Opinion
A133188
11-04-2011
JULIE M., Petitioner, v. THE SUPERIOR COURT OF HUMBOLDT COUNTY, Respondent; HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Humboldt County Super. Ct. Nos. JV100050-1 & JV100050-2)
INTRODUCTION
Julie M. (mother), seeks writ review of an order terminating reunification services at the conclusion of the 12-month review hearing for her children Blaine and Connor, and the setting of a hearing for a permanent plan for the children. (Cal. Rules of Court, rule 8.452; Welf. & Inst. Code, § 366.26.) Mother challenges the court's findings that reasonable services were provided by real party in interest Humboldt County Department of Health and Human Services, Social Service Branch (Department), and seeks issuance of an extraordinary writ and a stay of the section 366.26 hearing set for December 19, 2011. We shall conclude the findings are supported by substantial evidence, and therefore deny the petition on the merits.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code and all rule references are to the California Rules of Court.
BACKGROUND
Mother has a lengthy history of involvement with child welfare services. In January 2004, the infants were taken into protective custody because mother had relocated to Georgia with a boyfriend, leaving the children in Siskiyou County, California with their maternal grandmother, who was unable to care for them. Siskiyou County offered mother reunification services when she returned to California, and she was able to regain custody of the children. Later, mother relocated to Arizona along with her then fiance, the two children, and her newborn baby daughter. The mother and her baby daughter's father had a "turbulent marriage, including domestic violence, mental health issues and substance abuse." They were divorced in 2007, and [the father] obtained full custody of their baby daughter. At that time, the court-ordered parenting plan for the baby daughter required that the mother undergo random, bimonthly urinalysis drug testing.
By mid-2008, Blaine and Connor were residing in Arizona in an apartment with their biological father. During the fall of 2008, the children's father left them in Mexico for a visit with their paternal grandfather. He never returned to retrieve them. The paternal grandfather arranged for his daughter (the children's aunt) to care for the children at her home in Humboldt County. Mother was not in contact with her children during this time. The children's aunt established a temporary guardianship for the children in June 2009. In March 2010, the aunt informed the Department that she no longer wished to be the children's guardian due to their behavior, numerous needs, and their sexually acting out. The temporary guardianship was dissolved and the children were removed and placed at the children's center. In April 2010, the Department filed a section 300 petition, containing allegations under section 300, subdivisions (b), (d), and (g). At the initial hearing on the petition, the Department informed the court that it had initiated an absent parent search, believing the parents were in Arizona. The court ordered the children detained on April 9, 2010, and on May 19, the children were placed in a foster home. (This was a level three placement with substitute care providers qualified to address the children's developmental issues.)
On April 12, 2010, the maternal grandmother reported to a Department social worker that the mother had had "difficulties" with methamphetamine her entire life. On April 14, the social worker learned that a bench warrant had been issued for mother's arrest in Arizona when she failed to appear on a charge of second degree burglary. On April 15, the social worker spoke with mother about the allegations of sexual abuse of the children by their father and a family friend. Mother denied any sexual abuse of the children. She also stated that she had nothing to do with the Arizona burglary, but had been inside a car parked at someone's garage and did not realize her friends were inside the garage taking things.
The court appointed counsel for the mother on April 26, 2010. The contested jurisdiction hearing was continued to May 3, at which time appointed counsel informed the court she had not had contact with her client. The hearing was continued twice thereafter to June 24, 2010. Counsel represented to the court that the mother, who was not present, was in agreement with the court's taking jurisdiction over the children based on amended language in the petition. The court sustained the petition, as amended, finding the children to be described by subdivisions (b), (d), and (g). In the disposition report of July 22, 2010, the social worker wrote that the mother had expressed her commitment to the children by relocating to Humboldt County. The social worker opined that it would be detrimental to return the children to the mother's care until she stabilized by seeking housing, mental health treatment, and substance abuse treatment through the Humboldt County Alcohol and Other Drugs program (AOD). The social worker also related that the mother had stated she was an excellent mother and would do everything that is needed to reunify with her children. Mother stated that she "believes that she needs to participate in AOD treatment, parenting classes and a mental health evaluation in order to comply with her case plan." She also stated she needed to clear up her legal issues in the Phoenix area. "[She] is willing to participate in AOD, counseling, parenting classes and any other needed services." In an addendum report, the social worker documented the details of four successful visits between mother and the children, occurring in the 10 days between July 12 and 22, 2010.
