Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. J09013796 & J09013797
Lambden, J.
R.G. (mother) seeks writ review of an order terminating reunification services and setting for November 10, 2010, a plan hearing for her one- and four-year-old dependent sons, T.G. and L.G. (Cal. Rules of Court, rule 8.452; Welf. & Inst. Code, § 366.26.) We issued an order to show cause, a stay, and deem the response of real party in interest the Alameda County Social Services Agency (agency) the return. Mother claims error in the court’s findings of reasonable services, plan compliance, and no return. We find no such error.
All further section references are to the California Rules of Court and Welfare and Institutions Code.
Background
The case began with a referral in early November 2009, when three-year old L.G. was brought to an emergency room by mother’s boyfriend, Justin O., with a head injury requiring stitches above his left eye, reportedly caused by a door hitting him. This followed, by two months, the boy’s days-long hospitalization with seizures, convulsions and a concussion, after a reported fall onto cement for which immediate care had not been sought.
A check of the home by a child welfare worker (CWW) over a week later revealed 10 to 12 ill-kempt adults and several poorly tended children under age three. Mother was in a car, and her younger son, T.G., was not in view. Asked about the child, mother first stalled for time and went into the house, saying she would be ready in 20 minutes. The CWW waited outside in a car and began honking the horn when she saw mother taking the boys off the property. Mother did not acknowledge the honks but took the boys back to the house. Eventually admitted to the house by the boyfriend, who came out to speak with her, the CWW found T.G. inside, covered up with a hooded shirt. She asked to see him. He had scabbing first and second degree burns around his mouth and down his chin (reportedly from spilled soup), scabs on his nose and under one eye, red spots and scrapes on his face, a bright-red diaper rash that extended beyond the diapered area and, as later seen in a medical exam, bruises on his body and a bite mark on one arm. L.G., who had the stitches over his left eye, complained of pain and conveyed to the CWW with a punching motion that Justin O. had hit T.G.
The home, owned by an 84-year-old maternal grandmother or great-grandmother, was filthy and unsanitary, with dirty clothing strewn about, sticky floors, bare mattresses for sleeping, dried food caked on plates, no food in the refrigerator, and T.G.’s bassinette had a dirty blanket and a cigarette lighter in it. T.G. was barefoot, dirty, and reeked for lack of bathing. Mother had a large bruise on her upper arm that she attributed to a beating by her boyfriend. She conceded domestic violence from her boyfriend and from her husband. She loved her boyfriend, who was her sole support, and was unwilling to leave him. Her husband had recently begun serving a prison term for robbery. Mother conceded alcohol and drug abuse by relatives at the house, her own drug abuse since her teens, recent amphetamine use with both partners, and lack of supervision for the boys.
The children were removed to protective custody, and petitions filed by the agency in mid-November 2009 alleged failure to protect or to provide support (§ 300, subds. (b) & (g)) based on numerous allegations mirroring the facts just recited, plus allegations that the father had a history of substance abuse and a drug felony, was a gang member, and was serving a 10-year prison sentence. Acting with the assistance of counsel, mother submitted to jurisdiction on December 1, 2009, and the father submitted on December 18, the court declaring dependency on that date. Mother was granted reunification services, with a case plan, and the children were retained in foster care. A six-month review was set for May 20, 2010.
All unspecified further dates are in 2010.
The father was denied services, remained throughout these proceedings in a maximum security facility, and has not sought writ review of the current orders.
Mother was open and cooperative from the start. Remorseful, she acknowledged not having “been the best parent, ” lacking parenting skills, needing drug treatment for methamphetamine use she admitted occurred two to three days a week, several times a day, being violently abused by her boyfriend, and having children whose injuries began a year earlier, when she started leaving them in the boyfriend’s care. She also conceded needing counseling assistance for housing, and employment services, and was glad the boys had a safe home in foster care. Once the boys were removed from the great-grandmother’s house, the family grew angry and “ ‘kicked her out.’ ” She kept the house as a mailing address but said she and the boyfriend moved into a friend’s house. She could not satisfactorily explain, and the agency could not tell, how the boys’ injuries occurred or whether they were intentionally inflicted.
