V.T. v. Superior Court CA4/2 (2021) · DecisionDepot
V.T. v. Superior Court CA4/2
California Court of Appeal Jan 22, 2021 No. E075910Unpublished
Filed 1/22/21 V.T. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
V.T., E075910 Petitioner, (Super.Ct.No. RIJ900458) v. OPINION THE SUPERIOR COURT OF RIVERSIDE COUNTY,
Respondent;
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Matthew C.
Perantoni, Judge. Petition denied.
Anastasia M. Georggin for Petitioner.
No appearance for Respondent.
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Gregory P. Priamos, County Counsel, and James E. Brown, Anna M. Marchand,
and Julie Koons Jarvi for Real Party in Interest.
V.T. (mother) filed this petition for extraordinary writ after the juvenile court set a
hearing to terminate her parental rights. V.T. and father, who is not a party to the writ,
have one son, A.T., who was a one year old when the juvenile court took jurisdiction over
him and removed him from his parents’ custody based in part on the parents’ issues with
domestic violence. During the reunification period, mother was offered and participated
in services for 14 months. At the 12-month review hearing (Welf. And Inst. Code,
evaluation, neurological evaluation, parenting education, and domestic violence
education. Mother largely participated in these services and completed her parenting
education. However, on February 18, 2020, she tested positive for methamphetamine.
She was also unable to complete her neurological evaluation before May 2020, in part
because of the COVID-19 pandemic.
On April 3, 2020, A.T. went to the doctor because he was coughing and wheezing.
At the May 14, 2020 six-month review hearing, the department recommended
against returning A.T. because mother had not completed her services. The department
also expressed concern about her positive drug test and unresolved mental health issues.
In addition, they were concerned about the psychological evaluator’s opinion that mother
“had absolutely no insight into the nature of her mental disorder,” “no insight into the
nature of the difficulties between her and [father],” and “no insight in terms of her
limitations towards caring for the children [sic] or being able to work out her issues with
[father].” The evaluator stated mother was “unable to adequately benefit from services at
this juncture due to her mental disorder and a lack of insight and acceptance of the nature
of her mental disorder and need for treatment.”
At the conclusion of the hearing, the court continued services for another six
months.
D. The 12-Month Review Period
Mother continued to participate in various services and remained medication
compliant. However, she tested positive for methamphetamine again on May 6, 2020, and
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did not appear for testing three times in May and June. She tested negative on June 29
and July 14, 2020.
In June and July 2020, A.T. visited the doctor multiple times due to concerns with
his coughing, wheezing, and asthma, and he underwent an outpatient surgery.
Mother participated in FaceTime video calls with A.T. in May and June 2020.
Though these visits were infrequent at first, they increased to calls about three times a
week by the end of June. Both parents appeared for a socially distanced in-person play
date with A.T. on July 10, 2020, with no reported concerns.
The department prepared another report prior to the 12-month status review
hearing and continued to recommend against returning A.T. to his parents’ care. The
department noted mother was participating in services and showed some insight into her
substance abuse issues and relationship with father. However, the department was
concerned about mother’s ability to maintain her sobriety and continued to be concerned
about her failure to complete the neurological examination. They were also concerned
that mother continued to have issues “managing her mental health symptoms and coping
as evidenced by her inconsistent drug screens and positive results.” Finally, the
department pointed to mother’s psychological evaluation indicating they had concerns
regarding mother’s ability to benefit from services. They ultimately recommended
terminating services as to mother.
The court continued the 12-month status review hearing to September 3, 2020.
Prior to this hearing the department prepared an addendum to their report. This addendum
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changed the department’s recommendation from terminating services to continuing them
for another six months, as well as liberalized visitation. The report said mother completed
her outpatient substance abuse program and continued to participate in other services,
including individual and group counseling. She also continued to be treated for and
remain medication compliant regarding her diagnosed schizoaffective disorder.
