Alexia People v. Superior Court CA1/5 ( 2024 )

Filed 2/13/24 Alexia P. v. Superior Court CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
ALEXIA P.,
Petitioner,
v.
THE SUPERIOR COURT OF A169432
CONTRA COSTA COUNTY,
(Contra Costa County
Respondent;
Super. Ct. No. MSJ21-00498)
CONTRA COSTA COUNTY
CHILDREN AND FAMILY
SERVICES BUREAU,
Real Party in Interest.
In this writ proceeding, petitioner Alexia P. (Mother) requests that this
court vacate the juvenile court’s December 2023 order setting a Welfare and
Institutions Code1 section 366.26 permanency planning hearing. (Cal. Rules
of Court, rule 8.452.) She also requests a stay of the hearing and an increase
in visitation. We deny the petition.
1 All undesignated statutory references are to the Welfare and
Institutions Code.
1
BACKGROUND
In November 2021, a petition was filed by the Contra Costa County
Children and Family Services Bureau (Bureau) pursuant to section 300,
subdivision (b), relating to Mother’s son N.J., born March 2020 (Minor). The
petition alleged Mother failed to protect Minor due to a history of mental
health issues, substance abuse, and domestic violence. Among other things,
the petition alleged she was arrested earlier in the month for driving under
the influence, child endangerment, and carrying a concealed weapon. Minor
was detained, and Mother was granted supervised visitation two times per
week.2
In March 2022, Mother admitted the allegations in the petition and the
juvenile court sustained the petition with amendments. Mother agreed to
undergo domestic violence, mental health, and substance abuse assessments,
and to attend Alcoholics Anonymous or Narcotics Anonymous meetings.
The Bureau’s April 2022 disposition report summarized Mother’s child
welfare system history involving her other children. The Bureau also
reported on an interview with Mother, noting she was “emotionally volatile
and scattered throughout.” The Bureau reported that Mother had completed
a parenting course and had numerous “appropriate and attentive” visits with
Minor between November 2021 and April 2022. On the other hand, she
missed ten drug tests. The Bureau concluded, “Despite the fact she refuses to
acknowledge the need for domestic violence services, [Mother] has engaged
partially in parenting education and counseling services. . . . [S]he never
misses a visit with [Minor] and reports she will continue to fight to get
[Minor] back.” The Bureau recommended reunification services.
2 Minor’s father is not involved in the present writ proceeding and we
do not summarize aspects of the background relating to him.
2
At the April 2022 disposition hearing, the juvenile court adopted the
Bureau’s findings and recommendations. Mother’s case plan included
therapy, domestic violence counseling, parenting classes, drug testing, and
participation in substance abuse treatment in the event of positive or missed
tests.
The Bureau’s October 2022 six-month review report stated that Mother
was convicted in July of driving under the influence due to the November
2021 incident. She completed her parenting classes and made some progress
on the mental health and domestic violence aspects of her case plan. Mother
“consistently” participated in visitation and the visits went well. Mother
missed six drug tests between May and September (testing negative four
times). The Bureau recommended continuation of reunification services.
At the six-month hearing, the juvenile court granted the Bureau’s
request to change placement of the child to the home of the paternal
grandmother, continued reunification services, and scheduled a 12-month
review hearing.
The Bureau’s February 2023 report for the 12-month review stated that
Mother had made some progress on the therapy and domestic violence
aspects of her plan. Mother and Minor had a “healthy and strong
relationship.” However, Mother “missed nearly every test date since October
2022.” Mother claimed the Antioch testing location was incompatible with
her San Francisco job location, but she objected to an offered testing site in
San Francisco. The report also mentioned that Mother was seven months
pregnant by a different father than Minor’s father. The Bureau expressed
concern about Mother’s mental health and non-compliance with testing but
recommended continued reunification services.
3
In an April 2023 report, the Bureau recommended termination of
reunification services. The social worker reported that, when she tried to
engage with Mother to encourage more progress, Mother “would get upset,
yell . . . and not be receptive . . .” Following delays, a contested 12/18 month
hearing commenced on June 15. A second hearing date was scheduled for
June 29, and on that date the Bureau recommended a continuation of
services until the 24-month date and the juvenile court adopted the Bureau’s
recommendation, setting a 24-month review hearing on October 26.
