M.D. v. Super. Ct. CA1/3 ( 2015 )

Filed 9/2/15 M.D. v. Super. Ct. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
M.D.,
Petitioner,
v. A145234
THE SUPERIOR COURT OF THE CITY
(City & County of San Francisco
AND COUNTY OF SAN FRANCISCO,
Superior Court Case Nos.
Respondent; JD 143020 & JD 143020A)
SAN FRANCISCO HUMAN SERVICES
AGENCY et al.
Real Parties in Interest.
M.D., mother of an 11-year old daughter, I.B-D., and a ten-year old son, M.B-D.,
challenges the juvenile court’s May 13, 2015 order terminating reunification services and
setting a hearing, pursuant to Welfare and Institutions Code section 366.26.1 Mother
filed a timely petition for an extraordinary writ. For the reasons stated below, we deny
the petition.
FACTUAL AND PROCEDURAL BACKGROUND
On January 22, 2014, the San Francisco Human Services Agency (Agency) filed a
juvenile dependency petition pursuant to section 300, which, as amended on February 3,
1
Unless otherwise noted, all statutory references are to the Welfare and Institutions
Code.
1
2014, alleged that M.D. had an untreated alcohol problem that was impacting her ability
to parent her children safely. The amended petition further alleged that the children
lacked any provision for support because the whereabouts of the father were unknown
(although it was believed he had been deported and was currently in Guatemala) and
M.D. was incarcerated for driving under the influence with a suspended license.
The Agency filed a jurisdictional report with attachments on January 22, 2014.
According to the report, M.D. had been emotionally abused and sexually molested before
the age of 14. A subsequently prepared substance use assessment noted that she began
using alcohol at the age of 11. Her criminal history includes convictions in 2007 for
driving with an open container; in 2008 for driving under the influence; in 2010 for
falsely reporting a crime; and in 2012 for driving with a suspended license. She has 17
aliases. She has numerous arrests, primarily, but not exclusively, for alcohol-related
offenses.
The agency received a referral on October 28, 2013 that M.D. had assaulted both
of her children. The referral notes that M.D., while intoxicated the previous weekend, sat
on top of and choked her daughter. Her son intervened and the maternal grandmother
temporarily took the children out of the home. The following day M.D. punched her son.
The daughter also reported that M.D. had previously hit her with a sandal and had
slapped her. According to the son, M.D. drove him and his sister while she was drunk;
on one occasion she accidentally touched his genitalia while drunk. The grandparents
confirmed the allegation that M.D. drives the children when drunk. M.D., when
interviewed, confirmed that she once accidentally touched her son’s privates while she
was drunk, but also explained that he was angry and difficult and often unwilling to
shower, requiring her to watch while he showers.
M.D. also explained that she only drinks about one beer per night and does not
drink during the day. She also claimed that she and I.B-D. play roughly with one another
and that when I.B-D. indicated she was hurt, M.D. stopped playing.
The Agency, upon investigating the October referral, requested that M.D. sign a
safety plan in order to retain custody of the minors. M.D. declined to sign the safety
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plan. The Agency obtained a warrant to remove the children and mother signed the
safety plan on October 31, 2013. Apparently, in return for the Agency’s foregoing of its
detention request that the children be detained, M.D. agreed that she would not drive the
children nor be alone with them. She also agreed to complete a Homeless Prenatal
Program alcohol-related assessment and program. In addition, the safety plan called for
the maternal grandmother, the maternal step-grandfather, and maternal uncle to provide
supervision. The child welfare worker on several occasions attempted to contact M.D. in
order to assess mother’s compliance with the safety plan requirements. On November 26,
the child welfare worker was able to speak with her. During that conversation M.D.
stated “she never agreed to refrain from being alone with [the children], and never agreed
to refrain from driving them, and only agreed to refrain from driving the children to
school, contrary to the safety plan as signed.” M.D. “countered she was driving [the
children] to the store and to other places, that she was too busy to meet with the worker,
and that she would instead telephone[] the supervisor.” At a December 5, 2013, meeting
attended by the worker’s supervisor, M.D. and the minors, M.D. agreed to abide by the
provisions of the safety plan. Two weeks later on December 17, 2013 the Agency
received a new referral, wherein it was alleged that M.D. had become very drunk, would
not allow the children to eat dinner, got on top of I-B.D., screamed at her, and pulled her
hair and yelled at and grounded the minors for no reason. The maternal uncle was at the
grandmother’s home during this incident and eventually stopped the fight; it was
unknown why he did not intervene sooner. M-B.D., when interviewed, stated that his
grandmother was home during the incident, but could not intervene because she was
“resting.” However, the agency’s report questioned whether the grandmother was really
home at this time.
