Michelle B. v. Superior Court CA4/1 (2013) · DecisionDepot
Michelle B. v. Superior Court CA4/1
California Court of Appeal Apr 19, 2013 No. D063054Unpublished
Filed 4/19/13 Michelle B. v. Superior Court CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MICHELLE B. et al., D063054
Petitioners, (San Diego County v. Super. Ct. No. 517708A-B)
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Real Party in Interest.
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section
366.261 hearing. Ronald F. Frazier, Judge. Petitions denied; requests for stay denied.
Michelle B. and Tracy J. seek review of a juvenile court order setting a hearing under
section 366.26. They challenge the juvenile court's findings that it would be detrimental to
return their children to their care, that there was no substantial probability that their children
1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
would be returned home within the next six months, and that reasonable services were
provided to them. We deny the petitions.
FACTUAL AND PROCEDURAL BACKGROUND
Michelle and Tracy are the parents of T.J., who is now three years old, and Nancy J.,
who is almost two years old (together, the children). Michelle and Tracy are developmentally
disabled. Michelle tested in the borderline range of intellectual functioning. She has physical
conditions that limit her agility and mobility. Tracy was diagnosed with cognitive disorder and
mild mental retardation. Shortly after their respective births, T.J. and Nancy were adjudicated
dependents of the juvenile court and removed from the custody of their parents. T.J. and
Nancy are placed in the same foster home.
T.J. suffers from severe asthma. In all other respects the children are healthy and
reaching normal developmental milestones.
In July 2011, the juvenile court held both a 12-month review hearing in T.J.'s case and
the jurisdictional/dispositional hearing in Nancy's case.2 In T.J.'s case, the juvenile court
terminated family reunification services and set a section 366.26 hearing. In Nancy's case, the
juvenile court ordered a plan of family reunification services and specifically ordered the
Agency to implement short, unsupervised visits between Nancy and her parents; to notify the
parents of, and encourage them to attend, her medical appointments; not to allow the foster
mother to supervise visits; to engage the services of the public health nurse; to refer the parents
2 On our own motion, we take judicial notice of this court's opinions in Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415 (Tracy J.) and In re Nancy J. (Feb. 16, 2012, D060221) [nonpub. opn.] (Nancy J.). (Evid. Code, § 452, subds. (a) & (d).) The early history of the parents' reunification efforts are described in those opinions. 2
to Step into Success, a parenting program for parents with disabilities; and to follow-up with
the San Diego Regional Center (SDRC) to obtain services for Michelle. (Tracy J., at p. 1427.)
Michelle and Tracy petitioned for review of the order setting a section 366.26 hearing in
T.J.'s case, and appealed the jurisdictional and dispositional findings and orders in Nancy's
case. This court affirmed the juvenile court's findings and orders in Nancy's case. (Nancy J.,
supra, D060221.) In T.J.'s case, this court determined that reasonable services had not been
provided to the parents, and remanded the case to the juvenile court with directions to vacate
the order setting a section 366.26 hearing, to continue T.J.'s 18-month review hearing for six
months, and to order the Agency to: (1) expand the parent's visitation with T.J., including
unsupervised visitation as appropriate; (2) provide services to the parents that are at minimum
equivalent to the services that the juvenile court ordered in Nancy's case; (3) request a
parenting assessment of Tracy by SDRC; and (4) refer Michelle to a medical professional to
determine whether she has Prader-Willi syndrome or other conditions. (Tracy J., supra, 202
Cal.App.4th at pp. 1428-1429.)
In December 2011, the juvenile court implemented a new case plan in T.J.'s case. The
social worker arranged for Michelle and Tracy to attend T.J.'s appointments at Children's
Hospital Asthma Clinic for training to recognize the signs, symptoms and triggers of asthma,
administer appropriate medication and provide inhaler and nebulizer treatment. The parents no
longer qualified for public health nurse assistance, which is designed for prenatal and newborn
care. They were participating in ACT, a program for parents with disabilities that is equivalent
to the Step into Success program.
3
The social worker asked SDRC support staff to encourage Michelle to make a doctor's
appointment and to help her reapply for SDRC services once she obtained additional
information about her condition. The Agency said that if additional services were
recommended, it would help Michelle obtain physical therapy, occupational therapy or other
services.
Michelle and Tracy participated in follow-up psychological evaluations. Joyce A.
Dingwall, Ph.D., who conducted psychological evaluations of Michelle in April 2010 and
October 2011, said that Michelle appeared to have learned many skills during the past year and
that she had benefitted from services. Dr. Dingwall reserved judgment as to whether Michelle
would benefit from services to the extent that she would be able to safely and independently
parent her children.
Alan R. Flitton, Psy.D., conducted psychological evaluations of Tracy in April and July
2010, and August 2011. Dr. Flitton stated, "It is clear that Mr. J[.] continues to suffer from
various cognitive deficits that will interfere with his ability to parent effectively independently.
