J.H. v. Superior Court CA4/2

Filed 4/27/23 J.H. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

J.H.,

Petitioner, E080822

v. (Super.Ct.No. SWJ2100304)

THE SUPERIOR COURT OF OPINION
RIVERSIDE COUNTY,

Respondent;

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,

Real Party in Interest.

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Michael J. Rushton,

Judge. Petition denied.

Daniel L. Vinson for Petitioner.

No appearance for Respondent.

1
 Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Catherine E. Rupp,

Deputy County Counsel, for Real Party in Interest.

The juvenile court terminated family reunification services for petitioner J.H.

(mother) and set a Welfare and Institutions Code section 366.26 hearing.1 She seeks an

extraordinary writ, arguing there was insufficient evidence to support the court’s

conclusion that real party in interest Riverside County Department of Public Social

Services (department) provided reasonable services and there was no substantial

probability of return. We deny the petition.

BACKGROUND

Some years before this dependency, mother suffered a brain injury which she

attributes to an assault by G.B.’s father. Possibly because of this, mother is cognitively

impaired, has severe mental health problems, and struggles keeping her anger and

frustration under control, especially concerning her son G.B. (born 2013). These issues

resulted in this dependency action, after mother physically abused G.B. In her writ

petition, she argues that the services the department provided during the dependency

were inadequate to address her issues, and that there was a substantial probability that

G.B. could be returned to her if the department continued providing services.

The dependency began after mother hit G.B. and pulled his ear during a distance

learning class. The department found that G.B. seemed “dirty as if he had not taken a

1 Undesignated statutory references are to the Welfare and Institutions Code.

2
shower i[n] a couple of days.” He appeared below his developmental age range, possibly

with a speech impediment.

Mother “appeared to be challenged cognitively,” and presented as “either having a

mental health issue or a cognitive issue.” Her doctor disclosed that she had (among other

ailments) anxiety and dementia (unspecified type with no behavioral disturbances). She

said she was not taking any medication and was not in therapy.

Mother denied any history of substance abuse, but a urine test was positive for

methamphetamine, as was one a month later. Mother claimed the positive tests were

caused by prescription medication, but her doctor said that none of her prescription

medications were “mind altering” and none would produce a false positive for

methamphetamine.

In June 2021 the department filed a section 300 petition alleging, among other

things, that mother suffered from mental health issues and substance abuse, that she hit

G.B., and that she neglected G.B.’s educational and developmental needs. At the

August 2021 contested jurisdictional and dispositional hearing, the court found the

allegations against mother true. It ordered family maintenance services and a

psychological evaluation for mother.

Between August 2021 and December 2021, mother enrolled in counseling

services and anger management, but not parenting education or substance abuse classes.

Mother also submitted to a psychological evaluation in November 2021. The

evaluating psychologist, Dr. Garett, found mother “showed a great deal of intellectual

3
impairment . . . probably due to a neurocognitive disorder due to brain injury.” He also

found that “her prospect to benefit from psychotherapy is not great,” and that she

“wa[]vers unpredictably in her behaviors . . . and . . . has difficulties controlling her

behavior and temper when talking to her child.” Mother told him that she stopped taking

all medications because her drug tests were positive.

Dr. Garett expressed concern “about [mother’s] ability to show self-control in

coping with her son.” Because of this, he recommended “the Wraparound program or

some behavioral therapist should make a home visit and determine whether, in fact, she is

handling this child in any way which meets an acceptable way of parenting.” He also

expressed concern mother was not taking her medications, which included medications

for depression and for her heart. He agreed these medications should not have caused

false positives in any drug tests, and recommended mother “be sent back to a psychiatrist

and put back on medications, possibly medications for bipolar or psychotic components.”

Finally, he recommended mother receive some form of behavioral management and that

a public health nurse visit her regularly “to see if, in fact, the environment there is

acceptable or manageable.”

In December 2021 a neighbor saw G.B. with a black eye after he was sent home

from school early. The department confirmed G.B. had a black eye as well as multiple

other minor injuries such as cuts, bruises, and at least one mark on his leg which appeared

to be a human bite mark. At least six adults told the social worker G.B. did not have the

black eye when he left school. G.B. was dirty, and mother’s home was cluttered and

4
dirty. Mother was agitated, called the social worker names including a racial slur, had

difficulty following questions, appeared to be under the influence, and refused a drug test.

