Opinion
A149825
01-25-2017
A.V., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J15-00884, J15-00886)
Petitioner A.V., mother of two-year-old H.P. and eight-year-old D.V., challenges the juvenile court's October 24, 2016 order terminating reunification services and setting a hearing, pursuant to Welfare and Institutions Code section 366.26, for February 17, 2017. Mother makes two arguments: that there is a lack of substantial evidence to support the juvenile court's finding that she did not adequately participate and substantially progress in court-ordered treatment and that she was not provided with reasonable reunification services. Because we find that substantial evidence supports the juvenile court's findings that mother did not adequately participate and progress in her program and that reasonable services were provided, we deny the petition.
Unless otherwise noted all statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On August 19, 2015, the Contra Costa County Children and Family Services Bureau (the bureau) filed a section 300 petition on behalf of three minor children, alleging that mother had manifested various problems including frequently leaving her children without providing for their basic needs. At the jurisdictional hearing, however, the original allegations were dismissed and mother pled no contest to a single, new allegation that between July 27 and 29, 2015, she was unable to provide adequate and stable housing for the minors.
Although the bureau opened three cases involving mother—D.V., D.S., and H.P., the instant petition deals with only two—D.V. and H.P. In addition to these three children, mother also has an older child who is living with a legal guardian, his paternal aunt.
Neither child's father is a party to the current writ petition. H.P.'s father reportedly sent mother a text message saying, "Just take her." D.V.'s father reportedly was incarcerated for molesting an underage girl and is not permitted to be around children.
On August 20, 2015, the bureau reported in its detention/jurisdiction report that mother and the children were living with mother's brother until he became homeless. Mother and her children then lived with two family members for approximately five weeks, when she began to participate in the Rubicon program. The Rubicon orientation was expected to last two weeks, during which time mother resided at a women's shelter and the children lived with a maternal cousin, Raynisha Adams. Adams reported that mother used her as a "drop off whenever mother was in trouble, that she left the children with Adams numerous times, and that mother was unable to maintain a stable lifestyle. Each time mother returned the children to Adams, Adams had to buy new clothes and personal effects for them because "they have nothing." Adams reported that mother has a history of using marijuana and possibly methamphetamine.
Rubicon is a program for people transitioning from incarceration to the community. Mother has an extensive criminal history spanning 13 years, including one felony conviction for passing a fictitious check, numerous misdemeanor violations—including burglary, receiving stolen property, taking a vehicle without the owner's consent, inflicting corporal injury on a cohabitant, and failure to appear. In addition, she has numerous arrests including arrests for threatening a crime with the intent to terrorize, traffic crimes, and petty theft.
The bureau's report noted several substantiated referrals for this family in San Bernardino and that mother had been leaving the children with friends relatively frequently for several years because she was unable to provide for the children's basic needs.
Mother admitted some past marijuana use, but otherwise denied drug or alcohol abuse. Although she felt depressed and stressed due to her situation, she denied any other mental health issues. On July 30, 2015, mother was upset because the shelter where she was staying while attending the Rubicon orientation required her to have the children there by 5:00 p.m. She had no babysitting available that would allow her to comply with the shelter's requirement and complete her orientation. She decided to return to Vallejo, declining to sign the bureau paperwork for services, but agreed to meet the worker on August 3 at the shelter. However, the bureau was unable to reach her by phone that day and ultimately learned from Adams that mother did not appear when she said she would. On August 5, 2015, Adams reported that she did not know where mother was; mother had left the shelter and Adams speculated that mother might be living in her car. The bureau made further unsuccessful attempts to reach mother on August 10 and 12. On August 13, the workers learned from Adams that mother had picked up the children a few days earlier and not been heard from since. On August 17, the bureau learned that mother had again left the children with Adams. It determined, however, that Adams' home did not qualify for an emergency relative placement and arranged to pick up the children. Mother then called, upset that an emergency placement was necessary, indicated that she would pick up the children herself, and hung up.
On August 20, 2015, the juvenile court held a detention hearing and the family failed to appear. The court ordered that the children be detained and ordered that mother be provided with parenting education and mental health counseling, and set a jurisdictional hearing for September 4, 2015. On August 28, 2015, the bureau filed an ex parte application for bench warrants for mother and the children, explaining that mother absconded from the county with her children when she was told that the bureau would be filing petitions on behalf of the children and that a detention hearing was scheduled for August 20. When the social worker spoke with mother over the phone, mother declined to provide any information concerning the children's whereabouts. That same day, the court issued an arrest warrant for mother and protective custody warrants for D.V. and H.P.
