Terri R. v. Superior Court CA1/3 ( 2021 )

Filed 12/8/21 Terri R. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
TERRI R. et al.,
Petitioners,
v.
THE SUPERIOR COURT OF A163402
CONTRA COSTA COUNTY,
(Contra Costa County
Respondent,
Super. Ct. No. J2000449)
CONTRA COSTA COUNTY
CHILDREN AND FAMILY
SERVICES BUREAU,
Real Party in Interest.
On August 27, 2021, the juvenile court set a hearing to consider
termination of parental rights and select a permanent plan for two-year-old
T.R. (Welf. & Inst. Code, § 366.26; subsequent undesignated statutory
references are to this code.) T.R.’s mother, Terri R. (mother), and presumed
father, D.H., seek review by extraordinary writ, contending they were denied
reasonable family reunification services. T.R.’s alleged father, T.J., has also
filed a petition seeking extraordinary review. T.J. contends the court erred
by setting a section 366.26 hearing without ordering a DNA test to determine
if he is T.R.’s biological parent. We deny all three petitions on the merits.
FACTUAL AND PROCEDURAL HISTORY
I. Dependency Proceedings in San Francisco
In December 2019, the San Francisco Human Services Agency filed a
juvenile dependency petition on behalf of nine-month-old T.R. under section
300, subdivision (b)(1), (g) and (j). The Agency alleged that T.R. was at
substantial risk of serious harm because of mother’s substance abuse, her
untreated mental health issues, and the unsafe condition of her home (§ 300,
subd (b)(1)); T.R. was left without provision for support because the
whereabouts of his alleged fathers, D.H. and T.J., were unknown (subd (g));
and T.R. was at substantial risk of abuse or neglect because mother failed to
reunify with four of T.R.’s half-siblings (subd. (j)).
When this dependency case was filed, mother appeared to have support
people and had stated that she was open to addressing her substance abuse
issues. The Agency did not request that T.R. be removed from mother’s
home, but sought court intervention due to safety concerns and the need for
further assessment of mother, who has struggled with substance abuse and
mental health issues for 15 years.
On December 13, 2019, the juvenile court appointed counsel for mother
and T.R. and provisionally appointed counsel for T.J. and D.H. The court
found that notice of the proceeding had been given as required by law and
continued the matter for a jurisdiction hearing. At the December 16 hearing,
jurisdictional allegations were denied, and the matter was continued for a
contest.
In a January 2020 disposition report, the Agency recommended that
the court declare T.R. a dependent child and order that he reside in the home
of mother with family maintenance services. The Agency was already
concerned by mother’s lack of commitment to engaging in services that had
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been offered to her, which included drug testing, parenting education, and
mental health counseling. Mother had identified T.J. as T.R’s biological
father, but she also requested a DNA test. The Agency reported that T.J. had
been incarcerated at the San Bruno County Jail since December 2018, and
the whereabouts of D.H. were still unknown.
On March 11, 2020, the court held a contested jurisdiction and
disposition hearing. Mother was present, D.H. was present on the phone,
and all three parents were represented by counsel. D.H., whose name
appears on T.R.’s birth certificate, was elevated to presumed father status.
Counsel for T.J. requested that T.J.’s status as an alleged father be “stricken
from [the] court record.” The court granted the request and permitted T.J.’s
counsel to withdraw his representation. Mother and D.H. stipulated to
jurisdiction under section 300, subdivisions (b)(1) and (j), pursuant to
amended petition allegations, and the matter was continued for disposition.
Notice of these rulings and the right to seek rehearing and/or appeal was sent
to T.J. and his counsel.
On April 21, 2020, the Agency was contacted by a non-relative family
member of mother, D.D., who reported that T.R. had been staying in her
home in Antioch since March 3, and she was providing full-time care for him.
By that time, mother had moved to Antioch, and when she had a video visit
with the social worker, she arranged for D.D. to bring T.R. to her home so the
Agency would not suspect that T.R. was living elsewhere. According to D.D.’s
referral, mother “was stressed out” by having T.R. in her home and had
relapsed. D.D. also reported that she had not been willing to leave T.R. with
mother because mother’s home was filthy and unsafe.
When the social worker went to mother’s home to follow-up on D.D.’s
report, mother took a long time to answer the door and then refused to admit
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the social worker, coming out onto her porch. The social worker advised
mother that the Agency had received a referral that mother had relapsed.
Mother became defensive, denied relapsing, and volunteered that T.R. was
staying with D.D. so that he would not have to travel with mother to San
Francisco on BART during the COVID-19 pandemic. When the social worker
continued to express concern that mother had relapsed, mother was adamant
that she would not go into residential treatment. However, she agreed to
voluntarily relinquish custody and to work with the Agency to create a safety
plan. Mother stated that she wanted D.H. to take T.R. The social worker
attempted to contact D.H. and his mother, K.P., but they did not respond to
messages.
On April 24, 2020, the Agency filed a second amended petition seeking
to detain T.R. from mother and D.H. The Agency sought a more restrictive
placement for T.R. pursuant to allegations that mother had relapsed, her
home was unsafe, she failed to participate in services, and D.H. failed to
respond to Agency calls to assess him for his ability and willingness to care
for T.R. A contested detention hearing was held on April 30. T.R. was
detained and placed with D.D. Due to the COVID-19 pandemic, the court
ordered virtual visits for both parents. Once mother was medically cleared
for in-person visits, she was to have supervised visits at D.D.’s home for a
minimum of six hours per week. Once D.H. presented himself to the Agency
and was medically cleared, the Agency had discretion to arrange supervised
visits. The matter was continued for a settlement conference and a contested
jurisdiction/disposition hearing.
