N.N., Petitioner, v. TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES (2010)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

*Before Levy, A.P.J., Cornell, J., and Detjen, J.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court's order issued at a contested 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 ¹ hearing as to her son A.R. and daughter K.R. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner is the mother of three children, K.M., A.R., and K.R. She has a long history of domestic violence and child neglect dating back to 2002.   The child neglect stems from petitioner's failure to maintain a safe and sanitary home.

In March 2009, social workers from the Tuolumne County Department of Social Services (department) were dispatched to petitioner's home after sheriff's deputies conducted a welfare check on then eight-year-old K.M., five-year-old A.R., and three-year-old K.R. The social workers would later report that the children appeared dirty and unkempt and the trailer in which the family lived was filthy and foul-smelling inside and out.   There were four dogs and multiple cats that lived and regularly defecated and urinated in the trailer.   The children's bedroom was the filthiest area in the trailer.   There was a mattress in the middle of the bedroom and three large piles of garbage covered by sheets and blankets.   The dresser, originally white, was brown and black from dirt, grime, and cigarette ashes.   Every wall in the bedroom was completely covered in dirt and grime.

Petitioner and Vincent, her live-in boyfriend, denied any mental health issues or drug use.   Petitioner stated she used methamphetamine in the past but had not used it since she was pregnant with K.M. Vincent said he was self-employed and responsible for keeping the house clean because petitioner has a seizure disorder.   They signed a safety plan agreeing to clean up their home while the children stayed with a family friend.   The social workers told petitioner they would monitor the condition of the home.   Petitioner submitted to a drug test and tested positive for marijuana.

Over the ensuing weeks, the social workers periodically checked on the condition of petitioner's home and gathered information about the children's welfare.   A physician's assistant familiar with the family stated hygiene was an ongoing issue with the family and, he said the parents seemed genuinely concerned about the children but appeared to be low functioning with little support.   The social workers also learned that K.M. and A.R. had missed over 40 and 50 days of school respectively.

On April 1, 2009, the department filed an original dependency petition pursuant to section 300, subdivision (b) (failure to protect) and recommended the juvenile court provide petitioner family maintenance services.   That same month, the juvenile court adjudged the children dependents and set the dispositional hearing for April 28, 2009.

However, on April 28, 2009, Vincent was arrested after he and petitioner engaged in a domestic violence dispute during which he hit her in the head four times in the presence of the children.   During the fracas, K.M. was knocked down and bitten by the family pit bull as she ran for help.

Several days later, social workers visited petitioner at home and found its condition essentially unchanged.   There were dog feces in K.M. and K.R.'s bedroom and on A.R.'s blankets which were on the floor.   There were shredded papers, chewed up shoes in the living room and newly installed carpet was stained and soaked with pet urine.   There were also potatoes scattered throughout the home.   When asked about the condition of the home, petitioner explained someone broke into the trailer and ransacked it while she was at the store.

The social workers also asked petitioner about the domestic violence dispute.   She said it was not a “big deal” and said she contacted the District Attorney's office to get a restraining order dropped so that Vincent could return to help her clean and care for the children.

The social workers took the children into protective custody and placed them together in foster care and the department filed a subsequent petition (§ 342) (petition) on their behalf.   The juvenile court ordered the children detained pursuant to the petition and set a combined jurisdictional/dispositional hearing (combined hearing) for June 2009.   At the time, A.R. and K.R.'s father was in state prison and K.M.'s father was living in California.

The department's main concern going into the combined hearing was petitioner's inability to provide a safe and sanitary environment for the children.   In its report for the combined hearing, the department recommended the juvenile court order petitioner to participate in a psychological evaluation to determine what services to offer her.

In June 2009, at the combined hearing, the juvenile court sustained the subsequent petition and ordered petitioner and K.M.'s father to participate in reunification services.   Petitioner's case plan required her to complete a psychological evaluation, a parenting program and outpatient substance abuse treatment, submit to random drug testing, and attend three Alcoholics/Narcotics Anonymous (AA/NA) meetings weekly.   She was also granted supervised visitation.   The court denied services for A.R. and K.R.'s father and set the six-month review hearing for November 17, 2009.

In the intervening months, petitioner made no effort to improve her housing situation.   She and Vincent continued to live in the trailer with the animals.   The social worker made numerous attempts to visit the home but either no one answered the door or no one was home.   The dogs could be seen inside the home and could be heard barking, and the outside of the trailer appeared as it had all along.   In July 2009, the social worker was informed that the trailer was in violation of the housing code.

