In re C.B. CA1/4 ( 2015 )

Filed 9/2/15 In re C.B. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
In re C.B. et al., Persons Coming Under the
Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
Plaintiff and Respondent, A142238, A142718
v.
(Alameda County Super. Ct.
N.B., Nos. OJ12018583, OJ12018584)
Defendant and Appellant.
In this dependency proceeding involving minors C.B. and J.M., girls born in 2010
and 2011 respectively, the juvenile court entered an order terminating reunification
services to the minors’ mother, N.B. (Mother), and setting a permanency planning
hearing under Welfare and Institutions Code section 366.26.1 Mother filed a section 388
petition to modify the court’s order. The court denied the petition. At the conclusion of
the subsequent section 366.26 hearing, the court found the minors were adoptable and
terminated Mother’s parental rights.
In these consolidated appeals, Mother challenges the orders denying her section
388 petition and terminating her parental rights. Mother contends (1) the Alameda
1
All statutory references are to the Welfare and Institutions Code unless otherwise
stated.
1
County Social Services Agency (Agency) did not provide her with reasonable
reunification services, because Agency did not refer Mother to the regional center for
persons with developmental disabilities or help her apply to the center, and (2) the court’s
finding that the minors are likely to be adopted is not supported by substantial evidence.
We affirm the juvenile court’s orders.
I. BACKGROUND
Agency filed the initial dependency petition in this matter on March 15, 2012, and
later amended it three times. The third amended petition, filed on May 23, 2012, alleged
C.B. and J.M. were dependents under section 300, because Mother had failed or was
unable to protect or supervise them adequately (§ 300, subd. (b)) and it was unknown
whether the minors’ alleged fathers were able to care for them (id., subd. (g)). The third
amended petition alleged Mother “has a history of involvement with the criminal justice
system, housing instability, mental health issues, and substance abuse issues that impacts
her ability to adequately protect and care for the minors[.]” Specifically, the petition
alleged (1) Mother had been arrested in July 2011 for riding with J.M. in a vehicle driven
by an intoxicated person and failing to attach J.M.’s car seat to the back seat of the
vehicle, (2) Mother had a history of lacking a safe and stable home, and she and the
minors had been living with Mother’s mother (the maternal grandmother), which
presented a risk to the children due to the grandmother’s mental health issues, substance
abuse issues and dependency history with her own children, (3) Mother had a history of
psychiatric hospitalizations, and her behavior was consistent with an ongoing mental
illness, for which she had not obtained treatment, and (4) Mother had a history of
marijuana use, and C.B. tested positive for marijuana at birth. Mother also had a history
of allowing C.B. to be cared for by the maternal grandmother, who was an inappropriate
caretaker due to her mental health and substance abuse issues.
The reports prepared by Agency for the March 19, 2012 initial hearing on the
original petition and for a March 22, 2012 detention hearing described the family’s prior
contacts with the Agency. As to maternal grandmother, Agency had received numerous
referrals over the years alleging abuse or neglect of Mother and her siblings, and Agency
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had “open case[s]” and family maintenance cases for maternal grandmother’s children at
various times. As to Mother, in June 2010 Agency investigated allegations of general
neglect of C.B. (who was then two months old); Agency found the allegations to be
inconclusive. During that investigation, maternal grandmother stated that she had been
caring for C.B. and that Mother sometimes came to her home “ ‘loaded’ ” on alcohol,
marijuana or pills. Maternal grandmother stated Mother yelled at C.B. and once
threatened to throw C.B. out the window. Mother accused maternal grandmother of
making up allegations to get custody of C.B.
In August 2011, in response to a referral from the probate court (where maternal
grandmother was seeking permanent guardianship of C.B.), Agency began another
investigation of the family. C.B. apparently was staying primarily with maternal
grandmother at that time. During the investigation, maternal grandmother reported that
C.B. had minimal contact with Mother, who only came by her home approximately twice
per month to shower or eat, but did not engage with C.B. Agency closed the referral,
finding the allegation of general neglect unfounded.
In September 2011, the probate court denied maternal grandmother’s request for
permanent guardianship of C.B. The probate court directed C.B.’s counsel to apply to the
juvenile court to review the social worker’s decision not to commence dependency
proceedings (see § 331).
Also in September 2011 (and apparently independently of the probate court
proceedings), Agency investigated an allegation of general neglect of J.M. The social
worker who conducted that investigation ultimately closed the referral as unfounded.
The social worker stated that, during this investigation, Mother “presented as possibly
having a developmental delay,” and the social worker asked Mother if she had ever been
diagnosed or if she was receiving services from Regional Center of the East Bay. Mother
stated she stopped going to school in ninth grade and did receive specialized services
when she was in school, but she was not currently receiving regional center services.
Mother “was very open to services and wanted to receive services through the Regional
Center to support her in raising her children and living a better quality of life.” Mother
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was also “open to a formal psychological assessment to determine if she is
developmentally delayed.” The social worker referred the family to the program
“ ‘Another Road to Safety’ ” (ARS) for help in obtaining housing and other services.
Mother enrolled in ARS in January 2012.
On or about March 12, 2012, a different social worker received the application
(prompted by the probate court) to review the prior decision not to commence
dependency proceedings as to C.B. On March 13, 2012, the social worker visited
maternal grandmother’s home in Oakland, where Mother and the children were living.
Maternal grandmother was planning to move to Stockton in April. Mother wanted to stay
in Oakland and said she would find a shelter until she could get her own housing.