However, the de facto parents reported that neither parent seemed particularly
concerned with protecting A.T. during in-person visits. For example, the parents allowed
A.T. to climb on a play structure despite the structure being closed due to COVID-19.
They also allowed the child to drink from a water fountain rather than the water bottle
offered by the de facto parents. When asked whether they wanted to administer A.T.’s
asthma treatment, they opted to watch a social worker do it instead. The parents never
inquired about A.T.’s physical well-being despite a trip to the emergency room and three
to four visits to urgent care for a recurring ear infection. The parents also did not make an
affirmative effort to reach out regarding A.T.’s outpatient surgery, didn’t ask questions
when the de facto parent called to tell them how it went, and didn’t “emote any concerns
for the child.”
On September 3, 2020, the court continued the 12-month status review hearing to
October 7, 2020.
Prior to the continued 12-month status review, the department filed another
addendum to their report. In this addendum the department changed their
recommendation back to terminating services. The report again noted mother completed
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her court-ordered services, had only four more sessions in her domestic violence
program, continued to participate in group and individual counseling, and remained
medication compliant. She also completed her neurological evaluation, which came back
clear. Mother continued drug testing and tested clean on September 14, 2020.
The department expressed concerns regarding the parents’ perceived passivity
towards A.T. In particular, the department was concerned the parents had not changed
their parenting style, as they started out “not involved in the child’s wellbeing,” as
“evidenced by the parents not calling [A.T.] on his birthday, checking on [A.T.] before
and after his surgery, asking in regards to [A.T.’s] diagnosis of asthma, and inquiring
about [A.T.’s] speech therapy.” When informed A.T. would be seeing a medical
specialist, the parents didn’t ask why he needed to be seen by a specialist. They also
didn’t seem to understand his medication regimen or ask any questions about it. Though
mother attended A.T.’s speech therapy, she did not ask questions, and she seemed not to
understand his treatment goals.
The department also expressed concern about visitation. They noted that “parents
usually ask the social worker if they should change [A.T.’s] diaper, rather than using their
own judgment.” The department noted “the parents are diligent in following directives.
However, they lack the desire to take initiative.”
When pressed on their passivity, the parents said they didn’t know and/or were
intimidated by the foster family agency social worker and caregiver.
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The 12-month review hearing took place on October 13, 2020. The social worker
who took over the case in August 2020 testified. According to her, the issue was not the
parents’ compliance with services, but their communication. She attempted to fix this by
giving them her phone number and emphasizing she was available any time. She said
mother had completed her services, and she didn’t think mother needed to be referred for
any additional services. She also said that during one visit the parents let A.T. run into the
road and did not try to stop him.
The court found the parents’ progress toward alleviating or mitigating the issues
necessitating placement was “minimal.” It found the department had complied with the
case plan and provided reasonable services. It found there was no substantial probability
of return, terminated both parents’ reunification services, and set a permanency planning
hearing under section 366.26. The court found that “mother and father have certainly
gone through the motions basically, physically completing services,” but that “[i]t does
not appear as though the parents are invested in the care of their medically-fragile child,”
and “[t]hey are certainly not taking any initiative.”
Mother filed a timely notice of intent to file a writ petition.
II
DISCUSSION
Mother raises two issues in her writ. First, she claims the department failed to
provide her with reasonable reunification services tailored to her needs as a special needs
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mother. Second, she challenges the finding there was no substantial probability A.T.
could safely return if she were given six more months of services.
A. Reasonable Reunification Services
Mother argues the services provided were not reasonable in two main ways. First,
that her original case plan didn’t follow the recommendations of her psychological
evaluation. Second, that she wasn’t provided with services to help her manage A.T.’s
medical conditions.
1. Standard of Review
When a court orders reunification services, the department must ensure the
services they provide are reasonable. (§ 361.5, subd. (a); Earl L. v. Superior Court (2011)
199 Cal.App.4th 1490, 1501.) Whether the reunification services offered were reasonable
and suitable is judged according to the circumstances of the particular case. (Earl L. v.
