In re Robert H. CA1/2 ( 2013 )

Filed 12/30/13 In re Robert H. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re Robert H., a Person Coming Under
the Juvenile Court Law.
DEL NORTE COUNTY DEPARTMENT
OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent, A139958
v.
(Del Norte County
NINA P., Super. Ct. No. JV-SQ-13-6014)
Defendant and Appellant.
One-month-old Robert H. was removed from the care of his mother Nina P. (Nina
or Ms. P.) and father James H. (James or Mr. H.) by the Del Norte County Department of
Health and Human Services (Department) due to the parents’ failure to seek medical care
when he became seriously ill. The Department also suspected that the parents had
substance abuse issues and a violent relationship, and that James abused Robert’s
seven-year-old half-brother, Roman.1 It provided family reunification services, but at the
six month review the juvenile court terminated services due to the parents’ failure to
make sufficient progress on their case plans.
1
James was not Roman’s father. Additionally, this petition involves only the
reunification services provided to Nina as to Robert. Accordingly, we will omit further
details concerning Roman and James, except where relevant to the issues before us.
1
Nina petitions for an extraordinary writ, seeking reversal of the order terminating
reunification services and setting a Welfare and Institutions Code section 366.262
permanency hearing for January 24, 2014. Her contentions are two: (1) the Department
failed to provide adequate reunification services, and (2) the juvenile court’s finding that
she failed to make sufficient progress on her case plan was unsupported by substantial
evidence. We conclude Nina’s arguments lack merit, and we deny the petition on its
merits.
BACKGROUND
Detention
On February 6, 2013, Nina and James left one-month-old Robert in the care of his
paternal grandmother because he would not stop crying. Noticing that the infant’s lips
and fingers were blue, the grandmother sought emergency medical attention. Robert was
diagnosed with a serious respiratory virus and possible pneumonia and hospitalized for
five days. In the notes regarding his progress, hospital workers related difficulties
waking the parents to care for him, with the parents claiming they were “too tired.”
Two days after Robert’s hospitalization, James contacted his mother, instructing
her to pack their belongings and bring Roman to the hospital because they were going to
leave. A social worker went to the residence where the family was then staying (with
nine other people) to speak with Roman. The home smelled strongly of marijuana,
although the people who were present denied recent use. Fearing that James and Nina
were going to flee with the two children, the social worker, with Nina’s reluctant consent,
moved Roman to the grandmother’s home.
On February 11, when Robert was ready to be discharged from the hospital, the
Department moved him to emergency foster care. That same day, it filed a section 300
petition, alleging that, due to their substance abuse issues, the “domestically volatile”
nature of their relationship, and their failure to timely seek medical care for Robert, the
2
All subsequent statutory references are to the Welfare and Institutions Code.
2
parents failed to protect him within the mean of subdivision (b). The petition also alleged
that James abused Roman within the meaning of subdivision (j).
In its detention report, the Department recommended that both children be
detained. At a February 13 detention hearing, the court adopted the Department’s
recommendation and continued the matter for a contested jurisdictional hearing.
Jurisdiction
In a March 6 jurisdictional report, the Department recommended that the court
sustain the allegations in the petition. It provided details concerning the parents’ drug
use, noting that although Nina and James initially denied using drugs, they both later
admitted to smoking marijuana, with Nina stating she used it “occasionally” and took
about four to five “hits” off a pipe each day. On February 13, they submitted to a drug
test, with positive results for methamphetamine and marijuana. When requested to test
again on February 21, both parents refused, stating they were waiting for a court case.
After they were shown the detention order requiring them to drug test, they finally
agreed, again testing positive for the same substances.
The Department also provided further details regarding the social worker’s
February 8 conversation with Roman. He told the social worker that he did not think
Nina and James liked him very much and that he did not feel safe with them. He also
told her that James slapped him in the face and on his hands. Later that same evening,
the social worker was at the grandmother’s house when James called. He demanded that
the grandmother pack their belongings and bring Roman to the hospital. She refused,
advising James to cooperate with the Department. He became very angry, blaming her
for the Department’s involvement and threatening that she would “be sorry.”
The Department had “concerns regarding Mr. H.’s and Ms. P.’s ability to focus on
cooperating with the Department and developing and participating in a case plan. In
conversations with both individuals, the Department has noticed a trend in [remaining]
fixated on outside sources being the culprit for the Department’s involvement instead of
accepting that the Department’s involvement in their lives is directly related to the
lifestyle choices that they themselves have made. This mentality also directly affects the
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parent’s ability to make appropriate lifestyle choices that would address the concerns set
forth by the Department.”
On March 15, following a contested jurisdictional hearing, the court found the
allegations in the petition to be true and set the matter for disposition on March 29.
