Opinion
E078641
06-09-2022
K.T. et al., Petitioners, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.
Petitions denied. Law Office of Vincent W. Davis & Associates, Vincent W. Davis for Petitioner K.T. Law Office of Cynthia A. Lugo, Cynthia A. Lugo for Petitioner M.C. No appearance for Respondent. Teresa K.B. Beecham and Prabhath D. Shettigar, Deputy County Counsel for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petitions for extraordinary writ. No. INJ2000088 Susanne S. Cho, Judge.
Petitions denied. Law Office of Vincent W. Davis & Associates, Vincent W. Davis for Petitioner K.T.
Law Office of Cynthia A. Lugo, Cynthia A. Lugo for Petitioner M.C.
No appearance for Respondent.
Teresa K.B. Beecham and Prabhath D. Shettigar, Deputy County Counsel for Real Party in Interest.
OPINION
RAMIREZ, P. J.
M.C. (father) and K.T. (mother) petition for extraordinary relief pursuant to rule 8.452 of the California Rules of Court seeking to set aside the orders of the Riverside County juvenile court made at the 24-month review hearing. Those orders terminated family reunification services as to their two children, and set Welfare and Institutions Code section 366.26 permanent plan selection hearings as to them. Father claims his reunification plan was unreasonable and both parents argue the court's findings that they were provided with reasonable reunification services are not supported by sufficient substantial evidence.
All statutory references herein are to the Welfare and Institutions Code unless otherwise noted.
BACKGROUND
Petitioners are the parents of C.C (born in April 2014) and J.C. (born in June 2017). The children lived with their parents until March 11, 2020, when they were taken into protective custody by real party in interest Riverside County Department of Public Social Services (the Department) on account of their parents' drug abuse and domestic violence. The Department placed the children with their maternal great-grandmother.
At the detention hearing the juvenile court ordered services to be provided for the parents pending the hearing on jurisdiction, including alcohol and drug testing, substance abuse treatment, counseling, and parenting education.
In a post-detention telephonic interview with the social worker on March 30, 2020, father admitted he and mother had heated arguments, but denied they engaged in physical domestic violence and drug use. He denied mother used any drugs other than her prescription medication, and he would not allow her to use illegal drugs. He refused to comply with the Department's request that he submit to a hair follicle drug test and said he would undertake testing on his own and provide the result to the court. There is no indication in the record that he did so.
In her telephonic interview with the social worker on March 26, 2020, mother admitted to disagreements with father but said nothing "extreme" ever took place. She denied using drugs in the last 12 years, and would not submit to a drug test ordered by the Department, but would test through her own physician. Three weeks later, she complied with the Department's request for a hair follicle test. The result was positive for 2754 pg/mg of methamphetamine, well over the GCMS confirmatory test limit of 300.
At the June 2020 combined contested hearing on jurisdiction and disposition, the juvenile court sustained the Department's amended petition alleging the children came within subdivision (b)(1) of section 300 on account of their parents engaging in domestic violence in the children's presence and because of the parents' admitted history of abusing controlled substances, including cocaine. The court adjudged the children dependents of the court and removed them from parental custody. It ordered the Department to provide reunification services to the family and for the parents to participate in the services. It also ordered the parents to submit to hair follicle testing. It required the case plan for mother to include substance abuse treatment because of her positive hair follicle test. If father's hair follicle test was negative, he would not be required to participate in a substance abuse program.
The six-month review (§ 366.21, subd. (e))
By the time the Department prepared its December 2020 report in anticipation of the six-month status review hearing, both parents had completed parenting education courses but had not shown up for the hair follicle tests ordered by the court.
Mother had completed a six-month substance use program offered by Riverside County. During that time she provided only three urinalysis drug tests and missed four. A psychiatrist was treating her depression and anxiety with psychotropic medications and mother regularly attended appointments with that doctor and her therapist. In November, she had started unsupervised visits with the children, including overnights on weekends.
Father was visiting the children regularly, attending counseling, and had started an anger management program in November 2020. He had decided he was not required to participate in substance abuse services because, according to him, he had tested negative for illicit substances.
On December 16, 2020, the date set for the contested status review, the court continued the matter and authorized unsupervised visits for both parents, a special visit for mother and the children, and ordered referrals for co-parenting classes or a Solutions for Families program.