According to a June 2020 interim report, D.H. was living with mother,
and the social worker finally met him there, making contact for the first time
on May 19. The social worker reviewed the case plan with D.H. and mother
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and they both signed it. The social worker suspected that D.H. was using
illegal substances. She discussed services with him, and advised him to
begin drug testing immediately, but he did not. The Agency reported that
D.H. lost custody of an older child in Sacramento but had few details about
the “sensitive” matter.
The Agency reported that mother had not actively participated in
services since T.R. was detained. She failed to appear for scheduled drug
tests, and her participation in outpatient treatment at the African American
Healing Center was sporadic. There was a long waiting list for therapy at
the Healing Center, so the Agency referred mother to another provider for
mental health services, but mother insisted on waiting for a Healing Center
therapist even after she was reminded that participating in therapy was a
case plan requirement. Mother failed to appear for a parenting class, agreed
to reschedule, but failed to follow up. She told the social worker that she
dropped her phone in the toilet, so the Agency gave her an iPad, but mother
still failed to access services. After mother was medically cleared to visit,
D.D. offered her “liberal face-to-face visits,” but mother did not visit
consistently and did not actively engage with her son. D.D. complained that
mother came for visits late at night, arrived without a mask, and did not take
the COVID-19 pandemic seriously.
The Agency reported that it had worked diligently with mother, taking
the approach that “people can grow and change,” but it was concerned by
mother’s lack of effort, failure to participate in needed services, and apparent
failure to comprehend the gravity of her situation. The Agency recommended
transferring T.R.’s case to Contra Costa because mother had moved to that
county and had people there who supported her. Although the Agency
provided a travel stipend, mother had complained that transportation issues
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impeded her ability to engage in services, and the Agency hoped that
transferring the case to Contra Costa would “make things easier for [mother]
as she work[ed] towards reunification with her son.”
In August 2020, the Agency filed a third amended petition on behalf of
T.R., who was then 14 months old. This petition supplemented the basis for
jurisdiction under section 300, subdivision (b)(1) with allegations that
mother’s long history of substance abuse required treatment in order for her
to be a safe and adequate parent; mother had been inconsistent in her
participation in services; and mother allowed T.R. to stay with a non-relative
family member for an extended period during the COVID-19 pandemic
without Agency permission.
An addendum report was filed in anticipation of the contested
jurisdiction and disposition hearing. D.H. had not participated in any
services and the social worker surmised that D.H. was not interested in
reunification but had been pressured by mother to become involved in T.R.’s
case. D.H. was unemployed and lived with mother, who paid his rent and
household expenses. D.H. appeared to be “active in his addiction,” but the
Agency could not be sure because he did not drug test. Nor had he taken a
COVID test, so he could not visit T.R. D.D. reported that D.H. attended
visits with mother but waited outside on the porch and told her when it was
time to leave.
Mother continued to fail to drug test, aside from one negative test on
June 5. The director of mother’s out-patient program at the African
American Healing Center was concerned that mother was not being honest
with herself regarding her sobriety, was not using the support provided to
her, and was not serious about reunification, but was just “playing a game.”
The Healing Center took mother off its waiting list for therapy because she
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had an alternative referral from the Agency, but mother had not utilized that
referral.
The Agency was concerned that mother was refusing support for her
mental health and only minimally complying with outpatient treatment, as
reunification would not be possible if mother did not engage in these services.
The Agency was also concerned about mother’s lack of engagement with T.R.
She had four visits between June 2 and June 16, although half of them were
part of her parenting class. D.D. reported that mother was angry at her for
reporting mother’s sporadic visits and had threatened to have the Agency
move T.R. to the home of T.J.’s mother. D.D. also reported that mother asked
her to lie about the amount of time that mother visited T.R.; if she stayed for
an hour, she wanted D.D. to report that she visited for three hours.
On August 7, 2020, the court held a contested jurisdiction and
disposition hearing in the absence of D.H., although his counsel appeared.
The court found the amended jurisdictional allegations had been established,
declared T.R. a dependent, and continued his placement with D.D. The court
found that mother made minimal progress toward alleviating the problems
that led to the dependency while D.H. made no progress. It ordered
reunification services for both parents as recommended by the Agency.
Mother’s services were individual therapy, outpatient substance abuse
treatment, a parenting class, and weekly random drug testing. D.H.’s
services were individual therapy, weekly random drug testing, a parenting
class and a substance abuse assessment followed by treatment if referred.
Supervised visits for mother were to continue, with in-person visits in the
caregiver’s home three days a week. The court ordered no visits for D.H. The
motion to transfer T.R.’s case to Contra Costa was granted.
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II. Dependency Proceedings in Contra Costa
T.R.’s case was transferred to Contra Costa County on August 27, 2020.
In September, the court appointed new counsel for D.H. and ordered that he
be afforded supervised visits with T.R. for a minimum of one hour once a
week. A six-month review hearing was set for late January 2021, but it was
continued several times and ultimately became a contested twelve-month
review hearing.
A. The Six-Month Report and Recommendations
In a January 28, 2021 six-month status review report, the Contra Costa
Child and Family Services Bureau recommended terminating reunification
services and scheduling a section 366.26 hearing. According to the report,
mother and D.H. “consistently avoided contact” with the Bureau, and
demonstrated “little to no interest” in following through with their case plan.
Meanwhile, T.R. was on target developmentally, safe, and comfortable in
D.D.’s home, and D.D. wanted to adopt him.
