Veronica R. v. Super. Ct. CA5

Filed 6/16/14 Veronica R. v. Super. Ct. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
VERONICA R.,
F069122
Petitioner,
(Super. Ct. Nos. MJP017114,
v. MJP017115)
THE SUPERIOR COURT OF MADERA
COUNTY, OPINION
Respondent;
MADERA COUNTY DEPARTMENT OF
SOCIAL SERVICES/CHILD WELFARE
SERVICES,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Thomas L.
Bender, Judge.
Lusine M. Vardanova, for Petitioner.
No appearance for Respondent.
Douglas Nelson, County Counsel, and Miranda P. Neal, Deputy County Counsel,
for Real Party in Interest.
-ooOoo-
* Before Cornell, Acting P.J., Detjen, J., and Franson, J.
Petitioner, Veronica R. (mother), filed an extraordinary writ petition (Cal. Rules of
Court, rule 8.452) regarding her minor children, Joseph D. (Joseph) and Gianna D.
(Gianna). Mother seeks relief from the juvenile court’s orders issued at the six-month
review hearing (Welf. & Inst. Code, § 366.21, subd. (e))1 terminating her family
reunification services (services) and setting a section 366.26 hearing for July 15, 2014.
Specifically, mother contends (1) she was offered neither parenting classes nor the
opportunity to participate in a program of group therapy for trauma victims (trauma
group) being offered at Madera County Behavioral Health Services (BHS), and therefore
the evidence was insufficient to support the court’s finding that she was offered
reasonable services; (2) in denying her request for a continuance of the review hearing,
the court abused its discretion and violated mother’s due process rights; and (3) she was
not provided adequate notice of the six-month review hearing, in violation of her due
process rights. We will deny the petition.
FACTS AND BACKGROUND
Gianna was born on May 15, 2013. The next day, she and mother tested positive
for amphetamines. Mother admitted to a social worker that she had used
methamphetamine throughout her pregnancy, most recently the day before Gianna’s
birth. On May 17, 2013, Gianna and Joseph, age 11, were detained and placed in the
home of a relative. A juvenile dependency petition (§ 300) was filed May 21, 2013,
alleging that Gianna and Joseph came within the jurisdiction of the juvenile court under
section 300.
A detention hearing was held on May 22, 2013, at which the court adopted the
findings and orders recommended by the Madera County Department of Social Services
(department), including orders that both children be detained, with “temporary placement
and care of the child[ren] … vested with the [department],” and the department provide
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2
various services to mother, including substance abuse evaluation and any recommended
treatment, mental health evaluation and any recommended treatment, and parenting
classes.
The petition was sustained at the jurisdiction hearing on June 13, 2013.
On June 28, 2013, the department filed a disposition report, recommending that
Joseph and Gianna be adjudged dependents of the court. Attached to the report was a
proposed case plan, which called for mother to participate in weekly sessions of mental
health counseling addressing “domestic violence, anger issues and substance abuse
issues”; “actively participate in [an] outpatient drug program, and follow all treatment
recommendations”; and comply with the department’s requests for random drug testing
within 24 hours of such requests. The proposed case plan did not mention parenting
classes.
At the disposition hearing on July 23, 2013, the juvenile court declared Gianna
and Joseph dependents of the court; approved, and ordered that mother and the
department comply with, the case plan; and set a six-month review hearing for January
21, 2014.2
A status review report filed by the department on January 16 (January 16 report),
states the following:
Mother enrolled in “alcohol and other drug … treatment” (AOD) in June 2013,
and as of December 6, 2013, she had “overall” good attendance and was “engag[ing]
well” in group therapy. However, mother’s social worker was informed that mother
stopped attending AOD as of December 31, 2013.3 A component of AOD was
2 Except as otherwise indicated, all further references to months and dates of events
are to months and dates in 2014.
3 The report states: “Social Worker Ramos was informed on 1/14/2014, that
[mother] stopped attending AOD treatment, as of 12/13/2014.” (Italics added.) The
reference to December 14, 2014, is obviously a typographical error.
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participation in “self-help meetings, such as AA/NA,” but mother’s AOD counselor
reported mother had participated in “possibly only one or two” such meetings.