Mother appeared at the jurisdictional hearing, the matter was continued, and a contested hearing was set for October 14, 2015. As indicated above, the juvenile court sustained one allegation—that between July 27-29, 2015, mother was unable to provide adequate and stable housing for D.V. and H.P. The juvenile court ordered weekly, supervised visitation. On November 18, 2015, the bureau submitted a memorandum stating that the children were being cared for in a licensed foster home and were doing "relatively well." Mother, however, "continued to struggle to find stable housing." She was working at a local restaurant and had completed the Rubicon program. She was frustrated by her difficulty in finding affordable housing, acknowledged that she could not yet provide a safe home for the children, and planned to engage in the anticipated family reunification plan. The bureau requested a continuance to allow for "further assessment and the completion and submission of a disposition report with appropriate recommendations."
The disposition report, prepared for a December 9, 2015 hearing, recommended that mother receive reunification services. The report noted that in 2013 mother had been offered services through the Path II Differential Response program, which would have provided her with case management services designed to assist her in finding sustained employment and stable housing. However, mother declined to sign the necessary paperwork, and she was ultimately lost to follow-up. The report also noted mother's "continued instability and lengthy history of similar referrals in three counties over the past several years," and the fact that she would not consent to legal guardianship or allow her children to maintain stable temporary homes while she addressed her housing and employment issues. The report documented mother's history of domestic violence with the fathers of D.V. and H.P. It observed that mother could not identify any behavior she could change to become able to provide adequate care for her children, tenaciously holding the belief that the actions of others were largely responsible for her problems. It concluded that mother "consistently demonstrated a pattern of poor judgment that places the children at risk." The children were in their second foster care placement—this time with Adams. Mother had had only two supervised visits with them, during which she was affectionate and appropriate. Some visits were cancelled because mother did not confirm the visits, as is required; the visitation monitor was unable to contact mother to reschedule the visits. The report also states that the bureau referred mother for case management services, parenting classes, mental health and anger management counseling, and drug testing.
Mother's case plan provided that she enroll in, attend, and complete an approved domestic violence counseling program, receive mental health counseling from an approved licensed therapist, and submit to random drug testing, with the proviso that any missed or positive tests would require her to complete an approved drug treatment program. On March 11, 2016, after a contested dispositional hearing, the juvenile court formally adopted the proposed December 9, 2015 reunification plan and set a review hearing for August 29, 2016.
In advance of the six-month review hearing, the bureau submitted a report recommending that mother's reunification services be terminated and that the court set a section 366.26 hearing. Mother was attending a community college and working in Las Vegas, Nevada. All the certified mail the bureau sent to her was returned to sender, though mother insisted that the address the bureau had for her was correct and current. She called the bureau to request the address for her testing sites and, despite having been provided that information several times, she missed all her tests. The bureau had no information suggesting that she had participated in counseling/mental health services, parenting education, or a domestic violence program. Although mother reported that she completed a job entry program, the bureau had no reason to believe that she made any progress in finding permanent housing or stable employment. During the reporting period she had only one supervised visit with the children, during which she was affectionate and appropriate. The report concluded that mother "continues to have difficulty providing for the children's basic needs," and that "perhaps [her] continued substance abuse and mental health issues may contribute to [her] ongoing pattern of intermittent incarcerations and inability to live a stable lifestyle." Given "her lack of participation in any of her case plan services," the bureau recommended the termination of services.
The report was dated August 29, 2016, and was signed by the social worker and her supervisor on August 23 and 24, 2016, respectively. It was filed with the juvenile court on October 24, 2016. As noted below, the bureau provided an update shortly before the actual six-month review hearing.
On October 21, shortly before the six-month review hearing, the bureau updated the juvenile court on mother's progress. On August 29, mother informed the bureau that she would be living in Richmond, California. The bureau referred her to an access line for mental health services. As of the date of the report, mother had not provided verification that she was receiving services. Mother successfully completed three supervised visits. She had three positive tests for marijuana; although mother claimed to have a medical marijuana card, she failed to provide requested proof of this fact. The update also indicated that mother had been "inconsistent in her ability to attend [educational] meetings on her child's behalf." The report makes no mention of mother's claim that she was having difficulty obtaining mental health services or of any attempts the bureau made to assist her.