The Bureau reported that making initial contact with these parents
was difficult because mother did not have a working phone number and there
was concern that D.H. had been exposed to COVID. In October 2020, the
social worker met with parents over “FaceTime” and reviewed their case
plan, which required weekly drug testing, domestic violence prevention
training, and psychological treatment. Mother denied needing a domestic
violence course and reported she would resume parenting classes at the
program she had used before T.R.’s case was transferred. The social worker
gave mother a number for the “access line” where she could schedule therapy
and explained how parents could obtain bus passes.
In November 2020, mother’s counsel asked the Bureau for a letter
stating that T.R. was going to be returned home because mother was
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concerned that she would lose her housing voucher if T.R. was not living with
her. Counsel assured the social worker that mother was “ ‘fully
participating’ ” in treatment at the African American Healing Center and
that she would begin drug testing as soon as she was provided with a
referral. The social worker responded that the Bureau could not assure that
T.R. would be returned to mother and advised mother’s counsel that both
parents had already been provided with information about how and where to
drug test. The Bureau also contacted mother directly and informed her again
about how to drug test and provided the number for that service.
In December 2020, the social worker had an in-person meeting with
mother, gave her bus tickets, and provided another copy of her case plan.
Mother was disheveled and appeared to be abusing substances. She
acknowledged that she had not begun drug testing or scheduled therapeutic
services and stated that she did not have any questions about her case plan.
After the meeting, the social worker visited T.R. D.D. reported that it had
been at least a month since mother’s last visit and expressed concern that
mother was regularly using drugs.
On January 22, 2021, the social worker had a telephone call with
mother and D.H. Mother reported that she had not begun drug testing
because she was afraid to leave her home due to a recent break-in. D.H.
admitted that he had not participated in drug testing and that he smoked
“weed” on a regular basis. Mother had not begun therapy and reiterated that
she did not need domestic violence counseling. She gave the social worker a
phone number for her parenting course, which connected to a voicemail that
did not identify any agency.
In recommending termination of family reunification services, the
Bureau reported that “the situation is entirely unaltered from six months
9
ago; the pattern of avoidance, excuse making and failure to engage in even
the most basic services continues as do[] the missed visits, bizarre behavior
and lack of engagement.” During the entire reporting period, parents failed
to submit any drug testing results, nor were they participating in therapeutic
or parenting services. Mother visited T.R. approximately once a month,
missing most visit opportunities available to her. Visits that did occur went
well, with no reported issues.
Parents objected to the Bureau recommendations, and the status
review was continued for a contested hearing on April 8, 2021.
B. The April 2021 Memorandum and Continued Hearing
Prior to the first session of the contested hearing, the Bureau filed a
memorandum outlining additional services that had been provided to the
family.
In February 2021, the social worker delivered bus tickets to the parents
and provided D.H. with an identification card. At that time, D.H. reported
that he had started therapy. On March 25, the social worker had a telephone
meeting with mother, who had not appeared for a drug test since January 28.
Mother confirmed that she and D.H. had bus tickets to get to testing but
complained that the center was far away. Mother also said she was
overwhelmed because she had received a 15-day notice about her housing.
On March 29, the case worker met with parents and reviewed their case plan.
Mother reported that she had been unable to drug test because she was
stressed about losing her apartment voucher. Mother admitted that she had
a recent substance abuse relapse but would not disclose what she took. D.H.
was participating in weekly therapy with Dr. Destefano through the county
health services. Mother was not in therapy but stated that she was on a
waiting list. On April 5, the social worker spoke to mother, who reported that
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she and D.H. had scheduled intake assessments with the “REACH program.”
The social worker provided mother with a referral to the county’s addiction
specialist. As of that time, D.H. had not had a single drug test, even though
he had been given testing information and bus tickets for transportation to
the center in January, February and March.
The Bureau renewed its recommendation to terminate reunification
services. It also expressed the belief that returning T.R. home would be
detrimental to his safety and emotional well-being. Parents had never
actively engaged in their case plan, failing to drug test and failing to commit
to regular visitation with T.R. The Bureau also suspected that mother was
actively abusing substances.
On April 8, 2021, the court held the first hearing for the contested
review. Mother, D.H. and T.J. appeared by telephone, all sharing the same
phone line. T.J. sought to participate as T.R’s biological father. The Bureau
objected that the San Francisco court had excluded T.J. as T.R.’s father
pursuant to a request from T.J. himself. T.R.’s counsel concurred and argued
that a section 388 motion would be required for T.J. to intervene as an
alleged father. Mother and D.H. argued that T.J. was entitled to counsel and
an opportunity to participate. The hearing was continued so counsel could be
appointed for T.J.
C. The June 2021 Status Review Report
The Bureau filed an updated status review report in June 2021.
According to the Bureau, “[t]he most glaring aspect of this case over the
review period has been the unchanging quality of the situation.” Mother and
D.H. were “distant, uninvolved, often seeming intoxicated and unable to
converse in a meaningful manner.” They expressed an interest in
reunification but missed visits, failed to engage in services, and did not drug
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test or perform “the most basic parts” of their case plan. The social worker
reported observing behavior by both parents on “several occasions” that was
indicative of being under the influence.
The Bureau reported that the parents visited T.R. at D.D.’s home but
were not committed to regular visitation. As a member of the “extended legal
family,” D.D. was comfortable supervising visits in her home. She reported
that mother visited once a month between February and April and three
times in May. During one visit, mother acted paranoid and expressed
concern that the government was spying on her. For this reporting period,
the Bureau documented six out of 24 possible visits.
The social worker reported troubling behavior by both parents during
an April 2021 visit at their home. D.H. had blood shot eyes and other
physical symptoms indicating he was under the influence, while mother was
incoherent and could not be engaged in conversation. The social worker went
to his car to get drug testing information, and when he returned D.H. quickly
removed a marijuana cigarette from his mouth. Then mother began shaking
and was non-responsive for several minutes, causing D.H. to call an
ambulance. The paramedics who treated mother did not disclose what
caused her emergency. Mother later reported that she had a bad reaction to
medication.
