Edith D. v. Superior Court CA1/5 ( 2021 )

Filed 12/9/21 Edith D. v. Superior Court CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
EDITH D.,
Petitioner,
v.
THE SUPERIOR COURT OF A163378
CONTRA COSTA COUNTY,
Respondent; (Contra Costa County
CONTRA COSTA COUNTY Super. Ct. Nos.
CHILDREN AND FAMILY J19-00710, J19-00711)
SERVICES BUREAU et al.,
Real Parties in Interest.
Edith D. is the adoptive mother of Joseph A. and the legal guardian of
Bobbie A., who were both taken into protective custody in August 2019. In
August 2021, the juvenile court held a contested, combined 18- and 24-month
review hearing at which it terminated reunification services as to Edith D.
and set a permanency planning hearing under Welfare and Institutions Code
section 366.26.1 Edith D. filed a petition for extraordinary writ relief
contending (1) that the juvenile court should have continued reunification
services under section 352 because there had been a lack of reasonable
All statutory references are to the Welfare and Institutions Code
1
unless otherwise specified.
1
reunification services and (2) that the juvenile court should have considered
federal law. She also requested a stay of the section 366.26 hearing. We
deny the petition and the stay request.
FACTUAL AND PROCEDURAL BACKGROUND
I. Detention/Jurisdiction Report
On August 6, 2019, the Contra Costa County Children and Family
Services Bureau (Bureau) filed petitions under section 300, subdivision (b)
alleging Edith D. placed eight-year-old Bobbie A. and six-year-old Joseph A.
at substantial risk of physical harm and neglect by failing to adequately
supervise them. Specifically, the petitions alleged that on August 2, 2019,
the minors left home unsupervised and were found hours later a mile and a
half from their home wearing only shorts and sweatpants.
The Bureau’s August 7, 2019, detention/jurisdiction report provides
further details regarding prior events leading up to the August 2 incident.
A. Prior Incidents and Bureau Involvement
On May 17, 2019, the Bureau received a report that Bobbie A. was
“ ‘sneaking’ ” into the Antioch fairgrounds with another child. (Italics
omitted.) The reporting party contacted the police, who returned Bobbie A. to
his home and found then five-year-old Joseph A. home alone. Edith D.
arrived home 15 minutes later and stated she had gone to look for Bobbie A.
The Bureau instructed that the minors be released to Edith D. with an
admonishment that she not leave them home alone. The next day, the
Bureau received another report, that Bobbie A. returned to the fairgrounds
without adult supervision. The police contacted Edith D. She informed them
that she had broken her wrist and was out filling prescriptions. When she
arrived at the fairgrounds to pick up Bobbie A., she explained that she had
left him with a neighbor but that he ran off to the fairgrounds. She asked the
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police whether Bobbie A. could work off his fine. The police told her there
was no fine but she needed to supervise Bobbie A.
On May 30, 2019, a Bureau social worker contacted Edith D. regarding
these incidents. Edith D. was reportedly agitated and defensive about the
prior incidents. She shifted blame onto Bobbie A. She explained that
Bobbie A. was playing with another child in the front yard while she and
Joseph A. were lying down in the bedroom. She fell asleep, and when she
woke up she realized Bobbie A. and the other child were gone. She went out
to look for them and left Joseph A. home because he was sleeping. The social
worker explained the Bureau’s concerns regarding leaving the minors
unattended, and Edith D. agreed to a safety plan and to participate in a
“Team Decision Making” meeting. The social worker provided information
regarding community resources for childcare. On June 12, 2019, Edith D.
participated in the team meeting with several social workers, a family friend,
and a mental health liaison. At the meeting, it was agreed the family would
participate in the Bureau’s intensive family services program, which included
therapeutic behavior services, wrap meetings, and multiple home visits by
the social worker over the next several months.
