In re B.D. CA2/2 ( 2021 )

Filed 11/18/21 In re B.D. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re B.D. et al., Persons B311000
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 20CCJP01715 A &
B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
E. D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Annabelle G. Cortez, Judge. Affirmed.
Linda J. Vogel, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
******
E.D. (mother) appeals the finding of the juvenile court that
the Los Angeles Department of Children and Family Services
(the Department) made reasonable efforts to provide her
reunification services during the first six months after her two
children were removed from her custody as dependents of the
juvenile court. Because the court’s finding was supported by
substantial evidence, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Mother and Martin W. (father) have two sons—B.D. (born
September 2017) and K.D. (born July 2019).
In late February 2020, mother left B.D. in the care of her
sister and her sister’s friend; while under their care, B.D. fell into
an ungated swimming pool. Although B.D. was floating in the
pool, unconscious, when the sister and friend discovered him,
they managed to revive him. Both mother’s sister and the friend
were under the influence of marijuana. Mother was upstairs
napping the whole time. Mother and father later admitted to
using marijuana, and marijuana paraphernalia was strewn
2
across the home where mother, her sister, father, and two of
father’s friends all lived.1
II. Procedural Background
In late March 2020, the Department filed a petition asking
the juvenile court to exert dependency jurisdiction over B.D. and
K.D. on eight different grounds. In August 2020, mother entered
a no contest plea agreeing that dependency jurisdiction was
appropriate because (1) mother allowed her sister and the friend,
both “known abusers of marijuana[,] to supervise [B.D.] while
under the influence of marijuana,” (2) mother is a “current abuser
of marijuana,” (3) father is a “current abuser of marijuana,” and
(4) mother “has mental and emotional problems including anxiety
which renders [her] incapable of providing the children
appropriate parental care and supervision.”2 Mother agreed that
each allegation places the children at substantial risk of serious
physical harm, thereby warranting the exercise of dependency
jurisdiction under subdivision (b) of Welfare and Institutions
Code section 300.3 The juvenile court removed the children from
mother and father, and ordered the Department to provide
mother with the following reunification services as part of her
case plan: (1) drug and alcohol services, including (a) a full drug
1 These facts are taken from our prior, unpublished opinion
in B.D. v. Martin W. (Mar. 11, 2021, B307250).
2 The juvenile court dismissed the remaining four grounds
alleged in support of jurisdiction. The Department also alleged
that jurisdiction was appropriate due to father’s conduct, but
because father is not a party to this appeal, we do not discuss him
further.
3 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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and alcohol program with aftercare, (b) random and on-demand
drug testing, and (c) a 12-step program; (2) individual counseling
to address her case issues and parenting; and (3) monitored
visitation. The court set a six-month review hearing for February
2021.
Over the next six months, mother had in-person visits with
the children three times a week through December 2020, when
mother asked for the visits to become “virtual” to protect the
children from exposure during the fall 2020/winter 2021 COVID
“surge.” Mother also enrolled in and attended five individual
counseling sessions. And mother participated in random drug
testing, but was still testing positive for marijuana, albeit at
decreasing levels. By the end of the six-month period, mother
had not yet enrolled in a full drug and alcohol program or started
a 12-step program.
The juvenile court held its six-month review hearing on
February 8, 2021. The Department filed a report before the
hearing outlining the above facts and indicating that it made
“monthly face to face contact with the children” and “[m]ade
efforts to make monthly face to face and telephone contact with
mother.” The Department concluded that mother was in “partial
compliance” with her case plan.
At the hearing held on February 8, 2021, mother argued
that the Department had not made reasonable efforts to provide
mother with reunification services because (1) the Department’s
report did not expressly state that it gave mother any referrals
for services, (2) the Department’s service logs did not document
any contact with mother in November 2020, December 2020, or
January 2021, and (3) the Department did not meet every month
with mother. The juvenile court rejected mother’s argument,
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finding “by clear and convincing evidence that the Department
has complied with the case plan in making reasonable efforts” to
provide reunification services. The court found mother to be in
partial compliance with her case plan, commended mother on her
progress, ordered another six months of reunification services for
mother, and set a 12-month status hearing for May 2021.