These deficits include, but are not limited to, memory, reasoning, understanding, judgment,
insight, planning and decision[]making, and the ability to give adequate foresight into potential
consequences." Dr. Flitton noted that Randene Ostlund, Tracy's independent skills (ILS)
worker, believed that the parents could adequately care for their children with supportive
services because they did not have any mental health or personality disorders, or substance
abuse or domestic violence issues.
In view of the differing opinions about Michelle's and Tracy's ability to safely and
independently care for the children, Dr. Dingwall recommended that a neutral psychological
4
evaluator conduct a limited evaluation of the parents with their children to address the
appropriateness and safety of parental behaviors and emotions, the quality of parent/child
interactions and any other parameter that might help in assessing whether reunification posed
quantifiable or qualitative risks to the children's safety and well-being.
The juvenile court authorized a neutral evaluator to observe the parents and children in
the parents' home. Later, Dr. Dingwall reported that she had not been able to locate a
psychologist who was willing to complete a limited evaluation of the parent/child interactions.
She recommended that the evaluation be conducted by a qualified professional who had not
previously been involved in the case. The Agency said that it would continue to seek a
qualified clinician to conduct a neutral professional assessment of the parent/child
relationships.
In February, the children's pediatrician, Jessica Coullahan, M.D., expressed concerns
about the parents' ability to safely care for the children. Dr. Coullahan said that the parents
were affectionate and loving with the children but lacked common sense when it came to the
children's care. On one occasion, the parents left Nancy unattended on the examining room
table, despite repeated reminders that it was unsafe to leave her alone. The parents had
difficulty picking up Nancy's cues when she started to cry or fuss. Dr. Coullahan said that the
parents did not appear to have the ability to identify medical conditions that would pose a risk
to their children's health and safety, such as irregular breathing or fever. She recommended
that the parents not have lengthy unsupervised visits with the children.
At a visit in February, T.J. pulled away from Michelle while Tracy was putting Nancy
into her car seat, and ran down the sidewalk toward the street. Michelle pursued him, but he
5
continued to run. Michelle initially followed T.J., but stopped to seek assistance from Tracy,
who was trying to buckle Nancy into her car seat. When Nancy began to cry, Michelle and
Tracy turned to the baby and ignored T.J., who was playing in a puddle approximately 20 to 25
yards away. According to the social worker, the parents left T.J. unattended for four minutes.
At Nancy's birthday party, T.J. ran toward the street. His parents did not realize that he
was gone. The foster mother ran to get T.J. She returned with T.J. without the parents having
noticed his absence. In another incident, Tracy left Nancy unattended on a bed. Nancy
crawled off the bed and fell on her head. She was not hurt. Michelle was nearby but was
unable to move quickly enough to prevent Nancy from falling.
In June, at the foster parent's home, T.J. had a severe asthma attack, which required
emergency treatment and hospitalization. The day after T.J. was admitted to the hospital,
Michelle and Tracy attended a doctor's appointment at which T.J.'s asthma plan was discussed.
The parents did not appear to pay attention to the doctor and were not able to answer his
questions.
In August, Michelle and Tracy received an eviction notice due to noncompliance with
their landlord's request to treat a pest problem. In mid-August, they notified the Agency that
they intended to rent an apartment with the children's maternal grandmother, who would help
them with the children's care. The juvenile court continued the review hearings to allow the
Agency to assess whether the children could safely live with their parents and grandmother.
In early September, Michelle and Tracy moved to a downtown San Diego hotel that was
frequented by transients and the mentally ill. It was not a safe environment for them. They
6
lost contact with the social worker, Ostlund, the foster parent and their children, for
approximately three weeks.
At some point in time between late September and early October, the parents moved
into an unfurnished three-bedroom apartment with the maternal grandmother. On October 10,
the social worker made an unannounced visit to assess the parents' circumstances. During the
visit, Tracy placed Nancy in a lawn chair and turned his back. She started to reach for a toy on
the floor and nearly tumbled out of the chair. Michelle tried to get Tracy's attention, but she
did not move to help Nancy. Later, the smoke detectors in the apartment complex went off.
Tracy walked to the front door of the second-story apartment and looked outside. He left the
front door open. The social worker and the children's court-appointed special advocate
(CASA) walked outside to make sure that the children did not go out the front door. Although
the maternal grandmother commented on the safety hazards, she did not intervene to protect
the children or correct the parents.
T.J.'s 18-month review hearing and Nancy's 12-month review hearing were heard
concurrently on November 2, 5, 16, 19 and 28. The juvenile court admitted in evidence the
Agency's reports, the CASA's report and the parents' exhibits, and heard testimony from the
foster mother, social worker Anthony Scheri, the CASA, Tracy, Michelle and ILS worker
Ostlund. We briefly summarize the evidence that is relevant to the issues raised in this
proceeding.
The evidence showed that Michelle and Tracy fully participated in their case plans.
They successfully completed courses in parenting education, child development, nutrition,
CPR and first aid. During the parenting classes, they were very attentive to their children's
7
needs. The parents visited the children regularly and attended their medical appointments and
hospitalizations. They were loving, calm, gentle and affectionate with the children.
