Opinion
A169788
04-30-2024
J. R., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Real Party in Interest.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. J23-00156)
Miller, J.
J. R. (Mother) petitions this court for extraordinary relief from juvenile court orders terminating family reunification services, setting a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for her son R.R. (Minor), and reducing her visits with Minor. Mother contends reunification services should have been extended because she was in compliance with her case plan and because the Contra Costa County Children and Family Services Bureau (Bureau) failed to provide reasonable services. We agree with Mother's second argument and therefore grant the petition. Mother also argues the juvenile court abused its discretion in reducing her visits from weekly to twice a month.
Further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Family Background
Mother had a difficult childhood and was herself the subject of three dependency matters from 1996 to 2014. As an older teenager, she had two children, A.D. and A.J., with different fathers. The Bureau received many referrals regarding A.D. and A.J. from 2017 to 2023, including a substantiated report of general neglect in 2019. In January 2023, the Bureau received a referral regarding A.D. and A.J. Mother did not respond to the social worker's correspondence related to the referral, and the social worker created a safety plan under which the children lived with A.J.'s father.
Mother was in foster care for most of her life. The Bureau reported that Mother had a history of absence without leave (AWOL) while in foster care and, as a teenager, she was involved in criminal activity that resulted in time in juvenile hall and being placed on probation.
Mother gave birth to Minor in February 2023, and the Bureau received a referral on February 28, 2023, reporting that both Mother and Minor tested positive for amphetamine and methamphetamine.
Petition and Jurisdiction
On March 9, 2023, the Bureau filed a petition alleging Minor came within the jurisdiction of the juvenile court under section 300, subdivision (b)(1), on the ground Mother was unable to provide regular care due to her substance abuse, in that Minor and Mother tested positive for methamphetamine at the time of the child's birth, Mother "has a chronic history of methamphetamine use and has been using methamphetamine as frequent as every other day," and Mother "does not have safe or adequate housing as the house at her address has been red tagged."
Minor was detained. At the jurisdictional hearing on April 13, 2023, Mother pleaded no contest to the allegations regarding drug use, and the allegation regarding unsafe housing was dismissed.
Disposition Report and Disposition
On May 18, 2023, the Bureau filed a disposition report, recommending the court adjudge Minor a dependent of the juvenile court and order family reunification services for Mother.
The disposition report described Mother's prior child welfare and criminal histories and noted Mother was currently on probation. Mother reported that she was kidnapped in October 2016 and was the victim of human trafficking. During that time, one of Mother's children lived with her family, and the other child lived with his father. From 2017 through 2020, A.D. and A.J. did not live with Mother. Mother met Minor's father through friends, and he was incarcerated shortly after she became pregnant with Minor.
Mother entered an in-patient treatment program on March 14, 2023. She tested negative for drugs in seven random drug tests taken in April and early May 2023. The Bureau wrote that Mother "understands she needs to participate in counseling to address the past trauma she has experienced that has caused her to use substances and numb the pain and memories from the past."
Mother was provided weekly supervised visits. It was reported that Mother was late to some of her visits, and she "has failed to confirm a couple visits and had them canceled." During visits, Mother appeared "to have a flat affect" and did not show much affection to Minor. She would also leave Minor in his car seat while he slept or she was on her phone. The Bureau wanted "to see [Mother] work on being able to meet her child's basic needs" before beginning overnight visits.
The Bureau was worried about Mother's "history of using substances and her ability to provide a safe and stable living environment as well as meeting all her children's basic needs" as Mother "has been using substances for a very long time," "she did not attend formal schooling because she was a troubled teenager AWOLing and involving herself in criminal lifestyle," and she "had her children at a very young age and allowed for other people to care for them while she continued living a dangerous lifestyle."