Disposition
The Department filed its disposition report on March 27, recommending that the
parents receive reunification services. It noted that Nina initially denied any incidents of
domestic violence between her and James. Two days before the report was filed,
however, the social worker asked Nina about a bruise on her arm, and she admitted James
had inflicted it. She described how, during fights, he would become physically
aggressive, getting in her face and pushing her. The Department noted that Nina
exhibited other behaviors typical of a victim of domestic violence. James’s mother also
confirmed that James was verbally abusive to Nina and Roman.
The Department recommended that Nina undergo a substance abuse assessment at
Alcohol and Other Drugs (AOD) and a mental health assessment, and complete the
Incredible Years parenting education program. Despite initial resistance, Nina had
agreed to participate in the services recommended by the Department, although she had
not scheduled the assessments as she had been advised to do.
Regarding visitation, the Department related that the parents were receiving five
hours per week of joint visitation with Robert and one hour with Roman. As of
March 27, Nina had missed nine visits with Robert, and James had missed ten. Nina was
also receiving an additional four hours per week with Roman, but had only attended one
of five visits.
In its “assessment/evaluation,” the Department summarized: “Both Ms. P. and
Mr. H. have a documented history of substance abuse and have yet to begin to address
them. The Department has concerns over whether or not both parents are in a position to
address their substance abuse problems. The Department is also concerned about Ms. P.
and Mr. H.’s abilities to make long term adjustments. In conversations with both parents,
it is noted that they still continue to remain fixated on only what they can do immediately
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to have the children returned to their care, instead of purs[u]ing and completing services
that would address the long term issues. Additionally, the Department is concerned about
the possible domestic violent relationship between Ms. P. and Mr. H. and how neither
parent is willing to completely admit to there being a problem. In conversations with
both parents (both jointly and solo), both individuals have made statements to the
Department about physical aggression occurring between them when they fight. When
asked for further clarification regarding these fights, both parties will often stop the
communication and cite that they are worried about ‘causing more problems for the other
one’ rather than working with the Department to address this potential problem. The
Department also has a concern about Ms. P.’s lack of emotional bond with her oldest
child, Roman, and her reluctance to visit with him alone despite that fact that she is aware
that Roman requested some one-on-one time with her.”
The Department’s proposed case plan established the following objectives for
Nina: (1) maintain a relationship with her children by following the conditions of the
visitation plan and developing a strong relationship with them; (2) developing the
necessary parenting skills to enable her to consistently, appropriately, and adequately
parent her children; (3) comply with medical or psychological treatment; (4) develop
alternative coping skills to resolve domestic violence concerns; and (5) refrain from drug
use and comply with drug testing requirements. Nina’s responsibilities included
participating in a mental health assessment and following the recommendation of the
service provider; completing the Harrington House domestic violence program;
completing the Incredible Years parenting education program; and participating in a
substance abuse assessment through AOD, following the recommendation of the service
provider, and submitting to random drug testing.
At the March 29 dispositional hearing, the court made findings and orders on the
record, including ordering the Department to provide the parents with family
reunification services and adopting the proposed case plan. After having done so,
however, it discovered a notice issue and vacated its findings and orders, continuing the
matter to April 12 for further review. The March 29 findings and orders were
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subsequently adopted, effective April 12, and the matter was continued to September 13
for a six-month review.
The Department’s Six-Month Review Report
In its September 10 six-month review report, the Department recommended
termination of reunification services for Nina, stating: “Ms. P. has failed to address the
concerns that brought both of her children into the custody of the Department and has
exhibited minimal effort if any in working her court ordered case plan. Ms. P. was
referred to all of her services in the beginning stages of this review period and was even
transported multiple times by both the social worker assigned to the case and the social
service aide in the hopes of completing her assessment and engaging in services.
Additionally the Department is unable to confidentially [sic] state that given an additional
six-months of service, Ms. P. would be able to make substantial progress on her case
plan. Ms. P. has continued to express to the Department her belief that she did not do
anything wrong and that it has always been the fault of the Department, her on-again/off-
again partner, Mr. H. and Mr. H.’s family. It is because of such mindset that the
Department believes that even if Ms. P. were to be given the additional time that Ms. P.
would be unable to make the necessary life changes to completely and fully address the
issues at hand and prevent both children from re-entering the system. Despite the fact
that Ms. P. loves and cares for her children, Ms. P. continues to seek out destructive and
volatile relationships, use controlled substances, and not address her mental health issues;
all of which were the core issues that brought her children into the care of the
Department.”
