C.B. v. Superior Court CA4/2 ( 2014 )

Filed 11/21/14 C.B. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
C.B.,
Petitioner, E061944
v. (Super.Ct.No. J251535)
THE SUPERIOR COURT OF OPINION
SAN BERNARDINO COUNTY,
Respondent;
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Lily L. Sinfield,
Judge. The petition is denied.
Friedman, Gebbie, Cazares & Gilleece, Jasmine Pico, for Petitioner.
No appearance for Respondent.
1
Dawn M. Messer, Deputy County Counsel, and Jean-Rene Basle, County Counsel,
for Real Party in Interest.
A dependency petition was filed with respect to the minor, S.B., on June 28, 2013,
in San Diego County alleging that petitioner C.B. (mother) had failed to protect her due
to mental illness and substance abuse. (Welf. & Inst. Code, § 300, subd. (b).)1 The San
Diego social worker reported that the minor’s maternal grandparents had brought her in
for a four-month checkup in April 2013, at which time she had a severe case of cradle
cap. The grandparents had gone to visit Mother and been concerned at the messy, dirty
state of the house and because Mother was smoking marijuana and behaving erratically.
The grandparents also reported that Mother had a history of prostitution and her landlord
was complaining about frequent and numerous male visitors. Mother was 26 years old at
the time the petition was filed.
When contacted by the child services agency in April or May 2013, Mother
reported being bipolar and to also have been diagnosed with attention deficit
hyperactivity disorder and posttraumatic stress disorder, among other ailments. She was
not then on medications, but after agreeing to voluntary services and that the minor
would stay with the grandparents for the time being, she was prescribed Abilify and
Seroquel.
1 All subsequent statutory references are to the Welfare and Institutions Code
unless otherwise specified.
2
During the period of voluntary services, Mother was allowed to visit with the
minor daily, but on most days did not take advantage of this opportunity. When she took
the minor to her apartment (which the grandparents were paying for), she would often
call her father and say that she “couldn’t handle” the baby because the latter was fussy or
crying. As much as two weeks might go by between visits. Mother declined the offered
in-home services, and, when she lost her housing, she refused to provide her new address
to the agency. On June 11, 2013, she was asked to drug test, and refused, saying she
would give up the minor to the grandparents. The formal petition followed.
The report prepared for the jurisdictional/dispositional hearing reflected that
Mother admitted multiple arrests, specifying only one for public intoxication and one for
simple assault. She related her criminal troubles to a period during which she was being
“trafficked.”2 Mother reported that her “drug of choice” was marijuana, although she
denied current use. She also reported using cocaine and ecstasy, as well as one use of
methamphetamine.
Mother further stated that she had been to therapy and that “I like going to
therapy,” but could not provide any examples of coping skills she had learned.
Mother’s father, the current caregiver, reported that at visits Mother tended to use
the baby to calm herself, like a child with a doll, and frequently ended visits early
because she could not deal with the child’s crying. Mother also reported abusive
2Although the report indicates that Mother was forthcoming about her
experiences, it contains no details.
3
relationships both with a pimp and with the father of the minor.3 The social worker had
also uncovered Mother’s extensive criminal history, with multiple arrests and convictions
involving disorderly conduct, prostitution, and possession of marijuana.
While awaiting the eventual jurisdictional/dispositional hearing, Mother was given
a random drug test in August 2013, which returned positive for amphetamines and
marijuana. However, Mother had been attending domestic violence support groups and
also “self-esteem/art therapy” and parenting education.
At the hearing, Mother waived her rights and submitted on both jurisdiction under
section 300, subdivision (b), and disposition (continued placement with the maternal
grandparents). The court made the findings and disposition as requested by the agency.
Finally, as Mother had moved to San Bernardino County, the court granted her request to
transfer the matter to that jurisdiction.
At Mother’s first contact with San Bernardino social workers in December 2013,
she refused to sign the case plan. In the report prepared for the six-month review hearing,
the social worker recommended extending services. However, it was noted that Mother
“appears to be struggling with remaining sober and maintaining [sic] her anger.” She had
been uncooperative with drug testing but did test positive for marijuana in January 2014.
She told the social worker that she had begun counseling and outpatient services, but had
not completed them. Services were continued.
3 The minor’s father is not in the picture and is not a party to this petition.
4
The report prepared for the 12-month review hearing reflected that although
Mother had engaged in some counseling sessions in early 2014, she had also missed
several appointments, and, in the opinion of the therapist, was failing to address her
issues and not making progress. She was then terminated from the program.
Additional referrals were given, but Mother resisted outpatient drug treatment
because she insisted that she used “medical marijuana” and the social worker did not
“understand.”4 She also claimed that because she was attending school, she could not
meet the requirements of her case plan. Mother missed some drug tests and consistently
tested positive for marijuana when she did test.
Mother was given an additional set of referrals for outpatient and general
counseling and provided bus passes and transportation.
