B.R. v. Superior Court CA1/2 ( 2021 )

Filed 1/22/21 B.R. v. Superior Court CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
B.R et al.,
Petitioners,
v.
THE SUPERIOR COURT OF MARIN A161022
COUNTY,
(Marin County Super Ct.
Respondent;
Nos. JV26885A & JV26886A)
MARIN COUNTY DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Real Party in Interest.
Petitioners B.R and T.E. are, respectively, the mother and father of a
boy and girl whose initials are both also T.E (hereafter daughter or son,
collectively the children). The parents are not married, but have been in a
dating relationship and living together during the entire lives of their
children, of whom T.E is the biological father and who was treated by the
court as the presumed father. The daughter was just under three years old
when the children were removed from the home and reunification services
were ordered, and the son was then just under two years of age. The petition
alleged that the children were those described by Welfare and Institutions
1
Code section 300, subdivision (b),1 as they were at substantial risk of serious
physical harm or illness due to the parents’ failure to provide adequate
nutrition and health care and due to mother’s mental illness.
Mother asks us to issue a writ of mandate or prohibition compelling
respondent superior court to vacate its September 17, 2020 finding that
reunification efforts should be terminated because, despite the provision of
reasonable reunification services, mother failed to progress in her case plan.
She asks that we vacate the order terminating reunification services and the
order setting a hearing pursuant to section 366.26. Mother contends the
court erred in failing to apply the proper legal standard at the six-month
review hearing and in finding that she had been provided reasonable
reunification services.
In his separate petition father also maintains termination of
reunification services was an abuse of discretion in that reasonable services
had not been provided. Father also contends the court erred in finding that
he had not complied with the essential elements of his reunification case
plan. He also asks us to reverse the order terminating reunification services
and remand the case for new orders extending the period for reunification
services as to him.
In a case such as this, in which the children are less than three years
old at the time removal and reunification services have been ordered, section
361.5, subdivision (a)(3) requires the court to inform the parent that the
failure to participate regularly in any court-ordered treatment programs or
utilize reunification services may result in a termination of reunification
services after only six months. The purpose of the otherwise inapplicable six-
1 All subsequent statutory references are to the Welfare and
Institutions Code.
2
month limitation “is to give juvenile courts greater flexibility in meeting the
needs of young children, ‘in cases with a poor prognosis for family
reunification (e.g., chronic substance abuse, multiple previous removals,
abandonment, and chronic history of mental illness).’ [Citation.]” (Daria D.
v. Superior Court (1998) 61 Cal.App.4th 606, 611.) The Legislature
apparently felt that “ ‘very young children . . . require a more timely
resolution of a permanent plan because of their vulnerable stage of
development. . . . [G]iven the unique developmental needs of infants and
toddlers, moving to permanency more quickly is critical.’ ” (Id. at p. 612.)
BACKGROUND
In November 2019, the Concord Police Department arrested mother
after she ran into traffic on a six-lane freeway with her children in her arms.2
The police report stated that the boy appeared “extremely malnourished to
the point of starvation” and was either exceptionally dirty or had a serious
skin disorder. Both children were immediately hospitalized.
The following day, the police were informed by the hospital that the boy
was dangerously under nourished and his unusually low sugar level created a
serious medical condition. At the time he was admitted, the son weighed
under 12 pounds, which was in the negative sixth percentile for weight for his
age. Because the IV failed to supply sufficient nutrients, nurses inserted a
peripherally inserted central catheter, or PICC line, as a lifesaving measure.
Hospital physicians determined that the malnutrition of the children was a
“direct result of neglect and malnutrition/dehydration, and could not have
been caused by genetics or trauma” or other natural causes.
2 The arrest was for willful cruelty to a child, inflicting injury upon a
child, battery on a peace officer, vandalism, and obstructing/resisting a public
officer.
3
Father, who was aware mother had been arrested and the children
hospitalized, told an investigating social worker that mother had left home
with the children for about a week. He did not know where they went,
although he did on one occasion speak with mother on the phone. While they
were away, mother’s sister called him and said mother was “out of her mind.”
Father believed mother’s weight loss and erratic conduct may have resulted
from her use of cocaine. During the last four months, she often left with the
children for up to a week without telling him where they were going. Father
believed she could be suffering from schizophrenia or another mental illness
and was concerned about the health of the children. Doctors had told him
and mother on several occasions that their children were dangerously
malnourished, and they had received counseling about how to increase the
children’s weight. Father also disclosed that the daughter had been
hospitalized for a week for malnutrition two years ago when the family was
living in Nevada.
Father entered foster care when he was 10 or 11 and later reunified
with his mother, but his father was “always gone.” He had five siblings, some
of whom suffered from drug addiction, which he said was why he never used
drugs, though he does occasionally smoke marijuana and cigarettes. Father
took some community college courses and had been steadily employed since
high school. At present, he worked for the Marin County Elections
Department and was periodically employed as a public school janitor. Father
had three other children, paid child support for them, and said he was on
good terms with those children and their mothers. He has no criminal
history.
Father met mother about 10 years ago while working at a grocery store
across the street from where she was then living. After the children were
4
born, mother never worked, but stayed home taking care of the children while
he paid the bills. Father acknowledged his need to better understand
mother’s mental illness to learn when she was able to safely care for their
children, and when she was not, and it was necessary for him to intervene to
keep them safe. Father said he did not suffer any mental disorder and was
not a substance abuser. The investigative social worker was able to engage
father in conversation, but was concerned about his seeming inability to see
the connection between his own conduct and the health and well-being of his
children, and his failure to realize the seriousness of their obvious
malnutrition and other serious medical problems.
