Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ, Super.Ct. No. J219377, Wilfred J. Schneider, Jr., Judge.
Gloria Gebbie for Petitioner.
No appearance for Respondent.
Ruth E. Stringer, County Counsel, and Ramona E. Verduzco, Deputy County Counsel, for Real Party in Interest.
OPINION
HOLLENHORST, J.
INTRODUCTION
Petitioner T.B. (Mother) seeks review of an order refusing to return the minor, C.B., to her custody, terminating reunification services, and setting a hearing under Welfare and Institutions Code section 366.26 to determine a permanent plan for the minor.
This is one of those unfortunate cases in which a parent who appears to have the potential to provide adequate care for a child simply doesn’t “get it” until so late in the reunification procedures that applicable time limits cannot be met. As substantial evidence supports the conclusions both that adequate services were offered to petitioner Mother and that the minor could not be returned to her within the applicable 18-month period, we deny the petition.
DISCUSSION
The minor came to the attention of the San Bernardino County Children and Family Services (CFS) in January 2008 when he was three months old. CFS had been contacted by health personnel from Loma Linda University Children’s Hospital. The minor had been noted as “FTT” (failure to thrive) shortly after his birth but after one further medical appointment on November 16, 2007, Mother failed to keep any of four follow-up appointments, which led to a home visit. Medical personnel had also contacted Mother by telephone several times, urging her to bring the minor in. The medical records also noted that Mother acknowledged that the minor “occasionally seems still hungry” after breastfeeding, but that she had not supplemented his feeding. When CFS called for a nurse to examine the minor, it was recommended that he be hospitalized due to low weight. Mother was not immediately cooperative with the CFS worker, repeatedly asking if the CFS worker could return the next day or week because Mother wanted to go see a friend. It was apparent to the CFS worker that C.B. appeared “compromised. He seemed underweight and kind of weak. His eyes were remarkable to me. Seemed somewhat bugged out... swollen around the eyes.”
Mother reported that Father, N.A., had left the home about two weeks earlier and she did not know where he was. She also acknowledged that there had been instances of domestic violence, which was confirmed by the maternal grandmother’s report of seeing bruises on Mother’s arms. Mother’s father also told social workers that he had been scratched by her when he tried to “escape her tirades.”
Father was also given services but failed to reunify. He is not a party to this petition.
Mother herself had once told the maternal grandmother that she thought she had obsessive compulsive disorder, and family members reported a number of peculiar behaviors. Among these was never saying the “number 5,” repeating conversations over and over, precisely retracing her steps when moving around her apartment, and reacting to use of the word “problem” by repeating the statement without using that word.
At the detention hearing, it also came out that while visiting the minor at the hospital, Mother had complained of severe abdominal pains, falling to the ground and writhing. She was sent to the emergency room, but an hour later reappeared “perfectly fine.” At the end of the hearing, the court commented that Mother had displayed “a bit of an attitude” and urged her to cooperate, telling her “[t]hese are critical times. Don’t waste them.”
Mother eventually agreed to jurisdictional findings through mediation. After a contested dispositional hearing on March 19, 2008, the court ordered reunification services, while denying Mother’s request for immediate return of the minor. The court was encouraged by Mother’s willingness to participate and cooperate but was concerned by the mental health allegations and directed that a psychological evaluation be prepared.
At the time, the minor was being cared for by a maternal uncle living in Desert Hot Springs. Mother’s father lived less than a mile away and had offered Mother a room in his home, but she declined and remained at her apartment in Redlands. She indicated that the room was “not what she want[ed]” and that her father was “a poor housekeeper.”
This placement continued throughout the reunification period and the uncle has expressed an interest in adopting C.B.
Desert Hot Springs is approximately an hour’s drive from Redlands.
The psychological report was prepared in May 2008. It found no notable psychological abnormality although the evaluator did note that Mother (not surprisingly) did appear to be trying to present herself in the best light possible. The only significant mental health diagnosis was “Adjustment Disorder with Mixed Anxiety and Depressed Mood.” The evaluator rated Mother’s intelligence as “bright normal.” The report reflected Mother’s explanation of the missed doctor’s appointments as due to lack of transportation and the distressing departure of Father from the home. The evaluator gave the opinion that Mother was likely to be able to reunify with C.B. as long as she had family support, did not go back to Father, and was monitored for compliance with C.B.’s medical needs. The evaluator did note that “[Mother] appears to have little insight into her psychological problems and in fact is more concerned about her perception of injustice at the hands of [CFS] rather than a possible need for future psychotherapeutic intervention.”