On January 25, 2021, the Department reported mother had been evicted from her subsidized apartment in early January, leaving $6,000 in arrearages. The children were in her care at the time. She did not inform the Department of her predicament but instead took the children to the paternal grandmother's home, where father lived. Early the next morning, father came into the room occupied by mother and C.C. He hit mother twice with an open hand. The worker learned about the developments in the course of a home visit during which mother reported the eviction and when C.C. disclosed she saw "daddy hurting mommy."
At the February 2021 contested status hearing, the court found the Department had made reasonable efforts to provide services, but that father had made only minimal progress. Mother's progress had been adequate but incomplete. The court did not adopt the Department's recommendation to terminate father's services but instead ordered services to be continued for both parents, including a requirement for random drug testing. The Department was authorized to place the children with mother if she had a negative hair follicle test; if father had a negative hair follicle test, the Department could remove the substance abuse component of his case plan.
The 12-month review (§ 366.32, subd. (f))
By the time the contested 12-month status review commenced in May 2021, the parents had not submitted to hair follicle testing. The court issued new orders requiring them to do so and continued the hearing.
When the review went forward in June, the parents still had not complied with the hair follicle testing orders. Mother had not signed releases for the Department to obtain her psychiatric progress reports. Father denied the children ever witnessed any domestic violence between him and mother, and specifically denied the slapping incident C.C. had reported to the Department in January. He had attended nine out of 16 anger management classes between November 2020 and February 2021.
Both parents had downloaded the "Taking Parents" application ordered by the court, but they were not using it. They were instead using "Lasting App" for co-parenting, a program that did not provide direct communication. They also had not participated in conjoint counseling, each saying it was not necessary because they did not contact one another.
The court found the Department had made reasonable efforts to provide reasonable services to the family, and the parents' adequate but incomplete progress was sufficient to support an order to continue services for an additional six months. It ordered the parents to submit to hair follicle tests, with the results to be provided to the court by the next hearing. Upon receipt of a negative follicle test, the Department was authorized to allow the parents overnight and weekend visits with the children as well as to provide family maintenance services.
The 18-month review (§ 366.22)
The parents did not comply with the court's hair follicle testing orders or participate in the random drug testing component of their case plans between the 12 and 18-month review hearings. Nor did they participate in co-parenting classes.
Father attended C.C.'s baseball games and attended one home visit in June, but otherwise had not visited the children in person and had declined the Department's offers for additional visits. He bought a telephone for C.C. (who was by then seven years old), and it appeared he may have been having unsupervised telephone contact with her. Mother was attending unsupervised visits a few times a week.
On September 3, 2021, the court set the 18-month review for a contested hearing on October 22. It ordered the Department, over father's objection, to provide hair follicle test referrals for the parents. It also authorized father to have supervised telephone and virtual video contact with the children and ordered the Department to provide him with immediate access to supervised visits with them. Mother's counsel was instructed to discuss with her client the need for signing releases necessary for obtaining information from mother's mental health services.
By October, mother had signed a release to permit her therapist to speak to the social worker about her therapeutic goals. She did not sign a release permitting release of her psychiatric and medication records, but the Department learned that medication management had not been available to mother for several months because of staffing issues at the facility where she obtained treatment. Father, who had previously not been visiting the children because of conflicts with his work schedule, had started supervised every-other-weekend visits on September 10. Neither parent had complied with the court's hair follicle test order.
The Department recommended continuation of family reunification services because of mother's inability to access medication management through no fault of her own and the difficulty coordinating father's visit schedule with his work demands.
At the hearing, the court found reasonable services had been provided, the parents had been making significant and consistent progress, and ordered an additional period of services. It once again ordered the parents to do hair follicle tests, and made clear that the children would not be placed with a parent with provision of family maintenance services unless and until the parent produced a clean hair follicle test. The court also ordered the parents to attend mediation to develop a parenting plan as well as address custody and visitation. The 24-month review was set for January 3, 2022.
The 24-month review hearing (§ 366.25)
In January, the review was set for a contested hearing at father's request. The court ordered the Department to provide the parents with referrals for hair follicle tests forthwith and to give all counsel copies of its delivered services logs for the reporting period.