Social worker Scheri recommended that the juvenile court terminate reunification
services and set a section 366.26 hearing. He said that even after having worked on their
parenting skills for three years, the parents did not show the ability to apply what they had
learned in real life situations. Scheri did not believe that the grandmother understood that her
role was to ensure the children's safety. Michelle and Tracy engaged in fundamentally unsafe
parenting, such as putting a one-year-old child in a chair and walking away, and leaving the
outside door of a second-story apartment open while the children were present. In addition,
T.J. had severe asthma. His life depended on rapid intervention in a medical emergency.
Scheri said that due to their developmental disabilities, the parents were unable to adapt to
changing circumstances, make safety decisions and protect the children.
Ostlund testified that the parents required assistance to be able to care for their children.
If the children were returned home, SDRC could provide up to 60 hours of in-home services
per month.
The CASA said that Michelle and Tracy did well in highly structured settings with
guidance and redirection, but they did not appear to be capable of managing the children on
their own. The CASA believed that the parents clearly cared about their children and said that
they were working hard to be able to reunify with the children.
Michelle testified that she was capable of taking care of her children with help. Tracy
said that he was able to parent the children. He said that Michelle and Ostlund had helped him
to become a better parent.
8
The juvenile court stated that Michelle's and Tracy's efforts to reunify their family were
extraordinary and that they had made substantial progress with their case plans in all areas but
one. Citing the number of incidents that had jeopardized the children's safety, the juvenile
court found that the parents' limited ability and capacity to assess, and respond to, an
emergency created a substantial risk of detriment to the children's safety, protection and well-
being. The juvenile court found that there was not a substantial probability that the children
could be returned to the parents' care within the next six months, and that reasonable services
had been provided to the parents. The court proceeded to set a section 366.26 hearing.
Michelle and Tracy each petitioned for review of the court's order under California
Rules of Court, rule 8.452. In addition, they join in each other's petition. The parents request
that this court reverse the order setting a section 366.26 hearing. This court issued an order to
show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
A
There Is Substantial Evidence to Support the Juvenile Court's Finding That Reasonable Services Were Offered or Provided to Reunify the Family
Michelle and Tracy argue that reasonable visitation services were not provided to them.
In addition, they contend that they were not offered or provided reasonable services because
the Agency did not adequately train them to administer T.J.'s asthma treatment, request a
parenting assessment for Tracy or help Michelle obtain a court-ordered psychological
assessment and medical evaluation. Finally, the parents assert that they were denied
reasonable services because the Agency conducted only a cursory evaluation of the maternal
grandmother's ability to assist them with their children. 9
Family reunification services play a critical role in dependency proceedings. (§ 361.5;
In re Alanna A. (2005) 135 Cal.App.4th 555, 563; In re Joshua M. (1998) 66 Cal.App.4th 458,
467; see 42 U.S.C. § 629a(a)(7).) Services "may include provision of a full array of social and
health services to help the child and family and to prevent reabuse of children." (§ 300.2.)
Reunification services should be tailored to the particular needs of the family. (David B. v.
Superior Court (2004) 123 Cal.App.4th 768, 793-794 (David B.), citing In re Alvin R. (2003)
108 Cal.App.4th 962, 972.)
At each review hearing, the court is required to determine the "extent of the agency's
compliance with the case plan" in making reasonable efforts to return the child to a safe home.
(§ 366, subd. (a)(1)(B).) "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.) To support a finding that
reasonable services were offered or provided to the parent, "the record should show that the
supervising agency identified the problems leading to the loss of custody, offered services
designed to remedy those problems, maintained reasonable contact with the parents during the
course of the service plan, and made reasonable efforts to assist the parents in areas where
compliance proved difficult . . . ." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The
"adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged
according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33
Cal.App.4th 1158, 1164 (Robin V.).) If reasonable services are not provided or offered to the
parent, the court is required to continue the case for the period of time permitted by statute.
(See § 366.21, subds. (e) & (g)(1).)
10
We review a reasonable services finding to determine if it is supported by substantial
evidence. (In re Christina L. (1992) 3 Cal.App.4th 404, 413-414.) The burden is on the
petitioner to show that the evidence is insufficient to support the juvenile court's findings.
(In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
1. Visitation services
In December 2011, the juvenile court implemented a new visitation plan. The plan
provided for three hours of in-home visitation once a week, including a one-hour unsupervised
visit. The parents would also have additional visits with the children at the children's medical
appointments, "Mommy & Me" classes and language enhancement classes.
By March 2012, visitation was occurring two or three times a week. On Tuesdays, the
parents and the children participated in a two-hour "Mommy & Me" class, which was followed
by an unsupervised visit for one to one and one-half hours (Tuesday visits). On Wednesdays,
when Ostlund helped Tracy with independent living and parenting skills, the children stayed
with the parents for approximately six hours (Wednesday visits). One hour of the Wednesday
visit was reserved for unsupervised visitation. On alternate Thursdays, the parents had an
unsupervised visit with the children for one and one-half to two hours at a park in North San
Diego County (Thursday visits).
