Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County Super. Ct. No. DP013991, John C. Gastelum, Judge.
Mirna El Hazin for Petitioner.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Real Party in Interest.
No appearance for the Minor.
OPINION
O'LEARY, J.
Steven S. challenges orders terminating family reunification services and setting a permanency hearing (Welf. & Inst. Code, § 366.26),
18-month-old son, V.M. The minor’s mother, Luann M., is not a party to this writ petition. We find no error and affirm the order. Petition denied.
I Facts
Luann M. has muscular dystrophy. She has been wheelchair bound for several years, and after giving birth to V.M., she required extensive assistance from the hospital nurses to take care of herself and the baby. In August 2006, V.M. was taken into protective custody based on the determination Luann did not have a caretaker for herself, and neither she nor Steven had made any arrangements to find a caretaker to help Luann care for V.M. while Steven was at work. The hospital staff reported to the social worker that Luann could not properly feed or change V.M., and Steven was not there to help her. When he was present, “he refused to feed or change the infant.” Luann obtained minimal prenatal care during her pregnancy. Her relationship with Steven was described as “‘turbulent at times.’”
Luann had an open children family services case regarding another child with whom she had failed to reunify. According to the social worker in that case, Luann had not made any substantial progress on her case plan and had failed to attend any parenting classes.
Steven had refused to have any contact with his daughter from a prior relationship for the past nine years. There was a substantiated allegation of sexual abuse against Steven involving this child, which he denied, and he had failed to participate in court services.
The amended petition recited the above information, but did not include the allegations of sexual abuse against Steven. Instead, it was alleged Steven “reasonably should have known” Luann’s condition rendered her incapable of providing care to herself or “safe, effective, and appropriate care” for V.M. without assistance. The juvenile court detained V.M. and ordered monitored visitation five times a week for the parents.
In November, the case was transferred to a different social worker. She spoke with Luann’s internist who reported he met the parents and had advised against the pregnancy because of Luann’s poor health and age (40 years old). He recalled Luann was reluctant to get pregnant, but Steven was “insistent that he wanted a baby.” He opined Luann could not raise a child by herself, but that it might work out if she had a full-time assistant or helper. The internist remembered Steven was working and could not provide the help Luann needed. When asked about Luann’s prognosis, the internist stated the disease shortened a patient’s life span and Luann was “already at or near the average expected life span for female muscular dystrophy patients. He said [Luann] was very weak . . . and had been completely wheelchair bound for the past three years.”
The social worker expressed to both parents it was unlikely Luann would be able to take care of V.M. without a full-time helper. Steven stated he owned a construction company that made a lot of money and he could afford to hire help. He explained V.M. was born one month early and there was no time to hire someone. However, Luann told the social worker Steven was a licensed painting contractor and was not working much recently. She was receiving supplemental security income. She recently lost her Department of Housing and Urban Development (HUD) housing because she missed a hearing scheduled by her landlord based on the allegation Luann had violated the rules by allowing Steven to live with her.
Luann did not come to the interview in Steven’s car, but rather traveled there by herself using her motorized wheelchair. She explained Steven’s vehicle was not outfitted to accommodate her wheelchair. She said they maintained separate residences when Luann had secured subsidy housing. For the past six months, they had been living together in a long-term motel. Steven said they were currently in escrow on a house in Tustin. He said if the sale did not go though, he intended to rent an apartment or a house.
The social worker also interviewed the foster mother who reported Luann was unable to lift V.M. or change a diaper by herself. The foster mother had to position the baby in Luann’s arms for feedings with a bottle. The foster mother said Steven never asked to feed or change the baby’s diaper, but would ask her to perform these chores. The foster mother added that Steven frequently talked about his multimillion-dollar company and about how much money he was making. He came to visits driving different vehicles, such as his panting truck, a Mercedes convertible, and a Harley motorcycle. She wondered why Steven had not modified his vehicles to accommodate Luann’s wheelchair. Luann came to visits separately from Steven driving her motorized wheelchair. The foster mother stated Steven appeared to be somewhat unrealistic about Luann’s illness, telling her to go to the gym and work out. He also wanted to take Luann to a clinic in Los Angeles for a new treatment to cure her illness.
