Opinion
NOT TO BE PUBLISHED
San Diego County Super. Ct. No. EJ1440B
McCONNELL, P. J.
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Gary M. Bubis, Judge. Petition denied.
Susan H. seeks review of juvenile court orders setting a hearing under Welfare and Institutions Code section 366.26. Susan contends the court erred when it found that reasonable services were provided. We deny the petition.
Unless otherwise specified, further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Jasmine S., born April 2005, is the youngest child of Susan H. Susan had a long history of methamphetamine and alcohol abuse, treatment and relapse, and homelessness. Susan's other children were raised by their fathers. Her son became a dependent of the court in 2005 when his father was incarcerated. As part of that case plan, on or about March 2005, Susan entered a residential drug treatment program at McAlister Institute (Kiva). Jasmine remained in Susan's care.
Jasmine's father was not identified.
After a period of sobriety, Susan relapsed on December 2 and 4, 2006. On December 6 after testing positive for alcohol, Susan became angry with Kiva staff and left the facility with Jasmine, who had a temperature of 102 degrees Fahrenheit. They returned later that evening. Out of concern for Jasmine's well-being, Kiva staff allowed Susan and Jasmine to stay. On December 8 Susan was intoxicated and could not safely care for Jasmine. Kiva staff directed Susan to leave the facility and asked the San Diego County Health and Human Services Agency (Agency) for assistance with Jasmine. The Agency detained Jasmine in protective custody.
The Agency filed a petition under section 300, subdivision (b) alleging Susan was unable to adequately care for Jasmine due to alcohol intoxication. In January 2007 Susan submitted to jurisdiction. The court removed Jasmine from parental custody and ordered a plan of family reunification services. Susan's case plan required her participation in substance abuse treatment and counseling, including the Substance Abuse Recovery Management System program (SARMS). The court authorized the Agency's plan for weekly, in-person, supervised visitation between Susan and Jasmine.
Shortly after the Agency detained Jasmine, Susan reenrolled at Kiva. On May 22, 2007, Susan was asked to leave the program because she was not participating in class and was disrespectful to staff. She received a certificate of completion. On May 24 Susan provided a diluted urine sample to SARMS. In June, Susan enrolled in an out-patient substance abuse program at McAlister Institute. She did not attend required classes. On July 3 Susan submitted another diluted sample to SARMS. She missed several therapy appointments, and did not submit verification of her required attendance at 12-step meetings.
During the first six-month review period, Susan consistently visited Jasmine twice a week. They had an affectionate relationship. Generally, Jasmine was a healthy, happy child. However, she often screamed hysterically in her sleep and, when awakened, would not go back to sleep. Jasmine had extreme tantrums and was inconsolable. A consulting social worker at Children's Hospital recommended keeping Jasmine on a consistent schedule with as few changes as possible.
At the status review hearing on July 11, 2007, the court found that Susan made substantive progress with her case plan. The court extended reunification services and ordered Susan to undergo a psychological evaluation. Susan requested unsupervised visitation. The court set the issue for hearing.
On July 14, 2007, Susan was intoxicated while residing at a sober living facility. On July 15 Susan was arrested for public intoxication. Susan began living at St. Vincent de Paul on July 30. Several days later, she fell from a top bunk while sleeping and broke her arm. The treating emergency technician reported that Susan clearly had been drinking earlier that evening.
On September 5, 2007, the court denied Susan's request for unsupervised visitation and found her in contempt for SARMS violations.
Susan was noncompliant with SARMS for the reporting period September 1 to 15, 2007. She tested positive for alcohol on September 27, for cocaine on October 9, and submitted a diluted sample on October 16. Susan entered Community Resources and Self Help Program (CRASH), a residential substance abuse treatment program, on October 31. She was discharged for noncompliance on November 19. On November 26 Susan submitted a diluted sample to SARMS. She reenrolled in CRASH on December 10.
In its report dated January 9, 2008, the Agency reported that Susan and Jasmine had two-hour visits on Saturdays until Jasmine was moved to a foster home in northeast San Diego County on October 10, 2007. Jasmine's night terrors, which had improved, increased during the transition to the new placement.
At some point in time not clear from the record, Susan left the substance abuse treatment program at CRASH. On February 10, 2008, Susan fell from a second floor balcony at St. Vincent de Paul while "significantly intoxicated by alcohol." She broke her arms, pelvis and tailbone, necessitating surgical procedures on February 10, 12, 19 and 28. When discharged, Susan fell and was readmitted to the hospital. She remained hospitalized pending rehabilitative placement.
The 12-month status review hearing was held March 28, 2008. Susan was not present but appeared telephonically during a portion of the proceedings. The court admitted into evidence the Agency's reports dated January 9, February 19, March 14 and March 28.
The social worker testified Susan and Jasmine had visits twice a week during the first review period. Because Susan's sobriety was questionable, it was necessary to supervise her visits with Jasmine in a structured environment. As Susan's sobriety became increasingly unstable, there were problems with visitation. Each time Susan left treatment, the social worker had to rearrange the visitation schedule.
