Opinion
NOT TO BE PUBLISHED
San Diego County Super. Ct. No. NJ014266
NARES, J.
PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Harry M. Elias, Judge. Petitions denied. The stay filed June 16, 2011, of section 366.26 hearing is vacated.
Zachary S. and L.S. (together, the parents) seek writ review of juvenile court orders terminating their reunification services regarding their daughter, Brenna S., and setting a hearing under Welfare and Institutions Code section 366.26. Zachary contends the court erred by terminating reunification services because there was a substantial probability Brenna would be returned to parental care by the 18-month date; substantial evidence does not support the finding reasonable reunification services were provided; and the court abused its discretion by suspending visitation without a finding of detriment and by delegating discretion to the San Diego County Health and Human Services Agency (the Agency) to decide whether to reinstate visitation. L.S. joins Zachary's arguments. We deny the petitions. We vacate the stay of the section 366.26 hearing.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 11, 2010, the Agency petitioned on behalf of one-and-one-half-year-old Brenna under section 300, subdivisions (a) and (b), alleging she was at substantial risk of serious harm in that L.S. had a history of experiencing homicidal thoughts about Brenna and on January 6, 2010, had repeatedly shaken her; the family home was severely filthy and unsanitary; and Zachary had failed to protect Brenna. The court ordered Brenna detained.
The social worker reported L.S. had ongoing mental health problems and had been diagnosed with bipolar disorder and/or borderline personality disorder and alcohol abuse in remission. L.S. reported being diagnosed with depression, borderline personality disorder and episodic mood disorder. The social worker said when she went to the family home, it was cluttered with piles of items, garbage was on the floors and other surfaces, and there was rotting food in the kitchen and dog feces on the dining room floor. L.S.'s psychotropic medications were within Brenna's reach. Zachary said he was present, but in another room, when L.S. shook Brenna and screamed at her. The social worker described Brenna as petite, active, talkative and said she was calling for "daddy."
Medical records indicated Brenna had been in the lower percentiles for weight since birth, but the parents said she was not a "picky eater" and that there were petite people on both sides of the family. At a doctor's appointment in November 2009, the pediatrician described her as well appearing, well nourished and well hydrated. In December the parents took her to the doctor because she was vomiting and had diarrhea. She was described as well nourished and well hydrated, but with gastroenteritis and diaper rash.
Brenna's foster mother reported when Brenna first came to her home she tended to eat a lot and then vomit and have diarrhea. On January 12, 2010, the foster mother took her to the Naval Medical Center (Medical Center). Brenna's weight was very low and she was blue in color. The doctor diagnosed a failure to thrive and noted Brenna had some features suggestive of fetal alcohol syndrome. The following week the foster mother took her back to the Medical Center. Brenna had gained one pound. The doctor said this does not happen unless a child has not been eating correctly and not getting enough nutrition. On February 1 the Agency filed an amended petition, adding under section 300, subdivision (b), that Brenna had a condition of non-organic failure to thrive. On February 2 the court found the allegations of the petition to be true, declared Brenna a dependent child, removed her from parental custody and ordered services.
Brenna's pediatrician at the Medical Center said her growth and development had begun to improve, but after she began having regular supervised visits with the parents, she regressed and would refuse to eat or talk and began losing weight. The doctor recommended a slower reintroduction to the parents and for them not to force affection on her. The foster mother said that during a visit with the parents, Brenna was violent, threw things and screamed. She stated Brenna did not act like that when she was in her care. The foster mother also said when Brenna had a tantrum, the parents were quick to console her, which she said worsened the situation. The foster mother said that after visits, Brenna was aggressive, had night terrors, pulled out her hair and smeared feces on her face. However, staff at the visitation center reported no problems with visits other than the parents forcing affection on Brenna.
