NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV170101, JV170102-1, JV170102-2, JV170102-3)
S.C. (Mother) and M.S. (Father) petition this court for extraordinary relief under California Rules of Court, rule 8.452, asking us to set aside the juvenile court's order setting a permanent plan hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). They contend the evidence does not support the juvenile court's findings that it would be detrimental to return the children to the home and that Father and Mother were offered reasonable reunification services. We shall deny the petition on the merits.
All statutory references are to the Welfare and Institutions Code. All rule references are to the California Rules of Court.
A. The Petitions
The Humboldt County Department of Health & Human Services (the Department) on May 31, 2017, filed two petitions pursuant to section 300. One of the petitions was filed on behalf of 18-month-old S.S, naming Mother as her mother and Father as her father. The second petition was brought on behalf of mother's two older daughters, 11-year-old S.T. and 10-year-old D.A., and her son, 8-year-old Z.T. Another man, R.T., was named as the father of these three children (the older children). Although Father is the father of only S.S., not the three older children, we will refer to him as "Father" for the sake of convenience.
The petitions, as later amended, alleged the children were at risk of serious physical harm and emotional damage due to Mother's substance abuse; ongoing domestic violence between Mother and Father; Mother's untreated mental illness; the presence of drug paraphernalia in the home; the older children's exposure to sexual and violent pictures and videos of Mother and Father; and the older children's missing substantial amounts of school because Mother and Father locked them in the house. The petitions also alleged Father had sexually abused S.S. and that the older children were at risk of such abuse, and that Mother had the two older girls, S.T. and D.A., read her diary containing explicit descriptions of sex between Mother and Father.
The petition as to the older children also alleged their father, R.T., had left them with no provision for support. R.T. is not a party to this writ proceeding.
B. Jurisdiction Reports and Jurisdiction Hearing
The Department received a report on May 26, 2017, that the children had been left without a caregiver after Father was arrested for domestic violence and Mother suffered a drug overdose. A social worker went to the family's apartment. A neighbor told her that no one was home, and that Mother had been taken to the hospital the previous night after having what appeared to be seizures or convulsions. The neighbor said that there was domestic violence in the home almost every day, and that Mother and Father often locked the children out of the home at all hours of the day and night. She had seen Mother and Father fighting while Mother held one-year-old S.S. in her arms. Another neighbor, who was caring for S.S., said she had heard Mother and Father fighting and had seen Mother and the children upset many times. Mother sent the two older girls to the store by themselves late at night, and the neighbor had seen Z.T. outside in the rain with no shoes and socks, appearing cold, unable to get back into the home. The neighbor had found a razor blade in S.S.'s diaper bag that day, and she said S.S. often smelled bad and cried as if she was in pain.
S.T. told the social worker that Mother and Father fought every day and that when the fighting started, she sent her siblings outside and stayed inside to " 'make sure no one is hurt too bad.' " Father had been arrested on May 25, 2017, after hitting Mother and screaming at her in S.T.'s presence. S.T. reported the children were sometimes locked out of the house.
Mother was in a hospital. When interviewed, she said she and the children had been away from home the night of May 24, 2017. When they returned, the apartment was in disarray, with trash and hypodermic needles everywhere. She began cleaning up, and Father woke up and began hitting and slapping her and screaming at her as she held S.S., with S.T. present. Father was arrested for domestic violence; the arresting officer said there were hypodermic needles all around the home and minimal food.
Mother later felt sick to her stomach and said she did not remember anything after that except arriving at the hospital. She left the hospital against medical advice and was later found passed out in the parking lot under some bushes. She appeared disoriented, weak, and dizzy. She was admitted to the hospital for sepsis, polysubstance abuse, and withdrawal. At the hospital, she tested positive for amphetamine, methamphetamine, and opiates. A social worker saw four red slash marks, which appeared to be in the progress of healing, on Mother's left forearm on May 27, 2017.
Mother said she believed Father had recently been using drugs. Father told the social worker both he and Mother used methamphetamine.
