Mildred M. v. Superior Court

Filed 11/29/05 Mildred M. v. Superior Court CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MILDRED M., Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al., Real Parties in Interest.

B185560 (Los Angeles County Super. Ct. No. CK48455)

ORIGINAL PROCEEDING. Writ petition pursuant to rule 38.1 of the California Rules of Court. Robin Kesler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition denied.

Jack A. Love for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Kenneth E. Reynolds, Deputy County Counsel, for Real Party in Interest Los Angeles County Department of Children and Family Services.

Petitioner Mildred M. (mother) is the mother of three young children who were detained by the Los Angeles County Department of Children and Family Services (Department) after the youngest child was admitted to a hospital, suffering from malnutrition and dehydration. The children were declared dependents of the juvenile court and mother was provided with reunification services. At the conclusion of a contested 18-month review hearing (Welf. & Inst. Code, § 366.22),^[1] the juvenile court terminated reunification services and scheduled a hearing for the selection and implementation of a permanent plan for the children (§ 366.26).

Mother filed a writ petition (Cal. Rules of Court, rule 38.1) challenging the juvenile court’s decision. She claims there is no substantial evidence to support the juvenile court’s finding that returning the children to her custody would create a substantial risk to their safety. We conclude the challenged finding is supported by substantial evidence. Accordingly, we deny the petition.

PROCEDURAL BACKGROUND AND FACTS

In April 2003, then 20-year-old mother brought her 11-week-old daughter, A.H., to the hospital because she was wheezing and coughing. Except for A.H.’s cough, mother had no concerns about A.H.’s condition, even though her weight was the same as it had been at birth (six pounds and eight ounces). A nurse described A.H. as emaciated. She had no baby fat, her skin was sagging off her bones, and her fontanelle was depressed. She had not received any immunizations since birth.

The hospital admitted A.H. with a diagnosis of failure to thrive, dehydration and malnutrition. The hospital also reported the matter to the Department. A nurse advised a Department social worker that the physician caring for A.H. expressed concern over the condition of mother’s other children.

The Department detained A.H., as well as mother’s two other children--three-year-old Y.M., and two-year-old Y.H.--who were picked up from the home of the paternal grandmother of mother’s two youngest children, where mother and her children were staying at the time.^[2] (According to virtually all of the written reports prepared by the Department, mother and her children were residing with grandmother at the time of the detention. However, at the contested 18-month review hearing, grandmother testified that mother and children had only arrived for a visit a couple days before the detention.)

Prior to this detention, the Department had received several referrals concerning the family. Most claims were found to be inconclusive, but one claim alleging caretaker incapacity was substantiated. Mother received nine months of family preservation services in 2001 and 2002, including parent training, in-home support services, and counseling.

After detaining the children, the Department filed a dependency petition on their behalf. In essence, the petition alleged that the children were at risk as reflected by mother’s failure to protect A.H.

At the conclusion of the detention hearing, the juvenile court found that a prima facie case had been made for detaining the children. The court ordered the Department to provide mother with family reunification services, and it authorized mother to have unmonitored day visits with Y.M. and Y.H., and monitored visits with A.H.

Meanwhile, at the hospital, A.H. was given fluids intravenously, as well as formula. She immediately began gaining weight, was released from the hospital after a two-day stay, and was placed in the same foster care home as her two siblings.

In May 2003, the Department filed a first amended petition, adding allegations about father’s drug history.

According to a May 2003 Department report, grandmother stated that she was the primary caregiver for Y.M. and Y.H. She stated that she noticed A.H. was thin, but she did not think there was any major problem. Still, at some point, she told mother to take A.H. to the hospital. Grandmother opined that mother took good care of the children.

According to the same report, mother stated that no one told her to take A.H. to the hospital until grandmother made the suggestion on the day mother brought A.H. to the hospital. Mother claimed she did not get immunizations for A.H. because of A.H.’s bad cough, and because she could not find a pediatrician.