During several of the home visits, the social worker found that
Bobbie A. had left home without permission. The social worker reiterated the
Bureau’s expectation that the minors be supervised at all times. Edith D.
initially explained that the park was only a few blocks away and there were
other families around, but she ultimately agreed not to allow the children to
wander the neighborhood without supervision. During one of the social
worker’s visits, Edith D. went to look for Bobbie A. and eventually returned
with him. The social worker observed that Bobbie A. was riding an electric
toy motorcycle and was not wearing a shirt or shoes. On a separate visit,
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Edith D. was just arriving home in her car with both minors in the front seat
without booster seats. Again, both minors were not wearing shirts or shoes.
She explained to the social worker that she had booster seats for the minors
and knew they should be in the back seat but that she had only gone around
the corner to pick them up.
During the July 29, 2019, meeting with the Contra Costa Therapeutic
Behavioral Services (TBS) worker and manager, the children were disruptive
and aggressive with each other and would not listen to Edith D. when she
tried to redirect them. The social worker discussed safety precautions such
as locks for doors and windows. The next day, during an emergency wrap
meeting, the social worker received a call from the TBS worker saying the
children had “taken off” and the wrap facilitator was looking for them. The
social worker drove around the neighborhood and found Joseph A. a block
away, walking toward home wearing no shoes or shirt. Joseph A. said he had
been at his friend’s house down the street. Bobbie A. walked home from a
neighbor’s house, also without shoes. The social worker observed that
Edith D. was visibly shaken. Edith D. explained that the children snuck out
while she was bringing groceries into the house.
Again, the children were disruptive during the wrap meeting.
Bobbie A. became upset when he was not permitted to use Edith D.’s phone.
He ran into the yard, climbed on the roof and refused to come down.
Eventually, the wrap facilitator was able to help Bobbie A. come down.
Edith D. was stressed and frustrated that the minors would not listen to her.
At one point, Joseph A. hit her with a pillow and would not stop. Edith D.
spanked him once. The TBS worker suggested local youth programs and
arranged to meet with Edith D. on August 1 and 2 to assist with completing
scholarship applications.
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On August 1, when the TBS worker arrived at the home, Edith D. said
she forgot the TBS worker was coming and she let the children go to the park
where there were “other families around.” When asked about the locks that
had previously been discussed, Edith D. said she did not have money for
locks. The TBS worker told Edith D. the minors needed to be in the home for
their sessions, and they arranged to meet again the next day.
B. August 2, 2019 Incident
On August 2, 2019, the TBS worker arrived at the home at 1:30 p.m.,
and the minors were again not there. Edith D. went to look for them but
returned after 20 minutes without the minors. The TBS worker told Edith D.
to call the police, and when Edith D. said her phone was still charging, the
TBS worker called from her own phone. Edith D. did not know what time
Bobbie A. left, but she reported that Joseph A. left around 11:30 a.m. At
4:15 p.m., the police found the minors at a store 1.4 miles from their home.
They were not wearing shoes or shirts, and they reported they had not eaten
all day except for some candy.
The Bureau reported it previously investigated eight referrals alleging
neglect or caretaker absence regarding each of the minors from 2015 to 2019.
All of the referrals regarding Joseph A. were determined to be unfounded. As
to Bobbie A., seven of the referrals were determined to be unfounded and one
was determined to be inconclusive. It also reported that in 2015, when
Edith D. was a licensed foster care provider, a newborn baby died in her care.
The Bureau concluded that although Edith D. was meeting the minors’
basic needs, loved them and tried to advocate for them, she was not providing
adequate supervision, which put the minors at substantial risk. The Bureau
recommended that the minors be detained and that their case be promoted
from an intensive family services case to a juvenile court case.
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II. Detention and Jurisdiction Hearings
On August 7, 2019, the court ordered the children detained, and
Edith D. was granted supervised visitation a minimum of one hour a week.
Parenting education and counseling were ordered for both Edith D. and
Bobbie A.’s biological father.2 On October 24, 2019, Edith D. pleaded
no contest and the juvenile court sustained the allegations finding the minors
came within the juvenile court’s jurisdiction. Father’s status was raised to
presumed father of Bobbie A.
