In re Rebecca A.

Filed 12/1/05 In re Rebecca A. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re REBECCA A. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY DEPARTMENT OF CHILDREN’S SERVICES, Plaintiff and Respondent, v. DEBRA S., Defendant and Appellant.	E037588 (Super.Ct.No. J188063, J188064 & J188065) OPINION

APPEAL from the Superior Court of San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Craig E. Arthur and Cheryl A. Geyerman, under appointments by the Court of Appeal, for Defendant and Appellant.

Ronald D. Reitz, County Counsel, and Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.

John L. Dodd, under appointment by the Court of Appeal, for Minors.

Debra S. (mother) appeals from findings and orders made at a contested 18-month review hearing under Welfare and Institutions Code^[1] section 366.22. Mother contends that the finding that it would be detrimental to return minors Brian A. and Rebecca A. to her care and custody was not supported by substantial evidence, and the court erred in reducing visitation. We find no error, and we affirm.^[2]

FACTS AND PROCEDURAL BACKGROUND

In April 2003, the San Bernardino County Department of Children’s Services (Department) filed petitions under section 300 alleging that mother’s children^[3] were at risk of physical or emotional harm due to parental neglect and abuse. The detention report stated that a community member had found Brian wandering in a vacant lot two or three miles from his home at around 6:30 in the morning on April 24, 2003. Mother did not report him missing until around 9:00 a.m. He told the police he had spent the night in the vacant lot in a “motor home” he had built for himself.

When the police took him home, mother reported that he had run away from her while she was walking him to the school bus. The bus had left without him, and mother thought he had run to school. She had called the school around 9:00 a.m. to find out if he had made it to school, but she was told he was not there. She denied he had been out of the house all night.

The house was dirty and cluttered. Francisco was in a bedroom smoking cigarettes; there were beer cans and alcohol bottles on a table in the room. Mother and her boyfriend, the younger children’s father, George A.,^[4] each denied buying the alcohol and cigarettes; each said the other had bought them. George stated that Francisco had gotten James drunk and that James had vomited all night. Francisco admitted this was true. Teresa said that George had sexually abused her and Kimberly. Teresa said she had told mother about the sexual abuse, but mother had questioned whether it had happened. Kimberly was missing when the other children were detained, and the police learned she was pregnant and living with her adult boyfriend. The police arrested mother and George.

At the detention hearing, the juvenile court removed the children from parents’ care and custody and ordered visitation.

The jurisdiction/disposition report stated that Brian showed developmental delays and below-average fine motor skills. He also showed signs of reactive attachment disorder and hyperactivity. Rebecca, who had been born prematurely, had a heart problem and had had a pacemaker implanted. She functioned at the level of a three year old.

Mother visited the children weekly; the social worker described the visits as chaotic. The children would scream, run around, and touch each other inappropriately, but mother failed to correct them. Mother continually complained about the Department, although she had been warned not to discuss the matter with the children.

A first addendum report stated that Francisco had run away from his group home before the jurisdictional hearing, and the police had mistakenly returned him to parents. When the police discovered the mistake and returned to pick him up, parents helped Francisco escape through a window. Parents were arrested for resisting arrest and contributing to the delinquency of a minor. Meanwhile, Francisco remained at large.

Dr. Lake, a psychologist, assessed Brian with attention deficit hyperactivity disorder (ADHD) and recommended a medication evaluation by a psychiatrist. Dr. Lake believed that Rebecca had signs of autism as well as moderate to severe mental retardation and recommended she be sent to a neuropsychologist. Dr. Lake stated her opinion that continued visitation with mother would be detrimental to the children, and she recommended discontinuing visitation until appropriate interventions took place to prevent ongoing emotional damage. She further recommended that mother undergo a psychological evaluation.

A second addendum report dated July 18, 2003, stated that mother had refused to accept responsibility for her problems and declined services that were offered. The social worker had arranged for the three younger children to visit mother separately from the older children, and the visits had become less chaotic. Meanwhile, Teresa had turned 18 and had been released from the dependency, and she was again living with mother.

At the jurisdictional hearing, the court removed the children from parents’ custody and ordered reunification services and weekly supervised visitation.

The report prepared for the six-month review hearing recommended that James, Brian, and Rebecca remain in foster placement and that further reunification services be provided. The social worker stated that mother was being more cooperative and less manipulative. Mother was diagnosed with mild to moderate obsessive compulsiveness and narcissistic features. She also suffered from diabetes and lupus, and she was undergoing counseling to deal with issues of parental neglect, sexual abuse, and George’s recent suicide. She completed a parenting class and was making good progress in her case plan.

At the six-month hearing in January 2004, the court returned Kimberly to mother’s care under a family maintenance plan but continued the younger children in out-of-home care. The court found that mother’s progress had been minimal, and the court continued reunification services.

