Jessica S. v. Superior Court CA2/2 ( 2022 )

Filed 5/20/22 Jessica S. v. Superior Court CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JESSICA S., B316593
Petitioner, (Los Angeles County
Super. Ct. No.
v. 19CCJP04453D)
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Tara L.
Newman, Judge. Petition denied.
Los Angeles Dependency Lawyers; Law Office of Jolene
Metzger, Dominika Campbell and Leah Moritz for Petitioner.
No appearance for Respondent.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah Vesecky, Deputy County
Counsel, for Real Party in Interest.
******
In this petition for extraordinary relief, a mother seeks
review of a juvenile court’s order in a dependency case involving
her infant son that terminated reunification services and set the
case for a permanency planning hearing. Mother argues the
juvenile court’s finding that the Los Angeles Department of
Children and Family Services (the Department) provided her
reasonable reunification services was not supported by
substantial evidence. We disagree, deny mother’s petition, and
dissolve the stay of the permanency planning hearing.
FACTS AND PROCEDURAL BACKGROUND
I. Family
Jessica S. (mother) has four children with three different
men—Aubry R. (born July 2013), Sebastian A. (born April 2017),
Camilla S. (born November 2018), and Axel S. (born March 2020).
Guadalupe T. (father) is the biological father of the
youngest two children, Camilla and Axel.
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Mother and father have a tumultuous relationship. In
March 2018 and July 2019, father engaged in domestic violence
against mother. In September 2019, a criminal court issued a
criminal restraining order enjoining father from contacting
mother.
Mother and father also have a history of substance abuse;
more specifically, mother had a history of using opioids and
methamphetamine.
II. Prior Dependency Case
In September 2019, the juvenile court exerted dependency
jurisdiction over the three oldest children (Axel had yet to be
born) on the basis of (1) mother and father’s history of domestic
violence, and (2) mother’s and father’s substance abuse issues.
The juvenile court ordered the Department to provide
mother with reunification services, including parenting classes,
individual counseling, drug testing, and domestic violence
counseling for victims.
Mother and father continued to accuse one another of
harassment and of stalking one another.
III. Current Dependency Case
Axel was born in March 2020. Shortly after his birth, the
Department received reports that mother was drinking to excess.
A. The dependency petition
In April 2020, the Department filed a petition asking the
juvenile court to exert dependency jurisdiction over Axel based on
(1) mother and father’s history of domestic violence, which placed
Axel at substantial risk of serious physical harm (thereby
rendering dependency jurisdiction appropriate under Welfare and
3
Institutions Code section 300, subdivisions (a) and (b)(1)),1 (2)
mother’s and father’s histories of substance abuse, which also
placed Axel at substantial risk of serious physical harm (thereby
rendering dependency jurisdiction appropriate under subdivision
(b)(1) of section 300), and (3) the juvenile court’s prior finding
that Axel’s sibling and half siblings are “dependents,” which also
placed Axel at substantial risk of serious physical harm (thereby
rendering dependency jurisdiction appropriate under subdivision
(j) of section 300).
B. Jurisdictional and dispositional hearings
In October 2020, the juvenile court held a combined
jurisdictional and dispositional hearing.
The court sustained the domestic violence count (but only
under subdivision (b)(1) of section 300), the substance abuse
count and the dependency sibling count; the court dismissed the
domestic violence count under subdivision (a) of section 300.
The court also removed Axel from his parents.
The court ordered the Department to provide mother with
reunification services in accordance with her case plan.
Specifically, mother’s case plan required the Department to
provide mother with (1) a “[f]ull drug/alcohol program with
aftercare,” including weekly random drug testing, (2) a domestic
violence support group for victims, (3) and a “[d]evelopmentally
appropriate” parenting program. The court also carried forward
the written visitation schedule the Department had previously
prepared at the court’s direction for mother to visit Axel three
days a week for three hours per visit.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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By this time, mother had already enrolled in a domestic
violence and substance abuse programs as part of her case plan
for the prior dependency case, been dropped from those programs,
and re-enrolled in the substance abuse program.
C. Mother’s progress in the first six months of
reunification
Mother re-enrolled in the substance abuse program in
October 2020, and attended many individual and group sessions
as part of that program as well as submitted several negative
drug tests.
Although the Department’s contemporaneously prepared
activity logs did not reflect any instances in which the
Department had successfully contacted mother during this six-
month period, other evidence in the record indicates that the
Department made two successful attempts (in December 2020
and January 2021) and three unsuccessful attempts (two in
February 2021 and one in March 2021) to contact mother during
this period.
