Margaret M. v. Superior Court CA5 ( 2015 )

Filed 4/10/15 Margaret M. v. Superior Court CA5
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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
FIFTH APPELLATE DISTRICT
MARGARET M.,
F070874
Petitioner,
(Super. Ct. No. 13CEJ300341-1,2)
v.
THE SUPERIOR COURT OF FRESNO OPINION
COUNTY,
Respondent;
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDING; petition for extraordinary writ review. Mary Dolas,
Judge.
Heather A. Von Hagen for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Amy K. Cobb, Deputy County
Counsel, for Real Party in Interest.
* Before Kane, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
Petitioner Margaret M. is the mother of two sons, J. and Z., who are the subject of
these juvenile dependency proceedings. In this writ petition, petitioner asks us to reverse
the juvenile court’s orders of January 20, 2015, terminating her reunification services and
setting a hearing under Welfare and Institutions Code section 366.261, where the juvenile
court will consider whether to terminate petitioner’s parental rights to J. and Z.
Specifically, petitioner argues that the department failed to provide reasonable services
and that the juvenile court erred in terminating her reunification services because she had
made significant progress in her case plan and in resolving the problems that led to J. and
Z.’s removal, and that there was a substantial probability that J. and Z. could be returned
to petitioner within the 18-month time frame after removal. We deny the petition.
STATEMENT OF THE CASE AND FACTS
Detention/Jurisdiction/Disposition
In November 2013, a section 300 petition was filed and J., then three years old,
and Z., then 14 months old, were removed from petitioner’s care after it was reported that
petitioner was using methamphetamine and was unable to provide her children with food,
housing and a safe environment. Petitioner was ordered to receive family reunification
services consisting of parenting classes, a mental health assessment and recommended
treatment, a substance abuse evaluation and recommended treatment, random drug
testing, and a domestic violence evaluation and recommended treatment. The Fresno
County Department of Social Services (department) was given discretion to advance
petitioner’s visits to unsupervised and overnight. Mental health assessments and
recommended treatment were ordered for J. and Z.
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
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J. and Z. were placed with their maternal relatives. At the time of disposition, J.
appeared to have a fear of having food taken from him, and he cried at visits. He did
better with the relative care provider.
Six-Month Review
At the time of the August 2014 six-month review, the department recommended
that family reunification services be terminated, as petitioner made minimal efforts to
participate in services. Since December of 2013, petitioner had been referred to four
substance abuse programs, but failed to follow through on any of them. Petitioner was
again referred to a treatment program and finally started treatment on June 4, 2014.
Petitioner had not participated in random drug testing during the course of the case. She
had been scheduled twice for parenting class, but was dropped for excessive absences.
Petitioner had attended her domestic violence evaluation in January 2014, and was to be
referred to a domestic violence group after she finished inpatient treatment.
Petitioner had been having visits with J. and Z. once a week, supervised by the
relative care provider. Petitioner missed visits for several weeks between the middle of
January and middle of February 2014. She began visits again in the middle of February,
missed a few visits after that, and then stopped contact with the relative care provider at
the end of May 2014.
According to the relative care provider, J. did not listen to petitioner during visits,
and, although he was toilet trained, he wet himself after visits with mother. Both J. and
Z. were destructive after visits with petitioner. Both continued to overeat and constantly
stated they were hungry. A mental health assessment was completed for J. and he was
referred for ongoing treatment. As of June of 2014, he was on a waiting list for a
therapist. No mental health services were recommended for Z.
A contested hearing was held August 4 and 6, 2014. The juvenile court found that
the department had provided reasonable services for petitioner, but that she had failed to
participate regularly. The juvenile court did note that, while the department reported that
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petitioner had failed to make substantial progress, there was evidence to show that, since
enrolling in the substance abuse program in June, petitioner had made good progress.
She was participating in random drug testing with negative results. She was also
participating in the following: parenting classes or would resume participating in
parenting classes (the record was not clear); domestic violence counseling; individual
counseling; and codependency counseling. According to a letter admitted into evidence
and by testimony, petitioner was making significant progress and was demonstrating a
change in her life which was also shown by the fact that she had given birth to her
youngest child, A., during that period, who remained in petitioner’s care and there was no
showing that petitioner posed any risk to her.
The juvenile court noted that J. and Z. had had four placements since being
removed, and the department was in the process of identifying yet another care provider
for them.