At the time mother was arrested, father had not seen his children for
three or four weeks and did not know where they were until mother called
after her arrest. Before the events that led to mother’s arrest, he would buy
groceries for the family, but did not feel responsible for feeding the children
and was frustrated that though mother was home all day she never prepared
food for the children. He wanted the children returned to his care, but
admitted he would have to change his behavior by ensuring the children were
fed regularly.
Father’s work hours were cut in March 2020 due to the COVID-19
shelter-in-place orders. It was hard for him financially to support mother
and he wanted her to find employment. However, despite the hardships, he
maintained stable housing throughout the reporting period and consistently
participated in service and visits with his children. He was hopeful his
normal work hours would soon be restored.
Mother was born in Berkeley and grew up in the Bay Area. She is the
middle of three children. She was raised by both parents until her father
died in 1996, at which point she was raised by her maternal grandmother.
5
She lived with the grandmother and 12 other people including siblings and
cousins and was required to help clean up the house and cook. She denied
abuse of any kind. Mother gave birth to a daughter when she was 15, and
that child was raised by her maternal grandmother. She completed high
school through a home study program and left home at 17. She completed
some courses at community college, where she studied small business
administration. Her goal was to open a hair salon or clothing store. She left
the community college to support herself as a cashier at a pizza restaurant
and as a receptionist for a newspaper. She was currently unemployed and
received support from her sister and Social Security.
Mother told a counselor she felt paranoid and claustrophobic all of her
life and that in July 2019, she had been experiencing paranoid thoughts and
auditory hallucinations. Around that time, she began acting erratically;
leaving home with the two children she had with father for long periods of
time, not feeding the children, and not eating much herself. In November
2019, she went to a hospital and was diagnosed with schizophrenia and
prescribed Risperidone, which she did not take. She was in and out of a
hospital in Martinez until transferred to an acute psychiatric facility in
December 2019. Mother’s only criminal history was an arrest for
misdemeanor petty theft in May 2012. She successfully completed diversion
and the case was dismissed.
The investigating social worker reported that mother was able to
engage in normal conversation, but seemed exceedingly paranoid. Mother
appeared to be aware of the severity of her children’s condition, but the social
worker was doubtful mother would be able on her own to come up with and
adhere to a sensible plan to protect her children’s health and safety.
6
On November 8, 2019, the Marin County Department of Health and
Human Services (Department) filed petitions pursuant to section 300,
subdivision (b), alleging that the children were at substantial risk of serious
physical harm or illness due to parents’ failure to provide adequate nutrition
and medical care and mother’s mental illness.
On November 12, 2019, the children were detained and removed from
the family home. The daughter was temporarily placed in foster care and the
son was placed in an acute rehabilitation unit at Children’s Hospital, where
he was fed with a PICC line or a G-tube (a gastrostomy feeding tube) and
received feeding and speech therapy. The court also ordered twice-weekly in-
person visits for the parents while the children were in foster care or
hospitalized.
The detention report described the Department’s serious concerns
about the parents’ inability to appreciate and address the alarming condition
of their children. Despite numerous consultations with physicians and other
health professionals about the malnutrition of their children, which was
obvious from their appearance, the parents failed to follow the advice they
repeatedly received or even to appreciate the severity of their children’s
deteriorating condition.
At the close of the detention hearing, the juvenile court carefully
explained to the parents, as it was required to do by section 361.5 subdivision
(a)(3), that if they did not make substantive progress during the six-month
period that was then commencing, their parental rights might be terminated.
In its January 2, 2020 disposition report, the Department reported that
mother—who had then been released from custody and was on a psychiatric
7
hold3—had been diagnosed with schizophrenia and prescribed anti-psychotic
and other medications, which she was taking. She had been assessed by an
agency affiliated with the Department for therapy, psychiatric services, and
assisted in management of her case plan. Mother welcomed the assistance
and committed to take her medications. Nevertheless, the Department felt
she continued to minimize the danger in which she placed her children and
continued to believe her son’s physical and mental development was normal.
The report emphasized the need for mother to significantly improve her
understanding of her children’s important nutritional and developmental
needs, and demonstrate a willingness to accept the medical assessments and
recommendations of the physicians who examined or treated her children.
The Department felt that without these behavioral changes the children
would continue to be at risk if committed to mother’s care.
As to father, the report stated that he visited his son daily in the
hospital and regularly visited his daughter in the Department’s offices. His
visits were “positive” in that he believed a parenting class would be useful,
and said he wanted to “make sure this never happens again.” Father also
recognized his need to better understand mother’s mental illness to know
when she was unable to safely care for their children and he needed to step in
and help. The Department remained gravely concerned about father’s
consistent failure to intervene in mother’s negligent care despite the
children’s visible malnutrition and physical deterioration. The report also
described its continuing concern that father placed the blame for the
negligent care of the children entirely on mother. Moreover, like mother, he
failed to appreciate either the severity of the children’s prior deterioration or
3The Department had previously filed a jurisdiction report on
December 11, 2019, but because of mother’s psychiatric hold, the matter was
put over for a combined jurisdiction/disposition hearing.
8
his own responsibility to protect them. It was therefore as necessary for
father to increase his knowledge of the nutritional and developmental needs
of the children as it was for mother.
