T.F. v. Superior Court CA4/3

Filed 3/9/21 T.F. v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
T.F.,
Petitioner, G059663
v. (Super. Ct. No. 19DP0901)
THE SUPERIOR COURT OF ORANGE OPINION
COUNTY,
Respondent;
ORANGE COUNTY SOCIAL SERVICES
AGENCY et al.,
Real Parties in Interest.
Original proceedings; petition for a writ of mandate/prohibition to
challenge an order of the Superior Court of Orange County, Antony C. Ufland, Judge.
Petition denied.
Bianca Jimenez for the Petitioner, T.F.
No appearance for Respondent.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre,
Deputy County Counsel, for Real Party in Interest, Orange County Social Services
Agency.
Law Office of Harold LaFlamme and Hannah Gardner for Real Party in
Interest, the Minor.
* * *
T.F. (Mother) petitions for a writ of mandate to overturn the juvenile
court’s orders suspending visits with her child, K.F., and terminating family reunification
services. Mother contends insufficient evidence supports the juvenile court’s 12-month
review finding that she was offered reasonable reunification services. (Welf. & Inst.
Code, § 366.21, subd. (f)(1)(A); all further undesignated statutory references are to the
Welfare and Institutions Code.) Given Mother failed to raise the issue at the disposition
or first reunification period, we conclude she forfeited her contention and in any event it
lacks merit. Mother also contends the court erred when it suspended her visitations with
K.F., but she has not shown the court abused its discretion. Accordingly, we deny
Mother’s writ petition.
I
FACTS AND PROCEDURAL HISTORY
A. The Juvenile Court’s Detention of Mother’s Two Youngest Children, K.F. and J.F.
In May 2019, Mother and her four children moved from Louisiana to
California. Two months later, police officers arrested Mother on allegations she had
“ma[de] threats to harm [] staff at [the] [j]uvenile [h]all” where her second-oldest child,
teenager Ke.F., was being held after Mother reported that Ke.F. had threatened Mother
with a knife.
At the time of Mother’s arrest, she had criminal histories in the states of
Georgia, Louisiana, and Texas, two outstanding arrest warrants in Georgia and Louisiana,
2
and a Georgia court order for her extradition. Mother claimed the order was “‘incorrect
and not accurate.’” Mother acknowledged she may have acted “‘irrationally’” when she
yelled profanities at probation officers, and disclosed she had been taking prescribed
medications for bipolar disorder and schizophrenia.
A social worker from Orange County Social Services Agency (SSA)
accompanied police officers to Mother’s residence. The social worker detected a strong
odor of marijuana, found little food in the home, and concluded the two adults there—
Mother’s boyfriend and Mother’s adult child—were under the influence of marijuana.
Mother’s youngest children, then six year-old K.F. and three-year old J.F., were detained
and sent to Orangewood Children and Family Center (Orangewood).
SSA filed a juvenile dependency petition describing K.F. and J.F. as
children within section 300, subdivisions (b)(1), (failure to protect), and (g), (failure to
provide care after incarceration), alleging they were at risk of harm based on Mother’s
substance abuse and “mental health[,] and/or anger management issues.” Mother denied
the allegations, but the court found them to be true and ordered the children to remain
under SSA’s temporary custody, with Mother granted visitation.
Mother posted a jail bond and met with an assigned SSA social worker.
Mother told the social worker she “want[ed] the children returned to her care as soon as
possible [but felt] the children could benefit from mental health treatment as well as in
home counseling services.” At an earlier interview, Mother acknowledged “‘my family
needs help. We are trying to adjust to moving to California after the death of [Ke.F.]’s
father. We all need counseling and I welcome any help that we can get.’” Mother stated
she would comply with all recommended services.
The juvenile court ordered SSA to evaluate individuals who Mother
believed would take custody of the children, including out-of-state family members SSA
would evaluate under the Interstate Compact for Placement of Children (ICPC). The
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court also ordered SSA to prepare a formal case plan for Mother and provide
reunification services to her.
SSA and Mother stipulated to an initial reunification case plan where she
agreed to “follow the recommendations of [a] treating psychiatrist” for medications and
“participate in individual, conjoint, family, and/or group therapy with a therapist
approved by [SSA,] to address anger management techniques and the allegations in
[SSA’s] petition.” The plan also stipulated Mother would participate in a “12-Step
[substance abuse p]rogram,” submit to random testing, and have monitored visitations
with her children.