At the disposition hearing held August 9, 2010, the court ordered reunification services for mother. The services case plan listed service objectives for mother, including that she show her ability to understand her children's feelings and give emotional support; consistently, appropriately and adequately parent the children; stay free from illegal drugs and show her ability to live free from drug dependency; comply with all required drug tests; listen and show acceptance of disclosures made by her children; and comply with medical or psychological treatment. Mother was responsible for completing a mental health evaluation through the Humboldt County Mental Health Department by January 26, 2011, and following all recommendations made by the evaluator. She was required to complete a parenting skills class and to provide proof of attendance to the social worker. She was to participate in a substance abuse evaluation through AOD and to follow all recommendations, including random drug testing at the social worker's request. She was provided visitation of a minimum of three times per week for two hours at a time. There was an understanding that visitation was to transition from supervised to unsupervised.
Between July 15 and October 14, 2010, mother attended 16 scheduled visits, and failed to attend seven times. On September 17, 2010, mother filed a section 388 petition, seeking unsupervised and overnight visits. She stated she had obtained employment and was seeking permanent housing. The petition was set for hearing on October 19, 2010. The mother failed to appear in court for the hearing and the section 388 petition was first continued, and then withdrawn on December 13, 2010.
On October 13, 2010, mother called a social service aide and left a message stating that she would not attend the visit scheduled for the next day, "because she needed to leave town for a few days." Mother called on October 19, to report that she was in Arizona and would not be at the next visit. On October 28, social workers removed the visits from the schedule because mother had stated she was in Arizona and was no longer visiting with her children. Social workers documented their efforts to contact mother on October 21, November 2, and December 7, 2010. Mother did not return the calls. On December 7, the foster parents reported that the mother had not called the children since October 27, 2010.
On December 16, 2010, the children traveled to Bakersfield to begin a two-week visit with their paternal grandparents. According to the foster parents, the children had a great time. On December 17, mother contacted her social worker requesting assistance with bus fare so she could return to Humboldt County from Phoenix. She said she had gone to Phoenix to take care of her outstanding bench warrant. However, the bench warrant remained outstanding. Mother said she had lost her phone and the social worker told her it was permissible for her to call the Department collect and that it would take several days to receive approval for the bus ticket. Mother called again on December 28, to inquire about the bus ticket. She said her other phone number was not working. The social worker told her that he was currently on vacation and that the request for a bus ticket would be processed for sometime after the new year. Despite ongoing communication difficulties, the social worker told the mother that the bus ticket was being processed and that she should be ready for a January 9, 2011 departure, as she had requested. On January 7, the social worker told mother the bus ticket had been purchased. On January 13, the social worker learned the bus ticket was not used. Mother had not contacted the Department. On January 19, mother called the social worker from a bus station asking for assistance in reinstating the ticket purchased for January 9. She said she had missed the January 9 bus, because she arrived late. She gave no further explanation. The social worker was able to reinstate the bus ticket and called the mother to let her know. On or about January 21, the mother called the social worker, stating she was back in town. She did not want to stay in the G Street residence, because the residents smoked marijuana. The social worker discussed her staying at the Mission, or at a sober house, and referred her to the food bank, St. Vincent de Paul for lunch, and welfare. A plan was made to meet the week of January 23, with visits to take place as soon as possible. The report prepared for the six-month review hearing stated that mother had completed the AOD assessment packet, but had not engaged in treatment. She was not eligible for County Mental Health Adult Outpatient services because she was not in crisis. Nor had she participated in counseling as a collateral in the children's therapy.
