Shaun G. v. Superior Court CA5

Filed 5/31/13 Shaun G. v. Superior Court CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
SHAUN G. et al.,
Petitioners,
F066918
v.
(Super. Ct. Nos. 516000 & 515998)
THE SUPERIOR COURT OF
STANISLAUS COUNTY,
OPINION
Respondent;
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Real Party in Interest.
THE COURT
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q.
Ameral, Judge.
Nadine Salim for Petitioner, Shaun G.
Alistair Sheaffer for Petitioner, Nicole G.
No appearance for Respondent.
John P. Doering, County Counsel, and Robin Gozzo, Deputy County Counsel, for
Real Party in Interest.
-ooOoo-
 Before Kane, Acting P.J., Franson, J., and Peña, J.
Petitioners Shaun G. and Nicole G. challenge the juvenile court’s orders issued at
a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e))1
terminating their reunification services and setting a section 366.26 hearing as to their
three-year-old son, Elijah, and two-year-old daughter, Hannah. Shaun contends the
juvenile court erred in finding he failed to regularly participate and make substantive
progress in his court-ordered services. Nicole contends the juvenile court erred in finding
she was provided reasonable services.
Shaun and Nicole each filed a petition for extraordinary writ (Cal. Rules of Court,
rule 8.452) asking this court to vacate the juvenile court’s orders terminating their
reunification services and setting a section 366.26 hearing. We deny the petitions.
PROCEDURAL AND FACTUAL SUMMARY
This is the second dependency proceeding involving this family. The first was
initiated in San Diego County in October of 2010 when Shaun’s mother contacted the
Chula Vista Police Department to check on Shaun’s welfare. She said he called her in
distress after finding out that Nicole was “cheating on him.” The responding officer
reported that Shaun put holes in the door and walls of the home with his fist and head.
The officer also noted that there were pills on the kitchen counter within Elijah’s reach.
Shaun told the officer he took care of the children while Nicole worked. He said
he had a brain injury from a car accident when he was 19 years old that impaired his
memory. He admitted using methamphetamine prior to Elijah’s birth but denied
subsequent use.
Nicole, on the other hand, said Shaun used methamphetamine on the weekends
when she was home to care for the children. She said he acted out routinely and
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
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threatened to kill her. Nicole adamantly denied any form of substance abuse. She was
drug tested and tested negative.
The children were taken into protective custody and placed in foster care. The
juvenile court exercised its dependency jurisdiction over them and ordered Shaun to
complete drug treatment and a neuropsychiatric evaluation. The juvenile court also
ordered Nicole to participate in weekly Al-Anon meetings and both of them to submit to
random drug testing.
In December 2010, Shaun was evaluated by Dr. David Fox, a neuropsychologist,
to determine what effect, if any, his car accident had on his cognitive ability. Dr. Fox
opined that Shaun’s cognition was “normal and intact,” however his short-term memory
was mildly impaired. Dr. Fox further stated that despite Shaun’s assertions of sobriety,
Shaun was at risk for substance abuse. Dr. Fox cautioned that it was crucial that Shaun
permanently avoid using alcohol and recreational drugs.
In January 2011, the case was transferred to Stanislaus County where Shaun and
Nicole were living separately. In February 2011, the Stanislaus County juvenile court
(hereafter “the juvenile court”) adopted a reunification plan that required Shaun and
Nicole to complete the services previously ordered as well as domestic violence
counseling.
After 12 months of services, Shaun and Nicole made sufficient progress that the
Stanislaus County Community Services Agency (agency) recommended the juvenile
court place the children with them under family maintenance. Notably, Shaun completed
residential and outpatient drug treatment and tested negative for drugs. He and Nicole
completed nearly half of their 52-week domestic violence program and Nicole was
participating in Al-Anon meetings and testing negative for drugs. In addition, Shaun and
Nicole were living together and had been caring for the children on a trial basis since
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August 2011. The agency reported Shaun and Nicole were committed to each other and
there were no concerns about the children’s safety in their custody.
In October 2011, the juvenile court returned Elijah and Hannah to Shaun and
Nicole’s custody under family maintenance. In April 2012, the juvenile court dismissed
its dependency jurisdiction.
