In re Jacob E. CA5 ( 2020 )

Filed 11/13/20 In re Jacob E. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re JACOB E., a Person Coming Under
the Juvenile Court Law.
MERCED COUNTY HUMAN SERVICES F080739
AGENCY,
(Super. Ct. No. 18JP00073A)
Plaintiff and Respondent,
v. OPINION
MARGARITA M.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Merced County. Donald J.
Proietti, Judge.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Forrest W. Hansen, County Counsel, and Jennifer Trimble, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Peña, Acting P.J., Smith, J. and De Santos, J.
Dependency jurisdiction was taken over then-12-year-old Jacob E. due to the
inability of his mother, Margarita M. (mother), to care for him for several reasons,
including substance abuse. Mother was ordered to be provided with family reunification
services and, a few months later, was incarcerated. Mother participated in some services
while she was in prison for approximately one year. Her services were continued to
12 months and again to 18 months. At the time of the 18-month status review hearing,
mother had been released from prison, had used drugs immediately upon release, entered
an inpatient residential treatment facility, and relapsed a second time while in treatment.
Mother had been sober for approximately two months at the time of the hearing and
requested six more months of reunification services. The court denied her request,
finding it was not in Jacob’s best interests and there was not a substantial probability he
could be returned to mother’s care within the next six months. Jacob was found not to be
adoptable, a plan of long-term foster care was selected, and a status review hearing was
set. Mother appeals the juvenile court’s order denying her an additional six months of
reunification services.1
FACTUAL AND PROCEDURAL BACKGROUND
In June 2018, mother’s friend contacted the Los Banos Police Department stating
that mother had left Jacob in her care, and she (the friend) could no longer care for him.
Police located mother who was staying with her boyfriend. Mother was arrested for
abandonment and child neglect, cited, and released.
A referral of general neglect and caretaker absence was made to the Merced
County Human Services Agency (agency). A police sergeant told the investigating social
worker mother was a known drug user. Jacob reported to the police sergeant that he had
1 Jose E., presumed father of Jacob, was incarcerated at the time of Jacob’s removal.
He was offered reunification services, but his services were terminated at the 12-month
status review hearing. He is not a party to this appeal, and we have omitted facts that
pertain to him.
2.
been living with his maternal aunt for about a year in Monterey County. About six weeks
prior, mother withdrew him from elementary school in Salinas, brought him to Los
Banos, and enrolled him in school there. Jacob and mother had been homeless for about
three to four weeks and had been staying in different locations with different people.
Jacob reported he had suicidal ideations and had thought about harming himself by
cutting within the last 12 months. Jacob also reported finding syringes in mother’s car
approximately four days prior.
Jacob reported to the social worker that mother often left him with strangers or
friends or family members. Jacob stated he was afraid of mother because she did not
know how to handle her anger and took it out on him. Jacob reported mother had slapped
him several times. The social worker learned through a record check that in September
2017, in Monterey County, allegations for physical abuse against mother were
substantiated, and it was reported that drug use was an issue. Jacob told the social worker
he did not want to go back with mother.
Mother told the social worker she was going through a divorce and was currently
on an ankle monitor for a burglary charge. Mother reported suffering from depression
and anxiety and that she was on leave from work due to her mental health. Mother stated
she took medication for anxiety but that her depression was untreated. Mother reported
she last used methamphetamine in January 2018. Mother reported losing custody of her
three younger children to their father due to her substance abuse. Mother refused to
provide a drug test the day of her interview.
The agency filed a petition on behalf of Jacob alleging he came within the juvenile
court’s jurisdiction under Welfare and Institutions Code section 300,2 subdivisions (b)(1)
[failure to protect], (c) [serious emotional damage], and (g) [no provision for support].
2 All further undesignated statutory references are to the Welfare and Institutions
Code.
3.
Specifically, the agency alleged Jacob was at risk because of mother’s substance abuse
and untreated mental health issues, failure to provide him with necessities of life, and
causing him emotional damage by her ongoing neglect and abuse evidenced by his
suicidal ideation. The court ordered Jacob detained, and he was placed with relatives.
