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In Re H.G. and J.G., Persons Coming Under the Juvenile Court v. Superior Court of California

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE


November 15, 2011

IN RE H.G. AND J.G., PERSONS COMING UNDER THE JUVENILE COURT LAW. R.S., PETITIONER,
v.
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SOLANO, RESPONDENT, SOLANO COUNTY HEALTH & SOCIAL SERVICES DEPARTMENT, REAL PARTY IN INTEREST,

(Solano County Super. Ct. No. J34634)

The opinion of the court was delivered by: McGuiness, P.J.

In re H.G.

CA1/3

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

R.S. (Mother), mother of 13-year-old H.G. and 7-year-old J.G., petitions this court pursuant to California Rules of Court, rule 8.452 to set aside the juvenile court's order terminating reunification services and setting a permanency hearing under Welfare and Institutions Code section 366.26 (section 366.26 hearing).*fn1 She contends: (1) there was no substantial evidence supporting the finding that there would be a substantial risk of detriment to the minors if they were placed in her care; and (2) the juvenile court should have provided her with additional reunification services based on a finding of "extraordinary circumstances." We reject the contentions and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Earlier this year, we resolved Mother's two appeals in unpublished opinions (April 29, 2011, A128565; May 4, 2011, A129655). To obtain context, maintain consistency and conserve judicial resources, we take judicial notice of our prior opinions. (Evid. Code, § 451, subd. (a); see In re Luke L. (1996) 44 Cal.App.4th 670, 674, fn. 3.) The essential facts from the proceedings underlying the two appeals are as follows.*fn2

The first appeal

"H.G. and J.G. are autistic, nonverbal children who require constant attention. The Solano County Health & Social Services Department (the Department) filed an original petition on behalf of then-five-year-old H.G. on April 12, 2004, after Mother left him unsupervised for at least two hours while she slept. An original petition was filed on behalf of then-five-month-old J.G. on February 10, 2005. The juvenile court dismissed both petitions after the Department developed a plan for services for Mother and a substance abuse assessment showed she had ' "no signs or symptoms of active addiction." ' "

"A second petition was filed on July 15, 2008, after J.G. was found wandering outside in only a diaper, the home was filthy with safety hazards everywhere, and Mother appeared to be under the influence of a controlled substance. The children were dirty and were eating dog food and other food off the floor. H.G. was 'combative' with a police officer and J.G. tried to bite another officer. Mother was aggressive towards the social worker who responded to the home. She did not submit to random drug tests and did not participate in mental health and substance abuse evaluations. On one occasion, she pushed a security guard and the Department expressed concern with 'the stability of [Mother's] emotional state as she [regularly] goes into rages which range from aggressive (mostly verbal), to yelling, irrational thoughts and then to crying within a matter of minutes.' The juvenile court dismissed the second petition on May 5, 2009, after Mother agreed to participate in services."

"The third and current petition was filed on January 22, 2010, after H.G. was found outside the home naked and J.G. was found walking up and down the street alone, naked and covered in feces. The home was filthy, the children had lice, and H.G. was diagnosed with scabies. Mother appeared to be under the influence of a controlled substance. . . . [¶] On January 22, 2010, H.G. was placed in the same foster home in which he had been placed during the second dependency action." "Mother appealed from the juvenile court's jurisdictional and dispositional orders and also challenged [a restraining order that had been issued against her], asserting the restraining order was overbroad and created a conflict of interest and that the Department had not complied with the Indian Child Welfare Act." We affirmed the orders.

The second appeal

"On July 29, 2010, Mother filed a motion requesting that H.G. be placed in a different foster home or that a hearing be conducted 'to determine whether removing [H.G.] from his placement would be in his best interest.' She declared she had 'observed on several different occasions that [H.G. had] bruises of various size and coloration, and on varying places on his body, as well as other injuries.' She had not 'consistently received explanations for how these injuries occur[red].' " "Social worker Alexandra Fernandez declared that H.G. was a 'very active child' who engaged in 'self-injurious behaviors, including banging his head against the wall and hitting himself on the head with his hands.' At every visit Fernandez supervised, Mother inspected H.G.'s body by lifting his clothes and partially pulling his pants down. She 'also on occasion asserted that [H.G.] need[ed] to use the restroom, . . . [then] inspected his unclothed body as part of the trip to the restroom.' On at least one occasion when Fernandez attempted to redirect Mother and encourage her to spend her time visiting with her children, Mother challenged Fernandez, stating, " 'go ahead and report me.' " . . . There were times Fernandez 'actually noticed bruising on [H.G.],' and at other times, she was 'unable to see what [Mother was] referring to.' " "Social worker Samantha Hamilton declared . . . [she] had seen H.G. hit his head with his hands and throw himself on the ground. On one occasion, security was called when H.G. yelled, dropped to the floor, and 'dug his fingernails into the visit supervisor's skin' when the supervisor tried to stop him from banging his head on the wall. On another occasion, H.G. threw a tantrum, hit his head and scratched and banged his head on the ground. . . . Hamilton had visited H.G.'s school and the foster home and had also made an unannounced visit to the foster home. H.G. appeared to be well cared for and there was no evidence he was being abused." "The juvenile court denied Mother's request for an evidentiary hearing, stating it would not 'serve any useful purpose in this case.' It also denied her motion" to have H.G. placed in a different foster home. Mother appealed from the juvenile court's orders, and we affirmed the orders.