In late November 2007, the social worker made two referrals to New Alternatives and a third to Crisis House for supervised visitation services. When visitation services became available, Susan had reentered CRASH and could not access services for two weeks, per program requirements. New Alternatives closed the referral. By the time visitation services became available at Crisis House, Susan had been hospitalized.
During Susan's hospitalization, the social worker arranged for Susan to have supervised telephone contact with Jasmine. Susan telephoned Jasmine almost every day, sometimes multiple times a day. The social worker did not arrange in-person visits because she believed visitation was inappropriate for Jasmine in view of the hospital setting, Susan's impaired physical condition and appearance, and Jasmine's age and needs.
The court denied Susan's motion for a finding the Agency did not meet its burden to prove that it offered or provided reasonable reunification services. (§ 350, subd. (c).) Neither Susan nor Jasmine presented additional evidence.
The court found that the Agency "made an absolute good faith effort to provide services" and did in fact provide reasonable services to Susan. The court terminated reunification services and set a section 366.26 hearing.
Susan petitions for review of the court's orders under California Rules of Court, rule 8.452. She requests this court stay the section 366.26 hearing scheduled for July 24, 2008, pending this decision. Susan requests this court remand this matter to the trial court with directions to vacate the order for a section 366.26 hearing, and to provide a further period of reunification services or, alternatively, a new hearing to determine whether reasonable services were provided. This court issued an order to show cause, the Agency responded, and the parties waived oral argument.
Further rule references are to California Rules of Court.
DISCUSSION
A
Susan contends the court erred when it found that reasonable services were offered or provided to Susan. Susan asserts the Agency did not provide weekly, in-person visitation to her as ordered by the court. She also argues the court erred when it denied her motion under section 350, subdivision (c).
The Agency contends substantial evidence supports the finding Susan was offered or provided reasonable services, and the court did not abuse its discretion when it denied Susan's motion under section 350, subdivision (c). The Agency argues Susan received substance abuse treatment and counseling services, and the social worker made reasonable efforts to arrange visitation, which was impacted by Susan's changing circumstances.
The Agency also contends Susan did not timely file her notice of intent to file a writ petition. (Rule 8.450.) Because we deny Susan's petition on another ground, we need not address this issue here.
B
Family reunification services play a crucial role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563; In re Joshua M. (1998) 66 Cal.App.4th 458.) Unless a specific statutory exception applies, the juvenile court must provide services designed to reunify the family within the statutory period. (§ 361.5; see 42 U.S.C. § 629a(a)(7); In re Alanna A., supra, 135 Cal.App.4th at p. 563.) If reasonable services were not provided or offered to the parent, the court is required to continue the case for the period of time permitted by statute. (See § 366.21, subd. (e); § 366.21, subd. (g)(1).) "The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
"Visitation between a dependent child and his or her parents is an essential component of a reunification plan, even if actual physical custody is not the outcome of the proceedings." (In re Mark L. (2001) 94 Cal.App.4th 573, 580; In re J.N. (2006) 138 Cal.App.4th 450, 458.) To promote reunification, visitation must be as frequent as possible, consistent with the well-being of the child. (§ 362.1, subd. (a)(1)(A); In re Alvin R. (2003) 108 Cal.App.4th 962, 972.)
Reunification services need not be perfect but should be tailored to the particular needs of the family. (In re Alvin R., supra, 108 Cal.App.4th at p. 972.) To support a finding that reasonable services were offered or provided, "the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . ." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)
When a party challenges the finding that reasonable services were offered or provided, we determine whether there is substantial evidence to support the court's finding by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R., supra, 2 Cal.App.4th at p. 545.) In applying the substantial evidence test to a finding of reasonable efforts, we keep in mind that clear and convincing evidence must support the finding. (In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.) The party challenging the finding bears the burden to show there is insufficient evidence to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
C
Because of Susan's struggles with sobriety, to ensure Jasmine's well-being, the case plan provided that visitation had to occur in a supervised and structured setting. (§ 362.1, subd. (a)(1)(A).) The record shows Susan and Jasmine had regular, weekly, in-person visitation in a supervised setting until October 10, 2007, when the Agency placed Jasmine with a new foster family. After Jasmine's placement, the Agency facilitated five visits for Susan and Jasmine. There were no in-person visits after January 3, 2008. Susan argues the Agency did not arrange visitation as ordered by the court and thus failed to provide her with reasonable services.
With the exception of the visit on January 3, 2008, visitation dates are not included in the record.
Susan's reliance on In re Precious J. (1996) 42 Cal.App.4th 1463, 1477 and Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1166 is misplaced. In those cases, the Agency did not arrange any court-ordered visitation for the appellant parents, who were incarcerated. (Ibid.) Here, the Agency provided Susan weekly, in-person visits with Jasmine until October 10, 2007, until a series of problems impacted the visitation schedule. The record shows the social worker reasonably responded to those problems, which were caused in large part by Susan's continued resistance to substance abuse treatment, and made continued and reasonable attempts to provide visitation as ordered, consistent with Jasmine's well-being. (In re Riva M., supra, 235 Cal.App.3d at p. 414; § 362.1, subd. (a)(1)(A).)