Still, the Bureau recognized that Mother "made tremendous progress since the start of the case." The Bureau was concerned about Mother's "ability to comprehend what is being asked of her" and wanted her "to participate in a psychological assessment in order to determine if she struggles with any condition that . . . may require additional treatment," noting, "It will be crucial for her to receive therapeutic services to address the deep seated issues she has with her childhood, her past experience with [children and family services] and her addiction."
On June 1, 2023, the juvenile court adopted a modified version of the Bureau's findings and recommendations. Among other things, the court determined the extent of Mother's progress toward mitigating the causes necessitating placement was "significant."
Six-Month Status Review Report
On November 16, 2023, the Bureau filed a status review report, recommending termination of reunification services for Mother and setting of a section 366.26 hearing.
The Bureau reported that Mother was currently in custody at the West County Detention Facility for violation of probation following her arrest on July 28, 2023, for receiving stolen property and conspiracy. She began her incarceration on August 9, 2023, and was expected to be released in February 2024. While in jail, Mother was attending cognitive behavior self-help groups, mentoring sessions, and case management services for housing assistance and referrals to drug treatment programs (not Bureau-provided services). She reportedly wanted "to continue engaging in services while detained and once she leaves the detention facility."
Before her incarceration, Mother tested negative for drugs eight times in May through mid-June 2023 (without any positive tests or no shows), and then she stopped showing up for testing. In June and July 2023, Mother attempted to enroll in in-patient drug treatment programs, but she did not follow through after the intake process. It was reported that there was "minimal engagement" between Mother and Minor during some of the supervised visits; although she "was showing up for her visits, for the majority of the time, she let [Minor] sleep and did not engage in much play with him."
The Bureau commended Mother for her efforts to participate in services while incarcerated but concluded that she "needs to focus on her sobriety and recovery, and needs to obtain stable housing and employment; all of which takes time." Therefore, it recommended terminating reunification services and continuing foster care for Minor "with a desired goal of permanency of legal guardianship or adoption." The Bureau also recommended supervised visits for 30 minutes once a month.
Update Status Memorandum
A contested six-month review hearing was continued from December 2023 to February 2024 at the request of Minor's counsel. The Bureau filed a memo dated January 29, 2024, to update the court on the status of the matter since the six-month status review report. The Bureau reported that Mother was released from detention on January 23, 2024. While Mother was incarcerated, a social worker visited Mother "every month to give her an update on [Minor] and receive updates on what activities [Mother] has been participating in since serving time inside" the county jail. In December 2023, Mother submitted a request to the jail to allow contact visits with Minor. The memo does not mention any efforts by the Bureau to facilitate visits. A social worker sent Mother pictures of Minor on December 20, 2023, and two times in January 2024.
The day she was released from detention, Mother requested an inperson visit with Minor, and a visit took place the next day. This was Mother's first in-person visit since July 2023. During the visit, Mother held Minor on her lap. Minor had no reaction when he first saw Mother, and at first, Minor would only look for the social worker who was supervising the visit. "There were a few times in the middle of the visit where [Mother] was able to get [Minor] to smile and laugh as they played together with the toys inside the visiting room." Minor showed little reaction when Mother hugged him goodbye.
The Bureau reported that Mother participated in several programs in jail to meet some of the objectives of her case plan. She reported that she was receiving mental health/counseling services; she was enrolled in a workforce readiness class, a computer course, a positive parenting class, and a two-part program covering addiction, motivation, behavior modification, self-esteem, relapse prevention planning, the process of recovery and positive support systems. The Bureau admired Mother's effort but noted "she had plenty of time to participate in these services before she was detained." The Bureau concluded that Minor "is very young and needs a stable home environment to enable him to continue to thrive and his current caregivers provide him with enough stability and support to meet his needs." Therefore, the Bureau continued to recommend termination of reunification services for Mother and the setting of a section 366.26 hearing.
Contested Hearing
The contested six-month review hearing took place on February 2 and 9, 2024, with a social worker and Mother testifying. Mother's counsel asked the court to "extend services to the 12-month mark."
