Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. 2324-DEP
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Janet G. (mother) and Guillermo G. (father) separately petition for extraordinary relief from a juvenile court order terminating reunification services and scheduling a permanency planning hearing for their child, Jorge. (Welf. & Inst. Code, § 366.26; Cal. Rules of Court, rule 8.452.) Both parents challenge the juvenile court’s finding that they failed to make substantive progress in their reunification plans. They contend the child should have been returned to their custody under a family maintenance plan because they “ ‘ameliorated . . . serious problems that led to Jorge’s removal from the home.’ ” Real party in interest Sonoma County Human Services Department opposes the petitions. We deny the petitions for extraordinary relief on the merits.
Factual and Procedural Background
On April 28, 2006, the Sonoma County Human Services Department (the agency) filed a petition alleging that the juvenile court should take jurisdiction over two-year-old Jorge because he was a person described in subdivisions (b) (failure to protect) and (j) (abuse of sibling) of section 300 of the Welfare and Institutions Code. The petition alleged that Jorge and his eight-year-old brother had been placed at substantial risk of detriment by their parents’ failure to provide adequate supervision and a safe living environment for the children due to mother’s developmental and emotional impairment and father’s substance abuse. The petition described several incidents including parents’ keeping two guns in an unlocked room in the home and keeping the ammunition in Jorge’s crib, mother’s consumption of alcohol on a daily basis while breastfeeding Jorge, father being found under the influence of alcohol or drugs while Jorge was in his care, parents’ failure to properly supervise Jorge while the child was running around in a parking lot, and mother’s use of corporeal punishment on the older child. On April 28, 2006, the juvenile court directed the agency to detain Jorge and scheduled a jurisdiction hearing.
All further unspecified statutory references are to the Welfare and Institutions Code.
A separate petition was filed regarding Jorge’s brother. During the joint dependency proceedings, parents did not contest the placement of Jorge’s brother in a group home because he had special educational and mental health needs. Because parents’ writ proceedings do not challenge the placement of Jorge’s brother, the circumstances regarding his dependency are not detailed in this opinion.
On May 17, 2006, at the joint jurisdiction and disposition hearing, both parents were present with their separate counsel. The court adjudicated Jorge a dependent child under section 300, subdivisions (b) and (j), after parents submitted on the petition. The child was committed to the custody of the agency, which placed him in a licensed foster care home. Parents were offered reunification services and directed to comply with the agency’s reunification case plans. The court also advised parents that in no case would reunification services be extended beyond 18 months from the date Jorge was originally removed from their physical custody.
The agency’s jurisdiction/disposition report outlined case plans for parents, which included regular visits with the child; completion of parenting classes and demonstrated competency in caring for the social, emotional, physical, nutritional, medical and educational needs of child; completion of a psychological evaluation and participation in counseling as recommended by the social worker; and completion of a substance abuse evaluation, submission to random testing, and successful completion of a substance abuse treatment program. Based upon a psychological evaluation of mother, the agency social worker gave mother a referral to North Bay Regional Center, which provided “the most proficient services” consistent with mother’s limited comprehension abilities.
At the end of the six-month review hearing held on November 2, 2006, the juvenile court found that returning Jorge to his parents at that time would pose a substantial risk of detriment to him. The court continued reunification services after finding that there was a substantial probability that the child would be safely returned during the extended service period.
At the end of the 12-month review hearing held on March 21, 2007, the juvenile court again found that returning Jorge to his parents would create a substantial risk of detriment to him. The court again continued reunification services after finding that there was a substantial probability that the child would be safely returned during the extended service period.
Before the 18-month review hearing, the agency filed a report and an addendum in November 2007, in which the social worker recommended termination of parents’ reunification services, and the scheduling of a section 366.26 hearing for Jorge, whose proposed permanent plan was adoption. The agency social worker reported that services had been provided to assist in the family reunification process, including referral and payment for outpatient drug treatment programs, couples counseling, random drug testing, visitation, and in-home parent education services at two different times during the 18-month reunification period.