Ostlund provided transportation to the parents for the Tuesday visits and for most of the
children's medical appointments, and shared transportation responsibilities for the children
with the foster mother on Wednesdays. The foster mother transported the children on
Tuesdays, and took them to all of their medical appointments. The Agency expected the
parents to provide their own transportation to the Thursday visits in North San Diego County
11
from their home in East San Diego County. The parents relied on public transportation. Their
travel time to the Thursday visits was approximately four to five hours each way. From
January through May, the parents regularly attended the Thursday visits. They attended
another visit in August and then stopped. Michelle explained that the 10-hour round trip was
too difficult for them.
Ostlund described the 10-hour round trip as "horrific" for the disabled parents and
testified that she had asked Scheri to rearrange the visitation schedule. After the "Mommy &
Me" classes ended, Ostlund observed that the parents were missing out on their visitation and
offered to supervise one or two more visits each week. Ostlund testified that Scheri did not
respond to Ostlund's request to rearrange the visits or to her offer to supervise the visits.
Scheri acknowledged that once the "Mommy and Me" classes ended, Michelle and
Tracy no longer visited the children on Tuesdays, and further acknowledged that Ostlund had
asked him to expand visitation services. He testified that he had discussed the issue with his
supervisor, who had said that the Agency was not inclined to expand visitation because the
parents were not taking advantage of the Thursday visits. Scheri acknowledged that the
parents had to travel 10 hours to attend the Thursday visits. He said, "I was open to look into
[changing the visitation schedule], but like I said, it was the visitation schedule that we had
already previously arranged." Scheri said that he had explained the transportation problems to
his supervisor, but the supervisor said that it was "the parents' responsibility to get to the
visits."
The record shows that visitation services increased from December 2011 to March
2012, but decreased during the summer and after August 2012, when the "Mommy & Me"
12
classes ended and Michelle and Tracy decided not to attend the Thursday visits because of the
difficult commute. At the time of the November hearing, the parents had visitation with the
children every Wednesday for six hours, including one hour of unsupervised visitation. The
record shows that the Agency was unwilling to reschedule the Tuesday visits or otherwise
expand visitation until the parents regularly attended the Thursday visits as "previously
arranged."
To promote family reunification, visitation must be as frequent as possible, consistent
with the well-being of the child. (§ 362.1, subd. (a)(1)(A); In re Alvin R., supra, 108
Cal.App.4th at p. 972.) "Visitation between a dependent child and his or her parents is an
essential component of a reunification plan, even if actual physical custody is not the outcome
of the proceedings." (In re Mark L. (2001) 94 Cal.App.4th 573, 580; In re J.N. (2006) 138
Cal.App.4th 450, 458.)
We are disappointed that the Agency would think that it is reasonable to require any
parent, let alone a developmentally disabled parent, to regularly travel 10 hours to visit his or
her child during the reunification period. (See §§ 16501.2, subd. (c), 16000; Fam. Code,
§ 7950, subd. (a).) We reject the Agency's argument that the visitation arrangement was
reasonable per se because the children and parents resided in the same county. (See In re
Anthony T. (2012) 208 Cal.App.4th 1019, 1030-1031 [describing factors that determine
whether the child's placement will facilitate reasonable visitation]; David B., supra, 123
Cal.App.4th at p. 793 [services must be tailored to meet the family's needs].) The Agency's
refusal to reinstate Tuesday visits, to expand visitation or to modify the Thursday visits until
the parents resumed the Thursday visits without modification or assistance, placed the parents
13
in a "Catch-22" situation. (See Heller, Catch-22 (1961).) It is particularly egregious in this
case because Michelle's and Tracy's efforts to comply with their case plans were exemplary.
The Agency's recalcitrance contravenes the long-standing rule that the Agency is
required to make reasonable efforts to assist the parents in areas where compliance proves
difficult, including providing transportation services (or modifying the location of the visits).
(In re Riva M., supra, 235 Cal.App.3d at p. 414; Robin V., supra, 33 Cal.App.4th at p. 1165;
Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) Even if the Agency
believed that Michelle and Tracy were unlikely to regain physical custody of the children, it
had a continuing obligation to provide visitation services as frequently as possible, consistent
with the well-being of the children. (§ 362.1, subd. (a)(1)(A); Tracy J., supra, 202
Cal.App.4th at p. 1428 [ordering expanded visitation on remand]; In re Mark L., supra, 94
Cal.App.4th at p. 580; In re J.N., supra, 138 Cal.App.4th at p. 458; see also § 366.26, subd.
(c)(1)(B)(i) [regular contact and visitation plays a role in establishing a beneficial parent/child
relationship].)
As much as we take issue with the Agency's poorly-reasoned decision with respect to
visitation, it is our obligation to review the evidence most favorably to the prevailing party and
to indulge in all legitimate and reasonable inferences to uphold the court's ruling. (In re
Misako R., supra, 2 Cal.App.4th at p. 545.) The record shows that the juvenile court and the
Agency complied with this court's directive to expand visitation services, including
unsupervised visitation as appropriate, and that the parents received adequate visitation
services throughout most of the review period. (Tracy J., supra, 202 Cal.App.4th at p. 1428.)
