S.B. v. Superior Court CA5 ( 2013 )

Filed 3/5/13 S.B. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
S.B. et al.,
F066180
Petitioners,
(Super. Ct. No. 516238)
v.
THE SUPERIOR COURT OF STANISLAUS
COUNTY, OPINION
Respondent;
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann A.
Ameral, Judge.
Nadine Salim, for Petitioner S.B.
Alistair Sheaffer, for Petitioner T.W.
No appearance for Respondent.
John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County
Counsel, for Real Party in Interest.
-ooOoo-
* Before Wiseman, Acting P.J., Poochigian, J. and Peña, J.
Petitioners Terry (father) and S.B. (mother) seek an extraordinary writ (Cal. Rules
of Court, rule 8.452) from the juvenile court’s orders issued at a contested six-month
review hearing (Welf. & Inst. Code, § 366.21, subd. (e))1 terminating their reunification
services and setting a section 366.26 hearing as to their one-year-old son, T.W. Father
and mother contend they did not receive reasonable reunification services. Therefore,
they further contend, the juvenile court erred in terminating their reunification services
and setting a section 366.26 hearing. We disagree and deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
In mid-February 2012, mother gave birth to a son, T.W., the subject of this writ
petition. During the pregnancy, mother regularly consumed alcohol and had syphilis,
which she did not successfully treat. As a result, T.W. required intensive treatment for a
variety of medical complications. However, mother and father did not appear to
understand the severity of his medical problems. According to the hospital social worker,
Tracy Kemp, they appeared delayed in their presentation and their responses seemed
scattered and unclear. In addition, when the hospital staff expressed concern about
T.W.’s condition, mother and father stated that “their baby was fine.”
Kemp contacted the Stanislaus County Community Services Agency (agency) and
emergency social worker Jorge Garcia met with mother and father at the hospital. They
denied having any substance abuse problems or any criminal history. Mother disclosed,
however, that four of her children were removed from her care in Sacramento County
because her home was dirty and the children were eating off of the floor. In fact,
mother’s children were taken into protective custody in part because of her substance
abuse. She was provided 12 months of reunification services but failed to complete them.
In addition, mother has a criminal history of property crimes and disorderly conduct and
father has a history of burglary, grand theft, false imprisonment and battery. In addition,
1 All statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
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he and mother have a history of domestic violence. Notably, in February 2009, father
grabbed mother by the neck and choked her when she tried to end their relationship.
When she fell to the ground, he straddled mother and slapped her four times in the face.
In June 2011, during an argument, father struck her in the right eye with his fist.
Father told Garcia that mother received Social Security Income (SSI) for a
learning disability and that he had also received SSI in the past for a learning disability.
Garcia informed the parents that the agency intended to take T.W. into protective
custody.
The agency filed a dependency petition on T.W.’s behalf and in late February
2012, the juvenile court ordered him detained. The juvenile court also ordered the
agency to refer mother and father for domestic violence, anger management, substance
abuse and parenting services. In mid-March 2012, T.W. was discharged from the
hospital and placed in foster care.
In its report for the jurisdictional hearing, the agency informed the juvenile court
that mother and father wanted T.W. returned to their custody and expressed their
willingness to participate in services. They frequently visited him while he was in the
hospital and interacted lovingly during their visits with him at the agency. They had also
taken steps to initiate their services. However, social worker Valerie Castro, author of
the jurisdictional report, stated that T.W. was medically fragile and needed multiple
followup appointments in multiple specialty clinics. Castro did not believe mother and
father understood his fragile state. In addition, Castro had difficulty helping them
understand their services requirements. She questioned whether their delay in
understanding was related to a delay in cognitive functioning and/or comprehension or
denial of T.W.’s medical condition.
