RAY v. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY (2011)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court's orders issued at a contested 18–month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 ¹ hearing as to his daughter, Trinity.   He challenges the sufficiency of the evidence to support the court's findings that it would be detrimental to return Trinity to his custody and that he was provided reasonable reunification services.   He also contends the juvenile court prejudicially erred in not appointing separate counsel for Trinity.   We find no error and will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner and Sandra ² are an intact married couple with two children, Michael and Trinity.   Trinity is the subject of this writ petition.   When these dependency proceedings were initiated in May 2009, Trinity and Michael were ten and eight years of age, respectively.

Petitioner and Sandra have a significant history of child welfare intervention dating back to 2001 when Sandra tested positive for amphetamines at the time of Michael's birth.   Between May 2003 and November 2007, the Stanislaus County Community Services Agency (agency) received 12 referrals concerning the condition of the family home and child neglect.   At various times, social workers found garbage, dirty dishes, cat urine, flies, maggots, cockroaches, and drug paraphernalia in the home and no food.

From September 2003 to September 2004, Sandra received family maintenance services.   At the time, she and petitioner were separated.   The social worker who closed out the case opined that the children did not appear to be in danger, but that the probability the agency would receive future referrals was high given the uncleanness of the children and the home.   In fact, the following month, the agency received a referral that the home was extremely filthy and that Sandra had mental health issues and was using drugs.

In May 2005, petitioner and Sandra accepted family maintenance services after the agency received a referral that petitioner's home was deplorable, there was no food and that Trinity had head lice, was dirty, and had holes in her pants.   In addition, her shoes were too small and were tattered.   She missed nine days of school because of head lice.   Their family maintenance services were terminated in September of 2005 because petitioner and Sandra were not participating in their case plan or keeping their apartment clean.

In May 2006, the agency received a referral that Sandra and Trinity were staying at a friend's residence and the friend sexually molested Trinity.   Sandra left the residence with Trinity to protect her.   The agency substantiated this referral for sexual abuse.   In November 2006, the agency received a referral that Trinity and Michael were severely unhygienic and did not have appropriate clothing.   Michael reportedly had feces in his clothes and Sandra stated she did not have money for socks and shoes, but refused help.   In November 2007, the agency received a referral that Michael stated that his family's male roommate threw him against a door in the home and tried to strangle him.   On another occasion, this man tied him to the bed and placed tape over his mouth.   Michael reported that petitioner protected him.

The events culminating in these dependency proceedings began in late April 2009 when petitioner and Sandra's home was found to be dirty.   The agency gave petitioner and Sandra opportunities over the course of the ensuing two weeks to clean their home to no avail.

The agency took Trinity and Michael into protective custody and placed them with a maternal relative.   The agency also filed a dependency petition on behalf of both children, alleging the family home was messy and unsanitary, the family had a history of unsanitary living conditions, Sandra had a history of mental health issues, and petitioner and Sandra were reported to use drugs.

In May 2009, at the detention hearing, the juvenile court sustained the dependency petition.   In June 2009, the court exercised its dependency jurisdiction and removed the children from petitioner and Sandra's custody.   The court also ordered petitioner and Sandra to participate in reunification services, which required them to complete mental health and substance abuse assessments and participate in any recommended treatment, complete a parenting class, and submit to random drug testing.   The court also ordered weekly visitation.

In November 2009, the juvenile court continued reunification services for petitioner and Sandra at the six-month review hearing.   At the hearing, the court granted the agency discretion to arrange daylong and overnight visits.

In January 2010, Trinity completed a mental health assessment at the request of the social worker.   It was determined that she needed mental health counseling so she began weekly sessions with a counselor.

In April 2010, at the 12–month review hearing, the court continued reunification services.   By this time, petitioner and Sandra had completed a parenting class and residential and intensive outpatient substance abuse treatment and were residing at a sober living facility.   In addition, they were meeting weekly with their sponsors and attending meetings.   In addition, Trinity and Michael were visiting petitioner and Sandra at the sober living facility for daylong and overnight visits.   Michael enjoyed spending the night, but Trinity did not.   She spent all day Saturday and Sunday, but refused to spend the night.

At the 12–month review hearing, the court added family counseling to petitioner and Sandra's case plan requirements and set an interim review hearing for July 2010 and the 18–month review hearing for September 2010.

In May 2010, petitioner and Sandra moved out of the sober living facility and into an apartment.   Michael was placed in their care under a trial visit.   However, Trinity was still living with her maternal relative, Sabrina, and did not want to return home.

