Ana C. v. Super. Ct. CA1/3 ( 2013 )

Filed 7/30/13 Ana C. v. Super. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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 THREE
ANA C.,
Petitioner,
v.
A138752
THE SUPERIOR COURT OF
SAN FRANCISCO COUNTY, (City & County of San Francisco
Respondent; Super. Ct. No. JD12-3091)
SAN FRANCISCO HUMAN SERVICES
AGENCY,
Real Party in Interest.
Mother petitions this court for an extraordinary writ pursuant to Welfare and
Institutions Code section 366.261 and California Rules of Court, rule 8.452, seeking
review of the juvenile court’s order terminating her reunification services and setting the
matter for hearing to implement a permanent plan for her now 15-month-old daughter.
She contends there was no substantial evidence supporting the finding that she was
provided with reasonable reunification services. We deny the writ petition on the merits
and deny as moot mother’s related request for a stay of these proceedings.
Factual and Procedural History
In March 2012, after mother and her newborn daughter tested positive for PCP,
the San Francisco Human Services Agency (agency) filed a section 300 petition and
1
All statutory references are to the Welfare and Institutions Code.
1
placed the daughter in emergency foster care. The petition alleged, among other things,
that mother had substance abuse and mental illness issues that required assessment and
treatment; tested positive for PCP the day after her daughter’s birth; failed to benefit from
the services provided to her by the agency in connection with a prior dependency case
involving her three other children; failed to reunify with those three children; and had a
lengthy child welfare history as well as a criminal history.
In the accompanying detention report, the social worker noted that reunification
services were terminated as to her three older children only two months before her
daughter’s birth. Mother reported to the social worker that she used marijuana and PCP
periodically, but that she stopped using drugs when she first learned she was pregnant.
She claims that she was around friends who used PCP but she had not smoked it while
pregnant and was surprised to know that the drug tests were positive. She explained that
she was participating in an outpatient drug treatment program during the course of her
older children’s dependency proceedings, but because she missed three appointments she
must complete the orientation program again in order to re-enter the program. She also
claimed to have completed parenting and anger management classes and to be
participating in individual therapy.
At the initial detention hearing, the daughter was detained and placed in foster
care. Mother was granted supervised visitation.
In advance of the jurisdictional hearing, the agency submitted a report
recommending that the court bypass services. The report states, “Given the uncertainty of
[mother’s] mental health, her active substance abuse, and her failure to reunify with her
older children, the agency cannot recommend services for [mother].” The social worker
explained that mother continued to deny that she uses drugs, despite a history of positive
drug tests, and observed that mother’s “failure to be forth-coming about her substance
abuse is concerning as [she] actually believes that she does not have a problem.” Mother
reported to the social worker that “if she is not getting her baby back, she is not staying in
[a] program.”
2
An addendum report filed in June 2012 provides additional information regarding
mother’s substance abuse treatment. The social worker reported that after the hearing on
May 23, 2012, she learned that mother had signed herself in to a residential drug
treatment program. On June 6, the social worker met with mother and her case worker to
review mother’s progress in the program. The case worker reported that mother “presents
as very defiant and gets angry if things do not go her way.”
Prior to the contested jurisdiction/disposition hearing, the agency filed a first
amended section 300 petition, which included an additional allegation pursuant to
section 300, subdivision (j), alleging that mother failed to reunify with the three older
siblings and that the three older children are currently in legal guardianship. Following a
hearing on August 30, the court established jurisdiction, ordered visitation for mother,
and set a disposition hearing.
In an addendum report filed in advance of the disposition hearing, the social
worker reported that mother continued to use drugs despite being in a residential
treatment program. The report states that mother had two positive drug tests on June 27
and July 2, 2012. The June test was conducted after mother left the facility for a
community visit and appeared to be under the influence when she returned. “Mother
denied using and stated that she was offended that she was asked to test. [She] continued
to deny using, stating that the drug stays in your system for 30 days, which is why it was
positive.” Because she had been in the program for just under 30 days as of the first test,
a second test was completed on July 2 to confirm the results. “Prior to the test coming
back positive, [mother] was informed [that] if the July 2nd test was positive, she would
be terminated from the program; it was at this time that she admitted to using and the
program gave her another opportunity due to her admission of usage.”