The Department went on to describe Nina’s housing situation as “unstable.” Early
on in the case, Nina and James lived together with various friends and families, at one
point even living in a tent. In August, James left the area, and Nina moved into
transitional housing through the Department’s mental health branch. As of September 6,
however, she was homeless, having timed out of the transitional housing program.
Additionally, since the dispositional hearing, Nina had been unable to secure stable
employment. The Department attempted to strengthen her skills and job hunting abilities,
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referring her to the Linkages program and the Workforce Center. She met with the
Linkages services coordinator one time but subsequently failed to complete the assigned
work.
Turning to the objectives of Nina’s case plan, the Department noted that according
to a parenting educator at the Incredible Years parenting program, Nina was scheduled to
complete the program on September 21.
Concerning substance abuse issues, the Department noted that in May Nina was
assessed at AOD but it was determined that she would not benefit from services because
she had informed the counselor that she had no intention of stopping her marijuana use.
This was consistent with Nina’s drug test results, as she tested positive for marijuana
throughout the review period.
Nina underwent a mental health assessment in July, resulting in a recommendation
that she receive counseling services. She informed both the counselor and the social
worker, however, that she had no intention of attending the sessions. Nina later told the
social worker that her counselor told her she did not need mental health services, but
when the social worker spoke to the counselor, she denied making such a statement,
confirming that Nina did in fact need services. Further, in August, Nina contacted a crisis
intervention team, stating that she had suicidal thoughts.
In April, the Department had referred Nina to a domestic violence education
program at the Harrington House. She refused to participate, however, stating that she
did not want to “be around those people.” As an alternative, she was referred to the
Pre-CAPT3 program through MEND/WEND, but again refused, complaining about the
length of the program. She ultimately agreed to participate but, as of August 31, had only
attended the first session.
Nina was receiving five hours of weekly visitation with both children. The visits
were supervised, and the Department had some concerns regarding Nina’s ability to focus
on both children, especially Roman. He had taken to wearing feminine clothing, which
3
Pre-CAPT is a pre-child abuse prevention training program.
7
was frustrating to Nina. As a result, she made statements to him like, “You are not going
to wear that,” and “You are not a girl.” Despite this, Nina was “relatively consistent”
with her visits, although she missed several in a row without contacting the Department.
The Department was not confident that Robert and James would remain safe and
healthy if returned to Nina’s care, due to her “lack of involvement in her court ordered
case plan, her continuous positive drug tests, and her unstable housing situation . . . .” In
the words of the Department, “Given that Ms. P. has yet to internally recognize the
reasons why both of her children were detained and has continued to state that ‘this is not
my fault,’ the Department does not believe that she can make necessary decisions to
avoid placing both her children in the same situation again and thus causing re-entry.”
On September 19, the Department submitted an addendum to its report, appending
two letters, one regarding Nina’s progress in the Pre-CAPT program, the other her
participation in mental health services. In the first, the Pre-CAPT counselor reported that
Nina attended her intake appointment on August 15 and was enrolled in the program.
According to the counselor, however, “She was very clear that she did not need the
services we offer and was adamant that she is not a victim of family violence . . . .” She
agreed to attend, however, only because the Department required it. Her attitude at
intake was “somewhat angry and resistant,” but the counselor noted that “many clients
who express initial reluctance later come to engage with enthusiasm.” Nina attended her
group meeting on August 22, but missed the August 29 and September 5 meetings. She
arrived at the September 12 meeting long after it started but was nevertheless given credit
for attending.
The second letter, from a social worker in the Department’s mental health branch,
detailed Nina’s poor engagement in mental health services. After receiving the
Department’s first referral for an assessment in March, three messages were left for Nina,
asking her to call and schedule an appointment. When she failed to do so, her file was
closed on April 4. After a second referral was received on April 24, an appointment was
scheduled for April 29, but Nina failed to show. She finally participated in an assessment
on May 8, but the office had to cancel a May 15 appointment, and Nina ignored multiple
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attempts to reschedule. Nina finally came to a June 28 appointment and participated in
the development of her treatment plan, which required her to participate in therapy. She
declined to schedule an appointment to begin therapy, saying she was unsure of her
schedule, and never called to make an appointment. When attempts to reach her were
unsuccessful, her file was again closed. In mid-August, Nina showed up at a hospital “in
crisis,” but skipped her follow-up, clinic appointment. She eventually followed up with
the mental health bridge team staff, but then did not return a follow-up phone call. She
subsequently agreed to come in for a September 6 appointment, but did not show. She
had an appointment scheduled for September 20.
Recommendation By a Court Appointed Special Advocate
On September 10, David Gibbs, Robert’s court appointed special advocate
(CASA), submitted a report recommending that Robert remain a dependent in his current
foster placement while Nina continue to receive reunification services.