In October 2019, about three months after the children had been placed in
Orangewood, Mother submitted to the juvenile court a letter showing she was receiving
treatments and “doing what she need[ed] to do for her [reunification case] plan.” At the
same court proceeding, J.B., a man who Mother had earlier identified as J.F.’s father,
traveled from Louisiana and appeared in court to establish his paternity. Mother
unsuccessfully objected to J.B. visiting J.F.
During this time period, teenager Ke.F. ran away from his foster home in
California and Mother e-mailed SSA that “[Ke.F. wa]s going back to New Orleans.” By
December 2019, Mother had moved back to Louisiana and asked the juvenile court to
release Ke.F. to her care, while simultaneously claiming she did not know where Ke.F.
1
was living. Mother also requested the juvenile court to transfer her case to Louisiana.
2
Both requests were denied.
1
We focus our discussion on children K.F. and J.F. and do not discuss facts about
Ke.F. that are not material to our disposition.
2
The record shows that, although the juvenile court communicated with a Louisiana
court about potentially transferring this case, no formal action for a transfer was initiated
in Louisiana.
4
By January 2020, Mother was incarcerated in a New Orleans jail and J.B.
took custody of J.F., over Mother’s objections. The following month, the juvenile court
ordered SSA to continue custody of K.F., who was placed with a foster parent in
California. The court also ordered SSA to continue its ICPC evaluation of Mother’s aunt
in Texas as a potential placement for K.F. The court approved the case plan agreed to by
SSA and Mother, and scheduled a six-month review hearing.
B. The Juvenile Court’s Six-Month Review Period
Mother was released from a New Orleans jail in March 2020. Before that,
an SSA social worker spoke with Mother’s case manager at the jail and e-mailed “a copy
of [M]other’s [c]ase [p]lan and a comprehensive resource guide [about] resources in
Louisiana.” The SSA social worker also attempted to communicate with a Louisiana
social worker to discuss Mother’s participation in groups while she was incarcerated.
One week later, Mother called the SSA social worker and acknowledged
receiving the list of resources that had been sent to the New Orleans case manager.
When the social worker asked Mother whether she was enrolled in any of the
reunification programs, Mother responded with profanities, ordering the social worker to
“let me know when the case going to be [] transferred [to Louisiana].’”
Over the next three months, the SSA social worker e-mailed Mother asking
for an updated address, advising she “would like to refer [Mother] to resources to help
meet with requirements of [her] court ordered [c]ase [p]lan.” The social worker provided
the names, addresses, and telephone numbers for counseling, psychiatric treatment,
parenting education, and a 12-Step program, in New Orleans. At the end of May, Mother
replied to the SSA social worker with more profanities, writing: “don’t email me [] else []
til you got [] date on [].”
The following month, in June 2020, Mother was notified her aunt had not
qualified to be K.F.’s guardian in Texas, so Mother filed a request in the juvenile court to
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conduct an ICPC evaluation for the aunt’s daughter (Mother’s cousin), living at the same
Texas residence. When the SSA social worker attempted to discuss Mother’s
reunification case plan, Mother responded with more profanities, saying: “‘Don’t ask no
questions about me [], when is the paperwork going to be submitted is all I need to know
[]? We are done [], bye.’”
SSA filed a status report ahead of the juvenile court’s six-month review
hearing. It recommended continuing to offer Mother reunification services, but noted
that, although “[M]other maintained contact with [SSA] . . . , despite multiple requests
from [SSA] and [Mother’s] attorney, [Mother] refused to provide a current address or
[verify] participation in services.” The report added SSA “had difficulty engaging
[Mother] in services as she continuously refuse[d] involvement in programs and []
exhibited a minimal level of participation with her case plan.” The report concluded that
“[d]espite being provided with referrals for services, [Mother] requested [SSA to] not
contact her. . . . The mother has made no progress.”
3
The juvenile court held its six-month status review hearing in July 2020.