A Team Decision Meeting was held on March 14, 2012. Maternal grandmother
did not arrive for the meeting. Mother stated she wanted to care for the children and was
willing to enter a transitional housing program. Mother disclosed that, a few weeks
earlier, maternal grandmother had been hospitalized after calling her counselor and
telling her that she was suicidal. The outcome of the meeting was that Mother would
leave maternal grandmother’s home as soon as possible and enter a transitional housing
program with the children. Mother, however, remained at maternal grandmother’s home
after maternal grandmother stated she would leave the home. Mother’s ARS advocate
reported to the social worker that Mother had been cooperative and was working to get
documents together to apply for housing.
As noted, Agency filed the original petition in this matter on March 15, 2012. In
its report for the March 19, 2012 initial hearing, Agency recommended that C.B. and J.M.
“remain in the home of [Mother], pending further investigation.”
At the initial hearing on March 19, 2012, Mother was taken into custody due to
outstanding bench warrants. C.B. and J.M. were placed in protective custody. The
following day, they were placed with a non-relative extended family member, the
girlfriend of a maternal uncle. At a detention hearing on March 22, 2012, the juvenile
court ordered the minors detained and set a hearing on jurisdiction and disposition for
April 5, 2012.
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In its report for the April 5, 2012 hearing, Agency recommended that the minors
be made dependents of the court and remain out of the home of Mother, and that Mother
receive family reunification services, including counseling. Mother remained
incarcerated. The report stated Mother had “developmental delays” and struggled to
manage the children on her own. Mother had mental health and behavioral problems as a
teenager. Mother’s criminal history included multiple arrests and grants of probation.
The report noted Mother began receiving ARS services in January 2012, had been
cooperative with the services and was working on finding her own housing, but had
remained in the home of the maternal grandmother, despite the grandmother’s substance
abuse and mental health issues. Mother had relied predominantly on maternal
grandmother for C.B.’s care. Agency stated that, upon Mother’s release from jail, she
would need to “establish a stable and safe residence and demonstrate her ability to
provide appropriate care for the minors.”
After the jurisdiction/disposition hearing was continued to May 21, 2012, Agency
filed an addendum report, in which it again recommended that the children be made
dependents of the court and remain out of the home of Mother, and that Mother receive
family reunification services. The report stated that, on April 16, 2012, Mother was
convicted of misdemeanor child endangerment (arising from her July 2011 arrest for
failing to secure J.M.’s car seat and traveling in a vehicle driven by an intoxicated
person) and placed on probation. Mother was required to take parenting classes and
began the classes on May 12, 2012. Mother began having unsupervised visits with the
minors in the community. The social worker referred Mother to the Ariel Outreach
Mission short-term transitional housing program. Although Mother missed the first
intake appointment, she attended a rescheduled appointment on May 10, 2012. Mother
entered the program, but left the following day due to an issue with a staff member,
which the parties subsequently resolved. Mother planned to return to the program, and
the social worker had scheduled a meeting with Mother and the program director. In
addition, in April 2012, Agency referred Mother for psychological testing and a parenting
capacity evaluation. Agency noted Mother was taking important steps toward stabilizing
5
her living situation and using services, but stated it was important for Mother to continue
to make progress in these areas and to develop her ability to care for the children.
At the May 21, 2012 hearing on jurisdiction and disposition, the juvenile court
sustained the amended petition, declared C.B. and J.M. to be dependents and ordered
Agency to provide family reunification services to the minors and Mother.
In an interim review report submitted for an August 2012 status hearing, Agency
stated that, in June 2012, Mother was discharged from the Ariel shelter for having a
physical altercation with another resident. The social worker helped Mother get into a
different shelter later in June, but Mother was discharged in July for having a physical
altercation with a resident of that shelter. Mother participated in a psychological
evaluation and a caretaker capacity evaluation, and continued to participate in parenting
classes and individual therapy.
In its report for the November 2012 six-month review hearing, Agency
recommended the continuation of reunification services to Mother, and recommended
C.B. and J.M. remain dependents of the court and remain in their out-of-home placement.
Mother was living mainly with the maternal grandmother. Mother had completed 21 of
26 parenting classes and a psychological evaluation, continued to participate in individual
therapy and would be starting anger management classes. Agency reported, however,
that Mother had a limited understanding of childhood development and parenting
techniques and was having a difficult time applying the information and skills she learned
in the parenting classes. Agency’s report stated Mother sustained a brain injury at a
young age and had cognitive impairments. In September 2012, due to the pregnancy of
their caretaker and her inability to continue to care for the minors, C.B. and J.M. were
moved to the home of a different non-relative extended family member. At the six-
month review hearing on November 2, 2012, the court found Agency had provided
reasonable services and ordered the continuation of reunification services to Mother.
In a December 2012 report for a status review hearing, Agency stated that, due to
concerns the social worker and minors’ counsel had about the quality of the
psychological evaluation that Mother had completed in August, Agency was seeking to
6
arrange a psychological evaluation by a different provider, as well as a neurological
evaluation. The social worker learned it would be necessary for Mother to undergo a
battery of medical tests before a neurological evaluation could be completed. As Mother
did not have medical insurance, the social worker referred Mother to the Berkeley Free
Clinic and Highland Hospital to get a referral for a neurological evaluation. Mother did
not appear to see this referral as helpful or necessary. The social worker explained “on
several occasions why this is important,” but Mother was resistant to “wait[ing] at
Highland Hospital ‘all day . . . for no reason.’ ” Agency reported Mother and the minors
were participating in therapeutic visits.