Meanwhile, according to the children's court-appointed special advocate (CASA), the children were doing well at school and in their foster placement. The foster parents were committed to the continued loving care of the children for as long "as they are needed." On February 8, 2011, the juvenile court ordered that reunification services for mother continue. It set the 12-month review hearing for June 6.
The 12-month review status report related that when asked by the social worker on April 11 and 29, 2011, whether she had filled out the paperwork and received an assessment from AOD, mother said she had not. The social worker reminded mother on several occasions that the AOD assessment is a crucial aspect of her plan. However, Mother stated to the social worker that she did not have any "AOD issues" and had not used drugs since 2007. On April 29, mother told the social worker that she had lost her job.
Between February 2 and May 2, 2011, mother's visitation was "sporadic." She completed 12 visits, cancelled five, and ended one visit early. On April 11, a social worker requested that mother submit to drug testing. Mother cancelled the visit scheduled that day, saying it would conflict with the test. She then failed to follow through with the testing. The visit supervisor told the social worker she had noted several incidents of mother's behavior during visits that indicated that mother may be using drugs. On May 4, the visit supervisor noted that mother was 15 minutes late, narrowly missing having the visit cancelled due to tardiness. Mother was "going 100 miles a minute, couldn't concentrate, and went quickly from subject to subject." The supervisor and the family went for a walk on the boardwalk and a friend of the mother appeared. After the family returned to the visitation center, mother suddenly cut the visit short, saying she had a doctor's appointment. The visit supervisor observed that mother returned to the boardwalk after leaving the center. Also on May 4, mother told her children that she was planning on leaving the area again, on or about May 6, to see the maternal grandmother in Arkansas and then to travel with the maternal grandmother to Arizona to take care of the outstanding bench warrant. Connor was shocked and told his mother he did not think she was coming back. When she asked if he trusted her, he said "no."
The report of the CASA worker prepared for the 12-month review hearing, related that the foster mother made numerous efforts to contact the mother after she left the area on May 6, but was unable to reach her by telephone, as each of her three phone numbers had been disconnected.
The Department recommended termination of family reunification services and the setting of a section 366.26 selection and implementation hearing. As the social worker concluded in the 12-month review report, mother states she does not have a drug problem and, despite stating she will do whatever it takes to get the children back, she had not engaged in court-ordered services such as parenting classes and AOD treatment. She had not engaged in her case plan and had not demonstrated the ability to provide for the safety, protection, physical and emotional wellbeing of the children. The CASA agreed with the Department and also recommended that services be terminated and a section 366.26 hearing be set. The social worker reported that the children's elderly grandparents were interested in adopting the children and that the foster parents had also contacted state adoptions. The social worker described the two children as adoptable.
When the case was called on June 6, 2011, mother was absent. The case was continued several times, in part to facilitate substitution of counsel for mother and the children. Mother returned to the area in mid-July 2011. She had resolved the outstanding bench warrant by pleading guilty to a felony theft charge. She was on felony probation when she returned to the county. Her Arizona probation officer had granted her a pass to travel out of state, but she had an ongoing obligation to report to officials in Arizona. She contacted the Department to complain that she had done " 'everything' " and wanted her children back. Mother submitted to drug testing on July 28, 2011. Also on July 28, the social worker arranged to meet with her the next day. He asked her to bring documentation verifying that she had done everything. Mother responded, " 'Why should I give that all to you. Isn't it your job to get that information?' " Asked what specific things she had done, mother stated she had gone to AOD and seen Dr. Steve Ross for an assessment and that Ross said she did not need AOD. The social worker confirmed with Ross that the mother did attend an AOD orientation and did a brief screen. However, because the mother self-reported that she did not meet the criteria for AOD, she did not complete a full evaluation and was not offered further services. Ross stated the Department could request a full assessment and send her back through, if necessary. On July 29, the date set for the social worker to meet with mother, the maternal grandmother left a message that the mother had a headache and would not be at the 9:00 a.m. meeting. On August 1, the toxicology report for the drug test of July 28 was "positive for Amphetamine Confirmed as Methamphetamine and Benzodiazepines."