In April 2012, the juvenile court conducted a combined jurisdictional/dispositional
hearing (combined hearing). At the hearing, the juvenile court adjudged T.W. a
dependent child, ordered him removed from mother and father’s custody and approved a
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reunification plan filed by the agency. The reunification plan required mother and father
to complete assessments in domestic violence and anger management at Sierra Vista
Child and Family Services (Sierra Vista) and follow any recommendations. It also
required them to successfully complete a parenting education program at Sierra Vista. In
addition, mother and father were required to complete outpatient substance abuse
treatment, she at First Step Perinatal Program (First Step) and he at Nirvana Drug and
Alcohol Institute (Nirvana). Both were required to submit to random drug testing.
At the combined hearing, the juvenile court also expressed concern that mother
and father possibly suffered from cognitive delay and stated its desire that their
reunification plans address any such delay. The juvenile court stated,
“There [are] some concerns, but the [c]ourt doesn’t have any basis to
make a finding, based upon a preponderance of the evidence. But there
[are] some current concerns about possible cognitive delays that the parents
have. And so I want to make sure that the case plan addresses … any
cognitive delays … , so they don’t hamper the parents[’] ability to
successfully reunify.”
The juvenile court then inquired, “[A]re there going to be any requests to make
any amendments to the case plan?” Mother’s attorney responded in the negative and
father’s attorney did not respond to the court’s question.
The juvenile court also advised mother and father that their reunification services
could be limited to six months and set a progress review hearing for July 2012 and the
six-month review hearing for October 2012.
In June 2012, the agency filed an interim report informing the juvenile court that
T.W. was placed with a maternal great aunt, Velma, in Stockton and was in fair
condition. His eyes had not yet developed. He was completely blind in his right eye and
95 percent blind in his left eye.
The agency also reported that mother completed alcohol detoxification in early
June 2012 and participated in one day of outpatient treatment. She was referred to First
Step for outpatient treatment and to Redwoods for clean and sober living. She attended
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one interim group at First Step and lived with her mother rather than in sober living.
Father was admitted to Nirvana in early May 2012 for inpatient treatment. Upon his
admission, he tested positive for marijuana. In early June, he tested positive for an illicit
drug and was discharged from the program for being absent without leave. He returned
to Nirvana near the end of June. Mother and father did not initiate any of their other
services. Even though mother and father had not consistently utilized their services, the
agency recommended that the juvenile court continue reunification services for them
pending the six-month review hearing.
In July 2012, the juvenile court convened the interim review hearing and
commented that mother and father did not appear to be making adequate progress.
Mother’s attorney said she thought mother had difficulty understanding and suggested
that the agency review her services plan with her again. Father’s counsel suggested the
same for father. He also asked that the agency provide father transportation to T.W.’s
medical appointments. Father said he wanted to participate in the medical appointments
but was not offered transportation.
The juvenile court stated that the agency should be informing mother and father of
the medical appointments but advised father that he needed to notify the agency in
advance that he needed help getting to them. The juvenile court told him that if he got
confused about his case plan, that he needed to let someone know. The court also
confirmed the six-month review hearing set for October 2012.
In its report for the six-month review hearing, the agency recommended the
juvenile court continue reunification services for mother and father. The agency reported
that T.W. had multiple medical needs for which he was receiving specialty care. He had
a “soft spot” on his forehead that had not closed and he was being referred to a
neurologist for microcephaly. He saw an ophthalmologist every six months because of
his blindness and an underdeveloped tear duct. T.W. also had asthma for which he saw
an asthma specialist and had an appointment with a geneticist to assess him for fetal
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alcohol syndrome. He also suffered from growth retardation and was under the care of a
cardiologist for anomalies of venous return. He was evaluated by a gastroenterologist for
difficulty feeding and gaining weight and was being followed for a swallow dysfunction.
Velma told the social worker that she administered T.W.’s asthma treatments and that he
required around-the-clock supervision as he only slept 30 minutes at a time. The social
worker was impressed with how well Velma was attending to T.W.’s medical needs.