The Bureau reported that, throughout the dependency, mother told
conflicting stories about the status of her housing. For example, during a
home visit in May 2021, mother claimed that she was in danger of losing her
apartment because of noise complaints from the neighbors. Later though
mother reported that she could remain in her apartment as long as she paid
her rent. In June, the social worker confronted parents about their case plan
obligations and lack of responsiveness to case plan activities, focusing
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particularly on the failure to drug test, and he warned them about the
consequences of failing to demonstrate a commitment to reunification. The
next day, mother “confided” that she had not drug tested because of her
stress and anxiety. She said that she had scheduled a therapy appointment
for the following week but could not provide the name of her therapist or
program provider.
An updated case plan was attached to the June 2021 report. The
update reflects that mother completed a home safety program but she had
not drug tested since January, did not participate in any mental health
counseling, was non-compliant with court orders, and was residing with a
possible drug user. Meanwhile, D.H. had made progress toward the case
plan objective of maintaining a relationship with T.R. by participating in six
visits between February and June 2021. However, D.H. failed to drug test
and was seen online on “fb live” smoking a substance from a glass pipe.
D. T.J.’s Requests for DNA Testing
On July 22, 2021, T.J made an oral motion for the court to order DNA
testing. A minute order from the hearing reflects that the court denied T.J.’s
motion, which was made pursuant to section 388, on the ground that changed
circumstances had not been established. On August 2, T.J. made a second
motion under section 388, by filing a request to change court order (JV-180).
T.J. requested that the court change its July 22 order denying DNA testing
because mother had identified T.J. as the biological father of T.R., and if
T.J.’s paternity was established then T.R. could potentially have a placement
with T.J. and a relationship with T.J.’s family. On August 23, the court
denied T.J.’s motion because (1) he did not state new evidence or a changed
circumstance, and (2) his request “was fully litigated and denied based on an
oral motion pursuant to [section] 388 on July 22, 2021.”
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E. The August 2021 Memorandum Report
The Bureau submitted a memorandum in advance of the contested
review hearing, which had been re-set for August 27, 2021. This update was
prepared by social work supervisor, Renee Resendez. The Bureau had
continued to engage with the parents but there was little substantive
progress toward case plan objectives.
Since the Bureau filed its June 2021 report, neither parent had drug
tested; mother attributed her lack of testing to “ ‘recent stress and anxiety,’ ”
and D.H. had also failed to test despite being provided bus tickets. The
Bureau had followed up on parents’ report that they were going to start the
“REACH program” in April 2021. D.H. had reported that his therapist
referred him for REACH services, and mother reported that she had also
made an appointment. On August 3, the Bureau was notified that mother
and D.H. participated in an “intake” but never attended the program and
“were discharged.” That day, the Bureau sent parents a letter with drug
testing information, another copy of their case plan and additional referrals
for services. A social worker also attempted to make telephone contact with
parents to discuss their case plan.
On August 5, 2021, a Bureau social worker, Mr. Luzuriaga, conducted a
home visit with T.R. D.D. reported that T.R. was healthy and thriving.
Luzuriaga inquired whether D.D. needed additional assistance or had any
concerns about T.R. D.D. reported that another social worker, Mr.
Fairweather, had made monthly visits and she currently had no needs or
concerns. When Luzuriaga asked about visitation, D.D. reported that there
was no strict visitation schedule; mother would call, and they would agree on
a time. Mother visited once a month for about thirty minutes. D.D. reported
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that mother was “ ‘high’ ” during a July 16 visit and expressed frustration
about the incident and mother’s behavior generally. (Italics omitted.)
On the afternoon of August 5, 2021, Luzuriaga made telephone contact
with mother after numerous attempts to reach her earlier that week. Mother
reported that she was about to start in-patient drug treatment but could not
provide the name of the program. Mother admitted drinking alcohol and
smoking marijuana, but she denied using methamphetamine. She also
acknowledged that she was not in therapy. The case worker offered referrals,
but mother rejected them, stating that she would get the services she needed
when she began her in-patient program. Mother said that she visited T.R.
every other week and expressed frustration at being supervised.
After Luzuriaga finished talking with mother, he talked to D.H. about
the case plan and D.H.’s responsibilities. D.H. was not drug testing and
acknowledged ongoing use of marijuana. He was not in a substance abuse
program or parenting class. He reported that for the past two or three
months, he had participated in weekly counseling sessions that were
conducted on-line. When asked what he had gained from therapy, D.H.
“stated simply, ‘It gets the job done.’ ” (Italics omitted.) After his phone
conversation with the parents, Luzuriaga sent a resource letter to D.H.
setting forth services available to both D.H. and mother.
In early August 2021, Luzuriaga made several attempts to contact T.J.
to no avail. He left messages asking T.J. to contact the Bureau and providing
information about the upcoming hearing.
F. The Contested Review Hearing and Court Findings
At the August 27 contested review hearing, mother appeared with
counsel, via “Zoom.” D.H. was represented by counsel but did not attend the
hearing. T.J.’s counsel appeared but acknowledged her client likely did not
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have standing to participate in the proceeding. T.J. was on the telephone
with his counsel for part of the hearing.
County counsel urged the court to follow the Bureau recommendations
to terminate reunification services and set a section 366.26 hearing,
submitting the matters based on its reports. T.R.’s counsel concurred, also
submitting on the reports. Mother and D.H. objected to the termination of
family reunification services, calling Renee Resendez from the Bureau as
their only witness.
