A.C. v. Superior Court CA2/6

Filed 6/17/21 A.C. v. Superior Court CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
A.C., 2d Civ. No. B310402
(Super. Ct. No. 19JD-00362)
Petitioner, (San Luis Obispo County)
v.
THE SUPERIOR COURT OF
SAN LUIS OBISPO COUNTY,
Respondent;
SAN LUIS OBISPO
DEPARTMENT OF SOCIAL
SERVICES,
Real Party in Interest.
A.C. (Mother) filed a petition for extraordinary writ (Cal.
Rules of Court, rules 8.452, 8.456) after the juvenile court
terminated her reunification services with her child N.T. and
scheduled a hearing under Welfare and Institutions Code section
366.26.1 The San Luis Obispo County Department of Social
Services (DSS) filed a juvenile dependency petition (§ 300, subds.
(b)(1) & (g)), alleging N.T. came within the jurisdiction of the
juvenile court. We conclude, among other things, that
substantial evidence supports the court’s order to terminate
reunification services. The petition for writ is denied.
FACTS
On October 21, 2019, DSS filed a juvenile dependency
petition stating that, as a result of Mother’s on-going substance
abuse and lifestyle, N.T. is suffering serious physical and
emotional harm. Mother did not “ensure [N.T.’s] school
attendance” and did not provide him with adequate medical care.
DSS had to place N.T. in “protective custody.” DSS asked Mother
to submit to a drug test; she refused. DSS noted that N.T. has
“poor school attendance” and “poor hygiene.” N.T. has
“outstanding dental needs that [Mother] has not addressed.”
In September 2019, DSS received a child neglect “referral”
that N.T. was “filthy dirty” with “rotting teeth,” and had “dental
pain” and “dirty hair.” He had red bite marks on his arms. He
has asthma, but was not taking medication. He was staying in a
motel with Mother. N.T. said he saw Mother’s boyfriend
“injecting intravenous drugs.” N.T. told DSS that he had
punched a man who went after Mother, and that a man with
whom they were staying used drugs from a “glass pipe.” Mother
told DSS that she was unemployed and homeless.
A DSS social worker asked Mother to test with Drug and
Alcohol Services (DAS) on September 6, 9, and 10. Mother failed
to show up for any of these tests. She refused to participate in a
1All statutory references are to the Welfare and
Institutions Code.
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plan for random testing. She also told a social worker she would
not agree to drug testing. DSS referred Mother to a “parent
partner for support.” But Mother did not respond to the efforts of
the parent partner to contact her. A DSS social worker asked
Mother to participate in a “safety plan” where N.T. could
temporarily stay with a sober individual. Mother refused. On
October 4, a DSS social worker called to confirm whether N.T.
was safe. Mother did not respond.
On October 16, 2019, DSS obtained a “warrant” to
interview N.T., but he was not present at his elementary school.
On October 17, N.T.’s school contacted DSS and reported that a
man who was not on a school “emergency contact card” list came
to school to pick up N.T. This man was under the influence of a
controlled substance. The school attempted to reach Mother, but
her telephone was disconnected. The police went to the motel
where Mother had been staying, but she was not there.
The juvenile court found “a prima facie showing has been
made” that N.T. is a person described by section 300. It issued
“detention orders.” N.T. was placed with a “caregiver” at a
“shelter resource home.” Mother was granted visitation with
N.T., but it was limited to “supervised” visits. Mother was
allowed to make “reasonable phone contact” with N.T.
The juvenile court scheduled a jurisdictional hearing. On
November 6, 2019, Mother’s counsel requested the court to vacate
that hearing and schedule a combined jurisdictional/dispositional
hearing. The court granted that request.
In a jurisdiction report, DSS recommended that N.T.
“remain in out of home care.” It noted that Mother “has not
taken steps to address the concerns of [DSS] and is not engaged
in Drug and Alcohol Services.” (Italics added.)
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In a disposition report, DSS recommended that 1) N.T.
remain in out-of-home care, and 2) Mother receive family
reunification services. A social worker reported that Mother “has
not cooperated” in completing a “Social Study/Family
Assessment.” DSS was concerned that Mother "will use drugs”
and “will not be reachable when needed to care for [N.T.].” It
noted that Mother “has had minimal contact” with DSS. Mother
agreed to attend a required Child Family Team (CFT) meeting.
