In re Isabel C. CA2/4 ( 2013 )

Filed 6/21/13 In re Isabel C. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re ISABEL C., B247936
(Los Angeles County
a Person Coming Under the Juvenile Court Law. Super. Ct. No. CK79718)
M.T.,
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES DEPARTMENT OF
CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL proceeding for extraordinary writ. Marilyn Mordetzky, Referee.
Writ denied.
Law Office of Marlene Furth, Danielle Butler Vappie and Sue Dell for Petitioner.
No appearance for Respondent.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Aileen Wong, Deputy County Counsel, for Real Party in Interest.
In this extraordinary writ proceeding, M.T. (mother) challenges the juvenile
court‟s finding and order at a hearing under Welfare and Institutions Code1 section
366.21, subdivision (f), that the Los Angeles Department of Children and Family
Services (the Department) provided her reasonable family reunification services
and that mother‟s reunification services would be terminated. Mother contends
there was insufficient evidence to support the court‟s finding, and even if there was
sufficient evidence, the court abused its discretion by failing to consider ordering
an additional six months of services in light of the Department‟s failure to provide
reasonable services during previous reporting periods. We conclude there was
sufficient evidence to support the juvenile court‟s finding, and that the court did
not abuse its discretion by not ordering additional services. Accordingly, we deny
the writ.
BACKGROUND
This matter is before us for the second time. In March 2011, mother filed a
petition for extraordinary writ after the juvenile court ordered termination of
reunification services at a section 366.21, subdivision (f) hearing on January 31,
2011. Shortly after the writ petition was filed, the parties filed a joint application
and stipulation for reversal, agreeing that the order terminating services should be
vacated and that mother should receive six months of reunification services. On
March 30, 2011, we issued an order reversing the January 31, 2011 order and
remanding the case to the juvenile court with directions to provide mother with six
months of reunification services and, following those six months, to hold another
hearing under section 366.21, subdivision (f). The instant writ petition involves
the findings and order made at the subsequent hearing. Because of the history of
1
Further undesignated statutory references are to the Welfare and Institutions Code.
2
this case and the issue currently before us in this writ proceeding -- whether the
Department provided reasonable reunification services after the case was remanded
-- we need not discuss in detail the facts of the case prior to our March 30, 2011
order.
Mother‟s children, Isabel (born in October 1997) and Nataly (born in March
1999), came to the attention of the Department in October 2009, after mother was
arrested for neglect under Penal Code section 273a, subdivision (a). Peace officers
went to the family‟s home following a report that mother had punched a window in
her apartment, causing the glass to break. The officers questioned mother, who
was incoherent. They observed that the home was filthy and bug infested. There
was a strong foul odor, spoiled food everywhere, and trash and clothing strewn
about. The children told one of the officers that mother was not providing food,
shelter, clothing, or supervision, and was physically abusing them. The children
were taken into protective custody, and the Department filed a petition under
section 300. The children were ordered detained.
At the Pretrial Resolution Conference (PRC), the court sustained counts
alleging that (1) mother “suffers from periods of confusion, mental and/or
emotional instability, and/or memory loss” and has inflicted physical abuse on the
children; (2) mother “has exhibited bizarre behavior,” has locked the children out
of the home on several occasions, and has failed to provide for the children‟s food,
clothing, or medical care while the children resided with unrelated adults;
(3) mother “established a filthy and unsanitary home environment” for the
children; and (4) the children‟s father and mother have a history of engaging in
violent altercations.2 The court declared the children dependents of the court under
2
At the time of the PRC, the whereabouts of the children‟s father were unknown.
The Department learned from his mother that he had been deported to Mexico, but she
did not have his address or telephone number.
3
section 300, subdivisions (b), (g), and (j), and ordered reunification services to be
provided to mother, including parenting education and individual counseling to
address anger management, domestic violence, and case issues. In addition, the
court ordered mother to submit to psychological/psychiatric evaluation and
treatment as recommended.
