Filed 4/27/23 J.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
J.H.,
Petitioner, E080822
v. (Super.Ct.No. SWJ2100304)
THE SUPERIOR COURT OF OPINION RIVERSIDE COUNTY,
Respondent;
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Michael J. Rushton,
Judge. Petition denied.
Daniel L. Vinson for Petitioner.
No appearance for Respondent.
1 Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Catherine E. Rupp,
Deputy County Counsel, for Real Party in Interest.
The juvenile court terminated family reunification services for petitioner J.H.
(mother) and set a Welfare and Institutions Code section 366.26 hearing.1 She seeks an
extraordinary writ, arguing there was insufficient evidence to support the court’s
conclusion that real party in interest Riverside County Department of Public Social
Services (department) provided reasonable services and there was no substantial
probability of return. We deny the petition.
BACKGROUND
Some years before this dependency, mother suffered a brain injury which she
attributes to an assault by G.B.’s father. Possibly because of this, mother is cognitively
impaired, has severe mental health problems, and struggles keeping her anger and
frustration under control, especially concerning her son G.B. (born 2013). These issues
resulted in this dependency action, after mother physically abused G.B. In her writ
petition, she argues that the services the department provided during the dependency
were inadequate to address her issues, and that there was a substantial probability that
G.B. could be returned to her if the department continued providing services.
The dependency began after mother hit G.B. and pulled his ear during a distance
learning class. The department found that G.B. seemed “dirty as if he had not taken a
1 Undesignated statutory references are to the Welfare and Institutions Code.
2 shower i[n] a couple of days.” He appeared below his developmental age range, possibly
with a speech impediment.
Mother “appeared to be challenged cognitively,” and presented as “either having a
mental health issue or a cognitive issue.” Her doctor disclosed that she had (among other
ailments) anxiety and dementia (unspecified type with no behavioral disturbances). She
said she was not taking any medication and was not in therapy.
Mother denied any history of substance abuse, but a urine test was positive for
methamphetamine, as was one a month later. Mother claimed the positive tests were
caused by prescription medication, but her doctor said that none of her prescription
medications were “mind altering” and none would produce a false positive for
methamphetamine.
In June 2021 the department filed a section 300 petition alleging, among other
things, that mother suffered from mental health issues and substance abuse, that she hit
G.B., and that she neglected G.B.’s educational and developmental needs. At the
August 2021 contested jurisdictional and dispositional hearing, the court found the
allegations against mother true. It ordered family maintenance services and a
psychological evaluation for mother.
Between August 2021 and December 2021, mother enrolled in counseling
services and anger management, but not parenting education or substance abuse classes.
Mother also submitted to a psychological evaluation in November 2021. The
evaluating psychologist, Dr. Garett, found mother “showed a great deal of intellectual
3 impairment . . . probably due to a neurocognitive disorder due to brain injury.” He also
found that “her prospect to benefit from psychotherapy is not great,” and that she
“wa[]vers unpredictably in her behaviors . . . and . . . has difficulties controlling her
behavior and temper when talking to her child.” Mother told him that she stopped taking
all medications because her drug tests were positive.
Dr. Garett expressed concern “about [mother’s] ability to show self-control in
coping with her son.” Because of this, he recommended “the Wraparound program or
some behavioral therapist should make a home visit and determine whether, in fact, she is
handling this child in any way which meets an acceptable way of parenting.” He also
expressed concern mother was not taking her medications, which included medications
for depression and for her heart. He agreed these medications should not have caused
false positives in any drug tests, and recommended mother “be sent back to a psychiatrist
and put back on medications, possibly medications for bipolar or psychotic components.”
Finally, he recommended mother receive some form of behavioral management and that
a public health nurse visit her regularly “to see if, in fact, the environment there is
acceptable or manageable.”