The 12-month review was held August 25, 2011. The court stated it had read and considered the 12-month family reunification status report and the first addendum to that report, as well as the CASA report, and received them as required by law.
Mother acknowledged that she had no income and said her rent was covered by her mother and her boyfriend. She had been living with her boyfriend for the past year, but that he was moving back to Florida, so she would not need to worry about "having his background or whatever he does or have him under the scope." She conceded her mother was not working. She testified that the Department had assisted her with the substance abuse component of her treatment plan by referring her to AOD. She testified she had completed the orientation at the end of September 2010, and AOD set up an appointment for her to complete a full assessment sometime in October. She missed the appointment because she was in Phoenix. She explained that when she returned after being gone all winter, she went in last minute, got the assessment done, and that AOD said they did not believe she needed their services. She had not told them that she had any problem with substance abuse. When questioned about her recent positive test for methamphetamine, mother attributed the result to the fact that she was using prescription medications. She stated that at the time she "was on everything under the sun as well." She testified she did not know what prescriptions she was on that had methamphetamine in it, but attributed the dirty test to "pseudometaphine [phonetic], the steroids for my inhaler, the Muscinex, the . . . Benadryl. I was on two antibiotics. I was on Valium and Codeine." She testified she had no history of substance abuse.
Mother testified the Department had supported the mental health component of her case plan by referring her to County Mental Health Services. She had not had an appointment. She testified she had tried to call to make an appointment and spoke with someone named Tom Nash. She stated she did her first assessment telephonically and that she never had an appointment. When she tried to see whether she needed to go on, "they told me I didn't need their services."
She testified the Department had contacted her about a parenting program, but that she could not get in during the fall because it was full. She testified that when she came back from Phoenix she was given information by the Department in the early spring on a class and was given bus passes by the Department to get to the classes. She testified she missed the first two classes, so that she was not able to pursue it. She said she had taken a parenting class in Phoenix, but she had no proof of completion and could not remember the name of the program. She admitted that it was not comparable to the lengthier California program to which she had been referred. She admitted that she had not completed or attended any classes in California.
At the end of the hearing, the juvenile court found that reasonable services had been offered, that the "[D]epartment stood ready, willing and able to assist the mother; and the mother did not fully engage the process." It therefore could not make the finding that no reasonable services had been offered so as to continue the services to the 18-month date. The court stated it could not find that mother had consistently, regularly visited with the children. The court recognized that mother may have had obligations in another state, but pointed out that each time she left in an unplanned and disorganized way. Similarly, her "return was always not planned and not organized." She did not stay in contact with the children while she was gone "[a]nd that was within her control to a large extent. She left once for an extended period of time and then had to leave again because she did not take care of whatever was necessary." The court found the first three-month absence was not related to anything having to do with Arizona and the warrant. The court observed that mother had done more in the first three months of the case, before she left for Arizona, than she did at any time afterwards. Mother had a "complete lack of understanding of what was required of her and what she needed to be doing in the case." The court stated it could not find that mother had made significant progress in resolving the problems that led to the removal of the children or that she had demonstrated the capacity to complete objectives within the required period of time. The court therefore terminated reunification services. The court found by clear and convincing evidence that the Department had complied with the case plan and made reasonable efforts to return the children to a safe home and to complete whatever steps were necessary to finalize a permanent plan for the children. The court also found that mother did not comply with the case plan and that she made only minimal progress toward alleviating or mitigating the causes necessitating out-of-home placement. The court found that the return of the children to the mother would create a substantial risk of detriment to the safety, protection, or physical or emotional wellbeing of the children. The court set the 366.26 hearing for December 19, 2011, with the specific goal of determining a permanent plan that it identified as adoption.