But she later said she could not attend. She claimed she had a
visit with N.T. that day. But the social worker confirmed that
Mother had not visited N.T. that day. When the social worker
was able to talk with Mother again, Mother said she missed the
CFT meeting because she had a drug test. When reminded that
she previously gave a different reason for not attending the CFT
meeting, Mother said transportation problems were the reasons
for not attending the CFT meeting. The social worker told
Mother that DSS could provide her with a “monthly bus pass.”
The DSS disposition report reflected that Mother told a
social worker that she does not use drugs. Later, Mother
admitted that she “uses marijuana daily, in the morning and at
night.” Mother’s drug testing reports showed that for one test,
the testers were given a diluted “non-human sample.” There was
also a positive test for methamphetamine and marijuana and
another positive test for marijuana. Mother was scheduled for
group mental health meetings on November 15 and November 22.
She missed both of those meetings.
In a more recent addendum report, DSS said DAS decided
to close Mother’s case due to “her lack of follow through and
participation.” (Italics added.) Four CFT meetings were
scheduled. Mother did not attend any of them. DSS was
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repeatedly unable to contact Mother. DSS said Mother continues
“to not engage in services” required by her case plan.
At the combined jurisdictional/dispositional hearing,
Mother did not attend. Mother’s counsel told the juvenile court
she did not know where Mother was. The court found it had
jurisdiction and that N.T. was properly removed from Mother’s
home. It scheduled six-month and 12-month reviews.
In the six-month status review report, DSS said Mother
“has not engaged in” 1) mental health services, 2) substance
abuse services, or 3) the parenting education services that were
required for her case plan. Mother had not contacted the social
worker for a substantial period of time. The juvenile court
decided to continue services for Mother and have a subsequent
12-month review.
In the 12-month status review report, DSS recommended
that reunification services be terminated and that the case be set
for a section 366.26 hearing. It said that after “12 months of
reunification,” Mother “has been unable to demonstrate
substantial progress.”
At the February 10, 2021, 12-month review hearing,
Mother testified that she had participated in drug and alcohol
treatment since January 13, 2021. She had urinary tract
infections which prevented her from being able to test for drugs
regularly in September and October 2020. With medical
treatment, she was able to resolve that problem and resume
testing. Mother was asked, “But you tested positive for some
illegal drugs when you did test; isn’t that right?” Mother: “Yes,
ma’am.” Mother said she has been sober since January 15, 2021.
She visits N.T. regularly. She only missed two visits in 12
months. N.T. entered foster care 16 months ago. Mother
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testified she tested positive for methamphetamine in August
2020.
Social worker Jena Kuhnle testified Mother has
participated in drug and alcohol services for “the last couple of
weeks.” But Mother has not made substantial progress in her
case plan over the last 16 months. Kuhnle was asked, “[D]uring
the course of this case, did [Mother] ever discuss with you her
difficulty in providing samples for drug or alcohol testing?”
Kuhnle: “No.” Mother did not ask for “any additional assistance
in engaging with drug and alcohol services prior to January of
this year.” Kuhnle testified, “We’re a year into this case, and I
don’t believe that there has been a pattern of sobriety long
enough that would allow us to believe that would continue should
[Mother] be given more time.” There is no substantial probability
that N.T. can be returned to Mother’s care “by the 18-month date
in April of this year.”
The juvenile court ruled that reunification services would
be terminated and the case would be set “for a selection and
implementation hearing.” It found Mother had made “minimal”
progress “toward alleviating or mitigating the causes
necessitating placement.” Mother’s recent rehabilitation efforts
were “too little and too late.”
DISCUSSION
Terminating Reunification Services
Mother contends the juvenile court erred by not continuing
reunification services.
DSS contends the juvenile court properly discontinued
reunification services because the evidence shows there was no
substantial probability N.T. would be returned to Mother’s
custody.
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In reviewing a decision to terminate reunification services,
we “uphold the court’s findings if supported by substantial
evidence.” (J.H. v. Superior Court (2018) 20 Cal.App.5th 530,
535.) “We resolve all conflicts in favor of the court’s
determinations, and indulge all legitimate inferences to uphold
its findings.” (Ibid.) We do not weigh the evidence or decide the
credibility of witnesses as those are matters for the trial court to
determine. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
“At the conclusion of a 12-month review hearing, the
juvenile court shall continue the case for up to six months if there
is a ‘substantial probability’ a child will be returned to a parent’s
custody. (§ 366.21, subd. (g)(1).)” (J.H. v. Superior Court, supra,
20 Cal.App.5th at p. 535.)
“A ‘substantial probability’ of reunification requires the
court to find that the parent: [1] regularly contacted and visited
the child; [2] ‘made significant progress in resolving problems that
led to the child’s removal from the home’; and [3] ‘demonstrated
the capacity and ability both to complete the objectives of [the]
treatment plan and to provide for the child’s safety, protection,
physical and emotional well-being, and special needs.’ ” (J.H. v.