In its April 2013 report for the 12-month review hearing, Agency recommended
that family reunification services to Mother be terminated and that a section 366.26
permanency hearing be set. Agency reported that, although Mother attempted to meet the
children’s needs and adequately parent them, she was not willing to try new parenting
strategies, and she struggled with limit-setting and redirection during therapeutic visits.
The social worker also stated Mother appeared to have “some difficulty applying and
even relaying the information and skills [he] had hoped she would acquire through
parenting classes, therapeutic visits, and anger management.” Mother stated she had not
learned anything during the therapeutic visits and did not feel she needed to work on her
parenting skills. Mother had completed her parenting classes, but had participated in
only nine out of 32 anger management classes that she was referred to on October 12,
2012. Mother had completed a second psychological evaluation and parenting capacity
evaluation. Mother had resisted having a neurological evaluation, but eventually had
scheduled one for April 11, 2013.
As to individual therapy, beginning in November 2012, Mother became
inconsistent in attending her therapy sessions. Due to Mother’s numerous missed
appointments and late arrivals, Mother’s therapist sent a letter to the social worker in
March 2013 stating that (as of late February 2013) she would no longer be providing
counseling services to Mother. The therapist reported that Mother “stated that she does
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not have an interest or feels that she has a need for counseling and only participates
because she is court mandated to [do] so.”
At the 12-month review hearing on April 19, 2013, the court set the matter for a
contested hearing on June 5, 2013. At the June 5, 2013 hearing, the court admitted into
evidence the Agency reports prepared for the December 12, 2012 and April 19, 2013
hearings, as well as Mother’s second psychological evaluation. The social worker
testified at the June 5 hearing that the primary factor in his decision to recommend
termination of services was Mother’s difficulty in improving her parenting skills and
“really being able to monitor the girls and provide a safe home for them.” Mother had
difficulty supervising the children during visits, and used food as a primary method to
manage their behavior. During a one-hour visit to a park, the girls were “running away,
into the street,” while Mother “was on her cell phone and not paying attention to what
they were doing.” Although Mother participated in some services, her participation did
not “translate[]” into changes to her parenting style. Mother did not believe she needed
to learn or use different parenting techniques.
The social worker noted that the family had reported Mother was hit by a vehicle
when she was five or six years old and may have sustained traumatic brain injury, but the
family had no documentation of the event or its effects on Mother. The social worker’s
goal was to have Mother enter a regional center home. The social worker called the
regional center in an effort to refer Mother for services there, but the staff told him the
regional center needed documentation of the childhood injury. The social worker’s
understanding was that he could not proceed with a regional center referral without such
documentation.
The social worker also recounted his efforts to arrange a neurological examination
for Mother, beginning with asking Mother’s physician to refer Mother for a neurological
examination. Mother would not agree to have the social worker or a parent advocate go
to her doctor appointment with her, so the social worker wrote a letter to the doctor
asking for the referral. The social worker also worked to locate community clinics that
would see Mother, because of Mother’s concerns about long waits at Highland Hospital.
8
The neurological examination was scheduled on several occasions, but did not occur. As
to the initial scheduled examination, Mother “didn’t feel that it was necessary.” Mother
missed one scheduled examination because of a funeral, and one because she was briefly
on bed rest. At the final appointment the social worker was able to make, the provider
did not accept Mother’s insurance.
When the contested hearing continued on June 6, 2013, Mother testified she would
be willing to attend a neurological examination if another appointment was made with a
doctor who accepted her insurance. Mother acknowledged she told the social worker she
did not see why she needed to have a neurological examination. Mother testified she
stopped seeing her therapist because their “time ran out.” Mother also testified she told
the therapist and the social worker that she did not need or want to go to therapy
anymore. Mother testified she would be willing to see a therapist again. As for housing,
Mother testified she was looking for rentals and was on a waiting list for low-income
housing.
Mother was expecting another child. Mother testified she has experience caring
for young children, as she frequently babysits for relatives, including watching a three-
year-old, an eight-month-old and a two-month-old. Mother believed that, if C.B. and
J.M. were returned to her care, she would be capable of caring for them and the newborn
she was expecting.
In her closing argument, Mother’s counsel stated she was not arguing that Agency
had failed to provide reasonable services. Mother’s counsel stated: “I’m not arguing
reasonable services and I’m not arguing that the Agency has some sort of bias and has
been unfair to [Mother] . . . .” Mother’s counsel argued, however, that the court should
find there was a substantial probability the children could be returned to Mother by the
18-month hearing date.
On June 12, 2013, the court announced its decision, finding that, although Mother
loved the children and had participated in some services, her participation had been
incomplete and she did not see the need for certain services. The court did not find there
was a substantial probability the children could be returned to Mother by the time of the
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18-month hearing. The court found reasonable services had been provided, terminated
reunification services to Mother, and set a section 366.26 hearing for October 7, 2013.
The court later continued the section 366.26 hearing to December 5, 2013, then to March
27, 2014, and then to July 17, 2014.
