In re A.B. CA1/4 ( 2014 )

Filed 1/21/14 In re A.B. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re A.B., a Person Coming Under the
Juvenile Court Law.
J.V.,
Petitioner, A140098
v.
(Contra Costa County
THE SUPERIOR COURT OF CONTRA Super. Ct. No. J12-01257)
COSTA COUNTY,
Respondent;
CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU,
Real Party in Interest.
I.
INTRODUCTION
J.V. (mother) seeks extraordinary writ review (Cal. Rules of Court, rule 8.452) of
the juvenile court’s orders issued at a contested six-month review hearing terminating her
reunification services, and setting a section 366.26 hearing for February 5, 2014, to
determine a permanent plan for her one-year-old daughter, A.B. (the minor). (See Welf.
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& Inst. Code, § 366.21, subd. (e).) 1 Mother argues the juvenile court erred in ruling that
(1) there was not a substantial probability of return of the minor within the next six
months; (2) visits between mother and the child should be suspended; and (3) reasonable
reunification services were provided. We deny the petition on its merits.
II.
FACTS AND PROCEDURAL HISTORY
The minor came to the attention of the Contra Costa County Children and Family
Services Bureau (the Bureau) when she was born prematurely in 2012. Mother came to
her first prenatal appointment a few days before the minor’s birth, and tested positive for
methamphetamine use. While at the hospital, mother admitted using methamphetamine
but claimed she did not need drug treatment because she could stop using if she wanted to
stop. The minor was detained and placed in a foster home shortly after her birth.
On September 6, 2012, at an uncontested hearing, the juvenile court sustained the
dependency petition, alleging mother’s drug use impaired her ability to care for the
minor. (§ 300, subd. (b).) Mother tested positive for methamphetamine use in a court-
ordered test that same day. The court ordered mother to complete a plan of reunification,
which included drug treatment and random drug testing, parenting instruction, and
individual counseling.
Mother entered a residential drug treatment program on September 11, 2012. The
program was scheduled to last 90 days, with the option of a 30-day extension or longer.
1
All statutory references are to the Welfare and Institutions Code, and rule
references are to the California Rules of Court. Where, as here, the minor was under
three years of age on the date of her initial removal from a parent’s custody, the court
may terminate reunification services at the six-month review hearing and schedule a
section 366.26 hearing if the court “finds by clear and convincing evidence that the
parent failed to participate regularly and make substantive progress in a court-ordered
treatment plan.” (§ 366.21, subd. (e).) “If, however, the court finds there is a substantial
probability that the child, who was under three years of age on the date of initial removal
. . may be returned to his or her parent . . . within six months . . . the court shall continue
the case to the 12-month permanency hearing.” (Ibid.)
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Mother did well in the program, and on October 18, 2012, the minor was released to
mother’s care while mother was still a resident of the drug treatment program.
After completing 90 days of inpatient treatment, mother left the program on
December 10, 2012, with the minor. However, once in the community, she failed to
engage in any substance abuse aftercare treatment. On January 31, 2013, the minor was
again removed from mother’s care and placed in foster care due to mother’s continued
methamphetamine use. Mother missed two drug tests in December 2012, and tested
positive for methamphetamine use on January 18, January 28, February 5, February 22
and February 28, 2013.2 Mother reported the reason she tested positive was that she was
using over-the-counter ibuprofen and/or cold medications. On February 21, the court
sustained a supplemental petition pursuant to section 387 pertaining to mother’s positive
drug tests and failure to engage in her family maintenance plan.
In a report prepared for the six-month review hearing, the Bureau recommended
terminating mother’s reunification services and setting a section 366.26 hearing. The
social worker’s report detailed the recent results of mother’s substance abuse testing.
Mother had missed two tests in February, four tests in March, four tests in April, and two
tests in May. She tested positive for methamphetamine use on January 18, January 28,
February 5, February 22, February 28, April 25, May 1 and May 15. She had not tested
at all during the months of June, July and August. Mother had also failed to participate in
substance abuse treatment during this period of time.
On October 23, the court held a contested six-month review hearing. During her
testimony, mother acknowledged she had “waited too long to start doing what I’m
supposed to do at the last minute,” but she indicated she was now starting services. She
testified she had almost completed parenting classes, was attending substance abuse
meetings, and had been calling residential drug treatment programs seeking admission.
The juvenile court noted the “several positive tests” during the course of the
dependency, and asked mother if she used drugs, mother responded “[n]o.” Likewise,
2
Unless specified otherwise, all future dates are in 2013.
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when the court asked mother the last time she used drugs, mother responded “Honest
truth, I’ve never.” When the court inquired if mother had a substance abuse problem,
mother responded “[n]o.” The court then commented that “you appear to me today to be
under the influence.” Mother denied this, testifying “[i]t’s because I’m a little bit nervous
being up here.” The court ordered mother be drug tested during a break in the hearing.
