Deanna J. v. Super. Ct. CA1/2 filed

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Filed 3/10/11 Deanna J. v. Super. Ct. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO DEANNA J., Petitioner, v. A130538 THE SUPERIOR COURT OF ALAMEDA COUNTY, (Alameda County Super. Ct. No. 0J09013716) Respondent; ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Real Party in Interest. By this petition for an extraordinary writ (Cal. Rules of Court, rule 8.452) petitioner Deanna J., the mother of David B., seeks to vacate the order of respondent Superior Court of Alameda County terminating reunification services and setting a hearing to terminate her parental rights in accordance with Welfare and Institutions Code section 366.26. Petitioner contends substantial evidence does not support the court s findings that (1) there was a substantial risk of detriment if David was returned to her custody, and (2) reasonable reunification services were provided by real party in interest Alameda County Social Services Agency (Agency). We conclude both contentions are without merit, and deny the petition on its merits. BACKGROUND The record, viewed in conformity with In re Zeth S. (2003) 31 Cal.4th 396, supports the following recitals: 1 A week after David was born, the Agency filed a petition in which it was alleged that he came within subdivisions (b) and (g) of Welfare and Institutions Code section 300 by reason of petitioner s inability to care for him. In addition to a history of substance abuse, it was alleged that petitioner has a history of mental health problems . . . and continues [to be] unstable. Details were that petitioner had three times within the previous three months been 5150 d under the Lanterman-Petris-Short Act (LPS), has a history of making suicidal threats, depression and she is diagnosed as having Bi-Polar Disorder and Schizoaffective Disorder. In addition, the alleged father was questioning paternity regarding this minor and he is unwilling to take this minor as it would overwhelm him because he was already taking care of three older children he had with petitioner. He was also in the process of divorcing petitioner. David was ordered detained the next day, with the Agency being ordered to provide reunification services as soon as possible . . . if appropriate. The unreported jurisdictional hearing was held two weeks after the petition was filed. Petitioner was not present, but appeared by counsel. Reunification services were already being provided. The juvenile court sustained the allegations of the petition and set a dispositional hearing for the following month. It was continued when the court was advised that petitioner had had another LPS commitment and that the results of the paternity test for the alleged father had not been received. The unreported dispositional hearing was eventually held in January 2010. The paternity test showed that the alleged father was the biological father. The juvenile court declared David a dependent child, placed him in foster care, and ordered that both parents receive reunification services. The six-month review hearing was held in July 2010. Petitioner was present. In her status review report, the social worker advised the court that the overwhelmed father had in effect surrendered the three children already in his care to petitioner, who was living at an outreach ministry. Petitioner planned to stay there for the next year. The social worker reported that petitioner s compliance with her case plan was partial. Petitioner was progressing in her mental health treatment with a psychiatrist and 2 therapist. She has been generally good about keeping scheduled appointments and she is taking her medication. Petitioner completed a parenting course and all her random drug tests have come back clean. Her visits with David were satisfactory. David was doing well in his current foster placement. Although petitioner was making progress, it was not enough for the social worker to recommend terminating the dependency: It would be detrimental to return David to either parent as the mother is still new in stabilizing her mental health. The mother has also had to manage the care of her three older children since February 2010. Her son, Daniel, has been diagnosed with Autism and is noted to require special care and attention. The mother s history of instability related to her mental health and the use of marijuana and alcohol remain a concern for the undersigned. The mother must demonstrate an acceptance of her mental health and the need to maintain consistent medication compliance along with therapy. While the mother has done a good job in locating a transitional housing program for herself and her three children, she will need to work on finding permanent housing in the future. The mother must fully participate in her mental health treatment. The undersigned learned the mother has missed a couple of appointments for lab work to allow her doctor to fully monitor her medication she is taking for Bi-Polar Disorder. It is crucial to her treatment as the doctor must know what her levels are in order to make adjustment if needed. The mother must also participate in regular therapeutic treatment around her Bi-Polar that would help with understanding her disease and management of it. The mother has the opportunity to work . . . in infant/parent psychology as a way to support her relationship with David. The undersigned believes this therapeutic work will benefit both the mother and David. The mother must also utilize the resources available to her in order to work on securing permanent housing for her family. The undersigned can appreciate the fact the mother is raising three children, including a son with Autism on her own right now. It seems crucial that she continues to utilize support in her community to demonstrate she is able to maintain her mental health while parenting. 