D.A. later reported that Mother kept a diary in the older girls' backpacks when they went to school to keep it away from Father. The diary contained explicit descriptions of sex and drug use, which S.T. and D.A. had read. Mother had showed them sexually explicit videos on her cell phone. Z.T. reported that Mother had shown him a drawing of Father pointing a gun at Mother and Mother lying in a pool of blood with a gunshot wound to her head. The older children reported that Mother used to hide needles in their backpacks, and S.T. and D.A. had to go through their bags at school and make sure there were no needles in Z.T.'s bag. Z.T. reported that the needles looked like they were full of blood, that he had seen Mother "empty needles into her arm," and that there were a lot of needles in the home. He once saw S.S. playing with a full needle that was on the living room floor.
Z.T. said Father hit S.T. and D.A. with a belt and called them "assholes, bitches, and whores." He said he got so angry at Mother and Father " 'that the whole room turns black.' " S.T. told a social worker Zack had anger issues and needed counseling, and that D.A. also needed counseling because she was " 'having a hard time.' " S.T. said she was fine and would take care of the younger children.
The older children reported that they had missed a lot of school because Father would keep them at home to care for S.S. Father would keep Mother locked in a bedroom or bathroom most of the day, and he would beat her up, throw her against walls and furniture, choke her, and throw things at her. When Father locked Mother in a room to beat her up, S.T. and D.A. would pick the lock on the door to " 'save the baby and our mom.' "
The older children would often take care of S.S. There was rarely food in the home, so they had to scavenge for scraps. Homeless friends of Father's would stay in the house, sleeping in the girls' room while the girls slept in the living room. They would leave used needles, pipes, and blood all over the girls' bedroom, including in their beds.
D.A. told a social worker she was worried about something that had happened. One day, while Mother was passed out, Father locked himself into a bedroom with S.S. and told the older children he had to change her diaper. He stayed in the bedroom with S.S. for about 30 minutes. The older children heard S.S. yelling and screaming, until things went quiet. After Father brought S.S. out of the bedroom, the older children saw her hitting at him and trying to get away from him. The older girls took S.S., who would " 'freak out' " every time Father came near. After that incident, S.S. began coming up to the older children and rubbing her private parts against them and moving her lower body "as if she was humping them." She had never done so before.
The Department submitted addendum reports after the older children were interviewed more extensively. They described in more detail how Father was physically violent to Mother on a daily basis; the children and Mother were trapped in the home; S.T. had to care for S.S. constantly; needles, both used and "loaded," were littered throughout the apartment; Father would grab Z.T. by the neck and choke him when he was angry; Father would strike S.T. and D.A. with belts; three homeless people were allowed to move into the home for several months, take over the older children's bedroom, and keep marijuana and needles there; and there was little food in the home. On one recent occasion, Father tried to hit Mother and instead hit one-year-old S.S. in the face, " 'full strength,' " causing her to fly into a wall and drop to the ground. After this incident, S.S. had a "hand mark" on her face.
As of May 24, 2017, the older children had not attended school for multiple weeks. S.T. had missed seven weeks of school and D.A. had missed three weeks. S.T. said that when Mother and Father did not get up in the morning, she had to wake D.A. and Z.T. and get them ready for school, but she would stay home to care for S.S. She was afraid to leave S.S. alone with Mother and Father because she had once come home from school to find S.S. unsupervised, looking for crumbs in the kitchen to eat, and because S.S. might find one of the needles in the home.
Father and Mother had been evicted from their apartment. When the landlady cleaned out the home, she found multiple needles in the older children's bedroom, the living room, bathroom, kitchen, and S.S.'s crib, and methamphetamine in the bedroom in which Mother, Father, and S.S. slept.
The family had a total of 35 prior child welfare referrals since 2006 related to domestic violence, drug use, and Mother's mental health issues and suicide attempts. When S.S. was born, she tested positive for opiates and methamphetamines.