Mother tested positive for methamphetamine use.
At the hearing’s conclusion, the court terminated reunification services and set this
matter for a section 366.26 hearing on February 5, 2014. In refusing to extend
reunification services, the court indicated, “I don’t believe there’s even any probability
that the child could be returned to you safely in six months. You haven’t even gotten off
square one to acknowledge that you have a problem let alone begin to address the
problem.” The court also suspended visitation between mother and the minor, but
indicated if “mother starts to test and she shows . . . she’s not under the influence,” the
court would reconsider its decision. Mother filed this writ challenging these
determinations.
A. Evidence Supporting Termination of Services and Scheduling a
Section 366.26 Hearing
Mother first argues that the court erred in terminating reunification services and
scheduling a section 366.26 hearing because there was a substantial probability the minor
may be returned to her within six months. The findings of the juvenile court made
pursuant to section 366.21 are reviewed under the substantial evidence test. (James B. v.
Superior Court (1995) 35 Cal. App. 4th 1014, 1020.) All conflicts in the evidence are
resolved in favor of the finding, order, or judgment of the lower court, and all reasonable
inferences are made in support thereof. (In re Katrina C. (1988) 201 Cal. App. 3d 540,
547 (Katrina C.).)
A court abuses its discretion in setting the section 366.26 hearing if the record
establishes that “there is a substantial probability the child may be returned to the parent
[within six months], in which case the court must continue the case to the 12 -month
hearing.” (M.V. v. Superior Court (2008) 167 Cal. App. 4th 166, 179-180, italics omitted.)
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In determining “substantial probability” of return within the applicable time period, the
juvenile court “should consider the following factors along with any other relevant
evidence: [¶] a. Whether the parent . . . has consistently and regularly contacted and
visited the child; [¶] b. Whether the parent . . . has made significant progress in resolving
the problems that led to the removal of the child; and [¶] c. Whether the parent . . . has
demonstrated the capacity and ability to complete the objectives of the treatment plan and
to provide for the child’s safety, protection, physical and emotional health, and special
needs.” (Rule 5.710(c)(1)(D)(i).)
In claiming she met this criteria, mother points out she “had been regularly and
consistently visiting with her daughter,” and that early in the dependency process, she
“successfully completed a court-ordered treatment program.” Also, during mother’s
testimony, she outlined the steps she was taking to start complying with her reunification
plan, such as participating in a parenting class, although she admitted she had “waited too
long to start doing what I’m supposed to do at the last minute.”
However, mother wholly ignores the minimal progress she has made throughout
the minor’s dependency in addressing her drug abuse issues, which served as the basis for
the court’s jurisdictional order. Mother continued to test positive for methamphetamine
use throughout the minor’s dependency. Moreover, she frequently missed drug testing
(the functional equivalent of a positive test). Most importantly, the record shows that
mother’s insight into the gravity of her addiction was essentially unchanged from the
commencement of the minor’s dependency. Despite having participated in a residential
substance abuse treatment program and having the minor once again removed from her
custody after she relapsed, mother was still unwilling to face up to the fact, let alone the
severity, of her addiction. During her testimony, she continued to deny that she had ever
used methamphetamine. The juvenile court found her denials not credible, and the
court’s skepticism was confirmed by drug testing which revealed mother was appearing
in court under the influence of methamphetamine. “Such a dismal performance in the
most crucial aspect of the reunification plan can hardly be viewed as regular participation
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in services.” (Dawnel D. v. Superior Court (1999) 74 Cal. App. 4th 393, 398, disapproved
on other grounds in Tonya M. v. Superior Court (2007) 42 Cal. 4th 836, 848.)
Mother’s continued drug use after the dependency was initiated, her failed
rehabilitation, and her failure to take responsibility for her recent use provided substantial
evidence supporting the court’s finding that it was not substantially probable that the
minor could be returned to her custody within six months. Accordingly, we conclude the
court’s denial of further reunification services and the scheduling of a section 366.26
hearing is amply supported by this record.
B. Adequacy of Reunification Services
Mother next argues that the evidence was insufficient to support the court’s
finding that the reunification services she received were adequate. She claims the
services offered were not reasonably tailored to assist her because “the only thing [the
Bureau] did to address the mother’s methamphetamine relapse . . . was give the mother
the names and numbers of some drug programs, and directed her to call to seek
admission.”
“[W]ith regard to the sufficiency of reunification services, our sole task on review
is to determine whether the record discloses substantial evidence which supports the
juvenile court’s finding that reasonable services were provided or offered. [Citations.]”