In addition, petitioner was generally noncompliant with her court-ordered case plan.   Though she completed a parenting class, she was not participating in mental health counseling, AA/NA meetings, substance abuse treatment or random drug testing.   She was also uncooperative with the social worker's attempts to provide her In-Home Supportive Services (IHSS).

Also during this time, A.R. began to demonstrate volatile and aggressive behavior.   At times, he lashed out at petitioner, his foster parent, and Vincent by hitting and kicking.   At other times, A.R. demonstrated infantile behavior, such as sucking his thumb, whining, and refusing to communicate.

In August 2009, petitioner was evaluated by psychologist Dr. Deborah Schmidt who interviewed her and conducted a battery of psychological tests.   Petitioner told Dr. Schmidt that she had witnessed, and was a victim of, domestic violence in the past but denied any domestic violence in her relationship with Vincent.   She also denied the department's description of her home and explained the children missed school because they were sick.

During the interview, petitioner told Dr. Schmidt she suffered multiple concussions and experienced seizures, blackouts, confusion, rages, depression, dizziness, left-sided numbness, and slurred-speech.   She said she was evaluated by a neurologist in December 2008 who referred her for diagnostic testing (magnetic resonance imaging) but she did not keep the appointment for the procedure.   She said the marijuana relieved her seizures and depression.   She also said she was being evaluated for cancer because she had tumors in her sinuses.

In her report to the department, Dr. Schmidt characterized petitioner's diagnosis as “extremely complex.”   Her test results suggested she was functioning intellectually in the mild mentally retarded range and had “a number of unusual psychological symptoms.”   She also reported petitioner described symptoms of a major depressive disorder and post-traumatic stress disorder.   However, without verification of her medical diagnoses, Dr. Schmidt stated she was unable to further assess petitioner's psychological symptoms or determine whether petitioner would benefit from treatment intervention.   Dr. Schmidt recommended petitioner be referred to a neurologist to evaluate her symptoms.   Dr. Schmidt further recommended that, if medical treatment were warranted, petitioner be reevaluated to determine whether she could benefit from reunification services.   Based on her evaluation of petitioner, Dr. Schmidt believed petitioner would require intensive parenting education to include an in-home parenting educator for a minimum of one year, substance abuse treatment, domestic violence group therapy, psychiatric treatment, extensive individual therapy, and couples therapy.

In light of Dr. Schmidt's report, the department recommended the juvenile court modify petitioner's reunification plan and require her to participate in individual and/or group counseling to address childhood abuse and neglect, medical care, domestic violence, coping skills, hygiene and appropriate home conditions, and any other issues deemed appropriate by the clinician.   In addition, the proposed plan required petitioner to work with IHSS staff who would help her clean and learn to maintain a clean home.   The proposed plan also required petitioner to successfully complete a second parenting course, participate in random drug testing, and attend one AA/NA meeting each week.

In November 2009, at the six-month review hearing, the juvenile court found petitioner was provided reasonable services, approved the proposed reunification plan as to A.R. and K.R., and set the 12-month review hearing for May 2010.   The court returned K.M. to her father's care under family maintenance.   That same day, petitioner signed and was given a copy of her reunification plan.

Over the ensuing six months, petitioner and Vincent continued to live in the trailer.   The social worker attempted several times between December 2009 and March 2010 to determine if the home was suitable for the children's return.   However, no one answered the door.   This included a visit from the IHSS representatives in January 2010 who waited 20 minutes at petitioner's front door.   Lisa Berg, the social worker who met the IHSS representatives at petitioner's home, believed someone was inside the home.   In late-March 2010, petitioner and Vincent allowed the social worker entry to the home, and the social worker found the condition of the home improved except for safety hazards.   In May 2010, the county gave petitioner a 30-day notice to make repairs to the residence.

Also during this period, A.R.'s behavior worsened and intensified during visitation.   He was also becoming self-injurious, scratching his face, hitting himself, and banging his head against the wall.   In May 2010, he was involuntarily committed.   While waiting at the hospital, he urinated and defecated on himself.   His therapist suspected he may have Reactive Attachment Disorder and Post-traumatic Stress Disorder but recommended a complete psychological evaluation.   A.R.'s pediatrician prescribed psychotropic medication to treat his mood lability and aggression.

In its report for the 12-month review hearing, the department recommended the court terminate petitioner's reunification services because she minimally participated in them, did not believe she needed them, and stated she was not benefiting from them.   The department opined petitioner loved her children but was not capable of adequately caring for them.   She reported numerous medical ailments which potentially interfered with her ability to parent but none of them were medically confirmed, causing the department to believe petitioner was not motivated to parent the children.   In addition, the department reported K.R. was severely delayed in her expressive communication skills for her age and development and the children's foster parents were amenable to adopting both A.R. and K.R.