On January 7, 2020, the court found the allegations of the amended
petitions to be true, adjudged the children dependents of the court, ordered
out-of-home placement and reunification services, and set a date for the six-
month review.
In a June 25, 2020 status review report for the six-month review
hearing, the Department recommended termination of reunification services
to both parents chiefly due to their mutual failures to demonstrate an
understanding of the severity of the consequences of their negligence or an
ability to prevent such negligence in the future.
The report described the daughter’s low iron and anemia as improving
due to the efforts of her foster or “resource parents,” but she still suffered
numerous food allergies and sensitivities and was on a non-dairy gluten free
diet. The daughter also suffered fine motor and speech delays and other
developmental difficulties, such as vomiting after eating or crying and
panicking when she saw others eating food. Until June, the daughter would
wake up screaming and crying after personal visits with her father or mother
and the Zoom visits later required by shelter-in-place requirements.
With respect to the son, the status review report stated that he was
diagnosed with severe malnutrition and failure to thrive when admitted to
John Muir Medical Center on November 6, 2019, was dehydrated,
hypoglycemic, had electrolyte abnormalities, poorly controlled atopic
dermatitis, and alopecia. He was discharged from John Muir on December 2,
2019, after placement of a G-tube for feeding under general anesthesia, and
transferred to UCSF Children’s Hospital in Oakland and remained there
9
until January 2020 (all subsequent dates are in that year). He was then
placed in a licensed resource family home with a pediatric nurse practitioner
who coordinated and oversaw his daily tubal feeding. During this period, he
received treatment from numerous health care providers for
gastroenterological, hematological, and dermatological problems.
On September 17, after a three-day contested six-month review hearing
at which the court heard the testimony of numerous witnesses, the court
found that the Department “has complied with the case plan by making
reasonable efforts to return the child[ren] to a safe home through the
provision of reasonable services designed to aid in overcoming the problems
that led to the initial removal and continued custody of the child[ren] and by
making reasonable efforts to complete whatever steps are necessary to
finalize the permanent placement of the child[ren]; (2) neither mother nor
father had “made minimal progress toward alleviating or mitigating the
causes necessitating placement”; (3) “by a preponderance of the evidence, the
return of the child[ren] to his or her parent[s] . . . would create a substantial
risk of detriment to the safety, protection or emotional well-being of the
child[ren]”; (4) “[b]y clear and convincing evidence the mother and presumed
father failed to participate regularly and make substantive progress in a
court-ordered treatment plan”; and (5) the mother and presumed father are
each “unable to make decisions regarding the child[ren’s] needs for medical,
surgical, dental or other remedial care.”
After the court explained at length the reasons for its determinations,
it scheduled a hearing pursuant to section 366.26 to select the most
appropriate permanent plan for the children.
Mother’s and father’s writ petitions seeking relief from the September
17 orders were both timely filed.
10
DISCUSSION
Mother contends the juvenile court erred by failing to apply the proper
legal standard at the six-month review hearing and determining that she
received adequate reunification services. Father claims that the court erred
by finding that he failed to comply with the requirements of his reunification
case plan and that he received reasonable reunification services.4
The Standard of Review
Section 366.21 provides that where, as in this case, “the child was
under three years of age on the date of the initial removal . . . and the court
finds by clear and convincing evidence that the parent failed to participate
4 Father’s claim that he participated in the development of the
reunification plan and complied with its requirements seems to be based on
the belief that the court found he did not participate in the court-ordered
treatment programs described in the reunification case plan. It is true that
the September 17 order states that “By clear and convincing evidence mother
and presumed father failed to participate regularly and make substantive
progress in a court-ordered treatment plan.” (Italics added.) However, in the
course of explaining its ruling, the court asked the rhetorical question “did
the parents participate in the treatment programs specified by the
reunification plan,” and answered: “Yes.” The court observed that “their
participation was not perfect, but perfection is not required. They did
participate.” Finding that “[t]he mother and presumed father were actively
involved in the case plan development,” the court ordered the setting of a
section 366.26 hearing on the sole ground that the parents “made minimal
progress toward alleviating or mitigating the causes necessitating
placement.” Under section 366.21, subdivision (e)(3), the court may schedule
a 366.26 hearing if the parents of a child under three years of age “failed to
participate regularly and make substantive progress in a court-ordered
treatment plan.” (Italics added.) Therefore, a child can be removed from
home and a section 366.26 hearing scheduled solely on the basis of the
parents’ failure to make “substantive progress” in eliminating the factors that
resulted in removal of the children, as was done here.
Thus, father really advances only one pertinent contention: that he
was not provided reasonable reunification services, a claim also advanced by
mother.
11
regularly and make substantive progress in a court-ordered treatment plan,
the court may schedule a hearing pursuant to Section 366.26 within 120
days,” and that if the court did not make that finding it “shall direct that any
reunification services previously ordered shall continue to be ordered to the
parent” in a specified manner. (§ 366.21, subd. (e)(3), (7).)
Mother’s contention that the court applied the “wrong legal standard”
at the six-month review hearing focuses on the court’s finding that “by clear
and convincing evidence” she failed to “make substantive progress in a court-
ordered treatment plan.” This was error, mother argues, because the court
“did not apply the legal standard for ‘substantive’ progress to the facts of this
case.” This is so, mother says, because since the removal of the children, she
“has made substantive progress towards eliminating the condition that”
caused the removal of the children. As mother states, at the time the
children were removed, mother “was experiencing paranoia, delusions and
had to be involuntarily hospitalized,” but she has had “no further psychiatric
incidents since that time, has been compliant with her medication, . . . has
been attending therapy[,]” and, as a social worker “specifically testified” she
has made “progress in management of (her) mental health symptoms.”