1. Resendez’s Testimony
Ms. Resendez is a social work supervisor who became involved with
T.R.’s case on August 1, 2021. Resendez testified that two social workers had
been assigned to the case since it was transferred to Contra Costa. Mr.
Fairweather was assigned the matter in August 2020, went on medical leave
at the end of July 2021, and was replaced by Mr. Luzuriaga. As Luzuriaga’s
supervisor, Resendez assisted him in managing this case while Fairweather
was on leave. Resendez did not supervise Fairweather. However, she
reviewed the case file, which showed that Fairweather had contact with the
family “on a consistent basis.” Resendez did not notice any missing case
notes or other missing information.
Mother’s counsel asked Resendez about events that were documented
in the case file. For example, when Fairweather met with mother in June
2021, mother complained about experiencing stress. In response,
Fairweather provided her with the access line phone number for mental
health counseling. Resendez also confirmed that mother completed a
parenting program in San Francisco. She testified that she followed up on
mother’s report that she was going to be assessed for services at the REACH
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program in April. The Bureau had referred mother to that provider, but
when Resendez called, she was told that mother did not enroll.
Resendez testified that the Bureau obtained reports about visits from
T.R.’s caregiver, D.D., who was responsible for supervising parents’ visits. In
addition, Fairweather had observed one visit in May 2021. In August 2021,
the caregiver reported that mother appeared to be high on drugs when she
came to visit T.R. Resendez did not know whether mother had formed a bond
with T.R.
Father’s counsel asked Resendez only a handful of questions, all
pertaining to whether the social workers had spoken with D.H.’s therapist.
Resendez testified that she did not see anything in the file to indicate the
Bureau made direct contact with D.H.’s therapist.
2. Arguments By Counsel
Mother requested that the court order an additional period of family
reunification services on the ground that she was hampered by the lack of
continuity attributable to the case workers’ medical absences. Her counsel
argued that mother had demonstrated that she could succeed in services
because she successfully engaged in services in San Francisco and had
wanted to be successful in Contra Costa. She participated in visits and
wanted an inpatient program, but she was not offered the services she
needed.
D.H. also opposed termination of his reunification services, giving two
reasons. First, D.H. participated in therapy. Second, Fairweather was out
on medical leave “a significant amount of time over the past eight months.”
Counsel argued that the court and parties were all aware of this fact because
they were involved in other cases with Fairweather.
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County counsel urged the court to follow the Bureau recommendations
to terminate services and schedule a section 366.26 hearing. The Bureau
acknowledged that mother completed a parenting class and visited T.R., but
argues that her visits were not consistent. More to the point, mother
continued to abuse substances throughout the reunification period, never
engaging in the services offered to her to address this problem. For his part,
D.H. had “some individual counseling,” and he accompanied mother to visits,
but he failed to demonstrate that he is “committed to a life of sobriety” or to
being a parent to T.R. County counsel urged the court to focus on the
statutory timelines governing this case. T.R. was under the age of three
when he was removed from mother in April 2020, which meant that October
28, 2021 was the 18-month statutory deadline for completing reunification.
The parents had failed to engage in services or make any meaningful changes
and there was no substantial likelihood of reunification by the 18-month
deadline.
T.R.’s counsel agreed that the court should focus on the October 2021
deadline. However, despite her initial concurrence in the Bureau
recommendations, T.R.’s counsel was concerned about the impact of the social
worker’s medical absences. Counsel opined that “if the Court determines
that reasonable services in the last reporting period were not provided, then
certainly more services can legally be provided.”
3. Juvenile Court Rulings
As a preliminary matter, the juvenile court stated that it would base its
rulings on evidence in the record; it would not consider extraneous
information that the court and parties may have heard about the social
worker’s medical leave issues. Based on its review of the record, the court
found that reasonable services were provided to both parents. In explaining
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this ruling, the court credited Ms. Resendez’s testimony and the Bureau
reports. The court also found the following facts were established by the
record: A social worker and supervisor had been assigned to T.R.’s case for
the entire time following transfer from San Francisco; Fairweather had
regular contact with mother when he managed the case; parents were offered
“a large number of services”; and the social worker who was assigned after
Fairweather took medical leave actively managed the case.
The court also addressed each parent separately and summarized
evidence demonstrating that they failed to engage in services or make
substantive progress toward reunification. Mother has a long history of
serious mental health problems and substance abuse, but she failed to
participate in therapy or drug testing. Nor had D.H. made an effort to
engage in his case plan, the court found. He did not drug test or participate
in drug treatment or a parenting class. He did participate in therapy for a
few months but was unable to demonstrate that he received any insight or
benefit from that treatment.
Ultimately, the juvenile court followed the Bureau’s recommendations,
finding, among other things, that returning T.R. to parental custody would be
detrimental to his health and well-being; reasonable reunification services
were provided; and mother and D.H. made minimal progress toward
alleviating the problems that led to the dependency.
DISCUSSION
Petitioners all seek review of the juvenile court’s decision to schedule a
section 366.26 hearing instead of extending the family reunification period.
When a dependent child cannot be safely returned home at the 12-month
review, the juvenile court has discretion to extend the reunification period to
the 18-month deadline only if: (1) reasonable services have not been
19
provided; or (2) there is a substantial probability that the child can be
returned to the physical custody of the parents and “safely maintained in the
home within the extended period of time . . . .” (§ 366.21, subd. (g)(1).) In the
present case, no parent contends that T.R. could have been safely returned to
parental custody if the reunification period had been extended to the 18-
month statutory deadline.