Finding substantial probability that J. and Z. would be returned to petitioner by the
time of the 12-month review, the juvenile court continued family reunification services
for petitioner. The juvenile court instructed the department to amend the case plan to
incorporate counseling for J. and conjoint counseling for petitioner and J. to repair their
relationship. The department was again given discretion to advance visitation to
unsupervised and overnight visits. A visitation review was set for September 8, 2014.
Visitation Review
By the time of the visitation review hearing in September 2014, petitioner’s visits
with J. and Z. were reported to be “going well.” The care providers, however, stated that
J. and Z. had issues on their visit days and had been acting out, at times screaming and
seeming to be confused. Z. would scream “no mommy” before visits; J. stated that he did
not like his mother anymore and that he was nervous or anxious on the way to visits.
The department opined that therapeutic supervised visits between J. and Z. and petitioner
might ease some of the anxiety. A referral was requested for such visits.
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Petitioner presented a letter dated September 5, 2014, from her case manager at
her treatment program stating she was making good progress and attending a variety of
classes and therapies. According to the case manager, petitioner appeared to be working
to the best of her abilities to change her past destructive lifestyle. The case manager
hoped that the juvenile court would place J. and Z. with petitioner at the program.
At the visitation review hearing, the department asked that Z. be re-referred for a
mental health assessment, as he was beginning to act out. The department also requested
therapeutic supervised visits. Counsel for J. and Z., as well as petitioner’s counsel, did
not think therapeutic supervised visits would address the minors’ behavior, but that
therapy might. Petitioner’s counsel expressed concern that no steps had been taken to
implement the conjoint counseling, and that it did not seem that there was a plan in place
for building the mother/child relationship and decreasing the children’s negative
behavior.
The juvenile court noted that, as ordered at the last court date, the department was
to make an assessment regarding what therapy or counseling would be beneficial to
petitioner and the children. As there was no assessment in the report, the juvenile court
did not know if the department had followed through as yet. The juvenile court then
ordered therapeutic supervised visits, as well as a second mental health assessment for Z.
The matter was continued until the end of September.
On September 29, 2014, minors’ counsel stated that she had contacted J.’s
therapist to discuss the possibility of providing therapy for Z. as well. The therapist
stated that he would be willing to perform conjoint therapy between petitioner and the
children.
Twelve-Month Review
In a status review report dated November 2014, the department recommended that
family reunification services continue for petitioner. She had been enrolled in treatment
since the beginning of June 2014 and was scheduled to complete the program at the
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beginning of December 2014. She had been doing well and participating in all of her
classes. Petitioner had been attending parenting classes since August of 2014. Although
she had not yet scheduled her mental health assessment as advised, petitioner had been
attending weekly therapy sessions at the program. Her therapist in the program reported
that petitioner was actively participating in the group. Petitioner was addressing
domestic violence issues while at the program and with her therapist there as well. All of
petitioner’s drug tests since June 2014 were negative.
Petitioner had visited her children consistently since the beginning of June;
therapeutic visits began in September of 2014. According to the care providers, the
children’s behavior surrounding visits had improved “a little.” The care providers still
had concerns regarding the transition to unsupervised visits. As a result, the department
held a meeting between the care providers and petitioner to work on transitioning to
unsupervised visits. The supervisor for the therapeutic supervised visits reported that
petitioner did well with the children during the visits and that the therapeutic supervised
visits could continue a bit longer or they could be moved to unsupervised visits. The
department decided there was no reason to continue with therapeutic supervised visits
and mother could start unsupervised visits in November 2014.
J. was in therapy once a week. The therapist stated that J. was very friendly, but
his play was sporadic and seemed to be aggressive in nature. J. was reported to still have
some issues before and after visits, although some improvement was noted. Z. also had
issues with the visits, crying before the visits and becoming very clingy after, although
his behavior had also improved a bit. Z. was re-referred for a mental health assessment
and was in the process of being scheduled for an appointment.
A contested review hearing was set for January 7, 2015. An addendum report
dated December 30, 2014, recommended that petitioner continue to receive reunification
services. The report stated that petitioner had been compliant with the court-ordered
services and had completed her six-month inpatient treatment program at the beginning
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of December and was now in aftercare. She had unsupervised visits with J. and Z. and
continued to care for A., now five months old. Petitioner and A. were residing with
petitioner’s mother. There was a bedroom available for J. and Z. in the home.
The report stated that petitioner had made significant progress in complying with
her services. She was estimated to complete her aftercare program around the beginning
of March 2015. She had completed her parenting classes and was participating in
therapy. She continued to test negative on her drug tests. Visits were consistent.