Superior Court, at p. 1501.) “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.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) Any
reunification plan “must be specifically tailored to fit the circumstances of each family
[citation], and must be designed to eliminate those conditions which led to the juvenile
court’s jurisdictional finding.” (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.)
We review the juvenile court’s finding that reasonable services had been provided
or offered for substantial evidence. (Katie V. v. Superior Court (2005) 130 Cal.App.4th
586, 598.) That is, we examine the record in the light most favorable to the juvenile
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court’s order, to determine whether there is substantial evidence from which a reasonable
trier of fact could have made the finding under the clear and convincing evidence
standard. (In re Mary B. (2013) 218 Cal.App.4th 1474, 1483; In re Isayah C. (2004) 118
Cal.App.4th 684, 694.) We construe all reasonable inferences in favor of the juvenile
court’s decision. (Christopher D. v. Superior Court (2012) 210 Cal.App.4th 60, 70; In re
Julie M. (1999) 69 Cal.App.4th 41, 46.) We also resolve conflicts in the evidence in favor
of such a finding and do not reweigh the evidence. (In re Jasmine C. (1999) 70
Cal.App.4th 71, 75.)
Mother emphasizes, however, the reasonable services finding “must be made by
clear and convincing evidence in the trial court.” (T.J. v. Superior Court (2018) 21
Cal.App.5th 1229, 1238.) “In general, when presented with a challenge to the sufficiency
of the evidence associated with a finding requiring clear and convincing evidence, the
court must determine whether the record, viewed as a whole, contains substantial
evidence from which a reasonable trier of fact could have made the finding of high
probability demanded by this standard of proof.” (Conservatorship of O.B. (2020) 9
Cal.5th 989, 1005.) In other words, “the question before a court reviewing a finding that a
fact has been proved by clear and convincing evidence is not whether the appellate court
itself regards the evidence as clear and convincing; it is whether a reasonable trier of fact
could have regarded the evidence as satisfying this standard of proof.” (Id. at p. 1009.)
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2. The Case Plan
Mother has waived her right to argue her case plan was inadequate because she
failed to timely seek appellate review of her case plan by appealing from the dispositional
order. “By failing to appeal, [the mother] has waived any complaint she may have
regarding the plan as ordered. [Citation.] Having declined to seek appellate review of the
dispositional order, and having failed to file a petition to modify the dispositional order
[citation], [the mother] cannot fault [the department] for complying with it.” (In re Julie
M., supra, 69 Cal.App.4th at p. 47.)
But even if we consider the merits of mother’s claim, we disagree with her that the
initial case plan was inadequate. The allegations against her included that she neglected
the health, safety, and well-being of her infant son by engaging in domestic violence
around him, that she suffered from unresolved mental health issues which impacted her
ability to care for him, that she had a history of substance abuse, and that she failed to
benefit from pre-placement services. In response, her case plan called for general
counseling, medication evaluations, a neurological evaluation, substance abuse
counseling, substance abuse testing, and parenting education.
Contrary to mother’s assertions, this plan is largely in line with her psychological
evaluator’s recommendations, which included counseling, a neurological assessment,
medication management, and parenting education. While it is true the evaluator also
recommended an intensive outpatient program focusing on coping and emotional
regulation, reasonable services need not be perfect services. The test is whether they were
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tailored to the identified needs of the parent, not whether they were the best possible
services available. (In re Alvin R. (2003) 108 Cal.App.4th 962, 972.)