Mother's writ petition

A six-month review hearing was scheduled for October 13, 2010, and on June 23, 2010, the Department filed a confidential pleading addendum report that contained Mother's psychological evaluation. The Department also filed a status review report on September 23, 2010, in which it recommended continued family reunification services for Mother. According to the report, Mother was not in compliance with most of her case plan, was unemployed, and had moved at least twice during the review period. From April to May 2010, she was living with her cousin. In July, she informed her social worker that she was living with an elderly woman in a trailer behind the woman's home. The social worker unsuccessfully tried to schedule an appointment with Mother to have a safety assessment done on the home. In August, Mother said she was "staying at a ranch" but did not provide an address.

Despite having active Medi-Cal, Mother had not begun attending individual psychotherapy. She believed she did not need parenting services but agreed to participate and had attended two parenting classes. She believed she did not need substance abuse intervention services and denied using drugs. She refused to be tested for drugs on five occasions and tested negative for drugs on one occasion. Visits with J.G. were suspended on June 10, 2010, when the social worker learned that Mother was homeless. At the time of the report, Mother was having one, one-hour supervised visit with the minors per week. She had attended most of her weekly visits and often greeted the children "with hugs, kisses, and snack foods." At the six-month review hearing, the juvenile court ordered continued reunification services to Mother and a minimum of two, one-hour visits per week.

On November 19, 2010, the Department filed a motion requesting a stay of the juvenile court's order increasing visits from once to twice a week. The Department stated Mother was acting inappropriately during visits and that the "resulting chaos" made "visits stressful for the children." Despite an August 18, 2010, court order prohibiting her from disrobing H.G., Mother "continue[d] to obsess over bruising on [H.G.]," as she lifted his clothing, looked up and down his arm and on his back and shoulders searching for bruises. She continued to try to take H.G. to the restroom or change his diaper when his diaper did not need to be changed. During one visit, Mother was " 'all over [H.G.],' " leaving J.G. "on his own." She told H.G. she was going to sue the county and that maybe the county could buy them a house. She called H.G. her "sexy boy" and discussed her dissatisfaction with H.G.'s foster care placement. The juvenile court granted the Department's request and reduced visits to once or twice per week, per the social worker's discretion.

On March 1, 2011, the Department filed a 12-month status review report recommending continued reunification services to Mother. During the review period, Mother was unemployed and was living with an elderly woman, assisting the woman in the caretaking of a young adult with cerebral palsy. The home in which she lived had not yet been assessed. Mother had not begun individual counseling but was scheduled to start in March 2011. She was also scheduled to participate in "medication evaluation" in which it would be determined whether she needed medication. She reported she was regularly attending parenting classes and had been asked to care for the facilitator's autistic child. Because Mother had not signed a release as requested, the social worker was unable to verify the information regarding the parenting classes. Mother had been tested for drugs twice as requested; both tests were negative. Mother told the social worker that she "did not believe that the Court should be involved with her and her children and that . . . she ha[d] filed an appeal in this matter." She stated there was "no reason . . . the children should not be with her" because she was "not neglectful of her children and in fact [wa]s over protective of them." The social worker believed that Mother's "continual denial of responsibility for any of the factors that necessitated the Court's involvement in the lives of her children [wa]s directly impacting her ability to make the changes necessary to ensure her children's safety while in her care." Her resistance to participating in the services outlined in her case plan had caused significant delays in the facilitation of the specialized services that were necessary to address the family's needs. At the 12-month review hearing, the juvenile court continued reunification services to Mother and increased supervised visitation to two, one-hour visits per week.

On July 5, 2011, the Department recommended in its 18-month status review report that family reunification services for Mother be terminated and the matter be set for a section 366.26 hearing. Mother was living in a small "in-law type of housing unit" that was not adequate for housing the minors, as there was no sleeping area and a garden hose was being used for water access. She was working five hours per week at $11.50 per hour, providing care to an autistic child. She reported to the social worker that she attended one individual counseling session and was told she did not need counseling. She was not participating in substance abuse services and had refused to submit to a drug test on five occasions. A psychiatric evaluation showed there was "no psychiatric contraindication as to [Mother] being reunited with her children" and that no psychotherapy was necessary. However, Mother's "insight into her personality traits and previous condition [wa]s not good," and the doctor believed she needed to be monitored through ongoing case management services. Mother was attending parenting classes regularly, was "very knowledgeable," and shared information with other parents in the group who had children with special needs. She was visiting the children twice a week for a total of three hours, and some unsupervised visits had occurred. On July 5, 2011, the Department filed a confidential pleading addendum report that contained, among other things, the minors' school records and Mother's substance abuse test results and mental health report.