A week later, Gibbs filed an addendum to his report, relating a recent conversation
he had had with Nina. In the conversation, Nina insisted she had not done anything
wrong, claiming she was set up by James and was never given a fair chance in court to
explain what had happened. After Gibbs told her that she had to follow the case plan in
order to regain custody of her children, Nina stated that she wanted them back and did
not want them growing up in foster care like she did. When asked about her
noncompliance with her case plan, Nina offered numerous excuses. As to the Harrington
House domestic violence program, Nina told Gibbs she “just [couldn’t] be dragged
through that again because she went through that with her mom.” Concerning mental
health treatment, Nina said they were “rude” to her when she missed appointments. As to
housing, Nina had submitted a HUD application and received an eligibility letter
indicating she was on the waiting list, although the wait can be as long as two years.
Regarding her failure to complete the work assigned by the Linkages program, Nina did
not know how to prepare a resume nor did she have anything to put on one. She claimed
that she “tried to go back” to the program but no one returned her call.
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On a positive note, Gibbs reported that Nina was attending and “doing an
awesome job” in her Incredible Years parenting class. She had, however, missed her
September 17 class, which she attributed to being ill. She had only one class remaining.
Gibbs reiterated his recommendation that the court continue reunification services
for six months, or three months at the very least, to see if Nina was progressing. He
agreed with the Department that she had made minimal effort in her case plan, but she
had made “some attempt,” and he was hopeful that given the chance, she could be
successful in fulfilling her case plan and reunifying with her children.
Contested Six-Month Review Hearing
A contested review hearing was held on October 2, with social worker Melissa
Anderson the first to testify. According to Anderson, up until a week before the hearing,
Nina had been living at a friend’s house, but she had been asked to leave, and Anderson
did not know where she was living at the time of the hearing. The Department was
willing to help Nina with a security deposit or first month’s rent, as long as she
demonstrated she could pay the rent after that. It also provided Nina with a social service
aide, who among other things was available to assist Nina look for housing. To
Anderson’s knowledge, however, Nina had not taken any steps to find housing.
Nina was unemployed, although Anderson thought she might be doing some
babysitting. In March, the Department referred Nina to the Linkages program and the
Workforce Center, and Anderson had attended a meeting with Nina and a Linkages
counselor. Nina had not pursued any other Linkages services, although she had an
appointment scheduled with a Workforce Center counselor the week after the hearing.
Anderson testified that according to the most recent information from the
instructor, Nina had not completed her Incredible Years parenting education program
because she had failed to attend her final class. Anderson attempted to contact the
instructor to find out if Nina had attended a make-up class, but at the time of the hearing,
she had not heard back. Anderson did not agree with CASA Gibbs’s assessment that
Nina was “doing an awesome job” in the program, because although she had attended the
program, Anderson did not believe she had benefited from it, an opinion stemming from
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watching Nina’s interactions with Roman, in which she was short with him. Also,
Roman conveyed to Anderson that his mother said very hurtful things to him during
visits—for example, telling him that he did not need to visit with her anymore because
she only wanted to visit with Robert—indicating that Nina had not grasped the core
concepts of the parenting program.
Anderson confirmed that Nina had participated in an AOD assessment. However,
her most recent drug test was in August, with a positive result for marijuana, and she had
refused two requests to test in September. When Anderson spoke with Nina about her
drug use, she stated that she used marijuana for medical purposes, claiming to suffer from
pain in her body that was more effectively treated by marijuana than prescription pain
medication. She did not, however, have a medical marijuana card, nor did she have a
diagnosis from a doctor suggesting one was appropriate.
As to Nina’s mental health, she had twice gone for an assessment and was
assigned a counselor. Anderson spoke with the counselor, who did not think Nina was
willing to participate in her treatment plan because she had stated that she did not believe
she needed it and did not want to do it. Nina told Anderson that the counselor said she
did not have a problem and did not need their services, but Anderson confirmed with the
counselor that this was not true. When Anderson confronted Nina about this, she claimed
the counselors were liars. The counselor also confirmed that Nina had contacted the
crisis intervention team in August due to suicidal thoughts.
Anderson believed Nina was a victim of domestic violence and needed assistance
in empowering herself. She felt that the Harrington House program would be the most
beneficial and had attempted to facilitate Nina’s engagement in it, providing or arranging
rides on three or four occasions. Despite this, Nina refused to engage in their services.
After she was referred to the Pre-CAPT program as an alternative, Nina attended the
initial assessment and then one other appointment.
Nina’s record on visitation was somewhat mixed, with Anderson describing it as
“sometimes infrequent,” “about 60 to 70 percent.” She sometimes visited her children on
a weekly basis, but also had periods where she neither showed up nor called to cancel.