3. Reasonableness of Services
In arguing the services the department provided weren’t reasonable, mother
focuses on the department’s failure to provide assistance in learning about and managing
A.T.’s medical care, as well as their failure to provide referrals for parenting classes
particularly tailored to her special needs. She argues that, given her mental health issues,
the department should have provided more specific parenting education courses “to
address skills that would increase [her] awareness and insight about herself,” and better
help her understand A.T.’s medical needs. She also argues that it’s not enough the social
worker made herself available for questions, or might have helped if asked, because “[a]
parent is ‘not required to complain about the lack of reunification services as a
prerequisite to the department fulfilling [their] statutory obligations.’ ” (Melinda K. v.
Superior Court (2004) 116 Cal.App.4th 1147, 1158.)
Mother relies on In re Elizabeth R. (1995) 35 Cal.App.4th 1774 (Elizabeth R.) for
the proposition that the reasonableness of services turns, in part, on whether they were
sufficiently tailored to the special needs of a special needs parent. That case concerned an
intelligent but mentally ill mother who suffered from severe bipolar disorder and
postpartum psychosis. (Id. at pp. 1778-1779.) The mother was hospitalized and placed
under conservatorship, circumstances authorities used to deny her visitation requests. The
court found the services provided were not reasonable and not tailored to her needs
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because authorities made no effort to allow her visitation despite her hospitalization,
analogizing her circumstance to that of incarcerated parents. (Id. at pp. 1791-1793.)
This case is easily distinguishable from Elizabeth R. Perhaps most importantly, the
mother in that case was effectively denied visitation because of her hospitalization for
mental illness. The tailoring the court required in Elizabeth R. was that the relevant
authorities allow visitation when parents are hospitalized for mental illness. (Elizabeth R.,
supra, 35 Cal.App.4th at p. 1792.) Here, mother doesn’t claim she was denied some
essential component of her reunification services, only that the services provided were
not uniquely well suited to her mental health issues.
While we do not doubt that more services, and possibly better-tailored services,
might have helped mother here, the trial court’s conclusion that the services provided
were reasonable is supported by substantial evidence. The services provided—mental
health counseling, substance abuse treatment, a domestic violence program, and
parenting education, among others—directly addressed the reasons that led to A.T.’s
removal and largely conformed to the recommendations in mother’s psychological
exams. Mother does not allege the department failed to provide referrals or otherwise
failed to make these services available, nor does the record indicate a lack of contact
between the department and mother. Indeed, the social worker who testified at the 12-
month status review hearing made a point of trying to keep communication open between
herself and mother, but found it was largely a one-way street.
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The only category of service mother alleges should have been provided, and
wasn’t, is assistance in managing A.T.’s medical needs. We are sympathetic to the fact
that these medical issues arose while he was outside her care, and that she therefore
required instruction to understand and properly administer his medicine. But the
department demonstrated what needed to be done, and mother never asked further
questions or indicated she needed further instruction. The trial court could, therefore,
reasonably conclude the department fulfilled their obligation on this front.
Mother argues her failure to ask questions or to fully comprehend her son’s
medical issues was a function of her mental illness, and that the department should have
taken this into account and provided services that would help her in this regard. That is,
while the instruction provided may have been reasonable for other parents, it was
insufficient for her because of her mental health limitations. Specifically, mother argues
her mental health issues made her reticent to ask questions and contributed to her
misunderstanding of her child’s medical condition.
However, on this record, there was substantial evidence for the juvenile court to
conclude that mother’s failure to ask questions was a sign of disinterest, not incapacity.
Mother didn’t just fail to ask questions about A.T.’s medicine, but also failed to ask about
the child’s numerous medical appointments (including at least one emergency room visit
and an outpatient surgery), never inquired about what these treatments were for, didn’t
ask why A.T. needed to see a specialist, didn’t ask and apparently didn’t understand what
medications he was on, and declined to ever administer the medications herself. While it
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is plausible her mental health issues could have caused her to avoid asking questions or
diminished her ability to express concern, it is also plausible that she just didn’t
appreciate the gravity of her son’s medical issues or was disinterested in learning how to
treat them. Indeed, our evidence of this isn’t just limited to mother’s failure to ask the
right questions or express sufficient concern. Both the social worker and foster parents
were generally apprehensive about how little mother looked out for A.T.’s physical safety
in a variety of ways, including by letting him run into the street and drink from a public
drinking fountain during a global pandemic despite the foster parents offering bottled
water. Because it is reasonable to infer mother was simply unable or uninterested in
learning about her son’s medical issues, substantial evidence supports the juvenile court’s
conclusion that the services provided were reasonable.