The agency reported that mother began Phase I at First Step in late July 2012 and
was making progress. She regularly attended group sessions, shared in group and turned
in a journal. She was also participating in the First Step parenting program and was
attentive in group sessions but reportedly needed to share more. She tested positive for
benzodiazepine twice in June but subsequently tested negative. She was not participating
in domestic violence and anger management counseling.
The agency also reported that father tested negative for drugs in June and July
2012, but was discharged from Nirvana a third time in July 2012 for violating the
program rules. In late July, he was admitted to Nirvana for the fourth time, but
discharged a month later for not complying with the rules and guidelines. The discharge
report noted he did not attend all of the outside Alcoholics/Narcotics Anonymous
(AA/NA) meetings and forged his signature on the meeting slips. In mid-September,
father entered Stanislaus Recovery Center Outpatient Program. In addition, father
completed seven parenting sessions and in mid-September 2012 attended his first anger
management/domestic violence assessment appointment.
Though the agency recommended the juvenile court continue reunification
services, it was dubious that mother and father could reunify with T.W. given their lack
of consistency in their case plan participation and their continuing minimization of his
special medical needs. When questioned about T.W.’s disabilities, mother and father
stated he was healthy and had no medical problems. When the social worker pointed out
he was blind in one eye and nearly blind in the other, they denied he had any problems
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with his eyes. They said he could see well but would need to wear glasses. They said
T.W. could follow their fingers with his eyes.
In October 2012, the juvenile court convened but continued the six-month review
hearing as the agency wanted to change its recommendation. In an addendum report, the
agency recommended the juvenile court terminate mother and father’s reunification
services because father was at risk of being discharged from Nirvana for lack of
attendance and participation, and mother had not completed a domestic violence/anger
management assessment. The agency opined that if mother and father could not meet
their responsibilities, they could not effectively manage T.W. and his special medical
needs.
In late October 2012, the juvenile convened a contested six-month review hearing,
which spanned four sessions and concluded in November. Mother and father’s position
at the hearing was that the agency failed to provide them reasonable services because the
social worker did not inform them of T.W.’s medical appointments and their case plan
did not accommodate their cognitive difficulties. Therefore, they argued, the juvenile
court should continue reunification services. In addition, they took the position that they
made substantive progress toward reunification and there was a substantial probability
T.W. could be returned to their custody if services were continued.
During the course of the proceedings, Sierra Vista social worker Melissa Hale
faxed the agency a letter regarding father’s progress in domestic violence/anger
management counseling at Sierra Vista. She stated that he was eager to reunify with
T.W. but had difficulty providing her information to thoroughly assess him. He told her
about his learning disability and having sustained a brain injury that left two bullets
lodged in his head. He told her that he suffered from “black outs” after prolonged sun
exposure. Ms. Hale questioned what effect father’s brain injury had on his overall
functioning and recommended that the agency refer him for a neuropsychological
evaluation to determine his ability to reunify with T.W.
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Social worker Beth Morrison testified that she was the supervising social worker
on mother and father’s case since August 2012. Prior to that, social worker Pedro
Rodriguez was assigned the case. He was no longer employed by the agency. Morrison
asked mother and father if they had problems with comprehension. Both denied having
such a problem and said they were able to read their program materials. Morrison also
asked the staff at First Step if mother had difficulty reading and writing and/or
understanding medical documentation and instructions and was told that she did not.
On cross-examination, father’s attorney questioned Morrison about an entry in the
services log book dated August 15, 2012. Social worker Rodriguez made the entry to
document a contact from a Nirvana staff member stating that father turned in his AA/NA
card with two forged signatures. When confronted, father first denied forging the
signatures. He later disclosed that he forged them because he felt pressured to complete
the meetings. The staff member felt that father may have a mental disorder that impeded
his substance abuse recovery. Morrison was asked whether father was referred for any
services to address a possible mental disorder. She stated that he had not been. Morrison
also testified that father had not been discharged from Nirvana for problems related to his
comprehension. Rather, his discharges were the result of noncompliance. She said
father never told her that he was shot in the head.
