Opinion
F082690
07-20-2021
C.B., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Shaylah Padgett-Weibel for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Super. Ct. Nos. 19CEJ300360-1, 19CEJ300360-2, 19CEJ300360-3, 19CEJ300360-4 Kimberly J. Nystrom-Geist, Judge.
Shaylah Padgett-Weibel for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Real Party in Interest.
OPINION
THE COURT[*]
Petitioner, C.B. (mother), challenges the juvenile court's order following a combined permanency review hearing (Welf. & Inst. Code, §§ 366.21, 366.22, 366.25) wherein the juvenile court set a section 366.26 hearing. Mother contends the juvenile court's failure to provide her with visitation throughout the pendency of the case without adequate review of its finding of detriment deprived her of reasonable services. Finding no error, we deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
STATEMENT OF THE FACTS AND CASE
Referral
On October 24, 2019, a social worker responded to a referral alleging neglect and emotional abuse of the children by Jesus V. (father), who is not a party to this petition. Two of the children reported being physically abused by father, seeing father physically abuse his girlfriend and use drugs in their presence. Two of the children reported last seeing mother some time in 2018, and one of the children also reported having previously seen mother use “crack.” Father was arrested and the children were placed into protective custody.
Mother was contacted. She denied prior domestic violence but admitted father had hit her but not when the children were present. According to mother, father kicked her out of the house two years prior and she had been homeless until December of 2018. Mother said she did not currently have stable housing to be able to accommodate the children.
Mother wanted placement of the children but refused the social worker access to the home where she was residing with an aunt and the aunt's boyfriend. Mother did not have the identifying information needed to perform background checks on the aunt and boyfriend. Mother said her brother could take the children, but she did not have the needed identifying information on him either.
Mother was informed of a scheduled team decision meeting and was asked to drug test before the meeting. Mother refused, stating she had never used drugs.
Mother attended the team meeting, but father did not. Mother claimed father had kept her from the children. Mother cited father's infidelity, not domestic violence, as the issue in their relationship. Mother admitted that she did not currently have housing for the children. She continued to refuse to drug test.
Petition
On October 28, 2019, the Fresno County Department of Social Services (department) filed a section 300 petition, alleging that father placed the children (then ages 14, 12, 10, and four) at risk of harm due to physical abuse of the children, his substance abuse and mental health issues, domestic violence between father and his girlfriend, emotional damage to the children, and that he left the children without support. It was alleged that mother put the children at risk of harm due to her substance abuse history and her refusal to drug test.
First Amended Petition
A first amended petition was filed October 31, 2019, alleging mother also placed the children at risk of harm due to her failure to provide adequate care and supervision when she left the children in father's care and did not maintain regular contact with them. The amended petition further alleged that mother placed the children at risk of emotional harm due to her ongoing drug use. Mother was alleged to be homeless and unable to provide a home for the children.
Detention
The report prepared in anticipation of the detention hearing recommended mother be offered services, including parenting, substance abuse assessment and recommended treatment, random drug testing, domestic violence index assessment and recommended treatment, and a mental health evaluation and recommended treatment.
Mother was present at detention, the children were detained, and mother was ordered reasonable supervised visits at least once a week. A jurisdiction and disposition hearing was set for December 19, 2019.
Jurisdiction/Disposition
The initial jurisdiction/disposition hearing December 19, 2019 was continued to January 21, 2020, and the department was ordered to provide an update regarding visits.
On January 17, 2020, the department submitted an ex parte request to calendar a hearing on the issue of detriment as to mother's visits with the children. The hearing was scheduled for February 25, 2020.
On January 21, 2020, the jurisdiction/disposition hearing commenced. Mother was present and the juvenile court temporarily suspended in person visits between mother and the children. Mother was allowed to contact the children via supervised telephone calls, Facetime, video chats and letter exchanges. A contested hearing was set for March 19, 2020, with a settlement conference on February 25, 2020.