A., who was not a dependent of the court, appeared to do well in petitioner’s care.
Although the department did not recommend that J. and Z. be returned to petitioner “at
this time,” they stated there was a “probability” that petitioner would be able to reunify
with J. and Z. by the middle of May 2015.
A contested hearing was held January 7 and 8, 2015. The juvenile court issued its
ruling January 20, 2015, finding that petitioner was provided reasonable services but
failed to make significant progress toward resolving the problems that necessitated the
children’s removal and that there was not a substantial probability that the children would
be able to be returned to petitioner by the time of the next hearing. Consequently, the
juvenile court terminated petitioner’s reunification services and set a section 366.26
hearing for April 22, 2015. In making its ruling, the juvenile court found that the
department provided sufficient evidence that return of the minors to petitioner’s custody
would create “a substantial risk of detriment to their safety, protection, physical and
emotional well being” and that continued placement of the children was necessary and
appropriate.
The juvenile court also found that the department had not shown a substantial
probability that J. and Z. would be returned to petitioner prior to the next review hearing.
In making its finding, the juvenile court noted the department’s assertion that there was a
“probability” that the minors would be returned to petitioner prior to the next review
hearing, but found “the evidence used to support that assertion is lacking.” The juvenile
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court found that, while the department was making assertions and conclusions in the
report, “the evidence in their own report is not convincing and identifies a number of
problem areas and a number of concerns that still exist that make it problematic as to
whether the children will be able to be returned.” The juvenile court specifically noted
that, while petitioner had recently and consistently contacted and visited the minors, “the
lack of consistent contact and visits early on and the significant neglect and damage these
two children experienced show that there has not been a significant progress in resolving
the problems that led to their removal. And I don’t believe there’s been evidence to
support that mother has the ability at this time to complete the objectives of her treatment
plan to be able to provide for these two children’s safety, protection, physical and
emotional well-being within the statutory time period.” According to the juvenile court,
“[t]he damage appears to be too significant and there’s just not enough time remaining.
It’s unfortunate mother would not take advantage of the entire time and waited so long.
But I think at this point it’s too little too late.”
This petition ensued.
DISCUSSION
Petitioner now contends that the juvenile court erred (1) when it found that the
department provided reasonable services; and (2) when it terminated reunification
services, finding that the evidence did not show a substantial probability that J. and Z.
could be safely returned to petitioner’s care prior to the next review hearing; that
petitioner had not made significant progress in resolving the issues that led to the
children’s removal; and that there was no evidence to support petitioner’s ability to
complete the objectives of her treatment plan and provide for the children’s safety,
protection, physical and emotional well-being within the statutory period.
I. REASONABLE SERVICES
We first address petitioner’s contention that the juvenile court erred when it found
that the department provided reasonable services. The juvenile court made a reasonable
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services finding on January 20, 2015, at the conclusion of the contested 12-month review
hearing.
“‘In reviewing the reasonableness of the services provided, this court must view
the evidence in a light most favorable to the respondent. We must indulge in all
legitimate and reasonable inferences to uphold the verdict. If there is substantial
evidence supporting the judgment, our duty ends and the judgment must not be
disturbed.’ [Citation.]” (In re Monica C. (1995) 31 Cal.App.4th 296, 306.)
“The adequacy of reunification plans and the reasonableness of the
[agency’s] efforts are judged according to the circumstances of each case.
(In re Edward C. (1981) 126 Cal.App.3d 193, 205 [A plan ‘must be
appropriate for each family and be based on the unique facts relating to that
family’].) Moreover, the [agency] must make ‘[a] good faith effort to
develop and implement a family reunification plan.’ (In re Kristin W.
(1990) 222 Cal.App.3d 234, 254.) … ‘[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 (such as helping to provide transportation and offering more
intensive rehabilitation services where others have failed).’ [Citation.]”
(Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164-1165.)
The adequacy of the reunification plan and of the department’s efforts to provide
suitable services is judged according to the circumstances of the particular case. (Mark
N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011; In re Edward C., supra, 126
Cal.App.3d at p. 205.) The standard is not whether the services provided were the best
that might be provided in an ideal world, but whether the services were reasonable under
the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Visitation and Mental Health Services
Petitioner argues that she participated in all services and did all she could to
ameliorate the conditions that led to the removal of her children, but that the department
failed to develop or implement an appropriate plan to advance visitation, which is critical
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to reunification. According to petitioner, conjoint therapy was incorporated into the case
plan but never provided, and the behavioral concerns at visitation that were interfering
with advancement of visitation were therefore never addressed. Instead, according to
petitioner, the department focused on unnecessarily requiring therapeutic visitation,
which “wasted valuable time.” We disagree.