Mother had “only drug tested for the [d]epartment two times.” One test was
negative and the other, on December 12, 2013, was positive for marijuana. She was
asked to submit to drug testing on nine other occasions between July 17, 2013, and
December 26, 2013, but in each instance she failed to do so. Mother “reported several
times being ill as the reason for not drug testing.”
Mother’s therapist at BHS reported mother had “been inconsistent in meeting with
her since her case was opened” and only within the previous three weeks, when she
attended two out of three appointments, had she “demonstrated an effort in attending
mental health treatment.”
On “several occasions,” mother’s visits with the children had to be rescheduled.
However, mother’s social worker was unable to coordinate a visitation schedule because
mother had “not responded to [the social worker’s] calls and home visits.”
The report concludes: “[Mother] has not made substantial progress during this
review period. [She] has not been able to successfully complete a substance abuse
treatment program and has not made any progress in mental health treatment.” The
department recommended mother continue to receive services.
The report also stated that at a “review staffing” on December 6, 2013, those
present “felt that [mother] would benefit from the Trauma group” being offered at BHS;
mother’s AOD counselor “indicated she would make the referral”; and “[mother] has
been referred to the Trauma group, which is scheduled to commence on 1/23/2014.”
A “CASE PLAN UPDATE,” which was apparently attached to the January 16
report, added to the case plan a requirement that mother “actively participate and attend
NA/AA meetings twice per week.” The updated plan did not mention trauma group.
4
Mother was in court on January 21, the date set for the review hearing, at which
time the court continued the hearing to February 4, so that notice could be provided to
Gianna’s father.
On February 4, again with mother present, the court granted mother’s request to
set a contested hearing, and continued the matter to February 25.
On February 24, the department filed an addendum report, recommending that
mother’s services be terminated. The report stated that mother had “completely stopped
participating” in services, including substance abuse treatment, mental health treatment
and drug testing as of December 31, 2013; had failed to contact her social worker to
schedule visits with her children; and “[was] not making herself available to meet with
her assigned Social Worker.” The report also stated that mother’s AOD counselor had
informed mother’s social worker that mother “would be discharg[ed] from substance
abuse treatment as of 2/19/2014, for noncompliance with substance abuse treatment,” and
that mother’s mental health therapist indicated she “would be discharging [mother] as of
2/27/2014, for noncompliance with mental health treatment.”
Mother did not appear for the review hearing on February 25. Mother’s counsel
informed the court she had no contact with mother since the previous hearing, three
weeks earlier, and that mother had informed the court clerk she was “stuck in Nevada.”
Because the department had only the previous day changed its recommendation to
terminate services, the court continued the review hearing to March 18.
On March 14, the department filed a second addendum report stating the
following: The department had “made efforts to reach [mother] by phone and in person,
with no success.” Also, the department had received letters from mother’s former mental
health counselor and AOD counselor stating, respectively, that mother had been
“terminated … from mental health treatment for noncompliance” and had been
“discharged … from substance abuse treatment as a result of [mother’s] inability to
follow through with AOD treatment.”
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Mother appeared in court on March 18, at which time her counsel told the court
she (counsel) had made contact with mother just that day and that she was not ready to
proceed, and asked that the hearing be continued. The court denied the request and
proceeded with the hearing. The court received into evidence the department’s January
16 report and the two addendum reports, and mother testified. Thereafter, the court
ordered mother’s services terminated and set a section 366.26 hearing for July 15.
The court adopted the department’s recommended findings and orders. Those
findings included the following: “Reasonable services designed to help the mother
overcome the problems which led to the children’s initial removal and continued out-of-
home care have been provided or offered to the mother.”
DISCUSSION
I. Reasonable Services
Under section 366.21, subdivision (e), where, as here, multiple sibling children are
removed from the parents’ custody at the same time and at least one of those children is
under age three at the time of removal, the juvenile court, at the six-month review
hearing, may terminate reunification services and schedule a section 366.26 hearing only
if the court finds, among other things, that reasonable services have been provided. Here,
as indicated above, mother challenges the court’s finding that the department provided
reasonable services, on the grounds that the department did not offer her parenting classes
or the opportunity to participate in trauma group. This challenge is without merit.4
4 In order to terminate services and set a section 366.26 hearing, the court was also
required to find that “the parent failed to [1] participate regularly and [2] make
substantive progress in a court-ordered treatment plan ….” (§ 366.21, subd. (e), 3d par.)