After mother's counsel was relieved due to a conflict, mother was appointed substitute counsel. Following several continuances, the jurisdiction/disposition settlement conference was scheduled for August 4, 2020, and contested jurisdiction/disposition hearing for August 18, 2020. In the interim, mother's substitute counsel was also relieved and other counsel appointed.
Jurisdiction/Disposition Report
The report prepared by the department for the original jurisdiction/disposition hearing was completed on December 17, 2019 but filed for the now scheduled August 4, 2020 hearing. In the report, mother had stated, when interviewed in November of 2019, that father refused to allow her contact with the children for two years, but she refused to state why she left father. She refused to drug test and claimed past prior child welfare referrals had been false.
Addendum Report
The department also filed an addendum report August 4, 2020. The report had been prepared for the hearing calendared for January 21, 2020, in which the department requested a detriment finding regarding mother's supervised visits. The report described visits from November and December 2019, in which mother's behavior at the visits was described as “confrontational.” In one visit, in late November 2019, mother was upset at the social worker for redirecting the children's behavior. The children continued to call each other names and the social worker had to again intervene and tell mother to stop the problematic behavior. This behavior on the part of the children was repeated in a visit on December 5, 2019. Again, mother became confrontational, and the children began to cry.
Late in December 2019, mother's visits were transferred to a youth center for supervision. There, mother became upset when she saw one of her children had stitches and she berated the care provider for not properly caring for the child. Mother and the oldest child both made threatening comments towards the care provider.
The youth center staff informed the social worker that mother was hostile and argumentative during visits and did not follow the visitation rules. The oldest child made derogatory remarks towards his siblings and mother did not redirect him. When the supervisory staff intervened, mother became angry and asked that they not redirect her children. After again being told the visitation rules, mother continued to encourage inappropriate behavior from the children, cursed and used “gang language.” The visit was ended, after which the oldest child became verbally threatening. The event was considered a safety concern and both mother and the oldest child were banned from having visits at the youth center.
The social worker supervised a visit on January 10, 2020, in which the children again called each other names and had to be redirected. Mother stated that that was how the children played and did not think they were doing anything wrong. According to the social worker, the oldest child pulled up his shirt, put his hand in his pants and made sexually provocative comments to the social worker. When the oldest child left the visit, he had a confrontation with a security guard. Mother was upset that the security guard redirected the child and was told to leave. The incident escalated and the oldest child stated he wanted to hit the social worker and the security guard. Law enforcement was called.
The care providers for the children reported that they could no longer have any contact with the oldest child or mother, as they felt threatened by them.
It was at this point that the department requested that visits for mother be suspended, noting she had been warned multiple times and none of the visits had been appropriate. The department described the visits as causing the children to be unstable and could jeopardize their placement.
Jurisdiction/Disposition Hearing
At the jurisdiction/disposition settlement conference held August 4, 2020, mother was not present but was represented by counsel. The juvenile court found the allegations of the petition true and that there would be substantial danger to the children if returned to mother's care. The juvenile court found that mother made minimal progress toward alleviating the causes necessitating placement and the department had made reasonable efforts to prevent removal of the children.
Reunification services as recommended by the department were ordered for both mother and father and a combined six- and 12-month review hearing set for December 24, 2020. The department was granted discretion to progress visits between father and the children to unsupervised. The juvenile court found visits with mother to be detrimental.
Six- and 12-Month Review
The department's report prepared for the six- and 12-month review hearing recommended terminating both mother and father's parental rights. The department had been unable to assess mother's living situation or employment due to mother not providing information to the department. The report stated that mother had not participated in court-ordered services and the social worker had had difficulty contacting her. Mother had not followed up on referrals for services, stating she did not need to participate in services as she was the non-offending parent. She also believed she had not been ordered services as she was not present at the disposition hearing when the services were ordered.