Following the detention hearing, mother tested positive for amphetamines,
benzodiazepines, ecstasy, marijuana, methadone, methamphetamine, and opiates.
In July 2018, Jacob told the social worker he did not want to see mother, had not
talked to her, and wanted to stay with his grandmother and aunt with whom he was
placed. At Jacob’s request, he was not having visitation with mother and had blocked her
telephone number. Mother admitted to the social worker she had been using drugs daily
but had been trying to “cut down” since the agency had become involved. Mother said
she had completed a 10-month treatment program in prison in 2005 and got treated at the
residential treatment facility, Tranquility Village, from September 2016 through March
2017. Mother reported relapsing immediately after leaving the program. Mother told the
social worker she did not have a good support system and would not sign a release of
information form to have a drug and alcohol assessment because she was “not ready to
change.” Mother reported being in a series of violent relationships. She was currently
staying with a “boyfriend/friend” who used illegal substances and had given her bruises
on her arms.
At the uncontested combined jurisdictional and dispositional hearing on August 8,
2018, the juvenile court found Jacob was described by section 300, subdivisions (b), (c),
and (g) and adjudged him a dependent of the court. The court removed Jacob from
mother’s physical custody. The court ordered the agency to provide family reunification
services to mother, including participating in a mental health assessment, a domestic
violence program, parenting education, a drug and alcohol assessment, and random drug
testing. The service objectives in mother’s case plan were: (1) Obtain resources to meet
the needs of your child and to provide a safe home. Obtain suitable housing; (2) Stay free
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from illegal drugs and show your ability to live free from drug dependency. Comply with
all required drug tests; (3) Comply with medical or psychological treatment; (4) Do not
break the law. Avoid arrests and convictions; and (5) Do not behave in a manner that is
verbally, emotionally, physically, or sexually abusive or threatening. Do not involve
yourself or Jacob in violent relationships or behavior. The court advised mother that
substance abuse services were the priority.
Mother was scheduled to complete a substance abuse assessment on
September 17, 2018, but did not appear for the appointment. On September 20, 2018,
mother was arrested for burglary and other crimes and remained in custody while her
criminal case was pending. Mother did not schedule her mental health or domestic
violence services before being incarcerated.
In November 2018, Jacob was removed from his relative caretaker and placed in
foster care. Jacob initially did not engage with the other youth in his foster home, but
over time, he started to like the home and enjoyed participating in activities there.
On January 16, 2019, mother was convicted of burglary and was sentenced to four
years in prison. Jacob became open to having video chat visits with mother.
At the uncontested six-month status review hearing, the court continued mother’s
reunification services.
The agency’s 12-month status review report indicated that Jacob became willing
to visit with mother. The facility at which mother was incarcerated required Jacob to
provide his birth certificate, however, and the social worker reported she would schedule
visits once Jacob’s birth certificate was obtained. When asked for a statement for the
12-month status review report, Jacob reported to the social worker, “I would like to go
back home with my mom, or my tia.”
The agency’s recommendation in its 12-month status review report was to
terminate mother’s reunification services because she had not met the objectives of her
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case plan and would not be able to reunify with Jacob at the 12-month mark. The
agency’s recommendation for a permanent plan was accelerated foster care.
At the 12-month status review hearing, on September 17, 2019, mother requested
that her services be extended to 18 months. Mother testified she was due to be released
from custody on October 5, 2019. Mother testified she had participated in some services
in prison, including the completion of a parenting class. Mother said she participated in
approximately two months of substance abuse classes in prison but did not complete
them because she was transferred, and the facility to which she was transferred had a
waitlist for substance abuse.
Mother called Jacob every week and talked to his foster parents about what he was
up to. Mother testified her plan upon release was to live in a sober living facility. The
last time she used drugs was the day she got arrested.