M-B.D.’s school counselor reported that M-B.D.’s behavior had worsened in
December 2013, and that the child reported that he could not think because M.D. was
drinking a lot. The school counselor also reported that a couple of coaches smelled
alcohol on M.D.’s breath and one of them, who had known M.D. for years, reported that
her drinking was getting worse.
3
The Agency removed the minors from M.D.’s care on January 31, 2014. On
February 3, 2014 the Agency filed a detention report, after M.D.’s January 23, 2014
arrest for driving under the influence and with a suspended license. When it filed the
report M.D. was incarcerated, no bail had been set, a further hearing was pending, and
she was unavailable to care for the children. The report outlined mother’s failure to
cooperate with Agency’s attempts to provide her with voluntary services or with the
Agency’s attempts to mitigate the risks to her children. In summary, with respect to
mother, the report stated: M.D. “has not discontinued her use of alcohol which poses a
risk to the minors in that she has been physically abusive towards [I-B.D.] when under
the influence. She has not accessed other services to address or mitigate the risk of
physical abuse to the minors.” The juvenile court detained the children. On March 4 the
Agency filed a disposition report recommending placement with the maternal
grandparents and also requested that the mother receive reunification services. M.D.
remained incarcerated and her release date was unknown. However, she had begun
receiving services in the Santa Rita Jail, and was participating in the “Moms’ Program”2
and she was scheduled to have begun a substance abuse program. The Agency’s
assessment contained in its disposition report indicated that the children and M.D. were
attached to one another and their relationship had many positive attributes. Nonetheless,
M.D.’s use of alcohol was “abusive,” posing a long-term risk of harm to the children.
Past attempts to maintain the children with M.D. under supervision by relatives had been
unsuccessful. M.D. continued to drive with the children while intoxicated and was
physically and emotionally abusive. The children felt guilty for reporting their mother’s
behavior and for their removal. M.D. was minimizing her responsibility for the situation
and denying she had an alcohol problem. In addition, M.D. was reported to be suffering
from a brain tumor. The report noted the importance of understanding what impact this
2
The March 11, 2014 Disposition Report references M.D.’s participation in the
“Mom’s Program” offered in the Santa Rita Jail. It does not describe that program in any
detail, other than to state M.D. was receiving “intensive case management” through the
program.
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might have on her cognitive and emotional state and the need for services. It
recommended that the children remain with a relative and that the mother receive
reunification services.
On March 26, the juvenile court took jurisdiction of the children, placed them with
a relative (the maternal grandmother), and ordered that reunification services be provided
to M.D. Specifically, those services required M.D. (1) to complete a substance abuse
assessment and follow the treatment recommendations in the assessment, (2) complete an
alcohol abuse treatment program recommended by the substance abuse counselor,
(3) submit to alcohol testing, (4) participate in individual therapy focused on issues that
affected her parenting, including, but not limited to, alcohol abuse and physical violence,
(5) obtain medical care for any condition affecting her ability to parent, (6) visit the
children as approved by the Agency, including participating in therapeutic visitation, if
appropriate, and (7) sign the necessary documents for the release of information
necessary to assess her completion of the reunification requirements.
The Agency filed its six-month status report, in September 2014. The six-month
review recommended that the children be returned to M.D.’s care, under Agency
supervision, and that M.D. receive family maintenance services. Further, the report noted
that M.D. had been serving her time for driving under the influence on weekends. She
had several weekends left to serve, but, other than two missed tests, had consistently been
testing negative. M.D. was addressing the issues that had precipitated her involvement
with the Agency and she had taken appropriate action to deal with her medical issues.
She had progressed from weekly therapeutic visits with the children at Alternative Family
Services to visits supervised by an approved family member. In summary, the Agency
found that M.D. had made “significant progress,” proactively engaging in services. The
children reported that their visits with M.D. had been “going great,” and she had been
“extremely dedicated to complying with her case plan.” Although the Agency still
recommended family therapy and for M.D. to complete her outpatient [alcohol] program,
it concluded “it would be safe and in the best interest of the children for [M.D.] to return
home. . . .”