In June 2012, Shaun and Nicole’s neighbor found then three-year-old Elijah and
one-year-old Hannah wandering in the street unattended. The neighbor recognized the
children and took them home. Shaun and Nicole were home but appeared to have been
sleeping when they opened the door. They did not know the children were outside. The
neighbor contacted the agency.
Shaun and Nicole told the social worker they did not know the children could get
out of the back yard and would install door alarms. The social worker did not remove the
children but over the following week conferred with other agency staff to determine if
family maintenance services were appropriate for the family. During that week, Shaun
admitted that he used methamphetamine in June 2012. The social worker asked him to
leave the home for a few days until the agency decided how to intervene. He left, spent
one night away and returned. The social worker obtained protective custody warrants
and removed the children. Shaun remained in the home with Nicole.
In July 2012, the agency filed a dependency petition on the children’s behalf,
alleging Shaun relapsed and he and Nicole failed to supervise the children. The juvenile
court ordered the children detained and set the jurisdictional/ dispositional hearing for
July 30, 2012. At Shaun and Nicole’s request, the children were placed with their former
foster mother with whom they developed a close bond.
On July 19, 2012, a reporting party informed the agency of Nicole’s disclosure
that she and Shaun were using methamphetamine. The reporting party was concerned
that the agency was not aware of Nicole’s drug use. On July 25, social worker Nichole
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Cunningham instructed Nicole to drug test. There is no evidence in the record that
Nicole complied.
In August 2012, the juvenile court adjudged the children dependents and ordered
Shaun and Nicole to participate in reunification services. Shaun’s reunification plan
required him to participate in individual counseling, complete a drug and alcohol
assessment, and submit to random drug testing. Nicole’s plan required her to complete a
clinical assessment, participate in individual counseling and Al-Anon meetings, and
submit to random drug testing. The juvenile court set an interim review hearing for
November 2012 and the six-month review hearing for January 2013.
Shaun completed a drug and alcohol assessment and was referred to Nirvana for
outpatient drug treatment. He entered the program but was discharged in early October
2012 because he relapsed. He was re-referred to Nirvana for residential drug treatment
but refused to go.
In its interim review report, the agency stated that Shaun and Nicole were living
together. Nicole told the social worker she blamed herself for Shaun’s relapse. She said
she had friends over occasionally and they drank alcohol. Shaun started drinking with
them and then relapsed. Nicole realized she could no longer drink so she obtained a
sponsor and began attending Alcoholics Anonymous (AA) meetings.
On November 7, 2012, at the interim review hearing, Shaun admitted using
methamphetamine in October 2012. The juvenile court admonished him regarding his
progress and ordered the agency to drug test him.
In late November 2012, Nicole tested positive for barbiturates. She told social
worker Erica Delgadillo she was stressed and unable to sleep because of Shaun’s relapse
and that a neighbor gave her a sleeping pill. Ms. Delgadillo told her not to take the
prescription medication of others and said she would consult with their social worker,
Vanesa Cardenas, as to what to do.
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On December 7, 2012, Shaun told Cardenas he found Nicole with three other
people passed out from using drugs. He and Nicole argued and she left to use drugs. He
also stated one of the males punched him in the face and he had a black eye. About two
hours later, Shaun left Cardenas a message saying that he lied about Nicole out of
retaliation. Later that day, he and Nicole visited the children. Shaun arrived 20 minutes
late with a black eye and Nicole looked “messy.” Nicole tested positive for barbiturates
and disclosed that she drank alcohol two to three times a week. She and Shaun allowed
the children to take all the games apart and throw the pieces all over the room. Three
days later, Nicole arrived 20 minutes late for a visit looking “frazzled.” She allowed the
children to do whatever they wanted.
On December 17, 2012, after Nicole missed several scheduled visits with the
children, Delgadillo asked Nicole to drug test. After much persuasion, she complied.
Nicole missed another visit on December 21. She later called and asked for separate
visits because she was divorcing Shaun.
On January 2, 2013, Cardenas received the results of the drug screen Nicole
submitted on December 17, 2012. The results were positive for methamphetamine.