Mother is not, as she puzzlingly seems to be saying, in fact arguing that
in determining whether the parents made substantive progress in a court-
ordered treatment plan the court failed to apply the clear and convincing
evidence standard mandated by section 366.12, subdivision (e)(3), which the
court explicitly did. Mother is in reality challenging the adequacy of the
evidence to support the finding that she failed to make “substantive
progress.”
Elsewhere in her petition, mother asserts that the “crux of the legal
disagreement” in this case is that the Department “required mother to show
12
that she was able to parent and because they asserted that she could not
articulate how she would do this, they recommended terminating her
services. . . . However, the law does not require parents to show an ability to
parent at the six-month review, rather, it requires a showing of participation
and substantial progress towards eliminating the conditions that led to
removal,” citing subdivision (e) of section 366.21. As we shall explain, this is
clearly not the case.
This appeal essentially presents two questions: whether the parents
failed to make “substantive progress” in their court-ordered treatment plans,
as required by section 366, subdivision (e)(3), and whether “reasonable
services that were designed to aid the parent[s] . . . in overcoming the
problems that led to the initial removal and the continued custody of the
child have been offered to the parent[s],” as mandated by section 366.21,
subdivision (e)(8).
In a dependency case like this one, we stated that an appellate court is
obliged to view the evidence “most favorably to the Agency, which is the
prevailing party, and indulge all legitimate and reasonable inferences to
uphold the trial court’s order. [Citations.] If there is substantial evidence
supporting the judgment, the court’s order must be affirmed. [Citation.]
‘ “ ‘Substantial evidence’ ” is evidence of ponderable legal significance,
evidence that is reasonable, credible and of solid value. [Citation.]” ’
[Citation.] ‘ “Inferences may constitute substantial evidence, but they must
be the product of logic and reason. Speculation or conjecture alone is not
substantial evidence.” ’ ” (Patricia W. v. Superior Court (2016) 244
Cal.App.4th 397, 419–420 (Patricia W.).)
Our Supreme Court has subsequently adjusted the nature of appellate
evaluation of the sufficiency of evidence in support of a factual finding when
13
the clear and convincing standard of proof applied to the trial court, as
mandated in this case by section 366.21, subdivision (e)(3). The recent
opinion in In re Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011–1012
(O.B.) holds that “an appellate court must account for the clear and
convincing standard of proof when addressing a claim that the evidence does
not support a finding under this standard. When reviewing a finding that a
fact has been proved by clear and convincing evidence, the question before
the appellate court is whether the record as a whole contains substantial
evidence from which a reasonable fact finder could have found it highly
probable that the fact was true. In conducting its review, the court must
view the record in the light most favorable to the prevailing party below and
give appropriate deference to how the trier of fact may have evaluated the
credibility of witnesses, resolved conflicts in the evidence, and drawn
reasonable inferences from the evidence.” In other words, the clear and
convincing evidence standard does not disappear on appeal.
We, of course, adopt the standard of review prescribed by our Supreme
Court in O.B.
The Court Correctly Found that Parents Failed to Make
Substantive Progress in the Court-Ordered Treatment Plans.
As we have said, mother’s claim that she was making “substantive
progress” in her court-ordered treatment plan is based on the facts that she is
no longer paranoid and delusional, has experienced no further psychotic
episodes, regularly takes the medications prescribed for her, has been
benefitting from mental health treatment, and is following her doctors’
recommendations. She maintains that these achievements eliminated the
conditions that led to removal of her children.
The Department acknowledges mother has been taking her
medications and is no longer experiencing psychotic episodes, but believes
14
she, and to a lesser extent father, remain unable to appreciate both the
gravity of their children’s medical conditions and their own inability to
satisfy their children’s unusually high needs.
The fact that the parents satisfactorily participated in the treatment
programs that comprised their case plans is not dispositive. As we said in In
re Dustin R. (1997) 54 Cal.App.4th 1131, 1143, “simply complying with the
reunification plan by attending the required therapy sessions and visiting the
children is to be considered by the court; but it is not determinative. The
court must also consider the parents’ progress and their capacity to meet the
objectives of the plan; otherwise the reasons for removing the children out-of-
home will not have been ameliorated.”
The lengthy status review report for the six-month hearing, which was
prepared by Julie Nigro, the primary social worker assigned parents,
specifically addressed the question whether the parents had made
“substantive progress” in their treatment plans and concluded, for a variety
of reasons, that they did not.
The chief reason for this conclusion was that the parents “lack of
insight or understanding includes an inability to describe why the children
were brought into care, how they are doing now, or what they will need in the
future. Throughout the reporting period, [parents] claimed that the [son] was
walking and talking before his hospitalization, which his medical providers
say is impossible.” Additionally, despite the efforts of numerous social
workers, counselors, and therapists to inform the parents of the severity of
their children’s condition, mother was “unable to describe . . . the extent of
the children’s medical needs when they came into care or the reason for their
hospitalizations.” After Nigro conveyed to mother the continuing concerns
about her and father’s inability to explain their children’s past, current, or
15
future needs, “[mother] emailed both of the resource parents stating, ‘Hi I’m
trying to put together a plan so I have some questions what are [the
children’s] medical need; what are his developmental need, what are his
nutritional needs. What the schedule is [sic] have for him.’ Despite both
resource parents responding to [mother] with lists of daily routines, medical
providers, and other information [mother] was still unable to name anything
beyond that the children need solid food and [the son] has a G-tube during
the next meeting with [Nigro].”