3 At the conclusion of the review hearing, the court accepted the social worker s recommendations to continue providing reunification services to petitioner for another six months, while discontinuing them to the father. The 12-month review hearing was held in November 2010. In her status review report to the court, the social worker recommended terminating reunification services and proceeding to adoption of a permanent plan for David. The basis for this recommendation came down to one shattering fact: petitioner had in effect abandoned her children, all four of them. As the social worker reported: The mother left her housing program without her three children, at the beginning of October 2010. The mother did not advise the undersigned of her plan of moving to Mississippi and called the undersigned after she got there. The mother left her three non-dependent children with the case manager of the housing program. At this time, the mother reported she will stay in Mississippi to take advantage of family support that includes housing. [¶] . . . [¶] . . . Currently, the three children are under a temporary custody arrangement with the case manager while the mother stays in Mississippi with her cousin and possibly moves to Louisiana in the near future if she can secure housing there. The mother s ability to parent David and her three other children together has not been assessed. The mother s availability for visitation with David has been disrupted as she left California and plans to stay in Mississippi where she can get more support from her extended family. Because the mother will not be able to visit David at least for a period of time, the child-parent relationship has been disrupted. Therefore, there is no substantial probability that David can be returned to her care within the next 6 months. Meanwhile, an adoption assessment had been made, and it found that David is adoptable and adoption is the plan. David has made a good adjustment to his placement. . . . He has a relationship with his foster parents and other family members. He looks to the foster mother for comfort in distress and for assurance . . . . The social worker was not unsympathetic to petitioner s situation, but it did not change the bottom line: The undersigned can understand the mother s struggle with her mental health and limited resources, as well as her need to get her life together with 4 family support, which she does not have here in California. However, at this time, the mother will not be available to visit David in the near future and therefore the probability of returning him to her care is highly questionable. The undersigned believes the mother loves her children, but the fact she left California without advising the undersigned and her therapist raises questions about her judgment . . . . Meanwhile, as an infant, David deserves stability and permanency to further his development and growth in a healthy way. Therefore, the undersigned recommends that Family Reunification Services be terminated for the mother and a 366.26 hearing be scheduled to consider termination of parental rights. Petitioner was not present at the hearing, but the court did allow her to participate by telephone. Petitioner s counsel advised the court that her hopes were in fact quite modest: [M]y client is not in agreement with the recommendation, but I think she does understand that the Court has very limited alternatives here, and I think that what she s really hoping is that the Court could see its way clear to make a permanent plan that is accommodating to her. [¶] I think that what she would really like to see here is a placement of the child with a relative of hers in Mississippi at this point, but I realize that there may be other interests to be served here. I ve indicated to [petitioner] that I am sure that the Agency will consider all of the options, but we won t know which options they are recommending until we arrive at a .26 hearing. Counsel then asked petitioner Is that a fair statement . . . ? She replied Yes. The court then announced its decision, as follows: The Court has considered the safety of the child. The Agency has complied with the case plan by making reasonable efforts to return the child to a safe home, and to complete whatever steps are necessary to finalize the permanent placement of the child. The Court finds that the social worker has solicited and integrated into the case plan the in-put of the child, the child s family and other interested parties. Reasonable services have been offered or provided. 5 The Court has considered the extent to which the parties have availed themselves of the services provided toward alleviating or mitigating the causes necessitating placement to date. The extent of progress that has been made by the mother is partial. . . . By a preponderance of the evidence return of the child would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the child. The factual basis for this conclusion is . . . that the mother has not made substantial progress in complying with the case plan and has not alleviated or mitigated the causes necessitating out-of-home placement. The Court orders the following placement for the child: the child s out-of-home placement continues to be necessary and appropriate. Reunification services to the mother are hereby terminated because there is not a substantial probability that the child will be returned to the custody of the mother prior to the expiration of 18 months from the date the child was originally removed from the physical custody of the parent . . . . DISCUSSION Prior to setting a hearing to terminate parental rights, the juvenile court must determine, among other things, whether using the substantial evidence standard returning the dependent child to parental custody entails a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. . . . The court shall also determine whether reasonable services that were designed to aid the parent . . . to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent . . . . In making its determination, the court shall review and consider the social worker s report and recommendation . . . [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 . . . . (Welf. & Inst. Code, § 366.21, subd. (f).) 6 Petitioner correctly recognizes that a juvenile court s finding that a parent was offered adequate reunification services will be upheld if supported by substantial evidence. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court s order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.] (In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.) Only reasonable, not ideal, services are required. (In re Jasmon O. (1994) 8 Cal.4th 398, 425.) The adequacy of services is to be determined in light of the unique circumstances of each case. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011; Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) [I]n reviewing the reasonableness of the reunification services provided by the Department, we must also recognize that in most cases more services might have been provided, and the services which are provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) Reunification services are voluntary, and cannot be forced on an unwilling or indifferent parent. (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.) The requirement that reunification services be made available to help a parent overcome those problems which led to the dependency . . . is not a requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions. A parent whose children have been adjudged dependents of the juvenile court is on notice of the conduct requiring such state intervention. (In re Michael S. (1987) 7 188 Cal.App.3d 1448, 1463, fn. 5.) The parent must communicate with the agency and participate in that process. (In re Raymond R. (1994) 26 Cal.App.4th 436, 441.) We begin with confirmation of the fundamental principle applicable here, a principle that cannot be repeated too often: It is difficult, if not impossible, to exaggerate the importance of reunification in the dependency system. With but few exceptions, whenever a minor is removed from parental custody, the juvenile court is required to provide services to the parent for the purpose of facilitating reunification of the family. (In re Luke L. (1996) 44 Cal.App.4th 670, 678; accord, In re Michael G. (1998) 63 Cal.App.4th 700, 714.) The statutory authority governing the provision of reunification services is section 361.5. Its subdivision (a) reflects the different treatment afforded to minors above and below the age of three: [W]henever a child is removed from a parent s . . . custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child s mother . . . . [¶] Family reunification services, when provided, shall be provided, as follows: [¶] (A) . . . for a child who, on the date of the initial removal from the physical custody of his or her parent . . . was three years of age or older, court-ordered services shall be provided beginning with the dispositional hearing and ending 12 months from the date the child entered foster care . . . . [¶] (B) For a child who, on the date of the initial removal from the physical custody of his or her parent . . . was under three years of age, court-ordered services shall be provided for a period of six months from the dispositional hearing . . . but no longer than 12 months . . . . [¶] . . . [¶] Notwithstanding paragraphs (A) [and] (B) . . . , court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent . . . . (Welf. & Inst. Code, § 361.5, subd. (a).) This statutory language establishes a dual-track approach based on the dependent minor s age. If the child is under three, the default position is six months of reunification services. If the child is over three, the default position is 12 months. For both categories, the outer limit is 18 months. But none of these time periods is immutable. (In re Derrick S. (2007) 156 Cal.App.4th 436, 444-445, fn. omitted.) 8 Petitioner alleges that reasonable reunification services were neither offered nor provided. She further alleges that she substantially complied with the case plan. The Court should have either returned minor to Petitioner or directed family placement. Petitioner never challenged either her case plan or the adequacy of the services. She does not now identify any particular aspects in which the plan or services were inadequate or misguided. The points are consequently forfeited for purposes of this original proceeding. (E.g., In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Dakota S. (2000) 85 Cal.App.4th 493, 502.) In any event, the plan itself, and the services offered by the Department to implement it, appear to us as certainly adequate. The juvenile court, and petitioner s counsel at the 12-month review hearing, correctly recognized that the matter of David s ultimate placement was not then an issue, but might be raised at the hearing held pursuant to Welfare and Institutions Code section 366.26 when a permanent plan would be adopted. If petitioner desired to challenge the existing non-permanent placement with the foster parents, her avenue for doing so was a motion brought pursuant to Welfare and Institutions Code section 388. (See In re Stephanie M. (1994) 7 Cal.4th 295, 317.) It will be accepted that petitioner sincerely attempted to comply with her case plan and that she did indeed have some success. Whether her progress went beyond the case worker s characterization and the juvenile court s finding as partial is a moot point in light of her departure from the state. This court recently noted, in a case involving a fugitive parent, that it was unreasonable that reunification services be provided to an empty chair. (In re Derrick S., supra, 156 Cal.App.4th 436, 448.) Although petitioner is not on the run from the law, her situation is not appreciably different. Her unannounced departure is of a piece with her history of instability. To put it bluntly, she abandoned David, and her three older children, who had themselves already been abandoned by their father. Petitioner is now half a continent away, in Mississippi, and contemplates yet another move to Louisiana. Her absence from California obviously makes the provision of reunification services by a California-based agency problematic, if not entirely academic. 9 Equally obviously, the idea of David being placed with her in these circumstances cannot be seriously entertained. A principal objective of the juvenile court is to provide an expedited proceeding to resolve the child s status without further delay. [Citation.] That objective is hardly advanced by ordering services for an absentee parent. (In re Derrick S., supra, 156 Cal.App.4th 436, 449.) Petitioner, for whatever reason and under whatever compulsion, voluntarily left her children. At a minimum, this move clearly, to use the social worker s term, disrupted her ability to maintain close contact with her children. There is consequently no genuine basis for disagreeing with the social worker s conclusion which the juvenile court implicitly accepted that there is no substantial probability that David can be returned to her care within the next 6 months. The social worker s conclusion that David deserves stability was eminently sound. As previously shown, due to David s age, petitioner was statutorily entitled to no more than six months of reunification services. In effect, she got twelve. In her circumstances, we cannot conclude that the juvenile court abused its discretion in not giving her six additional months. In light of the foregoing, we conclude that the challenged findings of the juvenile court do have the support of substantial evidence. 10 DISPOSITION The petition is denied on the merits. (Cal. Rules of Court, rule 8.452(h)(1).) This decision is final as to this court forthwith. (Id., rule 8.490(b)(1).) The stay heretofore issued is dissolved. _________________________ Richman, J. We concur: _________________________ Haerle, Acting P.J. _________________________ Lambden, J. 11

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