14
In December 2011, the Agency implemented a three-hour weekly visit in the parents'
home, including a one-hour unsupervised visit. Despite the onerous transportation
requirements, the record shows that the parents had unsupervised visits with the children on
alternate Thursdays from January through May, without complaint, and attended another visit
in mid-August. By March, the Agency had expanded the Wednesday in-home visits and added
the Tuesday visits. In addition, Michelle and Tracy were informed of the children's medical
appointments and hospitalizations, and had the opportunity to parent their children at those
times. The parents did not visit their children for three weeks in September.
While the Agency's refusals to modify the parents' visitation schedule to eliminate the
10-hour commute on Thursdays and reinstate the Tuesday visits were unjustified, the error
occurred approximately four months after the 18-month review date in T.J.'s case and three
months after the 12-month review date in Nancy's case. (See §§ 361.5, subd. (a)(1), 366.21,
subd. (f) & 366.22.) The record shows that during the review period, the parents received
more than eight months of reasonable visitation services.3 Thus, the record contains
substantial evidence to support the finding that reasonable visitation services were offered or
provided to the parents.
3 The parents also argue that visitation services were unreasonable because they did not attend T.J.'s language enhancement classes, which were part of the Agency's December 2011 visitation plan. The record does not support the parents' assertion. The record shows that T.J.'s language enhancement classes began on November 10, 2011, and concluded six weeks later, on or about December 15, four days before the juvenile court authorized the new visitation plan. The record does not indicate that T.J.'s language enhancement classes were ongoing or that the parents were denied the opportunity to attend. 15
2. Asthma Treatment Training
Michelle and Tracy contend that they did not receive reasonable services because the
Agency did not include hands-on training in administering T.J.'s asthma medication and other
treatment. They contend that the Agency trained them only once to administer T.J.'s daily
asthma treatments, and that the social worker should have set up a morning visit to provide a
special training session.
We are not persuaded by the parents' argument that the training that they received in
administering T.J.'s asthma plan was deficient. Michelle and Tracy acknowledge that they had
a hands-on training in administering T.J.'s asthma treatment. The record shows that the parents
received regular training and instruction on T.J.'s asthma plan. T.J.'s physicians instructed the
parents in how to recognize asthma symptoms and reviewed the asthma plan with them. The
parents received copies of T.J.'s asthma plan during his pediatric and specialist appointments,
emergency room visits and hospitalizations. Ostlund testified that she reviewed T.J.'s asthma
plan with the parents two or three times a month. During T.J.'s hospitalization in June, the
physician reviewed the asthma plan with the parents. On that occasion, the parents did not
appear to pay attention to the physician, and were unable to answer his questions. The
physician then had a respiratory therapist review the asthma plan with the parents. She had to
pause repeatedly to get their attention. Although the therapist explained all the steps of T.J.'s
asthma plan to the parents as clearly and simply as she could, she remained concerned about
their ability to understand the plan and to follow through with the treatment. In September,
when T.J. was again hospitalized after an asthma attack, the physicians informed the parents
about his necessary treatment and aftercare appointments.
16
The Agency made reasonable efforts to educate and train the parents with respect to
T.J.'s asthma treatment plan. The Agency could reasonably conclude that it was not in T.J.'s
best interests for the parents and foster mother to share responsibility for administering that
treatment, or to disrupt T.J.'s established daily schedule to allow the parents to provide a
portion of his treatment.
3. Tracy's Parenting Assessment
Michelle and Tracy contend that they were not provided reasonable services because the
Agency did not comply with this court's directive to request a parenting assessment of Tracy
by SDRC. They argue that such an assessment would have allowed the Agency to provide
individualized and specific services to Tracy to facilitate reunification.
The record shows that the Agency's new case plan did not include a formal parenting
assessment of Tracy by SDRC. Instead, the Agency consulted with SDRC to provide more
specific services to Tracy and Michelle. The record does not indicate that any party objected
to Tracy's new case plan or requested that the plan include a formal parenting assessment.4
The record also shows that Ostlund had provided independent living and parenting
services to developmentally disabled persons for more than 27 years. She worked closely with
Tracy under the auspices of ACT, a program that SDRC had selected for Tracy. Ostlund
provided individualized parenting instruction to Tracy, adjusting the method and content as
needed. In that capacity, Ostlund continually assessed Tracy's needs for parenting instruction.
In addition to Ostlund's ability to adapt her instruction to meet Tracy's needs, the record
shows that the Agency arranged for Tracy to undergo three psychological evaluations. The
4 The record transcript of the hearing on December 19, 2011, at which the juvenile court found that the new case plan was appropriate, is not included in the record. 17
third evaluation was filed in the juvenile court record after this court issued its decision in
Tracy J. This evaluation contains an assessment of Tracy's ability to safely parent his children.
Dr. Flitton, who conducted the evaluation, concluded that Tracy continued to suffer from
various cognitive deficits that interfered with his ability to effectively and independently parent
his children because Tracy's memory, reasoning, understanding, judgment, insight, planning
and decision making, and his ability to recognize potential consequences, were impaired.