The social worker concluded it was not safe to place the child with the parents because Luann was not capable of caring for the child and Steven claims to work outside the home for many hours each day. She stated, “If they acquire a full-time assistant in the future, it may be possible to place the child with his parents.” She noted the parents did not seem to “have established a committed relationship with each other. They withhold bits of information from each other and have not clearly discussed their future together. [Steven] insists that he makes a lot of money and he seems to spend a lot of it on himself, but has been unwilling or unable to provide [Luann] with the necessities of life, such as a car modified to accommodate a wheelchair. . . . [Luann] may be hoping that [Steven] will eventually become her caretaker. She may have been hoping that the child would cement the relationship. This couple has been referred to a therapist for separate counseling sessions initially, and possibly conjoint sessions in the future.” As for V.M., it was reported he was healthy, but at a high risk of developing muscular dystrophy in the next couple of years.
In addendum reports filed in January and March 2007, the social worker reported V.M. appeared to be developing muscular dystrophy. The foster mother reported V.M.’s parents were only visiting three times a week. She said they sometimes visited separately and often did not know if the other parent was going to be there. She opined the parents did not seem to be getting along. Steven had not demonstrated interest in hands-on childcare during visits. He gave the foster mother the impression he was in denial about the severity of Luann’s medical condition. He insisted she may have been misdiagnosed. When Luann would loose grip of the baby and ask Steven for help, he would refuse and tell Luann her arms were strong and she could hold on to the baby. Steven said he was going to buy Luann a special van and then send her to school so she could learn how to drive using only her legs. The foster mother requested that visits be reduced to three times a week because that was typically the amount of time the parents were visiting, and five times a week was a hardship for V.M. and the foster mother.
The parenting class instructor, Michelle Loera, stated the parents arrived at the class separately and they sometimes argued quietly before the class. Loera was aware Luann took her wheelchair on the bus and Steven drove to classes. She wondered why Steven did not help Luann with transportation because he talked at length in class about his “‘multimillion-dollar painting business.’” Luann was dropped from the parenting class in February 2007 due to three missed classes. The parents’ therapist reported Steven had met with her several times, but Luann had not. The therapist terminated Luann’s therapy in January 2007 due to her absences.
When the social worker asked Luann why Steven did not help her with transportation, Luann responded she did not like the way Steven drove and she was stubborn. She admitted they had not yet hired a personal assistant to help her and to facilitate V.M.’s return to them. Luann said that despite Steven’s claim to have a lot of money, he was really having trouble making a living.
The couple was still living in the motel. The foster mother said she heard Steven say in March that his offer to buy a house had been accepted and he was in a 60-day escrow. However, Steven later told her he was going to an appointment to sign a six-month lease on a rental property.
Since taking V.M. into protective custody, the social workers had recommended the juvenile court sustain the petition and offer the family reunification services. The social worker concluded her March 2007 report by urging the court to declare the child a dependent, stating, “The investigation on this case has been completed yet the case remains in the investigations department for seven months.” Despite this plea, the hearing was continued yet again. The court reduced visits from five to three times a week.
In the next addendum report, filed at the end of March 2007, the social worker changed her recommendation to deny family reunification services and scheduled a permanency hearing. She explained Luann’s family services were terminated as to V.M.’s sibling. Steven’s services were previously terminated as to his daughter. Moreover, she opined, “He has not demonstrated the ability or willingness to be the child’s primary caretaker. He is in denial about [Luann’s] medical condition. . . . The undersigned has repeatedly expressed to him the fact that [Luann] is not safely able to care for the child by herself and he insists that he will locate an assistant for the mother, but he has never done so. He states that money is no object, as he has plenty of funds to pay for an assistant. The undersigned has asked him to call her when he locates an assistant, but he has not done so. The child was detained seven months ago, and this is certainly sufficient time for him to locate some hired help. The undersigned is of the impression that he is not ready, willing, or able to accept full responsibility for the child by himself.”
The social worker stated the therapist had terminated therapy for both parents because they had each missed three sessions. The social worker once again reinstated the therapy services so the parents could return to counseling. Steven had completed the parenting program, but Luann had missed a few classes following her reinstatement. The social worker offered more details about the case involving V.M.’s sibling, who also had muscular dystrophy and was mildly mentally retarded. The social worker summarized the reason Luann lost custody of V.M.’s brother is because she could not care for him, locked him out of the house, and did not feed him regularly. Luann spends most of her day in bed, and the social worker was concerned about her mental status.