Mother's visits were reviewed, starting with the detriment finding on January 21, 2020. In order to facilitate the allowed supervised electronic communication, mother needed to attend a family team meeting to discuss the visitation guidelines. The meeting was set for February 14, 2020. Mother was notified of the meeting in advance, stated she would come, and, the day of, told the social worker she was 15 to 20 minutes late but on her way. But mother never arrived and did not contact the social worker as to why.
Thereafter, mother periodically called to ask for visits with the children but was advised that a family team meeting needed to be held first to discuss guidelines before visits could be scheduled. Mother finally participated in a family team meeting via telephone on October 9, 2020. It was determined that mother could have video chats with the children as long as she was appropriate during visits.
Mother participated in video chats on November 20 and December 9, 2020. At the time, only one child wished to participate, the others did not. During the video chat, mother did not comply with the visitation rules and had to be told not to discuss the dependency case. She told the child participating in the visitation that her visits had been taken away from her, she questioned the child on details of the care provider's home and on the reasons the child's siblings did not wish to visit with mother.
Mother was again referred to the youth center for visitation, but on December 10, 2020, the referral was closed as mother failed to return telephone calls from the youth center.
The report stated that, between December of 2019 and October of 2020, mother was referred to a parenting program five times. She was informed of start dates four times. As of October 2020, mother was still on the waiting list for the next available parenting class.
Mother did not attend her initial orientation with a substance abuse specialist scheduled for November 6, 2019. While subsequent substance abuse orientation appointments were backlogged due to Covid, mother was informed and twice reminded of a scheduled orientation in October 2020. But mother told the social worker, via text, that the substance abuse orientation would not get her children back or help with visits. Mother was told otherwise by the social worker. Mother did not attend the orientation or a subsequent one that was scheduled for her.
Mother did not register for random drug testing. Despite multiple referrals, she did not complete the domestic violence inventory and did not attend any scheduled assessments. She was referred for a mental health assessment four times between November 2019 and October 2020 but did not schedule an appointment.
Combined Six- and 12-Month Hearing
The six- and 12-month review hearing was held January 5, 2021. At the hearing, mother was present with counsel, who requested that visits be reinstated. The juvenile court denied mother's request, stating that the detriment findings remained appropriate. The department confirmed the continued recommendation that visits be suspended due to the detriment finding and that there were no updates to clear the detriment finding.
Counsel for the children stated that the oldest child, in particular, wished to be able to talk to mother. The juvenile court stated that a section 388 petition could be filed.
The matter was set for contest for a combined six-, 12- and 18-month review hearing to be held April 12, 2021, with a settlement conference on April 5, 2021.
Settlement Conference for Combined Review Hearing
At the settlement conference, mother was present with counsel, who advised the juvenile court that mother objected to termination of services, objected to being ordered to participate in services, and objected to being denied visitation. She asked again that visits be reinstated. Mother spoke to the juvenile court off the record. The juvenile court summarized mother as stating she would have participated in services if she had been provided notice of the services.
The juvenile court chronicled the referrals made on mother's behalf and her lack of participation in services. The juvenile court found that mother had been offered services and had not acted on them. The juvenile court agreed with the department's recommendation to terminate services for mother, but let the matter continue to trial as counsel for father wished to confirm for trial.
Contested Status Review
At the April 12, 2021, combined contested status review, mother submitted on the record with previously noted objections. Following a Marsden motion requested by mother, mother addressed the juvenile court and stated the social worker and supervisor had lied, she had never been advised of meetings or reunification services, she did not think her children should have been removed from her as she was the non-offending parent, and she was willing and able to care for the children. She continued, stating the initial petition allegations were false and based on hearsay. Mother addressed concerns she had with the children's care providers and denied making any threats against them. Mother's counsel again requested visitation be reinstated.
People v. Marsden (1970) 2 Cal.3d 118.
The juvenile court rendered its decision on April 16, 2021, stating that it had taken judicial notice of the entire court file in the matter. The court first noted that jurisdiction was established on August 4, 2020, and time for appeal on that matter had expired. After reviewing the procedural history of the case, the juvenile court addressed the detriment finding on mother's visits, which were suspended January 21, 2020. The juvenile court noted that, while the court had authorized electronic communication between mother and the children, mother's behavior had hampered the social worker's ability to conduct a meeting to facilitate such contact. The court further reiterated the inappropriate behavior by mother during visits in 2019 and early 2020, which led to the requested detriment finding, and stated it was continuing that finding.