DISCUSSION
I. Reasonable Services
Mother challenges the finding that the Department provided reasonable services to her. Because the children were older than three years of age when they were removed, the mother was statutorily entitled to 12 months of services. (§ 361.5, subd. (a)(1)(A).)
Standards of Review
The court at every review hearing where a child is not returned must find, and in this case did find, that the agency had provided or offered the parent reasonable services, defined as services designed to aid the parent in overcoming the problems that led to the initial removal and continued custody of the child. (§ 366.21, subd. (e).) The case plan must be appropriate to the individual parent and based on the unique facts of that individual. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) "In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. 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." (Id. at p. 547.)
The juvenile court is required to have clear and convincing evidence when it finds the reunification services offered were adequate. However, we review that finding on appeal for substantial evidence. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) "The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]" (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Hence, we review reasonableness of services offered by viewing the evidence in a light most favorable to the finding. So viewed, it is clear that substantial evidence supports the finding that reasonable services were offered by the Department.
Services provided by the Department included, but were not limited to: supervised visits, drug testing, bus passes, referrals to drug and parenting programs, referral to a mental health assessment and treatment program, assistance with housing and food bank referrals.
Mother's Challenges To The Reasonableness Finding
Mother challenges the reasonable services finding, not by identifying anything needed but omitted from the case plan, but by arguing that she complied with the literal language of portions of the plan and that the Department did not do enough to assist her when she returned to the county, after having been out of state and unable to participate in the services for lengthy stretches during the 12-month period.
Visitation. Mother argues the court's finding that her visitation was "sporadic" and that she had failed to visit regularly was based upon her being out of state in order to resolve the warrant issue that would have impeded her ability to reunify if left unresolved. She asserts that she attended all of her visits from July to mid-October 2010, when she had to leave the area to attempt to recall a felony warrant in Arizona, and that her failures to visit from mid-October to mid-January 2011, were during the time she was in Phoenix. She also asserts that the children were in Bakersfield from December 16, 2010 through approximately January 2, 2011—approximately two weeks of the time she asserts she was charged with failing to visit. She also testified that she had semi-weekly phone contact with the children while she was away.
First, the court was not required to believe mother's explanation that she left the state to resolve her warrant issue or that she regularly called the children. Rather, she abruptly left and was gone for three months from July to mid-October and returned from that three-month absence without having resolved her warrant issue. The court's finding that mother failed to visit regularly, properly could have been based on her extended absences from the state. However, the evidence also showed that even when she was in the county, her visitation was not regular. Between July 15 and October 14, 2010, mother attended 16 scheduled visits, and failed to attend seven times—a significant number of failures. Further, when she left a message on October 13, 2010, saying she would not be attending the visit scheduled for the next day, she said she "needed to leave town for a few days." Those "few days" stretched into three months. In addition, mother's claim to have maintained semi-weekly phone contact with the children was contradicted by the foster parent's report on December 7, 2010, that the mother had not called the children since October 27, and by evidence that despite several efforts by the Department to contact mother, she did not return their calls. Despite her claimed phone problems, mother knew how to contact the Department when she wanted a bus ticket home. Between February 2 and May 2, 2011, when mother was in Humboldt County, she completed 12 visits, cancelled five, and ended one visit early. Such visitation could properly be termed "sporadic."
Mother's second abrupt departure in early May through mid-July 2011, further supported the court's finding that she failed to consistently visit the children. There was evidence that this abrupt departure was detrimental to Connor, who was shocked and told his mother he did not think she was coming back. The foster mother's numerous attempts to contact mother by phone during this period were unsuccessful, belying mother's claim to have stayed in frequent phone contact with the children during her absences.
The Department's services with respect to visitation were more than reasonable. Substantial evidence supports the court's findings in that regard and also supports the findings that mother's compliance with this component of her service plan was "minimal" at best.