The parents soon completed a parenting class and parenting support program and were visiting regularly with Brenna. But by May 2010, Brenna had lost six ounces and her head circumference had decreased. The foster mother reported after Brenna began twice weekly visits with the parents, she refused to eat and had severe temper tantrums. She was admitted to a hospital, but testing showed no organic reason for her weight loss. The doctor ordered the parents not to visit while she was in the hospital and recommended suspending visits. He opined there was a correlation between the parents' visits and Brenna's refusal to eat and behavior. On May 13, the court ordered visits suspended pending a hearing.
After visits were suspended, Brenna's play therapist at the Chadwick Center said Brenna made marked improvement, was eating regularly and had gained weight. The therapist opined there was a strong correlation between her not having visits and her thriving. The doctor at the Failure to Thrive Clinic reported the foster mother said Brenna was ravenous when she first came into foster care, but then she began having behavioral issues and it was difficult to get her to eat. The foster mother said after having visits with the parents, Brenna's behavior became worse and she would not eat, but when there were no visits, she began eating more, gained weight and her behavior improved. The doctor at the Failure to Thrive Clinic recommended Brenna have no visits for a time to ensure her continued weight gain, and if and when visits were reinstated, they progress very slowly and be closely supervised.
The psychologist who evaluated L.S. said she had a dependent personality style and strong feelings of resentment toward Zachary. Testing revealed she had a serious mood disorder, and diagnostic impressions included bipolar disorder and anxiety disorder. She was prone to mood swings. Although she had completed a parenting class, she had poor parenting perceptions, and the psychologist said her personality traits could result in child neglect and endangerment and she lacked a strong attachment to Brenna.
The parents continued to actively participate in services, and they had individual and conjoint therapy. The social worker reported Brenna was thriving in foster care. By June 2010, her foster mother reported her behavior had improved and she no longer had severe temper tantrums. Brenna's play therapist reported Brenna had been making great progress in her ability to speak, but she noted that after she placed a photograph of the parents on a table, Brenna's behavior regressed and she had inconsolable tantrums. The social worker noted Brenna had a viral infection at the time, which may have influenced her condition.
The parents resumed visits in July 2010. The foster mother and the social worker supervised two visits and reported the visits went well and the parents were receptive to the foster mother's advice on how to interact with Brenna. However, after visits were reinstated, Brenna's health and behavior drastically declined. The foster mother said she was clingy and sullen, used few words to communicate, threw objects, yelled and refused food. Her therapists said when there were no visits she was more playful, independent and verbal, but when visits were occurring she had tantrums and it was very difficult for her to calm down. Her play therapist said there was a regression in her behavior and motor and verbal skills following a return to visits with the parents. The therapist stated:
"During the time that Brenna had no visits with her bio. parents, she was showing great progress in all areas. She was demonstrating improvements in verbal skills, behaviors, appetite, sleep patterns and motor skills. All of these areas show regression upon resuming the visits with her parents and this causes great concern regarding Brenna's ability to progress with the constant trauma trigger which appears to be contact with her parents.
"At this time I would disagree with any recommendation to increase or even continue visits with Brenna's parents. It is very apparent that the visits cause a reaction which has contributed to a return of all her behavioral symptoms and weight loss."
Brenna's speech therapist reported that during a speech therapy session the day after she had had a visit with the parents, Brenna had a major tantrum and was unable to calm herself. Her occupational therapist said Brenna had been making great strides in her ability to eat foods, but after visits resumed in July, she had a severe tantrum during a therapy session, and the foster mother said Brenna had stopped eating at home. A Comprehensive Assessment and Stabilization Services psychologist had been working with the foster mother on how to handle Brenna's behavioral problems. The psychologist reported that Brenna appeared thinner when she saw her on July 20 and she was agitated, refused to eat, would not comply with the foster mother's directives and was overly sensitive to outside stressors or stimuli. The following week Brenna was clingy and stayed on the foster mother's lap during the appointment. Brenna's pediatrician at the Medical Center expressed concern that visits with the parents prevented her from making progress. The pediatrician stated:
"Brenna has had issues in the past with failure to thrive and weight loss.... She had been doing well and gaining weight until this most recent visit which showed weight loss again.... It came to my attention during this visit that supervised visitation with Brenna's birth mother was authorized and restarted around 6 July 2010. Foster parents note child is withdrawn and anxious during these visits and see an immediate decrease in appetite and withdrawal from eating after these visits. She otherwise was well appearing on my exam and appears to have a good relationship with foster parents.