In March 2004, Brian was returned to mother’s care under a family maintenance plan; however, he was redetained in July 2004 after a social worker found him in a busy intersection wearing only jeans, one sock, and no shoes. He had several apparent cigarette burns on his arm and marks on his back that he attributed to mother’s pushing him down on the street. He had a cigarette lighter, rolling papers, and a baggie of tobacco. He said that mother had hit him with a coat hanger. While in the police car, he stated several times he wanted to kill himself, and he wrapped the shoulder strap of the seat belt around his neck.

Mother denied knowledge of the marks on Brian’s body, but later admitted she and her daughter had “manhandled” him when trying to get a cigarette lighter away from him. She said he might have received the marks on his body when he climbed out the window. She said that Brian had been gone when she woke up that morning, and she had asked his siblings, who were there for a visit, to look for him, but no one did. The home was disorganized. Brian’s room had no clothing or toys, and the window was broken and covered with a sheet. Mother was arrested and charged with cruelty to a child. She entered a plea of guilty and was placed on probation. The Department filed a supplemental petition based on the incident.

The report prepared for Rebecca’s 12-month hearing stated that mother was in denial and failed to take responsibility for the children’s detention. She participated in some aspects of her case plan, but she was inconsistent in her attendance at therapy. Rebecca had returned from a visit with mother with bruises; she stated Brian had inflicted them when he pushed her.

Mother’s participation in counseling had been inconsistent, and she had missed more sessions than she attended. She had completed two parenting classes. She had been referred to the STOP program to help with transitioning the children back into her home, but she made excuses as to why she could not participate.

In the August 2004 jurisdictional/disposition report concerning Brian’s supplemental petition, the social worker noted that Brian’s school attendance had been irregular. Mother said she could not get him to go to school when he did not want to go. Mother had not followed through with counseling for Brian and had missed several scheduled visits.

The court gave mother an additional six months of reunification services.

The report prepared for the 18-month review recommended termination of services and a permanent plan of long-term foster care for Rebecca. The report stated that mother had a limited understanding of Rebecca’s medical needs and minimized her condition. The report stated that Rebecca was at a high risk of abuse because of her medically fragile condition and developmental delays. She also required close supervision because she was very friendly and approached anyone.

The 18-month review report also recommended a permanent plan of long-term foster care for Brian and maintenance services for James. Brian had adjusted well to his group home, although he sometimes cried because he missed his mother; the social worker also believed he cried because of his father’s death and his unstable home life. Mother visited Brian, but she was unable to redirect him when his behavior was inappropriate. In December, mother had been admitted to the hospital for treatment of her lupus.

At the 18-month review hearing, Brian’s social worker testified that mother had failed to complete her case plan and had failed to complete her counseling requirement. Despite having completed several parenting classes, mother had to be prompted to interact with the children during visits. The social worker wanted to reduce visitation, although the children enjoyed the visits with mother. The social worker did not believe that mother could provide the structured environment Brian needed or care adequately for Rebecca’s special needs. Rebecca’s social worker testified that mother had missed three visits in December without contacting the Department, and each time, Rebecca had had to wait. The foster mother had reported that Rebecca had behavioral problems because of the missed visits. Rebecca’s social worker did not believe mother could adequately care for Rebecca’s medical condition.

Mother testified she believed she had completed her case plan and that she was capable of caring for her children adequately. She had received special training to deal with Rebecca’s medical needs.

Following the hearing, the court allowed James to remain in mother’s care under a family maintenance program. The court found that mother had failed to finish her case plan and that returning Brian and Rebecca to mother’s care and custody would be detrimental. The court reduced mother’s visitation with Brian and Rebecca to two times per month, but gave the social worker discretion to increase visitation. The court ordered a long-term plan of foster care for Brian and Rebecca.

DISCUSSION

A. Finding of Detriment

The juvenile court found that returning Brian and Rebecca to mother’s care and custody would be detrimental. Mother contends this finding was not supported by substantial evidence.

1. Standard of Review

When an appellant challenges a finding of the juvenile court on the grounds of insufficient evidence, this court must review the evidence in the light most favorable to the juvenile court’s order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We do not reweigh the evidence and substitute our judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

2. Substantial Evidence Supports the Finding of Detriment

The juvenile court’s duties at the 18-month review hearing are set forth in section 366.22, subdivision (a): “The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.”

In addition, “failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (§ 366.22, subd. (a).) The trial court found that “[m]other’s extent of progress which has been made towards alleviating or mitigating the causes necessitating placement has been minimal as described in the social worker’s report.”

The evidence showed that mother failed to complete the counseling component of her reunification plan. The social worker testified that mother had not attended sessions since early December 2003, and before that, her attendance had been sporadic. She was given a referral to the FIX program in August 2004, but she did not enroll until December 2004. She made excuses as to why she could not participate in the STOP program, which would have helped her with the transition of the other children back to her home. Mother believed she needed counseling only as to James’s behavioral issues.