It must be recalled, however, that the evaluator found that Mother did not have any significant mental health issues that she should have been concerned about! He did, however, recommend six months of counseling or therapy.
Mother promptly filed a request for modification of order seeking return of the minor; however, this was denied on June 5, 2008. In its order, the court commended Mother’s progress (which included participating in counseling and a parenting class) but noted that she had only been participating for three months. A similar request was rejected in court on June 27, 2008.
In the report prepared for the review hearing scheduled for September 2008, the social worker began by detailing Mother’s insistent attempts to have the minor’s placement changed—attempts dating to April of that year. It was also noted that Mother had not cooperated by turning over the minor’s Medi-Cal card, apparently hoping that by keeping it, she could ensure that she was able to attend his medical appointments. The social worker continued to describe Mother’s attempts to “control” the timing of visitation and her demands that were—in the social worker’s view—as inconvenient as possible for everyone else. Mother did not want to have morning visits, for example, because she “does not want to get up early in the morning.” Reminded that she would have to get up early to care for the minor if he was returned to her custody, she disagreed. The social worker theorized, not unreasonably, that the minor’s failure to thrive was due in part to Mother’s disinclination to feed him through the night.
The social worker also essentially disagreed with the psychological evaluator, focusing on the report that Mother may have been attempting (apparently successfully) to minimize her unfavorable traits and/or mental health issues. It was noted that the maternal grandmother was reportedly receiving SSI benefits for mental disability although Mother denied any family history of mental illness.
At the 12-month hearing, Mother confirmed that the maternal grandmother was receiving SSI benefits for mental disability.
Significantly, the social worker reported that Mother had been attending counseling and a parenting class and receiving good reports until her request that the minor be returned to her was denied. At that point, Mother became less cooperative and began to make unreasonable demands of the parenting instructors with respect to missed classes. She became angry and aggressive when her wishes were not met. She never completed the class, although she told the court that she was on the verge of doing so. Her relationship with her current counselors (at the same facility that offered the parenting class) also broke down, and by letter dated July 11, 2008, they informed the social worker that “we have determined that our agency does not have the resources to continue seeing this client. [¶] Our recommendation for the court is to have her referred to a psychologist with training in working with more severe personality disorders.” It was believed, in fact, that Mother had flattened the tires on her therapist’s car on two occasions.
After being terminated by that counseling service, Mother, who still lived in Redlands, rejected a referral to a Rialto group as “too far away” and asked for a referral to San Bernardino. Accordingly, she was referred to “Family Services in San Bernardino,” but then decided she would prefer to receive counseling at “Asante Family Services,” where she was taking domestic violence classes.
The social worker also reported that after a meeting with Mother in early August, Mother was very easy to work with and cooperative—for a few weeks. However, she then became resistant and demanding, also engaging in inappropriate verbal disputes with Father when they met at visitation.
At the hearing in September, services were continued. The next activity related to the filing of a “packet” by CFS was in regard to a visit on October 14, 2008. Mother insisted on unsupervised time with the minor for his birthday. When this was refused, she took the minor into a restroom and refused to come out, while insisting that she be allowed to talk to a supervisor. Police were eventually called although apparently at that point their role was merely to supervise the remainder of the visit. This “packet” also related ongoing conflicts over visitation, alleging that over the past several weeks Mother had been consistently late and spent most of the visiting time complaining to the social worker rather than interacting with C.B. The caretaker reported that the minor was often restless and cranky after such visits. The “packet” requested that visitation be reduced to once a week and that Mother be required to confirm her intention to attend each visit.
The caretaker had pointed out that Mother’s insistence on midday visits meant that the minor had to be taken out of daycare and driven almost an hour for the visit, then returned after the hour’s visit. The caretaker suggested two-hour visits would be easier on the child. He also indicated his willingness to have visits at his home.
Mother insisted on a hearing to rebut these allegations. She testified that she had asked the social worker to step outside the visitation room so she could videotape the minor without the social worker in the picture. When this was refused, she told the social worker that she would get some private time by changing the minor’s diaper in the restroom and proceeded to take him there with the social worker following them. When a supervisor agreed with the social worker’s insistence on constant supervision, Mother returned to the visitation room. She denied ever being angry or combative during visits. She also denied asking for changes to the schedule or being repeatedly late.