The Department reported that A.H. was thriving in foster care. Three weeks after her release from the hospital, she had gained two and a half pounds. She was eating well and not throwing up.

Although grandmother stated she wanted the children to be placed with her, the Department expressed concerns over such an arrangement because (1) many people--including five teenagers--were already living in grandmother’s home and people appeared to be rotating through the home;^[3] (2) grandmother had failed to recognize the gravity of A.H.’s condition, even though A.H. was residing in her home; and (3) when mother’s two older children were detained from grandmother’s home, they appeared to be dirty and ill.

The Department also reported that the social worker who had handled mother’s case when she received family preservation services stated that mother was assessed by a regional center and did not qualify for its services.^[4]

In late May 2003, the Department submitted a prerelease investigation report in which it recommended against placing the children with either (1) grandmother (for the reasons discussed above), (2) mother’s sister because she lived in a one-bedroom apartment with a child of her own,^[5] or (3) a paternal aunt because she did not appear to have a residence of her own and because the Department had not yet completed a criminal background check.

In late June 2003, pursuant to an agreement among the parties, the juvenile court sustained certain counts in the first amended petition alleging that the children were at risk as reflected by mother’s failure to protect A.H. The court ordered reunification services for mother, which included (1) a parenting education program to address the nutritional needs and care of infants, (2) medical and nutritional counseling, and (3) “Mommy and Me” classes. The court denied the Department’s request to order an evaluation of mother pursuant to Evidence Code section 730. It also reiterated a prior order providing for mother to have unmonitored overnight visits with Y.M. and Y.H. in the home of mother’s sister, and to have monitored visits with A.H.

In August 2003, the Department reported that mother had enrolled in a parenting program and had received nutritional counseling, but had failed to appear for an initial assessment regarding participation in a “Mommy and Me” program. The Department also reported that the foster care agency was arranging transportation for Y.M. and Y.H. for their overnight visits because mother’s sister did not have car seats to transport them.

In anticipation of the six-month review hearing (§ 366.21, subd. (e)), the Department reported that mother was residing in her sister’s one-bedroom apartment, together with the sister’s two young children and a maternal uncle. The Department advised mother of the need to obtain appropriate housing, but she had no personal income and was dependent on others for her needs. The Department provided mother with another referral for a regional center assessment, noting that she could be eligible for childcare assistance through the regional center.

Mother had completed the parenting program and, as previously reported, had received the court-ordered medical counseling concerning the dietary and nutritional needs of infants. Mother also had been participating in “Mommy and Me” classes with Y.H. and was scheduled to begin similar sessions with Y.M.

According to the report, after having once-weekly overnight visits with Y.M. and Y.H. for approximately 10 weeks, the Department extended the visits to two nights a week. However, the Department expressed concern that during these overnight visits, mother was taking the children to grandmother’s home on a regular basis, notwithstanding an agreement (and apparent court order) that the visits were not to take place in the grandmother’s home. Mother was also having weekly monitored visits with A.H. at the child’s foster home.

The Department also reported that grandmother had expressed a desire to have the children placed with her, noting that she was already caring for relatives who had been placed by the Department. However, when a Department social worker spoke with her colleague responsible for grandmother’s other placement, the latter recommended against placing mother’s children in grandmother’s home as one of the residents was a juvenile sex offender. When the Department social worker handling mother’s case raised this issue with grandmother, grandmother stated that the sex offender resided in Palmdale with another relative, a statement refuted by the social worker handling the sex offender’s case.

According to the same report, mother’s therapist was seeing mother on a weekly basis. The therapist reported that mother was making some progress in sessions, but she did not seem able to transfer what she had learned in therapy to other settings. Mother was observed interacting inappropriately with Y.M. and Y.H. The therapist did not recommend returning the children to mother. The Department suggested six additional months of reunification services.