On May 18, 2010, the juvenile court set a contested 12-month review hearing for June 17, 2010.   Prior to the hearing, the department filed an addendum report to which it attached petitioner's medical records for the prior two years.

The contested 12-month review hearing was continued and conducted on June 17 and 18.   Petitioner's position at the hearing was that the department failed to implement Dr. Schmidt's recommendations into her reunification plan.   Therefore, she argued, she was not provided reasonable services and the court should continue services for another six months.

Dr. Schmidt testified petitioner's intellectual challenges did not interfere with her ability to understand her case plan requirements or safely parent the children.   Dr. Schmidt opined petitioner could learn to provide for the children's basic needs with parenting education and coaching.   However, Dr. Schmidt said petitioner's physiological symptoms raised doubt about her ability to safely care for them without 24-hour assistance.   Dr. Schmidt further testified she assumed petitioner would be re-evaluated after the neurological evaluation but did not assume that it would be by her.

Social worker Lisa Berg testified she was assigned petitioner's case in January 2010 and her major concern was petitioner's unwillingness to allow access to her home.   That same month, Ms. Berg and IHSS representatives met at petitioner's home for a pre-arranged and confirmed appointment, but petitioner did not answer the door.   Ms. Berg suspected petitioner was home because the dogs were barking from inside the trailer and then were suddenly quieted.   She believed they were quieted because someone placed them in another room.   She said IHSS representatives attempted unsuccessfully to meet with petitioner at her home three to four times during the course of the case.   Eventually, however, the Ms. Berg suspended IHSS services until petitioner agreed to cooperate.   However, petitioner never cooperated.

Ms. Berg also testified petitioner did not participate in domestic violence counseling because she did not feel it was necessary.   Petitioner stopped attending substance abuse group counseling (group counseling) in March 2010 and said she was not getting anything out of it because she was not “a schizophrenic or bi-polar.”   Ms. Berg explained to petitioner that the group was designed for people with both substance abuse and mental health concerns and the department had concerns about petitioner's mental health.   Petitioner resumed group counseling the following June. Ms. Berg said petitioner participated in six of the eight parenting classes but did not complete the program.   Petitioner was called to drug test 47 times but only tested 15 times.   Each time she tested positive for marijuana.

Ms. Berg further testified she was aware that Dr. Schmidt wanted petitioner to be evaluated by a neurologist.   She said petitioner began seeing a neurologist in January 2010, and in March, petitioner told her that she no longer felt depressed and had not had a seizure in three months.   Ms. Berg confirmed petitioner was under the care of a neurologist and concluded petitioner was under appropriate care.   Therefore, Ms. Berg did not arrange for petitioner to be referred to any other doctors.   In addition, Ms. Berg discovered through petitioner's medical records that she did not have lymphoma.

On cross-examination by mother's attorney, Ms. Berg acknowledged that petitioner asked about participating in a second psychological evaluation but testified she told petitioner in February 2010 the department did not plan to arrange one.   Mother's attorney also asked Ms. Berg whether A.R. overheard her ask the foster mother during a visit in February whether the foster mother would adopt all three children.   Ms. Berg denied the conversation took place.   At one point, petitioner's attorney also questioned Ms. Berg about her experience in managing dependency cases.   Ms. Berg testified she began case managing in July 2009 and was managing 21 cases when she took over petitioner's case.

Vincent testified he kept a visitation log and remembered overhearing Ms. Berg ask the foster mother if she would adopt all three children.   At the time, he was taking A.R. to the restroom and he believed A.R. heard the conversation.   When he returned with A.R. to the visitation room, A.R. began to act out.   During that same visit, K.R. had an identification sticker on her jacket with her first name and the foster mother's last name.   Vincent testified petitioner took a picture of it and asked Ms. Berg about it.   According to Vincent, Ms. Berg said she would discuss it with the foster mother.

Vincent further testified petitioner moved out of the trailer approximately a week and a half before the hearing.   He said they still spent time together and planned together but he did not know where she was living.   He said he planned to destroy the trailer.

After argument, the juvenile court continued the matter for its ruling.   On June 22, 2010, the court found the department provided petitioner reasonable services but that she made minimal progress.   The court also found there was not a substantial probability A.R. and K.R. could be returned to petitioner's custody by the 18-month review hearing.   Consequently, the court terminated petitioner's reunification services and set a section 366.26 hearing.   This petition ensued.

DISCUSSION

I. Reasonableness of Services

Petitioner contends the juvenile court erred in finding she was provided reasonable services.   We disagree.