The 24-month review hearing was continued to December 2023, and, on
October 26, the Bureau reported that Mother had been arrested in San
Francisco while caring for her infant and Minor. The Bureau summarized
the police report as follows. After 11 p.m. on September 8, police officers
responded to a “wellbeing check on a female with two children that had
fallen.” The witness “stated that a woman had fallen over and appeared to be
intoxicated and was with a two-to three-year-old child and a baby.” Upon
arrival, officers observed Mother seated on the northeast corner of the
intersection of Liberty Street and Guerrero Street. Mother was holding a
four-month-old infant (Minor’s half-sibling), and Minor was standing next to
her. One of the officers “smelled the strong scent of an alcoholic beverage
emanating from [Mother]. He noticed that [Mother’s] eyes were bloodshot
and watery. In addition, he observed her speech to be thick and slurred.
[Mother] attempted to regain her footing, but she had an unsteady gait and
was unable to support herself . . . .” The officer “noted that northbound
Guerrero St. had a moderate amount of vehicular traffic traveling at a high
rate of speed, and [Mother] had no physical control or method of ensuring
that [Minor] did not wander into traffic.” She was arrested on, among other
4
things, two counts of child endangerment and one count of battery on a police
officer (due to spitting in the face of an officer at the jail).
The Bureau interviewed Mother about the September 2023 arrest and
Mother provided an account that was inconsistent with the police report and
police video of the incident, claiming that she was confronted by the police as
she walked back to her residence. The Bureau’s report acknowledged Mother
had participated in services but expressed concern “regarding the type of
services that she has been enrolled in, her ability to take accountability in
her own actions and her transparency with her service providers.” She
refused “to sign a full release with her therapist, which has essentially only
allowed the therapist to provide positive feedback to the Bureau.” She also
refused to enroll in a domestic violence batterer’s program, rather than a
standard domestic violence education program. Mother completed a 12-step
program in February 2023 and, at that time, was attending Alcoholics
Anonymous meetings. Between June and October 2023, Mother missed six
drug tests and tested negative 15 times. The September 2023 arrest put an
end to unsupervised visits, but subsequent supervised visitation went well.
The Bureau recommended termination of reunification services, and
the setting of a section 366.26 hearing with the intended permanent plan of
legal guardianship with the paternal grandparents (because of the emotional
bond between Minor and both parents). The Bureau reasoned, “Despite
having services for nearly two years, [Mother] has not been able to take
accountability for her behavior. Instead, [Mother] places the blame on others
in a verbally aggressive and bullying manner. . . . [The September 2023]
arrest highlights the lack of lasting behavioral changes for [Mother] as there
are similar issues and factors of this arrest and that in which brought [Minor]
into care.” The Bureau also observed that the “arrest brought to light
5
multiple instances of relapses during this case, which she has [not] disclosed
to the Bureau, and did not address in treatment or therapy. This arrest has
further demonstrated [Mother’s] lack of behavioral changes and
accountability.”
At the December 2023 contested 24-month review, the juvenile court
accepted all the reports into evidence and heard brief testimony about
Mother’s participation in her case plan, visitation, and her relationship with
Minor. The Bureau requested termination of reunification services,
commenting, “The Bureau has really been dedicated to helping [M]other, to
giving [M]other many opportunities to spend time with [Minor]. . . . I don’t
think there’s a question about reasonable services. The fact is in the recent
past, things have taken a turn and it is clear [M]other is not in a place where
she can care for [Minor] adequately.” Minor’s counsel agreed, stating, “We’ve
gone back to square one. [Mother is] still abusing substances. She’s still
fighting with police officers. As the reports show, she is still blaming father
for all of these issues . . . .”
Mother’s counsel requested that the court return Minor to Mother. She
acknowledged Mother had no basis to request continued reunification
services, stating, “We would ask—given the posture of the case, we’re in a
position where we would have to ask for a return at 24 months. I don’t know
legally how we could ask for more services. We could ask for a continuance
and just to further demonstrate that these issues are not currently a problem,
but otherwise we would have to ask for a return of [Minor] at this time.”3
3 It is unclear whether that constituted a formal request for a
continuance, but, in any event, Mother does not claim on appeal that the
juvenile court erred in failing to continue the 24-month review hearing.
6
The juvenile court agreed continuation of services was no longer an
option, agreeing with Mother’s counsel that “the Court has somewhat a
binary choice today, either return the children back to [Mother] or terminate
services, because we’re at the . . . 24-month mark, where [the Court doesn’t]
have much discretion . . . absent some extraordinary circumstances, which
don’t exist here.” The court observed that the September 2023 arrest was
central to the determination whether return would be detrimental. In order
to make that assessment, the court watched the police video of the encounter,
commenting, “that video depicted [Mother] sitting on the street corner late at
night, [she] appears to be cold, and she is not in any condition, from what I
could see, to provide care to those children. It’s a busy street. There’s cars
whizzing by. I think it’s clear that there are objective signs of intoxication,
that she’s unable to care for herself, she’s unable to care for the children.”