Both children had had serious eating disorders, arising from the fact
that they were starved during the period before mother was arrested. The
girl could not easily hold food down and vomited frequently, and the infant
son was hospitalized and fed tubally for months after mother’s arrest.
According to Nigro’s report, the parents remained confused about appropriate
food throughout the reunification period. “For example, after going over a list
that [the son’s] resource parent gave [Nigro] and the parents about the foods
[the son] can eat, [Nigro] asked [mother], ‘so what can [her son] eat?’
[Mother] replied that he can only eat chicken and maybe mashed potatoes.
She later said he cannot eat mashed potatoes because there is coconut in
mashed potatoes and [her son] is allergic to coconut. She then repeated that
all he can eat is chicken. Despite the list stating that food must be cut into
pieces that can be swallowed, [mother] stated that [her son] could eat chicken
the size of a chicken nugget and full carrot sticks. This all happened
immediately after going over the instructions in detail.”
Even after repeated interventions by Nigro and several other social
workers and therapists, the parents “continued to struggle understanding
what food the children could and could not eat during the visits” with them at
16
the Department.5 For this reason, the Department’s public health nurse
limited the parents’ ability to bring food to their visits with the children.
Nevertheless, because father felt the children were not getting the food they
liked at their placements, the parents started giving the children
inappropriate food they could take back to eat at their placements. On one
occasion, the parents sent the daughter home with a peanut butter candy
despite knowledge of her peanut allergy.
The report for the six-month hearing also described mother’s failure to
comply with the mental health treatment prescribed in her treatment plan,
and to appreciate the importance of this treatment, because it related to her
ability to adequately attend to the needs of her children. According to Liz
McCann, mother’s mental health therapist, mother’s participation and
attendance at appointments with the Marin IMPACT team6 had become
“irregular” and she was uncommunicative with McCann and other members
of the team. The report quotes McCann’s assessment that mother “can state
that she ‘needs to take her meds,’ but she remains unable to say why or
discuss her mental health symptoms in any way beyond that. [McCann] feels
that [mother] still needs a lot of help to ‘understand her mental health and
its impact on her functioning.’ To date, [mother] has not been able to display
an awareness about her mental health symptoms or develop a plan on how to
manage her mental health symptoms moving forward.”
5 The record does not explain why all or some of the parents’ visits were
conducted at a place designated by the Department rather than at the homes
of the resource parents at which they were placed.
6That is, the Integrated Multi-Service Partnership Assertive
Community Treatment (IMPACT) Full Service Partnership, which is
apparently affiliated with the Marin County Behavioral Health and Recovery
Services organization.
17
Acknowledging that the parents “showed a lot of commitment to this
case plan goal and regularly showed up to services,” the report stated mother
“was unable to demonstrate an increase in awareness or knowledge of the
children’s physical, emotional, medical, and educational needs by
participating in these services.” Despite attending the Positive Parenting in
Challenging Times class for several months, “neither [mother] or [father]
were ever able to name a single thing that they learned there. When asked
what they [discussed] in class, [mother] never responded and [father] would
state that there was no way he could learn in class because the other parents
in the class talk about teenagers.” Though encouraged to ask questions,
especially to the parents of teenagers because they might remember how to
take care of preschool-age children, “the parents were unable to do this.”
At the three-day contested hearing that commenced on September 2,
2020, Julie Nigro was the Department’s first witness.
Asked “what most concerns the Department about the lack of
behavioral progress in this case that you have documented,” Nigro answered
as follows: “In this case the parents were very good about service compliance.
They were able to show up at many scheduled meetings and appointments.
They showed up on time; unfortunately they weren’t able to demonstrate that
they had a solid understanding of the children’s medical, developmental,
emotional, and other needs, which in this case are very vast. [¶] . . . . [B]oth
parents were not able to demonstrate that they could meet their children’s
needs at this moment by even explaining what they are or how to meet
them . . . [;] unfortunately, there was a lack of the parents’ ability to develop
a safety plan that could keep the children safe in the future. [¶] And so
without that demonstrated behavioral change, without the Department
seeing that the parents had an understanding and could actively apply those
18
things, the Department couldn’t recommend a return because there hadn’t
been any behavioral change. There had only been [reunification] service
compliance in this case.”
The Department also had “concerns about the parents’ ability to meet
services when new things present themselves, when there are new challenges
or new struggles,” such as dealing with the problem of preventing infection by
COVID-19. “The parents have been very successful at coming to things that
are already in place—services and routines that are already in place; but
when things change or new services are added, the parents have
demonstrated a struggle, which is a concern in this case given that both
children have a very high level of needs. So it raises the concern that if the
children have any needs that present themselves, will the parents be able to
respond in an appropriate amount of time.”
According to Nigro, “the Department, myself, my superior, and
members of our team have assessed that it is very highly unlikely that
additional services would result in the Department feeling that the children
can safely return home.” Nigro pointed out that “the parents were offered
many services including many intensive [ones] such as wraparound and the
IMPACT team, but also a wide variety of other services. They went to a
parenting support group. They had a wraparound clinician. They had team
meetings. . . . [Father] was referred to individual sessions with a therapist.
[Mother] had therapeutic services. There were many different types of
services. [¶] Unfortunately, all service providers as well as the Department’s
individual assessment has been that the parents haven’t been able to,
unfortunately, absorb the information that was presented to them and that
those—vast array of services as well as to be able to even so much as name
the children’s needs, or how they could safely meet them in the future.”