III. Disposition
The Bureau filed a disposition report for the November 21, 2019
disposition hearing regarding Joseph A., who had been placed in a foster
home with Bobbie A. The report stated Joseph A. had been diagnosed with
attention-deficit/hyperactivity disorder, for which medication had been
prescribed. Edith D. had been visiting weekly with both minors under the
supervision of the Seneca Family of Agencies. The visitation supervisor
described the visits as extremely difficult due to Edith D.’s inability to
effectively discipline the children. At one visit, one of the minors threw fruit
at Edith D. and she responded by engaging in a food fight. The minors also
ran away from Edith D. during visits and did not respond to her directives.
In contrast with the visitation supervisor’s observations, Edith D. reported
that the minors listened to her and there was nothing wrong with their
behavior during her visits. The Bureau recommended continued supervised
visitation, counseling and parenting classes for Edith D. The juvenile court
Edith D. is Bobbie A.’s paternal aunt. She became Bobbie A.’s
2
guardian after father was incarcerated, when Bobbie A. was two months old.
Bobbie A. and Joseph A. are half siblings on their mother’s side.
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adopted the Bureau’s recommendations and scheduled a six-month review for
May 7, 2020.
Bobbie A.’s disposition hearing was continued until January 2, 2020, to
allow time for the Bureau to investigate the background of father. Bobbie A.
was removed from father’s care when he was two months old, and father
waived his reunification rights because he was incarcerated at the time.
Bobbie A. was also diagnosed with attention-deficit/hyperactivity disorder
and prescribed medication. The Bureau recommended the same reunification
services for father as it had for Edith D., and the juvenile court adopted the
recommendations.
IV. Six-month Review
In a May 7, 2020 report, the Bureau stated that Edith D. continued to
participate in weekly supervised visits at Seneca, where she received
assistance in managing the minors’ behaviors and setting boundaries. She
also completed seven sessions of a parenting class. Since March 2020, the
weekly visitation had been conducted virtually. However, the Bureau stated
its concern that Edith D. was not accepting responsibility for her lack of
parenting techniques, and despite feedback from the therapeutic team and
completing the parenting classes, Edith D. did not understand the severity of
the children’s behavior. Edith D. reportedly blamed the Bureau and the
foster family instead of holding herself accountable. The Bureau
recommended, and the juvenile court ordered, continued reunification
services, including authority for overnight visits for a maximum of two days
with 72 hours’ advance notice.
V. Twelve-month Review Regarding Joseph A.
The Bureau’s October 8, 2020 report stated that Edith D. continued to
struggle to maintain control over the minors during supervised visits at
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Seneca. It reported that the minors obeyed and responded to their foster
parents and while in school but not when they were with Edith D. During
one supervised visit, Joseph A. left the building and wandered into the
parking lot. Edith D. delayed responding to the situation, and she required
assistance to bring Joseph A. back inside. The Bureau requested additional
time to work with Edith D. and suggested wrap-around services to transition
her to overnight visits. The juvenile court adopted the recommendations.
VI. Combined 12-month Review Regarding Bobbie A. and 18-month
Review Regarding Joseph A.
In advance of a combined 12-month review hearing for Bobbie A. and
18-month review hearing for Joseph A., the Bureau filed reports dated
January 21, 2021. The minors had been moved together to a new foster
family home. The Bureau reported that although Edith D. was motivated to
regain custody and had engaged in therapy, parenting classes, supervised
visitation, and meetings with the Bureau social worker, she was still not
capable of caring for the minors. During supervised visits, the staff
continued to have to intervene to address the minors’ behavior. After a trial
overnight visit in November, Bobbie A. returned to his foster home and
reportedly acted withdrawn and not himself. Joseph A. reported that
Edith D. cursed at Bobbie A. throughout the visit. The overnight visits were
terminated due to the neglect of Bobbie A.’s emotional well-being. The
Bureau reported that Edith D. was not engaging with the Bureau in a
reasonable manner and had exhibited agitation and aggression toward
Bureau workers.
Visitation with Bobbie A.’s father, including four overnight visits, went
well. Father planned to begin a parenting course and was committed to
caring for both Bobbie A. and Joseph A. The Bureau believed that with
further assistance from the Bureau, father had a strong potential of
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reunifying with Bobbie A. It recommended termination of reunification
services to Edith D. and that father assume physical custody of both minors
subject to the juvenile court’s supervision. At Edith D.’s request the matters
were set for a contested hearing on March 25, 2021.