I. Mother’s Petition
Mother contends that the juvenile court erred by failing to extend the
reunification period because she was not provided with reasonable
reunification services. We review the challenged finding for substantial
evidence. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688–689;
Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 419.)
“ ‘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.’ ” (In re K.C. (2012) 212 Cal.App.4th 323, 329.) Because the
“ ‘focus of reunification services is to remedy those problems which led to the
removal’ ” of a child, a reunification plan “must be tailored to the particular
individual and family.” (Katie V. v. Superior Court (2005) 130 Cal.App.4th
586, 598.) “To support a finding reasonable services were offered or provided,
‘the 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 . . . .’ ” (Tracy J. v. Superior Court (2012)
202 Cal.App.4th 1415, 1426, italics omitted.)
In the present case, T.R. was removed from mother due to mother’s
untreated mental health and substance abuse issues and her failure to
20
reunify with four older children. The record contains substantial evidence
that the Bureau provided mother with reasonable services designed to
address these problems by offering her drug testing, substance abuse
treatment, individual therapy, and parenting education.
Mother contends these services were not reasonable because they did
not focus on her mental illness, which should have been the starting point of
her case plan. This argument ignores evidence that mother’s mental health
problems are inextricably intertwined with her long history of substance
abuse. The record shows that mother refused to participate in individual
therapy, stopped participating in her outpatient substance abuse program
after the provider reported that she was not utilizing this service adequately,
and consistently refused to participate in drug testing. In light of this
evidence, mother’s attempt to blame the Bureau for failing to gather better
information about the nature of mother’s mental illness is not persuasive.
Although the social services agency is required to assist parents with their
case plans, it cannot force them to participate in services that are offered to
them. (In re Nolan W. (2009) 45 Cal.4th 1217, 1233.) “ ‘Reunification
services are voluntary . . . and an unwilling or indifferent parent cannot be
forced to comply with them.’ ” (In re Ronell A. (1996) 44 Cal.App.4th 1352,
1365.)
Mother also contends that the Bureau did not actually assist her in
engaging in services that were ostensibly provided. As a preliminary matter,
we reject mother’s claim that the Bureau’s social worker “appeared to be
barely motivated to assist mother.” This assertion, which is not supported by
any citation or factual example, is inconsistent with the Bureau’s reports and
with Ms. Resendez’s testimony, all of which were credited by the trial court.
21
Furthermore, “ ‘[t]he 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.’ ” (Katie V. v. Superior
Court, supra, 130 Cal.App.4th at pp. 598–599.) “In almost all cases it will be
true that more services could have been provided more frequently and that
the services provided were imperfect.” (In re Misako R. (1991) 2 Cal.App.4th
538, 547.) Here, the record shows that two social services agencies made
reasonable efforts to facilitate family reunification. After the case was
transferred to Contra Costa, the case worker had multiple discussions with
mother about her case plan obligations, provided written and oral
instructions and referrals to services, and hand delivered bus tickets to
ensure that mother could attend the services that were offered to her. We
conclude that these efforts were reasonable under the circumstances.
II. D.H.’s Petition
D.H. contends there is insufficient evidence that reasonable services
were provided to him in Contra Costa. We disagree.
In addition to mother’s untreated mental health and substance abuse
issues, the other major problem that led to this dependency was D.H.’s
refusal to be assessed by the social services agencies as a potential caretaker
for T.R. D.H. appeared late in the proceeding and then only as a potential co-
parent with mother. Moreover, when D.H. finally presented himself to the
San Francisco case worker, it appeared that he was actively abusing
substances.
Thus, the case plan for D.H. in San Francisco and in Contra Costa
focused on addressing substance abuse issues as an essential first step
toward reunification. Yet, D.H. never drug tested and failed to follow up on
referrals to be evaluated for substance abuse. Without this basic evaluation,
22
both agencies were hamstrung in terms of their ability to assess whether
D.H. could be an adequate parent for T.R. Nevertheless, the Contra Costa
agency also offered D.H. parenting education and counseling, which were
additional means of attempting to assess whether D.H. could be a safe parent
for T.R. Finally, although the juvenile court in San Francisco denied D.H.
any visitation, he was offered supervised visits in Contra Costa. We conclude
these services were tailored to facilitate D.H’s reunification with T.R. and
were reasonable under the circumstance presented here.
D.H. contends the finding that he was provided reasonable services
cannot be sustained because there is no evidence that he was offered
visitation for the entire reunification period. When this case was transferred,
there were ongoing concerns about D.H.’s potential exposure to COVID that
continued until at least October 2000. After those concerns were resolved,
these parents were not restrained by a formal visitation schedule. The
parents visited T.R. together, and the visits were arranged to accommodate
mother, whose visitation plan was more liberal than D.H.’s plan. We do not
find any indication in this record that D.H. was ever denied the opportunity
to visit T.R. or that he ever expressed a concern about his visitation. Nor did
D.H.’s counsel even mention visitation at the status review hearing. Under
these circumstances, we reject D.H.’s after-the-fact suggestion that his
visitation plan may have been an impediment to reunification. (See In re
Christina L. (1992) 3 Cal.App.4th 404, 416 [if during the reunification period,
parent felt her services were inadequate, “she had the assistance of counsel to
seek guidance from the juvenile court in formulating a better plan”].)
D.H. also complains that the Bureau did not do enough to assist him,
claiming that he had no assistance for significant periods due to the social
worker’s medical leave problems. D.H. does not cite the record or provide a
23
factual example to support his claim that the Bureau’s personnel issue
adversely impacted the quality of his services. Instead, he bases this claim
on Resendez’s alleged admission that the Bureau had concerns about how
Fairweather handled T.R.’s case. D.H. misreads the record. Resendez
testified that the Bureau had unspecified concerns about how this social
worker was handling his cases generally. She did not testify that there were
any concerns about the quality of the reunification services provided to this
family.