At the disposition hearing, the juvenile court found by clear and convincing
evidence that there was a substantial danger to the daughter’s physical safety, protection
or physical or emotional well-being if she were returned to mother’s care, that the agency
had made reasonable efforts to prevent or eliminate the need for the daughter’s removal,
3
and declared the daughter a dependent of the court. Mother was ordered to engage in
recommended services and was granted supervised visitation.
On February 22, 2013, in advance of the six-month review hearing, the social
worker submitted a status review report recommending that in light of mother’s chronic
and lengthy history of substance abuse, services be terminated and the matter be set for a
section 366.26 hearing. The social worker observed that mother “has demonstrated her
ability to comply with her case plan activities: go to groups, attend individual therapy,
submit to drug/alcohol tests, etc. [However], [n]o matter how many certificate of
completion [she] obtains, there seem to be no significant behavioral changes, resulting in
the re-occurrence of the same issues.” The report explains that while mother completed
the residential substance abuse program on November 27, 2012, one week later she
relapsed. Paramedics found mother on the street in an intoxicated, catatonic state.
Mother was unable to provide any specific information regarding the whereabouts of her
five-year-old son, who at the time was staying with mother on an unauthorized and
unsupervised visit. The child was eventually located and he informed the investigating
social worker that “my mom drinks a lot.” The doctor who treated mother informed
police officers that he suspected that she had drugs in her system.
In an addendum filed in May 2013, the social worker reported that mother had
stopped submitting to regular drug testing. According to the service provider, mother’s
last drug test was on February 28, 2013, and she failed to appear for her scheduled
appointment on March 6, 2013. Mother then missed the next three weeks of testing,
called to schedule an appointment for the end of April, and then failed to appear for that
appointment. Similarly, mother had not attended a therapy appointment since March
2013. According to mother’s therapist, the last scheduled therapeutic session was on
April 8, 2013, but mother failed to appear for the appointment. The therapist informed
the social worker that she needed to speak with mother before providing a written
progress report. Finally, after graduation from the out-patient program, mother was
referred to and was participating in the dependency drug court program. The addendum
indicates that mother was discharged from the program in April after missing two
4
appointments. The addendum also notes, however, that discharge appears to have been
the product of a miscommunication between mother and staff, and that her re-entry into
the program was pending at the time of the report.
The social worker also detailed a new referral received by the agency regarding a
verbal and physical altercation involving mother. At the time of the incident, mother’s
five-year-old son was again staying with mother on another unauthorized and
unsupervised visit and witnessed the domestic violence. Despite the police report
identifying mother as a party to the altercation, mother denied that she was involved.
The social worker again recommended the termination of services, observing that
mother’s lack of progress and inconsistent participation in the required services were
troubling, particularly since mother had been provided ample services for a total of two
years.
The social worker was the only witness at the contested six-month review hearing,
and her reports were admitted into evidence. The social worker testified that prior to the
completion of mother’s residential program, the social worker conferred with the
program director to set up aftercare programs, such as an outpatient program, to support
mother in maintaining her sobriety. Following mother’s graduation, mother attended
sessions at a women’s center and participated in 12-step meetings. Nonetheless, as noted
in her report, mother relapsed within a week of her graduation. The social worker opined
that even if services were continued to the 12-month review hearing, mother would
receive only a couple more weeks of services and would be unlikely to reunify with her
daughter.
After considering the evidence, testimony, and oral arguments of all counsel, the trial
court found by clear and convincing evidence that reasonable services had been provided
to assist mother to overcome the problems which led to the dependency, that mother had
not sufficiently mitigated those issues, and that returning the one-year-old child to
mother’s custody would create a substantial risk of detriment to the child’s safety,
protection, and emotional or physical well-being. The court further found that there was
5
not a substantial probability of the child’s return to mother’s care at the 12-month review,
terminated services, and set a section 366.26 hearing.
Mother filed a timely notice of intent to file a writ petition challenging the court’s
termination of services and the setting of the permanent plan hearing.
Discussion
At the sixth month review hearing, a court may terminate reunification services
and order the setting of a section 366.26 permanency hearing only if “there is clear and
convincing evidence that reasonable services have been provided or offered to the parent
. . . .” (§ 366.21, subd. (g)(1)(C).) The reasonableness of services is judged according to
the circumstances of each case. (Armando L. v. Superior Court (1995) 36 Cal.App.4th
549, 554.) A social services agency is required to make a good faith effort to address the
parent’s problems through services, to maintain reasonable contact with the parent during
the course of the plan, and to make reasonable efforts to assist the parent in areas where
compliance proves difficult. (Id. at pp. 554-555.) “In almost all cases it will be true that
more services could have been provided more frequently and that the services provided
were imperfect. The standard is not whether the services provided were the best that
might be provided in an ideal world, but whether the services were reasonable under the
circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) We determine whether
substantial evidence supports the court’s finding that reasonable services were provided,
reviewing the evidence in a light most favorable to the prevailing party and indulging in
all reasonable inferences to uphold the court’s ruling. (Id. at p. 545.)