Mother also argues the department should have offered her in-home care.
However, these services are only available for family maintenance, not reunification.
Indeed, mother participated in family maintenance services before removal and had some
amount of in-home help in the form of a parent partner and SafeCare. Both of those
programs had someone visit her home once a week, for a total of two days a week of in-
home help. This did not help; mother was receiving these services during both domestic
violence referrals which the department responded to and which led to removal. To the
extent mother argues she needed more in-home care—such as in-home nursing care or
24/7 in-home help—it’s not clear that such services were necessary or reasonable in
this case. The record indicates that A.T.’s medication regime, while somewhat
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complicated, was manageable, and his condition did not require around-the-clock
medical care. Therefore the juvenile court could have concluded that the services
actually provided—namely, instruction on how to administer and manage A.T.’s
medication—were reasonable.
B. Substantial Probability of Return
Lastly, Mother argues the juvenile court erred in terminating her services and
setting a permanency planning hearing because there was a substantial probability A.T.
would be returned if she were provided six more months of services.
Where, as here, the child is under the age of three at the time of removal, the
statutory scheme of providing reunification services establishes “three distinct periods
and three corresponding distinct escalating standards.” (Tonya M. v. Superior Court
(2007) 42 Cal.4th 836, 845.) In the first period—a phase from the jurisdictional hearing
to the six-month review hearing where services are “presumed”—“services are afforded
essentially as a matter of right.” (Ibid.) In the second period—a phase from the six-
month review hearing to the 12-month review hearing where services are “possible”—“a
heightened showing is required to continue services.” (Ibid.; see § 366.21, subd. (e)(3)
[requiring the court to continue the case to the 12-month hearing where “there is a
substantial probability that the child . . . may be returned to his or her parent . . . within
six months,” italics added].) And in the third period—a phase from the 12-month review
hearing to the 18-month review hearing where services are “disfavored.” (Tonya M., at
p. 845.) Services can be continued only if there is a “substantial probability that the child
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will be returned” within the extended time period (§ 366.21, subd. (g)(1), italics added),
and “the juvenile court finds specifically that the parent has ‘consistently and regularly
contacted and visited with the child,’ made ‘significant progress’ on the problems that led
to removal, and ‘demonstrated the capacity and ability both to complete the objectives of
his or her treatment plan and to provide for the child’s safety, protection, physical and
emotional well-being, and special needs.’ ” (Tonya M., at p. 845, quoting § 366.21,
subd. (g)(1)(A)-(C); see M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 178 [“the
court can only continue the case to the 18-month review if it finds a substantial
probability the child will be returned to the parent; moreover, the court must find all three
of the listed factors to justify a finding of a substantial probability the child will be
returned to his or her parent”].)
We review the juvenile court’s finding there is no substantial probability of return
and decision to terminate reunification services for substantial evidence. (Kevin R. v.
Superior Court (2010) 191 Cal.App.4th 676, 688.)
Mother argues the court abused its discretion by refusing to continue the
reunification period to the 18-month review period. She argues the decision was not
supported by substantial evidence because she completed her case plan, made significant
progress in addressing the issues which led to removal, and had the capacity and ability to
provide for A.T.’s wellbeing.
As we’ve seen, the focus of the court’s decision whether to award six more
months of services is whether it is “substantially probable” the child will be able to safely
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return home after the services. The court concluded the answer to that question was no.