The contested hearing was delayed due to multiple unfortunate events
between February and August 2021. Father died unexpectedly in mid-
February 2021. Then the Bureau social worker and supervisor both went on
medical leave. On May 27, 2021, the Bureau received a report that Edith D.
had been, and remained, hospitalized after suffering a stroke which caused
partial paralysis of her left side. Following her hospitalization, Edith D.
entered a rehabilitation facility and then returned home by early August
2021.
Between April and July 2021, the Bureau submitted two status
updates. The April report stated the minors were both making “immense
progress” in their new foster home. They were receiving therapy and
participating in a grief support group after the death of father. The Bureau
identified an adult paternal sibling of Bobbie A. as a possible guardian. Prior
to Edith D.’s stroke at the end of May, the weekly supervised visitation
continued, but the Bureau reported that it had difficulty engaging with
Edith D. During March and April, Edith D. delayed responding to the social
worker’s phone calls, and during one call she shouted at the social worker,
demanding that her children be returned to her. The social worker reported
that he initiated a referral for therapeutic visitation but that those services
did not occur due to limited availability. The Bureau also reported that
Edith D. was actively participating in therapy once a month but was making
only minimal progress, and the therapist had concerns she was not accepting
accountability for neglect of the minors. The report stated the social worker
9
attempted to contact the therapist for an update and to request a mental
health assessment.
The Bureau’s July 2021 report summarized the minors’ progress in
their foster home, where they were both learning self-regulation and conflict
resolution skills. Prior to Edith D.’s stroke at the end of May, she continued
to participate in weekly supervised visitation through Seneca but had
“extreme difficulty” managing the minors’ behavior. She did not maintain
monthly contact with the Bureau and failed to participate in a child family
team meeting on April 14, 2021. The Bureau continued to have serious
concerns that unsupervised visits would place the minors in immediate
danger because they were defiant in the presence of Edith D. The Bureau
concluded that Edith D. remained unable to meet the minors’ emotional and
physical needs, and it again recommended termination of reunification
services to Edith D. Bobbie A.’s adult paternal sister had expressed interest
in guardianship, and the Bureau recommended working to transition both
minors to her care. It also reported that if placement with Bobbie A.’s sister
was not feasible, the minors’ current foster parents had offered to obtain
guardianship.
VII. Contested 18- and 24-month Review
The Bureau provided a final report to the court prior to the continued
contested review hearing on August 19, 2021. It was prepared by a
substitute social worker because the original social worker was on leave. The
substitute social worker reported that after multiple unsuccessful attempts to
contact Edith D. by phone, she made an unannounced visit to Edith D.’s
home. During the visit, Edith D. was very emotional about being separated
from the minors, her physical health following her stroke, and the recent
deaths of her brother (Bobbie A.’s father) and her stepsister. Since Edith D.
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returned home after being hospitalized for a stroke, her adult son, who lived
in Las Vegas, was staying with her to help care for her. She had asked her
physical therapist if Bobbie A. could come to her physical therapy sessions to
learn how to help her stand, but the therapist told her both boys were too
young. At one point during the visit, the social worker heard about seven
gunshots outside and the police arrived at the end of the block. Edith D.
seemed unalarmed even when her adult son came to check on her. The
Bureau reported that the minors continued to thrive in their foster home, and
although they seemed open to possibly living with Bobbie A.’s sister in
Sacramento, they liked their foster home.
The original social worker was ordered to appear at the August 19,
2021 hearing, but because he was still on medical leave, a supervisor
appeared instead. The supervisor testified, based upon the records in the file,
that Edith D. regularly participated in supervised visits through Seneca prior
to her stroke but there were no visitation notes in the file. The supervisor
acknowledged that the prior social worker failed to schedule a visit on
Joseph A.’s birthday on July 9th, although he had been requested to do so.
She also acknowledged that no wrap-around services were initiated for the
family. Based on the supervisor’s review of the recent home visit report, she
believed Edith D. was emotionally and physically unable to take custody of
the children. Although the supervisor recognized Edith D.’s love for the
children, she explained that the Bureau had serious concerns about
Edith D.’s physical ability to care for them. Additionally, the Bureau was
concerned with Edith D.’s therapist’s report that she had not accepted
accountability for her neglect of the children and the implications of her
actions.