19
Dr. Dana Oertel, a psychologist employed full time at Napa State
Hospital who also maintains a private practice specializing in child and
family forensic issues, testified for the mother. Dr. Oertel testified that the
psychological evaluations of mother relied upon by the Department were
inadequate because they did not rest on its own investigation of her current
mental condition, but on the assessments of others that she was
schizophrenic, and at least one psychological evaluation was untimely.
Leticia McCoy, who also testified for mother, facilitated a class in “positive
parenting” that mother attended and testified that she “made a lot of
progress” in that class, displayed insight into her situation, and was
committed to improving her parenting skills.
Mother did not testify. Father’s very brief testimony was limited to his
personal history and present and past employment.
On September 17, after all of the testimony was received, the presiding
judge, the Honorable Beverly K. Wood, provided a lengthy and very thorough
explanation of the reasons for her decision to terminate reunification services
and schedule a permanent planning hearing.
After addressing several preliminary matters, Judge Wood turned to
the main issue before us. Positing the rhetorical question: “Did the parents
make substantive progress in the case plan?” Judge Wood answered in this
way:
“I want to say that these parents have tried. They’ve attended classes,
meetings, and visits. They love their children. I believe they really do.
“And I’m—but we are now 10 months from detention. The testimony
from the social worker and the providers indicate that, despite the
participation, these parents are not able to absorb the information, and
there’s no evidence that they understood the issues.
20
“There was testimony that information is provided repeatedly. There
was testimony that minor behavioral changes might take place temporarily,
but devolve into old behaviors or asking the same questions time and again.
“When questioned about the children’s needs, the parents were unable
to articulate. Does that mean that they don’t understand? I mean, counsel
for the parents makes a good point. Just because somebody can’t articulate
something, does that mean they don’t understand?”
Judge Wood agreed that “[m]other has insight into having a mental
illness,” but found “she has not been able to expand or explain why and how
that affects her parenting.”
In the view of Judge Wood, the parents’ participation in reunification
programs did not alter the fact that “these parents are not able to absorb the
information, and there’s no evidence that they understood the issues.”
Judge Wood allowed that “father’s failure to observe and address the
alarming and severe malnutrition of the children is less clear” than that of
mother. On the other hand, “father was present in the household, and, while
mother would often disappear for periods of time, the condition of the
children was chronic, not situational; and, therefore, easily observable over a
significant length of time. [¶] Father appears to have minimized mother’s
mental health issues and the condition of the children.” To address these
issues, the court observed, mental health and parenting services were
provided father as well as mother.
The court also discussed the testimony of Letitia McCoy, the witness
mother relied upon most heavily. McCoy was unsure whether her 12-week
class covered the subject of nutrition, but said that if it did “it was very
briefly.”
21
McCoy had testified that mother was “a little quiet at times,” but “very
conscientious,” and had “the ability to learn from the class.” Asked whether
“she made any progress in the class” she testified that in the beginning she
was pretty quiet. But afterwards, she became very engaging with other
parents and sharing information, asking more questions. Asked whether any
questions she asked during class “displayed any insight?” McCoy responded:
“Yes. It appeared she had a great amount of insight, because she had visits
with her children, and she would come back and share information that was
relative to the subject matter that we had from the previous week.” McCoy
also testified that she provided her students her cell phone number and urged
them to call her if they wanted information, and she had phone conversations
with mother. On one occasion, mother phoned McCoy to ask for information
about nutrition and McCoy said she would get it for her. Mother called her
on the phone because “she didn’t feel comfortable sharing” her interest in
nutrition with her classmates, and wanted to discuss it with McCoy privately.
McCoy stated that she had never seen mother interact with either of her
children, and indicated she was not very familiar with her personal history.
McCoy said nothing on direct about father, who was also a student in
her class, but said father attended only about 6 of her 12-class sessions.
In her ruling from the bench, Judge Wood noted that McCoy “was very
supportive of mother,” but her class did not address the crucial issue of
nutrition in any depth, and McCoy “was not even aware nutrition was an
issue for mother until right before the hearing.” Although students were
encouraged to ask questions in the class on matters of concern to them for
public discussion, neither parent ever brought up the issue of nutrition in the
parenting class. Judge Wood felt mother’s unwillingness to engage in public
22
discussion of her biggest reunification problem “further demonstrates that
mother just does not understand or make the necessary connections.”
The gist of Judge Wood’s analysis seems to us much the same as that of
the trial judge that we found persuasive in In re Dustin R., supra, 54
Cal.App.4th 1131. In that case, the juvenile court found a substantial risk of
detriment to the child not because of the parents failure to complete the
reunification plan, which the mother was close to completing, but the finding
of a psychologist’s report to the Department “ ‘that the parents have a very
limited awareness of both the emotional and physical needs of their children
and they do not recognize how their past behavior and maltreatment of their
children has influenced the children’s development; and, without that
understanding and with the inability to clearly see the situation, that it
would be detrimental to return these children.’ ” (Id. at p. 1142.)
Because the same can be said of the court’s ruling in this case, we shall
find the court’s finding, by clear and convincing evidence, that parents failed
to make “substantive progress” in meeting their court-ordered treatment
plans is supported by substantial evidence. (See O.B., supra, 9 Cal.5th at
pp. 1011–1012.)
Petitioners Were Provided Reasonable Reunification Services.