At the time of the PRC, mother was still incarcerated, under an immigration
hold. In March 2010, the Department learned that mother was being held at the
United States Customs and Immigration Detention Center in Eloy, Arizona. She
was ordered deported to Mexico on April 29, 2010, but she filed an appeal and
remained in custody until July 15, 2010, when she was deported. In the meantime,
in January 2010, the children were placed with a non-related extended family
member, Tanisha H., a former neighbor who took care of the children on those
occasions when mother locked them out of their home or failed to care for them.
By the time of the original 12-month review hearing in January 2011,
mother had had very little contact with the Department and had been provided
virtually no reunification services, due primarily to her incarceration and
deportation. Mother was living in a small town in Mexico, and her only access to a
telephone was a local town telephone; if she received a call on that telephone,
someone from the town would contact her. Despite the very limited contact the
Department had with mother up to that point, the juvenile court found that the
Department had provided reasonable services. The court also found that mother
was not in compliance with her case plan, and terminated her reunification
services. As noted above, mother filed a petition for extraordinary writ and, based
upon the parties‟ joint application, this Court issued an order on March 30, 2011,
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reversing the juvenile court‟s order with directions to provide an additional six
months of services, followed by a new 12-month review hearing.
The day after we issued our order, the social worker assigned to the case
spoke to mother by telephone. Mother told the social worker that she had an
appointment with a psychologist, scheduled through DIF3 in the City of
Zihuatanejo, and she would see what services they could provide at that time. The
social worker reminded mother that the juvenile court had ordered her to attend a
parenting program and individual counseling to address various issues, and also
ordered her to submit to a psychological/psychiatric evaluation with treatment as
recommended. The social worker also noted that the court ordered weekly
monitored telephone contact with the children, and told her that the children‟s
caregiver would contact her on a weekly basis so she could talk with her children.
Following issuance of the remittitur, on April 14, 2011, the juvenile court
ordered the Department to provide six months of reunification services and set a
12-month review hearing under section 366.21, subdivision (f) in October 2011.
The court ordered the Department to establish contact with DIF and ensure that
referrals and services were being provided to mother.
Despite the court‟s orders, more than two months elapsed before the
Department made any effort to provide services. Finally, on June 24, 2011, the
social worker assigned to the case attempted to call mother in Mexico. He spoke
with mother‟s sister, who told him mother was living in another town; she gave
him a telephone number to contact her. The social worker attempted to call that
number two weeks later, but the call did not go through. Seven weeks later, he
attempted to call again, but did not reach her. He called again three weeks after the
3
DIF is the acronym of an agency in Mexico, Desarrollo Integral de la Familia
(translated as Integral Family Development). It is a national public assistance institution
that focuses on strengthening and developing the welfare of Mexican families.
5
previous attempt. On that day, September 12, 2011, he spoke to another of
mother‟s sisters, who told him mother was in another village and could be
contacted on a public telephone there. He attempted to contact her at that number
that same day, but the call would not go through. Three weeks later, on October 4,
the social worker called the number for mother and got her voicemail. He left a
message asking mother to call him. He then attempted to call the psychologist
mother had told a different social worker on March 31, 2011 she was going to see,
but the number was incessantly busy. He tried to call the psychologist again on
October 11 (the week before the scheduled 12-month review hearing), but again,
the call would not go through. In short, between the time the juvenile court
ordered the Department to provide reunification services to mother and the date of
the review hearing, the Department made limited efforts to speak to mother or the
psychologist she purportedly saw, all of which were unsuccessful. During this
same period, the children attempted to call mother eight times, and were able to
speak to her once; mother and the children also exchanged letters once.
In its report for the scheduled hearing, the Department reported that the
children had adjusted well to their foster home and they each emphatically stated
that they wanted to live with their foster mother (who said she was willing to adopt
them) and did not want to live with mother. The Department recommended
termination of reunification services.