The record shows that petitioner failed to visit the children consistently from the
time the children entered the dependency system in November of 2013 until the time she
finally entered inpatient substance abuse treatment at the beginning of June 2014.
Restarting regular visitation at that point caused the children a great deal of issues before
and after the visits, including acting out, crying, and confusion. Because of this, the
department began therapeutic supervised visits beginning in September of 2014.
Petitioner’s argument is that, rather than therapeutic supervised visits, the
department should have focused on conjoint therapy, which would have allowed
petitioner and the children to progress to overnight visitation. Petitioner argues the
department’s “failure to provide any mental health services for over twelve months to
address the minors’ obvious behavior concerns delayed visitation and was clearly
unreasonable under the circumstances.” However, the record shows that both children
participated in mental health assessments in April of 2014, many months prior to the
January 2015 review hearing. At the time of the assessments, Z. was not recommended
for further mental health services; J. was referred for individual therapy by the
department. J. was taken to a private provider by his caretakers while the referral from
the department was pending. He continued to participate in individual therapy once a
week since the middle of 2014. Z. began having behavioral issues only after mother
began regular visitation with the children. At that time, the department determined that
Z. would likely benefit from a second mental health assessment and asked the juvenile
court to make such an order. At the time of the 12-month review hearing, Z. was in the
process of being scheduled for such an assessment. The social worker had also spoken to
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the therapist about conjoint therapy and the therapist said he would be willing to do it.
However, when asked if a start date had been discussed the social worker stated, “No.
When I’ve had other cases where that’s being discussed, usually the therapist has told me
they would let me know when they felt it was a good time.”
On the facts of this case, while there was delay in individual therapy for Z. and
possible conjoint therapy for petitioner and the children, we cannot say that the services
provided were unreasonable. As stated in Melinda K. v. Superior Court (2004) 116
Cal.App.4th 1147, 1159:
“Clearly, the delay in the minor’s individual counseling rendered the
services provided imperfect, but rarely will services be perfect. [Citation.]
‘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.’ [Citation.]”
Here, the department made reasonable efforts to encourage and facilitate visits and
additional mental health options for petitioner and the children.
Housing
Petitioner makes the additional argument that the department should have
informed her that living with her mother would thwart her overnight visits or of having
the children placed with her. We find her argument meritless.
As evidenced by the record, petitioner’s choice of living with her mother was
discussed with her. According to the social worker who testified at the 12-month review
hearing, when petitioner completed inpatient treatment, she chose to move to Kerman to
live with her mother, although the department would have provided transitional housing
for her, a fact that was discussed with petitioner. Petitioner had said she preferred to be
with her mother because she did not feel Fresno was a good place for her. The
department explained to petitioner that her mother’s home would have to pass an
inspection in order for the children to be able to visit. And according to the social worker
who testified at the review hearing, the department was not able to “clear the home,” but
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that once it was cleared for visits, it would not be difficult for the children to be placed
there. The addendum report prepared for the 12-month review hearing stated that
petitioner’s mother’s home was “cluttered and [petitioner] agreed to clear out the clutter
in the home so that she may visit with J[.] and Z[.] in her home.” Housing was
adequately discussed with petitioner.
Domestic Violence Treatment
Petitioner finally alleges that reasonable services were not provided because the
department never referred her for domestic violence treatment or a domestic violence
victim’s group that was required as part of her court-ordered treatment plan. Again, we
reject her contention.
The record shows that petitioner had attended her domestic violence evaluation in
January 2014, and was to be referred to a domestic violence group after she finished
inpatient treatment. The report in anticipation of the 12-month review stated that
petitioner just completed inpatient treatment in December of 2014, a month before the
review hearing. While in the inpatient program, she had actively participated in services
and weekly therapy sessions, and she was addressing domestic violence in those services
and with her therapist. Thus, while she may not have been referred to a specific domestic
violence group, she was receiving services in that area.
Conclusion
Substantial evidence supports the juvenile court’s finding that reasonable services
were provided petitioner and we reject her claim to the contrary.