Mother’s reunification plan also required her to accept responsibility for her actions and to parent the children adequately. However, she never accepted responsibility for the children’s removal and continued to blame the Department. In addition, despite having completed two parenting classes, mother continued to have no control over the children – she would not force the children to go to school if they did not want to go; she did not discipline Brian for hitting Rebecca; she could not get Brian to take his medication; she hit Brian with a coat hanger; and she called the police on the children.

Mother contended that her medical problems prevented her from complying with all aspects of her reunification plan. However, mother did not attend a lupus support group to which the social worker referred her, and she refused a referral for dental services. She also failed to follow through with referrals for services for James. Substantial evidence supports a finding that mother failed to make substantive progress on her treatment plan, and such failure is prima facie evidence of detriment. (§ 366.22, subd. (a).)

Other evidence further supports the finding of detriment. Mother had showed an inability to parent the older children adequately. Teresa was in the eighth grade at age 18; Kimberly became pregnant at age 15 and was living with her adult boyfriend; Francisco was arrested for burglary, and James had behavioral problems and difficulties in school. Mother helped Francisco escape when the police arrived to redetain him. Brian was found wandering the streets twice while in mother’s care. Brian and Rebecca returned from visits with mother with unexplained markings on their bodies and with dirty clothing. Mother had allowed her teenaged son to smoke cigarettes and alcohol, and Brian was found with smoking paraphernalia. Mother told the social worker that Brian was one of her “worst children.”

The record shows that Brian exhibited a greater degree of emotional problems while in mother’s care. He once yelled at mother and threw a shoe through a window when mother told him to take his medication. When he was redetained in July 2004, he said he wanted to kill himself, and he wrapped a seatbelt strap around his neck to try to choke himself. He had, however, adjusted well to his group home. Although he cried at times, the social worker believed it was because of his father’s death and his unstable home life as well as because of missing mother.

Finally, the evidence established that Rebecca was a medically fragile child; her medical condition required that she have a hygienic environment and take her medication. However, mother’s home was dirty and disorganized, and Rebecca’s clothing was often dirty after her visits with mother. Rebecca was also developmentally delayed, and she lacked boundaries with strangers. Mother failed to protect Rebecca from Brian’s hitting.

We conclude the juvenile court’s finding of detriment finds ample evidentiary support in the record.

B. Reduction in Visitation

Mother contends the juvenile court erred in reducing her visitation with Brian and Rebecca from weekly visits to twice monthly visits.

1. Standard of Review

We review the juvenile court’s visitation orders under the deferential abuse of discretion standard. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)

2. Visitation Order

The trial court stated that visitation would be twice monthly, and “[m]other needs to contact 24 hours in advance of any visit. If mother does meet with the children and has a track record where she shows up to visits, the department – social worker shall have the authority to liberalize visitation to include more visitations as appropriate.” The court also ordered that weekly sibling visitations would continue.

Section 366.22, subdivision (a) provides, “The court shall continue to permit the parent . . . to visit the child unless it finds that visitation would be detrimental to the child.” The court has the authority to determine the length and frequency of visitation and may impose other conditions or requirements on visitation depending on the particular circumstances. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)

The record shows that in December 2004, mother missed three visits in a row without canceling, and she missed another visit in late January 2005. On each of those occasions, Rebecca had to wait for at least half an hour at the Department’s office, and she then had behavioral problems when mother failed to show up. The children initially enjoyed their visits with mother, but would then play with each other, and mother had to be prompted to interact with them. She also made inappropriate comments about the Department in front of the children, despite being warned not to do so.

The court’s order provides that if mother visits the children consistently every other week, the social worker has discretion to liberalize visitation. We find no abuse of discretion in the visitation order.

DISPOSITION

The juvenile court’s findings and orders are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

KING

J.

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

^[2] In a letter brief, counsel for Brian and Rebecca agrees with the position of respondent and urges affirmation of the orders appealed from.

^[3] Mother has seven children. The petitions were filed as to the oldest six children: Teresa S. (born in June 1985); Kimberly S. (born in September 1986); Francisco S. (born in February 1988); James A. (born in November 1993); Brian A. (born in May 1995); and Rebecca A. (born in August 1996). Mother gave birth to another son, Anthony S., in August 2003, after the current dependency proceedings began; Anthony is not a subject of this appeal.

The notice of appeal lists James, Brian, and Rebecca; however, no contention is raised on appeal concerning James. Therefore, only Brian and Rebecca are subjects of this appeal, and the statement of facts thus generally omits evidence relevant primarily to the proceedings regarding the other children.

In addition, the children’s fathers are not parties to this appeal. George A., the father of James, Brian, and Rebecca, committed suicide in July 2003. The father of the oldest three children does not challenge the findings and orders.

^[4] Mother and George A. are occasionally referred to herein as “parents.”