By the time the contested hearing went forward in March 2022, the parents had not made much progress. They had not complied with the court's orders for hair follicle and random drug tests. They had not participated in co-parenting services and, although they did appear for their appointment for child custody mediation, father had not completed the required questionnaire on time, so the session was not held. Father did not complete anger management classes.
Father continued to take the position that the children needed to be returned to him and mother because there was no reason for them to have been removed.
Mother had not resumed participation in medication management and other psychiatric services when they became available in October 2021. She reported she was treating her mental health issues holistically (apparently with yoga and essential oils). She was exhibiting problem behaviors, including screaming at the caregiver in the children's presence and telling the children what to say to the social worker. The children's seventeen-year-old half-sibling, who normally lived with her father but stayed with mother during 2021, reported she had explosive arguments with mother almost daily, and mother had destroyed her room on multiple occasions. The half-sibling also reported she found cocaine, methamphetamine, and paraphernalia in the home, and mother did not tend to J.C. and C.C. during unsupervised visits. C.C. reported mother never left her home alone during visits, but mother would sometimes go in a room with her friends for about fifteen minutes and the children were not allowed to go in.
Mother continued to maintain she had done everything she needed to do, the children should never have been removed from their parents, and they needed to be returned to her custody.
At the March 7, 2022 contested hearing, the court found the Department made reasonable efforts to provide family reunification services but, by clear and convincing evidence, the parents did not make sufficient progress to permit the children's safe return to them. It terminated family reunification services and set the matter for a permanent plan selection hearing pursuant to section 366.26. Each of the parents filed a notice of intent to file writ petition.
DISCUSSION
In their petitions, both parents argue the court's finding that reasonable services had been provided is not supported by substantial evidence. Father also argues that his case plan was not properly tailored to fit his needs.
We review the juvenile court's reasonable reunification findings for substantial evidence. (In re T.W.-1 (2017) 9 Cal.App.5th 339, 346.)
The court's reasonable services finding as to mother
Mother argues the court's reasonable services finding as to her was in error because the requirement that she submit to hair follicle testing violated section 3041.5 of the Family Code.
All statutory references in the discussion of mother's arguments are to the Family Code unless otherwise noted.
Section 3041.5 authorizes the court to order tests for alcohol or illegal drugs upon a judicial determination that a person seeking custody of, or visitation with, a child who is the subject of an action is engaging in habitual, frequent use of controlled substances or alcohol, or continual illegal use of controlled substances. The provision also sets forth the manner in which testing is to occur, including a requirement that court ordered drug testing must conform to federal drug testing procedures and standards. The authority to test conferred by the statute does not extend to juvenile dependency cases but is expressly limited to Probate Code guardianship proceedings and to certain family law proceedings listed in section 3021. (§ 3041.5.)
Mother does not acknowledge the limitations on the reach of section 3041.5. To the contrary, she urges us to find the juvenile court's order requiring her to submit to a hair follicle test was illegal, intrusive, and clearly against the Legislature's intent. She posits Deborah M. v. Superior Court (2005) 128 Cal.App.4th 1181 (Deborah M.) provides support for her claim. There, the family court ordered a mother suspected of drug abuse to take a hair follicle test. (Id., at p. 1186.) Division One of this court found that type of test is not permitted by section 3041.5 because the federal standards only allow urine samples to be used for that purpose. (Id., at p. 1187)
Mother urges us to follow Deborah M. She opines that case is "very similar" to this one because both involve using a hair follicle drug test improperly ordered by the court to revolve a custody issue. What mother fails to take into account is the distinction between the two cases that makes the determinative difference: Deborah M. is a family law matter coming within section 3041.5 and this case is not. Section 3041.5 places strict limits on the family court's authority to make orders for drug testing. The juvenile court, on the other hand, has broad powers in dependency cases, including discretion to fashion any reasonable orders it deems necessary to eliminate the conditions that led to the finding the minor comes within Welfare and Institutions Code section 300. (Welf. & Inst. Code § 362, subd. (d); In re Corrine W. (2009) 45 Cal.4th 522, 532; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1220-1221.)