On August 10, 2017, the juvenile court took jurisdiction over all four children based on a plea agreement. The court sustained allegations that the children had suffered, or there was a substantial risk they would suffer, serious physical harm (§ 300, subd. (a)); that they were at substantial risk of physical harm due to failure to protect them (§ 300, subd. (b)); and that they were at risk of serious emotional damage (§ 300, subd. (c)). The Department dismissed allegations of sexual abuse (§ 300, subd. (d)) and cruelty (§ 300, subd. (i)).
Before the disposition hearing, the Department reported that Mother said she was staying with a family friend and that she and Father were seeking stable housing together. She told the Department the she had never used drugs and that there had been no domestic violence with Father. Father said that there had been " 'a little domestic violence' " with Mother and that he would seek anger management. He denied that he had ever used heroin and said he had "only slipped up on methamphetamine 'a while ago.' " Mother and Father said that all of the children were fine before the Department became involved and that the children were being traumatized by their current care provider.
S.S. (one and a half years old) had tested positive for methamphetamine on a hair follicle test on June 9, 2017. The older children told a social worker that if Mother did not leave Father, they would not return to her care, and they said they wanted a restraining order to protect them from Father. By September 2017, Mother and Father had become engaged.
During a visit with the children, Mother had gotten the older children to tell her where they were staying, told them to run away, and sneaked them letters from Father. Mother's visits were put on hold, but later resumed.
In September 2017, the Department recommended that Z.T. (eight years old) be moved from the home in which the children were placed and placed instead in a therapeutic group home after he subjected another boy at the home to sexualized behavior that caused him pain and required medical treatment.
At the September 19, 2017 dispositional hearing, the juvenile court found there would be a substantial danger to the children's well-being if they were returned home. The court declared the children dependents, placed them out of the home, and ordered reunification services for Mother and Father. Mother's case plan included a mental health evaluation; following her assessor's recommendations; intensive counseling focused on being a survivor of domestic violence; completion of a parent education program; and substance abuse services, including a substance abuse assessment in which she would be honest about past and current drug use, random drug testing, and following all recommendations of her substance abuse assessor. Father's case plan included an assessment and participation in a domestic violence program; completion of a parenting education program; substance abuse services that required him to be honest about his drug use, live free from alcohol and drug dependency, and submit to drug testing; and mental health services, including an evaluation and following his assessor's recommendations.
D. Six-Month Review Period
Reports during the next several months indicated that Mother completed a hair follicle test in October 2017, after bleaching her hair, and tested negative for all substances. Bleaching the hair can affect the results of a hair follicle test.
The same month, Mother spoke with personnel at the "Healthy Moms" program. Because she denied all drug use and would not disclose how substances had affected her, she did not meet the criteria for admission to the program.
Before the six-month review hearing, Mother reported that she was pregnant and was due to give birth in June 2018. She had completed substance abuse assessments and reported no history of drug use, and had completed a psychological evaluation. Her assessor recommended that Mother engage in counseling to address her anxiety and depression, and also that she engage in family therapy. In January 2018, the Department referred Mother for individual counseling. Mother did not act on the referral until it had expired, and the Department made a new referral on February 26, 2018. Mother failed to attend counseling. In February, a supervisor at the Healthy Moms program arranged to meet with Mother to discuss attending the program, but Mother did not attend the meeting or otherwise communicate with the program. Mother received referrals for domestic violence counseling, but did not attend.
Father had completed a substance abuse assessment and did not report any current use of substances. He also had a mental health assessment, after which he was diagnosed with substance abuse disorder, symptoms of anxiety and depression, and co-dependency. He reported being engaged in a substance abuse program. He received a domestic violence assessment. Father's assessors recommended he engage in group counseling for substance abuse, personal counseling, and a 52-week batterer's intervention program. Father denied having engaged in domestic violence, child neglect, child cruelty, or sexual abuse. He said that Mother, not he, was the aggressor in the May 2017 incident that initiated this dependency.
In late 2017, Father attended a substance abuse group regularly and had all negative drug tests. His attendance started to drop by early November 2017. In January 2018, he tested positive for methamphetamine and was discharged from the program for failure to attend groups.