D.H. insists that the services provided to him were not reasonable
because he was not adequately supported in his reunification efforts. (Citing
In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The record shows that
caseworkers had multiple regular contacts with D.H., and that reasonable
efforts were made to ensure that D.H. understood his plan objectives and
obligations, and to ensure that D.H. had the information he needed to begin
to participate in services. This evidence supports the conclusion that the
impediment to family reunification was not inadequate support from
caseworkers, but D.H.’s lack of commitment to achieving his plan objectives
by participating in services.
By separate argument, D.H. contends the juvenile court committed
reversible error by continuing with the review hearing despite the fact that
the Bureau reports contained incomplete information. Specifically, D.H.
contends that the Bureau failed to provide sufficient information about D.H.’s
participation in individual therapy and compliance with his visitation plan.
In presenting this argument, D.H. assumes that there is information about
his participation in these services that is missing from the record and that
would change a material finding that the juvenile court made. We find
nothing in the record to warrant such speculation. Moreover, in conducting
24
our substantial evidence review, the issue is not whether the Bureau could
have provided more information about D.H., but whether the information
that was provided supports the court’s findings. Here, there is no dispute
that D.H. was provided individual therapy. As discussed above, he was also
afforded the opportunity to visit with T.R. These services along with drug
testing, a substance abuse assessment and a parenting class constituted
reasonable reunification services.
D.H. intimates that additional information about his progress in
therapy and his visits with T.R. could have made a difference because if there
was substantial progress in these areas the court could have extended the
reunification period. This argument is not only speculative but demonstrably
unsound. The juvenile court was aware that D.H. participated in therapy for
a few months, but it was not convinced that D.H. had gained benefit or
insight from therapy sufficient to assist him in achieving his case plan
objectives. Evidence supporting this finding includes the fact that D.H. was
unable to articulate any benefit of therapy when questioned by the social
worker. Regarding visitation, the updated case plan explicitly acknowledges
that D.H. participated in several visits, listing the dates of those visits. That
D.H.’s visits with T.R. were unremarkable by anyone, including D.H. himself,
and that the visits never progressed beyond occasional and supervised,
supports the social worker’s view that D.H. was not committed to reunifying
with T.R. We note further that D.H. did not personally attend the contested
review hearing.
In claiming that the Bureau should have provided more evidence about
D.H.’s case plan progress, D.H. ignores what this record actually shows. D.H
refused to drug test or to be assessed for substance abuse problems. Evidence
that D.H. failed to participate in these court-ordered services is undisputed,
25
as is the fact that D.H. made no progress toward plan objectives to stay free
from illegal drugs, to live free from drug dependency, and to comply with
court orders to drug test. There is also substantial evidence that D.H. flouted
the Bureau’s efforts to facilitate reunification by abusing substances in
mother’s home, smoking marijuana in front of the social worker, and posting
online evidence of what appeared to be his illegal drug use. Because D.H.
consistently refused to make any effort to satisfy the core requirements of
this family’s case plan, his participation in therapy and supervised visits
would not have warranted extending the reunification period.
III. T.J.’s Petition
T.J. contends that the juvenile court erred by setting a section 366.26
hearing without first determining whether T.J. is T.R.’s biological father.
This contention is not supported by T.J.’s bare-bones writ petition.
Specifically, T.J. fails to articulate why a determination of biological
parentage is relevant to any finding that the juvenile court made in support
of its decision to refer this case for a section 366.26 hearing. Nor does T.J.
cite any legal authority requiring the juvenile court to order DNA testing
under the circumstances presented here.
When this dependency case was filed, T.J. and D.H. were both
identified as alleged fathers of T.R. D.H. requested a paternity
determination and was elevated to presumed father status. T.J. did not
oppose D.H.’s request, made no competing request of his own, and instead
had his appearance as an alleged father stricken from the record. After the
case was transferred to Contra Costa and the Bureau recommended setting a
section 366.26 hearing, T.J. attempted to re-enter the proceeding, but even at
that end stage of this dependency case, T.J. did not attempt to change his
status as an alleged father.
26
“California law distinguishes ‘ “alleged,” ’ ‘ “biological,” ’ and ‘
“presumed” ’ fathers. [Citation.] ‘ “A man who may be the father of a child,
but whose biological paternity has not been established, or, in the alternative,
has not achieved presumed father status, is an ‘alleged’ father.” ’ [Citation.]
‘ “A biological or natural father is one whose biological paternity has been
established, but who has not achieved presumed father status.” ’ [Citation.]
‘Presumed father status ranks highest’ [citation], and ‘[o]nly presumed
fathers are entitled to reunification services and to possible custody of the
child.’ ” (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1461.)
As an alleged father, T.J. does not have a right to reunification services
or custody. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120; In re O.S.
(2002) 102 Cal.App.4th 1402, 1410 (O.S.).) Nor does he have a cognizable
interest in the issues the juvenile court considered when deciding whether to
set the matter for a section 366.26 hearing, such as whether mother or D.H.
received reasonable family reunification services. (O.S, at p. 1406; see
Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751–753 [alleged
father lacks standing to challenge termination of family reunification services
by extraordinary writ].)
Importantly, even if T.J. were to establish biological paternity, that fact
would not elevate him to presumed father status. “A man’s status as
biological father based on genetic testing does not entitle him to the rights or
status of a presumed father. [Citation.] In determining presumed father
status under section 7611, ‘ “it is irrelevant that the biological father can
prove his paternity or even that all parties to the proceedings may concede
that [he] is the biological father.” ’ [Citation.] Indeed, courts consistently
recognize ‘the extant father-child relationship is to be preserved at the cost of
biological ties.’ ” (In re P.A. (2011) 198 Cal.App.4th 974, 980.)