In February 2004, the scheduled six-month review was resolved by settlement. The court ordered that mother continue to receive reunification services, including overnight visits with Y.M. and Y.H. from Thursday through Monday. The court ordered mother not to take the children to grandmother’s home if the sex offender was residing there. In addition, mother was to have unmonitored day visits with A.H. The court gave the Department discretion to place the children with mother once mother obtained a larger residence. The court ordered the Department to refer the case to both Family Preservation Services and Family Group Decision Making (FGDM). The court also deleted the requirement that mother attend “Mommy and Me” sessions.

In April 2004, the Department reported that mother was still living with her sister, the sister’s two children and the maternal uncle. The juvenile sex offender was still residing in grandmother’s house, making grandmother’s home inappropriate for placement. Mother was making efforts to obtain social security benefits.

According to the report, mother was having weekly, four-day-long visits with Y.M. and Y.H., as well as twice-weekly day visits with A.H. The children’s foster care provider was working with mother to toilet train the children and reported that mother was amenable to her suggestions and comments.

The Department also reported that mother initially declined to participate in the family preservation program and a FGDM conference. However, after the social worker explained that the Department may be able to provide financial assistance to assist mother’s move to a new residence (perhaps with sister) if she participated in the FGDM conference, mother authorized the social worker to make a referral.

In April 2004, the court authorized mother to have overnight visits with A.H. Initially, these visits were to be without mother’s two other children. However, once mother and the Department felt it was appropriate, mother could have overnight visits with all three children together. The court ordered the Department to prepare a report addressing the possible placement of the children with mother, and it authorized the Department to place the children with mother once she obtained appropriate housing.

By June 2004, grandmother had moved to a new four-bedroom residence and was no longer the relative care provider for the juvenile sex offender. After a Department social worker approved the new residence, and both mother and grandmother expressed a willingness to receive family preservation services, the Department social worker made a referral for those services.

Mother began having overnight visitation with A.H. in April 2004, and was continuing to have weekly, four-night-long visits with Y.M. and Y.H.

At the 12-month review hearing in June 2004, the court authorized the Department to place Y.M. and Y.H. with mother after mother moved in with grandmother and family preservation services were in place. The court also authorized the Department to place A.H. with mother and it directed the Department to refer the case for family planning.

In anticipation of the 18-month review hearing (§ 366.22), the Department reported in November 2004 that mother had moved in with grandmother. However, mother stated that she did not wish to have the children returned to her care so long as she was still residing with grandmother. She stated she wished to have the children remain in foster care until she was able to obtain her own housing.^[6] Therefore, mother wished to put family preservation services on hold. Mother was advised that the Department would recommend at the 18-month review hearing that the court order a permanent plan for the children. She was also informed that a permanent plan of legal guardianship would enable her to try to regain custody of the children if she could show a significant change in circumstances.

The Department also reported that mother had failed to follow through on appointments for regional center services.

The children, meanwhile, had developed a bond and had thrived with their foster care provider, with whom the children had been residing for the last nine months. The provider had a good relationship with mother and was working hard to assist mother with her reunification efforts. The provider stated she wished to pursue legal guardianship over the children because the children have a strong bond with mother.

The Department opined that terminating mother’s parental rights was not in the children’s best interests. The Department recommended terminating reunification services and proceeding with a permanent plan of legal guardianship with children’s current provider. Mother stated she supported such a permanent plan if the court was unable to provide additional reunification services.

In January of this year, the Department reported that during a meeting with the children’s foster care provider and a Department social worker, mother stated that she had changed her mind and now wanted the children returned to her as soon as possible, even while she was still living with grandmother. The Department then scheduled a “team decision making” meeting in which mother, grandmother, and a representative from family preservation services, among others, participated. During the meeting, the family preservation services representative explained that nutritional counseling would be an important component of the preservation services, but mother declared she would not participate in such counseling. Mother maintained her position even after the family preservation representative stated that it appeared mother was not willing to accept family preservation services. The family services representative left the meeting, but the meeting continued and mother ultimately agreed to receive family preservation services.