Mother filed this timely appeal.
DISCUSSION
Mother argues that the juvenile court erred in finding that
the Department had made reasonable efforts to provide her with
reunification services during the first six months after the
children were removed from her custody.
As a threshold matter, we note that our standard of review
is unclear. To be sure, it is clear that we are to review a juvenile
court’s reasonable efforts finding for substantial evidence. (T.J.
v. Superior Court (2018) 21 Cal.App.5th 1229, 1238 (T.J.).) This
means we view the record in the light most favorable to the
juvenile court’s finding, which includes drawing all reasonable
inferences in favor of that finding. (In re Misako R. (1991) 2
Cal.App.4th 538, 545; In re Monica C. (1994) 31 Cal.App.4th 296,
306 (Monica C.).) What is unclear is whether the juvenile court
must make its reasonable efforts finding by clear and convincing
evidence or by a preponderance of the evidence. This matters
because the applicable standard of proof affects our substantial
evidence review. (In re V.L. (2020) 54 Cal.App.5th 147, 155.) On
the one hand, many opinions have used language suggesting that
a reasonable efforts finding must always be made by clear and
convincing evidence. (E.g., Katie V. v. Superior Court (2005) 130
Cal.App.4th 586, 594; In re Precious J. (1996) 42 Cal.App.4th
51463, 1472-1473; Monica C., at p. 306.)4 On the other hand, the
pertinent statute requires a reasonable efforts finding at each
status review hearing (§ 366.21, subd. (e)(8); Serena M. v.
Superior Court (2020) 52 Cal.App.5th 659, 674), but only requires
that the finding be made by clear and convincing evidence if (1)
the period of reunification services offered “has met or exceeded
the time period” set forth in section 361.5 and the child is still
removed from his parent, and (2) the court orders a permanency
planning hearing while a child is still removed from his parent (§
366.21, subds. (g) & (g)(1)(C)(ii)). Here, the elevated standard of
proof would not seem to apply because (1) the juvenile court
finding at issue is from the six-month review hearing and, for
children under age three at the time of detention, the time period
in section 361.5 is 12 months (§ 361.5, subd. (a)(1)(B)), and (2) the
juvenile court did not set a permanency planning hearing. We
will nonetheless sidestep this potential controversy by applying
the substantial evidence standard through the prism of a clear
and convincing evidence standard of proof.
An agency makes “reasonable efforts” to provide
reunification services when it “offer[s] services designed to
remedy” the problems identified in the parent’s case plan,
“maintain[s] reasonable contact with the parents during the
course of the . . . plan,” and makes “reasonable efforts to assist
the parents in areas where compliance proved difficult.” (In re
Riva M. (1991) 235 Cal.App.3d 403, 414, italics in original; In re
Dino E. (1992) 6 Cal.App.4th 1768, 1777.) “Reasonable” efforts
are “good faith” efforts that are “reasonable under the
4 Many of these cases cite what appears to be a former
version of section 366.21, subdivision (g)(3) in support of their
holdings.
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circumstances”; to be reasonable, the efforts need not be ideal or
perfect. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158,
1164, 1166 (Robin V.); In re Kristin W. (1990) 222 Cal.App.3d
234, 254; T.J., supra, 21 Cal.App.5th at p. 1240; Misako R.,
supra, 2 Cal.App.4th at p. 547.)
We conclude that substantial evidence supports the
juvenile court’s finding, by clear and convincing evidence, that
the Department made reasonable efforts to provide reunification
services. It is undisputed that the Department’s efforts resulted
in mother having face-to-face visits with the children three times
a week until mother asked that the visitations become virtual.