In this case, the agency arranged for and mother participated in a wide range of
services, including a residential treatment program, an outpatient drug treatment program,
individual therapy, drug testing, and parenting classes. Mother argues that while the
agency may have developed a reasonable reunification plan “it is clear that from the
beginning there was never any intention to return the child to her mother. The social
worker assigned to this case had already made her mind up and was looking to fast track
a permanency plan that excluded the mother.” She faults the social worker for failing to
“follow up on [mother’s] progress in therapy and her attendance at an outpatient
6
program” and failing to increase visitation or allow unsupervised visitation once she was
in the outpatient program. She argues that by failing to gather information from mother’s
service providers, the social worker “painted a portrait of [mother’s] engagement in
services . . . that is at best, inaccurate, and at worst, false.” We disagree.
The record does not demonstrate any bad faith on the part of the agency or social
workers. As detailed above, the record establishes that the social workers made
appropriate referrals and consulted regularly with mother’s service providers throughout
the proceedings. Mother argues that the social worker’s bad faith is demonstrated by her
failure to follow up on missing attendance sheets from the outpatient treatment program
between April and May 2013. At the review hearing, however, the social worker
acknowledged that mother had reported that she was attending her out-patient treatment
program, and conceded that she had not requested or received additional evidence of
attendance after March 2013. The social worker’s failure to request additional evidence
of attendance does not establish that the agency failed to provide reasonable services or
was acting in bad faith. Moreover, it is entirely unlikely that the missing attendance
records would have had any impact on the outcome of the proceedings.
Mother also argues that the social worker incorrectly reported to the court that her
individual therapy had been discontinued and that she had been discharged from the
dependency drug court program. The record, however, establishes that the social worker
gave an accurate report of mother’s participation in therapy and the dependency drug
court, as reported to her by the service providers at the time of the report. Moreover, the
social workers provided ample clarification of her report at the hearing. She confirmed
that there was some confusion regarding mother’s discharge from the dependency drug
court program, but also acknowledged that mother had attended some sessions in May
and intended to re-engage with the program. Likewise, the social worker testified that
mother’s therapist was hoping to speak with mother before providing a progress report to
the agency and indicated that “she would call mom to reschedule the therapy sessions”
she had missed. It is immaterial whether the social worker reported that therapy was
7
“discontinued” or “pending” insofar as the factual information provided to the court was
accurate and allowed the court to evaluate mother’s progress.
Finally, contrary to mother’s argument, the agency made reasonable efforts to
facilitate visitation between mother and child. The status review report indicates that
mother had supervised bi-weekly visits on Tuesdays and Fridays for three hours and that
mother was attentive to her daughter’s needs and seemed comfortable caring for her
during the visits. The social worker reported that in October 2012, mother had cared for
her daughter without incident at the facility during a two-week visit while the child’s
caretakers were out of town. At the six-month review hearing the social worker testified
that after the successful October visit, the agency evaluated the prospect of increasing
visits, including overnight visits, and intended to implement additional visits once mother
sufficiently demonstrated that she could stay drug-free for an extended period of time.
She explained that she was willing to authorize the two week visit in October because
mother was in a program and there was supervision. The real test, however, was how she
would “do outside in the community, is she going to be able to apply all the tools she
learned in this program.” For this reason, the social worker wanted mother “to stabilize
outside after completing the program . . . prior to placing the child with her.” The agency
was considering overnight visits around the Christmas holiday, but when mother relapsed
in early December, the agency determined that increasing visits would no longer be
appropriate. Under the circumstances, we do not believe that the agency’s decision not to
increase visitation demonstrates a failure to provide reasonable services.
8
Disposition
The petition for extraordinary writ is denied on the merits (§ 366.26, subd. (l); Cal.
Rules of Court, rule 8.452(h).) The request for a stay is denied as moot. Our decision is
final immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b).)
_________________________
Pollak, Acting P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
9