Mother ultimately explained that she could not renew her medical marijuana card because she did not have a valid driver's license.
At the October 24, 2016 contested hearing, the bureau presented no witnesses. Only mother testified. In summary, she testified that on August 29, the social worker referred her to Contra Costa County Behavioral Health Services for counseling, but that there was no opening at that time. After August 29, mother called approximately four more times, but was unable to obtain an appointment. Two weeks before the October 24 hearing, mother informed the social worker that she was not able to obtain services through the access line. The bureau did not provide any additional counseling referrals and simply encouraged her to continue to call the access line. Mother had attended outpatient counseling at Rubicon for two periods of time: in Antioch and in Richmond, each time for approximately two months. Mother conceded that she had repeatedly tested positive for marijuana, but had not been able to get her marijuana card renewed (a process which required going to southern California) or provide it to the bureau. Mother admitted that as late as when she was in Las Vegas she was fighting her case and thought it was going to be dropped. She wanted to resolve her case "without jumping through all the hoops"—i.e., complying with her case plan. She was not trying to cooperate with child protective services—rather, she chose to rely on the advocacy of her lawyer to oppose the bureau.
At the time of the hearing, mother was working on an assembly line producing pipes. She was living with her aunt and wanted both her children returned to her.
During argument, the minors' counsel joined the bureau in requesting to have mother's services terminated. Counsel pointed out that (1) one of the children was younger than three years old, (2) the children had been detained in August 2015, (3) the disposition hearing was held in December 2015, (4) mother received a case plan that same month, (5) it was now October 2016 and (6) mother did not engage in services when she was in Las Vegas, from March through September.
Based on mother's testimony, it is unclear whether she first moved to Las Vegas in March or June.
In deciding to follow the bureau's recommendation to terminate services and set a section 366.26 hearing, the juvenile court noted mother's positive marijuana tests and her failure to produce a valid California marijuana card—which, even if she had one, would have had no legal effect in Nevada. It noted her absence from the state during the time that she should have been demonstrating her ability to safely parent and provide for her children. Without elaborating, the juvenile court found that the bureau had provided reasonable services.
The juvenile court did acknowledge that the county social workers had been on strike for approximately one and one-half weeks and had not provided services during that period. But "for the overwhelming bulk of the time period" when mother should have been receiving services, they were available.
Mother filed a notice of intent to file a writ petition on October 28, 2016. Briefing was completed on December 16, 2016. Oral argument was waived.
DISCUSSION
I. Substantial evidence supports the conclusion that mother failed to participate regularly and make substantial progress in her treatment plan.
At the six-month review hearing, the juvenile court must order the minor returned to the parent's physical custody unless it finds, by a preponderance of the evidence, that doing so would "create a substantial risk of detriment" to the child's safety, protection or well-being. (§ 366.21, subd. (e)(1); Cal. Rules of Court, rule 5.710(c)(1)(D).) A parent's failure to participate regularly and make substantive progress in her treatment plan constitutes prima facie evidence that returning the minor to the parent would be detrimental. (Ibid.) This court's review of the juvenile court's order terminating reunification services is subject to the substantial evidence standard. (Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1028.) We neither reweigh evidence nor exercise independent judgment; our sole task is to determine if there is sufficient evidence that supports the trial court's findings. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688-689.)
When the children were removed from their mother, H.P. was younger than three, while D.V. was older than three. The statutory scheme establishes six months of reunification services as the default time period for a parent of a child younger than three and 12 months as the default period for children older than three. (§ 361.5, subd. (a)(1).) When one sibling is younger than three and one is older, the default for the younger child applies to the sibling unit. (§ 361.5, subd. (a)(1)(C).) In appropriate circumstances the reunification period for all children, regardless of their age when first detained, can be extended to 18 months from the date of removal. (§ 361.5, subd. (a)(3)(A).)