The juvenile court found that reasonable services had been provided and that mother had not completed services, failed to show for intake appointments, and failed to register for random drug testing.
The juvenile court found that there was no substantial probability that the children would be returned to a parent's care within 24 months of the date of removal and terminated reunification services. A section 366.26 hearing was set for August 10, 2021.
DISCUSSION
Mother's petition for extraordinary writ, prepared by her trial counsel, states mother was denied visitation with her children prior to disposition and for the entire time reunification services were offered. Mother alleges the juvenile court erred in denying her visitation and in failing to comply with the statutory review of whether services were reasonable until the 18-month review hearing. Mother argues that ordering reunification services but denying her visitation “virtually assured the failure of reunification efforts, ” and the juvenile court's finding that she was provided reasonable services therefore was error and warrants remand for further services. We disagree.
The 18-month review hearing was a combined six- 12- and 18- month review hearing, necessitated primarily by the delays prior to jurisdiction/disposition because two of mother's appointed counsel declared conflicts and mother's third-appointed counsel claimed a conflict on the day of the contested six- and 12-month review hearing.
Except under circumstances not applicable here, reasonable reunification services must be offered when a child is removed. (§ 361.5, subd. (a); Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1501.) Whether the reunification services offered were reasonable and suitable is judged according to the circumstances of the particular case. (Earl L., supra, at p. 1501.) “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.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Visitation is an important part of the reunification process. Section 362.1 provides that, where the juvenile court orders reunification services, it must also provide for visitation between the parent and child. (§ 362.1, subd. (a)(1)(A).) “Visitation shall be as frequent as possible, consistent with the well-being of the child[]” and without jeopardizing the safety of the minor. (§ 362.1, subd. (a)(1)(A)-(B).) However, visitation orders must be evaluated within the context of the case as a whole and the juvenile court may consider all relevant evidence in making its findings. (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1346.)
We review under the substantial evidence standard the juvenile court's finding that reasonable services had been provided or offered. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.) In reviewing the challenged finding, we examine the record in the light most favorable to the juvenile court's order, to determine whether there is substantial evidence from which a reasonable trier of fact could have made the finding under the clear and convincing evidence standard. (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1238.) We construe all reasonable inferences in favor of a finding regarding the adequacy of an agency's reunification plan and the reasonableness of its efforts. (Christopher D. v. Superior Court (2012) 210 Cal.App.4th 60, 70; In re Julie M. (1999) 69 Cal.App.4th 41, 46.) We likewise resolve conflicts in favor of such a finding and do not reweigh the evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
Citing to Serena M. v. Superior Court (Serena M.) (2020) 52 Cal.App.5th 659, mother contends the juvenile court erred in finding she was offered reasonable services because she was denied visitation with the children. However, mother's reliance on Serena M. is misplaced because that case is distinguishable from the present matter. In Serena M., the mother was denied in-person visits throughout the entire 18 months of services because visits were initially found to be detrimental to her 13-year-old daughter. The mother's visits were later approved under therapeutic supervision, however, the social worker did not pursue therapeutic supervised visitation because of the court's detriment finding and the child's unwillingness to visit her mother. (Id. at pp. 663, 676-677.) The mother appealed, and the appellate court found the juvenile court erred in finding the mother was offered reasonable services. (Id. at pp. 677-678.) The court explained, “In this case, mother's only hope for repairing her damaged relationship with [her teenage daughter] and reunifying with her was to work through their issues in a therapeutic setting. However, the juvenile court made that impossible by forbidding in-person contact. While the evidence supports its decision for an initial period, it does not support depriving her of that for an entire 18-month period. We conclude based on the evidence the court's no-contact visitation order was not reasonable sometime around February 2019 and afterward.” (Ibid.)