Social Worker
Social worker Garcia, who prepared the six-month status review report and the update memo (but not the disposition report), testified she was assigned to Minor's case in June 2023. Garcia first spoke to Mother by phone in June and met her in person in July 2023. Garcia understood Mother's case plan to require in-patient drug treatment and counseling. In July 2023, Mother told Garcia she was trying to get into a treatment program called Oz. Garcia did not make any referral as Mother was already trying to enroll in the program. Garcia called Oz to check on Mother and was told she had left after intake. Garcia did not recall whether Mother had completed any parenting classes and did not recall asking Mother about parenting class in July 2023.
Garcia's calls to Mother in August did not go through; she later learned that Mother was incarcerated when Mother's mental health provider at the jail contacted her. Garcia first visited Mother at the jail in September 2023 and saw her once a month after that. Garcia did not refer Mother to any programs in jail because "She was already in them." Mother was also attending NA meetings while in custody, which was not a case plan requirement but a voluntary action by Mother. Garcia did not refer Mother to an in-patient program because Mother already had a program identified for when she was to be released from jail.
Garcia started looking into the jail's visitation policy in November 2023, and she discussed visitation with Mother during her December jail visit. Garcia learned that the jail did not allow contact with visitors, and she testified, "The Bureau didn't think it was in the best interest to bring [Minor] in person, in jail, because he would only have 30 minutes, and there was no contact, so there would be no opportunity to bond." Mother "was willing to accept photos," and Garcia set up an account to send Mother photos of Minor. Garcia testified that from August until December 2023, Mother was not sent any photos of Minor. Garcia, who had been a social worker for a year at the time of the contested hearing, had never worked with incarcerated parents and was not aware of any Bureau protocol for visitation for incarcerated parents.
Later in her testimony, Garcia testified that she sent photos for the first time "either [in] September or October" and Mother told her she received the photos, and then Garcia attempted to send photos in December, but those were returned to her in January. In the update memo filed January 29, 2024, however, it was reported that photos were sent on December 20, 2023, with no mention of photos sent earlier than that and no mention that the photos sent in December were returned.
Mother called Garcia the morning she was released from jail. Mother was currently at an in-patient program, and Garcia was in contact with her. Since Mother's release, Garcia had arranged random drug testing, and the results of two tests were negative. Garcia was aware that Mother's in-patient program allowed for supervised visitation, but there had been no visits at Mother's residential program because there was "a challenge in terms of . . . manpower to provide the transportation." As of February 9, 2024, Mother had had three visits with Minor since her release from jail on January 23. Garcia did not observe the second or third visits; she heard from the person who supervised those visits that it took a while, but Minor did eventually warm up to Mother.
Garcia testified that Mother was currently compliant with all components of her case plan. Garcia did not know whether the individual counseling offered at the in-patient program satisfied the individual counseling component of the case plan. Garcia was unable to reach the counselor Mother saw during her five months in jail. Since Mother had been released from jail, Garcia had not given her any referrals for an individual therapist, but Garcia testified that she planned to do that.
Evidence of the many classes Mother had completed in jail did not change Garcia's position that reunification services should be terminated. Garcia did not think there was a substantial likelihood Minor could be returned to Mother by April 13, 2024, the end of the 12-month review period. In addition, Mother had just told Garcia that her two older children (who had lived with the father of one of the children while Mother was incarcerated) were moving in with her at the in-patient program. Garcia opined, "it would be difficult for [Mother] to be taking care of all three children and then doing what she needs to do in the program."
Mother
At the time of her testimony on February 9, 2024, Mother had not used drugs for six months. Mother's drug of choice had been crystal meth, and she had never been clean and sober for this long before. Previously, she entered a residential program in late March 2023 and relapsed in early June. Mother entered another program and was there for a month before she was kicked out and relapsed again. Mother testified she "did not follow the probation rules" and was arrested for the non-drug-related crime of possession of stolen property.