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Anderson also described two recent visits in which Nina became upset in front of the
children. In Anderson’s opinion, termination of services would likely cause Robert some
emotional confusion and difficulty, “it might traumatize a little bit.”
The Department provided Nina with a monthly bus pass, and the social service
aide was available to assist Nina with transportation, provided she requested it at least
one day ahead of time. Robert’s grandmother had also provided transportation
assistance. Additionally, the Department had referred Nina to other community-based
resources and provided a phone with 400 minutes per month, and Anderson met with or
spoke to Nina on a weekly basis to discuss her progress on her case plan.
Anderson did not believe Nina would be able to reunify with her children within
the next six months because all of her service providers indicated that she did not believe
there was a problem. And, according to Anderson, if a parent was unwilling to recognize
the problem, treatment generally did not occur.
Nina was the second witness to testify. According to Nina, she had been staying
with some friends for the past few nights, although she had not informed the Department
of where she was living and did not remember the “exact address.”
When asked how she would provide housing for her sons when she could not even
provide it for herself, Nina responded that she planned to live somewhere less expensive.
Nina was also making an effort to find employment, having scheduled an appointment to
meet with a Linkages counselor two days after the hearing. When asked why she had not
pursued assistance through Linkages until that time, Nina claimed she thought it was
“merely a suggestion,” not a necessary part of her case plan.
Nina also testified that she had received her certificate of completion of the
Incredible Years parenting education program, claiming she gave it to Nancy
Blankenship to give to the social worker. The educator thought she was making
substantial improvements, which she had seen, as Nina described it, in her
“countenance,” behaviors, and attitude. Through the program, Nina had learned how to
deal with temper tantrums and a lot about discipline.
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As to the substance abuse component of her case plan, Nina testified that she
participated in an assessment, but claimed the AOD counselors told her that “because of
my circumstances that they were not sure what to do with me and that they would have to
meet and decide what would be best. And at the moment that their services were not
suited for me.” She denied telling the counselor that AOD services would not do her any
good because she had no intention of stopping her marijuana use. As to her numerous
positive drug tests, Nina explained, “[U]p until probably July, I was totally unaware of
the department’s adverse views on marijuana, period. And I was told that as long as I
could get my [medical marijuana] card, they would be okay with it. And then I found out
that they were not okay with marijuana in any way, shape or form. So come July, I quit
smoking marijuana. And the test in August, of course, I still had marijuana in my system,
seeing as how it takes 30 days for it to completely exit the system.” Nina blamed her
failure to drug test in September on transportation issues, claiming she was unaware she
was supposed to let the Department know she could not make the test.
Nina had a mental health counselor, but had not attended appointments due to her
own transportation problems or the counselor being out of the office. She intended to
schedule an appointment to see her the following week. When asked on
cross-examination about the letter from the mental health branch detailing her poor
record of engagement in services, Nina would neither admit nor deny the accuracy of the
letter, claiming either she did not get messages because her phone was disconnected, was
sick and thus missed appointments, or simply did not recall whether she missed a
particular appointment as it was too long ago.
When asked about her suicidal thoughts in August, Nina explained that she was
“having a moment of difficulty” and was “overwhelmed.” She did not have anywhere to
go or anyone to talk to, so she went to the emergency room. She denied that she had
actually been suicidal or that it was anything serious.
Nina acknowledged that she did not participate in the Harrington House domestic
violence program, testifying that it would have been traumatizing due to her childhood
experiences of her mother dragging her to shelters and “homeless places” when her father
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kicked her mother out of the house. She was, instead, participating in the Pre-CAPT
program and was making significant progress. She denied that bruising on her arm was a
result of a domestic violence incident, but was instead because she was “slightly anemic.”
Nina testified that she was attending as many classes as she could, adjusting scheduling
conflicts where possible. According to Nina, through the program she learned that adult
behaviors in the home can have a “snowball effect” on children, and that the more the
adults could control themselves and maintain an air of civility, the better it will be for the
children. She had gained insight into picking up on other’s body language, better
perceiving the situations around her, and thinking before reacting.
Nina described visits with her children as the only thing she looked forward to in
her day. She acknowledged having some difficulty with Roman because he wanted to go
play with other children during visits instead of spending the time with her and Robert.
She denied ever telling him anything negative, claiming that his feelings stemmed from
“normal sibling changes due to new family members,” and that the older sibling often
feels distance between a parent and him or herself when a new child comes along. To
help Roman get past his feelings, she had tried to include him in changing and feeding
Robert “and everything in between.”
Nina did not believe the Department was providing adequate transportation
services. Oftentimes she would call a day ahead of time, requesting transportation, but
“it seems like they don’t have time or they’re unable or that they have other things in
their scheduling to where they can’t.”