The reasonableness of reunification services is judged according to the circumstances of the particular case and assessed by its two components:  content and implementation.  (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1362.)  “[T]he 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․”  (In re Riva M. (1991) 235 Cal.App.3d 403, 414;  italics original.)   We review the juvenile court's reasonable services finding for substantial evidence, viewing the evidence in a light most favorable to the respondent and indulging in all reasonable and legitimate inferences to uphold the judgment.  (In re Ronell A., supra, 44 Cal.App.4th at pp. 1361-1362.)

Petitioner argues she was denied reasonable services because the department never determined what specific services she needed beyond what Dr. Schmidt recommended.   Further, she argues, the department did not even incorporate Dr. Schmidt's recommended services, such as intensive one-on-one therapy, psychiatric treatment, couple's counseling, and one year of in-home parenting education, into her reunification plan.

We conclude petitioner waived her right to challenge the content of her case plan.   She acknowledged the contents of the case plan by signing it and did not challenge the reasonableness of the plan by appealing from the juvenile court's order issued in November 2009 directing its implementation.   By failing to challenge the plan content by direct appeal, petitioner cannot now claim that the plan as ordered was unreasonable.  (In re Julie M. (1999) 69 Cal.App.4th 41, 47.)

Further, notwithstanding waiver, the record reflects that petitioner essentially received the services Dr. Schmidt recommended.   Petitioner was evaluated by, and under the care of, a neurologist.   In addition, she was offered IHSS services but refused to cooperate with them.   She was also provided group counseling, a second parenting program, and random drug screening.

Finally, with respect to the content of petitioner's reunification plan, nothing occurred subsequent to implementation of the plan that should have prompted the department to modify it.   For example, the department did not receive any updated medical information that required additional medical referrals or any information from service providers indicating a need for more or different services.

With respect to the implementation of the reunification plan, petitioner argues Ms. Berg was an ineffective case manager because she was inexperienced and did not provide her the additional prodding and direction she required.   She also claims Ms. Berg thwarted her chance to reunify by discussing adoption in front of A.R., causing him to act out during visitation, and allowing the foster mother to ascribe her surname to K.R. These incidents, she claims, reflect the department's intention to terminate reunification services long before the 12-month review hearing.

We conclude the department through Ms. Berg made reasonable efforts to assist petitioner in reunifying with her children.   The appellate record reflects Ms. Berg's repeated efforts to engage petitioner in the reunification process and petitioner's steadfast resistance.   As to petitioner's claim Ms. Berg was not qualified to manage her case, there is no evidence to support it.   Nor is there evidence petitioner required additional assistance to comply with her court-ordered services.   With respect to the conversation about adoption, Ms. Berg denied the conversation took place.   Even assuming K.R. was wearing a nametag with her foster mother's surname during one visit, there is no evidence Ms. Berg endorsed the use of the foster mother's last name or even knew about it before the visit occurred.   There is simply no evidence Ms. Berg acted in such a way as to undermine petitioner's ability to reunify with her children.   We find no error in the juvenile court's reasonable services finding.

II. Substantial Probability of Return

Petitioner contends the juvenile court erred in finding there was not a substantial probability of return.   We disagree.

Section 366.21, subdivision (f), the governing statute, provides that where the juvenile court decides, as it did here, that the parent was provided reasonable services and that it would be detrimental to return the children to parental custody, the juvenile court must terminate reunification services and set a section 366.26 hearing unless it finds a substantial probability the child can be returned to the parent by the 18-month review hearing. (§ 366.21, subds.(f) & (g)(1).)   In order to find a substantial probability of return, the juvenile court must make three findings set forth in subparts A through C of section 366.21, subdivision (g)(1) as follows:  (A) the parent consistently and regularly contacted and visited the child;  (B) the parent made significant progress in resolving the problems that led to the child's removal;  and (C) the parent demonstrated the capacity and ability to complete the objectives of the treatment plan and provide for the child's safety, protection and physical and emotional well-being. (§ 366.21, subd. (g)(1)(A)-(C).)

Rather than argue the evidence as it relates to the specific legal findings the juvenile court made with respect to the probability of return, petitioner merely argues the department's failure to provide her reasonable services prevented her from demonstrating the level of progress and ability warranting a continuation of services.   Since petitioner does not challenge the juvenile court's substantial probability of return finding with a legal argument, she has waived it.  (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120.)   Further, since we concluded she received reasonable services, our discussion above suffices.

DISPOSITION

The petition for extraordinary writ is denied.   This opinion is final forthwith as to this court.

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

THE COURT*