When mother was asked if she believed she would be able to have Jacob in her
care by December 9, she responded, “I’m scared. I’m scared that I won’t be able to give
him the stability that he has right now, cause he has really good stability. So I’m going to
do my best.” She testified she wanted to have Jacob with her, but she did not want to
“say December because it sounds so soon, but it seems like that’s what my intentions
are…. I have to just be realistic and just do what I have to do to get him back in my
custody as soon as possible.”
After mother put on her evidence, the parties agreed mother’s services would be
extended to the 18-month mark. The court ordered reunification services continued up to
the 18-month status review hearing. The court ordered mother to notify the social worker
as soon as she was released from custody and advised her that the next court date was
“obviously critical.”
The agency’s 18-month status report indicated that after the 12-month status
review hearing, a correctional counselor reported to the social worker that mother only
participated in substance abuse classes for 10 days.
6.
Mother was released from custody on October 5, 2019. On October 9, 2019,
mother admitted to using methamphetamine upon release from prison. On October 15,
2019, mother entered the Tranquility Village residential drug treatment program. She
began participating in services including anger management, living and balance, and
women’s addiction. The program did not allow children of Jacob’s age to reside in their
program. On December 4, 2019, mother admitted to using methamphetamine within the
last two weeks while she was in treatment.
Mother completed a mental health assessment and it was determined she did not
qualify for services.
After mother was released from custody, she and Jacob participated in two
supervised visits and talked on the telephone daily. Mother and Jacob both reported the
visits were going well and that they would like increased visits. Jacob told the social
worker that besides wanting more visits with mother, he was otherwise fine.
The agency recommended termination of mother’s reunification services. The
agency determined Jacob was not adoptable and that the most appropriate permanent plan
was accelerated foster care.
Jacob’s Court Appointed Special Advocate (CASA) also prepared an 18-month
status review report. In his report, Jacob’s CASA reported Jacob was thriving in his
placement. Jacob’s grades had improved from D’s and F’s to A’s and B’s, and he was
involved in football. Jacob expressed interest in seeing mother more. The only negative
issue raised by Jacob to his CASA was uncertainty about the case. Jacob’s CASA noted
this caused Jacob “a great amount of stress.” Jacob’s CASA’s recommendation for the
18-month status review hearing was termination of mother’s services and Jacob be given
a timeline of the case because of his uncertainty.
Mother contested the agency’s recommendation and testified at the 18-month
status review hearing on January 28, 2020. Mother testified she was using
methamphetamine before she was arrested but did not use while incarcerated. When
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mother was first released, she stayed at a friend’s house. On October 8, 2019, she used
methamphetamine because the friend with whom she was staying was using. Mother told
her social worker and her parole officer the next day and entered residential treatment at
Tranquility Village on October 15, 2019.
At Tranquility Village, mother took process group, anger management, relapse
prevention, and parenting classes and found the classes helpful. Mother used
methamphetamine again while in treatment on November 25, 2019. Mother attributed it
to running into people that were still using and “thinking that I was stronger than the
drug and that I could surround myself around people that are using and I wouldn’t use,
but temptation got the best of me I think.” Her parole officer arrested her for violating
her parole for using drugs on November 25. Mother was in jail for five days, and she
missed a visit with Jacob due to her incarceration. She testified she had not used
methamphetamine since November 25. Mother also completed a 14-week domestic
violence support group program.
Mother testified her first visits with Jacob after being released were awkward, but
at the time of her testimony, she reported he had become very affectionate toward her and
wanted to talk with her.
Mother testified she was scheduled to be released from the residential treatment
program on March 7, 2020. Upon completion of the program, she planned to live at a
licensed sober-living environment. She entered a letter into evidence from the sober
living facility, which indicated she could move in with Jacob once she completed her
residential program.
Mother was working dispatch for a taxi company part time and planned to work
full time once she completed her program.