The court found Mother’s progress had been minimal and “reasonable services ha[d]
been provided or offered.” Mother, through her counsel, “submit[ted] to [SSA]’s
recommendation, and requested the court to allow Mother to personally participate in the
hearing telephonically, to order “the ICPC [evaluation] for [her cousin] . . . [,] and [to
order] SSA [to] provide [a] progress” update on the evaluation. The court scheduled a
12-month review hearing and ordered “SSA to provide any updates regarding ICPC
assessment of [the cousin] to [the c]ourt and counsel.” The court adopted SSA’s
recommendation to continue offering Mother reunification services and ordered Mother’s
counsel to inform Mother that, per “[s]ection 366.21(e), if the child [could not] be
3
Two weeks before the review hearing, the juvenile court appointed counsel for
D.B., earlier identified as K.F.’s father, and granted his ex parte application to attempt to
establish his paternity.
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returned home by the 12 month permanency hearing, the case [could] be referred to a
[s]ection 366.26 hearing that [could] result in the termination of parental rights and the
adoption of the child.”
C. The Juvenile Court’s 12-Month Review Period
In September 2020, SSA filed a status review report for the court’s 12-
month review hearing. It reported the ICPC evaluation for Mother’s cousin had been
completed and submitted to the state of Texas. On Mother’s reunification case plan
participation, SSA reported that “[d]uring this period of supervision, the mother
continue[d] to not be linked to services . . . [and] . . . continue[d] to refuse to provide any
updated information to [SSA] or her attorney regarding her phone number, address[,] or
participation in services.”
The report contained copies of the social worker’s July and August e-mails
to Mother which provided information on contacting New Orleans service providers.
According to the report, when the social worker attempted to call Mother, it “appear[ed
M]other may have changed her phone number again.” The report concluded SSA did “not
have any information regarding [M]other’s participation in services” and noted that,
“[d]espite attempts to engage [M]other, [she] continue[d] to not cooperate.” The social
worker “question[ed] if [M]other believe[d that if K.F. was] moved to Texas through [an]
ICPC [placement, still pending at that time], [Mother would] no longer be required to
participate in [reunification] services.” SSA recommended continuing to pursue
reunification services for Mother.
SSA changed its recommendation in an addendum report after the ICPC for
Mother’s cousin was denied and the cousin reported to SSA she no longer wished to be
considered for K.F.’s placement “based on [M]other’s behavior.” At the same time,
Mother engaged in threatening communications to both SSA’s social worker and K.F.’s
foster mother. For example, among 15 telephone calls she received from Mother in a
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single day, the SSA social worker reported “receiv[ing] a phone call from [M]other who
stated in part she knew where the [social worker] lived and promised to show up.”
Mother sent a video to her counsel and the social worker showing Mother
singing along to a song with derogatory lyrics, including: “I see murder in my eyes.”
Mother claimed she also knew where K.F.’s foster mother lived and would show up
there, causing the foster mother to change her mind on maintaining care for K.F. K.F.
was distraught and cried when told he would be going back to Orangewood. A few days
later, Mother made repeated threatening phone calls to Orangewood staff and SSA
workers, resulting in criminal charges.
SSA reported it no longer “believe[d] additional reunification [services]
time [for Mother] would be in the best interest of [K.F.]” and recommended the juvenile
court terminate services and set a hearing to select a permanent plan for K.F. (§ 366.26.)
Over Mother’s objections, the court granted SSA’s requests to keep K.F.’s future
placements confidential, to prohibit Mother from directly contacting future caregivers,
and to require monitored visitation. The court also scheduled a 12-month review hearing
for November.
D. Suspension of Visitation and Termination of Family Reunification Services
K.F. returned to Orangewood, but in October 2020 SSA placed him in
another foster home. Mother was angry when she learned the family was white and sent
text messages to SSA’s social worker that included profanities and racial slurs,
demanding that K.F. be removed from the family “or I’m in route [sic] for you and
anyone.” Law enforcement was contacted and K.F. was removed from his foster home
again. SSA conducted a Child Family Team meeting where Mother expressed her wish
for K.F. to be returned “‘back with his relatives.’”
After K.F. was placed with another foster parent, K.F. responded during a
telephonic visit with Mother that he was being treated well and liked where he was living.
8
When Mother asked K.F. if his foster family was white, an SSA social worker intervened
and told Mother she could not ask details about K.F.’s placement. Mother became
“irate,” yelled a profanity, and the social worker terminated the call. When the social
worker followed-up with K.F. through a video call, the child appeared “visibly
distraught.” Mother’s many text messages to the social worker included more profanity-
laden threats, such as: “I’m going to show you []” and that the social worker “need[ed] to
[be] left for DEAD [].”