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Edith D. argued the Bureau had not provided reasonable services since
January 2021. She asserted that the only service provided between January
and August 2021 was visitation and that this was inadequate, particularly
given that the Bureau stated it would seek a referral for wrap-around
services that were never implemented. Edith D. did not specifically request
that the August 19, 2021 hearing be continued under section 352.3 Nor did
she argue there was good cause to continue the hearing. The Bureau
responded that it had provided therapy, case management, and visitation
services to Edith D. and to the children, but Edith D.’s therapist reported she
had made insufficient progress. The Bureau requested termination of
reunification services to Edith D., and the minors’ counsel agreed with the
recommendation.
The juvenile court found that, viewing the case in its entirety,
reasonable services were provided to Edith D. It stated that returning the
minors to Edith D. would place them in the same dangerous situation from
which they had been removed because Edith D. was still not able to
adequately control their behavior or supervise them. The juvenile court
terminated reunification services and set the matter for a section 366.26
hearing.
DISCUSSION
Relying on In re D.N. (2020) 56 Cal.App.5th 741, Edith D. argues the
lack of adequate reunification services constitutes extraordinary
3 Section 352, subdivision (a)(1) & (2) provides in relevant part, “Upon
request of counsel . . . , the court may continue any hearing under this
chapter beyond the time limit within which the hearing is otherwise required
to be held, provided that a continuance shall not be granted that is contrary
to the interest of the minor,” and, “Continuances shall be granted only upon a
showing of good cause and only for that period of time shown to be necessary
by the evidence presented at the hearing on the motion for the continuance.”
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circumstances such that the juvenile court should have invoked section 352 to
extend family reunification services beyond the statutory time limits.
Ordinarily, the maximum time period for reunification services is no more
than 18 months, but the period may be extended to 24 months under certain
circumstances. (§§ 361.5, subd. (a)(3), 366.22, subd. (b), 366.25.) In re D.N.
recognized, “Notwithstanding these statutory limits on reunification services,
a juvenile court may invoke section 352 to extend family reunification
services beyond these limits if there are ‘extraordinary circumstances which
militate[] in favor of’ such an extension.” (In re D.N., supra, at p. 762.)
Extraordinary circumstances may exist where inadequate services are offered
or “ ‘an external force over which [the parent has] no control’ ” prevented the
parent from completing the case plan. (Ibid.)
Here, although Edith D. contested the termination of reunification
services, she did not specifically argue that services should be permitted to
continue under the authority of section 352. Accordingly, the juvenile court
was not asked to, and did not, make a finding under the standards of section
352. A party who fails to request a continuance generally forfeits any
argument that a continuance should have been granted. (In re A.B. (2014)
225 Cal.App.4th 1358, 1366.)
Even if we were to consider Edith D.’s claim that the juvenile court
should have exercised its authority under section 352 to continue her
reunification services, we would reject it. “Continuances are discouraged
[citation] and we reverse an order denying a continuance only on a showing of
an abuse of discretion [citation].” (In re Ninfa S. (1998) 62 Cal.App.4th 808,
810–811.) An abuse of discretion is found “ ‘ “when a decision is arbitrary,
capricious or patently absurd and results in a manifest miscarriage of
justice.” ’ ” (In re D.N., supra, 56 Cal.App.5th at p. 756.) Edith D. argues
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that the reunification services she received were inadequate, and she
specifically notes that wrap-around services were not implemented and the
social worker failed to obtain a psychological evaluation from Edith D.’s
therapist in April 2021.4 But she fails to address the factors the juvenile
court must consider in determining whether good cause exists under section
352 to warrant a continuance, including that “a continuance shall not be
granted that is contrary to the interest of the minor” and that “[i]n
considering the minor’s interests, the court shall give substantial weight to a
minor’s need for prompt resolution of his or her custody status, the need to
provide children with stable environments, and the damage to a minor of
prolonged temporary placements.” (§ 352, subd. (a)(1).)