(Angela S. v. Superior Court (1995) 36 Cal. App. 4th 758, 762.) “We construe all
reasonable inferences in favor of the juvenile court’s findings regarding the adequacy of
reunification plans and the reasonableness of [the Bureau’s] efforts.” (In re Julie M.
(1999) 69 Cal. App. 4th 41, 46.)
At the outset, we note that mother failed to challenge the adequacy of the
reunification services offered in a timely fashion. “If Mother felt during the reunification
period that the services offered her were inadequate, she had the assistance of counsel to
seek guidance from the juvenile court in formulating a better plan[.]” (In re Christina L.
(1992) 3 Cal. App. 4th 404, 416.) A parent may not “wait silently by until the final
reunification review hearing to seek an extended reunification period based on a
perceived inadequacy in the reunification services occurring long before that hearing.
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[Citation.]” (Los Angeles County Dept. of Children etc. Services v. Superior Court
(1997) 60 Cal. App. 4th 1088, 1093.) Although mother was represented by counsel
throughout these proceedings, she did just that, waiting until after reunification services
were terminated and the matter was before this court on a writ petition to raise this issue.
Mother has waived the issue by failing to object below.
Even if we were to consider mother’s untimely argument on the merits, the record
amply supports the trial court’s ruling that “by clear and convincing evidence that [the
Bureau] has provided or offered mother reasonable services which were designed to aid
her in overcoming the problems which led to the initial removal.” The proper focus of
reunification services is to eliminate the conditions that led to the trial court ’s
jurisdictional finding. (In re Precious J. (1996) 42 Cal. App. 4th 1463, 1474.) “[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
reasonable efforts to assist the parents in areas where compliance proved difficult . . . .”
(In re Riva M. (1991) 235 Cal. App. 3d 403, 414.)
Substantial evidence demonstrates the Bureau’s efforts were more than reasonable.
Mother fails to acknowledge that she voluntarily ceased efforts to comply with her
reunification plan for a significant portion of the review period and only started making
last-minute strides when termination of reunification services was imminent.
Reunification services are voluntary, and the social worker is not required to “take the
parent by the hand and escort [her] to and through classes or counseling sessions.” (In re
Michael S. (1987) 188 Cal. App. 3d 1448, 1463, fn. 5.) In this case, the record reflects that
the Bureau complied with its obligation to provide services, but mother failed to take
advantage of the services offered to her.
C. Suspension of Visitation
Mother also challenges the juvenile court’s order suspending her supervised
visitation with the minor but keeping open the possibility of reinstatement if she could
establish a pattern of testing clean for drugs. She contends the juvenile court abused its
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discretion in suspending visitation because “[t]here is no sufficient factual basis in the
record to support a finding that visitation places the minor at risk of harm to her physical
safety and wellbeing.”
Reunification services ordinarily must include visitation, which must be “as
frequent as possible, consistent with the well-being of the child.” (§ 362.1,
subd. (a)(1)(A), italics added.) Even after termination of reunification services, visits
must continue unless the court determines they would be detrimental to the child.
(§ 366.21, subd. (h).) In determining whether and under what conditions to order
visitation, the court must balance the parents’ interest in the care, custody and
companionship of their children with the child’s well-being. (See In re S.H. (2003) 111
Cal. App. 4th 310, 317.) The juvenile court has broad discretion in striking this balance.
(In re Megan B. (1991) 235 Cal. App. 3d 942, 953.) In reviewing for substantial evidence,
we resolve all conflicts in the evidence in favor of the court’s findings. (Katrina C.,
supra, 201 Cal.App.3d at p. 547.)
Ample evidence supports the court’s determination that continued supervised
visitation would be detrimental to the minor. Mother made virtually no progress toward
alleviating her substance abuse problem, continuing to use methamphetamine right up
until the contested six-month review hearing. The court put its reasoning on the record:
“I will tell you what my concern is. Mom appears very obviously under the influence
here in court today, and I do believe it would be detrimental to subject the child to
interaction with someone who is so clearly under the influence of a central nervous
stimulant. And I think it actually can pose a danger to the child.”
We reject mother’s suggestion that a finding of detriment based on her ongoing
methamphetamine use required evidence that she engage in conduct that posted a threat
to the minor’s safety. The juvenile court need not wait for mother’s drug use to actually
harm the minor before taking action. Mother’s ongoing drug use and failure to comply
with her reunification plan provides a sufficient basis for the court’s finding of detriment
if visitation was continued.
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IV.
DISPOSITION
The writ petition and request for a stay are both denied. (§ 366.26, subd. (l)(1);
rule 8.452(h).) Given the need to proceed promptly with the hearing set for February 5,
2014, this decision is final immediately. (Rules 8.452(i), 8.490(b)(1)(A).)
_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
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