The hearing was continued again to April 2007. In the next addendum report (number six), the social worker reported she had contacted the parents and told them they needed to return to therapy. The visitation monitor said Steven had mentioned he did not have to go to therapy anymore, and he had completed all his services. The visitation monitor reported she was having difficulty reaching the parents to schedule visits. Luann had not visited for two weeks. Steven also was missing visits and one week gave the excuse he was injured in a motorcycle accident, and on another week claimed he was not feeling well. Steven again told the foster mother he believed Luann had been misdiagnosed, and he was going to take her to a clinic in Los Angeles.
The social worker repeated her conclusion Luann was not capable of caring for V.M., and Steven was not interested in assuming the responsibility. She concluded, “This baby was detained seven months ago and the parents are still living in a motel and have not found permanent housing for themselves. [The parents have been advised ] they could not be considered for reunification . . . unless they hired or arranged for some sort of helper for [Luann], when [Steven] was out of the home. [He] works full time and is gone many hours each day.” Furthermore, both parents had been terminated from therapy for failure to keep appointments, and Luann had been terminated from the parenting class.
After two more continuances, the social worker submitted the seventh addendum report at the end of April 2007. She noted the parents’ attendance at visitation had continued to decrease: “Sometimes, they call the monitor and say they ‘cannot make it’ without further explanation. Sometimes, they simply do not show up.” Steven visited V.M. three times during the first two weeks of April, and cancelled all visits the third week of April.
Steven left a telephone message for the social worker stating he believed he had completed services and he and Luann were moving into an apartment in April. He insisted Luann was “‘getting better.’” The social worker informed Steven that he and Luann were required to continue with therapy.
The therapist denied telling Steven his therapy was complete. She had traveled to the parents’ residence for a conjoint session, but Steven did not stay for the therapy and Luann was too debilitated to effectively participate.
The social worker again concluded the parents had not complied with their service plan. She believed they had serious problems in their relationship and did not seem willing or able to work together to create a safe home for V.M. The social worker noted Steven bragged about having money, but had failed to provide Luann with a helper for V.M. On many occasions, he had told SSA staff he had purchased a house or leased an apartment, but these residences never materialized. She opined, Steven “continues to cling to the idea that [Luann] has been misdiagnosed . . . [and] has told others that he expects that she can be cured. He has not assessed the situation realistically and seems to think that things will simply work themselves out.”
At the end of April 2007, the court sustained the petition, V.M. was declared a dependent, and he was officially placed in SSA’s custody. Steven’s service plan included therapy and obtaining resources to meet V.M’s needs and to provide a safe home. The court set a review hearing for July 2, 2007, and ordered Steven “to provide a professional who can assist [Luann] to take care of the child while he is working. [Steven was] to arrange actual details with [the] social worker.” The court noted minor’s counsel was to be notified in advance prior to commencement of overnight visits.
The review hearing was continued to the end of July. In May, a new social worker, Gregory O’Gilbert, was assigned to the case. In the status review report prepared for the July hearing, he recommended termination of reunification services and for the court to schedule a permanency hearing. The social worker stated it had been difficult maintaining contact with the parents. Steven had cancelled appointments and was not keeping the social worker posted on any changes. Over the past few months, Steven had visited now 10-month-old V.M. more consistently than Luann. But Steven still had not located a professional care provider or permanent residence despite his understanding “that a care provider must be provided before any further unmonitored visitation can occur.” Finally, the social worker noted he had made another referral for the parents to restart therapy.
The review hearing was continued to September 2007. In the next addendum report, the social worker noted there had been very few changes. Steven indicated he had purchased a home in Corona, but as of September 7, the couple was still residing in an extended-stay motel. The parents were authorized to have three hours of monitored visitation each week, but they were inconsistent with visits and tended to only manage a one hour visit each week. Steven stated he had to travel out of town for work and had an inconsistent schedule. The monitor stated Steven was usually more attentive to V.M. during visits than Luann, but he had not been seen to ever change the child’s diaper. The social worker concluded, “The visitation plan was to allow the child to be in the care of his parents, once the child’s father [had] secured an in home health care professional to assist the child’s mother with care of the child in his absence. To date, there ha[d] been little to no progress toward this goal.”
The review hearing was continued another month to October 15, 2007. The report prepared for this hearing noted little progress had been made and the parents still showed no degree of consistency with regards to visitation and therapy. Steven was not notifying the monitor on a weekly basis whether he would be attending visitation. Steven said the Corona house had fallen out of escrow, but he had found an apartment in Orange. Steven stated his parents would agree to help with childcare while he was at work. However, the paternal grandfather later told the social worker that the paternal grandmother had been diagnosed with cancer and he did not feel they could provide childcare for V.M. Steven had attended one therapy session and missed one appointment.