On January 14, 2013, Nicole met with Cardenas for their monthly meeting. Nicole
admitted using drugs and said she was overwhelmed with separating from Shaun and had
not thought about her services. She said she realized Shaun was emotionally abusive and
she found a man that treated her much better. Cardenas told her to attend meetings
immediately and get back into services.
Shaun’s progress over this same time period was not much better. After refusing
to enter Nirvana, Shaun was admitted to Stanislaus Recovery Center in November 2012,
but discharged after approximately two weeks because of an anger outburst and
noncompliance. Within a week, he was admitted to the Salvation Army residential drug
treatment program. On January 16, 2013, Shaun was discharged from the Salvation
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Army program for having matches and a cigar. He said he did not know that he was not
allowed to have them.
On January 18, 2013, the agency filed its report for the six-month review hearing
in which it recommended the juvenile court terminate Shaun and Nicole’s reunification
services and set a section 366.26 hearing to consider a permanent plan of adoption.
On January 22, 2013, Nicole asked Cardenas for a referral for an alcohol and drug
assessment. The referral was completed on January 25, 2013. On January 30, 2013,
Nicole told the foster mother that Elijah and Hannah were “drug babies.”
On January 31, 2013, Nicole’s attorney requested a contested six-month review
hearing. It was set for March 1, 2013.
On February 4, 2013, Nicole attended her monthly meeting with Cardenas. Nicole
stated that she was attending Narcotics Anonymous and Al-Anon meetings. She said she
had not yet made an appointment for an alcohol and drug assessment but was trying.
Nicole tested in early February and the results were negative.
In March 2013, the agency filed an addendum report updating the juvenile court
on Shaun and Nicole’s compliance. The agency reported Shaun and Nicole were testing
negative for drugs and visiting the children separately. Shaun was participating in an
outpatient drug treatment program and Nicole completed one individual counseling
session.
The agency also filed a neuropsychological evaluation of Shaun conducted by Dr.
Randall Epperson in February 2013. Dr. Epperson opined that Shaun’s short-term
memory deficit by itself would not prevent him from safely parenting his children.
However, Dr. Epperson believed Shaun’s pattern of relapse would continue without some
form of external controls and monitoring.
On March 18, 2013, the juvenile court convened the contested six-month review
hearing. Shaun and Nicole argued the juvenile court should continue their reunification
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services because the agency did not address Nicole’s drug problem and Shaun made
substantial progress in his services plan.
Vanesa Cardenas testified Shaun was doing well in drug treatment and attended
two individual counseling sessions. She said Nicole completed a drug and alcohol
assessment and it was recommended that she attend several interim group sessions and
then complete an intake. She said Nicole completed her intake appointment and was
scheduled to start treatment.
Cardenas testified about Nicole’s positive drug test results and what she did in
response to them. She said the agency knew in November 2012 Nicole was taking
barbiturates without a prescription but did not refer her for an alcohol and drug
assessment because Nicole said it was a “one-time thing.” After Nicole tested positive
for barbiturates on December 7, Cardenas spoke to Nicole about her drug use. Nicole
told her she had a prescription and would provide Cardenas a copy. When by December
17 she had not done so, Cardenas asked her to submit a hair follicle for testing. Cardenas
received the results on January 2, 2013, and they were positive for methamphetamine.
She said she gave Nicole a referral for an alcohol and drug assessment on January 23.
Asked why it took her so long, Cardenas said she “just didn’t get around to it.” She said
Nicole completed her assessment on February 19.
Cardenas further testified Nicole did not disclose having a substance abuse
problem and did not appear to be under the influence of any substances.
Shaun testified that he had been clean and sober since January 10, 2013, filed for
divorce on January 27 because Nicole was living with another man, and started day
treatment at Stanislaus Recovery Center on January 30. He was scheduled to complete
the program on March 30. He also testified he had a sponsor with whom he had been
working for two months and was on step 4 of the 12-step program. He also said he
attended four to five AA meetings a week.
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Shaun also testified the juvenile court should extend his services because his
prospects for sustained recovery were better than before. He realized his relationship
with Nicole was unhealthy and he resolved to surround himself with people that
supported his recovery. Also, he experienced an internal change unlike his previous
attempts at recovery.