Here, the Bureau’s status reports consistently raised concerns based
upon observations during supervised visitation that Edith D. continued to
lack the ability to control the minors’ behavior. Nor had Edith D.
acknowledged her failure to properly supervise the minors. As the juvenile
court found, returning the minors to Edith D.’s care would be returning them
to the same hazardous situation from which they had been removed. This
case does not share the “unique circumstances” present in In re D.N., where
the father made substantial progress toward alleviating the causes
necessitating placement; applied for housing at multiple locations but was
4 Edith D. also asserts, “Hospitalization can be another external force
over which a parent has no control,” and cites In re Elizabeth R. (1995) 35
Cal.App.4th 1774. However, she does not develop any argument as to how
her hospitalization, which began at the end of May 2021 (over 18 months
after the minors were removed from her custody and 24 months after the
Bureau began providing her services through its intensive family services
program), impacted her reunification efforts or otherwise constituted an
extraordinary circumstance militating in favor of an extension. Her
conclusory statement is without merit.
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unable to obtain suitable housing due to his poverty; and the minor, who
consistently failed to thrive in group and foster homes, strongly wished to live
with his father. (In re D.N., supra, 56 Cal.App.5th at pp. 764–766.) In
contrast, under the circumstances here, it was not an abuse of discretion to
deny any implied request for a continuance under section 352.
Further, we find substantial evidence supports the juvenile court’s
finding that Edith D. was provided reasonable reunification services.5 The
services provided to Edith D. included supervised visitation, where she
received assistance in managing the minors’ behavior and setting boundaries;
parenting classes; therapy; and case management. Even before the petitions
were filed in August 2019, the Bureau began providing services to the family
through its intensive family services program. These services continued in
some form through 2020 and 2021. We agree that, based on the record, it
appears that wrap-around services were not implemented in the spring of
2021, as the Bureau requested. Nor does the record indicate that the Bureau
obtained a mental health assessment from Edith D.’s therapist. Nonetheless,
substantial evidence supports the juvenile court’s finding that over a two-
year period reasonable services were consistently provided to Edith D. to
attempt to remedy the problems alleged in the petition. (See In re Misako R.
(1991) 2 Cal.App.4th 538, 547 [“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”].)
5Because the trial court’s finding was made under the clear and
convincing evidence standard, “[w]e review the record in the light most
favorable to the trial court’s order to determine whether there is substantial
evidence from which a reasonable trier of fact could make the necessary
findings based on the clear and convincing evidence standard.” (In re
Isayah C. (2004) 118 Cal.App.4th 684, 694.)
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Finally, Edith D. argues under the heading “CONSIDER FEDERAL
LAW” that the Family First Prevention Services Act of 2018 “eliminates time
limits on reunification services when a child is placed in foster care,” and she
cites title 42 United States Code section 629a(a)(7). We reject this argument
because it was not raised below and is therefore forfeited. (In re A.B., supra,
225 Cal.App.4th at p. 1366.) Moreover, title 42 United States Code section
629a(a)(7) defines “family reunification services” but does not state that it
“eliminates time limits on reunification services” under California law.6
Edith D. provides no analysis as to how the federal law alters California state
law as applied to her case.
DISPOSITION
The petition for extraordinary writ is denied on the merits. (Welf. &
Inst. Code, § 366.26, subd. (l)(1)(c); Cal. Rules of Court, rule 8.452.) The
request for a stay is denied. Our decision is final as to this court
immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
6 Title 42 United States Code section 629a(a)(7)(A) states: “The term
‘family reunification services’ means the services and activities described in
subparagraph (B) that are provided to a child that is removed from the child’s
home and placed in a foster family home or a child care institution or a child
who has been returned home and to the parents or primary caregiver of such
a child, in order to facilitate the reunification of the child safely and
appropriately within a timely fashion and to ensure the strength and
stability of the reunification. In the case of a child who has been returned
home, the services and activities shall only be provided during the 15-month
period that begins on the date that the child returns home.”
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_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Burns, J.
A163378/Edith D. v. Super. Ct. (Contra Costa County Children & Fam. Services Bur.)
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