Closing arguments followed the testimony, with counsel for the Department
arguing first. According to counsel, the testimony, along with the letters submitted in
support of the Department’s supplemental report, established that Nina had not completed
her case plan, having made very little progress on alleviating the concerns that led to the
dependency proceeding. Nina repeatedly told service providers that she did not have
problems and that she was not going to change the way she was doing some things, and
an additional six months of services would not lead to reunification under these
circumstances.
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Nina’s counsel acknowledged that her performance “has not been perfect,” but he
argued there were some accomplishments, too, contending that she was a very bright
person who was trying to do what she could to bond with her children. She herself grew
up in a domestic violence situation, and “[s]ometimes people because of their own
background take a little bit more time.” He submitted that Nina had demonstrated she
learned things from the programs she had completed. Describing the situation as
“salvageable,” he urged the court to give her more time, but “if she starts having dirty
tests, any whatsoever, pull the plug.”
Counsel for Roman’s father expressed concern about Nina’s lack of insight about
the nexus between her behavior and the children’s detention, and submitted on the
recommendations of the Department. Counsel for James, who had lost contact with
James, submitted on the record.
Counsel for Robert challenged Nina’s statement that she “would do anything and
everything to keep the children,” arguing: “Those were her quotes, ‘I would do anything
and everything to keep the children.’ Except get a home and tell the department about it;
can’t even leave a phone message; except go to mental health and be honest about the
fact that I do need services in six months, actually lied about it; except deal with my
anger through domestic violence or pre-CAPT; except stop using drugs and avoid testing.
She’s managed to avoid testing for two months; except basically do anything to be
successful. Her attempt at accessing these services that have been offered to her have
been, frankly, pathetic.”
Robert’s counsel was encouraged, however, by the fact that Nina was engaging in
mental health services and that she had completed her parenting class. And while he had
“grave doubts” that she could succeed at reunification, he was not opposed to continued
services for Nina if services were continued for Roman’s father.4
4
Roman’s father lived out-of-state, and the Department was attempting to reunify
them.
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CASA Gibbs reiterated his recommendation that Nina receive three more months
of services. According to Gibbs, his associate, who was a very experienced CASA staff
member, spoke with Nina and came away from the conversation impressed and very
hopeful that reunification was possible.
Following arguments, the court found by clear and convincing evidence that Nina
failed to make substantive progress on her court-ordered case plan, as follows:
“Mother, by her account, has lately been involved. But I—I have to say, I didn’t
find mother convincing. She seemed to think that—or have me believe that other people
are lying and that she’s really done much better than what the other evidence I have from
multiple other sources would indicate.
“It appears to me that she does need mental health help, and she has not made
substantive efforts or progress. Appears to be late getting started in that as well as the
pre-CAPT, the child abuse prevention treatment program. She has not done anything
with AOD.
“She self-reports being free from marijuana since July, but offers nothing to
substantiate that other than her own testimony that she had an early test that was dirty in
August and then twice declined to test when ordered to do so or requested to do so in
September. So I—frankly, given all the other things which cause me to doubt her
credibility, I have a hard time believing what she said.
“She says she graduated from the parenting class; maybe she did, but she didn’t
provide it to us. This is the hearing. And the last information that the social worker had
last week was that she had not.
“I have at times seen certificates given to somebody who has gone to some of the
classes even though they haven’t finished them. And I don’t know what she got was a
certificate that says that she actually completed the class or that she did participate by
going to a certain number of classes. I don’t know. I know that program, I think, at least
in the past has given both types of certificates.
“Her visitation has been at times regular, but at other times not. Her appreciation
of the needs, particularly, of the older child have been, frankly, very disturbing and does
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not appear to be sensitive to Roman’s predilection to using women or dressing in girls’
clothing[. That] is concerning—maybe understandable, but that’s nevertheless
concerning.
“Her failure to address the housing issues—all she could tell us today is that she
lives somewhere on Murphy Street, doesn’t tell us who she is living with, indicates she’s
only been there for apparently three nights. It’s hardly progress in dealing with her
homeless problem.
“It clearly appears to me that the department has provided services, reasonable
services, including trying to find housing and jobs.
“I have to say I found Ms. Anderson’s testimony to be particularly convincing. It
appears to me that the department has done a professional job and attempted to find—
provided reasonable services to the mom. In contrast, mother’s testimony has not been
convincing.”
With that, the court terminated Nina’s reunification services as to Robert and set
the matter for a section 366.26 hearing on January 24, 2014.
Nina filed a petition for extraordinary writ on October 23.