II. TERMINATION OF REUNIFICATION SERVICES
Petitioner contends that there is no substantial evidence to support the juvenile
court’s order terminating reunification services because she had made significant
progress in her case plan and in resolving the problems that led to J. and Z.’s removal,
and that there was a substantial probability that J. and Z. could be returned to petitioner
within the 18-month time frame after removal.
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“[F]amily preservation is the first priority when dependency proceedings are
commenced. [Citation.]” (In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1112.) For that
reason, the juvenile court is required to provide family reunification services when it
removes a child from parental custody. (§ 361.5, subd. (a); but see id., subd. (b).)
However, the duration of family reunification services is not limitless. Further,
expeditious resolution of the dependent child’s status is also a priority, especially where
infants and toddlers are involved. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166,
174-175.)
When children are removed from parental custody, the age of the child at removal
generally dictates the duration of reunification services. As a general rule, parents are
granted 12 months of services if the child is three years of age or older and six months of
services if the child is under the age of three. (§ 361.5, subd. (a)(1)(A)-(B).) However,
as relevant here, reunification services for a sibling group which includes a child under
the age of three are provided for a period of six months from the dispositional hearing as
provided in section 366.21, subdivision (e), but no longer than 12 months from the date
the child entered foster care as provided in section 361.49, unless the child is returned to
the home of the parent or guardian. (§ 361.5, subd. (a)(1)(C).) Notwithstanding
subparagraphs (A), (B), and (C) of paragraph (1) of section 361.5, court-ordered services
may be extended up to a maximum time period not to exceed 18 months after the date the
child was originally removed from the parent’s custody. (§ 361.5, subd. (a)(3).)
In order to extend reunification services, the juvenile court must find that there is a
“substantial probability” that the child will be returned to parental custody and “safely
maintained” in the home within the extended time or that reasonable services were not
provided. (§ 366.21, subd. (g)(1); see also § 361.5, subd. (a).) In order to find there is a
substantial probability that the child will be returned to the physical custody of his or her
parent and safely maintained in the home within the extended period of time, the court
must find: “(A) That the parent … has consistently and regularly contacted and visited
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with the child. [¶] (B) That the parent … has made significant progress in resolving
problems that led to the child’s removal from the home. [¶] (C) The parent … has
demonstrated the capacity and ability both to complete the objectives of his or 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).)
The applicable standard of review is sufficiency of the evidence (Amanda H. v.
Superior Court (2008) 166 Cal.App.4th 1340, 1346) and it is petitioner’s burden of
showing the finding or order is not supported by substantial evidence. (In re Megan S.
(2002) 104 Cal.App.4th 247, 250-251.)
In this case, May 2015 marks the 18-month maximum period of reunification
services. In order to continue reunification services until then, the juvenile court had to
find that there was a substantial probability that J. and Z. could be placed with petitioner
and safely maintained in her home by that time. The juvenile court stated it could not
make those findings since petitioner, although making strides in her case plan, had not
progressed to the point where she could safely care for J. and Z. on her own and she
would not be able to do so by May of 2015. We concur.
J. and Z. were originally detained in November of 2013. While petitioner was
now making progress in her case plan, she was already given a second chance for
reunification services at the six-month review hearing because it was not until June of
2014, some six months after the children were detained, that petitioner even began
substance abuse treatment and visiting the children regularly. She completed her
inpatient treatment in December of 2014 and, even assuming she would continue her
outpatient treatment, she was not scheduled to complete her outpatient program until the
beginning of May 2015. And while petitioner was now consistently and regularly
visiting the children, she had just begun unsupervised visits in December of 2014. In
addition, while the department opined that petitioner was not ready to provide for J. and
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Z.’s well-being at the time of the January 2015 hearing, it stated, without assurance, that
there was a “probability” she would be able to do so by the middle of May 2015.
“The juvenile court has a special responsibility to the child as parens patriae and
must look to the totality of a child’s circumstances when making decisions regarding the
child.” (In re Chantal S. (1996) 13 Cal.4th 196, 201.) Further, the juvenile court may
consider all relevant evidence in making its findings. (M.V. v. Superior Court, supra, 167
Cal.App.4th at p. 181.) It alone determines where the weight of the evidence lies. (In re
Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
The appellate record in this case contains substantial evidence supporting the
juvenile court’s finding that there was not a substantial probability J. and Z. could be
returned to petitioner’s custody by the 18-month review hearing. We thus reject
petitioner’s contention that the juvenile court erred when it terminated petitioner’s
reunification services and set a section 366.26 hearing to consider terminating her
parental rights.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.
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