By the July 2010 interim hearing, petitioner and Sandra had completed all of their court-ordered services and were participating in family counseling with Trinity and Michael.   At the hearing, the juvenile court issued the following orders:  Trinity was to discontinue meeting with her counselor and be referred immediately to a therapist for parent/child communication;  petitioner and Sandra were to continue in family counseling;  petitioner, Sandra and Trinity's counselors were to facilitate communication so that petitioner and Sandra could understand Trinity's concern about returning home and the counselors would communicate with each other.   The court also ordered a specific visitation plan for Trinity whereby she would spend every other Sunday night with her parents and spend the day Saturday on the other weekends.   In addition, the court ordered Trinity to prepare a letter to her parents explaining why she did not want to live with them.

In its report for the 18–month review hearing, the agency recommended the juvenile court return Michael to petitioner and Sandra's custody and set a section 366.26 hearing to consider a permanent plan of legal guardianship for Trinity with Sabrina.   The agency stated it could not professionally suggest that petitioner and Sandra posed a risk of physical detriment to Trinity if she were returned to their custody, but believed it could place her at risk of emotional detriment.

The agency provided the juvenile court a copy of the letter Trinity wrote to her parents.   In essence, she explained that she knew Sabrina would take care of her, but was not sure that petitioner and Sandra would.   She stated, for example:

“What is different about your house and Sabrina's house is here I know I will always get a meal, but at your house I'm not sure.  [¶] ․ [¶] ․ [¶] When I used to live with you, whenever I went to school I was getting made fun of and then when we got taken away to live with Sabrina I wasn't getting made fun of anymore at school.   Because when I lived with you I didn't take showers, and I wore the same clothes every day because my clothes weren't clean, and I didn't brush my teeth, and I would have to wear the same socks every day.  [¶] If I get head lice you probably won't take care of it, but Sabrina will.  [¶] ․ [¶] ․ [¶] ․ [¶] ․ [¶] ․ [¶] ․ [¶] ․ [¶] If I need to get to school and you or dad don't want to take me, then I will miss a day of school, and I don't want to do that.   In 5th grade I missed 60 days of school, but in 6th grade I only missed 2 days of school and my grades went up.   In 6th grade I had almost all As and Bs and no Fs. In 5th grade I had all Fs and had to go to summer school.   This year I didn't have to go.”

The agency also provided the juvenile court e-mails from Sabrina concerning Trinity's visits with petitioner and Sandra.   Sabrina stated that on Trinity's first day visit at the end of July 2010, Sandra asked Sabrina if she had any food to give Trinity and Michael for lunch because she did not have any.   On August 8, Trinity was scheduled for her first overnight visit, but refused to spend the night so Sandra contacted Sabrina to pick Trinity up.   Trinity told Sabrina she would run away if she was left there.   Sabrina also noted that a man named Paul was staying with petitioner and Sandra.   On August 14, Trinity had a day visit.   She later told Sabrina that they did not have any toilet paper and used old rags instead.   On August 16, Sabrina found bites on Trinity's legs, which she thought were caused by bed bugs.   She contacted Sandra who said she was trying to get rid of them.   On August 22, Trinity spent the night and found two bed bugs crawling on her bed.   When she went to take a shower, there was no soap.

The 18–month review hearing set for September 2010 was continued and conducted in October 2010.   The court adopted the agency's recommendation to return Michael to petitioner and Sandra's custody, but set a contested review hearing as to Trinity, which it set for January 2011.

Meanwhile, the agency filed its report for the contested 18–month review hearing as to Trinity and updated the court on petitioner and Sandra's home environment.   In August 2010, the social worker made an unannounced visit and Paul answered the door.   The social worker was told he was living in the home.   The house was cluttered with dirty clothes and dirty dishes, but the condition of the home did not cause the social worker concern.   She conducted a criminal background check on Paul and discovered that he had a history of arrests, but the nature of his offenses were not serious enough to concern her.

In December 2010, the social worker made another unannounced home visit at approximately 10:30 a.m. Paul answered the door and petitioner and Sandra were asleep.   The kitchen area had dirty dishes in the sink and items cluttered on the counter tops, table and floor.   Michael's bedroom was a mess with things scattered on the bed, floor, and in the closet.   The agency also reported that Trinity began individual therapy sessions, but that the therapist discontinued the sessions after a short time because they were not productive.

In January 2011, the juvenile court conducted the contested 18–month review hearing.   The case was presented by argument only.   Minors' counsel made an offer of proof that Trinity would testify that she enjoyed visiting her family during the daylong visits, even every weekend.   However, she did not want to spend the night because she did not sleep.   She was bitten by bed bugs and had seen the bugs themselves.   She showed one of the bugs to Sandra who denied it was a bed bug and said it was a cockroach.   Sandra's attorney made an offer of proof that Sandra would testify that there were no bugs in the home and Trinity did not show her a bug.   Petitioner's attorney also made an offer of proof that there were no bed bugs and that petitioner had arranged with the landlord to eradicate any bed bugs in the home.   The parties accepted all three offers of proof.