The review hearing was continued one more month to November 15, 2007. Steven had missed many visits due to having to work as a painting contractor in Texas. The social worker noted he had placed five visitation referrals since May, which indicated Steven had missed 17 visits. He had switched Monday’s visitation to Fridays at Steven’s request, but the change had not resulted in additional visits. Steven stated he had secured an apartment, but never bothered to provide the social worker with an address. Despite new referrals to therapy and monitored visits, the parents were inconsistent with their case plan requirements.
The case was continued several more times. On February 7, 2008, the social worker filed an addendum report. V.M. was now one year old. Luann had moved to a different motel. Steven was living in a two-bedroom apartment in Orange and admitted he and Luann had separated. The social worker reported the parents had not committed to a consistent visitation schedule. Steven had been visiting twice a week, but missed several visits and still had not found a caretaker for V.M. for when he worked. Steven reported he had contacted the Montessori school, but it was too expensive to enroll the child before V.M. was in his custody. The parents’ therapy counseling referral had been terminated after three absences, and the social worker was in the process of initiating a new referral. Steven was advised visitation could be changed after he had shown a commitment to his therapy.
On February 14, the court held its first review hearing. SSA and minor’s counsel asked the court to treat the hearing as an 18-month review hearing, because the 18-month timeline was going to expire at the end of February. Under the juvenile statutory scheme, there was no more time for reunification services to be extended. The court heard testimony from the social worker and Steven.
The social worker, O’Gilbert, testified he did not believe Steven was capable of taking care of V.M. He stated he felt this way, “Because in the past he has been given ample opportunities of visitation [and] therapy. It’s been 18 months and he still didn’t find a place to take care of the child. I mean, it’s one thing to visit but then to actually say you’re going to have this child 24 hours a day, I don’t think so.” O’Gilbert stated Steven had not had an assigned therapist since November 2007, and had attended only one therapy session since May 2007. The social worker explained V.M. had special needs. V.M. attended physical therapy and occupational therapy twice a week to work on his muscle tone because there was some indication he could have muscular dystrophy like his mother.
Steven testified he had substantially complied with his case plan and he had done nothing to warrant losing custody. He currently had a three-bedroom apartment, he finished a parenting class, he had attended therapy 30 times since April 2007, and he visited V.M. whenever his work schedule permitted. He blamed his missed appointments on the social worker. He claimed he made a great effort to fly home once a week in November and December 2007 from a job site in Texas to visit V.M.
Steven said he made three attempts to find daycare providers, but he discovered he could not enroll V.M. anywhere unless he could provide a “start date” for the child. He asserted V.M. had to be in his custody before he could enroll the child in daycare. He had contacted a Montessori school in Orange, and the Yellow Brick Road school in Tustin, but he could not remember the name of the third daycare provider. He assumed these schools would take V.M. because he had seen other special needs children there. He said that if V.M. were returned to his care, he was confident he could find daycare within a week, and that he would take time off work in the meantime. Steven said he wanted custody of V.M., and he would allow the child to have monitored visits with Luann. He asserted he had the financial means and physical ability to care for V.M.
SSA and minor’s counsel argued against returning V.M. to Steven’s custody. As noted by SSA’s counsel, “[I]t seems to me that father is saying well, now that I’m separated [from Luann], she was the problem, so give me back my son. But [Steven] had a service plan to obtain appropriate child care and that was not only to assist mother if she were at home but it was to provide for the child when [he] was away on business.” SSA argued Steven was not being honest about how often he has attended counseling and the frequency of his visits with V.M. have always been lower than what the court authorized. Moreover, SSA found Steven’s testimony about his wealth and desire to do anything to get V.M. back was inconsistent with his actions during the dependency period. SSA pointed out that the court authorized a plan to start trial releases and overnight visits contingent on Steven getting child care but “[h]e never came through with that.” Minor’s counsel agreed with SSA, stating there was ample evidence Steven had not regularly participated in court ordered services.
Steven’s counsel said Steven was begging the court to return his child and to continue monitoring the case. He argued Steven would be able to find daycare and wanted to be reunited with his son, which would be in V.M.’s best interests. He argued the time and effort Steven has committed over the past 18 months showed the court “he really desires to be part of this child’s life.”