Morrison further testified that, to her knowledge, mother and father were not
notified of T.W.’s medical appointments between April and August 2012, when she took
over the case.
Velma testified that she took T.W to all of his doctor’s appointments and that she
notified the social worker in advance of the appointments. She also informed mother
whenever mother called her. However, she said mother and father’s telephone did not
always work so she did not tell them about every appointment. She told them about two
eye appointments in July and they accompanied her to an eye appointment in August.
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She also told them about a nutrition appointment in August. She said they never asked
her about upcoming appointments or how to take care of T.W.
Father testified and denied forging his AA/NA attendance cards. He said he was
never diagnosed with a mental disorder and denied have a learning disability. He also
said he did not have difficulty understanding the materials. He said he was aware of
T.W.’s medical needs. He knew T.W. was blind in one eye, virtually blind in the other,
and had asthma. Father said he did not go to T.W.’s medical appointments because
Rodriguez would not arrange transportation. He also testified that Rodriguez did not
notify him of T.W.’s appointments and that he was not told of appointments before
August 9, 2012.
Father also testified about his head injury. He said someone tried to rob him, shot
him five times in the head, and stabbed him 37 times when he was 14 years old. Two of
the bullets remained in his head. He said the bullets did not affect him but that
sometimes when he sat too long and then got up, he became dizzy. He said he told
Morrison that he had bullets in his head but she did not listen.
Father denied having anger management problems and denied assaulting mother in
June 2011. He also denied needing substance abuse treatment but said he would
participate in anger management and substance abuse treatment if the juvenile court
continued his services.
Father testified that it would not be difficult to take care of T.W. Asked whether
he thought it was important to get information about T.W. and his medical care, father
stated that he already knew about it because he listened to what the doctor said. He had
attended five appointments. He believed he had all the medical information he needed to
take T.W. home that day.
Mother also testified that she did not have problems understanding the material.
She said she and father called Velma every day when their phone was working. She said
Velma told her about T.W.’s appointments from the time he was placed with her. She
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said she did not go to the earlier appointments because she did not have a ride and
Rodriguez told her that he could only arrange transportation for Velma and T.W. She
said Morrison helped her get to the appointments.
Mother denied having a problem with alcohol even though she testified she used
alcohol daily while pregnant with T.W. She denied there were problems with domestic
violence in the home or that she needed domestic violence counseling. She denied father
choked her in 2009, but acknowledged that he hit her in the right eye with his fist in June
2011.
Mother also believed she was ready to take care of T.W. without any help. She
knew that he was very sick, had asthma, and “something with his head” and “his eyes.”
No one had shown her a list of T.W.’s medications or shown her how to use his
nebulizer.
At the conclusion of the hearing, the juvenile court found the agency provided
mother and father reasonable services and there was not a substantial probability T.W.
could be returned to their custody. In ruling, the juvenile court expressed its concern
with mother and father’s denial, citing father’s denial of his anger management problem,
mother’s denial of her alcoholism and both of their denial about their domestic violence.
The juvenile court believed that Rodriguez did not tell them about the medical
appointments and stated that if their inability to address T.W.’s medical needs were the
only problem, it would continue reunification services. However, the fact that they
denied obvious problems demonstrated they had not made substantive progress or
regularly participated in their services plans, nor did it bode well for future participation.
Consequently, the juvenile court found it would not be in T.W.’s best interest to continue
services and set a section 366.26 hearing. This petition ensued.
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DISCUSSION
Mother and father contend the agency failed to provide them reasonable services
because the services offered did not address their cognitive delays or their need to learn
about T.W.’s medical problems and needs. We disagree.