The change in Jasmine's placement was prompted by the Agency's assessment that Susan was not making substantive progress with her case plan and a concurrent placement was in Jasmine's best interests. The foster home was located about an hour's drive from San Diego. The Agency acknowledged Jasmine's move caused logistical problems with scheduling and transportation and impacted visitation. Visitation was also cancelled during the wildfires that forced the evacuation of Jasmine and her foster family from their home. The record shows these were temporary interruptions in visitation, and the social worker made reasonable efforts to resolve the problems. While not ideal, the brief interruptions in visitation after Jasmine's placement were reasonable under the circumstances. (In re Misako R., supra, 2 Cal.App.4th at p. 547.)
We take judicial notice of the Governor's proclamation of a state of emergency for San Diego County due to wildfires on October 21, 2007.
Susan enrolled at CRASH on October 31, 2007, the week following the fire emergency. Visitation was then cancelled for two weeks in accordance with CRASH program requirements. Susan was terminated from CRASH on November 19 due to noncompliance. In late November the social worker made three referrals to two agencies for supervised visitation services. Susan reentered CRASH on December 10 and visitation was again cancelled for two weeks.
The social worker testified each time Susan left treatment, "it created a new visitation problem and we had to rework it, we had to rearrange things." The record shows that Susan and Jasmine had a visit on January 3, 2008. Although the dates of the four other visits during this period are not documented, the fact they occurred between October 10, 2007 and January 3, 2008 supports the Agency's contention it continued to make reasonable efforts to provide, and did in fact provide, court-ordered visitation services to Susan.
At some point in time not documented in the record, Susan left CRASH for the second time. She clearly had problems maintaining her sobriety. Under these circumstances, the Agency was not required to immediately provide visitation services without first assessing Susan's condition. (See § 362.1, subd. (a)(1)(A) [visitation must be consistent with the well-being of the child] & § 300.2 [parental substance abuse is presumptively contrary to the safety, protection, and physical and emotional well-being of the child].) Nevertheless, through the social worker's efforts, visitation services again became available in February at Crisis House. A facilitator at Crisis House left messages for Susan to coordinate visitation dates and times, and offered her a visit on February 11. However, by this time, Susan had been hospitalized. Because Susan was unable to access services, Crisis House closed the referral on February 24. Thus, the record clearly shows the Agency did not unilaterally decide to terminate visits, as Susan asserts.
Susan also asserts the Agency was required to arrange in-person weekly visits with Jasmine while Susan was hospitalized. Missing from Susan's argument is any recognition of Jasmine's needs, and an acknowledgment that reunification services should be tailored to the needs of the family, not merely to the needs of the parent. (In re Alvin R., supra, 108 Cal.App.4th at p. 972.) Here, the social worker reasonably determined that visitation in a hospital setting was not appropriate for Jasmine, who was not yet three years old and that, under the circumstances, visitation would not facilitate the bond between Susan and Jasmine.
Susan had surgical procedures on February 10, 12, 19 and 26, and was partially immobilized. She was taking a number of prescribed drugs, including narcotic pain medications. The foster parents noted that Susan's speech and cognitive abilities appeared to be impaired. Jasmine was very active and required supervision. She had a history of night terrors and anxiety, and the social worker was concerned about disrupting her routine. In view of Susan's condition and Jasmine's age and needs, the social worker made a reasonable, temporary arrangement for Susan and Jasmine to have daily telephone contact while Susan was hospitalized.
The record belies Susan's assertion she was denied reasonable visitation with Jasmine. Due to circumstances beyond the Agency's control, visitation was cancelled approximately five weeks out of the 12-week period between October 10, 2007 and January 3, 2008. During the other seven weeks, the Agency provided Susan with five in-person visits. At some point, Susan left the treatment facility. In February, the Agency offered additional visitation services to Susan. Susan was unable to utilize the offered visitation services because of "acute alcohol intoxication," and resulting injuries. Consistent with Jasmine's well-being, the social worker made a reasonable, temporary arrangement for continued parent-child contact while Susan was hospitalized.
In addition to visitation services, the Agency consistently offered or provided treatment and counseling services to Susan throughout the reunification period. The record shows the Agency identified the problems leading to loss of custody, offered services designed to remedy those problems, maintained reasonable contact with Susan, and made more than reasonable efforts to assist her where compliance proved difficult. (In re Riva M., supra, 235 Cal.App.3d at p. 414.) Substantial evidence supports the court's finding that reasonable services were offered or provided to Susan.
Because we conclude substantial evidence supports the court's reasonable services finding, we need not consider Susan's argument the court erred when it determined the Agency did not meet its burden of proof under section 350, subdivision (c).
DISPOSITION
The petition is denied. The request for a stay is denied.
WE CONCUR: HALLER, J., McINTYRE, J.