On January 21, 2014, Mother (through her counsel) filed a section 388 petition on
Judicial Council Form JV-180, requesting that the court modify its June 12, 2013 order
terminating reunification services to Mother and setting a section 366.26 hearing. In the
petition, Mother requested that C.B. and J.M. be returned to her care, or alternatively, that
she be provided with an additional six months of family reunification services. In the
portion of the form asking for new information that would support a modification of the
prior order (“What has happened since [the June 12, 2013 order] that might change the
judge’s mind?”), counsel stated Mother had given birth to another daughter, and “has
since demonstrated her ability to safely care for [her]. In September of 2013, [Mother]
began receiving supportive services, including therapy, parenting counseling, housing
assistance, daycare and assistance with application to the Regional Center of the East
Bay, from CHOP [Children’s Hospital Oakland] Center for the Vulnerable Child and
Through the Looking Glass.” Attached to the petition were a September 2013 letter from
a case manager at the Center for the Vulnerable Child, and a November 2013 letter from
a family partner at Through the Looking Glass, a resource center for parents with
disabilities and their children. Near the end of her letter, the family partner at Through
the Looking Glass stated: “[Mother] does not seem to have been offered the full range of
services she would need to be successful as a parent. It appears an early recommendation
to obtain Regional Center of the East Bay services did not occur. Regional Center of the
East Bay offers independent living and parenting skills support. I have submitted an
application, with supporting documents, for Regional Center of the East Bay services on
[Mother’s] behalf.”
The court set a hearing on the section 388 petition for March 14, 2014, and later
continued it to March 27, 2014, and then to May 22, 2014. At the May 22, 2014 hearing,
the court admitted into evidence Agency’s March 27, 2014 reports (a section 366.26
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report and an addendum report) and a May 22, 2014 status review report. Also at the
May 22, 2014 hearing, Mother testified she visits with the children twice per month for
one hour each time. Visits previously had been twice per week, but were reduced
because “it is in adoption.” Mother testified C.B. and J.M. enjoy the visits and find it
difficult to end the visits.
Mother testified she started seeing a new therapist in February 2014. In her
therapy sessions, she discusses the minors and “[h]ow to be a mother.” She also talks
with the therapist about how to find housing and how to deal with depression and anxiety.
Mother had been living at a 90-day shelter since March 2014; she had been looking for
housing and was on a waiting list. If she were granted custody of C.B. and J.M., they
could stay in the shelter with her. Finally, Mother testified her youngest child was
brought to Agency’s attention due to a diaper rash that looked like bruises. As a result,
Mother was receiving informal family maintenance services.
On June 3, 2014, the court denied Mother’s section 388 petition, stating Mother
“did not meet her burden on her 388 Petition to establish either changed circumstances or
the children’s best interest.” Mother filed a notice of appeal (No. A142238) challenging
the order denying her section 388 petition.
At the section 366.26 hearing on July 17, 2014, the court admitted into evidence
the reports Agency had prepared for the various scheduled dates for that hearing. A
report filed July 2, 2014 stated that Mother’s youngest child was detained on June 13,
2014, based in part on allegations that, on June 2, 2014, Mother was intoxicated and had
her youngest daughter with her when she got into an altercation with a convenience store
owner and stole $900. The following day, Mother was again intoxicated and vomited on
herself while holding her youngest child. At the July 17, 2014 hearing, Mother and the
social worker testified about Mother’s visits with C.B. and J.M., including occasions on
which the social worker believed Mother had difficulty redirecting the children and
setting limits for them.
On July 31, 2014, the court found the minors were adoptable and terminated
Mother’s parental rights. Mother filed a notice of appeal (No. A142718) challenging the
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court’s order terminating parental rights. We granted Agency’s motion to consolidate
Mother’s two appeals.
II. DISCUSSION
A. The Denial of Mother’s Section 388 Petition
In her appeal of the juvenile court’s denial of her section 388 petition, Mother
contends Agency failed to provide her with reasonable reunification services because it
did not refer her to the regional center or help her apply. Mother contends the juvenile
court therefore was incorrect in finding at the 12-month review hearing in June 2013 that
Agency had provided reasonable services. Mother argues her section 388 petition (filed
in January 2014) showed she had not received reasonable services, and the court abused
its discretion by denying the section 388 petition to reinstate services.
Under section 388, a parent may petition to modify a prior order “upon grounds of
change of circumstance or new evidence.” (§ 388, subd. (a)(1); see Cal. Rules of Court,
rule 5.570(a).) The petitioner must show a change of circumstances or new evidence and
that the proposed modification is in the child’s best interests. (See In re Jasmon O.
(1994) 8 Cal. 4th 398, 415.) We review the denial of a petition for modification under
section 388 for abuse of discretion. (In re B.D. (2008) 159 Cal. App. 4th 1218, 1228.)
We reject Mother’s argument that the juvenile court abused its discretion in
denying her section 388 petition. First, we agree with Agency that Mother forfeited the
contention she now raises on appeal (i.e., that Agency did not provide reasonable
services) because she did not present it to the juvenile court. In dependency matters, as in
other cases, “a reviewing court ordinarily will not consider a challenge to a ruling if an
objection could have been but was not made in the trial court.” (In re S.B. (2004) 32
Cal. 4th 1287, 1293, superseded by statute on another ground as stated in In re S.J. (2008)
167 Cal. App. 4th 953, 962.) As noted, in her section 388 petition, Mother argued the
court should modify its June 2013 order terminating services, not because Agency had
failed to provide reasonable services, but because Mother’s circumstances had changed
since the entry of the June 2013 order (i.e., Mother had given birth to another daughter,
had demonstrated her ability to care for her, and had begun receiving supportive services
12
from the Center for the Vulnerable Child and Through the Looking Glass). Although the
family partner at Through the Looking Glass suggested near the end of her letter
(attached to Mother’s section 388 petition) that Mother had not received the full range of
necessary services, including a referral to the regional center, Mother did not assert in her
petition that Agency had failed to provide reasonable services or that the juvenile court
had erred in finding the services provided were reasonable.