In rebuttal, the social worker testified that Mother became “very, very agitated... unstable” at the described visit. The court granted the change in visitation requested by CFS.
The next report was filed by CFS on March 6, 2009, and was designed as a “12-month” report. This report included more detail about Mother’s alleged history of odd behaviors as reported by family members, including that she had a “strong aversion to dirty dishes and once broke all the dirty dishes in the home,” insisting that everyone use paper plates. Mother also allegedly had had episodes of agoraphobia. It was now reported by Father that Mother insisted on feeding C.B. at fixed times and refused to supplement her breast milk with formula although she knew he was underweight.
With respect to more recent events, the social worker reported that Mother had indeed received a referral to “Asante Family Services,” her counseling service of choice. When asked to explain the minor’s removal, Mother continued to represent that it was all because she had had car trouble. The social worker also reiterated Mother’s history of inflexibility and arbitrary demands with respect to visitation times without concern for the caretaker’s convenience.
The report also described a visit in December 2008 when C.B. appeared cranky and uncomfortable, perhaps from teething. Although the child began crying and “tantruming,” Mother ignored the social worker’s encouragement to comfort him. She first said that she could not pick him up because her arm hurt, and then said (in what was reportedly a “cold and uncaring” voice) that she had a “doctor’s note” to the effect that babies should not be picked up every time they cried. It was also reported that Mother had asked for a midnight visit on New Year’s Eve, even though that would require the caretaker to wake the child, drive him from Desert Hot Springs to Redlands for the visit, and then make the return journey. When this was refused as unreasonable, Mother then contacted the caretaker and asked him to meet her with the minor around midnight at a Denny’s restaurant. (He declined.)
Finally, the report acknowledged that Mother had completed a domestic violence course, parenting classes, and was engaged in counseling. However, it recommended against reunification due to Mother’s combativeness, her “intense selfishness” and “guarded” approach to therapy, and her refusal or inability to acknowledge that problems existed. In this context, the social worker also expressed concerns over the fact that although Mother insisted she had a job as a “talent scout,” she was unable to say how much she earned or how she was paid.
The hearing was, of course, contested. Mother’s first witness, a social worker who had supervised several visits, testified that Mother had never been hostile or defiant in her presence. While she testified that Mother had been more responsive to the minor during the more recent visits, she also testified that she did not routinely demonstrate affection for the child and that he “basically played by himself.”
The next witness had taught Mother’s parenting class. (The one she completed.) She confirmed Mother’s attendance at 23 two-hour classes beginning in November 2008. She described Mother’s participation as clearly above average in that Mother was active in providing positive examples and feedback, and testified that Mother was always positive, pleasant, and stayed “on task.”
Mother’s current therapist was the next witness. She testified that Mother had been consistent in keeping approximately 20 sessions since November 2008. The witness acknowledged that until March 2009, “we were having some challenges” and that Mother was “defensive” and reluctant to examine family history issues. At this point, the therapist felt that it was “difficult to get [her] point across.” However, since May, Mother had become “much more open and a lot less defensive.” In particular, she noted that in discussing C.B.’s removal, Mother’s focus had shifted from the adverse result to herself (removal of the child) to the harm to the minor himself due to Mother’s neglect. She felt that Mother’s adjustment and borderline personality issues could be resolved through therapy, although she believed there was “work that needs to be done.”
The social worker then testified. She agreed that visits were going better and that Mother had been “less confrontive” with staff and “a bit more interactive with [C.B.]” However, she expressed concern that Mother had recently resisted a change in visit times to a cooler part of the day, repeating that “[t]he baby won’t melt.” In her opinion, Mother had a “minimal” level of attachment to the minor.
Mother also testified. She candidly admitted that for much of the reunification period “I think I was more about trying to fight the Department rather than go along with them. I was still doing what they said to do, but with an attitude.” She believed that her attitude began to change in December 2008 or January 2009.
Mother also testified about her visits with C.B., stating that he called her “momma” and that she did hug and kiss him, as well as play games with him.
Mother denied refusing to feed the child at night and explained that she had been told, after the minor was detained, that her breast milk was “watery, low-calorie” and this had led to the minor’s failure to gain weight. She admitted that she had no excuse for not taking the minor to the follow-up medical appointments; although she partially excused herself by noting that she was a “first-time” mother and that “[a]ll of these things would have been corrected had [she] kept those appointments. That’s what the pediatrician is there for.”
