.D. to petitioner’s custody and ordered that his placement out of her custody continue. The court also found petitioner was provided reasonable services and regularly participated in her court-ordered treatment programs but failed to make substantive progress. With respect to petitioner’s claim she had to participate in religious activities, the court did not find her testimony credible on that issue. Finally, the court set a hearing pursuant to section 366.26 hearing. This petition ensued.
DISCUSSION
A. Detriment
Petitioner seeks return of D.D. to her custody, arguing there was insufficient evidence of detriment to warrant his continued removal. She claims she eliminated any danger to D.D. by complying with her case plan requirements and demonstrating her resolve to protect D.D. by assisting the police in J.D.’s arrest and incarceration.
At the six-month review hearing, it is presumed the child will be returned to parental custody unless the court finds, by a preponderance of the evidence, that the child's return would create a substantial risk of detriment to the child's safety, protection or well-being. (§ 366.21, subd. (e).) In assessing the risk of detriment, the court must consider the extent to which the parent participated and made progress in the court-ordered treatment plan. (Ibid.) However, while participation in services and compliance are important considerations, they are not determinative of the juvenile court’s decision to return a child to parental custody. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141, 1142.) Rather, the court must ultimately decide whether the parent's progress eliminated the conditions leading to the child's placement out of the home. (Ibid.)
Where, as here, the sufficiency of the evidence to support a juvenile court finding is challenged on appeal, we must “determine if there is any substantial evidence-that is, evidence which is reasonable, credible and of solid value-to support the conclusion of the trier of fact.” (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) In so doing, we resolve all conflicts in favor of the prevailing party and do not reweigh the evidence. (Ibid.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
In this case, even perfect compliance would amount to very little given petitioner’s failure to recognize the inherent danger of associating herself and her child with a drug dealer. On that basis alone, we conclude substantial evidence supports the juvenile court’s finding of detriment and its decision not to return D.D. to petitioner’s custody.
B. Reasonableness of Services
Petitioner argues the juvenile court erred in finding she was provided reasonable services, setting forth three grounds: the agency unreasonably delayed in arranging individual therapy for her; the agency unreasonably reduced visitation; and, the juvenile court violated her rights under the establishment clause by requiring her to participate in religious activities as part of her reunification program.
Services are considered reasonable when the supervising agency identifies the family’s problems, offers services targeting those problems, maintains reasonable contact with the offending parent(s), and makes reasonable efforts to assist in areas where compliance is difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) To be reasonable, the services provided need not be perfect. The “standard is not whether they 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.) We review the juvenile court’s reasonable services finding for substantial evidence. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
With respect to individual therapy, the appellate record reflects that the caseworker referred petitioner for individual counseling the first week of July 2007, a week after she entered Redwood. Within 11 days of the referral, the counseling center mailed petitioner a letter with instructions and contact information to schedule an appointment. Because the counseling center was experiencing staffing problems, petitioner’s first appointment was scheduled for mid-September 2007. Petitioner’s attorney intervened and succeeded in getting a counselor assigned to petitioner a week prior to her scheduled appointment. The counselor attempted to contact petitioner four times over the ensuing 10 days before petitioner finally returned the counselor’s call. As a consequence, petitioner’s first counseling session occurred near the end of September 2007, nearly a week later than previously scheduled.
As can be seen, any delay in initiating counseling was not attributable to the agency. A week between entry into Redwood and the issuance of a referral is not unreasonable. Rather, the cause of the delay was the combined effect of staffing problems at the counseling center and petitioner’s lack of diligence in assisting with the scheduling of her counseling. Ideally, there would have been no delay and petitioner would have begun counseling sooner. However, the delay was not the fault of the agency and its efforts cannot be deemed unreasonable under the circumstances.