In view of the juvenile court's authorization of an informal parenting assessment in
Tracy's new case plan, the individualized parenting training that was provided to Tracy by an
experienced provider and Tracy's three psychological evaluations assessing his ability to
benefit from services and safely parent his children, we conclude that Tracy received
reasonable services to assess his parenting skills and provide individualized and specific
services to him to facilitate reunification.
4. Michelle's Psychological Evaluation and Medical Referral
Michelle and Tracy argue that services were inadequate because the Agency did not
obtain a limited evaluation of Michelle by a neutral evaluator, as recommended by Dr.
Dingwall and ordered by the juvenile court on January 24, 2012. In support of their position,
Michelle and Tracy rely on In re K.C. (2012) 212 Cal.App.4th 323, 333-334 (K.C.), in which
the reviewing court reversed a reasonable services finding because the social services agency
did not provide a recommended psychotropic medication evaluation to the parent.
In contrast to the limited efforts made by the social services agency in K.C. to assist the
parent, here the Agency contacted medical professionals to determine whether Michelle had
Prader-Willi syndrome, referred her for a medical consultation, arranged for support services
18
and encouraged her to contact her doctor to schedule an appointment. The record shows that
unlike the parent in K.C., Michelle was capable of obtaining and following through with her
own medical treatment. Ostlund testified that Michelle was capable of setting up her own
medical appointments and that Michelle preferred to remain as independent as possible. Thus,
the record shows that the Agency met its obligation to "refer Michelle to a medical
professional to determine whether she has Prader-Willi syndrome or other conditions."5
(Tracy J., supra, 202 Cal.App.4th at p. 1429.)
The parents' contend that the Agency did not secure a neutral professional assessment of
Michelle's relationship with the children, as ordered by the juvenile court. The record supports
this contention. The Agency attempts to justify its failure to find a qualified neutral
professional by asserting that the order for the neutral professional assessment was not a part of
this court's disposition in Tracy J. The Agency's argument is disingenuous. The record clearly
shows that the juvenile court directed Michelle to undergo a limited psychological evaluation
by a neutral evaluator, and ordered the Agency to "contact Dr. Dingwall to determine what
specifically is being requested." The juvenile court specifically authorized the neutral
evaluator to observe the parents in their home with the children.
The record shows that the Agency complied with the juvenile court's order to contact
Dr. Dingwall. Dr. Dingwall said that she had been unable to locate a psychologist to complete
a limited evaluation of the parent/child interactions, and recommended instead that the
evaluation be conducted by another qualified professional, such as an in-home parenting coach
5 While investigating the procedures necessary to diagnose Prader-Willi syndrome, the Agency obtained information showing that Michelle had been tested when she was a teenager and those tests showed that she did not have Prader-Willi syndrome. 19
with no previous involvement in the case. The Agency then contacted the public health nurse,
who said that the parents did not qualify for the service because the children were not in their
care. The Agency also contacted the Chadwick Center, which did not have any clinicians who
could perform an assessment of Michelle's interactions with the children.
Unlike the social services agency in K.C., whose only attempt to secure a recommended
pharmacological evaluation for the mentally ill parent was to send the parent to a public mental
health clinic, and made no further efforts to assist the parent when he did not meet the clinic's
criteria for treatment, the record shows that the Agency made reasonable efforts to comply
with the juvenile court's order. (K.C., supra, 212 Cal.App.4th at p. 329.) While Michelle's
assessment services were not perfect, they included two psychological evaluations, reports
from neutral professionals who observed her with the children during parenting and "Mommy
& Me" classes, and favorable observations from Ostlund, who observed Michelle with the
children every week. The record shows that Michelle received the necessary referrals for a
medical evaluation and that she also received parenting assessments from different providers.
5. The Agency's Assessment of the Maternal Grandmother's Role
Tracy and Michelle contend that they were denied reasonable reunification services
because the Agency did not conduct an adequate assessment of whether the maternal
grandmother's presence in their home would allow them to safely care for the children. They
argue that the Agency conducted a cursory assessment that unreasonably prejudiced their
ability to reunify with their children.
In August 2012, after the Agency learned that the maternal grandmother was willing to
share a home with the parents, it asked the juvenile court to continue the review hearings to
20
allow the social worker to complete an investigation of the maternal grandmother's capacity to
follow through and protect the children, the parents' new home and the interactions among the
family members.
The Agency conducted initial background checks of the maternal grandmother and met
separately with her and the parents. In October, the social worker made an unannounced visit
to the parents' new home. The maternal grandmother told the social worker that she planned to
observe the parents with their children to gain insight to see where she would best fit in. She
was concerned about encroaching on Tracy's autonomy and authority. The social worker told
the grandmother that her role was to assist the parents in parenting. During the visit, the
grandmother did not assist or correct the parents when safety issues arose. The grandmother
had not come forward earlier in the case to help the parents with the children, and Scheri
testified that there was no guarantee that the grandmother would continue to live with the
parents if the children were returned home.