Mother testified she was arrested in July 2023 and spent three days in jail (apparently related to the underlying charges). She was again arrested on August 8, 2023, and taken into custody (for violation of probation).
Mother found parenting classes helpful as she learned "everything that I did not get as a child." She testified, "I learn as I go with my children." In Mother's current residential program, babies are allowed to stay with their mothers. Her room had a crib for Minor and two beds for her older children.
Mother testified her older children had been living "with their dad," but now they were going to live with her. Mother testified that, while she was in jail, her sister had been "messaging [with Mother's] kids' dad and [his] girlfriend," and it was agreed that the children would live with Mother when she entered the in-patient program; otherwise, Mother's children would be taken "by foster care." Mother testified that "they made sure to call the CFS worker before they placed them back with me," suggesting this was a private arrangement between the sister and the father. In any event, social worker Garcia apparently knew nothing about the plan with the older children, who are not part of this dependency matter. The social worker who developed the safety plan for the older children was Stanley, who prepared the detention/jurisdiction report in this case.
Mother took job-related classes while in jail in addition to her parenting and relapse-prevention classes. Mother planned to complete the in-patient program, after which she intended to stay in a sober living environment as part of an out-patient program and find a job. She understood that the in-patient program could help with childcare. And she had verified that her children could live with her in the sober living environment. It was hard for Mother not to have visits with Minor while she was in jail because she knew she was "missing out, and . . . he wouldn't recognize [her]" when she saw him again. Mother made a couple requests for contact visits at the jail, but the facility commander would not allow it.
Regarding individual counseling, Mother "tried to go out of [her] way" to find a counselor she could see every week. Mother testified she saw "two psychiatrists, explained my whole story, and then they would never see me again," but when she was in jail, she was able to see the same therapist every week. In her current in-patient program, she had seen a therapist once and would be able to see her every week.
Mother testified that when she relapsed in July 2023, she felt under pressure and hopeless; she knew she was facing six months in jail. But now she has a better mindset, is happier in her life, and has more faith in herself. Mother wanted the court to "give [her] more time," and she thought she would be able to take care of Minor full-time on April 14, 2024.
Court Ruling
On February 9, 2024, the juvenile court terminated reunification services and set a section 366.26 hearing for June 6, 2024, finding the Bureau "provided clear and convincing evidence that [Mother] has not made significant progress in resolving the problems that brought her here to court."
The juvenile court found the Bureau "offered services designed to assist mother while she was out of custody," and, while she was in jail, "mother, herself, showed everyone that compliance didn't prove necessarily difficult." The court found it was not Mother's fault that she was unable to visit with Minor while she was in custody, "so [Minor's] difficulty in recognizing her at this stage" did not "weigh[] very heavily" in the court's decision. But the court determined Mother's violation of probation in July 2023 precluded her from making significant progress in her case plan. The court explained that "she did not follow the portion of her case plan . . . to comply with all orders of the Court . . . and to avoid arrests and convictions . . . because it then removed her from being able to show the Bureau, and show the Court, that she is capable of doing all of these wonderful things and maintaining her sobriety while she is out of custody, because that is really the test here."
The court commended Mother's efforts while in custody and acknowledged that she "was interacting more" with Minor in her most recent visit. Mother's counsel asked the court "to keep mother's visits at a minimum of one time per week because she did miss a lot of time while she was incarcerated" and she "has shown that she is committed to her sobriety and maintaining a relationship with [Minor]." County counsel asked the court for "one time per month minimum visitation" and that it could be an hour rather than 30 minutes as the Bureau recommended. Minor's counsel asked for "visits one time a month for an hour, as a minimum." The court stated it would "allow for visits twice a month for one hour." However, the minute order for the hearing indicates the court adopted the agency's "findings and recommendations (as modified)," which were attached to the minute order and incorporated by reference. These attached findings and recommendations specify "visitation with mother will be for a minimum of thirty minutes, one time per month and must be supervised."