The social worker met with Mother and Father in February 2018. Father told her he had " 'cut himself off' " from everything, that he was not engaging in the batterer's intervention program or substance abuse treatment, that he was couch surfing with friends, and that he did not have a working phone. The social worker encouraged both Mother and Father to engage in their case plan. On February 22, 2018, she gave Father a referral to Humboldt Family Service Center (HFSC) so he could receive counseling and complete a recommended batterer's intervention program. On March 14, Father told her he had gone to HFSC and been told he needed a new referral for services. The social worker contacted HFSC the following day and was informed that Father had been told he needed to complete an assessment before starting classes. According to the social worker's report, no new referral was needed because one had been provided less than a month previously.
Both parents reported having attended four parenting classes. Mother had attended supervised visits with the children regularly, and Father had supervised visitation with S.S.
At the April 23, 2018 six-month review hearing, the juvenile court found the Department had made reasonable efforts to return the children, and continued reunification services.
E. Twelve-Month Review Hearing
A contested 12-month review hearing took place on August 22 and 24 and September 5, 2018. The Department's report repeated much of the background found in the earlier reports and set forth the events that had occurred since the six-month hearing. The Department recommended terminating reunification services and setting a .26 hearing.
In early June 2018, Mother gave birth to a daughter, V.S., who had Father's last name. Mother's accounts of her relationship with Father had been inconsistent, and the Department had received reports they were still an intact couple. After Mother gave birth to V.S., she told a social worker Father was using methamphetamine and he should not be around her or the baby.
According to the Department, Mother had made very little progress toward meeting her case plan goals. She told social workers at the end of June 2018 that she was going to start attending the Healthy Moms program twice a week. On July 10, 2018, the program told a social worker that Mother had attended only two of five scheduled appointments. Mother had not engaged in any other substance abuse program.
In late June, Mother said that she was going to start attending domestic violence groups twice a week and that she would look into acquiring a restraining order. She attended her first domestic violence group session on June 28, 2018.
At the end of May 2018, Father told a social worker he did not know why the children had been removed, that he had never been violent with Mother, and that having him do a batterer's invention program (BIP) was ridiculous. He also said he had contacted the BIP recently and that it was ridiculous that he had been told he must first complete a substance abuse program. He said he had not completed a substance abuse program, and then admitted he had relapsed because of "all of this."
On June 6, 2018, Father told a social worker who had recently been assigned to the case, Kristen Palmero, that he would go to an inpatient treatment program to address his substance abuse, and she arranged a referral to a program. He said he had last used methamphetamine on June 3, 2018, that he had been a heroin addict, that he had gotten off heroin and was using Suboxone, and that he had stopped attending Suboxone treatment groups about two months previously. He said he wanted to resume treatment. Social workers told him they would arrange for payment, and they made another referral for inpatient treatment on June 29, 2018. Palmero told Father on July 3, 2018 that a bed was available for him at a treatment program and gave him the contact information for the intake coordinator.
Father had not followed through with any of the recommendations from his mental health assessment, including group counseling for substance abuse and counseling to address co-dependency issues.
Neither Father nor Mother had submitted proof of current attendance in parenting classes.
All three of the older children had struggled academically due to their excessive absences from school while in Mother and Father's care. Z.T. was far below grade level and would need to repeat third grade. He continued to live in a therapeutic group home due to violent and sexualized behaviors and suicidal ideation. His behavior had improved significantly in the group home.
Social Worker's Testimony
At the hearing, Palmero testified that there was a dependency case on behalf of Mother's new baby, V.S., but that V.S. had not been removed from Mother because there was no immediate safety threat and the Department wanted to give Mother a chance to complete her services. Mother had tested negative for substances.
Palmero testified that she was assigned to the case in April 2018. She verified that Father had attended four parenting classes before the case was assigned to her. She was originally given "bad phone numbers" for Father. She finally received the correct phone number and succeeded in contacting him in late May or early June 2018. When they met, she told Father he had made only minimal progress with his case plan, and he expressed his wish to come into compliance. She offered to refer him to a 30-day inpatient treatment program. Father entered a drug treatment program on July 20.