At an August 22, 2011, contested 18-month review hearing, social worker La Toshia Lacour testified she was assigned to the case in May 2011. Mother did not submit to a drug test as requested in June, and in July, Mother went to the test center but did not provide a urine specimen and was also unable to provide a hair follicle, as she had shaved her head bald. In August, when she submitted to a hair strand test, she tested positive for methamphetamine. Lacour believed Easter Seals would be a helpful service to Mother because of the minors' special needs. Lacour was aware that Mother had met with a representative from Easter Seals in October 2010 and that the meeting "went pretty well." However, the sessions had not yet begun due to a delay that Lacour believed was caused by the difficulty in "coordinat[ing] a plan to get [Mother] engaged in services during that time."

Lacour further testified that Mother had visited the children throughout the course of the case and that many of the visits had gone well. The Department began to consider a move towards unsupervised visitation and began sitting outside of the visitation room for a monitored, but not supervised, visit. There were, however, reports indicating there were problems with Mother's behavior during other visits. She constantly checked the children for bruises, disrobed the children, and sat on H.G.'s lap. She did not appear to acknowledge that the bruises on H.G. were caused by his self-injurious behavior, which is a characteristic of autism. Mother had participated in various appointments, including a dental appointment with H.G. in February. She told the Department that she planned to move into better housing if the minors were returned to her care, as she would receive social security income on their behalf.

The parties agreed to accept an offer of proof regarding the testimony of a social worker because the social worker was unavailable to testify due to an illness. The offer of proof, read by Mother's counsel, was as follows: "If called to testify, [the social worker] Miss Hood would indicate that she's currently employed by my office, the Public Defender's Office, and has been since approximately April as a social worker. Miss Hood would testify that she has a bachelor's degree in family studies and that she's currently obtaining her master's degree in counseling from Sacramento State University. [¶] Miss Hood would testify that she's a former Child Welfare Services Social Worker from Sacramento. . . . [¶] Miss Hood would indicate that she has been working with [Mother], that she has been to her residence twice. That she would describe the residence as small, but did not observe anything that concerned her. Miss Hood would testify that she's been to [Mother's] residence as recently as this past Sunday, that she observed that there was a water cooler in the room that has both hot and cold water. That in the main house where the bathroom is . . . the hole over the tub is now covered with plastic. [¶] Miss Hood would also testify that during her first visit to [Mother's] home she observed a brief portion of [Mother's] visit with the children at her home. That she was there for approximately 10 minutes when the children were arriving. That the children came right in and came right to [Mother] as if they were comfortable and that [Mother] appeared engaged in taking care of the children."

Mother testified she had been in her current residence, an in-law unit, since February 2011. There was a large yard and a play structure and she was receiving $661 per month from the veteran's association and paying $600 per month for rent. She planned to move into a larger home if the minors were placed back in her care, as her veteran's benefit would increase to $1,000 per month and she would also receive the minors' social security of $800 per child per month. At the time of the hearing, Mother was working as a care provider for an 11-year-old girl with severe autism. She had taken care of the child approximately ten times, including making sure she got on the bus in the mornings, and recently, for three consecutive hours. Mother had been attending Matrix support groups since "the beginning of . . . this case" and had received support from the group.

Mother further testified there was a delay in her beginning services with Easter Seals because the Department was supposed to contact her after Easter Seals submitted its report for services to begin. She had attended 12 sessions with Easter Seals and found them to be helpful. She received suggestions on how to manage her children's behavior and took notes during the sessions. She read various books regarding autism and found them to be helpful. Mother was willing to continue working with the Department on family maintenance services if her children were placed back in her care. Mother testified she wanted her children to come home with her immediately, and denied there were issues preventing her from meeting their needs. She indicated she does not use drugs but had no explanation for the positive drug test.

Cathleen Allen, who runs Matrix Parent Network and Resource Center, a support group for parents of autistic children, testified she had worked with approximately 300 parents and also provided advice on the phone help line. Parent support groups met once a month and were structured as an hour and a half meeting with a topic to discuss. Allen testified that Mother was "engaged in the support group," made contributions that were helpful to other parents, and had also learned from the group. Mother was also helping Allen care for her autistic child by getting the child ready for school and putting her on the bus, then taking her off the bus and giving her a snack and helping her "wind[] down from school." Allen described the quality of care Mother provided as "[e]xcellent." On cross-examination, Allen testified she was not aware of the details regarding Mother's dependency case. She said she would "probably not" allow Mother to care for her child if she learned Mother had recently tested positive for methamphetamine.