Mental Health Evaluation and Treatment Services. Mother argues she was found ineligible for County Mental Health Outpatient Services and should have been considered to have completed that requirement, as it was impossible to fulfill and the Department did not suggest an alternative. The Department referred mother for a full mental health evaluation. She testified she initiated a telephonic encounter with someone who told her she did not need services. She did not characterize the conversation as an appointment. It appears likely that, rather than requesting and obtaining an evaluation, mother simply contacted a crisis hotline and was told she did not need their services because she was not in crisis. This cannot be considered successful completion of the mental health component of her services plan. Nor was it a failure by the Department to offer reasonable services.
Drug Assessment and Treatment Services. Mother urges that she did participate in an AOD assessment, but was told that she did not need their services. Hence, the requirement was complete. She argues that her July 19, 2010 test was negative for all illegal substances. She admitted that the July 28, 2011 test was positive for amphetamine and methamphetamine, but maintains that she had not used any illegal drugs. She says she drug-tested many times and missed only two drug tests because she arrived at the facility too late for the first and because she did not get the social worker's message for the second test. Once again, the court need not have accepted mother's version of the facts. Despite evidence of a longstanding drug problem, it appears that mother did not complete the paperwork for the assessment until sometime after April 2011 and she received a brief AOD screen "at the last minute." Although she did attend an AOD orientation, because she self-reported that she did not meet the criteria for AOD, she did not complete a full evaluation and was not offered further services. She persistently denied having a drug problem, despite evidence that she had a longstanding drug problem and that she was still using methamphetamine. This failure to engage in services lies with mother and her denial of any drug use problems. The Department offered her reasonable services, including AOD program assessment and treatment services, plus drug testing.
Finally, mother argues that she could not enroll in the parenting classes in the fall of 2010, because the class was full. When she returned from Phoenix and the Department sent her to the parenting classes, she had missed the first two classes and was unable to enroll. She testified she had completed a 12-hour parenting class in Phoenix from "DES . . . like our welfare here," but could not recall the name of the program, failed to supply any supporting documentation, and responded with hostility to the social worker's request that she do so. Substantial evidence supports the court's finding that the Department offered her reasonable services, but that she did not engage in them. That the first parenting class was "full" does not mean that mother did not need to fulfill the requirement. She was referred to a second class, but having missed the first two classes, she testified she was not able to pursue it. (Had she enrolled in the class in the early spring, she was unlikely to have completed it as she left the state again in early May.) The Department made reasonable services available to her. It was not required to find a parenting class that would accommodate mother's decision to take lengthy and unpredictable absences from the state. Mother's failure to adequately engage in services was not the fault of the Department, but was her own fault. Mother was unavailable by her own choice for much of the reunification period. That she had to deal with the outstanding warrant does not justify her failure to maintain adequate contact with the children and the Department and does not support the length of time of her absences. Mother knew what was required of her. As repeatedly recognized by the courts in these cases, the Department was not required to "take the parent by the hand and escort . . . her to and through classes or counseling sessions." (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5; see Earl L. v. Superior Court (2011) _____ Cal.App.4th _____ .)
We have concluded the services provided by the Department were reasonable. Therefore, services could only be extended to 18 months if there was a substantial probability that the children would be returned to mother's custody and safely maintained in her home within another six months. (§ 366.21, subd. (g)(1).) The record here supports the court's finding there was no such substantial probability. In order to make such a finding, the court would have to find, among other things, that petitioner "has made significant progress in resolving [the] problems that led to the child's removal from the home," and that she "has demonstrated the capacity and ability both to complete the objectives of . . . her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1)(B) and (C).) The record demonstrates petitioner had not made significant progress in resolving the problems leading to the children's removal.
DISPOSITION
The petition is denied on the merits, as is the petition to stay the section 366.26 hearing. (Kowis v. Howard (1992) 3 Cal.4th 888, 894 [barring later challenge by appeal].) Our decision is immediately final as to this court. (Rule 8.490(b)(3).)
Kline, P.J. We concur: Lambden, J. Richman, J.