Palmero testified that Mother had not engaged in individual counseling. Mother continued to deny ever having had a drug addiction problem, "only a little bit of pot here and there." Mother had tested clean for drugs. Palmero had received conflicting reports about whether Father and Mother were still an intact couple.
Father testified that he had an assessment at Humboldt Family Services sometime after the six-month review hearing, but he did not enter a domestic violence program because he was told he would have to complete a substance abuse program first. He had a hard time contacting his social worker to resolve the problem. Father testified that the social worker would tell him she had sent a referral, but when he went to HFSC he would be told they had no referral. According to Father, this happened multiple times.
The original social worker assigned to the case, Rebecca Shuflin, called Father in April, when Mother was in a hospital with pregnancy complications. Palmero was then assigned to the case, and Father testified he tried to call a few times and was unable to contact anyone until his visitation supervisor gave him Palmero's card. Father testified that he left his number repeatedly on Palmero's answering machine but did not receive any calls back, and he left messages for Palmero's supervisor. He then contacted the ombudsman to ask what he could do.
Father relapsed and used methamphetamine in early June, as he admitted to Palmero when he met with her in early June. He entered a residential drug treatment program, had been there for 30 days as of the time of the hearing, and had sought permission to stay another 30 days to work on his recovery. He was attending four to six programs or groups a day, including one addressing family dynamics, and behavioral modification and parenting classes. The issue of domestic violence was addressed in some of his classes. He had begun individual therapy two weeks previously, and had completed one session. This was the third time he had been in an inpatient program.
Father testified that he had never used drugs with Mother and never allowed intravenous drug users to spend the night in the home while the children were in his care. He acknowledged there had been domestic violence between him and Mother.
Mother introduced into evidence a letter to Palermo from the Healthy Moms program, indicating it had found her not a suitable candidate in October 2017 because she did not report any problematic substance abuse and consistently provided clean tests to the program. Mother reapplied to the program in June 2018; Healthy Moms spoke with Palmero, who told them that Mother's recent hair follicle test did not detect any drugs or alcohol in her system and that she did not have any further information indicating Mother had used drugs or alcohol in the past year. Based on this information, Mother was not eligible for Healthy Moms. Mother had told the program she did not want to stop attending the program until the Department told her she was no longer required to attend.
Juvenile Court's Ruling
The juvenile court found that return of the children to the home would be detrimental, found by clear and convincing evidence that reasonable services had been offered, found Mother and Father had not made significant progress in resolving the problems leading to the dependency, and found there was not a substantial probability the children would be returned within 18 months of their removal. The court terminated reunification services and set a .26 hearing.
Mother and Father contend the evidence does not support the juvenile court's finding that it would be detrimental to return the children to Mother's care. We review the juvenile court's finding for substantial evidence, resolving all conflicts in favor of the finding and indulging all legitimate inferences to uphold the finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379; accord In re Mary B. (2013) 218 Cal.App.4th 1474, 1483.)
At the twelve-month hearing, the juvenile court is required to return the child to the parent's custody unless it finds "that the return of the child to his or her 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).) In making its determination, the court considers "the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided." (§ 366.21, subd. (f)(1)(C).) The parent's failure to participate regularly and make substantive progress in court-ordered treatment programs "shall be prima facie evidence that return would be detrimental." (§ 366.21, subd. (f)(1)(B).)
Neither Father nor Mother contend it would not be detrimental to return S.S. to Father's care; rather, their argument is that the evidence does not support a finding that the children—or at least S.S.—could not safely be returned to Mother's care. They rely primarily on the facts that there was no evidence Mother was currently using drugs and that the Department did not believe it was necessary to remove Mother's newborn baby, V.S., from her care.