The juvenile court ordered that the minors remain in out of home placement, terminated reunification services to Mother, and scheduled a section 366.26 hearing for December 21, 2011. The court ordered a minimum of one supervised visit per week. Mother filed a Notice of Intent to File Writ Petition on September 9, 2011.

DISCUSSION

Substantial risk of detriment to the minors

Mother contends there was no substantial evidence supporting the finding that there would be a substantial risk of detriment to the minors if they were placed in her care. We disagree.

Section 366.22, subdivision (a), provides in part that the juvenile court "shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." We review a finding of substantial risk of detriment under the substantial evidence standard, wherein all reasonable inferences must be drawn in support of the juvenile court's findings and the record must be viewed in the light most favorable to the juvenile court's orders. (See In re Jeannette S. (1979) 94 Cal.App.3d 52, 58; In re Maria S. (2000) 82 Cal.App.4th 1032, 1039.)

Here, there was a history of referrals for inadequate supervision of the minors by Mother, and the Department had filed three petitions on behalf of the minors beginning in April 2004. Extensive services were provided throughout the years, including individual counseling, parenting classes, psychological and psychiatric assessments, substance abuse treatment, and visitation. Mother participated in some of the services, including parenting services, but was not in compliance with most of her case plan. She denied using drugs and alcohol and had not engaged in substance abuse intervention services. She refused to drug test on numerous occasions, and at the 18-month-review hearing, she continued to deny using drugs despite having tested positive for methamphetamine. She visited the children regularly but many of the visits were problematic due to her inappropriate behavior. She attended only one individual counseling session, and although a psychiatric evaluation showed that psychotherapy was unnecessary, it also showed that her "insight into her personality traits and previous condition [wa]s not good." She did not believe the court should be involved in her and her children's lives because she was not a neglectful parent, and she testified at the 18-month-review hearing that she wanted her children to be returned to her care immediately, as there were no issues preventing her from meeting their needs. In light of Mother's continuous denial of responsibility and her resistance to participating in services that addressed the family's special needs, the juvenile court could reasonably find that Mother had not made the changes necessary to ensure the minors' safety while in her care. There was substantial evidence supporting the juvenile court's finding that there would be a substantial risk of detriment to the minors if they were returned to Mother's care.

Denial of reunification services

Mother contends the juvenile court should have provided her with additional reunification services based on a finding of "extraordinary circumstances." We disagree.

California's juvenile dependency system contemplates a maximum reunification period of 18 months calculated from the date the child was removed from parental custody. (§§ 361.5, subd. (a)(3) & 366.22, subd. (a).) "If the child may not safely be returned to the parents within a maximum of 18 months from removal," the juvenile court must terminate reunification services and set a section 366.26 hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 308; §§ 366.21, subd. (f), 366.22, subd. (a).) The juvenile court may, in the best interests of the child and for good cause, exercise its discretion to grant a continuance of any hearing, including the 18-month hearing, pursuant to section 352, subdivision (a). (See Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510-1511.) Thus, an 18-month hearing may be continued if "no reasonable reunification services have ever been offered or provided to a parent" (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1017), and the time frame for reunification services may be extended if "no reunification plan was ever developed." (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) Further, in In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1797-1799, reunification services were extended because the mother was hospitalized during much of the reunification period and had otherwise substantially complied with the reunification plan. However, absent such "extraordinary" situations, "the juvenile court's extension of services beyond 18-months [is] an abuse of discretion and in excess of its jurisdiction, as limited by statute." (Denny H. v. Superior Court, supra, 131 Cal.App.4th at p. 1511.)

Here, reasonable reunification services were offered and there were no "extraordinary" circumstances justifying extending services beyond the 18-month period. Mother asserts that her case was "extraordinary" because her children have special needs, and because she began to "show[] improvement" as soon as she began participating in the Easter Seals program, which was "uniquely tailored to addressing the parenting issues specific to [the] two minors. . . ." However, the record shows that the Department provided Mother with referrals to various specialized services throughout the 18 month period--including a referral to Easter Seals as early as October 2010--and that it was Mother who chose not to utilize these services for many months, due to her belief that she was not a neglectful parent and that her family did not need the kinds of services the Department was offering. Although Mother showed some progress after participating in Easter Seals, the progress came at the end of an 18-month-period during which she was not in compliance with most of her case plan. Under these circumstances, it would have been an abuse of discretion for the juvenile court to extend reunification services beyond the 18-month period.

DISPOSITION

The writ petition is denied and the case is remanded for further proceedings. Our opinion is final as to this court forthwith.

We concur: Pollak, J. Siggins, J.


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