The 12-month review hearing was continued to December 7, 2011 for a
contested hearing, and the Department was ordered to file a supplemental report by
November 22 to address all of its efforts to involve and contact DIF and to provide
reunification services for mother in Mexico. In its November 22 supplemental
report, the Department listed all of its attempts to contact mother and/or DIF in
Mexico since the matter was remanded. In addition to the contacts or attempted
contacts discussed above, the Department reported the following.
6
A week after the October 18, 2011 hearing, mother‟s counsel left a message
for the social worker, stating that she had spoken to mother; counsel provided the
telephone number where mother could be reached. The social worker called
mother the same day. Mother told the social worker that she enrolled in a domestic
violence class and a parenting class. When the social worker asked if she had been
receiving psychiatric evaluation or counseling, mother initially said she did not
need a psychiatric evaluation, but when reminded that the court had ordered it, she
said she was receiving ongoing services from a psychologist. The social worker
asked her to give him the name, address, and telephone number for the service
providers so he could confirm her participation, but she told him she did not have
that information at that time, and asked him to call her back in a half hour. When
he tried to call her back, there was a busy signal both times the number was called.
The social worker attempted to call mother the next day, twice in the
morning and twice in the afternoon, but the number was busy each time. He tried
several times again over the next two days, but none of the calls went through.
Four days later, on October 31, the social worker conducted an internet search to
try to find an address or telephone number for the DIF office in Zihuatanejo,
Mexico; it appears he was not successful.
The social worker was able to reach mother again on November 7, 2011. He
told her he had been trying to reach her to get the contact information for the
therapist she had been seeing, which she had promised to provide. Mother told
him she had the information at her house, and went to retrieve it. She returned to
the telephone 15 minutes later, and told the social worker she did not have a key to
the house and therefore could not give him the information. He asked her to give
her the name of the therapist in the meantime, but mother did not respond. He
could hear the sounds of children in the background as he called out “Hello, hello,”
but mother did not say anything. Eventually he heard the sound of the telephone
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disconnecting. An hour later, he called back, and mother answered. She told him
the earlier call had been cut off. Mother offered to go and get the telephone
number of the therapist, but the social worker insisted that mother first provide him
with the therapist‟s name and the number of sessions she attended. Mother then
gave him the therapist‟s name (Arturo Sanchez) and telephone number, as well as
the name of the clinic and the town in which it is located. She told him she attends
two sessions per week, and that she also takes parenting classes and domestic
violence classes. When asked if she had submitted to a psychological/psychiatric
evaluation, she told the social worker that her therapist told her she did not need to
do so. In response to the social worker‟s statement that she was required by a court
order to submit to such an evaluation, mother said that she had never been
informed of that order.
The following day, the social worker called the number mother had provided
for the therapist. A recording stated that the number could not be reached at that
time, and instructed the caller to call back later. That same day, the social worker
conducted an internet search to find the telephone number for the director of
municipal health services for the city of Zihuatanejo, Mexico, in order to verify the
whereabouts of mother‟s therapist, Arturo Sanchez. He called the number listed on
the city‟s website, but the number was not functioning. He then sent an email to
the address listed on the website for the director of municipal services.
The following day, the social worker again called the number mother had
given to him for her therapist. Once again, there was a voice recording instructing
the caller to call back at another time. He tried that number once more a week
later, with the same result.
The 12-month review hearing was continued once again, to January 26,
2012. In its report for that hearing, the Department provided updates on its
continuing attempts to provide services and/or verify mother‟s participation in
8
services since the previous hearing on December 7, 2011. On December 8, the
social worker attempted to call mother, but the telephone lines to Mexico were
overloaded, and the call could not be completed. He tried to call a week later, but
the call did not go through after several attempts. He tried again on December 27,
but got a recording stating that the number could not be reached at that time, and
instructing the caller to call back later.