During argument, county counsel asked the court to find that returning Trinity to an unclean home would pose a risk of emotional detriment given the many years she had to endure that environment and the harmful effect it had on her.   Minors' counsel agreed that returning Trinity to her parents would cause her emotional harm.   Sandra's attorney argued the agency had not provided any evidence that returning Trinity to her parents would be detrimental.   Petitioner's attorney concur

red.

At the conclusion of the hearing, the juvenile court acknowledged that petitioner and Sandra improved the condition of their home, but found that it would be emotionally and physically detrimental to Trinity to return her to their custody.   As to emotional detriment, the court opined that Trinity had suffered a form of emotional abuse when she was forced to go to school in dirty clothes and endure the taunting of her classmates.   The court found physical detriment in Trinity's inability to sleep because bugs were biting her and crawling on her at night.

The juvenile court also found that petitioner and Sandra were provided reasonable services and that they made substantial progress.   However, the court did not find that their progress was sufficient to resolve the emotional and physical detriment to Trinity.   Consequently, the court terminated their reunification services and set a section 366.26 hearing to implement a permanent plan.   This petition ensued.

DISCUSSION

I. Detrimental Return

Petitioner contends the juvenile court erred in finding it would be detrimental to return Trinity to his custody, asserting two grounds:  (1) he completed his court-ordered services and made substantive progress;  and (2) there was no evidence of a current risk of detriment.

Section 366.22 governs the proceedings at the 18–month review hearing and, as relevant here, requires the juvenile court to return the child to parental custody unless it determines, by a preponderance of the evidence, that returning the child would create a substantial risk of detriment to the child's physical or emotional well-being. (§ 366.22, subd. (a).)  A parent's failure to regularly participate and make substantive progress in a court-ordered plan of reunification constitutes prima facie evidence of detriment under section 366.22. (§ 366.22, subd. (a).)  In this case, petitioner's compliance and progress merely mean that the evidence does not support a prima facie showing of detriment.   It does not mean that evidence of detriment does not nevertheless exist.

The agency bears the burden of establishing detriment. (§ 366.22, subd. (a).)  “The standard for showing detriment is ‘a fairly high one.   It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less than capable than an available foster parent or other family member.’   [Citation.]”  (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400 (Yvonne W ).)  “Rather, the risk of detriment must be substantial, such that returning a child to parental custody represents some danger to the child's physical or emotional well-being.  [Citations.]”  (Ibid.)

Petitioner contends the agency failed to establish that returning Trinity to his custody would expose her to a current risk of physical or emotional detriment.   For example, he argues the agency did not provide the juvenile court a letter from Trinity's therapist to support a finding of emotional detriment.   Further, he asserts, the agency provided no evidence that he would neglect her by not sending her to school or sending her there dirty.   Nor was there evidence that Trinity had bugs in her bed, which he refutes.

On a challenge to the sufficiency of the evidence to support the juvenile court's finding, the question is not whether a contrary finding might have been made, but whether substantial evidence supports the finding made by the court.  (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 (Dakota H.).)   “The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.  [Citations.]”  (Ibid.) In reviewing the record for substantial evidence, “we consider the evidence favorably to the prevailing party and resolve all conflicts in support of the trial court's order.  [Citation.]  ‘Substantial evidence’ means evidence that is reasonable, credible and of solid value;  it must actually be substantial proof of the essentials that the law requires in a particular case.   [Citation.]  In the absence of substantial evidence showing such detriment, the court is required to return the minor to parental custody.  [Citation.]”  (Yvonne W., supra, 165 Cal.App.4th at pp. 1400–1401.)   However, if the court's order is supported by substantial evidence, it will be upheld.   (Dakota H., supra, 132 Cal.App.4th at p. 228.)

In this case, substantial evidence supports the juvenile court's finding of detriment.   Trinity suffered years of physical neglect in petitioner's care, which she so poignantly described in her letter;  i.e. hunger, lack of clean clothing, and poor hygiene.   As a result, she was scorned by her classmates.   In addition, she missed a significant portion of the school year, which caused her to receive failing grades.   Moreover, though conditions in the home had improved, there was evidence that the situation could devolve into its former state.   During unannounced home visits on several occasions, the social worker noted that the condition of the family home was deteriorating.   In addition, Trinity complained of the lack of toilet paper and soap while with petitioner and the bugs in her bed and threatened to run away if she were left with petitioner.   Given the deprivation she had already endured and the precarious environment awaiting her at petitioner's home, we conclude substantial evidence supports the juvenile court's finding Trinity would be at risk of detriment if returned to petitioner's custody.