Mother’s case plan objectives were to stay free of illegal drugs, comply with drug testing, meet her children’s physical, emotional and educational needs, pay attention to and monitor their health, safety and well-being, allow no contact with their abuser, not let others abuse them, avoid being a victim of further domestic violence herself, and provide consistent, appropriate and adequate parenting. Her plan responsibilities were to: have individual counseling about her pattern of entering abusive relationships and, if recommended, participate in a domestic violence treatment program; participate in at least eight individual therapy sessions (plus any recommended further treatment); participate in collateral therapy sessions with her children, if and when recommended by their treating therapists; participate in a medical evaluation if recommended by treatment providers; complete a parenting education program (either dyad therapy with the boys or an approved parenting class); complete a residential substance abuse treatment program and follow all aftercare recommendations; participate in an outpatient program pending admission to a residential program; and participate in substance abuse testing as required by any program or her CWW. Mother was also to have at least weekly supervised visits. The court issued a restraining order against the boyfriend contacting the boys. Mother said the children were “ ‘her life’ ” and kept her strong; she wanted to enter a residential program, and engage in substance abuse treatment, parenting classes, and counseling.
The May review was reset for July 17, when mother requested a contested hearing. A more detailed account of her compliance and agency efforts follow in the discussion of issues (post), but, in short, mother never had an evaluation, therapy, parenting education, or drug treatment. The furthest she got in drug treatment was to enter a residential program late in the review period, on April 29, and stay just two days before leaving and resuming her methamphetamine use. Her housing was unstable, and she reportedly lived with the boyfriend “in an inhabitable shed behind a relative’s house, ” with no steady income. She visited the boys for the first few months but stopped in April, eventually telling the CWW that she was ill, but only a month later.
The report noted “minimal progress” by mother toward her case plan goals, most notably lack of a mental health evaluation to help identify her treatment needs, and no substantial probability that she would progress within another six months. The report recommended terminating her reunification services.
The children, meanwhile, were thriving in the foster care home they had shared since their removal. Two paternal aunts who had expressed early interest in placement proved to be unavailable or unsuitable. One had moved out of state, and the other had a troubling criminal background.
An addendum report filed on June 21 contained no change in recommendations but recounted further contact by mother with CWW Honghui Luo, and resumed visits with the children. Luo wrote that mother called on May 21 for a meeting, and they met that afternoon. “[Mother] talked about the children’s well being and felt that they are stable and treated well in their placement and she accepted the fact that they might be adopted by their current caregiver. [She] was sorrowful and tearful that with her current unstable situation, she is unable to provide that stability to the children. [I] encouraged her to return to a substance abuse treatment program.” No response by mother to that encouragement is noted. Mother asked for a visit, however, and one through the foster family agency went well, as did another two weeks later. Luo appended this evaluation: “[Mother] continues to struggle with substance abuse issues, unstable housing and remains in a relationship that has a history of domestic violence. At the same time, [she] seems to give consideration to the children’s well being and wants the best for them, which she believes she can’t provide for the children at the present time. The undersigned would like to give credit to [her] for her self awareness and her courage to put the children’s welfare over her emotional needs. The undersigned hopes she will have the courage to address her issues of substance abuse, relationship and housing so she can move forward with her life in [a] positive direction.”
At the review hearing a month later, on July 19, mother presented no witnesses, but her counsel argued for six months of further services. Counsel for the agency and for the children disagreed and urged adoption of the report recommendation that services be terminated and a plan hearing set.
Mother was present and made an extensive, unsworn presentation of her thoughts, the court interacting to add its own thoughts-praise and encouragement that mirrored the sentiments expressed in Luo’s addendum report. Mother reiterated that she had not been “the best of moms, ” acknowledged her drug problem, and explained that she ceased visiting because she was homeless, sick, and dealing with family problems. She said she was no longer with the boyfriend, the relationship being “over with for good, ” and that she was “trying to get a job now” and “change [her] life around, ” something made difficult by her lack of a stable place to stay. She expressed gratitude to the foster mother and pleasure and pride that her children were “very successful” in their foster placement and “better off where they are now....” She asked only that she be able to see and talk to her boys, explaining, “[I]t will do them some good because my oldest son was arguing with his foster mother. He wasn’t listening and he was giving her attitude because he said ‘I want to talk to my mom’ and I have been-these last few visits I’ve been visiting him and calling him often and keeping updated on that.”
Because mother’s legal arguments rest in part on her exchanges with the court, we quote one example extensively: “[Mother]: [The foster mother] offers them more than I can give them right now and more than I can give myself right now.
“The Court: You said ‘right now.’ To start from a place of loving them so much that you can put them in a place where they are doing better says so much about you; it really does. I was blown away that you can do that. That takes a lot of strength. I really believe that you will get on your feet just because you’re a strong woman.
“[Mother]: Thank you.
“The Court: You are. I’m not just saying that. People don’t sit where you are sitting and say, ‘[Y]es, I see that my children are better off with someone else.’