27
As an alleged father, T.J. does have the right to notice and an
opportunity to show he should be afforded presumed father status. (In re
J.O. (2009) 178 Cal.App.4th 139, 147; O.S., supra, 102 Cal.App.4th at
p. 1408.) The record before us contains substantial evidence that T.J. did
have notice of T.R.’s dependency case and yet he never attempted to become
T.R.’s presumed father, never requested reunification services, and never
sought actively to participate in this proceeding until, more than a year after
asking the court, through counsel, to strike his status as an alleged father, he
reappeared and began asking for a DNA test.1
T.J. contends that the juvenile court violated its “duty” by failing to
determine the identity of T.R.’s biological father before setting a section
366.26 hearing. This argument is unsupported by analysis or relevant
authority. Instead, T.J. cites one inapposite case, In Re J.H. (2011) 198
Cal.App.4th 635 (J.H.).
1
T.J.’s petition contains a brief factual summary, which states that
T.J. had no knowledge of this dependency case until it was transferred to
Contra Costa County, but this assertion is not supported by a citation to the
record or a declaration. Nor is T.J.’s petition verified by anyone. We find
substantial evidence that T.J. was afforded notice and the opportunity to
establish presumed father status. The record shows that, prior to the
jurisdiction hearing, the Agency obtained an address and phone number for
T.J. at the San Bruno county jail, and that the San Francisco Superior Court
sent T.J. notices of proceedings there. When T.J.’s current counsel first
appeared on his behalf in the Contra Costa court on January 28, 2021, she
did not claim that T.J. had had no notice of the dependency case, but stated
T.J. was “not exactly sure what the proceedings were in San Francisco before
this case was transferred to Contra Costa . . .”
We also note T.J. does not dispute he knew about T.R.’s birth and knew
he was potentially the child’s father. Despite this knowledge, there is no
evidence T.J. ever took any step to provide for T.R. or to develop a personal
relationship with him.
28
J.H. involved two alleged fathers, Tyrone and George, who appeared
before the juvenile court after the minor was removed from his mother.
(J.H., supra, 198 Cal.App.4th at p. 638.) Both men filed declarations of
parentage and requested to be declared presumed fathers. (Id. at pp. 638 &
641.) Tyrone also asked the court to order a DNA test so that he could assert
his biological paternity. (Id. at p. 641.) Following a hearing, the juvenile
court found that George was J.H.’s presumed father while Tyrone was an
alleged biological father. (Id. at p. 643.) These findings were affirmed on
appeal, but the parentage order was reversed in part and remanded because
the juvenile court never ruled on Tyrone’s request to establish biological
paternity through DNA testing. A ruling on that issue was required by
California Rules of Court, rule 5.635(h), which states that when a person
appears at a hearing in a dependency matter and “requests a judgment of
parentage on form JV-505,” the juvenile court must determine “[w]hether
that person is the biological parent of the child.” In remanding the case for
this additional finding, the J.H. court acknowledged that the juvenile court
may refuse to grant a paternity test when the results would be irrelevant.
(J.H., at p. 648, citing In re Joshua R. (2002) 104 Cal.App.4th 1020.) But the
appellate court found that Tyrone’s biological paternity could have been
relevant in the ongoing dependency proceeding. (Id. at p. 650.)
In contrast to J.H., the challenged order in this proceeding is not a
parentage order. D.H. was elevated to presumed father status without any
attempt by T.J. to appeal. Furthermore, we find no indication that T.J. has
ever requested a judgment of parentage in this dependency case. Thus,
California Rules of Court, rule 5.635(h) has no application here. T.J. does not
cite any law requiring the juvenile court to order a DNA test before
scheduling a section 366.26 hearing.
29
T.J. also contends that the juvenile court may have violated his right to
equal protection by denying his section 388 petition for DNA testing. The
orders denying T.J.’s section 388 petitions are not before us in this writ
proceeding. They were made several weeks before the status review hearing
and they were directly appealable. (In re K.C. (2011) 52 Cal.4th 231, 235–
236.) Indeed, T.J. has filed an appeal from the denial of his section 388
petitions, which is currently pending in this court. (See Contra Costa
Children and Family Services Bureau v. T.J. (A163394, app. pending).)
Thus, we construe T.J.’s assertion as an argument that his
constitutional right to equal protection precludes the court from setting a
section 366.26 hearing without first determining if T.J. is T.R.’s biological
parent. We reject this suggestion, which is unsupported by facts or law. T.J.
relies on In re Mary G. (2007) 151 Cal.App.4th 184, which has no relevance
here. In that case, an alleged father was denied presumed father status and
reunification services solely because his declaration of paternity was signed
and submitted in Michigan rather than California. In reversing a judgment
terminating parental rights, the Mary G. court found that the alleged father’s
constitutional right to equal protection was violated because his disparate
treatment was “based solely on geography, and location of a father inside or
outside the state bears no more relation to the purposes of the presumed
father statute than differing locations of fathers within California.” (Id. at
p. 200.) In contrast to Mary G., T.J. did not file a declaration of paternity in
any state, request presumed father status, or request reunification services.
Nor did he oppose or appeal the parentage order establishing that D.H. is the
presumed father of T.R.
30
DISPOSITION
The petitions for extraordinary relief are denied on the merits. Our
decision is final as to this court immediately. (Cal. Rules of Court, rule
8.490(b)(2)(A).)
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
RODRIGUEZ, J.
Terri R. et al. v. Superior Court (A163402)
31