In December 2021 a neighbor saw G.B. with a black eye after he was sent home
from school early. The department confirmed G.B. had a black eye as well as multiple
other minor injuries such as cuts, bruises, and at least one mark on his leg which appeared
to be a human bite mark. At least six adults told the social worker G.B. did not have the
black eye when he left school. G.B. was dirty, and mother’s home was cluttered and
4 dirty. Mother was agitated, called the social worker names including a racial slur, had
difficulty following questions, appeared to be under the influence, and refused a drug test.
Mother took G.B. to the hospital at the social worker’s urging. Mother became
belligerent with hospital staff and had to be escorted off premises. G.B. eventually
admitted mother hit him in the eye, bit him on his leg, pinched his ears, and hit him on
the head and leg. Mother was arrested and charged with intentional infliction of
unjustifiable physical pain on a child (Pen. Code, § 273a, subd. (b)).
The department filed a section 387 supplemental petition alleging “mother
continues to have unresolved mental health issues, refuses to drug test, and continues to
utilize inappropriate physical discipline.” The court detained G.B. from mother on
December 22, 2021.
In February 2022 mother had a second psychological evaluation, this time with
Dr. Hicks-Benam. The doctor found mother continued to be cognitively impaired. She
was irritable, hostile, minimally engaged throughout the assessment, and had “an inability
to acknowledge her actions and need for care.” She also “did not appear to understand
her role or responsibilities regarding keeping [G.B.] safe,” lacked insight, and minimized
her behavior, which “increase[d] risk for continued problematic behavior[ ].” The doctor
recommended substance abuse treatment, counseling, a medication consultation, and
parenting classes, as well as that all visits be supervised.
The department referred mother to additional services, including a medication
evaluation and anger management. The department also referred her to Linkages, a
5 housing and public aid resource, and a parent partner. Her original referrals for substance
abuse treatment, parenting classes, and individual counseling remained in effect.
As of March 2022, mother had participated in 12 counseling sessions and was
participating in anger management and other individual counseling. She did not,
however, submit to required drug testing.
That same month the court sustained an amended section 387 petition, removed
G.B. from mother’s care, and ordered reunification services. In addition to substance
abuse treatment, parenting education, and individual counseling, the court also ordered
mother to refrain from all corporal punishment and participate in a child batterer’s
program.
Between March and August 2022, mother continued with individual counseling,
began the child batterer’s program, and tested negative for all drugs on three different on-
demand drug tests. Nevertheless, the department expressed concern that “[h]er inability
to multi-task and her level of frustration and unresolved mental and medical health
issues[ ] continue to pose a risk for [G.B.]” The department reported that mother “will
need ongoing and possible long-term support to parent[ ] her son.” In general, the
department noted mother “continues to struggle with meeting her own needs,” would
need help getting G.B. to and from school on time, did not understand he was
developmentally behind, could not help him academically, and was hostile to the idea of
giving him medication to treat his newly diagnosed ADHD. The department
recommended further reunification services.
6 In October 2022 the court held a six-month status review and continued
reunification services.
As of January 2023, mother had completed 24 sessions of her child batterer’s
class, completed individual counseling, and had complied with drug testing. However,
the department still found the prognosis of return poor. In particular, the department was
concerned that mother exhibited inappropriate behavior during visits and towards the
caregivers. The department tried to transition to unsupervised visits, but G.B. reported
that mother stabbed him in the hand with a screwdriver during one of these visits and
showed the social worker a small bruise. After this, visits became supervised again. In
addition, the department had to move the location of the supervised visits from a public
restaurant to department offices because the caregiver did not “feel safe supervising visits
with the mother in public due to her behaviors.”
Moreover, though mother did participate in services, her mental and cognitive
issues continued to prevent her from caring for herself or her son appropriately. Her
home was never clean despite multiple attempts at explaining she needed to keep it clean
and safe. She was usually disheveled, and her hands, nails, and feet were usually black
and dirty. Despite the services she had received, she continued “to be easily angered and
frustrated, and could not demonstrate new skills.” In sum, the department was not
optimistic that G.B. could ever be returned to mother’s care and noted “there is no
mechanism within our social system to continue providing supervision of [G.B.] in his
mother’s care . . . . The Department cannot continue monitoring [mother] in the hope that
7 her intellectual, cognitive, and reasoning abilities will remarkably improve.”