“[Mother]: I am thinking about my babies.
“The Court: You are thinking about them before you.
“[Mother]: My oldest is in school and the baby will start some type of schooling in August.
“The Court: Early Head Start.
“[Mother]: I like the city [that] they are in. They are in Antioch and not Oakland. This city is just crazy, as we all know.... [¶]... [¶]... As you can see from the pictures and when I see them in person, that alone tells me right there that they are happy and that’s all I want, for them to be happy and not the way that we were living when they got took. I mean, it was a wake-up call for me more than anything in this world, but they are doing great. I am happy.
“The Court: That is it in large part. Even though you are not there with them every second, it is in large part due to you being able to do that, that makes you a good mother; it really does.
“[Mother]: I tried to be.
“The Court: That’s my belief.”
The colloquy continued, the court offering further encouragement and assuring mother that she would still be able to visit the children, as in this example: “[Mother]: Laura has been working with me. She’s a great social worker. She’s really, really been pushing hard to try to help me. [¶] The Court: Excellent. Well, I do not want to repeat myself, but I think that you are giving your children a gift. You are still going to get to see them and love them....”
The court then proceeded to follow the report recommendations, finding in part that the agency had complied with the case plan by making reasonable efforts to return the children, that reasonable services had been offered or provided, and that mother’s progress had been “minimal.” The court also found: “By a preponderance of the evidence, return of the children would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the children. [¶] The factual basis for this conclusion [includes] that [mother] has not participated regularly and made substantive progress in court-ordered treatment programs, made substantial progress in complying with the case plan or alleviated or mitigated the causes necessitating out-of-home placement.” The court ordered services terminated “based upon the following: The children are part of a sibling group where at least one... was under the age of three at the time of initial removal and all... were removed from parental custody at the same time. There is clear and convincing evidence that mother failed to participate regularly and make substantial progress in a court-ordered treatment program.”
Discussion
I. Reasonable Services
The court at every review hearing where a child is not returned must find, and in this case did find, that the agency had provided or offered the parent reasonable services, defined as services designed to aid the parent in overcoming the problems that led to the initial removal and continued custody of the child. (§ 366.21, subd. (e), par. 8.) The case plan must be appropriate to the individual parent and based on the unique facts of that individual. (In re Misako R. (2002) 2 Cal.App.4th 538, 545 (Misako R.).) We review reasonableness by viewing the evidence in a light most favorable to the finding, ensure that substantial evidence supports the finding and, when two or more inferences can reasonably be deduced from the facts, find substantial evidence in any such inference. (Ibid.)
Mother challenges the reasonable-services finding, not by identifying any deficiency in the services designated in the case plan, but by arguing: “[I]t seems clear that [she] was highly motivated to comply, but had only partially, or minimally, done so. The remarks by the court and the objective evidence suggest that had the agency been more proactive in working with the cooperative mother, [she] would have made substantial progress during the previous six months, then creating a greater probability of return within the next six months.” (Parts of her argument going not to the services offered, but to the extent of her compliance, are addressed in part II below.)
We first correct the time periods in mother’s argument. As other findings of the court make clear, this case was handled as involving a “sibling group” consisting of two siblings removed together from parental custody, only one of whom was under age three. Mother correctly recognizes that this allowed the court to terminate services for both children at six months, even though L.G. was already three years old when removed. (§§ 361.5, subd. (c)(1)(B)-(C).) The problem is mother’s calculation of the extension time being six months. A January 2009 amendment made the dispositional hearing of December 18, 2009, the starting point (§ 361.5, subd. (a)(2)(A), Stats. 2008, ch. 457, § 1.5, No. 8 West’s Cal. Legis. Service, p. 2738), meaning that the July 19 hearing date was at seven months, not six, and any further time granted would have been five months, not six.
On the merits of the deficient-efforts argument, we see no lack of support for the order. “ ‘[T]he 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....’ ” (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011.) Mother makes no effort to analyze the record on any of those points, while the agency does, fastidiously detailing the evidence on each point, with record citations.
We deem mother’s failure to detail the record, on this substantial evidence issue, a concession that the point lacks merit. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.) As for her very general view that a cooperative attitude means that she might have done better had she had been ridden more regularly by the agency: “In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. 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. (Misako R., supra, 2 Cal.App.4th at p. 547.) Her briefing fails to demonstrate deficient services or efforts, and her reliance on the court’s supportive and encouraging remarks is no substitute for setting out the record evidence. The remarks, moreover, focused on her successes, like maintaining visits until a two-month hiatus, keeping a caring attitude, and in some ways putting her children’s needs before her own. The remarks do not identify any deficiencies in the plan or the agency’s efforts.