Superior Court, supra, 20 Cal.App.5th at p. 535, italics added.)
Where a parent makes marginal or unsatisfactory
compliance with the reunification services case plan, the juvenile
court may terminate reunification services. (In re Alanna A.
(2005) 135 Cal.App.4th 555, 566.) “The main purpose of limiting
the period of reunification in a dependency proceeding is to afford
the child stability and permanency where reunification is
unlikely within the statutory time limits.” (Ibid.)
Mother contends she met the first requirement regarding
regular visitation and contact with N.T. during the relevant
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period. She notes that she “maintained daily contact with [N.T.]
by phone or zoom during Covid restrictions.” DSS agrees. It
states, “It is uncontested that [Mother] regularly visited [N.T.],
satisfying the first prong.”
But DSS contends the other two requirements for
continued reunification services were not met. It claims: 1) “by
the time of the 12-month permanency hearing in February 2021,
[N.T.] had been in foster care for 16 months”; and 2) “for 15 of
those months, [Mother] did almost nothing and made almost no
progress in addressing the problems that led to [N.T.’s] removal.”
The record supports these claims.
In the 12-month status review report for the February 2021
hearing, DSS recommended that family reunification services be
terminated for noncompliance with Mother’s case plan
requirements. DSS said Mother was not participating “in any
parenting education program.” It noted that she was offered such
a program, but she did not complete it. It said she also did not
participate in mental health services. Mother “has not been
consistent in her attendance” at substance abuse services.
Mother notes that she currently is successfully testing for
drugs and alcohol and has “started attending AA meeting[s].”
But DSS noted that Mother had only recently sought to
“re-engage in” such “services.” The juvenile court was reasonably
concerned that Mother’s efforts at compliance were too little and
too late. “ ‘[If] a parent in no way seeks to correct his or her own
behavior or waits until the impetus of an impending court hearing
to attempt to do so, the legislative purpose of providing safe and
stable environments for children is not served by forcing the
juvenile court to go “on hold” while the parent makes another
stab at compliance.’ ” (In re Christina L. (1992) 3 Cal.App.4th
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404, 414-415, italics added; see also Los Angeles County Dept. of
Children Etc. Services v. Superior Court (1997) 60 Cal.App.4th
1088, 1092-1093 [a parent “may not refuse to participate in
reunification treatment programs until the final reunification
review hearing has been set and then demand an extension of the
reunification period”].)
Mother had not shown a consistent or long-term
commitment to rehabilitation. (Earl L. v. Superior Court (2011)
199 Cal.App.4th 1490, 1505 [continuation of reunification
services is not required where the parent “has made minimal
efforts throughout a case”].) The serious problems that led to the
placement continued. On September 29, 2020, Mother told the
social worker that she was “continuing to use substances,”
including methamphetamine. As recently as December 16, 2020,
Mother told the social worker that she was still using
methamphetamine.
Mother claims DSS did not provide her with adequate
services and assistance from her social worker. She appears to
claim this excuses her failure to comply with case plan
requirements during the reunification services period. But
claims about alleged inadequacy of reunification services should
be raised by the parent with the social worker during the
reunification services period. (Los Angeles County Dept. of
Children Etc. Services v. Superior Court, supra, 60 Cal.App.4th at
p. 1093 [a parent may not “wait silently . . . 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”].)
Moreover, DSS presented evidence from which the juvenile
court could reasonably find Mother’s claims of inadequate
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services are not correct. Services “will be found reasonable”
where the agency identifies “ ‘the problems leading to the loss of
custody,’ ” offers services to remedy the problems, and has made
reasonable efforts to assist the parent. (In re Alvin R. (2003) 108
Cal.App.4th 962, 972.) Here DSS identified the services Mother
needed and attempted to assist her. In December 2020, a DSS
social worker asked Mother why she had not entered “sober living
in July 2020 when it was offered.” Mother responded that “she
was not ready.” Mother was also referred to a parenting
education class in August 2020. The representative from that
program made numerous documented attempts to enroll Mother
in that class, but Mother did not cooperate. DSS provided
Mother with “repeated referrals” for her substance abuse problem
that she did not take advantage of. A DSS social worker advised
Mother that DSS could provide her a monthly bus pass for her
transportation. DSS provided Mother with visitation services
with N.T.