The Agency was not evaluating the maternal grandmother as the children's guardian or
adoptive parent. Rather, it was conducting an assessment of the parents' home to see whether
their circumstances were sufficiently changed to allow the children to safely return home, with
support services. The Agency concedes that the better practice would have been to assess the
grandmother's interactions with the family more than once. However, the record shows that
the Agency asked the juvenile court for additional time to conduct an assessment, performed
initial background checks, interviewed the grandmother and the parents, waited until the
parents and grandmother had time to settle into their new home and then observed the
grandmother's interactions with the parents and children. Even after the social worker advised
21
the grandmother that her role was to protect the children, the grandmother continued to act as
an observer and did not intervene in any of the safety issues that arose during the visit. Thus,
there is substantial evidence to support the finding that the Agency's evaluation of the parents'
new home and grandmother's ability to ensure the children's safety was reasonable.
The record shows that during the last review period, Michelle and Tracy were provided
with reasonable reunification services. Those services included extensive in-home parenting
support, parenting education classes, parenting assessments, visitation, the opportunity to
parent the children during their medical appointments and hospitalizations, and medical
referrals. There is substantial evidence to support the juvenile court's finding that reasonable
reunification services were offered or provided to the parents.
B
The Juvenile Court Did Not Abuse Its Discretion When It Denied the Parents' Requests to Extend Reunification Services
Michelle and Tracy contend that the juvenile court erred when it denied their requests to
extend services in the children's cases for another six months. They maintain that they clearly
proved that they could provide a safe home for the children.6 (§ 366.21, subd. (g)(1).)
When a child is removed from parental custody, unless specified exceptions apply, the
juvenile court must order family child welfare services for the child and the parent to facilitate
6 The parents recognize that T.J. does not fall within the statutory parameters of section 366.21, subdivision (g)(1), which applies when the court is asked to extend services to the 18- month review hearing. They contend that the juvenile court erred when it did not grant a continuance in this case. (§ 352.) Because the rationale for denying an extension of services in Nancy's case supports the denial of the requests for a continuance in T.J.'s case, we need not distinguish between the cases in our analysis. We also note that continuances in juvenile dependency proceedings are disfavored, particularly when they infringe on statutory timeframes. (In re David H. (2008) 165 Cal.App.4th 1626, 1635.) 22
family reunification. (§ 361.5, subds. (a) & (b).) For a child under three years of age on the
date of the initial removal from parental custody, reunification services are presumptively
limited to six months, and may be provided "no longer than 12 months from the date the child
entered foster care . . . ." (Id., subd. (a)(1)(B).)
At the 12-month review hearing, if the child is not returned to parental custody, the
juvenile court has the discretion to continue the case to the 18-month review date, set a section
366.26 hearing, or order a permanent plan of long-term foster care for the child. (§ 366.21,
subd. (g)(1), (2) & (3).) The juvenile court may extend services to the 18-month review date to
the parent only if the court finds that there is a substantial probability that the child will be
returned to the physical custody of his or her parent and safely maintained in the home within
the extended period of time. (§§ 361.5, subd. (a)(3), 366.21, subd. (g)(1).)
To find a substantial probability that the child will be returned to parental custody and
safely maintained in the home, the juvenile court is required to find all of the following:
"(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child.
"(B) That the parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home.
"(C) The parent or legal guardian has 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." (§ 366.21, subd. (g)(1).)
The juvenile court reasonably determined that although the parents regularly visited and
contacted their children and made extraordinary efforts to resolve the problems that had led to
the continuation of the children's dependency proceedings, they did not meet their burden to
show that they had the capacity and ability to complete the objectives of their treatment plans 23
and provide for the children's safety, protection, physical well-being and special needs. (§
366.21, subd. (g)(1).)
The record shows that Michelle and Tracy were gentle, loving and affectionate with
their children. Through instruction, repetition, correction and assistance, Michelle and Tracy
learned basic parenting tasks and took them to heart. However, the record shows that Michelle
and Tracy continued to have difficulty assessing and responding to new or emergency
situations. Their parenting skills were not ingrained or instinctive. Despite having had more
than two years of in-home parenting services and other classes, their lack of attention or
judgment placed the children at risk on more than a few occasions. In T.J.'s case, because of
his severe asthma, an improper assessment or delay in obtaining treatment could be a matter of
life and death. The social worker, Ostlund and the CASA agreed that Michelle and Tracy
could not provide for the children's safety, protection, physical well-being and special needs
without exceptional assistance from the maternal grandmother or SDRC, or both.
The record supports the finding that Michelle and Tracy did not demonstrate the
capacity and ability both to complete the objectives of their treatment plans and to provide for
the children's safety, protection, well-being and special needs. (§ 366.21, subd. (g)(1).) The
juvenile court thus did not abuse its discretion when it denied the parents' requests to extend
reunification services to them for another six-month period.