"I am concerned that the supervised visits with the birth mother are contributing to her failure to thrive and difficulty with weight gain. We have shown in the past that she can gain weight with the foster parents and no visitations. I am recommending these visitations be discontinued at this time to maximize her growth and well being."
In August the court ordered visitation suspended again.
In November 2010 the Agency recommended visits remain suspended and Brenna be placed with a paternal aunt (the aunt) in Texas. The social worker reported that since visits were suspended in August, Brenna had been thriving and steadily gaining weight, and she had become more secure and confident. The aunt had visited with Brenna at the foster home and was having daily telephone contact with her. The parents continued to participate in services, but the social worker expressed concern for Brenna's health and emotional well-being if visitation were to resume. The court ordered Brenna placed with the aunt.
Upon discharge from occupational therapy, Brenna's therapist reported Brenna had made good progress in treatment and although she sometimes refused to eat, she was trying a variety of foods and had added new ones to her diet. Her speech therapist commented she had made excellent progress, and that she had a mild expressive language disorder, severe speech disorder and oral motor impairment. It was planned that she would continue therapy in Texas.
Brenna moved to Texas in mid-November 2010. The aunt reported she adjusted very well to her new home, there were no problems with her behavior and she was eating well. After a contested hearing on December 8, 2010, the court ordered face-to-face visitation to begin once Brenna had stabilized in her placement and services were in place, and that visits begin no later than January 17, 2011.
The parents had their first telephone communication with Brenna on January 9, 2011. After the telephone visit, Brenna began to misbehave and refused to eat. After the next call, she had long severe tantrums. On January 13 she met Zachary at a mall. When she saw him, she ran to the aunt and, when he greeted her, she did not respond. She sat at a table with the aunt to eat pizza and, when Zachary came to the table, she put down the pizza, looked down and sat stiffly in a chair. When she returned to the aunt's home, she hit the aunt's two children, screamed and jumped up and down.
During the next two days, Brenna had visits with L.S. She was reserved and interacted little with L.S., and afterwards she screamed and tried to throw things and to play with her feces. She refused to eat, vomited and had frequent, long tantrums. The aunt said Brenna was a different little girl after these visits. The parents, on the other hand, reported the visits had gone well. The Agency exercised its discretion to again suspend visitation.
The court held the 12-month review hearing on February 22, 2011. The parents' conjoint therapist testified that in therapy the parents had discussed issues related to being effective parents for Brenna. She said they were frustrated by not being able to talk with Brenna's doctors during her hospitalization. The therapist believed they had improved their ability to communicate with each other, but it was difficult to measure their progress in parenting Brenna because she was not living with them.
L.S.'s therapist testified L.S. had formulated a safety plan and was working on dealing with her feelings and anger and on techniques to cope with depressed mood and panic attacks. He said she had developed a more positive attitude and had made small improvement in her self-esteem. He recommended she continue therapy.
The social worker testified both parents had made progress in services, and their therapist had expressed concern that there had not been more collaborative efforts to help them with their difficulties in caring for Brenna. The social worker recommended reunification services be terminated because visits with the parents were harmful to Brenna. The parents believed the January 2011 visits had been successful, but the aunt said the visits were awkward, there was no sign of a bond or attachment between Brenna and the parents and L.S. became easily frustrated with Brenna. Brenna was refusing to eat and there was concern she would again need to be hospitalized. The social worker concluded the parents had not been able to meet Brenna's needs or show they were able to ensure her safety and well-being.
The court found reasonable services had been offered or provided, but returning Brenna to parental custody would create a substantial risk of detriment to Brenna, and there was no substantial probability she could be returned within the next six months. The court terminated reunification services, set a section 366.26 hearing and gave the Agency discretion to suspend visitation and to resume visitation when it deemed it appropriate.