D. Six-month review hearing
The juvenile court held a six-month review hearing on April
23, 2021. The court found that mother had not made
“substantial” progress on her case plan. The court also found
that the Department had not provided mother with reasonable
family reunification services. The court ordered the Department
to (1) provide “all appropriate referrals [to mother] and set up
[mother] for testing”; (2) “assess mother’s testing through
program”; (3) “provide transportation assistance/referrals to
mother for visitation”; (4) “provide detailed information as to the
Department’s efforts . . . and the progress and participation of
parents”; (5) provide the court with service logs for the next
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review period; and (6) verify the information mother had provided
at the six-month hearing regarding her progress at the substance
abuse program.
E. Mother’s progress in the next six months of
reunification
Over the next six months, the Department made repeated
efforts to provide mother with appropriate referrals for programs,
drug testing and visitation-related transportation: Immediately
after the six-month review hearing, the Department sent mother
an email with a packet of program, testing and transportation
referrals, and the Department left a second copy of those referrals
with the relatives who had custody of Axel for mother to pick up
during her visits. The Department also set up in-person
meetings with mother for May and June 2021; when the
Department was setting up those meetings, mother told the
Department social worker that “she did not want or need
referrals.” Ultimately, mother never bothered to show up or to
cancel. The Department tried to schedule further in-person
meetings, but was unable to reach mother because the cell phone
number mother gave the Department in April 2021 stopped
working and mother did not respond to any of the Department’s
emails. The Department again left copies of the referrals with
Axel’s caregiver, but mother refused them. In August 2021, the
Department tried to find current contact information for mother
on Facebook, but was unsuccessful.
It was not until the month before the 12-month review
hearing that mother reached out to the Department with new
contact information, but even then ignored all further voicemail
and emails from the Department.
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Mother missed 18 drug tests between May 7 and
September 3, 2021.
F. Twelve-month review hearing
The juvenile court held a 12-month review hearing on
November 23, 2021. Mother argued that she was entitled to
another six months of reunification services because the
Department had failed to provide her with reasonable
reunification services. The Department disagreed, responding
that mother had not made herself available by changing her
contact information without informing the Department. After
taking the issue under submission, the juvenile court found that
the Department had provided reasonable reunification services.
Specifically, the court found that the Department had made “good
faith effort[s] to address the parents’ problems through
reasonable services and to attempt to maintain contact with the
parents so as to assist them in enrolling in [the] ordered
programs.” The court acknowledged that the Department’s
“contact with the parents was not as consistent as it could have
been,” but that this lack of contact was due to the parents’ failure
to “provide updated contact information” and their failure to
“respond to [the Department’s] efforts.” Because the court found
that mother had not provided documentation showing her
progress with her case plan and that mother had missed so many
drug tests, the court found mother’s progress to be lacking,
terminated reunification services, and set the matter for a
permanency planning hearing.
G. Appellate review
Mother filed a notice of appeal from the juvenile court’s
order terminating reunification services, which we construed as a
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notice of intent to file a writ petition. We issued an order to show
cause. (See Cal. Rules of Court, rule 8.452(d).)
DISCUSSION
Mother argues that the juvenile court’s finding that the
Department offered her reasonable reunification services is
unsupported.
I. Pertinent Law
Where, as here, a child is removed from his parents during
a juvenile dependency proceeding, the juvenile court in most
cases is required to “order the social worker”—here, the
Department—to provide reunification services to the child and
his parents. (§ 361.5, subd. (a); see also § 362, subd. (d).) To
effectuate this mandate, the court will set forth the services that
must be provided to any involved parent in a “case plan.” The
court is thereafter required to show periodic status review
hearings—typically, at six and 12 months after the child’s
removal from his parents—and, at those hearings, assess “[t]he
extent of the” Department’s “compliance with the case plan.” (§
366, subd. (a)(1)(B), § 366.21, subds. (e)(8) [six-month hearing],
(f)(1) [12-month hearing].) A court may not keep a removal order
in effect and may not terminate the reunification services unless
it finds, in most instances by clear and convincing evidence, that
the Department has provided the “reasonable services”
previously ordered by the court. (Ibid.; Katie V. v. Superior Court
(2005) 130 Cal.App.4th 586, 594; Robin V. v. Superior Court
(1995) 33 Cal.App.4th 1158, 1164 (Robin V.).) An agency
provides “reasonable services” when it “offer[s] services designed
to remedy” the problems identified in the parent’s case plan,
“maintain[s] reasonable contact with the parents during the
course of the . . . plan,” and makes “reasonable efforts to assist
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the parents in areas where compliance proved difficult.” (In re
Riva M. (1991) 235 Cal.App.3d 403, 414, italics omitted; In re
Dino E. (1992) 6 Cal.App.4th 1768, 1777.) “Reasonable efforts”
are “good faith” efforts that are “reasonable under the
circumstances.” (Robin V., at p. 1164; In re Kristin W. (1990) 222
Cal.App.3d 234, 254; T.J. v. Superior Court (2018) 21 Cal.App.5th
1229, 1240.) To be reasonable, the efforts need not be ideal or
perfect, and the Department need not “force a parent to
participate in [the offered] services.” (In re Nolan W. (2009) 45
Cal.4th 1217, 1233.)