Mother took G.B. to the hospital at the social worker’s urging. Mother became

belligerent with hospital staff and had to be escorted off premises. G.B. eventually

admitted mother hit him in the eye, bit him on his leg, pinched his ears, and hit him on

the head and leg. Mother was arrested and charged with intentional infliction of

unjustifiable physical pain on a child (Pen. Code, § 273a, subd. (b)).

The department filed a section 387 supplemental petition alleging “mother

continues to have unresolved mental health issues, refuses to drug test, and continues to

utilize inappropriate physical discipline.” The court detained G.B. from mother on

December 22, 2021.

In February 2022 mother had a second psychological evaluation, this time with

Dr. Hicks-Benam. The doctor found mother continued to be cognitively impaired. She

was irritable, hostile, minimally engaged throughout the assessment, and had “an inability

to acknowledge her actions and need for care.” She also “did not appear to understand

her role or responsibilities regarding keeping [G.B.] safe,” lacked insight, and minimized

her behavior, which “increase[d] risk for continued problematic behavior[ ].” The doctor

recommended substance abuse treatment, counseling, a medication consultation, and

parenting classes, as well as that all visits be supervised.

The department referred mother to additional services, including a medication

evaluation and anger management. The department also referred her to Linkages, a

5
housing and public aid resource, and a parent partner. Her original referrals for substance

abuse treatment, parenting classes, and individual counseling remained in effect.

As of March 2022, mother had participated in 12 counseling sessions and was

participating in anger management and other individual counseling. She did not,

however, submit to required drug testing.

That same month the court sustained an amended section 387 petition, removed

G.B. from mother’s care, and ordered reunification services. In addition to substance

abuse treatment, parenting education, and individual counseling, the court also ordered

mother to refrain from all corporal punishment and participate in a child batterer’s

program.

Between March and August 2022, mother continued with individual counseling,

began the child batterer’s program, and tested negative for all drugs on three different on-

demand drug tests. Nevertheless, the department expressed concern that “[h]er inability

to multi-task and her level of frustration and unresolved mental and medical health

issues[ ] continue to pose a risk for [G.B.]” The department reported that mother “will

need ongoing and possible long-term support to parent[ ] her son.” In general, the

department noted mother “continues to struggle with meeting her own needs,” would

need help getting G.B. to and from school on time, did not understand he was

developmentally behind, could not help him academically, and was hostile to the idea of

giving him medication to treat his newly diagnosed ADHD. The department

recommended further reunification services.

6
 In October 2022 the court held a six-month status review and continued

reunification services.

As of January 2023, mother had completed 24 sessions of her child batterer’s

class, completed individual counseling, and had complied with drug testing. However,

the department still found the prognosis of return poor. In particular, the department was

concerned that mother exhibited inappropriate behavior during visits and towards the

caregivers. The department tried to transition to unsupervised visits, but G.B. reported

that mother stabbed him in the hand with a screwdriver during one of these visits and

showed the social worker a small bruise. After this, visits became supervised again. In

addition, the department had to move the location of the supervised visits from a public

restaurant to department offices because the caregiver did not “feel safe supervising visits

with the mother in public due to her behaviors.”

Moreover, though mother did participate in services, her mental and cognitive

issues continued to prevent her from caring for herself or her son appropriately. Her

home was never clean despite multiple attempts at explaining she needed to keep it clean

and safe. She was usually disheveled, and her hands, nails, and feet were usually black

and dirty. Despite the services she had received, she continued “to be easily angered and

frustrated, and could not demonstrate new skills.” In sum, the department was not

optimistic that G.B. could ever be returned to mother’s care and noted “there is no

mechanism within our social system to continue providing supervision of [G.B.] in his

mother’s care . . . . The Department cannot continue monitoring [mother] in the hope that

7
her intellectual, cognitive, and reasoning abilities will remarkably improve.”

Accordingly, it recommended terminating reunification services and setting a hearing

under section 366.26.

The court held a contested 12-month review hearing in March 2023. Mother

argued she had participated in her case plan services, but that the services provided

were not reasonable because she should have been provided a public health nurse at

visits and at home. The court rejected mother’s argument that she was due additional at

home services because “these are services which are applicable once a person rises to the

level . . . where they can have unsupervised visits,” and mother was trending in the

opposite direction. The court concluded that though mother had participated in services,

she had not benefited from them. Accordingly, it terminated reunification services and

set a hearing under section 366.26.

DISCUSSION

Mother argues the department did not provide reasonable reunification services

and that there was a substantial probability of return. We disagree and deny the petition.