During the same time period, the SSA social worker again sent Mother
information about New Orleans service providers for Mother’s reunification case plan.
Mother’s text message replies included: “STOP SEARCHING FOR ME” and “I dont
[sic] need mental health nor substance abuse never been a drug addict nor have I ever
needed [someone] to refer me for mental health treatment [] nor parenting white racist
[].” Mother also texted a depiction of Los Angeles, claiming she had “[j]ust arrived [a]
few hours ago” and threatened to find the social worker’s spouse. Three days later,
K.F.’s foster parent reported that K.F. stated he no longer wished to visit with Mother.
Ahead of the juvenile court’s 12-month review hearing, SSA reported it had
“not been able to adequately refer [M]other to [c]ourt ordered services as a result of
[Mother’s] non-compliance.” It further reported: “It appears [M]other’s mental health is
unstable and she has not shown any proof of complying with medical or psychological
treatment. [M]other at this time does not have the capacity to provide a safe and
protective environment for [K.F.]”
The following day, the juvenile court ordered “Mother’s visitation
temporarily suspended due to her conduct” and ruled “if [M]other want[ed] to
communicate with [K.F., she could] submit written communication[s] to [SSA’s] social
worker [to forward to the child, if] appropriate.” Six days later, the court conducted its
12-month review hearing, where Mother yelled and made threats over the phone. The
9
court found “reasonable services ha[d] been provided or offered” to Mother, ordered
reunification services terminated, and set a hearing to determine a permanent plan for
K.F., under section 366.26. On visitation, the court added “hopefully, we can get back to
some direct communication between Mother and [K.F.], but that’s going to require some
track record of Mother being able to communicate in ways that are not threatening and
abusive.” The court set a permanent plan hearing and Mother filed this writ petition.
II
DISCUSSION
A. Mother Forfeited Her Contention SSA Provided Inadequate Services
Mother argues SSA provided inadequate reunification services. But as
SSA notes, Mother’s complaints focus on events occurring the six-month review hearing,
but she failed to raise the issue. (§ 366.21, subds. (e)(8) [at six-month review hearing,
juvenile “court shall determine whether reasonable services . . . [were] provided or
offered to the parent or legal guardian”] & (f)(1)(A) [same at 12-month review hearing].)
SSA contends her failure to raise the issue at the six-month review forfeits the issue. We
agree.
Mother cites to her communications with SSA in October 2019, about
locating a parenting course support her argument she tried to participate in reunification
services. But the communications cited occurred nine months before the juvenile court’s
July 2020 six-month review hearing in this case. Similarly, Mother asserts SSA should
have followed up with a Louisiana social worker about classes Mother participated in
while incarcerated in New Orleans. But given Mother was released from that jail in
March 2020—more than four months before the court’s six-month review hearing—the
same conclusion applies: Mother failed to object to the court’s “reasonable services”
finding at its six-month case review. (See Steve J. v. Superior Court (1995)
35 Cal.App.4th 798, 810-811 [unfair to trial court and social services agency to give
10
appellate consideration to a point “which could have been presented to, and may well
have been cured by, the trial court”].) Mother’s failure to object below forfeits the issue
on appeal. (See People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6, quoting United
States v. Olano (1993) 507 U.S. 725, 733 [“forfeiture is the failure to make the timely
assertion of a right”].)
Even if Mother’s contention was not forfeited, the issue lacks merit because
substantial evidence supports the juvenile court’s findings. (Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1011-1012 [for factual findings requiring clear and convincing
evidence, “the question . . . is whether the record as a whole contains substantial evidence
from which a reasonable fact finder could have found it highly probable that the fact was
true”]) SSA offered Mother adequate reunification services as required by § 366.21,
subd. (f)(1)(A); see In re Julie M. (1999) 69 Cal.App.4th 41, 48 [reasonableness of
services depends on the circumstances of the case].)
The record supports the juvenile court’s implicit finding that reasonable
services were offered and Mother chose not to participate in the services offered. (See In
re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220 [“Reunification services are voluntary,
and cannot be forced on an unwilling . . . parent”].) There is no evidence Mother
responded or complied with SSA’s documented attempts to provide her services in 2020.