Nicole testified she had never participated in substance abuse treatment or in a
12-step program. She claimed 89 days of sobriety, was attending weekly meetings, and
had a sponsor.
Nicole further testified she never had a prescription for barbiturates. She said she
attended Al-Anon meetings since December 2012 but could not find her paperwork. She
said she started using methamphetamine when she met Shaun eight years before. During
those eight years, she used methamphetamine intermittently and had periods of sobriety
including the prior dependency. She never disclosed her drug use during either
dependency.
At the conclusion of the hearing, the juvenile court terminated Shaun and Nicole’s
reunification services and set a section 366.26 hearing. These petitions ensued.
DISCUSSION
Shaun and Nicole contend the juvenile court erred in terminating their
reunification services. We disagree.
I. Applicable Law
Section 366.21, subdivision (e) governs the procedure for children like Elijah and
Hannah who were under three years of age when they were initially removed from
parental custody and who were not being returned at the six-month review hearing.
According to the statute, the juvenile court may terminate reunification services and
schedule a section 366.26 hearing if it finds by clear and convincing evidence that the
parent failed to regularly participate and make substantive progress in a court-ordered
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treatment plan. (§ 366.21, subd. (e).) If, however, the court finds the parent was not
provided reasonable services or there is a substantial probability that the children could
be returned to parental custody within six months, the court must continue services to the
12-month review hearing. (Ibid.)
Nicole contends the juvenile court erred in finding she was provided reasonable
services and Shaun contends the juvenile court erred in finding he failed to participate
regularly and make substantive progress in his reunification plan.
II. Reasonableness of Services
Nicole contends the juvenile court erred in finding she was provided reasonable
services. Specifically, she contends Cardenas should have identified her substance abuse
problem in October 2012 when she disclosed her alcohol use and referred her for an
alcohol and drug assessment. By waiting until January 2013, Nicole further contends
Cardenas unreasonably delayed in providing her substance abuse treatment. Thus, she
argues, the agency denied her reasonable services.
The purpose of reunification services is to reunite the family. (§ 361.5, subd. (a).)
The process begins with a case plan developed by the agency and composed of
specifically selected services to address the problems that resulted in the parent’s loss of
custody. If approved, the parent is court-ordered to comply with the plan and the agency
is ordered to implement it. Implementation of the plan requires the agency to assist the
parent in utilizing the services. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362
(Ronell A.).) The juvenile court approves the plan at the dispositional hearing and at each
review hearing determines whether the agency’s efforts in implementing it were
reasonable. (§§ 361.5, subd. (a), 366.21, subds. (e) & (f), 366.22.)
Sometimes, as happened in this case, a problem arises that did not contribute to the
loss of custody but nevertheless would prevent reunification if not corrected. In such
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cases, the agency still has a duty to help the parent address the problem. (In re
Christopher H. (1996) 50 Cal.App.4th 1001, 1008.)
In assessing the reasonableness of reunification services, the juvenile court
evaluates not only the agency’s efforts to assist the parent in accessing the services but
also the parent’s efforts to avail him or herself of the services. (Ronell A., supra, 44
Cal.App.4th at p. 1365.)
On a challenge to the juvenile court’s reasonable services finding, we view the
evidence in a light most favorable to the agency, indulging in all legitimate and
reasonable inferences to uphold the finding. (In re Misako R. (1991) 2 Cal.App.4th 538,
545.) If substantial evidence supports the juvenile court’s finding, we will not disturb it.
(Ibid.) Moreover, under our review, services need not be perfect to be reasonable.
Rather, the “standard is ... whether they were reasonable under the circumstances.”
(Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) Since Nicole bears the
burden of demonstrating error on appeal (Winograd v. American Broadcasting Co.
(1998) 68 Cal.App.4th 624, 632), she must show that the juvenile court’s reasonable
services finding is not supported by substantial evidence. We conclude she failed to meet
her burden.