Zachary and L.S. petition for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
I
Zachary contends the court erred by terminating his reunification services. He argues there was a substantial probability Brenna could be returned to parental care by the 18-month date.
A. Legal Authority
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '... view the record in the light most favorable to the orders of the juvenile court.' [Citation.]" (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Under section 366.21, subdivision (g)(1), a court may continue a case to the 18-month date only if there is a substantial probability the child will be returned to the parent's physical custody and safely maintained in the home by that time. In considering whether to extend the case for 18 months, the court must make all of the following three findings:
"(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child.
"(B) That the parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home.
"(C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs."
B. Application
The parents did not show a substantial probability that Brenna could be returned to their care by the 18-month date. Although the parents had participated in reunification services, engaging in parenting instruction and supportive services, attending individual and conjoint therapy and visiting with Brenna as much as they were allowed, they did not show they had made significant progress in addressing the problems that led to Brenna's removal or that they could meet her needs or ensure her safety and well-being.
Brenna's service providers all reported Brenna regressed when she had contact with the parents. She did well in foster care when she was not having visits with the parents. But when visits resumed, her health and behavior declined. She refused to eat, had severe tantrums and her developmental skills deteriorated. Her play therapist said her verbal skills, appetite, behavior, sleep patterns and motor skills improved when she had no contact with the parents. But when visits were reinstated, she regressed in all areas. The therapist characterized Brenna's contact with the parents as a constant trauma trigger which caused concern about her ability to progress. The doctor from the Failure to Thrive Clinic said there were significant concerns that Brenna's poor weight gain was related to the stress she experienced from having visits with the parents. Her speech and occupational therapists said her behavior deteriorated after visits. Her pediatrician said visits with L.S. were contributing to her failure to thrive and recommended discontinuing them.
Brenna adjusted well to moving to Texas to live with the aunt and her family. But the aunt said her behavior declined after her first telephone call with the parents, and she appeared uncomfortable with them when they came to visit her. After the visits, her behavior worsened and she refused to eat.
The parents made efforts to involve themselves in services with the goal of being able to become safe parents to Brenna. They actively participated in therapy and their therapist reported they made some progress. There were no reports of them acting inappropriately during visits. However, Brenna appeared to experience stress and trauma, endangering both her physical and her emotional health when she had contact with them. It is unknown whether this was due to their treatment of her when she was in their care, or their inability to connect with her when they were together, but Brenna's therapists and pediatricians, as well as the foster mother, the aunt and the social worker observed a strong correlation between visits with the parents and Brenna experiencing significant health and behavioral problems.
The parents did not show the ability to complete the objectives of the treatment plan. They did not appear to be able to connect with Brenna and show her empathy. During the visits in Texas, Brenna did not respond when Zachary arrived and she put her head down. She did not want physical contact with L.S., and L.S. needed to be prompted in how to interact with her. L.S.'s psychological evaluation noted L.S. had low empathetic awareness of a child's needs, and L.S.'s therapist said her progress had been slow and she would need continued therapy to improve.
There is no indication that more time with further services would enable the parents to be able to provide for Brenna's safety, protection, well-being and special needs. The court commented, "In all candor there's nothing I can order, I believe, either Mom or Dad to do, or the Agency to do that I think will remedy that situation. And unfortunately, that situation I believe placed [Brenna] at significant risk for emotional harm." Substantial evidence supports the court's finding there was not a substantial probability Brenna could be safely returned to parental care by the 18-month date.
II
Zachary asserts substantial evidence does not support the court's finding that reasonable reunification services were provided. He argues the Agency did not properly implement visitation and claims there was no direct evidence that Brenna's behavior and weight loss were a consequence of the parents' visits and a result of past incurred trauma. He argues the court should have reinstated visits in a therapeutic setting and had separate visits for each parent. He maintains there was a lack of collaborative effort to solve the issues and reunite the family.