Similarly, at the hearings on the section 388 petition, Mother’s counsel did not
argue Agency failed to provide reasonable services. At the May 22, 2014 hearing on the
section 388 petition, when the court asked what changed circumstances supported the
petition, Mother’s counsel responded by focusing on events that had occurred since the
June 2013 order terminating services: “I am arguing that the changed circumstance is the
continued out-of-custody situation with the other child and then the mother continuing to
work towards return by looking for additional housing and consistently visiting and being
gravely restricted in her ability to see her children to work towards return.” Mother’s
counsel did not argue that Agency had failed to provide reasonable services, or that such
a failure provided a basis for granting the section 388 petition. In ruling on the section
388 petition, the juvenile court did not abuse its discretion by failing to adopt a theory
that Mother never presented.2
Second, even if Mother did not forfeit her challenge to the juvenile court’s finding
that Agency offered her reasonable services, we conclude that challenge fails on the
merits. “Typically, when a child is removed from a parent, the child and parent are
entitled to 12 months of child welfare services to facilitate family reunification. These
services may be extended to a maximum of 18 months. (§ 361.5, subd. (a).) If, at the
12–month hearing, [Agency] does not prove, by clear and convincing evidence, that it has
2
On appeal, Mother does not contend the trial court abused its discretion by
rejecting the argument Mother made in support of her section 388 petition in the juvenile
court (i.e., her claim that her circumstances had changed since the June 2013 hearing, as
evidenced by her care for her newborn daughter and her participation in services
provided by the Center for the Vulnerable Child and Through the Looking Glass).
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provided reasonable services to the parent, family reunification services must be extended
to the end of the 18–month period.” (Amanda H. v. Superior Court (2008) 166
Cal. App. 4th 1340, 1345 (Amanda H.); see § 366.21, subd. (g)(4).)3 The evidence of
reasonable services must be “ ‘ “so clear as to leave no substantial doubt” ’ ” (In re
Maria S. (2000) 82 Cal. App. 4th 1032, 1039) and “ ‘sufficiently strong to command the
unhesitating assent of every reasonable mind.’ ” (In re Monica C. (1995) 31 Cal. App. 4th
296, 306.) We review the juvenile court’s finding of reasonableness of offered services
under the substantial evidence test. (Amanda H., supra, at p. 1346.) “[O]ur sole task on
review is to determine 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), bearing in mind the heightened
burden of proof in the trial court of clear and convincing evidence (In re Alvin R. (2003)
108 Cal. App. 4th 962, 971 (Alvin R.)). Substantial evidence is that which is reasonable,
credible and of solid value. (Ibid.)
Mother contends Agency did not offer her reasonable services because it did not
refer her to a regional center or help her apply. Regional centers are designed to provide
services to persons with developmental disabilities.4 Under section 4512, subdivision (a),
3
For a child who was under three years of age when she was removed from
parental custody (as both C.B. and J.M. were), the court may in some circumstances
terminate services at the six-month review hearing. (§ 366.21, subd. (e); see § 361.5,
subd. (a)(1)(B).) A prerequisite for such action is that the agency prove by clear and
convincing evidence at the six-month review hearing that the parent has “failed to
participate regularly and make substantive progress in a court-ordered treatment plan.”
(§ 366.21, subd. (e).) At the six-month review hearing in this case, the court did not
make such findings; instead, as noted, the court adopted Agency’s recommendation to
continue reunification services to Mother.
4
(See § 4620, subd. (a) [“In order for the state to carry out many of its
responsibilities as established in this division, the state shall contract with appropriate
agencies to provide fixed points of contact in the community for persons with
developmental disabilities and their families, to the end that these persons may have
access to the services and supports best suited to them throughout their lifetime. It is the
intent of the Legislature in enacting this division that the network of regional centers for
persons with developmental disabilities and their families be accessible to every family in
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“ ‘[d]evelopmental disability’ means a disability that originates before an individual
attains 18 years of age; continues, or can be expected to continue, indefinitely; and
constitutes a substantial disability for that individual.” The services available to such
persons through the regional centers include “specialized services and supports or special
adaptations of generic services and supports directed toward the alleviation of a
developmental disability or toward the social, personal, physical, or economic
habilitation or rehabilitation of an individual with a developmental disability, or toward
the achievement and maintenance of independent, productive, and normal lives”; these
services can include “training for parents with developmental disabilities.” (§ 4512,
subd. (b).) A person believed to have a developmental disability is eligible for initial
intake and assessment services in the regional centers. (§ 4642, subd. (a).) Mother
argues that, because Mother’s apparent cognitive limitations suggested she was eligible
for regional center services, Agency’s reunification plan and services were inadequate
because they did not include a referral to the regional center.
We disagree. The purpose of reunification services is to “ ‘ “facilitate the return of
a dependent child to parental custody.” ’ ” (In re Karla C. (2010) 186 Cal. App. 4th 1236,
1244.) The “ ‘adequacy of reunification plans and the reasonableness of the [Agency’s]
efforts are judged according to the circumstances of each case.’ [Citation.] To support a
finding 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 . . . .’ ” (Tracy J. v. Superior Court
(2012) 202 Cal. App. 4th 1415, 1426.) “In almost all cases it will be true that more
services could have been provided more frequently and that the services provided were
imperfect. The standard is not whether the services provided were the best that might be
need of regional center services.”]; In re Victoria M. (1989) 207 Cal. App. 3d 1317, 1329,
fn. 8.)