By March of 2007, parents had progressed to unsupervised visits of four hours per week. However, during one of the four-hour unsupervised visits, Jorge sprained his ankle. Neither parent reported the ankle sprain to the agency social worker, who learned of the injury from the foster care mother and the foster agency social worker. When questioned about the injury, mother gave two different versions as to how the injury occurred, father’s version matched one of the versions given by mother, and the child reported a third version. Although it was not clear how the injury occurred, the social worker was greatly concerned that the incident had not been reported, and that no first aid was used on the injury such as ice or a cool pack. After learning of this incident, the agency social worker reverted to arranging for supervision of future visits.
For the first 15 months he was detained, Jorge lived in a foster care home. Because his initial care provider was not willing to provide a permanent home for the child, Jorge was moved on July 10, 2007, to a new placement with a foster care family that wanted to adopt him if he could not reunify with his parents. The then three-year-old child appeared to be adjusting to his new home, but he seemed somewhat confused about where he belonged. In August 2007, he adamantly refused to visit with his parents at their home, by physically preventing his safe transport from his new foster care home to his parents’ home. On September 5, 2007, at the request of the agency, the juvenile court suspended visits until the social worker found that it was no longer dangerous for the visits to resume. One month later, supervised visits resumed after the agency social worker spoke with Jorge about visiting his parents, and the child said he would like to see his parents. Since October 10, 2007, the parents had supervised visits with the child either in a visitation room at the agency’s office or outside if the weather permitted. During the resumed supervised weekly visits, the parents played with the child and brought him toys, and the child was affectionate with his parents.
Parents continued to comply with their other case plan requirements regarding counseling, participating in parenting education in their home, successful completion of substance abuse treatment programs, random testing showing negative for all substances, and weekly attendance at 12-step meetings. Additionally, mother had participated in North Bay Regional Center services, and father continued to work with a substance abuse sponsor. However, when the social worker asked the parents’ counseling therapist about the effectiveness of therapy, the therapist did not provide any specific examples of parents’ improvement or learning with regard to keeping Jorge safe.
The agency social worker reported that although the parents obviously loved Jorge, they had not demonstrated their ability to provide him a safe environment, and had not ameliorated one of the most serious problems (lack of supervision) that led to the child’s removal from the home. Because the child was only three years old, quiet and extremely soft-spoken, he was unable to protect himself and relied on responsible adults to take care of him and keep him safe. The social worker described two incidents reported by the visit supervisor as examples of parents’ lack of appropriate supervision. During a visit on July 26, 2007, Jorge and his father were working on building a robot. When father went to the garage to get batteries, he left Jorge with a screwdriver. The child began running around the house with the sharp end of the screwdriver pointing up. Mother watched the child but did not say or do anything to stop him. The visit supervisor told mother it was not safe, but mother did not intervene and it was the supervisor who had to stop the child by taking the screwdriver away from him. The agency social worker believed that had the visit supervisor not been present, it was likely the child would have injured himself when he ran around the house with a sharp screwdriver. During a visit on August 9, 2007, when mother gave the child a plate of scrambled eggs, he threw the plate onto the floor. Neither parent said anything to Jorge about his behavior. Jorge began eating the spilled eggs from the floor. Mother responded by saying, “ ‘Oh look, he’s eating off the floor,’ ” but she did not intervene to keep the child from eating the food. The visit supervisor told her that it was not okay for the child to do that. Neither parent corrected the child’s behavior or gave him a consequence for throwing his plate.
On November 16 and 19, 2007, the juvenile court held the 18-month review hearing preceded by a hearing on mother’s section 388 petition by which she sought additional reunification services. The court heard testimony from the agency’s social workers regarding the services that had been provided mother. The court denied mother’s section 388 petition after finding that the agency had provided reasonable counseling services, including individual counseling received by mother from a licensed clinical psychologist every other week for six months at her drug treatment facility, at least 15 in-home service visits, and mother’s immediate referral to North Bay Regional Center.
As to the 18-month review, the juvenile court considered the agency’s reports in the case file, documentary evidence admitted at the hearing, the testimony that had been offered pertaining to mother’s section 388 petition, and testimony from father, mother’s sister, the agency’s social worker, and the visit supervisor who was present during Jorge’s visits with his parents from May 2007 through the beginning of August 2007, including the two visits described in the agency’s 18-month review report. Mother did not testify.