There unquestionably is sufficient evidence to support a finding that mother did not regularly participate and make substantial progress in her case plan. The plan required her to complete an approved domestic violence program, receive mental health counseling from an approved licensed therapist, participate in parenting education, and submit to random drug testing (and, in the event of a missed or failed test, complete an approved drug treatment program). Furthermore, she was to visit her children weekly. Although there was evidence that she completed a re-entry program for people recently released from incarceration, there was no evidence she completed an approved drug program, despite her positive drug tests. She did not visit her children regularly. There is no evidence that she received mental health counseling from an approved therapist. Furthermore, mother essentially admits that when she moved to Las Vegas, she hoped to prevail against the bureau in court and was not trying to cooperate and achieve her treatment plan goals. Finally, mother's testimony that she had appropriate housing and that the social worker inspected the house and twice completed paperwork with her does not necessarily establish that she had suitable housing for her and her family. Thus, we affirm the juvenile court's implied finding that mother failed to participate regularly and make substantial progress in her treatment plan. II. Substantial evidence supports the finding that the bureau offered or provided mother adequate services.
We also review the claim that a parent was not provided with adequate services under a substantial evidence standard. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) The services need not be perfect, but must be designed to deal with the needs of the individual family. (Id. at p. 972.) If substantial evidence supports the judgment, our inquiry is satisfied. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
In support of her claim that she was not provided with reasonable services, mother first claims that the bureau failed to provide her with a referral for a psychological evaluation. There was no formal requirement in mother's case plan that she undergo a psychological evaluation per se. Rather, there was a requirement that she receive mental health counseling from an approved, licensed therapist. The record further documents that the bureau recognized that mother receiving mental health (together with drug testing) services was "crucial" and that it referred mother for "mental health and anger management counseling."
Mother also complains that after she returned from Las Vegas and tried to enter counseling, she was unable to obtain an appointment through the referral the bureau had made and that the bureau gave her no meaningful assistance when she was unable to schedule an appointment. Mother, however, did not inform the bureau of her difficulty obtaining an appointment until approximately two weeks before the October 24, 2016 hearing; she did so only as she was preparing herself for the hearing. The children were first detained at the jurisdictional/dispositional hearing on September 4, 2015 and the court formally adopted mother's December 9, 2015 case plan on March 11, 2016. The bureau's alleged failure to respond to mother's requests for assistance in obtaining a mental health appointment did not occur until mid-October 2016, well beyond the expiration of the six-month review period. (See § 366.21, subd. (e)(1).) For nearly the entire six-month review period, mother failed to cooperate with the bureau and made no attempt to obtain the services to which she was referred; she did not inform the bureau of any difficulty in obtaining an appointment until two weeks before the contested hearing. The bureau's failure to more actively intervene at the eleventh hour hardly establishes that it failed to provide reasonable services, which the record otherwise shows it to have done. (See Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093 [parent may not "wait silently by" to obtain an extension of services based on a perceived inadequacy of those services]; see also In re Christina L. (1992) 3 Cal.App.4th 404, 416.)
Mother relies on Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397 to support her argument that she was not provided reasonable services, but the case is readily distinguished from the instant case. In Patricia W. Division Two of this court held that reasonable services had not been provided where there was no evidence of any effort to diagnose a parent's mental health and medication needs, when the problem that led to the removal of the minor was the parent's failure to take her psychotropic medication. (Id. at pp. 420-425.) But in Patricia W. there was no evidence that the parent willfully absconded from the jurisdiction and refused to cooperate with the agency for virtually the entire reunification period. In re T.G. (2010) 188 Cal.App.4th 687 is more closely related to the facts of this case. There, the parent had not cooperated with the department by providing accurate contact information, and the department learned only belatedly of his whereabouts. (Id. at p. 698.) In considering whether reasonable accommodations had been offered, the court found that by the time the parent wrote his social worker a letter, it was "simply too late." (Id. at p. 699.) Similarly, mother's efforts to fulfill her case plan when she returned to California were also too late. The record as a whole, as detailed above, clearly contains substantial evidence that the bureau provided mother with reasonable services.
Admittedly there is some evidence of progress by mother. She spent a combined total of four months in Rubicon reintegration programs, completed a Positive Parenting education course, obtained what she considered to be suitable housing, obtained employment, and her visits with her children, although sporadic, had gone well. When terminating her services and scheduling the section 366.26 hearing, the juvenile court observed that if mother sustained that positive direction, a section 388 petition for modification might be appropriate. We, of course, are not familiar with developments during the intervening months and express no opinion as to the proper resolution of such a motion should one be filed.
DISPOSITION
For the reasons given above, the petition for an extraordinary writ is denied. Our decision is immediately final as to this court. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
Pollak, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.