Mother’s counsel asked her how she planned to avoid future relapse, and mother
did not respond. Her counsel then asked, “Do you know?” and she responded, “That’s a
good question. Um, I don’t know how to explain it. I just—it’s a tough question.” She
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then stated that one of the most important things she has learned is to stay away from
people who use drugs and has plans to do so in the future. She testified she believed the
agency and the court can be confident in placing Jacob with her and not worry about his
safety by June 2020 because she has learned the dangers of hanging around the wrong
people and thinking she could not use drugs.
Mother testified she had not completed any drug programs in the past but had
previously been at Tranquility once in 2016. She immediately relapsed when she left the
program because she was going through her divorce. Mother began using drugs when
she was about 27 years old and was 43 years old at the time of the hearing. When she
was using drugs, she was using every day, more than once a day.
Counsel for the agency and Jacob’s counsel argued that mother’s reunification
services should be terminated. The court terminated mother’s services and ordered
placement with a confidential caretaker with a specific goal of independent living as the
permanent plan for Jacob. A status review hearing was set for January 2021.
Mother appealed.
DISCUSSION
Mother contends the court erred by denying her request to extend her reunification
services to 24 months. We disagree.
I. Relevant Law
At the 18-month status review hearing, or permanency review hearing, the
juvenile court must order the return of the child to the physical custody of the parent
unless it finds the return would create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child. (§ 366.22, subd. (a)(1).) If
the child cannot be returned home, the court must order termination of reunification
services to the parent and commence proceedings to implement a permanent plan for the
child. (§ 366.22, subd. (a)(3).) The court may continue the case for up to six months if
the child is not returned to the parent, provided the hearing occurs within 24 months of
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the date the child was originally taken from the physical custody of the parent if specific
findings are made by the juvenile court. (§ 366.22, subd. (b).)
In order to continue reunification services past 18 months, the juvenile court must
find by clear and convincing evidence that continuance and further reunification services
are in the best interests of the child and the parent is, as relevant here, “[(1]) making
significant and consistent progress in a court-ordered residential substance abuse
treatment program … or … [(2)] recently discharged from incarceration … and making
significant and consistent progress in establishing a safe home for the child’s return.”
(§ 366.22, subd. (b).) If the court makes the required findings by clear and convincing
evidence, it “may continue the case for up to six months for a subsequent permanency
review hearing, provided that the hearing shall occur within 24 months of the date the
child was originally taken from the physical custody of his or her parent or guardian.”
(Ibid.)
The court must also find “there is a substantial probability that the child will be
returned to the physical custody of his or her parent or legal guardian and safely
maintained in the home within the extended period of time or that reasonable services
have not been provided to the parent.” (§ 366.22, subd. (b).)
A finding of “a substantial probability that the child will be returned to the
physical custody of his or her parent … and safely maintained in the home within the
extended period of time,” requires the court to find all of the following subfactors:
“(1) That the parent or legal guardian has consistently and regularly contacted and
visited with the child[;]
“(2) That the parent or legal guardian has made significant and consistent progress
in the prior 18 months in resolving problems that led to the child’s removal from the
home[; and]
“(3)(A) [As relevant here,] [t]he parent or legal guardian has demonstrated the
capacity and ability both to complete the objectives of his or her substance abuse
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treatment plan as evidenced by reports from a substance abuse provider as applicable….”
(§ 366.22, subd. (b)(1)-(b)(3)(A).)
II. The Court Did Not Err by Denying Mother’s Request for Extended Services
A. The Court’s Ruling
The court started its ruling denying mother’s request for continued reunification
services by noting it was “troubled by the high standard that must be met in order to
extend services to 24 months.” The court noted there was a “lack of evidence that it
would be in [Jacob’s] best interests to extend services.” The court pointed out the only
evidence the court received with regard to Jacob was that bonding had improved from
Jacob not wanting to have contact with his mother to their having a good relationship
including physical contact at visits. The court noted that Jacob was stable in his
placement with just having visitation with mother.