The social worker called again on January 10, 2012, and was able to talk to
mother. He confirmed that mother had received the notice of the last hearing, and
told her she would soon receive a notice of the next hearing (which had been
mailed the day before the conversation). He asked mother whether she was taking
any classes on domestic violence or parenting, and whether she had been evaluated
by a psychiatrist. She told him she was receiving the classes with psychologist
Arturo Sanchez and that he told her she did not need to see a psychiatrist. The
social worker again reminded mother that the court had ordered her to be evaluated
by a psychiatrist. When the social worker asked for Sanchez‟s telephone number,
mother said she had to go get it. She returned to the phone a few minutes later
with the number. The social worker then called that number, but the person who
answered said there was no one there by the name of Arturo Sanchez; the person
said the number reached was a telephone booth. We note that the number
indicated by the social worker in the report is the same number he had called to
reach mother.
The 12-month review hearing was continued several more times. Shortly
before one of the continued hearings, the Department filed a last minute
information with the court, discussing the Department‟s efforts to contact DIF in
Mexico. The Department explained that the social worker went to the office of the
Consulate General of Mexico in Los Angeles on March 6, 2012, to obtain an
official explanation of the function of DIF. He met with the consul of legal affairs
9
on March 14, who told him about the procedure used to forward information to
DIF regarding a Mexican citizen, and gave him the name and telephone number of
the person in Los Angeles who is familiar with the procedure and acts as the
liaison. The social worker called that number several times and left voicemail
messages, but at the time of the report he had not received a response from the
liaison.
The court held the contested hearing on April 4, 2012, and found that the
Department had not made reasonable efforts to comply with the case plan. It
ordered the Department to provide a progress report on its efforts to contact DIF in
Mexico, and to facilitate telephone contact for the children with mother with a
written telephone schedule to allow for contact once a week. The court set a date
for another hearing in October 2012, and stated that the hearing would still be a
section 366.21, subdivision (f) hearing in light of its finding of no reasonable
services.
In the progress report filed in compliance with the court‟s order, the
Department reported that the social worker obtained from the Los Angeles liaison,
Nilda Roos, the telephone number of the DIF in the state of Guerrero, Mexico. He
called that number on April 13, 2012 and spoke to Gretel Davila from the office of
the coordinator general of human rights for the city of Costa Chica; the office is
part of DIF. Davila agreed to obtain information about mother‟s participation in
therapy with psychologist Sanchez, and asked for a copy of the court order
documenting the programs that mother was required to complete. The social
worker sent Davila an email a few days later with the requested information. On
April 18, the social worker received an email from Davila stating that she had
10
confirmed with the head of the psychology department that mother was receiving
therapy, and she would send him an official document to that effect.4
The Department‟s progress report also detailed mother‟s telephone and
written contacts with the children from April 2011 to April 2012. The report
shows that, from April 22, 2011 through March 2012, the children called mother
eight times, but were able to reach her only one of the times, mother called and
spoke to the children twice, the children sent three letters to mother, and mother
sent one letter to the children and a birthday card to Nataly.
The Department filed another report in advance of the scheduled section
366.21, subdivision (f) hearing on October 3, 2012. It reported that the social
worker tried to call the telephone number for Gretel Davila on May 14, June 21,
June 27, July 23, and July 31, but could not get through because either the number
could not be connected or there was a continuous busy signal. He called the
liaison, Nelda Roos, twice to see if there was another number, but he was told that
he just had to keep calling over and over until he got through. He sent letters on
July 23, August 8, August 14, August 28, and September 24 to the coordinator for
the Office of Defense of the Minor to solicit their assistance in obtaining
information on the status of mother‟s participation in the court-ordered services.
Finally, he sent another email to Gretel Davila on September 6, asking for
assistance. Apparently, he did not receive any responses to his written inquiries.
The status review report for the October 3 hearing also included a list of
telephone and attempted telephone contacts between the children and mother. It
showed that the children or their foster mother attempted to call mother 19 times
between April 9, 2012 and September 15, 2012, and spoke to mother only one of
those times; the other times, there was no answer, the telephone was busy, or
4
It is not clear whether the social worker received that official document; there is
no such document in the record.
11
someone answered but said that mother was not there. The list also showed that
mother called the children three times, although she did not talk to the children one
of those times because they were at school.