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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; see Alvin R., supra,
108 Cal.App.4th at p. 972 [“[r]eunification services need not be perfect”].)
The Agency is required “to ‘make a good faith effort to develop and implement a
family reunification plan . . . [with] the objective of providing such services or counseling
“as will lead to the resumption of a normal family relationship.” ’ ” (In re Jasmon O.,
supra, 8 Cal.4th at p. 424.) Here, Agency designed an appropriate reunification plan and
offered appropriate services to Mother, including parenting classes, anger management
classes, individual therapy, visitation with C.B. and J.M. (including therapeutic
visitation), referrals to housing assistance programs, and two psychological and parenting
capacity evaluations.
As to Mother’s claim that Agency should have referred her to the regional center,
Mother is correct that Agency became aware, before and during the dependency
proceedings, that Mother might have developmental disabilities. During Agency’s 2010
investigation of Mother, maternal grandmother told the social worker that Mother was hit
by a truck when she was five years old and had mental health issues. The social worker
who conducted Agency’s September 2011 investigation of Mother recognized she might
have developmental disabilities, and discussed with her the possibility of obtaining
regional center services. After the instant dependency proceeding was commenced in
March 2012, Agency stated in its April 2012 report for the hearing on jurisdiction and
disposition that Mother had “developmental delays,” struggled to manage the children on
her own, and had mental health and behavioral problems as a teenager. A subsequent
report stated Mother had sustained a brain injury at a young age and had cognitive
impairments.
Contrary to Mother’s contention, however, Agency attempted to follow up on this
issue and to obtain regional center services or other appropriate services for Mother. The
social worker testified at the 12-month permanency hearing that, although the family had
reported Mother was hit by a vehicle when she was five or six years old and may have
sustained traumatic brain injury, the family had no documentation of this incident or its
16
effects on Mother. The social worker testified that his goal was to have Mother enter a
regional center home. The social worker called the regional center in an effort to refer
Mother for services there, but the staff told him the regional center needed documentation
of the childhood injury. (See § 4512, subd. (a) [developmental disability means a
disability originating before an individual attains 18 years of age].) The social worker’s
understanding was that he could not proceed with a regional center referral without such
documentation.
As noted, the social worker also attempted to arrange a neurological examination
for Mother. The social worker wrote a letter to Mother’s physician asking for a referral
to a neurologist (since Mother would not agree to have the social worker or a parent
advocate go to her doctor appointment with her), and worked to locate community clinics
that would see Mother, given her concern about waiting at Highland Hospital. The
neurological examination was scheduled on several occasions, but did not occur. The
initial scheduled examination did not happen because Mother did not feel it was
necessary. Mother missed another scheduled examination due to a funeral and one
because she was briefly on bed rest. At the final appointment the social worker was able
to make, the provider did not accept Mother’s insurance.
The social worker’s active efforts in this area distinguish this case from In re K.C.
(2012) 212 Cal. App. 4th 323, 329, cited by Mother, in which the appellate court found the
social services agency had not provided sufficient assistance to a parent in obtaining a
psychotropic medication evaluation. Moreover, to the extent Mother resisted
participating in offered services, such as the proposed neurological evaluation, such
resistance limited Agency’s ability to provide her with additional services that might have
been warranted based on the results of a completed neurological evaluation. (See In re
Christina L. (1992) 3 Cal. App. 4th 404, 417–418 [parent’s resistance to participating in
services supported conclusion agency made a good faith effort to provide services under
the circumstances].)
Mother, however, criticizes the social worker’s efforts. She contends the social
worker was incorrect in believing (as he was told by regional center staff) that it was
17
necessary to provide documentation that Mother’s impairments originated in childhood.
Similarly, she argues it was “neither necessary nor reasonable” for the social worker to
attempt to arrange a neurological examination with a private clinician, and the social
worker should instead have submitted an application to the regional center and allowed it
to conduct its own evaluations of Mother. (But see § 4643, subd. (b) [in determining if
an individual meets the definition of developmental disability, regional center may
consider evaluations and tests, including “other tests or evaluations that have been
performed by, and are available from, other sources”].) Finally, Mother suggests Agency
might have had information supporting a referral to the regional center in its own records,
including records of prior dependency proceedings occurring when Mother was a child.
But these criticisms do not establish a lack of substantial evidence supporting the
juvenile court’s finding that Agency offered reasonable services to Mother. Even
assuming Mother is correct that a person with a more nuanced understanding of regional
center practices and requirements might have been able to secure additional services for
Mother, the social worker’s testimony about his efforts in this area provides ample
evidence supporting a conclusion that Agency made a good faith effort to design and
implement a case plan appropriate for Mother (In re Jasmon O., supra, 8 Cal.4th at
p. 424), and that the services Agency did provide were reasonable under the
circumstances (In re Misako R., supra, 2 Cal.App.4th at p. 547).
B. The Termination of Mother’s Parental Rights
Mother raises two challenges to the juvenile court’s order terminating her parental
rights. First, Mother reiterates the argument she made in challenging the court’s denial of
her section 388 petition—she argues Agency failed to provide reasonable services
because it failed to refer her to the regional center and help her apply; the juvenile court
therefore erred in denying Mother’s section 388 petition to reinstate services; and because
the order denying the section 388 petition must be reversed, the subsequent order
terminating parental rights must also be reversed. For the reasons discussed in part II.A
above, we reject this argument. The court did not err in terminating services, setting the
section 366.26 hearing, and denying Mother’s section 388 petition.