The juvenile court found, by clear and convincing evidence, that the agency had provided or offered reasonable services to parents. Although the parents had participated regularly in the court-ordered service plans, they had not made substantive progress. The court also found the child’s visits were still supervised, and supervised visits were appropriate. Because the matter was before it for an 18-month review, the court refused to order additional reunification services. In its written order, the court found that Jorge’s return to his parents would create a substantial risk of detriment to the child after concluding, among other things, that the extent of progress which the parents had made toward alleviating or mitigating the causes necessitating the child’s placement had been minimal. The court scheduled a section 366.26 hearing for March 13, 2008, to determine a permanent plan for Jorge.
Discussion
The legal standards governing this matter are well established. The juvenile court made the order in question at a contested 18-month review hearing. At that hearing, “The 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. The social worker shall have the burden of establishing that detriment. . . . The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (§ 366.22, subd. (a).) If the court does not return the child to the custody of his or her parent or legal guardian, the court shall “order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, guardianship, or long-term foster care is the most appropriate plan for the child,” and “order termination of reunification services to the parent or legal guardian.” (Ibid.)
In making its determination at the 18-month review hearing, “the court shall review and consider the social worker’s report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself of services provided; and shall make appropriate findings pursuant to subdivision (a) of Section 366.” (§ 366.22, subd. (a).) Section 366, subdivision (a), requires that at each periodic status review, “[t]he court shall consider the safety of the child,” and determine, among other things, “[t]he continuing necessity for . . . placement,” “[t]he extent of the agency’s compliance with the case plan in making reasonable efforts . . . to return the child to a safe home,” and “[t]he extent of progress which has been made toward alleviating or mitigating the causes necessitating placement in foster care.” (§ 366, subd. (a)(1).)
“When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence—that is, evidence which is reasonable, credible and of solid value—to support the conclusion of the trier of fact.” (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) Parents’ reliance on isolated portions of the testimony at the 18-month review hearing is unavailing. “We have no power to . . . resolve conflicts in the evidence” or determine where the weight of the evidence lies. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) We must “accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.” (Id. at p. 53.)
The juvenile court properly found the agency had met its burden of showing at the 18-month review hearing that returning Jorge to his parents’ care would create a substantial risk of detriment to the child. Parents’ failure to treat or report the child’s sprained ankle so that arrangements could be made for necessary treatment, and the child’s running around the house in possession of a screwdriver and eating food from the floor, were not aberrant incidents but similar to those that had caused the initial removal of the child for neglect and lack of adequate supervision. The new incidents, which occurred after the provision of extensive services to ameliorate the problems that caused the initial removal, established that parents were still making decisions that put their very young son at risk.
Parents point to no evidence at the 18-month review hearing, and we have not found any evidence, from which the juvenile court was required to conclude that at that time parents would be able to take custody of Jorge if provided with family maintenance services. This case is readily distinguishable from David B. v. Superior Court (2004) 123 Cal.App.4th 768, cited by both parents. In David B., the appellate court, in granting the writ petition, explained that “. . . however well meaning, the social worker ended up focusing on the wrong thing. The problem in this case was housing, and it was made short shrift of.” (Id. at p. 795.) In our case, however, both the agency and the juvenile court focused on precisely the right thing—the unsafe, dangerous living conditions in the home for a very young child, for which parents were provided a broad array of highly personalized services but were still either unable or unwilling to correct the problems. Nothing in David B. requires, or even suggests, that the juvenile court here erred in failing to return Jorge to his parents’ custody under a family maintenance plan. Nor was there any showing of extraordinary circumstances or special needs necessitating an extension of family reunification services beyond the statutory limit of 18 months. (See Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388 [citing cases of “extraordinary circumstances . . . militat[ing] in favor of extension of family reunification services beyond the 18-month limit”].)
Disposition
The petitions are denied on the merits. (§ 366.26, subd. (l)(1)(C); Cal. Rules of Court, rule 8.452(i)(1).) Our decision is final immediately. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur: McGuiness, P. J., Pollak, J.