The October 3, 2012 hearing was continued to November 19, 2012, due to
improper notice to mother. The hearing was continued two more times, again due
to improper notice to mother, and once more due to the illness of mother‟s counsel.
It finally was held on February 13, 2013. At that hearing, counsel for mother
conceded that the allegations against mother were fairly severe, that mother was
“not a meritorious client for reunification,” and that the Department had attempted
to do everything it was required to do during the six-month period from April 2012
to October 2012. But she argued that it could have done more. She criticized the
Department for not following up more often when calls to DIF did not go through,
and not sending a letter directly to the therapist mother was seeing, after the social
worker‟s correspondence to the Mexican agency asking for updates on mother‟s
participation in programs produced no response. Finally, she noted that the
Department had made no further attempts to contact DIF (or to ensure telephone
contact between mother and the children) since the Department filed its report in
advance of the October 3, 2012 hearing.
The juvenile court found the Department had made reasonable efforts to
provide services, and mother was not in compliance with her case plan. In doing
so, the court noted that mother had made no effort to provide information to the
Department or to assist the Department in verifying her participation in the court-
ordered programs. The court also found there was not a substantial probability that
the children could be returned to mother before the 18-month review hearing,
ordered termination of reunification services, and set a date for the selection and
implementation hearing under section 366.26. Mother challenges that order in this
writ proceeding.
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DISCUSSION
A. Reasonable Reunification Services Were Provided Under the Circumstances
Mother contends there was insufficient evidence to support the trial court‟s
finding that reasonable reunification services were provided to mother. We
disagree.
When a child is removed from a parent‟s custody, the responsible agency
must make a good-faith effort to develop and implement reasonable family
reunification services responsive to the needs of that family. (In re Kristin W.
(1990) 222 Cal.App.3d 234, 254.) “The adequacy of a reunification plan and of
the department‟s efforts are judged according to the circumstances of each case.
. . . „The effort must be made to provide suitable services, in spite of the
difficulties of doing so or the prospects of success. [Citation.]‟ . . . „[T]he record
should show that the [department] identified the problems leading to the loss of
custody, offered services designed to remedy those problems, maintained
reasonable contact with the [mother] during the course of the service plan, and
made reasonable efforts to assist the [mother when] compliance proved difficult.
. . .‟ [Citation.]” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.)
“When a finding that reunification services were adequate is challenged on
appeal, we review it for substantial evidence.” (In re Alvin R. (2003) 108
Cal.App.4th 962, 971.) “[T]his court must view the evidence in a light most
favorable to the respondent. We must indulge in all reasonable and legitimate
inferences to uphold the judgment. [Citation.] „If there is any substantial evidence
to support the findings of a juvenile court, a reviewing court is without power to
weigh or evaluate the findings.‟” (In re Ronell A., supra, 44 Cal.App.4th at pp.
1361-1362.)
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At the outset, we must acknowledge that, although this case presented some
unusual challenges due to mother‟s incarceration, deportation, and ultimate
residence in a small town in Mexico, the Department‟s efforts to provide services
to mother during the first two and a half years fell far short of what was required of
it. But those two and a half years -- from October 2009 to April 2012 -- are not at
issue in this writ proceeding. Rather, the relevant period is the period for which
the juvenile court found the Department had provided reasonable services, i.e.,
April 2012 to October 2012. And the record shows that the Department made
significant, although ultimately unsuccessful, efforts to provide services to mother
under challenging circumstances.
For example, the social worker assigned to the case spoke with a coordinator
at a DIF office in April 2012 to confirm that mother was receiving therapy. The
social worker attempted to obtain additional information about mother‟s progress
and her participation in other court-ordered programs by calling the coordinator
once in May, twice in June, and twice in July, but the calls would not go through;
he contacted the Los Angeles liaison to see if there was a different number he
could call, but was told there was not. He then sent five letters and an email over
the course of the next two months, seeking that information, but received no
response.