II. Reasonableness of Services

Petitioner contends he was not provided reasonable services because the agency's efforts to assist in transitioning Trinity home were inadequate.   Specifically, he claims, Trinity's counselor did not communicate with the family counselor charged with assisting in Trinity's transition home;  the agency did not provide petitioner the items lacking from his household such as a new mattress, shampoo, and clothes for Trinity and the court did not order a psychological evaluation.   A psychological evaluation, petitioner argues, would have been useful in determining why Trinity did not want to return to petitioner's custody.

We review the juvenile court's reasonable services finding for substantial evidence (In re Alvin R. (2003) 108 Cal.App.4th 962, 971), bearing in mind that in “almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect” (In re Misako R. (1991) 2 Cal.App.4th 538, 547).  “The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.”  (Ibid.)

In this case, we conclude substantial evidence supports the juvenile court's reasonable services finding.   The court provided every means conceivable to identify and allay Trinity's fears about returning home.   The court ordered individual counseling for Trinity and family counseling for that specific purpose.   In addition, the court had Trinity work with her attorney to express her fears and concerns in a letter.   Furthermore, the court ordered a visitation schedule that included alternating overnight and daylong visits to acclimate Trinity to living at home again.   As to petitioner's contention that the counselors did not communicate, we find no such evidence in the record and petitioner does not cite us to any.   Further, a psychological evaluation was not required to ascertain why Trinity did not want to return home.   She revealed the reasons in her letter.   Finally, in light of the many efforts made to return Trinity home, we do not believe the agency's failure to provide the items petitioner identified rendered its efforts unreasonable.   Nor do we believe that providing them would have caused Trinity to change her mind about returning to live with petitioner and Sandra.

III. Conflict of Interest

Petitioner contends the juvenile court prejudicially erred in not appointing separate counsel for Trinity and therefore a reversal is required.   We disagree.

California Rules of Court, rule 5.660(c)(1),³ sets forth the conflict of interest guidelines for attorneys representing siblings.   The rule, as it applies to this case, provides that the “court may appoint a single attorney to represent a group of siblings involved in the same dependency proceedings.”   (Rule 5.660(c)(1)(A).)   However, an attorney must decline to represent one or more siblings in a dependency proceeding, and the court must appoint a separate attorney to represent the sibling or siblings, if, at the outset of the proceedings, an actual conflict exists or there is a reasonable likelihood that an actual conflict will arise.  (Rule 5.660(c)(1)(B).)  An actual conflict may arise where the siblings have different permanent plans.  (Rule 5.660(c)(1)(C)(v).)  “An attorney representing a group of siblings has an ongoing duty to evaluate the interests of each sibling and assess whether there is an actual conflict of interest.”  (Rule 5.660(c)(2)(A).)

Petitioner argues minors' counsel had a conflict of interest, which should have prompted her or the court to declare the conflict and appoint separate counsel for Trinity.   She identifies the conflict as follows:  As Trinity's brother, Michael had an interest in having Trinity return home.   By arguing in favor of terminating Trinity's reunification services, petitioner contends, Trinity's attorney clearly demonstrated she had a conflict of interest in representing both siblings.   Petitioner's argument fails.   In dependency proceedings, “a conflict becomes ‘actual’ when an attorney's duties of loyalty, confidentiality, and zealous advocacy require the attorney to take or to refrain from taking some action to serve the ‘best interests' of one minor client, but the attorney is unable to do so without violating a duty owed by the attorney to another client;  or when the attorney is unable independently to evaluate the best interests of each minor client because of the minors' conflicting interests.  [Citations.]”  (In re Zamer G. (2007) 153 Cal.App.4th 1253, 1267.)

Petitioner fails to show how minors' counsel violated a duty she had to Michael or how she placed Michael and Trinity's best interests at odds by advocating for termination of Trinity's reunification services.   Michael had been living happily with petitioner and Sandra for many months and he had contact with Trinity through family visitation.   Trinity, on the other hand, was refusing to return home and was at risk of suffering emotional harm if forced to return home.   Consequently, her interests were best served by allowing her to remain with Sabrina and there is no evidence that allowing her to do so adversely affected Michael.   For these reasons, we find no conflict of interest in minors' counsel representing both Trinity and Michael.   Therefore, the juvenile court did not err in not appointing separate counsel.   We find no error on this record.

DISPOSITION

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

FOOTNOTES

FOOTNOTE.  

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.

FN2. Sandra also filed a writ petition (F061698)..  FN2. Sandra also filed a writ petition (F061698).

FN3. All further rule references are to the California Rules of Court..  FN3. All further rule references are to the California Rules of Court.