We review a juvenile court’s finding, by clear and
convincing evidence, that the Department has provided
reasonable reunification services, including the subsidiary
finding that the Department has made good faith efforts to
provide those services, for substantial evidence. (T.J., supra, 21
Cal.App.5th at p. 1238; Conservatorship of O.B. (2020) 9 Cal.5th
989, 1011 (O.B.).) In applying this standard of review, we review
the record in the light most favorable to the juvenile court’s
finding. (O.B., at p. 1011-1012.)
II. Analysis
The juvenile court’s finding that the Department provided
reasonable reunification services is supported by substantial
evidence.
Substantial evidence supports (and mother does not
contest) the juvenile court’s finding that the services the
Department offered mother—the substance abuse program, the
domestic violence support group, and the parenting program—
were all “designed to remedy” the domestic violence and drug
abuse-related issues that necessitated dependency jurisdiction
over Axel. The Department also sought to ensure visitation
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between mother and Axel, which is a component of every
reunification plan. (See generally § 361.5.)
Substantial evidence supports the juvenile court’s finding
that the Department made good faith efforts to maintain contact
with mother. Although the Department was not able to meet
with mother in person or to correspond with her on the phone or
over email, it was not for lack of trying: The Department set up
two in-person meetings which mother did not attend; the
Department repeatedly emailed mother, but she never
responded; and the Department tried to call mother, but mother
changed her cell phone number and provided no further
information until a month before the 12-month review period
ended and, even then, ignored the Department’s calls. The
Department even tried to track mother down on Facebook.
Mother says the Department should have made further efforts to
track her down, but we disagree; the logical end point of mother’s
argument is the Department should have to inject tracking
devices into parents to ensure they can be found. This is not—
nor should it ever be—the law.
Substantial evidence also supports the juvenile court’s
finding that the Department made good faith efforts to assist
mother in enrolling and participating in the various programs.
The Department emailed mother the necessary referral forms
right after the six-month review hearing, and thereafter left the
same forms with Axel’s caregiver on two other occasions; given
mother’s refusal to provide the Department with her current
contact information, these were good faith and reasonable efforts
to get mother the information she needed. The fact that they did
not succeed was a function of mother’s stated view that she did
not “want or need the referrals.” To quote another case,
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“[mother’s] real problem was not a lack of services available but a
lack of initiative to consistently take advantage of the services
that were offered.” (Angela S. v. Superior Court (1995) 36
Cal.App.4th 758, 763.)
Mother resists this conclusion with two arguments.
First, mother argues that the Department did not provide
reasonable reunification services because it did not obey the
juvenile court’s order, made at the six-month review hearing, to
verify mother’s enrollment in the substance abuse program; nor,
mother continues, did the Department obtain an updated
progress report from that program. To be sure, the Department
did not do as the juvenile court instructed. But this does not
mean the Department did not provide reasonable reunification
services because the Department’s failure to document the
services it offered mother does not mean the Department failed to
provide those services to mother. Further, nothing stopped
mother from obtaining a progress report for the 12-month review
hearing, as she had done so for the six-month review hearing.
Tellingly, mother neither offered any evidence nor made any
proffer at the 12-month review hearing to suggest that she had
been attending that program or making progress in it.
Second, mother argues that the Department did not provide
reasonable services because it did not create a written visitation
schedule. To begin with, the juvenile court did not at the six-
month review hearing order the Department to create a written
visitation schedule. But even if it had, the Department had
already created one. Contrary to what the Department’s counsel
represented at the 12-month review hearing, the Department
had created a written visitation schedule prior to the
jurisdictional and dispositional hearing, which was carried
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forward once Axel was removed from mother. More
fundamentally, the Department’s failure to create a written
visitation schedule does not mean that the Department did not
provide a visitation schedule; it did, and mother simply refused to
adhere to it by visiting Axel in accordance with that schedule.
Relatedly, mother argues that the Department did not provide
transportation referrals to assist with visitation. As noted above,
the Department made repeated attempts to provide mother with
referrals; it failed only because mother thwarted those attempts.
DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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