On January 13, family preservation staff agreed to accept the case on a trial basis (apparently because of mother’s equivocal statements regarding her willingness to receive such services). After consulting with the family preservation team, the therapist assigned to the case recommended that mother participate in an Evidence Code section 730 psychological evaluation to determine the extent of her disability and her ability to care for the children.^[7]

On March 9, the court-appointed psychologist submitted his evaluation of mother. He determined that her math and reading skills were in the bottom one percentile, and she was unable to tell time or determine the value of money. According to the psychologist, mother’s intelligence “appeared to be within the borderline mentally retarded level.” He stated that although it appeared mother was sincerely motivated to care for her children and there was nothing to indicate she would purposely harm them, he did not believe mother was capable of independent living and he stated that there was little evidence mother had the ability to care for the children independently, at least not for any prolonged period. The psychologist stated that “placement and care for [mother’s] children is directly related to the skills of the caretaker responsible for [mother’s] own care.” In this regard, the psychologist stated that although he did not assess other family members, it was disturbing that A.H.’s condition had been allowed to deteriorate to such an extent. (Bold and italics omitted.)

In late April, the Department reported that earlier that month, a family preservation 75-day review took place and it was decided to terminate the services because (1) none of the children had yet been returned to mother, and (2) the Department was recommending a permanent plan of legal guardianship. However, it was also agreed that family preservation services could be reinstated if any children were returned to mother. Mother had also agreed to accept the regional center services.

A team decision making meeting had recently taken place. Mother, grandmother, a Department social worker and a representative from the agency that was to provide regional center services were present. The group agreed that in light of the psychological evaluation, it was inappropriate to return the children to mother at that time. Consistent with mother’s and grandmother’s preference, it was agreed that the Department would recommend legal guardianship with grandmother if an assessment established that her home met the legal requirements. The matter was referred for such an assessment.

In late June, after several additional continuances of the contested 18-month review hearing, the Department reported that the social worker responsible for preparing the adoption/guardianship assessment had orally advised the Department that grandmother’s home had not been approved. The Department was awaiting a written report.^[8]

The contested 18-month review hearing took place on August 23 and 24, nine months after the original date scheduled for hearing. The Department rested after the court admitted various documents into evidence.

Mother then called three witnesses. Mother testified that she completed all court-ordered programs. She testified that during the children’s overnight visits, she cooked for them, bathed them, put them to bed, and sometimes took them to the store. The children’s visits took place at grandmother’s home. Previously, they were at her sister’s home.

Mother completed ninth grade. She could tell time only on a digital clock. Mother provided several correct responses when her attorney asked her the total of three coins (e.g., a quarter, a dime and a nickel). The Department then stipulated that mother can perform simple arithmetic. Mother stated she had no problem handling cash for use on the bus or in a store.

According to mother, the overnight visits with the children had gone well, although grandmother was always present during the children’s visits. She had done everything asked of her and was ready to accept custody of the children.

Mother stated that she lived with her sister. Since last year, her sister had been receiving mother’s disability checks from the government.

Grandmother also testified on mother’s behalf. She stated that mother had been having overnight visits with the children at grandmother’s house for about a year. Before that, the visits took place at the home of mother’s sister. Grandmother testified that mother got along with the children and she had never seen mother physically harm the children. Without considering A.H.’s initial failure to thrive, grandmother stated she had never seen mother neglect her children.

Grandmother stated that during the children’s visits, she (grandmother) was the “primary caretaker” for the children. On cross-examination, grandmother explained that she viewed herself as the primary caretaker because the children were in her home and the Department was letting the children be with her. Being a primary caretaker meant she should be present “to make sure that the kids are okay; to make sure that the kids are fed; to make sure that the kids are dressed; to make sure that the kids are getting everything that they need while they’re in my home.” Grandmother stated she had no concerns about mother taking care of the kids. She added, however: “I just feel like I just need to be there to make sure that [mother is] going to do right.” Grandmother believed mother could take care of the children on her own, but she added that she (grandmother) is “just not going anywhere.” Grandmother would allow mother and the children to live with her if the children were returned to mother, and would ensure that the children are taken to the doctor, and that their other needs were met.