18
Mother’s second challenge to the court’s order terminating her parental rights is
that there is no substantial evidence supporting the court’s determination C.B. and J.M.
are likely to be adopted within a reasonable time. We disagree.
“Once reunification services are ordered terminated, the focus shifts to the needs
of the child for permanency and stability.” (In re Marilyn H. (1993) 5 Cal. 4th 295, 309.)
To select adoption as a child’s permanency plan at a section 366.26 hearing, the juvenile
court must find by clear and convincing evidence that it is likely the child will be adopted
within a reasonable time. (§ 366.26, subd. (c)(1); In re Zeth S. (2003) 31 Cal. 4th 396,
406.) The fact the child is not yet placed with a family prepared to adopt the child “shall
not constitute a basis for the court to conclude that it is not likely the child will be
adopted.” (§ 366.26, subd. (c)(1); In re B.D., supra, 159 Cal.App.4th at p. 1231.) The
adoptability inquiry “focuses on the minor, e.g., whether the minor’s age, physical
condition, and emotional state make it difficult to find a person willing to adopt the
minor. [Citations.] Hence, it is not necessary that the minor already be in a potential
adoptive home or that there be a proposed adoptive parent ‘waiting in the wings.’ ” (In re
Sarah M. (1994) 22 Cal. App. 4th 1642, 1649.) If the court finds it is likely the child will
be adopted, it must order adoption unless termination of parental rights would cause
serious detriment to a child under one or more statutory exceptions (which Mother does
not contend are applicable). (§ 366.26, subd. (c)(1); In re Autumn H. (1994) 27
Cal. App. 4th 567, 574.)
When the juvenile court’s adoptability finding is challenged on appeal, we
determine “whether the record contains substantial evidence from which the court could
find clear and convincing evidence that the child was likely to be adopted within a
reasonable time.” (In re B.D., supra, 159 Cal.App.4th at p. 1232.) We draw all
reasonable inferences supporting the juvenile court’s adoptability finding and resolve any
evidentiary conflicts in favor of the court’s order. (In re Autumn H., supra, 27
Cal.App.4th at p. 576.)
The record that was before the juvenile court at the section 366.26 hearing in July
2014 contains substantial evidence supporting the court’s finding that C.B. and J.M. are
19
likely to be adopted.5 As noted above, at the July 17, 2014 hearing, the court admitted
into evidence the Agency’s section 366.26 reports. In its reports, Agency concluded C.B.
and J.M. were adoptable and adoption was the appropriate permanent plan. Agency
reported that adoption assessments were conducted by the social worker and a child
welfare adoptions supervisor on March 5, 2013 and September 4, 2013, and the minors
were found to be adoptable.
The evidence before the court supported the Agency’s conclusion that C.B. and
J.M. were adoptable. As noted above, the adoptability inquiry focuses on the child,
including whether the minor’s age, physical condition and emotional state make it
difficult to find a person willing to adopt the child. (In re Sarah M., supra, 22
Cal.App.4th at p. 1649.) A child’s young age, good physical and emotional health,
intellectual growth, and ability to develop interpersonal relationships are attributes that
may support a determination the child is likely to be adopted within a reasonable time.
(Id. at p. 1651.)
C.B.’s and J.M.’s young ages and good physical health support a finding of
adoptability. The section 366.26 reports filed in March 2014 and July 2014 noted that
C.B. was four years old and J.M. was three years old. Agency also reported the girls “are
5
In May 2015, after these appeals were fully briefed, Agency filed motions asking
this court to (1) consider postjudgment evidence that C.B. and J.M. were placed in an
approved adoptive home in September 2014, and (2) dismiss as moot the portion of
Mother’s appeal challenging the juvenile court’s adoptability finding. Mother opposed
the motions. Although Code of Civil Procedure section 909 permits an appellate court to
consider postjudgment evidence, our Supreme Court has instructed that this appellate
authority “ ‘should be exercised sparingly,’ ” as “[i]t has long been the general rule and
understanding that ‘an appeal reviews the correctness of a judgment as of the time of its
rendition, upon a record of matters which were before the trial court for its
consideration.’ ” (In re Zeth S., supra, 31 Cal.4th at p. 405.) “ ‘Absent exceptional
circumstances, no such findings should be made.’ ” (Ibid.) Here, because we conclude
the record before the juvenile court in July 2014 contains substantial evidence supporting
its adoptability finding, we need not address whether consideration of postjudgment
evidence on the adoptability issue is appropriate in the circumstances of this case. We
deny Agency’s motions for consideration of postjudgment evidence and for partial
dismissal of Mother’s appeal.
20
both in good health, with no significant developmental issues.” While C.B. takes
clonidine for attention deficit hyperactivity disorder (ADHD) and her blood pressure is
routinely monitored as a result, her physician reported that “ ‘[h]er blood pressure
remains stable and within normal limits.’ ” Although J.M. was diagnosed with a heart
murmur prior to dependency, her physician continued to monitor this condition and had
no current concerns. Mother does not dispute the girls are physically healthy.
As to emotional health, Agency reported: “[J.M.] has no significant emotional or
behavioral issues. [C.B.] has some behavioral issues, including aggressive and defiant
behavior, although she has shown some improvement since starting medication for
ADHD. She needs a caregiver who can consistently engage in good limit setting.”