The court reasoned that although mother had “physically complet[ed] services that were
required of” her, “[i]t does not appear as though [she is] invested in the care of [her]
medically-fragile child.” The court found she was “certainly not taking any initiative” to
learn how to care for him, and, because of that, the court was concerned A.T. “would
really have to fend for himself” if he were returned home.
On this record, we cannot say the juvenile court’s decision was unreasonable. A.T.
is not a typical two-year-old baby. He has elevated medical needs which require
heightened attention and adherence to a strict medication regime. After 12 months of
services, mother had not demonstrated that she could manage his special needs on her
own. The primary evidence of this was her passivity. She did not ask questions regarding
A.T.’s medication regimen or at doctor visits despite the social worker making it clear
she was free to do so. She also did not demonstrate that she had a working knowledge of
his medical condition and the necessary treatments for it, an obvious prerequisite to
A.T.’s safe return home.
Mother argues the court’s and department’s concerns about her are misplaced. She
suggests she was not disinterested in learning about A.T.’s condition but rather that it
only seemed like she was. She implies it’s not disinterest that caused her not to outwardly
display concern, ask questions, or show initiative, but rather her mental health issues,
which include social avoidance. This is supported by her contemporary complaints,
recorded in the department’s reports, that she was intimidated by the social worker and
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foster family. It is entirely believable that mother is telling the truth, and that her mental
health issues with social avoidance could have caused her to react to an inherently
intimidating system by being intimidated into passivity. Her argument seems to be that if
she were given six more months of services, she could work on this issue and
successfully demonstrate her interest in learning about A.T.’s medical needs to the court.
Unfortunately for mother, the record supports a conclusion that six more months
of services would not have such an effect. Over the course of these dependency
proceedings, she has participated in 14 months of services and even showed some
progress, but not in this area. For example, mother didn’t test positive for drugs after
May 6, 2020, she remained medication compliant, became more engaged with A.T.
during visits, completed her case plan, was cooperative with the department, didn’t have
any additional law enforcement contacts, and appears not to have had any major mental
health episodes after the incident which led to removal. However, where mother did not
show progress was in demonstrating a concern for A.T.’s physical safety. She ignored
A.T.’s bleeding diaper rash, allowed him to run into the street unimpeded, allowed him to
drink from a public drinking fountain despite the risk of COVID-19, and let him play on
a closed play structure. This, coupled with the psychological evaluator’s opinion that she
would be “unable to adequately benefit from services” lends reasonable support to the
juvenile court’s determination that six more months of services was not appropriate under
section 366.21, subdivision (g).
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We do not doubt that mother’s mental health issues make it more difficult for her
to manage her son’s medical condition, interact with other caregivers, or express or
experience the appropriate amount of concern for her son’s medical issues. Nor do we
doubt that she loves her son and wants to be reunified with him. Unfortunately, however,
those facts are not dispositive to the specific question before the juvenile court—that is,
whether it was substantially probable that after six more months of reunification services
mother would be able to safely manage A.T.’s medical needs at home. This is a question
that focuses on the risk of harm to the child, not on the parent’s needs or affection for the
child. On this record, we cannot say the court acted unreasonably in concluding six
additional months of services would not result in a substantial probability that mother
could safely manage A.T.’s medical needs at home.
III
DISPOSITION
We deny the writ petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J. We concur:
McKINSTER Acting P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court's finding of reasonable reunification services and the lack of a substantial probability of return were supported by substantial evidence, as the mother failed to demonstrate sufficient engagement or initiative in her child's care despite receiving appropriate services.
Issues
Whether the department provided reasonable reunification services tailored to the mother's needs.
Whether there was a substantial probability that the child could be returned to the mother's custody if services were continued for six more months.
Disposition. Petition denied.
Quotations verified verbatim against the opinion
“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.”
“We find there is substantial evidence on both points and deny the petition.”
“The court found the parents’ progress toward alleviating or mitigating the issues necessitating placement was “minimal.””