The court concluded there was no real dispute that Luann had not participated in her case plan due to her life circumstances and physical disability. The court concluded Luann needed someone to take care of her, and could not be V.M.’s caretaker. As for Steven, the court concluded he had “failed to show a regular and consistent participation in his court ordered case plan.” The court did not find Steven to be a credible witness, stating Steven was “very evasive and inconsistent in his answers and in his testimony.” Specifically, the court concluded the evidence showed Steven had only attended one counseling session since May 2007, and not 30 sessions as he had contended.
The court noted appropriate child care has been an ongoing problem since the beginning of the case, and Steven had never followed through on his many promises to hire a caretaker for V.M. It was not persuaded by Steven’s claim he needed custody of V.M. before hiring help. The court was also concerned with Steven’s consistent denial of the severity of Luann’s disability, and whether he has the ability to recognize V.M. may be suffering from the same debilitating disease. Finally, the court found inconsistent Steven’s claim to be able to leave work whenever necessary to care for V.M. when his visitation record over the past 18 months suggested otherwise. The court concluded Steven has a history of putting his work over his child’s needs. It agreed with minor’s counsel’s assessment that V.M. needed “structure and organization regarding medical appointments, physical therapy and other appointment in his life, and [Steven] has not shown this court that he is able to organize or impose any meaningful structure in his own life let alone handle that kind of responsibility with the needs of a special needs child.” The court terminated reunification services and set a permanency hearing.
II Analysis
Although this case was scheduled for a six-month review hearing, Steven does not dispute the hearing in fact served as a final 18-month review hearing. In his writ petition, Steven argues SSA failed to meet its burden of showing detriment to V.M. by returning custody of the child to his care. Focusing on favorable evidence, Steven contends the juvenile court should have ordered V.M. returned to his custody because he had substantially completed his case plan. Although the record shows favorable evidence towards Steven, there is substantial evidence to support the court’s finding of detriment.
The juvenile court must return a dependent child to the custody of the parent at the 18-month review hearing “unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . 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. . . . 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 services provided[.]” (§ 366.22, subd. (a).)
However, “the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child. [Citation.]” (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.) By the time of the section 366.22 hearing, “[T]he Legislature has determined a child’s need for stability and security within a definitive time frame becomes paramount. The cutoff date for fostering family reunification is the 18-month status review. At this hearing, the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children. [Citation.]” (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788.) Mandatory reunification services are limited to no more than 18 months. (§ 361.5, subd. (a)(3).)
The juvenile court has wide discretion in ruling at the 18-month review hearing, and consequently, appellate courts will uphold the court’s finding of detriment if it is supported by substantial evidence. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) To determine whether there is substantial evidence to support the court’s findings, we review the evidence most favorably to the prevailing party and “indulge in all legitimate and reasonable inferences to uphold” the court’s ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
We conclude that even though Steven appears to have exerted some genuine effort and cooperation in his case plan, there was substantial evidence that returning V.M. would be detrimental to the child’s well-being. For 18 months, Steven had made many broken promises with respect to his ability to hire daycare providers and caretakers for V.M. and Luann. The court and SSA were willing to return V.M. for unmonitored overnight visits as soon as Steven could prove he made child care arrangements. He never fulfilled these promises, which reasonably calls into doubt his recent assertion V.M. (not potty trained and with special needs) could be enrolled immediately in a Montessori school. Steven’s apparent belief his separation from Luann somehow now enables him to assume responsibility and be V.M.’s full-time caretaker is unfounded. Steven has always had this option, but he has never expressed any desire to take full responsibility for his infant son. His separation from Luann only changed the number of people for whom he needed to provide round-the-clock care.
The court had ample evidence to support its finding Steven failed to substantially comply with his case plan. Steven was given authority to visit his newborn son five times a week when this case started. From the beginning, he appeared to show little interest in doing the many chores of child-rearing, leaving the diaper changes and feedings to others. Over time, he visited less frequently, blaming work commitments and the social worker. When visitation was reduced to three days a week, Steven visited on average once a week. More importantly, there was no evidence suggesting he applied anything he purportedly learned in counseling or the parenting classes. He demonstrated little interest in hands-on parenting, and no real commitment to find a substitute caretaker for his son while he worked. Just as he consistently demonstrated unrealistic expectations of Luann, he appeared to have a fairytale notion of what was required from a single working parent to safely raise a special needs baby. Steven’s history of broken promises and inconsistent participation in his case plan supports the court’s conclusion V.M. would face substantial risk of detriment if placed in Steven’s care at this time.
III Disposition
The petition is denied.
WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.