Kuhnle testified she tried to obtain a psychological
evaluation for Mother. She made multiple attempts to contact
Mother and she scheduled an October meeting. But Mother did
not attend that meeting or sign “the release.” In a DSS report
the social worker said DSS provided a referral for Mother to the
county mental health department, but Mother did not participate
in mental health services. In December 2020, DSS sent a letter
to Mother warning her about her failure to participate in
available mental health services. Mother was scheduled for
group mental health meetings for November 15 and 22. But
Mother did not attend those meetings.
After the six-month review period, the juvenile court found
DSS had provided “reasonable services.” After the 12-month
10
review, the court reviewed the DSS reports and the testimony
and found DSS had provided reasonable services for Mother.
Mother has not shown that those findings are not supported by
the record. The DSS reports uniformly reflect that Mother’s “real
problem was not a lack of services available but a lack of
initiative to consistently take advantage of the services that were
offered.” (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758,
763.)
DSS notes that there are other factors that support the
juvenile court’s decision. In its last report DSS said it would not
be safe to return N.T. to Mother as “[N.T.] would be at risk of
exposure to substance abuse and related neglect.” DSS
highlighted several factors to support this determination,
including that 1) Mother does not have stable housing, 2) she is
not regularly engaged in case plan services, 3) she is using drugs,
4) she has failed to “consistently seek substance abuse treatment
despite repeated referrals,” and 5) she has not been “in consistent
contact with [DSS].” DSS noted that Mother did not respond to
the social worker’s many documented attempts to reach Mother
to discuss her case plan compliance issues.
DSS determined that additional reunification services
would not be appropriate. It said after 12 months of services,
Mother has not demonstrated “substantial progress” or a “pattern
of sobriety.” It noted that Mother consistently visits N.T. But
she “has made limited efforts to address and resolve the problems
that led to [N.T.’s] removal from the home.” N.T. needs “a safe,
sober home environment.” N.T.’s current out-of-home placement
is appropriate as he is “settled in the home.”
Mother contends that she had a medical condition that
excused her noncompliance with some case plan drug testing
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requirements. That a parent may have some medical issues does
not “excuse her from the statutory requirement of participating
in a reunification plan, as some capacity to achieve the
reunification goals is presumed.” (Angela S. v. Superior Court,
supra, 36 Cal.App.4th at p. 762.) Moreover, this was a credibility
issue that was decided against Mother by the juvenile court. (In
re L.Y.L., supra, 101 Cal.App.4th at p. 947.) The court could
reasonably find Kuhnle’s testimony refuted the claim that
medical problems prevented Mother from complying with her
case plan requirements.
The juvenile court’s findings show that it rejected the claim
of excusable noncompliance based on the long case history
provided by DSS reports. The court credited the facts in the most
recent DSS report that concluded the noncompliance was due to
Mother’s lack of cooperation with DSS efforts to assist her
rehabilitation and Mother’s lack of progress in complying with
her case plan responsibilities during a 15-month period. The
court weighed the evidence and decided that the facts presented
in DSS reports and Kuhnle’s testimony were accurate. We do not
weigh the evidence or decide issues of witness credibility. (In re
L.Y.L., supra, 101 Cal.App.4th at p. 947.)
Mother alleges new facts since the juvenile court’s order
and claims they show current successful rehabilitation. This may
be commendable, if true, but we cannot consider these claims
because they are not part of the record. (Cal. Rules of Court, rule
8.452 (b)(1) & (3); Glen C. v. Superior Court (2000) 78
Cal.App.4th 570, 583.) These new claims should initially be
presented to the juvenile court. We have reviewed Mother’s
remaining contentions and we conclude she has not shown the
court erred in deciding to terminate reunification services.
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DISPOSITION
The petition for extraordinary writ is denied.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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Charles S. Crandall, Judge
Superior Court County of San Luis Obispo
______________________________
A.C., in pro. per., for Petitioner.
No appearance for Respondent.
Rita L. Neal, County Counsel, Jenna Morton, Deputy
County Counsel, for Real Party in Interest.
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