DISCUSSION
A. Reasonable Reunification Services
At the six-month review hearing, "If the child was under three years of age on the date of the initial removal . . . and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child . . . may be returned to their parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (§ 366.21, subd. (e)(3), italics added.)
Mother contends the court erred in finding the Bureau provided reasonable services. Mother faults the Bureau for its substantial delay in looking into visitation while Mother was incarcerated, its failure to provide visits at Mother's in-patient program due to lack of personnel for transportation, and its failure to refer Mother to counseling.
"To support a finding that reasonable services were offered or provided to the parent, 'the record should show that the supervising agency 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.] Reunification services should be tailored to the particular needs of the family." (In re A.G. (2017) 12 Cal.App.5th 994, 1001, italics added and some original italics deleted.) "It is well established that a social worker must make the effort to provide suitable services, in spite of the difficulties of doing so or the prospects of success." (Christopher D. v. Superior Court (2012) 210 Cal.App.4th 60, 74 (Christopher D.).)
" 'In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.' [Citation.] 'Section 361.5 has been construed, however, to require "[a] good faith effort" to provide reasonable services responding to the unique needs of each family. [Citation.] Moreover section 366.21, subdivision (g)([4]), requires "clear and convincing evidence" that such services have been offered to the parents. Under this burden of proof, "evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind." '" (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472-1473 (Precious J.).)
Courts have long recognized that visitation is an important component of reasonable services for incarcerated parents." '[I]ncarcerated parents . . . suffer obvious obstacles to visitation. Nevertheless the law is clear that reasonable services, most particularly visitation, must be provided.'" (Precious J., supra, 42 Cal.App.4th at p. 1478, italics added; see Christopher D., supra, 210 Cal.App.4th at p. 70 ["Visitation is no less crucial for an incarcerated parent receiving reunification services"].)
In this case, Mother's counsel correctly noted at the contested hearing that the Bureau "has the duty to help mother maintain reasonable contact during the course of her incarceration." In response, county counsel did not attempt to defend the Bureau's efforts at facilitating visitation while Mother was incarcerated; rather, she argued that Mother did not actively participate in her visitations before her incarceration and that her arrests occurred when she was "active in her addiction," so that her own conduct resulted in her incarceration for "over half of her reunification time period." But Mother's "conduct while she was out of custody does not excuse the [Bureau] from doing its job, i.e., from providing reasonable reunification services to an incarcerated parent." (Precious J., supra, 42 Cal.App.4th at p. 1479.) Indeed, given that "reunification efforts could be terminated after six months, the lack of all opportunity for visitation during a significant portion of this time [while the parent is incarcerated] is an error which could infect the outcome of subsequent proceedings." (In re Dylan T. (1998) 65 Cal.App.4th 765, 770.)
While Mother admits she relapsed in June and July 2023, there is no evidence that the violation of probation (which resulted in her incarceration) involved drug-related activity.
Although the juvenile court in this case stated the lack of visits during her incarceration did not weigh heavily against Mother, the court did not expressly address whether the Bureau's attempts to facilitate visitation while Mother was in custody were reasonable under the circumstances. We conclude they were not. By the social worker's own account, Mother had been in custody for three months before the social worker even inquired about the logistics of visitation at the jail, and the social worker did not discuss visitation with Mother until December 2024-Mother's fifth month in jail- when the social worker apparently told Mother that the Bureau already had determined that bringing Minor to the jail for visits would not be in his best interest.
"When reunification services are provided, it is error to deny visitation with the parent to whom the services apply unless there is sufficient evidence that visitation would be detrimental to the child." (Christopher D., supra, 210 Cal.App.4th ap p. 70.) Thus, "visitation between an incarcerated parent and a minor cannot be arbitrarily determined based on factors which do not show by clear and convincing evidence that visitation would be detrimental to the minor." (In re Dylan T., supra, 65 Cal.App.4th at p. 773.) We do not believe the social worker's statement that Minor "would only have 30 minutes, and there was no contact, so there would be no opportunity to bond" provided sufficient evidence of detriment to the child to deny Mother any visitation. The presumption is that incarcerated parents will receive visitation, but the social worker here-who had never worked with incarcerated parents before-was unaware of any Bureau protocol for providing visits for incarcerated parents, let alone parents with infants, and apparently did not inquire about such procedures.