The court noted it also had concerns about whether mother had made “significant
and consistent progress” in the last 18 months, noting mother was aware of how critical
the short time she had was and that she nonetheless put herself in a position to where she
used drugs. The court also noted mother’s period of remission from substance abuse was
“really, really brief” given her long history of drug use. The court noted mother had not
met the objectives of her case plan such as staying free from illegal drugs and criminality,
noting she had both relapsed and violated her parole. The court found mother was not
able to demonstrate she had the capacity, ability, and desire to complete the objectives of
the substance abuse treatment program given her history. The court ultimately found
based on the reasons stated there was “not sufficient evidence to support substantial
probability to return” if it were to extend services.
B. Analysis
We review the juvenile court’s factual findings for substantial evidence, and the
decision-making process based on those findings for abuse of discretion. (See In re
William B. (2008) 163 Cal.App.4th 1220, 1229.)
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The juvenile court was required to make all of the findings delineated under
section 366.22, subdivision (b) in order to justify extending mother’s services. Here, the
court expressly found mother had not met her burden of proving that services were in the
best interest of Jacob and that there was a substantial probability he could be returned to
her care within the extended period of time. As to the latter factor, the court specifically
found mother had not made significant and consistent progress nor shown she had the
capacity, ability, or desire to complete the objectives of the substance abuse treatment
plan. The court’s finding that mother’s burden of proof was not met were reasonable.
The circumstances that led to Jacob’s removal was instability primarily due to
mother’s years’ long drug addiction. By the time of the 18-month status review hearing,
mother had barely scratched the surface of ameliorating her drug problem, much less
“made significant and consistent progress” or “demonstrated the capacity and ability …
to complete the objectives of … her substance abuse treatment plan” as required by
section 366.22. subdivision (b)(2) and (b)(3)(A). This is evidenced by mother’s failure to
engage in substance abuse services before she was arrested, her relapse upon release
despite receiving services in prison, and her subsequent relapse despite being enrolled in
services at the time. Even though she had a little over two months of being sober at the
18-month review hearing, as the court pointed out, in the context of her years’ long
addiction, this period was relatively short. Long standing and chronic abuse is a serious
problem not ameliorated in a short time. (See, e.g., In re Amber M. (2002)
103 Cal.App.4th 681, 686‒687 [relapse following more than 300 days of sobriety]; In re
Cliffton B. (2000) 81 Cal.App.4th 415, 423‒424 [200 days insufficient to convince
juvenile court that a relapse would not occur].) Mother’s history of relapsing despite
receiving treatment is evidence of this concept. In addition to using drugs during the
reunification period despite participating in services in the present case, mother had
previously relapsed after participating in the same program in which she was enrolled at
the time of the hearing. Further, mother expressed hesitation in articulating at the hearing
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how she would avoid relapse in the future. Although she did say she planned to avoid
other drug users, she did not explain how she would do so. Mother’s statement at the
beginning of the case that she had no support system, combined with an absence of
testimony she had obtained one, and her previous poor response to substance abuse
treatment belies mother’s testimony she could complete treatment and avoid another
relapse. Further, mother’s housing where she could live with Jacob was conditional upon
her graduating from her program.
Mother argues there was “no downside” to ordering additional family reunification
services but we disagree. Jacob was 13 years old and had expressed his wishes to have
more visits with mother, not be returned to her custody. He was doing well in his
placement, and the only evidence of stress was the uncertainty of the case. These
reasons, combined with the court’s reasonable finding there was not a substantial
probability Jacob could be returned to mother if she were to receive six additional months
of services, support the court’s conclusion it was not in Jacob’s best interests for mother
to continue receiving services. The court’s order was in Jacob’s best interests because it
could help alleviate Jacob’s stress rather than prolong the reunification period of the case
that was unlikely to end in reunification.
Based on the foregoing reasons, we find the juvenile court’s findings that mother
had not met her burden of proving that further reunification services were in Jacob’s best
interest and there was not a substantial probability he could be returned to her should
services be extended were supported by substantial evidence. Mother had not made
significant and consistent progress nor demonstrated the capacity and ability to complete
the objectives of her substance abuse treatment plan. Further, because a juvenile court is
essentially required to terminate reunification services if the child cannot be returned
home by the 18-month status review hearing unless it can make the required findings, we
find no abuse of discretion by the juvenile court in denying mother’s request.