Because the “key element of reunification” is visitation (In re
Julie M. (1999) 69 Cal.App.4th 41, 50; Monica C., supra, 31
Cal.App.4th at pp. 306-307), the Department’s successful efforts
in assuring visitation are substantial evidence of its reasonable
efforts. What is more, the Department provided mother with the
information necessary for her to enroll in—and participate in—
individual counseling. The Department also ensured that mother
had regular drug tests. The Department also had face-to-face
contact with the children every month, and spoke with mother
regularly during the six month period regarding the progress she
was making on her case plan, including in September 2020,
November 2020, and January 2021. To be sure, mother was not
able to enroll in the full drug and alcohol program or the 12-step
program, but the Department’s efforts along every other aspect of
mother’s case plan constitutes clear and convincing evidence of
its reasonable efforts to assist mother in complying with her case
plan. What is more, there is no evidence in the record that
mother’s failure to enroll in the full program or the 12-step
program were due to the Department’s failings or the COVID-19
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pandemic rather than mother’s decision to focus on certain
aspects of her case plan first. Given the absence of any evidence
which suggested that “compliance” with these two aspects of her
case plan was “prov[ing] difficult” due to causes external to
mother, the Department was not obligated to “ma[k]e reasonable
efforts” to overcome those unsubstantiated difficulties. (Riva M.,
supra, 235 Cal.App.3d at p. 414; cf. In re Ronell A. (1996) 44
Cal.App.4th 1352, 1365 [parent’s decision not to comply does not
mean the Department did not make reasonable efforts].)
Mother responds with what boils down to two arguments.
First, mother argues that the Department did not
document precisely what it did to assist mother to enroll in the
full drug/alcohol program and the 12-step program; that there is
no evidence that the Department provided mother any referrals;
and that the Department’s “service log” did not show any contact
between mother and the Department in October 2020, November
2020, or December 2020. This argument misunderstands the
pertinent standard and the standard of review. Mother urges a
“divide and conquer” approach, encouraging us to ignore the
Department’s efforts with regard to other portions of her case
plan (such as visitation, counseling and drug testing), and to
focus solely on the aspects of her case plan where the
Department’s efforts did not bear fruit (such as the full
drug/alcohol program and the 12-step program). If courts
reviewing the Department’s efforts always focused on where the
Department’s efforts were unsuccessful, courts would be hard
pressed to ever find that the Department’s efforts were
“reasonable,” but that is not the pertinent standard. Mother’s
remaining arguments ignore our deferential standard of review.
While the Department did not detail the specific referrals it
8
provided mother, we can reasonably infer that it was providing
referrals because mother enrolled in individual counseling. And
although the Department’s service log said there were no
interactions with mother in October, November and December
2020, other evidence in the record documents the conversations
the Department had with mother in October and December 2020;
we must resolve this conflict in favor of the juvenile court’s
finding.
Second, mother urges that the COVID-19 pandemic—
rather than constituting a mitigating circumstance to be
considered in assessing whether an agency’s efforts were
reasonable “under the circumstances”—should be viewed as
mandating greater effort from agencies to ensure that every
parent is given the in-person services that might be available.
For support, mother cites a bulletin authored by a federal agency
opining that the “[l]ack of, or inability to access, treatment or
services due to provider closures during the pandemic should not
be interpreted as a lack of parental compliance, and might
indicate an agency’s failure to make reasonable efforts to
reunify.” We reject mother’s argument. The pandemic is to be
considered in assessing what efforts are reasonable, but not in a
way that always places a lesser or greater burden on the
Department. Instead, we examine the circumstances and efforts
as they apply in each case. Here, as noted above, the
Department’s efforts were reasonable under the circumstances.
The federal agency bulletin adds nothing to our analysis.
Although we can take judicial notice that the agency has so
opined, it is inadmissible hearsay to the extent it is offered for
the truth of that opinion offered. What is more, that opinion
indicates that the inability to access services “might indicate” a
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lack of reasonable efforts—not that it inevitably does. Here,
mother’s inability to start her full drug and alcohol program and
her 12-step program did not.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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