DISCUSSION
The Trial Court’s Finding That The Department Provided Adequate Services
Was Supported By Substantial Evidence
When a child is removed from a parent’s custody, the Department must provide
child welfare services to the parents to facilitate reunification of the family. (§ 361.5,
subd. (a).) The services must be tailored to the particular needs of the parents and
designed to eliminate the conditions that led to the child’s removal from their custody.
(Mark N. v. Superior Court (1998) 60 Cal. App. 4th 996, 1010-1011; In re Michael S.
(1987) 188 Cal. App. 3d 1448, 1458; In re Edward C. (1981) 126 Cal. App. 3d 193, 205.)
“[T]he record should show that the supervising agency identified the problems leading to
the loss of custody, offered services designed to remedy those problems, maintained
reasonable contact with the parents during the course of the service plan, and made
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reasonable efforts to assist the parents in areas where compliance proved difficult . . . .”
(In re Riva M. (1991) 235 Cal. App. 3d 403, 414.) Those criteria were easily met here.
From the outset of the dependency proceeding, the Department was very clear
about the issues that prompted the removal of Robert from his parents’ care: they had
substance abuse issues and neglected Robert when he was suffering from a serious
illness; their relationship was violent; and James was abusive towards Roman. The
Department provided Nina access to an extensive array of services geared towards
remedying those problems and attempted to facilitate her engagement in those services.
Specifically, the Department referred Nina to AOD for a substance abuse
assessment; the mental health division for a mental health assessment; Incredible Years
for a parenting education program; and the Linkages program and Workforce Center for
assistance with finding housing and employment. Nina was also referred to the
Harrington House domestic violence program, and was transported to the program on
three or four separate occasions. When Nina objected that participating in the program
would be traumatizing for her, the Department referred her to the Pre-CAPT program as
an alternative.
In addition to the above referrals, the Department provided Nina with
transportation options. When given sufficient notice, it would try to arrange rides for her.
As an alternative, she was given a monthly bus pass. She was also provided with a phone
containing 400 minutes per month. The Department also arranged a visitation schedule
that afforded Nina five hours per week with her children.
Lastly, social worker Anderson was actively involved in Nina’s case, meeting with
or speaking to her weekly in order to follow her progress and assist her in completing her
case plan. Nina was also assigned a social service aide to help her fulfill her
responsibilities.
In the two-page argument in her petition, Nina attempts to persuade us that social
worker Anderson was “dilatory and lax” and “ill prepared,” paid no attention to Nina’s
case, lacked knowledge of her progress on her objectives, and “caused the failure of the
case plan.” The veracity of this portrayal is belied by the record. The purported
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examples Nina provides are based on either a twisted construction of Anderson’s
testimony or Nina’s unsubstantiated, self-serving testimony. And to the extent her claims
are based contradictions between her testimony and that of Anderson, the court
specifically found Nina lacking in credibility and Anderson “particularly convincing.”
We thus conclude that Nina’s allegations are meritless. Viewing the evidence in
the light most favorable to the order, we further conclude that the juvenile court’s finding
that the Department provided reasonable services was supported by substantial evidence.
(Angela S. v. Superior Court (1995) 36 Cal. App. 4th 758, 762; In re Misako R. (1991)
2 Cal. App. 4th 538, 545.)
The Trial Court’s Finding That Nina Failed To Make Sufficient Progress on
Her Case Plan Was Supported By Substantial Evidence
At the six-month review hearing, the juvenile court must order return of the child
to the custody of his or her parent, unless it finds, by a preponderance of the evidence,
that the return of the child would create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child. (§ 366.21, subd. (e).) The
failure of the parent to participate regularly and make substantive progress in his or her
case plan is prima facie evidence that return would be detrimental. (Ibid.)
We review findings made under section 366.21 for substantial evidence.
(James B. v. Superior Court (1995) 35 Cal. App. 4th 1014, 1020; Dawnel D. v. Superior
Court (1999) 74 Cal. App. 4th 393, 398.) “We do not pass on the credibility of witnesses,
attempt to resolve conflicts in the evidence or evaluate the weight of the evidence.
Rather, we draw all reasonable inferences in support of the findings, view the record most
favorably to the juvenile court’s order, and affirm the order even if other evidence
supports a contrary conclusion. [Citation.] The appellant has the burden of showing the
finding or order is not supported by substantial evidence.” (In re Megan S. (2002)
104 Cal. App. 4th 247, 250–251.) Under this standard, we conclude that the juvenile
court’s finding that Nina had not made substantive progress on her case plan was
supported by substantial evidence, and termination of services was thus appropriate.