Agency stated J.M. “typically has a warm and friendly disposition, but gets jealous if
[C.B.] gets more attention or any different treatment. Recently she has begun imitating
[C.B.’s] defiant and impulsive behaviors.”
Mother argues C.B. has significant emotional and behavioral problems that would
make it difficult to place her for adoption. Mother does not argue J.M. has similar
problems, but Mother contends that, since C.B. and J.M. are a bonded sibling set who
were being considered for adoption together, C.B.’s problems make it difficult to place
the girls for adoption.6 Drawing all reasonable inferences in support of the judgment, the
evidence in the record supports a conclusion that, despite C.B.’s difficulties, she was
likely to be adopted, in light of the efforts that were being made to address those
difficulties and her other positive traits.
6
Since we conclude there is substantial evidence C.B. is likely to be adopted, we
need not address Mother’s argument that a contrary finding as to C.B. would preclude a
finding of adoptability as to J.M. where, as here, Agency is seeking to place the siblings
for adoption together. (Compare In re B.D., supra, 159 Cal.App.4th at p. 1233 [finding a
lack of evidence to support a finding that three siblings were likely to be adopted as a
sibling group within a reasonable time] with In re I.I. (2008) 168 Cal. App. 4th 857, 872 &
fn. 3 [statutory and case law require determination of adoptability of a child as an
individual; disagreeing with In re B.D., supra, “to the extent it held that a finding of
adoptability in the context of a bonded sibling group requires a finding that the children
are likely to be adopted as a sibling group within a reasonable time”].)
21
As Mother notes, Agency’s reports disclose C.B. had speech delays. But, as
Mother acknowledges, the speech delays appeared to have decreased over time. C.B.’s
foster parent noted that C.B.’s speech difficulties had decreased since C.B.’s placement
with her, and the social worker and the foster parent were working to obtain appropriate
speech therapy for C.B. in school.
Agency’s reports also state that C.B. had “some behavioral issues” and difficulty
processing changes in her environment, and she was participating in therapy to assist with
these issues. Agency reported: “C.B. is generally happy and inquisitive. She seems to
indiscriminately attach and does not experience typical ‘stranger danger’ for a child her
age. [C.B.] is very active and has some behavioral issues; for instance, the foster parent
has found that she must put [C.B.] into her car seat first, or [C.B.] will run into the street
while the foster parent is dealing with [J.M.] [C.B.] is not always redirectable and can
present challenges to caregivers, including slapping her sister, scratching, and biting.
[¶] [C.B.] seems to process more slowly than other children her age, particularly around
transitions. . . . The therapist . . . states that breaking down everything step by step seems
to help [C.B.] Sometimes she may not follow directions and will tantrum, but she seems
to be learning.” Finally, Agency reported that, as noted above, C.B. was diagnosed with
ADHD and had been prescribed clonidine. Agency stated that C.B. “is easily
dysregulated and can be triggered easily by any transitions, external stimuli (such as loud
noises), or a lack of structure.”
Despite these challenges, Agency concluded, and the juvenile court reasonably
could conclude based on the evidence, that C.B. was likely to be adopted. C.B. was still
young (four years old) and was receiving medical and therapeutic assistance to help
address her difficulties. As noted, Agency reported C.B. had shown some improvement
in her behavior since starting medication for ADHD. C.B.’s therapist also stated that
breaking down tasks and transitions seemed to help C.B., and despite her difficulty in
following directions, she seemed to be learning. The therapist stated C.B. “thrives when
she can predict and anticipate changes in her environment,” and responds well “when she
is positively praised for specific actions she is completing that are desirable and when
22
behavioral expectations of her are clear, concrete and anticipated.” Consistent with these
findings, Agency (in stating its conclusion that the girls are adoptable) stated C.B. “needs
a caregiver who can consistently engage in good limit setting.”
This evidence that C.B. can respond well to appropriate care and assistance
supports the juvenile court’s finding she is adoptable. This is not—as Mother contends—
a case like In re Asia L. (2003) 107 Cal. App. 4th 498, 510–512, where the appellate court
found insufficient evidence the minors were likely to be adopted within a reasonable time
because of their severe emotional and developmental problems. Here, the court
reasonably could conclude that, in light of C.B.’s young age, good physical health,
generally happy disposition, and amenability to assistance with her emotional and
behavioral challenges, it was likely she would be adopted within a reasonable time. (See
In re I.I., supra, 168 Cal.App.4th at p. 871 [despite negative behaviors, children’s
positive traits, including good physical health and affectionate dispositions, supported
finding of adoptability].)
Because the evidence supports a conclusion C.B. and J.M. were generally
adoptable, the fact Agency had not yet (at the time of the section 366.26 hearing in July
2014) placed them in an approved adoptive home does not undercut the juvenile court’s
finding of adoptability.7 (§ 366.26, subd. (c)(1); In re B.D., supra, 159 Cal.App.4th at
p. 1231.)
III. DISPOSITION
The juvenile court’s orders denying Mother’s section 388 petition and terminating
Mother’s parental rights are affirmed.
7
Agency’s report for the July 17, 2014 hearing stated that, on June 25, 2014, the
social worker met with a family interested in adoption. Agency stated: “The prospective
caregiver wishes to move forward with visitation and placement for adoption.”
23
_________________________
Streeter, J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Rivera, J.
24
A142238, A142718/In re C.B.
25