Grandmother testified that mother was not living with her when A.H. was brought to the hospital. Mother had just come with the children a couple days earlier for an Easter visit. When they arrived, grandmother saw A.H. and was concerned about her condition. Grandmother had a child of her own who had failed to thrive. Grandmother told mother to take A.H. to the doctor.

Mother’s sister also testified on mother’s behalf and stated that mother has been living with her for about a year, and was living with her when the dependency case was filed. She had never seen mother physically harm or neglect the children. Mother’s sister explained that although she receives mother’s disability checks, she gives the cash to mother and has no concerns about mother’s ability to handle money. Mother could stay with her sister if the children were returned to mother’s custody.

In rebuttal, the Department called the social worker assigned to the case since its inception. The social worker did not believe mother could take care of the children without residing with grandmother; otherwise the children would be at risk. Her position was confirmed by the formal psychological evaluation. The social worker also noted that during all the visits, someone else had always been present to ensure the children’s safety.

The social worker stated she had no concerns about mother’s ability to tell time or count money. However, “the severity of the undernourished child at the beginning of this case hasn’t sufficiently been addressed.” The social worker did not believe that one day of nutritional counseling was enough to attend to the issue, though she recognized that the court had not ordered additional counseling.

The social worker acknowledged that over the two years of extended weekend visits, there had been no problems with the care of the children, and mother did not appear “to be dangerous to her children.” Nor had the children’s foster caretaker expressed any concerns about the children’s feeding or clothing, though she had questions about “conflicting stories” over how Y.M. had once suffered an injury.

The social worker testified that the Department did not place the children with mother in grandmother’s home because it was waiting for an adoption/guardianship assessment, which found grandmother’s home was not appropriate because of her referral history. None of the referrals was substantiated. Grandmother had a “clean live scan” and the physical environment of her home was appropriate.^[9]

When asked what she observed that led her to believe mother was not capable of caring for the children on her own, the social worker talked about mother’s lack of understanding concerning A.H.’s condition, including mother’s belief that A.H. was getting fat and that the initial hospital visit was only for a cough. The social worker had not observed anything in the last year that suggested mother could not take care of her children.

Acknowledging this was “a difficult case,” counsel for the Department argued that the evidence indicated mother could not independently care for the children. She noted that the Department’s position was buttressed by the court-ordered psychological evaluation.

Counsel for mother asked the court to return the children to mother, who had done everything asked of her. He argued that it was not appropriate to rely solely on the events surrounding A.H.’s admission to the hospital, as that happened two and a half years earlier. Counsel for the children joined in the argument of mother’s attorney.

The juvenile court announced its ruling from the bench, agreeing it was a “tough decision.” The court stated that it gave only slight weight to the psychological evaluation. The court observed that, although the children’s visits with mother were legally “unmonitored,” they were essentially monitored by either grandmother or mother’s sister. Ultimately, the court concluded that it would not be appropriate to return the children to mother at that time. The court terminated reunification services and scheduled a hearing for selection of a permanent plan for the children.^[10]

Mother filed a timely writ petition challenging the juvenile court’s order. The Department filed an answer opposing the granting of relief.

DISCUSSION

We review the juvenile court’s findings of fact under the substantial evidence test, which requires us to determine whether there is reasonable, credible evidence of solid value to support the order. (In re Brian M. (2000) 82 Cal.App.4th 1398; Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470.) In so doing, we must resolve all conflicts in support of the juvenile court’s determination and indulge all legitimate inferences to uphold the court’s order. If substantial evidence exists, we must affirm. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020-1021; In re Rocco M. (1991) 1 Cal.App.4th 814, 820; In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)

We concur with the statements of the juvenile court and the Department’s counsel at the 18-month review hearing that this is a difficult case. After reviewing the record, however, we conclude substantial evidence supports the juvenile court’s finding that there would be a substantial risk to the children’s safety if they were returned to mother’s custody.