Accordingly, it recommended terminating reunification services and setting a hearing
under section 366.26.
The court held a contested 12-month review hearing in March 2023. Mother
argued she had participated in her case plan services, but that the services provided
were not reasonable because she should have been provided a public health nurse at
visits and at home. The court rejected mother’s argument that she was due additional at
home services because “these are services which are applicable once a person rises to the
level . . . where they can have unsupervised visits,” and mother was trending in the
opposite direction. The court concluded that though mother had participated in services,
she had not benefited from them. Accordingly, it terminated reunification services and
set a hearing under section 366.26.
DISCUSSION
Mother argues the department did not provide reasonable reunification services
and that there was a substantial probability of return. We disagree and deny the petition.
A. Reasonable Reunification Services
Mother argues the department failed to provide services as recommended by
Dr. Garett. These services, according to mother, included wraparound services,
behavioral therapy in mother’s home, services through the Inland Regional Service, a
medication evaluation, and a public health nurse to visit and assist her in the home. The
People argue that Dr. Garett did not recommend all of these services, and that in any case
8 the services he recommended were applicable only while G.B. remained in mother’s
home, so were not relevant once G.B. was removed.
When a court orders reunification services, the department must ensure the
services provided 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. (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.)
The court’s reasonable services finding “must be made by clear and convincing
evidence.” (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) We review the finding that
reasonable services had been provided or offered for substantial evidence. (Katie V. v.
Superior Court (2005) 130 Cal.App.4th 586, 598.) “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
9 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.)
Here, there was substantial evidence mother received reasonable services. As the
juvenile court pointed out, the at-home services Dr. Garett recommended were to help
mother keep G.B. in her home, not help her reunify. Dr. Garett recommended a public
health nurse visit her home “to see if, in fact, the environment there is acceptable or
manageable,” because he was “deeply concerned that as [mother’s] son gets older that
she may not be capable of coping . . . and act out in a way which will eventually lead to
continuous contact with the Department.” He also recommended “the Wraparound
program or some behavioral therapist should make a home visit and determine whether,
in fact, she is handling this child in any way which meets an acceptable way of
parenting.” These recommendations demonstrate skepticism that mother is capable of
caring for G.B. and that at-home services are necessary mostly to confirm whether that
skepticism was justified.
Moreover, there was no opportunity to provide the services recommended by
Dr. Garett, or for them to be effective, while mother was still receiving family
maintenance services. Dr. Garett submitted his report in November 2021. The next
month mother was arrested for hitting G.B. It is possible such services might have
helped avoid the incident which led to G.B.’s removal. But given how little time passed
10 between the recommendation and the removal, the juvenile court could reasonably
conclude these services either could not have been provided in time or else would not
have been helpful.
Mother argues that under Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415
(Tracy J.) she was owed further reunification services due to her cognitive issues. We
disagree. In Tracy J., the department had used the existence of the parents’
developmental disabilities as justification to deny them supervised visitation despite
evidence that these disabilities did not endanger the child. The Tracy J. parents
demonstrated effective parenting when given the opportunity. During supervised visits
they “responded appropriately to [the child’s] verbal and nonverbal signals, put his needs
ahead of their own and consistently displayed empathy toward him.” (Id. at pp. 1419,
1426.) Despite this, the department refused to allow unsupervised visitation due to
inchoate concerns about the parents’ disabilities. (Ibid.) The court in Tracy J. concluded
“[w]hen the [department] limits visitation in the absence of evidence showing the
parents’ behavior has jeopardized or will jeopardize the child’s safety, it unreasonably
forecloses family reunification on the basis of the parents’ labeled diagnoses, and does
not constitute reasonable services.” (Id. at p. 1427.) The court pointed out that the
department’s concerns “could have been alleviated by scheduling services from [San
Diego Regional Center] and the public health nurse and implementing in-home parenting
skills training during a portion of the unsupervised visits, and providing initial drop-in
checks by the social worker.” (Id. at p. 1427.) Moreover, the parents “made substantial
11 progress with their court-ordered case plans and demonstrated their abilities to feed,
soothe, protect and care for” their child. (Ibid.) Finally, the department failed to
adequately identify, let alone provide services regarding, at least one parent’s claimed
disability. (Id. at pp. 1428-1429.)