In this case, mother was initially granted visitation with the children, but visits were found to be detrimental after several visits in November and December 2019 in which mother's behavior was “confrontational” toward the care provider and the visitation monitor. Mother did not adequately or appropriately control the children. Mother was repeatedly told that, if she was not in compliance with the visitation guidelines, visits would be stopped.
Mother's visits were then moved to a youth center for supervision, but during one visit in December 2019 mother berated the care provider and mother and the oldest child both made threatening comments towards the care provider. At a visit the following month in January of 2020, mother was again hostile and argumentative and did not follow the visitation rules. Mother did not redirect her oldest child when he made derogatory remarks towards his siblings. When asked to intervene, mother became angry at the suggestion. Mother continued to encourage inappropriate behavior from the children, would not follow the visitation rules, and cursed and used “gang language.” The visit was ended when the oldest child became verbally threatening. During the visit the oldest child had also made sexually provocative hand gestures and comments to the social worker. When the oldest child left the visit, he became confrontational with the security guard, causing mother to become upset with the security guard. Law enforcement had to be called. Because this behavior was considered a safety concern, both mother and the oldest child were banned from visits at the youth center. It was at this point that the department asked that visits be suspended as detrimental.
In January of 2020, the juvenile court temporarily suspended in person visits, but allowed for supervised telephonic calls, Facetime, video chats and letter exchanges. In order to facilitate these visits, mother needed to attend a team meeting to go over the visitation rules. A team meeting was set for February 14, 2020, mother was informed of the meeting, said she would attend, but never did. She provided the social worker with no reason for missing the meeting. Mother then periodically called to ask for visits but was advised of the need for a team meeting first. Mother did not attend such a meeting until October 9, 2020.
Mother then participated in two video visits, one in November and one in December 2020, but only one child wished to participate, the others declined. During the video chats, mother failed to follow the visitation rules and had to be counseled.
Mother was again referred to the youth center for visitation, but the referral was closed when mother failed to return calls from the youth center.
As noted by the juvenile court during the combined review hearing, visitation remained limited during the reunification period because mother refused to attend or engage in any of the court-ordered services, including drug testing to show her sobriety. Mother did not remain in contact with the department or inquire about the status of her case plan. And she did not engage in the meetings arranged by the department regarding visitation. As stated by the juvenile court, “mother's inability to maintain contact with the Department delayed the scheduling of a child/family team meeting, ” which mother knew was in regard to her visits with the children. When mother did call from time to time to inquire about visits, she was advised each time of the need for such a meeting, but she did not attend one until October of 2020.
Unlike the mother in Serena M., who kept in contact with the department, participated in portions of her case plan in an attempt to have her detriment finding lifted, and showed a sincere interest in reuniting with her daughter, including being open to participating in therapeutic visits or family therapy (see Serena M., supra, 52 Cal.App.5th at pp. 676-678), mother here did nothing to resolve the issues and concerns that led to the no in-person visitation order.
There is abundant evidence supporting the juvenile court's finding that mother was provided reasonable services. As we have recounted, the department offered mother extensive services, all of which she refused to accept. (See In re Christina L. (1992) 3 Cal.App.4th 404, 414-415.) Contrary to mother's assertion that denying her visitation essentially assured her failure to reunify, the record could not be clearer that mother had no intention of completing reunification services. She wanted the children returned to her custody, claiming she did nothing wrong and was angry with the department for removing them. She flatly refused to cooperate with the department and failed to follow through on any of the referrals. Consequently, mother's claim that services were not reasonable because the department did not allow her visitation is disingenuous given evidence that she did not follow visitation guidelines when she was initially allowed visits, did not follow through on setting up electronic visits with the children for the better part of a year, and had no intention in participating in services.
We conclude substantial evidence supports the juvenile court's reasonable services findings and find no error.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).
[*] Before Levy, Acting P.J., Franson, J. and Peña, J.