In May, the social worker made an unannounced visit to Mother’s apartment but
was refused admission. Mother became upset about “Children and Family Services
jerking her around,” and told the social worker that she “[would] talk to her attorney”
because “she doesn’t believe smoking marijuana is a drug.”5 Also at that time, the social
worker urged Mother to complete her programming because she had been terminated
from her substance abuse counseling.
4 The social worker asked Mother to provide documentation that her marijuana
use was health-related, but she failed to do so.
5 She also said she had a “business” selling crafts which she made at school.
5
After a positive drug test in July and after being again reminded about the need for
substance abuse treatment, Mother became “highly upset” and stated that the social
worker “did not understand.” She told the social worker that her current therapist had
been “fired” and was given another referral. The counseling agency told the social
worker that Mother had not been in since March 2014.
In early August 2014, Mother contacted the social worker and said that she had an
appointment with Lutheran Social Services for August 8 and an appointment with an
outpatient program scheduled for August 13. It was also noted that Mother behaved
appropriately during visits with the minor and that there appeared to be a bond between
the two, although the minor bore the separations with equanimity. Mother also provided
a medical marijuana authorization dated September 22, 2014, and therapist notes for four
visits. In the first note, the therapist noted that Mother blamed her stepmother (her
father’s wife) for her problems and did not take any responsibility for the child’s
removal. The second note reflected that Mother admitted that the minor’s severe case of
“ ‘cradle cap’ ” might have contributed to removal and explained that she cannot perform
a drug-related outpatient program because she takes “certain medications for her bipolar
disorder” that are not on the “ ‘safe’ ” list. The third note describes Mother as “hopeful,”
“happy,” and in “denial” about her situation. The fourth note gave her mood as “labile”
and noted that Mother appeared more willing to accept the seriousness of the
circumstances.
6
The 12-month review hearing was held September 24, 2014. Mother testified that
she had completed eight counseling sessions and that they were “okay.” She also
claimed that she had not used marijuana for three months, despite having obtained a
doctor’s authorization two days earlier. She testified that she had gone to an outpatient
program intake the Thursday before the hearing, but the program employees refused to
take her because she was still using at least five other medications for her mental health
issues. However, she also testified that she had contacted her physician to see if she
could change medications and qualify for the outpatient program. She had a new
appointment for the latter scheduled for October 28.
Asked why she had delayed trying to get into an outpatient substance abuse
program, Mother said, “I misunderstood,” and that she had had earlier difficulties
qualifying for her program due to her prescribed medications. Asked if she were willing
to complete her services, she responded, “If that’s what the Court wants me to do, then
that’s what I have to do to get my daughter back.”
On cross-examination, Mother admitted receiving earlier referrals and not
following up. She admitted that she had not allowed the social worker into her home in
May, but testified that it was because the home was not yet “ready for an inspection.”
She further admitted that the home was still not safety-proofed for a small child.
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The trial court followed the recommendation and terminated services.
On this petition, Mother argues that the trial court applied an incorrect standard
and that she should have been provided additional services up through the 18-month date,
which she calculates as December 28, 2014. We find her premise unpersuasive.
DISCUSSION
In explaining its decision, the court remarked, “what I’m looking for right now
because I’m required to look for it at the one year review is whether or not your daughter
can go home today.” As Mother points out, this is an incorrect statement of the law. The
standard at the 12-month review hearing is whether there is 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 outer 18-month period. (§ 366.21, subd. (g)(1).)
However, within a few moments the court commented that Mother had not even
progressed to unsupervised visits and continued, “I cannot make, based on the level of
progress, the finding that your daughter can go home in an extended time period even
though it’s short. I have to first make a finding before I can get to that.” (Italics added.)
We interpret this as recognizing that a certain time remained in the potentially available
reunification period “even though it’s short.” This is buttressed by the fact that both
county counsel and the minor’s attorney noted in their argument that time remained
available: the county counsel stated that “the Department doesn’t believe that there’s
really any chance of Mother reunifying by the December date”, and minor’s counsel
agreed, commenting that “it does not appear that there’s a substantial likelihood that the
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mother would be able to complete services and show benefit and ability to take the child
into her home by the time of the 22 which sounds like late December.”
We therefore conclude without difficulty that the trial court applied the correct
standard.
We also reject Mother’s argument with respect to the merits of the decision, which
we review for substantial evidence. (Tracy J. v. Superior Court (2012) 202 Cal. App. 4th
1415, 1424.) At the time of the hearing, only three months remained even in the
extended reunification period. Although Mother had begun to participate in counseling
and had made efforts to enter an outpatient drug program, she had essentially wasted a
year of the available time. Under section 366.21, subdivision (g)(1), services may only
be extended to the 18-month limit if the parent has already made “significant progress”
and “has demonstrated the capacity and ability . . . to complete the objectives of his or her
treatment plan and to provide for the child’s safety, protection, physical and emotional
well-being, and special needs.” Given her late start at real efforts and her repeated
refusal to cooperate with the social worker, the trial court could not reasonably have
made such a finding. On the other hand, the court’s statement that it did not believe that
Mother would reunify with the minor within the extended period was supported by
substantial evidence.
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DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
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