More importantly, the focus of petitioner’s counseling was her struggle to define her relationship with J.D. However, this was not a new issue for petitioner, nor one that had not been the subject of prior counseling. Consequently, even if there had been an unreasonable delay, there is no merit to petitioner’s argument that more expeditious counseling would have resulted in a quicker resolution. On the contrary, there is no hint of such an outcome given the history of this case and petitioner’s own testimony that she still desires a romantic relationship with J.D.
With respect to visitation, the agency has discretion to administer the juvenile court’s visitation order consistent with the well-being of the child. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374-1375.) In this case, the juvenile court granted the agency discretion to increase and, by inference, decrease visitation based on petitioner’s progress. When petitioner made the choice to have unauthorized contact with J.D., she immediately placed her progress and D.D.’s safety in question. Consequently, the agency properly exercised its discretionary power when it reduced her visitation. Further, to the extent petitioner believed the agency abused its responsibility to execute the juvenile court’s visitation order, she could have brought the matter to the juvenile court’s attention by way of a section 388 petition to modify the visitation order. (Id. at p. 1377.)
Finally, with respect to the establishment clause, we are unpersuaded there was a violation. The only evidence presented that Redwood required attendance at religious activities was petitioner’s testimony, which the juvenile court did not find credible. On matters of credibility, we defer to the juvenile court. (In re Albert T. (2006) 144 Cal.App.4th 207, 216.) Moreover, petitioner also presented testimony which conflicts with her claim. She testified she had managed to get out of attending the Monday night meeting previously and that she was discouraged from seeking another program because the issue of attendance at religious activities had been addressed. Based on the foregoing, we conclude petitioner was provided reasonable services.
C. Termination of Reunification Services
Petitioner argues the juvenile court erred in terminating her reunification services for two reasons: she made substantive progress in her reunification services and there was a substantial probability D.D. could be returned to her custody within another six months. The juvenile court may terminate reunification at the six-month review hearing where, as here, the child was under the age of three years when removed from parental custody and the parent was provided reasonable services but failed to regularly participate and make substantive progress in them, unless the court finds there is a substantial probability the child may be returned to parental custody within another six months.
(§§ 361.5, subd. (a)(2); 366.21, subd. (e).) In such a case, the court must continue services to the 12-month review hearing. (§ 366.21, subd. (e).) In order to find a substantial probability of return, the court must find the parent regularly visited the child, made significant progress in resolving the problem prompting removal of the child, and demonstrated the capacity and ability to complete the objectives of the case plan and provide for the child's safety, protection and well-being. (§ 366.21, subd. (g)(1).)
Petitioner claims the evidence supports her contention she made substantive progress. She cites her counselor’s opinion she had a better understanding of how her relationship with J.D. affected her relationship with D.D., the fact she turned J.D. in the police and her testimony she values custody of D.D. over contact with J.D. What petitioner ignores, however, is her ongoing failure to separate from J.D. as so clearly reflected throughout the appellate record and her testimony that she desired a relationship with him. On this record, we concur petitioner failed to make substantive progress in her court-ordered treatment plan. Consequently, the juvenile court had no choice but to terminate reunification services unless it could find a substantial probability of return.
To that end, petitioner argues the juvenile court erroneously considered the entire 31 months of services in deciding there was not a substantial probability of return. In fact, the court stated, “[Petitioner] has not [made substantive progress] over the past six months; and, unfortunately, she has not done so over the past 31 months of services that have been offered to her.” Rather than base its decision on petitioner’s performance during the entire dependency proceedings, the court merely found that her failure to make substantive progress over the previous six months was reflective of her failure to do so over the preceding 31 months. Consequently, the evidence does not support petitioner’s claim. Further, petitioner’s inability to sever her relationship with J.D. gave the court ample cause to question her ability to complete her case plan objectives and provide for D.D.’s safety even if services were continued. For the reasons set forth above, we affirm the juvenile court’s finding there was not a substantial probability of return and its orders terminating petitioner’s reunification services and setting a section 366.26 hearing.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.