The reunification services an agency is required to provide must be
“ ‘ “specifically tailored to fit the circumstances of each family” ’ ” and
“ ‘ “designed to eliminate those conditions which led to the juvenile court’s
jurisdictional finding. . . .” ’ ” (In re K.C. (2012) 212 Cal.App.4th 323, 329.)
Specifically, the record must show the “ ‘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 [when]
23
compliance proved difficult. . . .” ’ ” (Id. at pp. 329–330.) The adequacy of the
plan and the agency’s services are adjudged according to the specific
circumstances of each case, and “ ‘ the effort must be made to provide
reasonable reunification services in spite of the difficulties in doing so or the
prospects of success.’ ” (Id. at p. 329.)
Parents both claim the Department failed to provide adequate
reunification services in three ways: (1) an inadequate and untimely
psychological evaluation; (2) failure to provide education regarding nutrition,
and (3) failure to provide in person visitation so that the mother could show,
implement and practice what she had learned through her services while
interacting with her children.
The juvenile court found, and the parties appear to agree, that the
problems leading to the loss of custody in this case were mother’s mental
illness (which gradually came under control as a result of mother’s
medications), father’s minimization of that illness, and—most significantly—
both parents’ failure to respond to the counseling they received about how to
deal with the children’s eating disorders.
As we have explained, the paramount problem was parental failure to
satisfy the basic nutritional needs of the children, which was the central
focus of almost all of the reunification services provided in this case,
including the mental health services that approached mother’s difficulty
meeting her children’s nutritional needs from that perspective, which was
reasonable.
The issue of nutrition appears not to have been raised in McCoy’s
parenting class because that “drop-in” class was designed as a forum at which
parents specified the subjects discussed by questions relating to the problems
they were experiencing, which they were encouraged and expected to raise as
24
issues for discussion. Evidently, none of the other parents in McCoy’s class
confronted the nutritional problems in feeding very young children and the
parents in this case, to whom it was the central problem, inexplicably failed
to ever raise the issue.
Abundant evidence supports Judge Wood’s finding that the services
provided by the Department were reasonably designed and adequate to
remedy the mental health and nutritional problems that beleaguered
parents.
The July 2020 status review plan identified the 28 distinct services that
it provided parents during the reporting period, which included numerous
meetings between counselors and clinicians and the parents, individually and
together. The Judge singled out the IMPACT team, which she described as
“the highest level of intensive outpatient help designed for parents with
mental health issues.” The team included a case manager, health and mental
health therapists for each parent, counselors expert in finding available
social services, and a nurse practitioner. These service providers were almost
always available to parents, in addition to the weekly therapy scheduled for
them. In addition, “social workers provided regular child and family
meetings held to review the case plan goals, decide what was working well
and what wasn’t.” The public health nurse who was part of the team that
met with parents in this case discussed “toddler nutrition.”
Kristin Lamping, the Department’s mental health practitioner,
regularly conducted therapeutic meetings with parents and her efforts also
focused on nutrition and “portion control.” She provided the parents “plates,
handouts, and real-time coaching about appropriate feeding for [the
daughter]” given her allergies and eating disorders. The resource parent the
Department selected for the son was a pediatric nurse practitioner who was
25
present during many of the parents’ visits and provided help as to how the
son needed to be fed, and his complex medical needs handled.
Julie Nigro, the primary social worker, met regularly with the parents
and also focused on nutritional issues, which the Department quickly realized
was most important.
Lamping, the mental health practitioner, also provided
“psychoeducational services” for father regarding his need to better
understand mother’s mental health issues and the need for him to assist in
meeting the needs of their children. Judge Wood also noted that the parents
“characterological deficits” were addressed by tailored sessions with Betty
Russell, the intensive teams, and the more generic parenting class, run by
Letitia McCoy and Michelle Kemp.
In determining whether the reunification services parents received
were tailored to their needs and adequate, Judge Wood reviewed our opinion
in Patricia W., supra, 244 Cal.App.4th 397, which parents relied upon. In
that case, we held there was insufficient evidence that adequate reunification
services were provided either parent. The problem that led to the child’s
detention was the mother’s failure to properly take her own medication, and
the failure of the agency to diagnose mother’s mental illness and her
medication needs as part of a case plan, much less help the parents ascertain
whether and how they could more effectively manage and monitor the
mother’s medication to avoid another relapse. While the agency obtained
court approval for psychiatric examinations of the mother, it did so only as a
means of potentially avoiding the need to provide reunification services due
to her mental illness. The only evidence of the results of psychiatric
examinations of the mother were several sentences in a social worker’s report
that shed little or no light on the examining psychologists’ conclusions or the
26
mother’s condition. The mother had a treating psychiatrist, but that person
was not called as a witness. (Id. at p. 401.)
Judge Wood noted that the situation in Patricia W. was similar to this
case in that the parents challenged the sufficiency of the reasonable services
provided, but she concluded—correctly—that the services provided in that
case were “far short of the intensive services provided to mother and father
here.” Moreover, unlike the mother in Patricia W, the mother in this case
was regularly taking her prescribed medications for an admitted mental
illness and there was no reason to believe she would not continue to do so;
her mental illness was therefore not as central to this case as it was in
Patricia W.
The parents also rely on Patricia W. for support of their claim,
buttressed by the testimony of Dr. Oertel, that the Department’s
psychological evaluation of mother was inadequate and untimely.