The court made both of these findings, neither of which mother challenges in the instant
writ proceeding.
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A. Additional Legal Background
A finding that reasonable services were provided, like other findings under section
366.21, is reviewed under the substantial evidence test. (In re Alvin R. (2003) 108
Cal. App. 4th 962, 971 (Alvin R.).) In applying this standard of review, we adhere to the
following principles: “It is the trial court’s role to assess the credibility of the various
witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no
power to judge the effect or value of the evidence, to weigh the evidence, to consider the
credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences
which may be drawn from that evidence. [Citations.] Under the substantial evidence
rule, we must accept the evidence most favorable to the order as true and discard the
unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.
[Citation.]” (In re Casey D. (1999) 70 Cal. App. 4th 38, 52-53.)
“‘In almost all cases it will be true that more services could have been provided
more frequently and that the services provided were imperfect. The standard is not
whether the services provided were the best that might be provided in an ideal world, but
whether the services were reasonable under the circumstances.’ [Citation.]” (In re Julie
M. (1999) 69 Cal. App. 4th 41, 48 (Julie M.).) “Services will be found reasonable if the
[d]epartment has ‘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 ….’ [Citation.]” (Alvin R., supra, 108
Cal.App.4th at pp. 972-973.)
“The adequacy of a reunification plan and of the department’s efforts are judged
according to the circumstances of each case.” (In re Ronell A. (1996) 44 Cal. App. 4th
1352, 1362.) Relevant circumstances include a parent’s willingness to participate in
services. Reunification services are voluntary and the department cannot force an
unwilling parent to participate in the case plan. (Id. at p. 1365.) The department is not
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required to “take the parent by the hand and escort him or her to and through classes or
counseling sessions.” (In re Michael S. (1987) 188 Cal. App. 3d 1448, 1463, fn. 5.)
Therefore, in assessing the reasonableness of reunification services, the juvenile court
evaluates not only the department’s efforts to assist the parent in accessing the services,
but also the parent’s efforts to avail him or herself of those services.
B. Trauma Group
According to the January 16 report, in December 2013, those present at the
department “staffing” were of the opinion that mother “would benefit from,” and that
mother “[had] been referred” to, trauma group. Mother testified at the review hearing
that she had received referrals only to AOD and mental health services, and she asserts,
based on this testimony and the absence of any mention of trauma group in either of the
department’s subsequent addendum reports, that “it appears [she] was never started on
[trauma group].” This establishes, mother argues, that she did not receive reasonable
services. We disagree.
First, under the principles of judicial review summarized above, we must reject
mother’s testimony that she was not referred to trauma group, and credit the evidence to
the contrary set forth in the department’s January 16 report. From the evidence of the
referral and the absence of any further mention of trauma group in the record, we may
infer mother did not follow through on the referral. On this record, given the relevant
circumstances—mother apparently did not avail herself of services that were offered to
her—the absence of evidence that mother participated in trauma group does not establish
that she was not provided reasonable services.
Moreover, even if we assume the department bears the entire responsibility for
mother’s failure to participate in trauma group, mother’s claim fails. It was mother’s
drug use that led to the loss of custody of her children, and to address this problem, the
department offered a multitude of services: drug testing, drug abuse treatment, substance
abuse self-help groups and mental health counseling. If the department was remiss in not
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also making trauma group available to mother, this establishes, at most, that the services
offered were not those that “‘might be provided in an ideal world.’” (Julie M., supra, 69
Cal.App.4th at p. 48.) As demonstrated above, this is not sufficient to establish that
reasonable services were not provided under the circumstances. (Ibid.)
C. Parenting Classes
As indicated earlier, at the detention hearing, the court, following the department’s
recommendation, ordered the department provide parenting classes, but the department
did not include parenting classes in the case plan. Mother asserts, “Although the
department identified the need for a parenting class at the beginning of the case, it failed
to offer such services during the reunification period.” She contends, “This once again
shows [she] did not receive reasonable services ….” However, as we explain below,
mother has forfeited this claim.