The court concluded, “I do acknowledge that [Mother’s] made some progress.
There’s times in this record where she makes immense progress, but the
recent events are of such gravity and so recent that the Court cannot
determine that returning [Minor] to her would be a safe thing to do or, more
specifically, I find by clear and convincing evidence that return of [Minor] to
[Mother’s] physical custody and to that of the father would create substantial
risk of detriment to [Minor’s] safety, protection and physical and emotional
well being.”
The court set a section 366.26 hearing for February 15, 2024. The court
set Mother’s visitation with Minor at two times a month for one hour,
supervised.4
4 Mother requested that the Bureau be permitted to allow unsupervised
visitation, which the juvenile court did not grant, but Mother did not object to
the frequency of visitation.
7
DISCUSSION
Mother contends the juvenile court erred in not returning Minor to her
care. Section 366.25 governs cases in which reunification services have been
extended to 24 months. At a 24-month review hearing, a child must be
returned to the child’s parent or parents, “unless the court finds, by a
preponderance of the evidence, that the return of the child to their parent or
legal guardian would create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child.” (§ 366.25,
subd. (a)(1).) If the child is not returned at the 24-month review hearing, the
juvenile court must set a section 366.26 hearing. (§ 366.25, subd. (a)(3).) In
reviewing the juvenile court’s detriment determination, we apply the
substantial evidence test. (In re Yvonne W. (2008) 165 Cal.App.4th 1394,
1400–1401.)
Mother acknowledges her “relapse” and the September 2023 arrest but
asserts that she and Minor “could have been placed in a clean and sober
living environment with close monitoring by the Bureau and other
professionals.” However, Mother cites to nowhere in the record where she
requested such a placement, and she cites no authority the court could
mandate that arrangement without extending services beyond 24 months.
The September 2023 incident occurred during only the second unsupervised,
overnight visit that was extended to Mother, the month before the originally
scheduled 24-month review hearing. The juvenile court’s concern about
Minor’s safety in Mother’s care is supported by the record.
Mother cites to Rita L. v. Superior Court (2005) 128 Cal.App.4th 495,
which held a juvenile court erred in terminating reunification services where
the mother’s sole transgression was ingesting a Tylenol with codeine
prescribed to her adult daughter while suffering in bed with a headache. (Id.
8
at p. 498.) The court held that the mother’s one “dirty” drug test resulting
from the incident, when viewed in the context of the entire case, did not
constitute substantial evidence that the return of her child presented a
substantial risk of detriment. (Id. at p. 505.) The present case is plainly
distinguishable. The September 2023 incident was a very serious lapse in
judgment that put Minor in actual danger, and it occurred during the second
unsupervised visit Minor had with Mother. (Cf. Rita L., at p. 498 [the
mother’s use of a painkiller “did not indicate [the minor] would have been in
any danger even had he been in [the mother’s] custody at the time”].)
Mother also contends the juvenile court should have extended
reunification services because she received inadequate services from the
Bureau. She argues, “The services of the Bureau were inadequate when the
[M]other relapsed. The Bureau should have worked on placing [Mother and
Minor] in a program where the child could be safe, the relapse of [M]other
could have been addressed and most importantly the bond between [Mother
and Minor] could be sustained.” But Mother cites to nowhere in the record
where she argued that she received inadequate services. In fact, the Bureau
pointed out there had been no such claim, and Mother’s counsel
acknowledged the juvenile court’s only options were return or termination of
services. Any claim of inadequate services was forfeited. (In re Elijah V.
(2005) 127 Cal.App.4th 576, 582 [“A parent’s failure to raise an issue in the
juvenile court prevents him or her from presenting the issue to the appellate
court.”]; see also In re Kevin S. (1996) 41 Cal.App.4th 882, 885–886.)
Finally, Mother contends the juvenile court erred in adopting the
Bureau’s recommendation to set visitation at two times a month. However,
although Mother requested that the Bureau be permitted to allow
unsupervised visitation, she did not object below to the frequency of
9
visitation. Any claim the court erred in its visitation order has been forfeited.
(Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 685–686 [father
forfeited claim of error in visitation order]; see also In re Elijah V., supra,
127 Cal.App.4th at p. 582; In re Kevin S., supra, 41 Cal.App.4th at pp. 885–
886.)
DISPOSITION
The writ petition is denied on the merits. The request for a stay is also
denied. Because the section 366.26 hearing is set for February 15, 2024, our
decision is final as to this court immediately. (Cal. Rules of Court,
rules 8.452(i) & 8.490(b)(2)(A).)
10
SIMONS, J.
WE CONCUR:
JACKSON, P. J.
BURNS, J.
A169432
Alexia P. v. Superior Court
11