C
There Is Substantial Evidence to Show That Return to the Parents Would Create a Substantial Risk of Detriment to the Children's Safety and Protection
Michelle and Tracy contend that there is no substantial evidence to support the juvenile
court's finding that returning the children to their care would create a substantial risk of 24
detriment to the children's safety and protection. They argue that the Agency made only a
cursory assessment of the grandmother's ability to ensure the children's safety in the home, and
that the evidence shows that the grandmother was engaged in helping the parents care for the
children. Michelle and Tracy further contend that the juvenile court should have evaluated the
level of risk separately for each child. They argue that even if there is substantial evidence to
sustain the detriment finding in T.J.'s case, the evidence is insufficient to sustain a detriment
finding in Nancy's case because Nancy does not have asthma and is no longer an infant.
At the 12-month review hearing, the court must return the child to the physical custody
of his or her parent unless the Agency proves, by a preponderance of the evidence, that return
to the parent would create a substantial risk of detriment to the safety, protection, or physical or
emotional well-being of the child (detriment finding). (§ 366.21, subd. (f); see In re Marilyn
H. (1993) 5 Cal.4th 295, 308; In re Jasmon O. (1994) 8 Cal.4th 398, 420.) At a review
hearing, the focus is on the child's well-being, rather than on the initial grounds for juvenile
court intervention. (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.)
The reviewing court must affirm an order setting a section 366.26 hearing if it is
supported by substantial evidence. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014,
1020.) "When a trial court's factual determination is attacked on the ground that there is no
substantial evidence to sustain it, the power of an appellate court begins and ends with the
determination as to whether, on the entire record, there is substantial evidence, contradicted or
uncontradicted, which will support the determination . . . ." (Bowers v. Bernards (1984) 150
Cal.App.3d 870, 873-874; Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) The
judgment will be upheld if it is supported by substantial evidence, even though substantial
25
evidence to the contrary also exists and the trial court might have reached a different result if it
had believed other evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
The record shows that Michelle and Tracy were able to care for the children in a highly
structured setting with guidance and redirection. Tracy suffers from various cognitive deficits
that adversely affect his memory, reasoning, understanding, judgment, insight, planning and
decision making and the ability to have adequate foresight into potential consequences. While
Michelle's abilities are not as limited as Tracy's abilities, her lack of physical mobility makes it
difficult for her to respond to the children's basic needs and protect them in the event of an
emergency. The record shows that the parents left Nancy unattended on a bed, a chair and an
examining room table. When Michelle became aware that Nancy was at risk of falling from
the bed and chair, she was unable to protect her. The parents were unable to prevent T.J. from
running away from them on several occasions. On one occasion, they did not appear to realize
that T.J. was no longer in their care.
Dr. Coullahan said that Michelle and Tracy did not appear to pay attention to the health
care information that was provided during the children's medical appointments. They were
unable to repeat the children's medical plan after Dr. Coullahan gave it to them. Ostlund
agreed that the medical appointments were not satisfactory. Without rapid intervention in a
medical emergency, T.J.'s asthma was potentially life threatening. Dr. Coullahan questioned
the parents' ability to identify medical conditions that would pose a risk to T.J.'s and Nancy's
health and safety, such as irregular breathing or fever.
The parents contend that the presence of the maternal grandmother in their home
negates any risk to the children that they might otherwise face if returned home. Under section
26
366.21, subdivision (f), the issue is whether the children would be safe in the care of the
parents, who would have custody and control of the children. The Agency was not assessing
the maternal grandmother for a guardianship role. The record lacks any guarantee that the
current living arrangement would be permanent. Ostlund testified that it would "[not] be
healthy for anybody involved" to leave the children in the sole care of their parents. When
asked whether the parents would ever be able to safely care for the children, Ostlund testified
that the parents had the "skill capacity" for parenting, but said that she could not offer an
opinion until the parents had more visitation, including overnight visitation, with the children.
Ostlund believed that the parents still needed training to learn the children's daily routines.
Finally, we are not persuaded by the parents' argument that Nancy would not be at
substantial risk of detriment if she were returned to their care. The parents left Nancy without
proper supervision on three occasions―on an examination table, a bed and a chair―placing
her at risk of injury. Dr. Coullahan's concerns about the parents' ability to identify medical
conditions were not limited to T.J. She was as equally concerned about Nancy's medical care.
The parents are to be commended for their efforts to learn to care for their children.
However, despite these efforts, there is substantial evidence to support the juvenile court's
finding that returning the children to the parents' care would create a substantial risk of
detriment to T.J. and Nancy. (§ 366.21, subd. (f).) Accordingly, we deny the parents' requests
for relief.
27
DISPOSITION
The petitions are denied. The requests for stay are denied.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
28
AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the juvenile court's findings that reasonable reunification services were provided to the parents and that returning the children to their care would be detrimental. Despite criticizing the Agency's rigid visitation policies, the court concluded the parents received sufficient services during the review period to satisfy statutory requirements.
Issues
Whether the juvenile court's finding that reasonable reunification services were provided is supported by substantial evidence.
Whether the juvenile court's finding that returning the children to parental care would be detrimental is supported by substantial evidence.
Disposition. Petitions 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 are disappointed that the Agency would think that it is reasonable to require any parent, let alone a developmentally disabled parent, to regularly travel 10 hours to visit his or her child during the reunification period.”
“The record shows that during the review period, the parents received more than eight months of reasonable visitation services.”