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Unfortunately, shortly after the court conducted its six-month review, the Agency
filed an addendum report on October 3, stating “the family dynamics have changed
drastically.” The addendum noted that on September 9, M-B.D. reported that M.D.
smelled of alcohol during the visit. He stated that he would not feel safe if M.D. returned
home. On September 23, M-B.D. played for the social worker a video he had recorded of
his mother yelling at I-B.D. after M.D. had been drinking. That same day the social
worker learned that M.D. had stopped attending her therapy sessions about two months
earlier. The social worker described tension between the mother and maternal
grandmother in the family’s home and a “lack of consistency around rules and structure
of visitation has led to a chaotic situation.” As a result, the Agency recommended that
M.D. be ordered to complete a residential treatment program, stating that only in an
inpatient setting could the mother’s alcohol use be closely monitored and, absent such
monitoring, there would be great concern for the children’s safety.
On January 6, 2015, the Homeless Prenatal Program, in response to the Agency’s
request for an assessment of mother, filed its report. It recommended continued
outpatient treatment for M.D. “for the time being,” but cautioned that if she missed a drug
test, had a positive drug test, had a diluted drug test, or exhibited poor participation in her
treatment program, that she “transfer to an intensive structured [residential] treatment
program” in addition to maintaining her weekly and random testing regimen.
A contested six-month review hearing was held on January 6, 2015. At the
conclusion of the hearing, the court ordered that M.D. continue to receive reunification
services and supervised visits with the children.
In advance of the 12-month review hearing the Agency submitted its report
recommending that reunification services be terminated. The Agency supported its
recommendation based on the following evidence. M.D. had had five positive alcohol
tests. During a meeting to discuss her test results she repeatedly stated she would not
undergo residential treatment. When the social worker explained that only several
months of family reunification services remained available, M.D. indicated she would
take her chances. She would not discuss her reasons for rejecting residential treatment.
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M.D. did request a referral for anger management classes for the children; however the
social worker believed that M.D. failed to grasp the relationship between her use of
alcohol and the children’s anger. The Agency opined that reunification was unlikely due
to the mother’s denial and refusal to attend an inpatient treatment program. M.D., who
had a history of seizures, suffered a major seizure on October 18, 2014; she seemed to
have memory problems. She also seemed to have difficulty understanding how
reunification with the children would be affected if she did not complete her case plan.3
The social worker believed that M.D. was having difficulty understanding the
implications of her failing to complete her case plan regarding the possibility of
reunifying with the children and noted the possibility that M.D.’s seizures could be
triggered by, among other things, inadequate medication, stress, and/or alcohol use.
Regardless, the Agency did discuss with M.D. a plan to address her medical needs.
At the contested 12-month hearing the social worker testified that she believed
M.D. needed residential treatment. Construing missed and abnormally diluted tests, as
positive, the worker testified that M.D. had five positive tests between February 23, and
April 29, 2015. The worker reported that she had been in touch with both M.D.’s prior
therapist and her current therapist. The current therapist informed the worker that the
mother’s therapy was at the initial stage. The former therapist indicated that the mother
had been engaging in the therapy, but was in a state of “strong denial” regarding her use
of alcohol, and had stopped attending sessions. When M.D. refused the inpatient
treatment option, as a next-best alternative, the social worker recommended that she
transfer to a more intense outpatient treatment program, which M.D. started.
The social worker also testified regarding the subject of visitation. The worker
indicated that mother reliably attended her therapeutic visitations with the children and
that the therapist indicated that the children felt safe with her. M.D.’s cousin, N.R.,
testified that M.D. is close with her children and that they engage in normal activities just
3
The record before us is devoid of medical documentation regarding the interaction
between M.D.’s seizures, memory problems, drinking, and ability to comply with her
case plan.
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like any other family. The maternal grandmother and children’s caretaker, R.O.,
generally testified that the children and M.D. enjoyed a loving relationship and that the
children’s behavior was improved when M.D. was present; she also stated that her
daughter had improved significantly. When confronted with M.D.’s positive alcohol
tests, the maternal grandmother testified, “I really don’t see her drinking anymore.
Maybe she is drinking, but like not that I know or not that the kids know. And for me it’s
like winning.”
M.D. testified at the 12-month hearing. She admitted that she had not followed
through on the Agency’s recommendation to enter inpatient treatment, that she had tested
positive for alcohol, and, she had used alcohol within a month prior to the hearing.
However, she maintained that she had not drunk to excess within the past six months, had
not been out of control due to alcohol during that time, had not been arrested for any
alcohol-related offense during that period, and had not driven under the influence in the
previous six months. She testified that “at the moment” she did not consider herself to
have a “substance abuse addiction to alcohol.” She stopped attending Alcoholics
Anonymous about two weeks before the hearing. M.D. confirmed that she failed to
graduate from Dependency Drug Court (DDC), and that she discharged herself from the
program. During her substance abuse counseling in both programs mother had had two
sponsors, although she did not know her sponsor’s name. She testified that she had
completed about two steps in the 12-step program, but was unable to remember any
particular step. During her testimony at the hearing, M.D. reiterated her refusal to enter
inpatient treatment because outpatient treatment was helping her “enough.”