We do not mean to suggest that reasonable services would always require in-person visitation between a baby and a parent in custody in county jail. But it was the Bureau's burden to show visitation would be detrimental to Minor, not simply that the visitation available was not optimal for the promotion of bonding. (Cf. In re Dylan T., supra, 65 Cal.App.4th at p. 775 ["the bare allegation" that minor would suffer detriment by visiting the incarcerated mother was insufficient where there was no evidence that visits would be detrimental; "The court's finding, without substantial evidence of detriment, was error and deprived [the mother] of a meaningful evaluation of the visitation question"].)
On this record, we conclude the social worker's desultory efforts at facilitating visitation while Mother was in jail do not provide substantial evidence of reasonable efforts to provide reunification services.
In opposing Mother's petition, the county does not claim the social worker's conduct with respect to visitation in jail constituted reasonable efforts. Instead, the county argues it was Mother's decision to forfeit her visits. This argument fails. First, a parent does not forfeit visitation by being incarcerated. (See, e.g., Precious J., supra, 42 Cal.App.4th at p. 1478.) Second, there was no opportunity for visits in jail that Mother forfeited. As we have recounted, the social worker testified it was the Bureau's decision not to allow visitation at the jail because 30 minute, no-contact visits would not provide an opportunity to bond.
Mother testified that she understood that visits in jail "would be through glass." Mother was asked, "And so was it your decision, or did you agree with the decision not to have him brought to the jail?" Mother responded, "Um, I had to look into it before I was okay with not having him come because through glass is, like, kinda-it's-I don't know. I would see him, but I would want to be able to hold him. [¶] So I asked the facility commander, and I requested a couple requests, which I gave you the copy, and he didn't allow it. That Mother would have preferred to hold Minor is not evidence that Mother decided she did not want any visits while she was in custody.
Because no substantial evidence supports a finding the Bureau provided reasonable services, section 366.21, subdivision (e)(3), required that the case be continued to the 12-month permanency hearing. Accordingly, the juvenile court erred in terminating services and setting a section 366.26 hearing, and we grant Mother writ relief.
Because we conclude the Bureau failed to provide reasonable services regarding visitation while Mother was in jail, we need not consider her additional claims that the services were inadequate because no visits were arranged at her in-patient program and the social worker never referred Mother to counseling. It is concerning, however, that after many months on the case, the social worker still had not referred Mother to individual counseling even though the Bureau recognized it was "crucial for her to receive therapeutic services to address the deep seated issues she has with her childhood, her past experience with [children and family services] and her addiction." (Italics added.)
B. Visitation
Next, Mother argues the juvenile court abused its discretion in reducing her visitation from two hours weekly to one hour twice a month. This argument is moot because granting Mother writ relief reinstates her reunification services. (See Christopher D., supra, 210 Cal.App.4th at p. 75 ["a grant of writ relief will reinstate all of [the father]'s reunification services"].) We note that even after a section 366.26 hearing is set, "[t]he court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child" (§ 366.21, subd. (h)), and the Bureau's request to reduce visitation in this case did not include an explanation of why such reduction in visits would be in Minor's best interest.
DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue directing the juvenile court to vacate its orders terminating Mother's reunification services, setting a hearing under section 366.26, and reducing visitation. On remand, the juvenile court shall enter a new and different order finding that reasonable reunification services were not provided to Mother and ordering reunification services consistent with this decision. Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.450(a), 8.490(b)(2)(A).)
WE CONCUR
Richman, Acting P.J., Mayfield, J. [*]
[*] Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.