We must reject this contention. The evidence that Mother used illegal drugs, including methamphetamine, while the children were living with her and Father was overwhelming, as was the evidence that her drug use endangered the children's physical and emotional well-being. Nevertheless, she persisted in denying she had ever had a problem with drugs. There was overwhelming evidence that Mother's relationship with Father was abusive and that the children had been harmed, or at risk of harm, by the violence in the home, but Mother had remained in a relationship with Father and she only began attending domestic violence meetings at the end of June 2018, a year after the children had been removed. She had attended only a few parenting education classes, and she did not engage in mental health treatment as recommended after her psychological assessment. The evidence is ample to support the court's findings that Mother had not addressed the problems that led to the dependency and that the children could not yet be returned safely to her care.
The fact that the Department had left newborn V.S. in Mother's care does not persuade us otherwise. The question before us is whether there is any substantial evidence, contradicted or uncontradicted, that will support the juvenile court's finding. (In re Brison C., supra, 81 Cal.App.4th at p. 1378-1379.) That evidence exists here, and we will not disturb the juvenile court's finding.
B. Reunification Services
Father contends he was not offered reasonable reunification services. A court may not initiate proceedings to terminate parental rights at the 12-month hearing unless the Department proves, by clear and convincing evidence, that it has provided reasonable reunification services. (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) "The adequacy of reunification plans and the reasonableness of [the Department's] efforts are judged according to the circumstances of each case. [Citation.] Moreover, [the Department] must make a good faith effort to develop and implement a family reunification plan. [Citation.] '[T]he record should show that the supervising 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 in areas where compliance proved difficult . . . .' " (Id. at p. 1345.) " '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.' " (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426 (Tracy J.).) We review a finding of reasonable services " 'to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard." (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1239-1240.)
That standard is met here. The Department provided Father with services designed to meet his need for substance abuse treatment, mental health treatment, parenting education, and domestic violence counseling. Father had access to parenting classes. He was given assessments for substance abuse, mental health, and domestic violence in the late summer and fall of 2017. His counselor recommended that he attend a men's recovery group, and Shuflin monitored his progress. As a result of the domestic violence assessment, Father received a referral for a domestic violence program at HFSC. After Father was discharged from the substance abuse program for noncompliance and told Shuflin he had not engaged in the batterer's intervention program or substance abuse treatment, she encouraged him to engage in his case plan and referred him for counseling and domestic violence treatment. When he told her in mid-March he was unable to engage in services at HFSC, she contacted the program and confirmed that he had been told he needed to complete an assessment before starting classes and that he did not need another referral. She contacted him again in April 2018, when Mother was hospitalized. In early June 2018, Palmero met with Father to discuss his case plan, referred him to inpatient treatment after his relapse, and contacted him when a bed was available.
As Father points out, there were gaps in communication between himself and the Department between mid-March and May 30, 2018, when he and Palmero made contact, and there is evidence Father was uncertain how to gain access to the batterer's intervention program. But, as we have explained, the question before us is not whether the services were perfect, but whether they were reasonable under the circumstances. (Tracy J., supra, 202 Cal.App.4th at p. 1426; In re Misako R. (1991) 2 Cal.App.4th 538, 547.) On this record, the juvenile court could reasonably find, by clear and convincing evidence, that Father was offered reasonable services to treat the problems that led to the dependency.
Mother also appears to argue she was not offered reasonable services because the drug treatment program to which she was referred required her to acknowledge that she had a drug problem. As we have noted, the evidence that Mother used drugs is overwhelming. She has failed to show that such a requirement was unreasonable. She has also failed to show that the services she was offered, and of which she largely failed to avail herself—which included individual therapy, domestic violence services, a parenting program, and substance abuse treatment—were not designed to remedy the problems that led to the dependency. (See Tracy J., supra, 202 Cal.App.4th at p. 1426.)
The petition is denied on the merits. (§ 366.26, subd. (l)(1)(C); rule 8.452(h); In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) The request for a stay of the January 2, 2019 hearing is denied. Our decision is final as to this court immediately. (Rule 8.490(b)(2)(A).)
Judge of the Superior Court of California, City and County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------