On May 13, 2015 at the conclusion of the 12-month contested hearing, the
juvenile court terminated reunification services, finding that there was not a substantial
probability that the children could be returned to M.D. by the 18-month review. The
court’s “overall concern [was] mother’s continuing challenge with alcohol and her failure
to accept that she has a problem, and it is a problem of a magnitude that does not enable
her to safely parent her children.” The court acknowledged mother’s regular visitation
with the children, which surpassed the number of visits which had been officially
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approved, but concluded that she “has not demonstrated the capacity and ability to
complete the objectives of the treatment plan that would enable her to provide for the
children’s safety, protection and physical and emotional health.” The court determined
that reasonable efforts had been made to provide her with services tailored to overcoming
the problems that led to the children’s removal and set a hearing, pursuant to section
366.26 for September 16, 2015.
On May 20, 2015, M.D. filed a notice of intent to file writ petition in the superior
court and, after receiving the petition, this court issued an order to show cause on July 9,
2015. After the Agency filed its opposition, all parties waived oral argument.
DISCUSSION
M.D.’s petition challenges the juvenile court’s order terminating services and
setting the section 366.26 hearing on the ground that the Agency failed to sustain its
burden of proving that there was not a substantial probability of the children being
returned to their mother. As explained below, substantial evidence supports the juvenile
court’s finding in this regard.
Both parties agree that the applicable standard of review in this case is the
“substantial evidence standard.” As such we do not resolve conflicts in the evidence or
determine the credibility of witnesses. (Garrett v. Duncan (1959) 176 Cal. App. 2d 296,
298.) All reasonable inferences which support the court’s finding must be indulged and
where more than one inference can be reasonably deduced from the facts, we may not
substitute our conclusion for the juvenile court’s. (Id. at pp. 298-299.) All evidence that
supports the juvenile court’s ruling is assumed to be true and unfavorable evidence is
disregarded. (Id. at p. 299.)
I. THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE FINDING THAT
THERE IS NOT A SUBSTANTIAL PROBABILITY THAT THE CHILDREN
WILL BE RETURNED TO THE MOTHER BY THE ANTICIPATED DATE OF
THE 18-MONTH STATUS REVIEW HEARING.
The juvenile court has the discretion to extend the reunification period up to 18
months from when the child was originally removed from the parent’s physical custody
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only if it finds a substantial probability that the child will be returned to his parent’s
custody and safely maintained there. (§ 361.5, subd. (a)(3); Denny H. v. Superior Court
(2005) 131 Cal. App. 4th 1501, 1509.) To make this required finding the court must find
(1) that the parent has consistently and regularly contacted and visited the child; (2) that
s/he has made significant progress in resolving the problems that led to the child’s
removal; and (3) that s/he has demonstrated the capacity and ability to complete the
objectives of his/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).)
Assuming reasonable services have been provided, unless there is a substantial
probability of reunification within 18 months of removal, reunification services must be
terminated. (See In re Andrew L. (2004) 122 Cal. App. 4th 178, 190-91.)
The record before us reflects that the minors/children were first removed from
mother on January 31, 2014. By May 13, 2015, the date the juvenile court set the section
366.26 hearing, less than three months remained for the mother to achieve her treatment
goals. Yet, as late as the 12-month contested hearing, mother did not believe she suffered
from an active alcohol addiction problem. She refused to enter a residential drug
treatment program — while continuing to use alcohol and test positive for alcohol
consumption. She did not know the name of either of her two sponsors, was only
vaguely familiar with the 12-steps and she unilaterally stopped attending Alcoholics
Anonymous and failed to completed her drug court program. Given her history of
engaging in physical and emotional abuse regarding the minors when drunk, her repeated
instances of operating a vehicle with the children as passengers when she was under the
influence, her refusal to submit to residential treatment, her consistent pattern of
temporary improvements and regression with respect to her ability to control her alcohol
addiction, we have no trouble concluding that Agency established that there was not a
substantial probability of the children being returned to their mother. Thus, the juvenile
court’s decision to terminate reunification services and set a section 366.26 hearing is
supported by substantial evidence.
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DISPOSITION
The petition for an extraordinary writ is denied. To expedite the prompt resolution
of this case, our decision is immediately final as to this court. (Cal. Rules of Court, rules
8.452(i), 8.490(b)(2)(A).)
_________________________
Jenkins, J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
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