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Addressing the objectives of Nina’s reunification plan in order, we begin with the
requirement that she maintain a relationship with her children by following the conditions
of the visitation plan and developing a strong relationship with them. Despite describing
visits with her children as the only thing she looked forward to in her day, Nina’s record
on visitation was inconsistent. Anderson estimated that she attended 60 to 70 percent of
the scheduled visits, sometimes visiting weekly but other times missing a series of visits
without first notifying the Department.
The second objective was for Nina to develop the necessary parenting skills to
enable her to consistently, appropriately, and adequately parent her children. In
furtherance of this objective, Nina was referred to the Incredible Years parenting
education program. While she did participate in the program, she failed to attend the
final class, and as of the date of the Department’s six-month review report, she had not
completed the program. Nina testified that she had in fact received her certification of
completion, but neither social worker Anderson nor the court had ever seen it, nor was
there any corroborating evidence that she had in fact completed the program. Further,
Nina continued to be short with Roman and say hurtful things to him during visits,
suggesting she has not grasped core concepts of the program.
Nina’s performance on the third objective—comply with medical or psychological
treatment—was perhaps the least successful. She was initially referred for mental health
services in March, but she ignored attempts to schedule an assessment, resulting in the
closure of her file. After a second referral in April, she skipped an appointment, finally
participating in an assessment in May. She again ignored attempts to schedule her next
appointment, and it was not until the end of June that she participated in the development
of her treatment plan. Consistent with her prior behavior, she failed to schedule an
appointment to begin her therapy, and her file was again closed in late July after attempts
to reach her failed.
In addition to failing to schedule or attend appointments, Nina persisted in her
belief that she did not need mental health services. When presented with a treatment
plan, she denied needing treatment, advising the counselor she would not participate. She
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also lied to Anderson, claiming the counselor told her she did not need treatment, a
representation directly contradicted by the counselor herself. As evidence that Nina did
indeed have mental health needs, she sought emergency medical treatment in August
when she had suicidal thoughts. Even after that experience, Nina failed to pursue
services, connecting with the mental health bridge team on one occasion but ignoring all
other phone calls and appointments.
Nina made little to no progress in acquiring coping skills to resolve domestic
violence concerns. She refused to participate in the Harrington House program, so the
Department referred her to Pre-CAPT as an alternative. As of September 16, she had
attended her intake appointment and one group meeting and part of a second. She
claimed that through the program she had learned how her behavior could impact her
children, but despite this supposed growth, she became very upset in front of her children
at two recent visits.
Lastly, Nina was required to refrain from drug use and comply with drug testing
requirements. She failed to make any progress on this objective, despite that her
substance abuse was one of the key issues necessitating the dependency proceeding. As
late as August, Nina was still testing positive for marijuana, and she refused two requests
to test in September. Nina testified she had been clean since July, but offered no
evidence to substantiate her claim. And given her statements that she had no intention of
stopping her marijuana use, the court had “a hard time believing” her claim that she had
been drug-free since July. Further, Nina was referred to AOD and participated in an
assessment, but due to her refusal to stop her marijuana use, she made no progress on a
treatment program.
Compounding all of the foregoing, at the six-month review, Nina was
unemployed—other than occasional babysitting—and failed to follow through on any
efforts to secure employment. The Department had referred her to the Linkages program
and Workforce Center in March, and she attended one meeting with a Linkages
counselor, but failed to complete the assigned work. After that, she failed to avail herself
of the services of either program, claiming she thought it was “merely a suggestion.”
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Nina had an appointment at Linkages two days after the hearing and one at the
Workforce Center the following week. But it is not lost on us that she scheduled these
appointments only after the Department recommended termination of reunification
services. And, as demonstrated above, Nina’s record of keeping appointments was less
than stellar.
Additionally, Nina could not tell the court the “exact address” of where she was
living, claiming she had been staying at a friend’s house on Murphy Street for the past
three nights. According to the CASA, Nina had applied for HUD housing, but the wait
could be as long as two years. The Department was willing to help Nina with a security
deposit or first month’s rent, as long as she demonstrated that she could pay the rent after
that, but she made no such showing.
Finally, perhaps Nina’s biggest obstacle to reunification was her refusal to
acknowledge her behavior that led to the dependency proceeding. From the very outset,
Nina adhered to the position that she had “not done anything wrong” and there was
nothing she needed to remedy. In Anderson’s experience, if a parent was unwilling to
recognize the problem, then treatment generally did not occur.
In light of the foregoing, we easily conclude that substantial evidence supported
the juvenile court’s finding that Nina failed to make sufficient progress on her case plan
to warrant an extension of services.
DISPOSITION
The petition of mother Nina P. for extraordinary writ relief is denied on its merits.
(Cal. Rules of Court, rule 8.452(h)(1).) This decision is final as to this court forthwith.
(Id., rule 8.490(b)(1).)
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_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
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