Prior to January 2013, there was no demonstrable evidence Nicole required
substance abuse treatment. She denied any form of substance abuse and she had no
documented history of it. In October 2012, Nicole told Cardenas she occasionally drank
alcohol with friends in Shaun’s presence. Her purpose in telling Cardenas was to take
responsibility for undermining his recovery. She did not say she had a problem with
alcohol or ask for help. Instead, she wanted to assure Cardenas that she took steps to
abstain from alcohol use by attending AA meetings and obtaining a sponsor. There was
no reason for Cardenas to believe that Nicole had a substance abuse problem at that time
or when Nicole subsequently tested positive for barbiturates. When Nicole first tested
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positive for barbiturates, she said she was having difficulty sleeping and took a sleeping
pill from her neighbor. She assured Cardenas that it was an isolated occurrence. The
second time she tested positive for the drug, she said she had a prescription. Cardenas
could reasonably conclude that Nicole obtained a prescription of her own.
However, when Cardenas received Nicole’s positive test result for
methamphetamine on January 2, 2013, there was no longer any reason to doubt the need
to refer Nicole for substance abuse services. So, the real question is whether Cardenas
acted unreasonably in delaying approximately three weeks to initiate a referral for a drug
and alcohol assessment. While we might find Cardenas’s explanation that she “didn’t get
to it” indefensible, as did the juvenile court, nevertheless we conclude under the
circumstances her efforts were reasonable.
By arguing that Cardenas was unreasonable for not immediately referring her for
an alcohol and drug assessment, Nicole presumes that the assessment was the only
method for addressing her substance abuse problem. However, she does not prove that to
be the case. For example, she fails to show why attending meetings and participating in
her other services as Cardenas advised her to do on January 14 would not have
sufficiently addressed her substance abuse problem while she waited for her referral.
Further, as we stated above, a parent’s efforts in utilizing services plays a part in the
juvenile court’s determination whether reasonable services were provided. Since Nicole
apparently never attended meetings, she cannot lay full blame on the agency for any
delay in addressing her substance abuse problem.
Finally, even if we credited Nicole’s argument with respect to substance abuse
services, we could not find on this record that the agency’s efforts were unreasonable
overall. Nicole was provided an array of services designed to help her reunify with her
children. Those services were made available to her and she failed to participate in them.
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Consequently, when viewed collectively vis-à-vis an integrated reunification plan,
substantial evidence supports a finding that the agency’s efforts were reasonable.
III. Regular Participation and Substantive Progress
Shaun contends the juvenile court erred in finding he failed to regularly participate
and make substantive progress in his services plan. He acknowledges his drug use as the
primary obstacle to reunification and points to his “unrelenting efforts” to participate in
drug treatment. He claims the juvenile court ignored the progress he made in
“internalizing his sobriety.”
The juvenile court found Shaun made minimal progress and substantial evidence
supports its finding. Though ordered to participate in drug treatment in August 2012,
Shaun did not enter a program until November. By December, he had entered and been
discharged from three drug treatment facilities all the while using drugs. It was not until
January 2013 that he sought recovery in earnest by admitting himself for outpatient drug
treatment. By the six-month review hearing in March, Shaun had approximately 60 days
of sobriety and approximately two weeks to complete his outpatient drug treatment.
Given Shaun’s repeated unsuccessful attempts at rehabilitation, his history and his recent
sobriety, the juvenile court could find he failed to regularly participate and made minimal
rather than substantive progress in his services plan.
To the extent Shaun raises it, substantial evidence also supports the juvenile
court’s finding the children could not be returned to his custody by the 12-month review
hearing. In order to establish a substantial probability of return, the juvenile court must
find the parent achieved all three of the following: (1) regularly visited the child; (2)
made significant progress in resolving the problems that led to the child’s removal from
the home; and (3) demonstrated the capacity and ability to complete the case plan
objectives and provide for the child’s safety, protection, and physical and emotional well-
being. (§ 366.21, subd. (g)(1)(A)-(C).)
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Contrary to Shaun’s assertion, the evidence does not support any of the three
required parts to a finding of substantial probability of return. According to the agency,
he did not regularly visit the children. As we discussed above, he made only minimal
progress in resolving his drug problem. Finally, given his longstanding pattern of
relapse, it is questionable whether he could safely parent the children.
We find no error on this record.
DISPOSITION
The petitions for extraordinary writ are denied. This opinion is final forthwith as
to this court.
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