Preliminarily, we set forth additional procedural background. At the outset of the
disposition hearing, mother told the court it was her position that her children should be
returned to her immediately. After mother’s testimony, the court stated its tentative
decision was to follow the department’s recommendation, i.e., that the children be
removed from mother’s custody and that mother receive services as set forth in the case
plan. At that point, discussion ensued during which mother’s counsel urged that mother
be granted “additional visits,” but did not raise the issue of the absence of any provision
in the case plan for parenting classes or in any other way challenge the adequacy of the
case plan. The court approved the case plan and ordered that mother and the department
comply with it. At no time did mother appeal the disposition order or move to modify it
(§ 388).
Although phrased in terms as a challenge to the reasonableness of services,
mother’s claim is, in essence, a challenge to the court’s failure to include parenting
classes in the services ordered at the disposition hearing. (See John F. v. Superior Court
(1996) 43 Cal. App. 4th 400, 405.) The disposition order in juvenile dependency matters
9
is an appealable order that is “‘“final and binding.”’” (In re S.B. (2009) 46 Cal. 4th 529,
532.) By failing to appeal, or file a petition to modify, the dispositional order, mother has
forfeited any complaint she may have regarding the plan and may not fault the
department for complying with it. (Julie M., supra, 69 Cal.App.4th at p. 47; John F., at
pp. 404-405.)
Further, appellant’s argument is without merit. The department’s failure to offer
parenting classes may render the services offered imperfect, but it does not establish
those services were not reasonable. (Julie M., supra, 69 Cal.App.4th at p. 48.)
II. Notice of Review Hearing
Mother contends she was not given adequate notice of the March 18 review
hearing and/or of the fact that the department had changed its recommendation to
termination of services, in violation of mother’s right to due process of law. There is no
merit to this contention.
Due process requires that parents be notified of juvenile court proceedings
affecting their interest in the custody of their children by means of “‘notice reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections.’ [Citation.]” (In re
Melinda J. (1991) 234 Cal. App. 3d 1413, 1418.) “A parent’s fundamental right to
adequate notice and the opportunity to be heard in dependency matters involving
potential deprivation of the parental interest [citation] has little, if any, value unless the
parent is advised of the nature of the hearing giving rise to that opportunity, including
what will be decided therein. Only with adequate advisement can one choose to appear
or not, to prepare or not, and to defend or not.” (In re Stacy T. (1997) 52 Cal. App. 4th
1415, 1424.) The burden is on the department “to make every reasonable effort in
attempting to inform parents of all hearings.” (In re DeJohn B. (2000) 84 Cal. App. 4th
100, 102.)
10
At the review hearing, mother told the court that she calls the court “all the time”
because she needs to obtain copies of “reports,” and that she learned of the March 18
hearing when she called that day. However, mother does not suggest what the
department reasonably could have done to provide mother with notice of the hearing and
the changed recommendation. The record shows the following:
The February 24 addendum report states that the decision to recommend
termination of services was made at a staffing on February 18, at which mother was not
present, although she had called the department earlier that day to confirm the date and
time. Although aware of the February 25 hearing, mother did not attend. According to
the March 14 addendum report, the department unsuccessfully attempted to contact
mother by telephone, and on March 10, a social work intern went to mother’s home,
where she discovered there was no one home and on the front window was posted a
notice stating that the occupants of the home had been evicted on February 14. At the
review hearing, mother told the court that “shortly after” the February 4 hearing, she had
moved to a new address, but she admitted she had not informed either her social worker
or her attorney that she had moved.
The foregoing shows that the department scheduled a meeting with mother, which
she did not attend, and thereafter made efforts to locate mother, but that during the time
the department might have notified mother of the hearing and changed recommendation,
mother, by failing to communicate with the department, made it virtually impossible for
the department to find her. The department’s efforts were more than reasonable under
the circumstances. There was no due process violation.