This case came to the Department’s attention because A.H. was brought to the hospital and was diagnosed with failure to thrive, malnutrition and dehydration. A.H. was fortunate that mother took her and her siblings to grandmother’s home where grandmother told mother to take her to a doctor. If not for that visit, one can only imagine what would have happened to A.H. because mother never recognized the fundamental and potentially fatal problem of lack of nutrition. While it is true that this “incident” occurred more than two and a half years ago, nothing since that time indicates that mother is better equipped to deal with her children’s needs.^[11]

We recognize that mother has completed all court-ordered requirements and she is commended for that. However, there is considerable evidence that she is not capable of caring for the children independently on a full-time basis. Indeed, during all of the children’s overnight visits with mother, it appears either her sister or grandmother were with her (except perhaps when mother took the children to the store). At various times, mother either rejected or failed to pursue fully family preservation services, nutritional counseling, section 8 housing, and regional center services. Her conduct appears to be born not of malice or recalcitrance, but out of a fundamental lack of appreciation for the community resources that she needs so that she can become a parent capable of providing for her children’s necessities. Under these circumstances, we conclude the juvenile court’s finding regarding the risk to the children if they were returned to mother’s custody is supported by substantial evidence.

Disposition

The writ petition is denied on the merits. This opinion is final forthwith as to this court. (Cal. Rules of Court, rule 24(b)(3).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

We concur:

COOPER, P.J.

BOLAND, J.

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^[1] All undesignated statutory references are to the Welfare and Institutions Code.

^[2] At the time of detention and throughout most of the dependency proceedings in this case, the father of the two youngest children was incarcerated. He has not petitioned this court for relief. The whereabouts of the father of the mother’s oldest child were never established throughout the juvenile court proceedings in this case. Accordingly, we focus our discussion on the facts relating to mother and the three children.

All references to father and to grandmother are to the father and paternal grandmother, respectively, of Y.H. and A.H., mother’s two youngest children.

^[3] It appears two of the five teenagers residing in grandmother’s home were relatives who had been placed in the home in connection with an unrelated dependency proceeding.

Before his incarceration, father was also residing in grandmother’s home. Mother’s sister also moved into grandmother’s home after the sister’s home became uninhabitable following an electrical fire.

^[4] Regional centers are responsible for coordinating the delivery of services for developmentally disabled persons. (See § 4620; Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 486, 487-488.)

^[5] This report referred only to a single child of mother’s sister. As discussed below, a subsequent report stated that the sister had two children living with her.

^[6] The Department had provided mother with referrals for low-income housing on numerous occasions, but mother never had her name placed on a waiting list.

^[7] At the “team” meeting where mother ultimately agreed to accept family preservation services, grandmother stated that mother was receiving social security benefits because of a learning disability and that mother’s sister was the payee on the checks. Mother’s responses during the team meeting reflected this disability. Mother had difficulty expressing herself and gave minimal responses.

^[8] The written report was provided to the court shortly before the contested 18-month review hearing. Although the report was discussed at the hearing, the written report was never admitted into evidence.

^[9] “Live Scan is an electronic fingerprinting system that provides a vehicle for quickly checking an individual’s criminal background. (See Health & Saf. Code, § 1522.04.)” (Los Angeles County Dept. of Children & Family Services v. Superior Court (2005) 126 Cal.App.4th 144, 149, fn. 2.)

^[10] The court indicated, however, that the children could still be returned to mother at a future date, either in sister’s current home or in a larger home if mother moved to one. The court ordered the Department to provide a report regarding mother’s current housing situation (with sister). The court stated that “if the sister is willing, I don’t know why between the two of them they couldn’t take care of these children.” The court also ordered the Department to “physically take [mother] to regional center to see . . . what services are available to her.”

^[11] While it appears mother is capable of caring for her children’s most elemental needs (she cooks for them and bathes them), there is a real question whether she is capable of dealing with unanticipated situations, especially those requiring immediate and decisive action.