13.
In her briefing, mother does not mention section 366.22, subdivision (b) or make
any arguments with regard to the findings the court was required to make under the
statute in order to extend services. Instead, mother argues there were several factors that
constituted a “special circumstance” that required the court to order additional services.
Among those factors are: (1) mother was incarcerated for approximately one year of the
reunification period; (2) Jacob was not a child of tender years and wished to spend more
time with mother; (3) Jacob’s permanent plan was long-term foster care not adoption;
(4) Jacob and mother had a positive relationship and mother posed no danger to Jacob;
and (5) there was no evidence on the record the agency attempted to establish visitation
while mother was incarcerated.
To support her argument, mother cites cases which hold that in “special needs”
cases, or cases where “extraordinary circumstances … militate[] in favor of extension of
family reunification services,” it is not an abuse of discretion for the juvenile court to
extend reunification services beyond the statutory maximum. (See, e.g., Andrea L. v.
Superior Court (1998) 64 Cal.App.4th 1377, 1388.) As the court in Andrea L. explained,
“special needs” or “extraordinary circumstances” cases are cases where some external
factor prevents the parent from participating in the case plan, such as where the parent is
hospitalized or the agency failed to provide reasonable services. (Id. at p. 1388.)
Here, the only external factors mother raises are her incarceration and the agency’s
failure to establish adequate visitation between she and Jacob during her incarceration.
Neither of these factors convince us that mother’s case is the type of “special needs” case
which would require the juvenile court to extend services.
We first note the cases cited by mother predate the 2008 amendment to
section 366.22, which added current section 366.22, subdivision (b). (Stats. 2008,
ch. 482, § 3.) The legislative intent behind the 2008 amendment was to expand the
court’s options at the 18-month status review hearing. The 2008 amendment codified
authorization for the court to consider barriers to services faced by parents who are
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incarcerated and extend the parent’s services if the requisite findings were made. (See
Assem. Conc. Sen. Amends. to Assem. Bill No. 2070 (2007–2008 Reg. Sess.) as
amended Aug. 18, 2008.) Mother’s argument that her incarceration constituted an
“extraordinary circumstance” carries little weight because, pursuant to section 366.22,
subdivision (b), even when a parent is incarcerated during the reunification period, the
juvenile court is still required to make the requisite findings before extending services
beyond 18 months.
Turning to mother’s argument that “the record does not show that the Agency
attempted to establish any kind of visitation regimen between Jacob and [mother] during
the time she was incarcerated,” mother did not raise any argument regarding inadequate
visitation or any argument that the agency in any way failed to provide reasonable
services. For that reason, we find mother has forfeited this argument to the extent she is
now arguing the agency failed to provide reasonable visitation or services. (In re
Kevin S. (1996) 41 Cal.App.4th 882, 885–886 [the parent waived the right to contest
finding of reasonable reunification efforts by not objecting below]; see N.M. v. Superior
Court (2016) 5 Cal.App.5th 796, 808 [the parent was precluded from raising she was not
offered reasonable reunification services on appeal due to inadequacy of mental health
services, when at the hearing she had only objected to the adequacy of the visitation
services she had received].)
Finally, with regard to mother’s arguments regarding her relationship with Jacob,
mother has not persuaded us they constitute an “extraordinary circumstance” requiring
the court to extend her services. While we appreciate mother’s points and commend her
for beginning to rebuild her relationship with Jacob and having positive visits, in light of
the court’s finding there was not a substantial probability Jacob could be returned to
mother within six months, which we have concluded is supported by substantial
evidence, we conclude, even in light of the positive evidence, the court was required to
terminate mother’s services.
15.
We conclude none of the factors cited by mother compelled the juvenile court to
extend mother’s reunification services. For the reasons we have already stated, we find
no error.
DISPOSITION
The juvenile court’s January 28, 2020 order terminating mother’s reunification
services is affirmed.
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