A. Reasonable Reunification Services

Mother argues the department failed to provide services as recommended by

Dr. Garett. These services, according to mother, included wraparound services,

behavioral therapy in mother’s home, services through the Inland Regional Service, a

medication evaluation, and a public health nurse to visit and assist her in the home. The

People argue that Dr. Garett did not recommend all of these services, and that in any case

8
the services he recommended were applicable only while G.B. remained in mother’s

home, so were not relevant once G.B. was removed.

When a court orders reunification services, the department must ensure the

services provided are reasonable. (§ 361.5, subd. (a); Earl L. v. Superior Court (2011)

199 Cal.App.4th 1490, 1501.) Whether the reunification services offered were

reasonable and suitable is judged according to the circumstances. (Earl L. v. Superior

Court, at p. 1501.) “The standard is not whether the services provided were the best that

might be provided in an ideal world, but whether the services were reasonable under the

circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) Any reunification

plan “must be specifically tailored to fit the circumstances of each family [citation], and

must be designed to eliminate those conditions which led to the juvenile court’s

jurisdictional finding.” (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.)

The court’s reasonable services finding “must be made by clear and convincing

evidence.” (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) We review the finding that

reasonable services had been provided or offered for substantial evidence. (Katie V. v.

Superior Court (2005) 130 Cal.App.4th 586, 598.) “In general, when presented with a

challenge to the sufficiency of the evidence associated with a finding requiring clear and

convincing evidence, the court must determine whether the record, viewed as a whole,

contains substantial evidence from which a reasonable trier of fact could have made the

finding of high probability demanded by this standard of proof.” (Conservatorship of

O.B. (2020) 9 Cal.5th 989, 1005.) In other words, “the question before a court reviewing

9
a finding that a fact has been proved by clear and convincing evidence is not whether the

appellate court itself regards the evidence as clear and convincing; it is whether a

reasonable trier of fact could have regarded the evidence as satisfying this standard of

proof.” (Id. at p. 1009.)

Here, there was substantial evidence mother received reasonable services. As the

juvenile court pointed out, the at-home services Dr. Garett recommended were to help

mother keep G.B. in her home, not help her reunify. Dr. Garett recommended a public

health nurse visit her home “to see if, in fact, the environment there is acceptable or

manageable,” because he was “deeply concerned that as [mother’s] son gets older that

she may not be capable of coping . . . and act out in a way which will eventually lead to

continuous contact with the Department.” He also recommended “the Wraparound

program or some behavioral therapist should make a home visit and determine whether,

in fact, she is handling this child in any way which meets an acceptable way of

parenting.” These recommendations demonstrate skepticism that mother is capable of

caring for G.B. and that at-home services are necessary mostly to confirm whether that

skepticism was justified.

Moreover, there was no opportunity to provide the services recommended by

Dr. Garett, or for them to be effective, while mother was still receiving family

maintenance services. Dr. Garett submitted his report in November 2021. The next

month mother was arrested for hitting G.B. It is possible such services might have

helped avoid the incident which led to G.B.’s removal. But given how little time passed

10
between the recommendation and the removal, the juvenile court could reasonably

conclude these services either could not have been provided in time or else would not

have been helpful.

Mother argues that under Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415

(Tracy J.) she was owed further reunification services due to her cognitive issues. We

disagree. In Tracy J., the department had used the existence of the parents’

developmental disabilities as justification to deny them supervised visitation despite

evidence that these disabilities did not endanger the child. The Tracy J. parents

demonstrated effective parenting when given the opportunity. During supervised visits

they “responded appropriately to [the child’s] verbal and nonverbal signals, put his needs

ahead of their own and consistently displayed empathy toward him.” (Id. at pp. 1419,

1426.) Despite this, the department refused to allow unsupervised visitation due to

inchoate concerns about the parents’ disabilities. (Ibid.) The court in Tracy J. concluded

“[w]hen the [department] limits visitation in the absence of evidence showing the

parents’ behavior has jeopardized or will jeopardize the child’s safety, it unreasonably

forecloses family reunification on the basis of the parents’ labeled diagnoses, and does

not constitute reasonable services.” (Id. at p. 1427.) The court pointed out that the

department’s concerns “could have been alleviated by scheduling services from [San

Diego Regional Center] and the public health nurse and implementing in-home parenting

skills training during a portion of the unsupervised visits, and providing initial drop-in

checks by the social worker.” (Id. at p. 1427.) Moreover, the parents “made substantial

11
progress with their court-ordered case plans and demonstrated their abilities to feed,

soothe, protect and care for” their child. (Ibid.) Finally, the department failed to

adequately identify, let alone provide services regarding, at least one parent’s claimed

disability. (Id. at pp. 1428-1429.)