Moreover, any failure to give mother proper notice of the March 18 hearing was
harmless. Failure to give a parent proper notice of hearings in dependency proceedings is
subject to harmless error analysis. (In re A.D. (2011) 196 Cal. App. 4th 1319, 1327
(A.D.).) In A.D., the court found that failure to provide a parent with proper notice of a
12-month permanency hearing (§ 366.21, subd. (f)) was harmless because in the relevant
11
time period the parent “failed to participate meaningfully in [the parent’s] case plan or
maintain contact with the social worker,” and therefore “[t]here [was] no basis on which
the juvenile court could have found more services would have been in [the dependent
child’s] best interests.” (A.D., at p. 1327.) Similarly, in the instant case, given that
mother completely stopped participating in all court ordered services in December 2013,
and that she failed to advise the department of her whereabouts and otherwise maintain
contact with her social worker, there is no reason to believe the court would have
continued services.
III. Request for Continuance
Mother contends the court abused its discretion in denying her request for a
continuance of the review hearing. We disagree.
Continuances in dependency proceedings “shall be granted only on a showing of
good cause.” (§ 352.) “‘[T]ime is of the essence in offering permanent planning for
dependent children.’” (In re Gerald J. (1991) 1 Cal. App. 4th 1180, 1187 (Gerald J.).)
Thus, continuances in dependency cases “should be difficult to obtain.” (Jeff M. v.
Superior Court (1997) 56 Cal. App. 4th 1238, 1242.) Indeed, courts have interpreted
section 352 as embodying “an express discouragement of continuances.” (In re Karla C.
(2003) 113 Cal. App. 4th 166, 179.) “A reviewing court will reverse an order denying a
continuance only upon a showing of an abuse of discretion.” (Gerald J., at p. 1187.) An
abuse of discretion is shown when the trial court has made “‘“an arbitrary, capricious, or
patently absurd determination.”’” (In re Mark V. (1986) 177 Cal. App. 3d 754, 759.)
As indicated above, mother was not present in court on February 25, when the date
of the March 18 hearing was set, and she apparently advised the clerk of the court by
telephone that she was “stuck in Nevada.” No further explanation appears in the record.
As also indicated above, during the key time period when she might have received notice,
she had moved and had advised neither the department nor her attorney. Asked by the
court why she had failed to keep her attorney and the department apprised of her address,
12
mother answered that “it was supposed to be temporary.” Her counsel told the court that
she had “left messages and sent letters” without being able to make contact with mother,
and that after mother “left [counsel] a voicemail asking for an appointment,” counsel
scheduled an appointment, but mother “was stuck in Los Angeles and could not make it.”
Mother’s counsel asked for a continuance on the ground that she had not been able
to confer with her client. The court found there was not good cause to continue the
hearing “in light of what [mother] has done and not maintaining contact.” This finding
was well within the court’s discretion. As demonstrated above, counsel was unable to
communicate with mother because mother made it virtually impossible for counsel to do
so. And, as also demonstrated above, there is no indication a different result would have
been reached if a continuance had been granted. (See Gerald J., supra, 1 Cal.App.4th at
p. 1187.)
Mother asserts that had the court granted a continuance, she would have been able
to subpoena and confront her AOD counselor and mental health therapist regarding (1)
their respective letters, referenced in the two addendum reports admitted into evidence at
the review hearing, stating that AOD and mental health services were being terminated,
as well as (2) other matters relating to mother’s participation, or lack of participation, in
those services. For this reason, mother also argues that as a result of the denial of her
request for a continuance, she was “not afforded a meaningful hearing,” in violation of
her due process rights. (See In re Matthew P. (1999) 71 Cal. App. 4th 841, 851 [“‘A
meaningful hearing requires an opportunity to examine evidence and cross-examine
witnesses’”].) There is no merit to this contention.
Mother’s counsel, in requesting a continuance, made no mention of any inability,
or, indeed, any need, to subpoena any witnesses. Moreover, the February 24 addendum
report notified counsel, if not mother, that the determinations to terminate mother from
both AOD and mental health services had been made. The denial of the continuance at
the review hearing three weeks after the filing of the February 24 report had no bearing
13
on mother’s ability to subpoena the witnesses who could have spoken to these
determinations. Moreover, any impairment of the ability of mother and her counsel to
counter the evidence against mother and to present favorable evidence was caused by
counsel’s inability to confer with mother in the weeks preceding the review hearing was
the direct result of mother’s failure to communicate with her counsel. The court did not
abuse its discretion or deprive mother of a meaningful hearing in denying mother’s
request for a continuance.
DISPOSITION
The petition for extraordinary writ is dismissed. This opinion is immediately final
as to this court.
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