II. Case Plan Progress
Mother challenges the assessment of her case plan progress as “minimal.” That was the report’s assessment, and the court adopted it in its finding on the matter. Luo’s first report, filed May 12, summarized as follows: “[M]other has kept regular contact with the undersigned and has attended scheduled case meetings in January, February and March[]. She has visited the children consistently until the end of March[]. [She] has expressed remorse and taken some responsibilities for the children’s removal. She also showed insight related to her substance abuse and [the] impact of her use on her children. [She] made an unscheduled visit to the undersigned on [April 29] to discuss her case plan. [She] continues to struggle with substance abuse and has admitted to the undersigned her continued use of methamphetamine. She had not enrolled in any substance abuse treatment program until [April 28] but then left Solid Foundation, ... the inpatient program she entered two days later. [She] has not utilized the referral for therapy the undersigned provided for her; consequently she has not received any recommendation regarding domestic violence treatment or psychiatric evaluation. [She] continued her relationship with her boyfriend, Justin O[.], who is the suspect for child abuse to her children. [She] did not visit the children during April[]. Although she explained a month later that she was sick for a week, she did not contact the undersigned immediately. [She] participated in developmental screening with the SEED [Services to Enhance Early Development] clinician but was unable to complete it due to failure to make it to scheduled visits.”
By the time of the hearing two months later, mother had resumed contact with Luo and had two more visits with the children. She claimed at the hearing to have left her boyfriend for good, but expressed no willingness to reenter drug treatment. She was still homeless and jobless, and had apparently still not engaged in therapy, gotten the needed recommendations and psychiatric evaluation, or had any parenting or domestic violence instruction.
Mother certainly did love her children, and she had achieved a long, if interrupted, period of consistent visits and contact with the agency. The problem is that her love and concern had not, in seven months, led her to deal with the very basic issues of parenting, housing, joblessness, substance abuse, and the safety of her children if they were returned to her. On this record, therefore, and drawing all reasonable inferences in its support, we cannot condemn the finding of “minimal” case plan compliance. Moreover, as mother’s briefing recognizes, the term “minimal” was neither talismanic nor determinative on whether to extend services. Because the usual six-month period had elapsed for this sibling group, services could be extended only if there was a substantial probability that the children would be returned to her custody and safely maintained in her home within that extended time (§ 366.21, subd. (g)(1))-which we have already explained was only another five months.
A substantial probability, moreover, could only be found if the court made all three of these component subfindings: that she (a) consistently and regularly contacted and visited the children, (b) made significant progress in resolving problems that led to their removal, and (c) demonstrated the ability both to complete the objectives of 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)(A)-(C).) Even if we assume that her extended lapse in contact and visitation did not foreclose a finding of (a) consistent and regular contact and visitation, and that her case plan progress was, as she suggests, “substantial” rather than “minimal, ” this would not have mandated favorable findings on (b) and (c). Finding (b) required “significant progress” in resolving the problems that led to removal. Her progress in recognizing that her drug abuse and other lifestyle problems had led to removal did not necessarily equate with significant progress in resolving those problems, on this record, or allow a finding (c) of ability to complete the case plan objectives within the next five months. Drug treatment alone could have taken longer.
III. No-return Finding
Mother challenges the court’s finding that return of the children would create a substantial risk of detriment to their safety, protection or physical or emotional well-being. She claims that it had to be made by clear and convincing evidence, but the preponderance standard for that finding is expressly stated in the first paragraph of section 366.21, subdivision (e). Mother mistakenly relies on the section’s subdivision (g)(2), which concerns the distinct finding of whether reasonable services were provided.
No effort is made to assail the finding on its merits, but we note the court’s finding that mother failed to participate or make substantive progress in court-ordered treatment programs. That finding is “prima facie evidence that return would be detrimental” (§ 366.21, subd. (e), par. 1), and it is beyond dispute that mother made only a brief attempt to undergo drug treatment, or satisfy other treatment aspects of the plan. With mother having failed to secure housing, a job, or yet undergo counseling or more than a few days’ treatment for her drug addiction, returning the children to her obviously posed grave risks.
Disposition
The petition is denied on the merits. (§ 366.26, subd. (l)(1); Kowis v. Howard (1992) 3 Cal.4th 888, 894 [barring later challenge by appeal].) The stay previously issued is dissolved. Our decision is immediately final as to this court.
We concur: Kline, P.J., Haerle, J.