For example, SSA sent five different referrals for psychiatric treatments and another five
for parenting education after she moved back to Louisiana at the end of 2019. At the
same time, the evidence shows that Mother focused her energy on other issues, such as
completing an ICPC evaluation for Mother’s aunt and cousin in Texas, in an attempt to
have J.F. placed with a relative. Accordingly, Mother’s contention SSA did not provide
reasonable services lacks merit.
Mother’s reliance on T.J. v. Superior Court (2018)21 Cal.App.5th 1229, is
not persuasive. There, a mother was wait-listed in several programs based on a social
11
service agency’s referrals. The appellate court reversed the juvenile court’s finding that
reasonable services had been offered based on “the delays that occurred throughout the
dependency in actually getting [the m]other engaged in the identified services.” (Id. at p.
1242.) T.J. is inapt because the lack of parent participation in this case was not based on
a lack of accessibility to services, but instead based on Mother’s refusal to reciprocate on
the services SSA repeatedly offered. (Compare T.J., supra, 21 Cal.App.5th at p. 1250
[although the mother’s “pugnacious personality made her problematic to deal with, she
did cooperate with services in several important ways”].)
B. Visitation Suspension
Finally, Mother contends her “in person and video visitation should not
have been entirely eliminated” because “[t]he totality of visits [between M]other and the
child were appropriate.” As noted, six days before it conducted its 12-month review
hearing, the juvenile court suspended Mother’s visitation rights and then kept the
suspension intact at the conclusion of the hearing. Specifically, the court ruled that “due
to her conduct[, ¶ u]ntil further order, if [M]other want[ed] to communicate with [K.F.,]
she [could] submit written communication to the social worker [who would forward] it to
the caretaker[,] if [] appropriate.”
We review a challenge to a visitation order for abuse of discretion (In re
Hunter S. (2006) 142 Cal.App.4th 1497, 1498), in a context where the juvenile “‘court is
vested with a wide discretion and its determination will not be disturbed in the absence of
a manifest showing of abuse.’” (In re Sofia M. (2018) 24 Cal.App.5th 1038, 1044.)
The record shows it was entirely reasonable for the juvenile court to
conclude Mother’s visits with K.F. had regressed to a point where they were not
“consistent with well-being of the child” (§ 362.1, subd. (a)(1)(A) [on orders for foster
care placement and reunification services]) and would be “detrimental” to K.F. (§ 366.21,
subd. (h) [on continuing visits pending a permanency hearing].)
12
We reject Mother’s assertion a “physical threat to [K.F.]” was necessary to
justify halting visits. Although Mother correctly cites case law supporting such a narrow
interpretation of statutory authority on visitation (see In re C.C. (2009) 172 Cal.App.4th
1481, 1491-1492 (C.C.) [§ 362.1, subd. (a)(1)(B), requires jeopardy to child’s physical
safety as the only exception to mandatory visitation]), we do not agree with it, given our
conclusion that “the plain language of section 362.1, subdivision (a)[,] only requires
visitation as frequently as the well-being of the child allows.” (In re T.M. (2016)
4 Cal.App.5th 1214, 1219 [disagreeing with C.C.].) Here, Mother’s threats and verbal
abuse caused K.F. emotional distress to the point he no longer wanted to visit with
Mother.
In sum, given that substantial evidence supports the juvenile court’s
implicit factual findings that continuing to allow Mother to visit K.F. would have been
inconsistent with K.F.’s well-being (§ 362.1, subd. (a)(1)(A)) and “detrimental” to the
child (§ 366.21, subd. (h)), Mother has not shown the court abused its discretion in
suspending visits until Mother was able to demonstrate, as the court put it, an ability “to
communicate in ways that [were] not threatening and abusive.” (See People v. Cluff
(2001) 87 Cal.App.4th 991, 998 [“A trial court abuses its discretion when the factual
findings critical to its decision find no support in the evidence”].)
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III
DISPOSITION
We deny Mother’s petition for a writ of mandate to overturn the juvenile
court’s orders suspending visitations, terminating reunification services, and setting a
permanent plan hearing.
ARONSON, ACTING P. J.
WE CONCUR:
THOMPSON, J.
GOETHALS, J.
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