A. Legal Authority
In determining the sufficiency of reunification services, the role of the appellate court is to decide "whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) A service plan must take into account the specific needs of the family. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
B. Application
Reasonable visitation was provided under the circumstances of this case. Brenna followed the same pattern each time visits were tried. She ate very little, causing her weight to reach dangerously low levels, and she had severe tantrums and could not calm down. Her play therapist and the Comprehensive Assessment and Stabilization psychologist both expressed concern that visits with the parents were traumatic for Brenna and caused her to experience significant decline in her behavior and ability to eat. The staff pediatrician at the Medical Center wrote she feared that visits with L.S. contributed to Brenna's difficulty with gaining weight and failure to thrive. Another treating pediatrician at the Medical Center wrote that it was in Brenna's best interests to continue with six to 12 months of appropriate weight gain and close follow up before reintroduction to the parents. The doctor from the Failure to Thrive Clinic said the pediatricians had serious concern that her failure to gain adequate weight was related to the stress of visits with the parents.
Separate visits for Zachary and L.S. did not have a better result. Brenna had two visits with Zachary and two visits with L.S. in January 2011, and then returned to the same pattern as before. She did not want to eat, had severe tantrums, screamed, tried to play with her feces and vomited. As to Zachary's argument that visits should have taken place in a therapeutic setting, her play therapist recommended against visits. The therapist said when Brenna did not have visits, she was easier to calm and more playful and independent, but she regressed when visits were resumed. The therapist saw a strong correlation between Brenna's thriving and her not having visits. Zachary's argument that visitation should have been allowed during Brenna's hospitalization where she could be observed and monitored by hospital staff is also misplaced. The attending doctor during her hospital stay ordered there be no visitation during the time she was in the hospital. The record does not support Zachary's claims the Agency did not accurately report Brenna's condition during her dependency. The pediatricians monitored Brenna's condition and received information about when she was visiting the parents.
In light of the significant concern about visits by Brenna's treatment providers as well as her caregivers, the parents received reasonable visitation. Substantial evidence supports the court's finding that reasonable reunification services were provided.
III
Zachary finally contends the court abused its discretion by ordering visitation suspended without a finding of detriment and by delegating to the Agency discretion to reinstate visits.
A. Legal Authority
A parent's right to the care and custody of his or her children and his or her interest in visitation is a serious, major concern in dependency proceedings. (In re Julie M. (1999) 69 Cal.App.4th 41, 49.) Also of paramount importance, however, is the child's best interests and well-being. (Id. at pp. 48-51.) Visitation "shall be as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) However, "[n]o visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(B).)
A court may not delegate authority to the Agency to determine whether visitation will occur. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 686.) However, the Agency in consultation with mental health professionals working with it should determine when visits may begin. (In re James R. (2007) 153 Cal.App.4th 413, 437.) Orders regarding visitation may be reversed only upon a clear showing of an abuse of discretion. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
B. Application
The court did not abuse its discretion by ordering visitation suspended at times when it was in Brenna's best interests to do so. Throughout the history of the case, it was apparent that visits with the parents appeared to trigger Brenna's severe behavioral issues and significant problems with eating, causing great concern for her health and development. When she did not have visits, the problems abated. The parents have not shown an abuse of discretion.
Further, the court did not improperly delegate to the Agency discretion as to when to restart visitation. At the February 22, 2011 hearing, the court commented that because of Brenna's reaction to visits, she was at great risk of emotional and physical harm. It ordered the Agency to stay in contact with the aunt and the service providers to determine whether visitation would be appropriate. The court's order was not an improper delegation of authority, but ensured that the Agency would continue to monitor the situation and to assess whether visitation should resume. The parents have not shown error.
DISPOSITION
The petitions are denied. The stay filed June 16, 2011, of Welfare and Institutions Code, section 366.26 hearing set for June 21, 2011, is vacated.
WE CONCUR: BENKE, Acting P. J.McDONALD, J.