After hearing argument, the court made findings in the language of the social worker’s report without additional comment. Services were terminated and a permanency planning hearing set.
In challenging the orders, Mother challenges the sufficiency of the evidence to support the findings of detriment if the child were returned and the improbability of return within 18 months, and also argues that reasonable services were not provided. We reject all of these contentions.
Approximately one month of this period remained at the time of the 12-month hearing.
DISCUSSION
When a challenge is made to the sufficiency of the evidence to support a finding in a dependency case, we apply the substantial evidence test. That is, a finding will be upheld if it is supported by evidence that is “reasonable, credible, and of solid value....” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) Credibility determinations are left to the trial court and where a decision involves the exercise of discretion, it will be upheld unless it “exceeds the bounds of reason.” (Ibid.)
First, we disagree that the evidence does not support a finding that return of the minor would be detrimental. It is true that Mother has participated regularly and completed many of her service plan requirements. However, it is well established that it is not mere participation that counts, but benefit. (In re Dustin R. (1997), 54 Cal.App.4th 1131, 1143; Dawnel D. v. Superior Court (1999), 74 Cal.App.4th 393, 398, disapproved on other grounds in Tonya M. v. Superior Court (2007), 42 Cal.4th 836, 848.) The focus must be on the reasons for the minor’s removal and whether the court can feel confident that they will not recur. In this case, C.B. was removed from Mother’s custody because she failed to take him to essential medical appointments and allowed him, through ignorance or indifference, to become seriously underweight. Mother’s concession that this failure was inexcusable is commendable, but the trial court could reasonably have been concerned that Mother has not yet developed adequate insight into why she failed to take the minor for his appointments despite repeated urgings. Indeed, although Mother now acknowledges that her excuses of lack of transportation were not viable, she did not articulate any understanding of her decisionmaking at the time. Her therapist testified that she had only begun to open up and address her emotional and family issues during the past two months or so, after resisting and blocking all attempts to help her up until that time. The therapist was also clear in her belief that Mother was in need of a further course of therapy. Whether Mother’s abandonment of her confrontational style and me first attitude was permanent was not yet possible to predict with confidence.
We note that the social worker who detained the minor was struck by his “compromised” appearance, weakness, and “bugged” eyes.
The risk to C.B. at the time of detention was serious. While the trial court might have evaluated Mother’s efforts and sincerity to reach a conclusion that the minor could be returned to her in a monitored situation, it did not abuse its discretion in reaching the contrary conclusion.
Similarly, we reject Mother’s argument that as a minimal amount of time remained in the outer 18-month period in which reunification services may be offered (Welf. & Inst. Code, § 361.5, subd. (a)(2)), the trial court should have waited until that time expired. In light of the recency of her gains, it cannot be said that the court abused its discretion in concluding that it would not feel differently in another month.
The hearing was held on June 15, 2009. Mother calculated that the 18-month date would be July 18.
Finally, Mother argues that she was not provided adequate services because at her first counseling sessions she was seen by an “intern,” and this facility eventually recommended that Mother see a therapist qualified to deal with her “more severe personality disorder.” It is a truism that in almost every case it can be argued that more or better services could have been provided, but the test is whether reasonable services were provided. (Elijah R. v. Superior Court (1998), 66 Cal.App.4th 965, 969.) As recited above, Mother had appeared to be doing well with those counselors until her first request to have the minor returned to her was denied. It was only at that point that her relationship with her counselors (the intern, we note, was supervised by a qualified therapist) deteriorated, as did her behavior and interactions with the parenting instructors at the same facility. The psychological report reflected no serious pathology, albeit with qualifications. Thus, Mother cannot successfully claim that she should have been provided with “better” therapy earlier in the reunification process, or that the failure to refer her to a “more qualified” therapist was prejudicial to her.
We note that Mother’s current therapist is a licensed clinical social worker, not an advanced mental health care professional. We also observe that Mother can hardly argue on the one hand that her serious mental health issues were not timely addressed and on the other hand assert that she has no such issues. But, at bottom, the problem appears to be not that Mother is seriously mentally ill, but simply that she spent too much of the reunification period resisting her therapists’ attempts to help her understand her own behavior and attitudes.
DISPOSITION
The petition is denied.
We concur: RAMIREZ, P. J., MILLER, J.