The social worker was unable to confirm mother‟s participation in therapy
and programs directly with the provider because mother apparently did not give the
provider‟s correct contact information to the social worker. Indeed, it appears that
mother may have sought to avoid giving the information to the social worker.
When she first told the social worker about her participation in therapy and
programs, she could not provide the name or contact information of the provider,
and asked him to call back; when he did so later that day (twice) and over the next
two days, the line was busy. When he finally was able to reach her again a few
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days later, she told him she could not give him the contact information because it
was at her house and she did not have a key; when he asked for the name of the
therapist, she did not respond. An hour later, in another telephone call, mother
finally provided the therapist‟s name and telephone number (as well as the name of
the clinic and the town in which it is located), but every time the social worker
called that number, there was a recording stating that the number could not be
reached at that time. During a telephone call a few months later, mother gave the
social worker another number for the therapist, but when the social worker called
it, he was told that he had reached a public telephone booth.
In light of mother‟s apparent evasiveness and the Department‟s repeated,
though largely unsuccessful, attempts to contact -- by telephone, mail, and email --
the agency in Mexico charged with assisting and protecting the welfare of families,
there was little more the Department could do to provide services to mother, short
of having a social worker travel to Mexico to meet with mother and her providers
personally. The Department was not required to do this. “The requirement that
reunification services be made available to help a parent overcome those problems
which led to the dependency of his or her minor children is not a requirement that a
social worker take the parent by the hand and escort him or her to and through
classes or counseling sessions.” (In re Michael S. (1987) 188 Cal.App.3d 1448,
1463, fn. 5.)
We concede that the outcome here is far from ideal. But as one court has
observed, “we must . . . recognize that in most cases more services might have
been provided, and the services which are provided are often imperfect. The
standard is not whether the services provided were the best that might have been
provided, but whether they were reasonable under the circumstances.” (Elijah R.
v. Superior Court (1998) 66 Cal.App.4th 965, 969.) Under the circumstances of
this case, we conclude there is substantial evidence to support the juvenile court‟s
15
finding that the Department made reasonable efforts to provide services to mother
between April 2012 and October 2012.
B. The Court Did Not Abuse its Discretion by Failing to Order Additional
Services
Mother contends the juvenile court did not believe it had discretion to order
an additional six months of reunification services, and abused its discretion by
terminating services and setting a section 366.26 hearing. We find no abuse of
discretion.
Under section 366.21, subdivision (g), if a child is not returned to the
parent‟s custody at the section 366.21, subdivision (f) hearing, the juvenile court
may order an additional six months of reunification services, but only if the court
finds there is a substantial probability that the child will be returned to the physical
custody of his or her parent within those six months. (§ 366.21, subds. (g)(1), (2).)
However, in order to make that finding, there must be evidence that, among other
things, the parent consistently and regularly contacted and visited the child
(although the statute directs the court to take into account any barriers to the
parent‟s ability to maintain contact or visit with the child due to the parent‟s arrest
and/or deportation). (§ 366.21, subds. (g)(1), (3).)
In this case, the record shows that, even taking into account the barriers to
contact due to mother‟s deportation to Mexico, mother did little to maintain contact
with her children. In the nearly two years from the time mother‟s first petition for
extraordinary writ was filed to the order at issue in this proceeding, mother called
and spoke with the children a total of four times (she was unable to speak to them
on another occasion because they were at school when she called). She spoke to
them on two other occasions when the children called her (they placed 25
additional calls, but were unable to reach her). Even if the blame for the lack of
16
telephonic communication could be placed upon mother‟s lack of funds or
difficulties with the Mexican telephone system, mother could have maintained
regular contact with the children by mail, but did not do so. In fact, the record
shows that over the course of those two years, mother sent a single letter to the
children and one birthday card to Nataly. In light of mother‟s failure to maintain
regular contact with the children, we conclude the juvenile court did not abuse its
discretion by terminating mother‟s reunification services and setting a section
366.26 hearing.
DISPOSITION
The petition for extraordinary writ is denied. Our May 3, 2013 order
staying the section 366.26 hearing is hereby vacated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
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