Here, in contrast, there was ample evidence that mother’s behavior jeopardized
G.B.’s safety such that unsupervised visitation was inappropriate. Indeed, supervised
visitation was required after there was credible evidence of abuse during unsupervised
visits. Even after the department switched to supervised visitation, mother continued to
act so erratically that the caregiver requested the department supervise the visits because
of a concern about safety. Moreover, as discussed more below, mother did not make
substantial progress in her case plan and did not demonstrate the parenting skills
necessary to show she could take care of G.B. in a safe and healthy manner. Thus, unlike
in Tracy J., here there was plenty of evidence that unsupervised visits were inappropriate
with or without additional services.
Finally, mother claims Dr. Garett recommended a medication evaluation and
behavioral therapy for people with intellectual disabilities through the Inland Regional
Service. We find no such recommendations by Dr. Garett in the record, though the
department did refer mother to a medication evaluation in January 2022.
Accordingly, we agree with the juvenile court that the services provided were
reasonable given the circumstances. Certainly, mother faced unique hardships and was
due unique consideration in receiving reasonable services, but there is substantial
12 evidence to support the juvenile court’s finding by clear and convincing evidence that the
services she received were reasonable.
B. Substantial Probability of Return
Mother contends that the juvenile court erred in terminating her services and
setting a permanency planning hearing because there was a substantial probability of
return. We are not persuaded.
At a 12-month review hearing a court must return the child “unless the court finds,
by a preponderance of the evidence, that the return of the child to their parent or legal
guardian would create a substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child.” (§ 366.21, subd. (f)(1).) If the court does not
return the child at the 12-month review hearing, “[t]he court shall continue the case only
if it finds that there is a substantial probability that the child will be returned to the
physical custody of their parent or legal guardian and safely maintained in the home
within the extended period of time or that reasonable services have not been provided to
the parent or legal guardian.” (§ 366.21, subd. (g)(1).) To conclude that there is a
substantial probability of return, the court must find (1) consistent visitation, (2) that the
parent “has made significant progress in resolving problems that led to the child’s
removal,” and (3) the parent “has demonstrated the capacity and ability both to complete
the objectives of their 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).)
13 If the court does not continue the case and the child is a proper subject for adoption, the
court must set a hearing under section 366.26. (§ 366.21, subd. (g)(4).)
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.) The same is true for the juvenile
court’s finding of detriment. (Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th
856, 864.)
Substantial evidence supports the juvenile court’s finding that there was no
substantial probability of return. There is evidence that mother has not benefited from
the services provided and may be incapable of benefiting from services. Mother did not
make any progress addressing the department’s concerns with her capacity to parent G.B.
On the contrary, mother physically abused G.B., G.B. was removed from her care
because of physical abuse, and there is evidence mother physically abused G.B. at least
once more during an unsupervised visit. Mother’s home and person remained dirty and
cluttered throughout the dependency, she continued to struggle with anger management
and frustration despite counseling, and she did not appear to have made any progress in
overcoming her cognitive and mental health issues to develop greater insight or ability to
care for G.B. She remained combative, unstable, forgetful, paranoid, and confused
throughout the dependency, lashing out at the department, G.B.’s caregivers, and G.B.
himself. Though she completed a substantial portion of her case plan, there was no
appreciable change in her behavior.
14 We make no judgment on mother’s character or effort. Her intellectual disabilities
and mental health struggles are not her fault. Nevertheless, the evidence adequately
supports the juvenile court’s conclusion that there is no substantial probability of return
because mother’s disabilities make her incapable of providing G.B. with a safe, healthy
home, and services have not helped.
DISPOSITION
We deny the writ petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J. We concur:
CODRINGTON Acting P. J.
FIELDS J.