Acknowledging that the Department required mother to undergo a
psychological evaluation as a means of identifying the appropriate
reunification services, mother claims that (1) Julie Nigro, the social worker
who developed the case plan “is not an expert in schizophrenia or mother’s
particular mental health needs and diagnosis, even if aware of that
diagnosis” and (2) the evaluation of mother by Dr. Shelley was not sought
until March 2020, and not provided to the reunification team until May or
June, when the reunification process was already well underway, and
therefore played no meaningful role in the development of the parents’ case
plan. The asserted untimeliness of the psychological evaluation of mother is
wholly unlike the problem in Patricia W. In that case, there was no clear
diagnosis of the mental condition of the mother and father at the outset, the
agency never identified the mental illness, and the psychologists who
27
evaluated the mother did not testify; nor did any therapist, clinician, or
mental health professional testify at any of the hearings in the case.
(Patricia W., supra, 244 Cal.App.4th at pp. 422–423.) A judge suggested a
psychological evaluation of the father in Patricia W. yet “there [was] no
evidence father received a mental health evaluation thereafter or that the
Agency sought to obtain one.” (Id. at p. 428.)
In the present case, there never was any significant uncertainty about
the diagnosis of mother, nor any claim that she was not mentally ill or
schizophrenic. Both parents disclosed that mother had recently been
diagnosed in Nevada as suffering from schizophrenia, neither ever suggested
she suffered a different mental disorder, and Dr. Shelley apparently
confirmed mother’s schizophrenia. Moreover, the Department quickly
realized and closely monitored the connection between mother’s
schizophrenia and her ability to safely parent her children, most specifically
her ability to properly feed them.
Julie Nigro testified that at the outset of the reunification period
mother’s mental health was closely monitored by the psychiatrist and mental
health therapists on the IMPACT team. Liz McCann, met weekly with
mother and evaluated her mental health, which was also evaluated by
Dr. Shelley.7 The IMPACT team also included a nurse practitioner who
ensured that she consistently took her medications, which were over time
having a salutary effect. Kristin Lamping also made weekly 90-minute
therapeutic visits to mother. The purpose of these visits, she testified, was to
determine “possible mental health concerns of either a parent or a child to
see if there are any safety concerns, to see if there is anything to worry about”
7Father also participated in a psychological evaluation, administered
by Dr. Main.
28
and “also to look more carefully at the interaction of the children and the
parents.”
Lamping focused at first on the effect, if any, of mother’s mental illness
on her interactions with the children, but it soon became clear that the more
immediate problem was “the parents’ having a tendency to want to overfeed
the children either by bringing a large quantity of food, but also not
monitoring the amount of food the children were consuming, in particular
[the daughter].”8 Lamping’s interventions with mother included speaking
with the parents “about portion control and appropriate portion sizes for the
[children’s] age. I provided small—like dessert-size paper plates . . . rather
than giving [the daughter] the entire container with food. I provided
handouts regarding proportion size and nutrition for toddlers, and I spoke to
them about some psycho-education around why [the daughter] might have a
tendency to want to eat as much as she was eating due to not having enough
food when she was with her parents.” Asked whether she observed any
improvements on these issues by either parent, Lamping answered, “No.
They continued to need prompting for every visit.”
Lamping’s testimony regarding the shift of concern from mother’s
mental health, which was increasingly under control, to her parenting skills,
strongly suggests that the delay of several months in the receipt of the
psychological evaluations of mother were of little practical importance.
Finally, unlike Patricia W., in which psychological evaluations of the
parents were never sought by the agency, they were sought and produced in
8It appears that during some of Lamping’s early therapeutic visits, the
son was being fed tubally in a hospital or by a resource parent who was a
pediatric nurse, which is seemingly why Lamping’s testimony focused on the
feeding of the daughter.
29
this case, albeit two or three months late, and the IMPACT team
immediately assessed and monitored mother’s mental health.
In the context of the considerable information about mother’s admitted
schizophrenia collected and documented by the reunification team, the
defects in Dr. Shelley’s evaluation of mother’s mental health testified to by
Dr. Oertel are relatively insignificant.
Reunification services need not be perfect. (Elijah R. v. Superior Court
(1998) 66 Cal.App.4th 965, 969.) The reunification services provided here
“ ‘identified the problems leading to the loss of custody, offered services
designed to remedy those problems, maintained reasonable contact with the
parents during the course of the service plan, and made reasonable efforts to
assist the parents in areas where compliance proved difficult.’ ” (In re Alvin
R. (2003) 108 Cal.App.4th 962, 972–973, quoting In re Riva M. (1991) 235
Cal.App.3d 403, 414.)
DISPOSITION
The record in this case contains substantial evidence from which a
reasonable factfinder could find it highly probable parents failed to make
“substantive progress” in eliminating the factors leading to the removal of
their children, and that parents received reasonable reunification services.
(See O.B., supra, 9 Cal.5th at p. 1011.)
Viewing the record in the light most favorable to the prevailing party
below and giving appropriate deference to how the trier of fact evaluated the
credibility of witnesses, resolved conflicts in the evidence, and drew
reasonable inferences from the evidence, as we must (O.B., supra, 9 Cal.5th
at pp. 1011–1012.), we have no difficulty affirming the juvenile court’s order
of January 7, 2020.
30
The petition for extraordinary writ is denied on the merits. Our stay of
the section 366.26 hearing is dissolved. Our decision is final as to this court
immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
31
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
B.R. et al. v. Marin County Superior Court; Marin County Department of
Health and Human Services, RPI (A161022)
32