Here, in contrast, there was ample evidence that mother’s behavior jeopardized

G.B.’s safety such that unsupervised visitation was inappropriate. Indeed, supervised

visitation was required after there was credible evidence of abuse during unsupervised

visits. Even after the department switched to supervised visitation, mother continued to

act so erratically that the caregiver requested the department supervise the visits because

of a concern about safety. Moreover, as discussed more below, mother did not make

substantial progress in her case plan and did not demonstrate the parenting skills

necessary to show she could take care of G.B. in a safe and healthy manner. Thus, unlike

in Tracy J., here there was plenty of evidence that unsupervised visits were inappropriate

with or without additional services.

Finally, mother claims Dr. Garett recommended a medication evaluation and

behavioral therapy for people with intellectual disabilities through the Inland Regional

Service. We find no such recommendations by Dr. Garett in the record, though the

department did refer mother to a medication evaluation in January 2022.

Accordingly, we agree with the juvenile court that the services provided were

reasonable given the circumstances. Certainly, mother faced unique hardships and was

due unique consideration in receiving reasonable services, but there is substantial

12
evidence to support the juvenile court’s finding by clear and convincing evidence that the

services she received were reasonable.

B. Substantial Probability of Return

Mother contends that the juvenile court erred in terminating her services and

setting a permanency planning hearing because there was a substantial probability of

return. We are not persuaded.

At a 12-month review hearing a court must return the child “unless the court finds,

by a preponderance of the evidence, that the return of the child to their parent or legal

guardian would create a substantial risk of detriment to the safety, protection, or physical

or emotional well-being of the child.” (§ 366.21, subd. (f)(1).) If the court does not

return the child at the 12-month review hearing, “[t]he court shall continue the case only

if it finds that there is a substantial probability that the child will be returned to the

physical custody of their parent or legal guardian and safely maintained in the home

within the extended period of time or that reasonable services have not been provided to

the parent or legal guardian.” (§ 366.21, subd. (g)(1).) To conclude that there is a

substantial probability of return, the court must find (1) consistent visitation, (2) that the

parent “has made significant progress in resolving problems that led to the child’s

removal,” and (3) the parent “has demonstrated the capacity and ability both to complete

the objectives of their treatment plan and to provide for the child’s safety, protection,

physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1)(A)-(C).)

13
If the court does not continue the case and the child is a proper subject for adoption, the

court must set a hearing under section 366.26. (§ 366.21, subd. (g)(4).)

We review the juvenile court’s finding there is no substantial probability of return

and decision to terminate reunification services for substantial evidence. (Kevin R. v.

Superior Court (2010) 191 Cal.App.4th 676, 688.) The same is true for the juvenile

court’s finding of detriment. (Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th

856, 864.)

Substantial evidence supports the juvenile court’s finding that there was no

substantial probability of return. There is evidence that mother has not benefited from

the services provided and may be incapable of benefiting from services. Mother did not

make any progress addressing the department’s concerns with her capacity to parent G.B.

On the contrary, mother physically abused G.B., G.B. was removed from her care

because of physical abuse, and there is evidence mother physically abused G.B. at least

once more during an unsupervised visit. Mother’s home and person remained dirty and

cluttered throughout the dependency, she continued to struggle with anger management

and frustration despite counseling, and she did not appear to have made any progress in

overcoming her cognitive and mental health issues to develop greater insight or ability to

care for G.B. She remained combative, unstable, forgetful, paranoid, and confused

throughout the dependency, lashing out at the department, G.B.’s caregivers, and G.B.

himself. Though she completed a substantial portion of her case plan, there was no

appreciable change in her behavior.

14
 We make no judgment on mother’s character or effort. Her intellectual disabilities

and mental health struggles are not her fault. Nevertheless, the evidence adequately

supports the juvenile court’s conclusion that there is no substantial probability of return

because mother’s disabilities make her incapable of providing G.B. with a safe, healthy

home, and services have not helped.

DISPOSITION

We deny the writ petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL
J.
We concur:

CODRINGTON
Acting P. J.

FIELDS
J.

15