When, as here, a child is younger than three years old on the date of initial
removal from the parent’s physical custody, reunification services are presumptively
limited to six months. (§ 361.5, subd. (a)(1)(B); Tonya M. v. Superior Court (2007) 42
Cal.4th 836, 843.) At the six-month review hearing in such a case, the agency has the
burden of proving, by clear and convincing evidence, that it offered or provided
reasonable services to reunify the family. (§ 366.21, subd. (e).) If the juvenile court
finds the parent was provided reasonable services but failed to participate regularly and
make substantive progress in a court-ordered plan, the juvenile court may terminate
reunification services and set a section 366.26 hearing. (§ 366.21, subd. (e).) If,
however, the juvenile court finds reasonable services were not offered or provided or
there is a substantial probability the child could be returned to parental custody with
continued services, it must continue the case to the 12-month review hearing. (Ibid.)
On a challenge to the juvenile court’s reasonable services finding, we view the
evidence in a light most favorable to the agency, indulging in all legitimate and
reasonable inferences to uphold the finding. (In re Misako R. (1991) 2 Cal.App.4th 538,
545.) If substantial evidence supports the juvenile court’s finding, we will not disturb it.
(Ibid.) Moreover, under our review, services need not be perfect to be reasonable.
Rather, the “standard is ... whether they were reasonable under the circumstances.”
(Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) Since mother and father
bear the burden of demonstrating error on appeal (Winograd v. American Broadcasting
Co. (1998) 68 Cal.App.4th 624, 632), they must show that the juvenile court’s reasonable
services finding is not supported by substantial evidence. We conclude they failed to
meet their burden.
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With respect to cognitive delay, there may have been suspicion but there was no
evidence that mother and/or father suffer from it. They both denied having any difficulty
understanding their course materials and father denied having a learning disorder and/or
mental disorder. Further, the juvenile court inquired if counsel wanted the case plan
amended to address any cognitive delay and neither mother nor father’s attorney
requested a revised case plan then or thereafter. Consequently, mother and father
accepted their case plans as they were written and cannot now claim that they were
unreasonable in content. (In re Julie M. (1999) 69 Cal.App.4th 41, 47.)
With respect to T.W.’s medical appointments, the juvenile court concluded that
Rodriguez did not inform mother and father of them while he was assigned their case.
However, the juvenile court did not believe that Rodriguez’s failure to inform them
rendered their services unreasonable and we agree. Mother and father had serious
problems with substance abuse and domestic violence for which they were provided
services. However, they did not regularly participate in their services and denied having
such problems. Consequently, the juvenile court found they made limited progress. In
addition, mother and father did not fully understand the severity of T.W.’s medical
condition and mistakenly believed they were capable of taking over his care. Had their
inability to take care of T.W. been the only obstacle to eventual reunification, their
inability to participate in T.W.’s medical appointments would have been more significant.
However, given their general denial and lack of progress, that one failure on the part of
the agency did not in this case render services unreasonable.
In support of their contention that they were denied reasonable services, mother
and father cite Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415 (Tracy J.), a case
involving developmentally disabled parents whose reunification services were terminated
at the 18-month review hearing. (Id. at pp. 1419-1423.) In Tracy J., the appellate court
concluded the agency did not provide the mother services designed to address her
physical disabilities, unnecessarily limited visitation, did not inform the parents of their
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child’s medical appointments in advance, and did not instruct them on how to treat their
child’s asthma. (Id. at pp. 1426-1427.) As a result, the appellate court issued a writ of
mandate directing the juvenile court to vacate its reasonable services finding. (Id. at p.
1428.)
Tracy J. is unavailing for two reasons. Mother and father cite the case but do not
explain how it supports their contention. More importantly, Tracy J. is distinguishable on
its facts. In Tracy J., the parents, unlike mother and father, had known disabilities and
fully complied with their services plans. (Tracy J., supra, 202 Cal.App.4th at pp. 1419-
1420.)
We find no error on this record and deny the petition.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.
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