In the course of her argument, mother claims she was denied reasonable services and prevented from reunifying with her children not only because the hair follicle tests insisted upon by the court and the Department were illegal, but also because there is "no evidence, substantial or otherwise" to establish she was provided alternative reasonable methods such as urine drug testing to establish her sobriety. Her claims are not supported by the record. She was offered other forms of drug testing in addition to the hair follicle tests, but she declined to participate in them or did not respond to the Department's messages advising of opportunities for testing.
Moreover, it is clear that mother's repeated decisions not to comply with the court's hair follicle test orders were not informed by the notion they were improper and illegal. After the children were detained and while the hearings on jurisdiction and disposition were pending, the social worker asked if she was willing take a hair follicle drug test. At the time, she said she would get tested by her doctor and provide the result to the court. But, three weeks later she submitted to a hair follicle test ordered by the Department (and was found to have a very high level of methamphetamine in her system).
Thereafter, starting with the disposition hearing and at each review hearing throughout the reunification services period, the court ordered mother to take a hair follicle drug test. She never once objected to the orders. In fact, she appeared to cultivate the impression that she would participate by indicating she was planning to go, by reporting she had tested when she had not, and even by requesting a referral from the social worker when the one she had expired, but then never used it.
Underlying mother's claim that the hair follicle test requirements were improper is the notion the children would have been returned to her at the 24-month review hearing but for the failure to participate in those tests. The record does not support that conclusion. She not only failed to submit to hair follicle tests but also did not show up for random urine and saliva tests. She had stopped going to her psychiatrist and therapist, and was not taking her medication. In addition, she had been having explosive arguments with her eldest child almost every day, destroyed that child's bedroom on multiple occasions, she had been screaming at the caregiver in front of the children, and telling the children what to say to the social worker. The eldest child reported finding cocaine, methamphetamine, and drug paraphernalia in mother's home and C.C. reported mother would go into a room with her friends for long periods and would not allow the children in.
The court's reasonable services finding as to father
Father argues that his reunification plan was not properly tailored to meet his needs because it included substance abuse testing and treatment. He also seeks to challenge the reasonable services findings made at each of the subsequent review hearings on the grounds they were not supported by substantial evidence.
(i) The reunification plan
At the disposition hearing, the court ordered the Department to include a provision in father's reunification plan requiring him to drug test. If the test was dirty, he would be required to enroll in a substance abuse treatment program. If it was clean, a program would not be required. He did not object to the plan or file an appeal to challenge the orders.
Father now argues it was error to include substance abuse treatment and testing in his case plan because he reported his drug use stopped before his children were born and because he and others denied he was using drugs. In an effort to establish that it was not reasonable to include testing and treatment in his case plan, father also claims he submitted clean drug results to the court, thereby negating the need for having a testing component in his plan.
There is no mention of those drug results in the citations to the record for that statement. And, although we have found reports of his claims that he had tested negative, that he had already provided four clean tests from various employers, and that he would test negative if he did test, we have not found any drug test results for him in the record.
Welfare & Institutions Code section 395 authorizes the dispositional order in a dependency proceeding to be appealed in the same manner as any final judgment, and any subsequent order to be appealed as an order after judgment. (§ 395.) Parties who wish to challenge orders made at the hearing on disposition, including the reunification plan ordered, must file a notice of appeal within 60 days after the rendition of the judgment or the making of the order being appealed. (Cal. Rules of Court, rule 8.406(a)(1).) If no appeal is taken within sixty days, the order becomes final and binding and may not be attacked on an appeal from a later order. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018 (Sara M.).)
Here, the court ordered reunification services for father, including the testing and substance abuse program components, in the course of the disposition hearing held on June 23, 2020. Father was present telephonically and the court advised him of his right to appeal. Because the sixtieth day after the orders were made fell on the weekend, father had until Monday, August 24, 2020 to file a notice of appeal to challenge the reunification orders. He did not appeal and the order became final. As a result, he forfeited his right to challenge the reunification plan. (Sara M., supra, 36 Cal.4th at p. 1018.)
(ii) The reasonable services findings
Father also seeks to challenge the reasonable services findings made at the six, 12, 18, and 24-month review hearings on the grounds the Department failed to make reasonable efforts to provide him with visits or communicate with him about his case.
The aforementioned limitations on the time within which an appeal may be taken from a judgment apply as well to post-dispositional orders directly appealable as an order after judgment. (§ 395; Cal. Rules of Court, rule 8.406(a)(1); Sara M., supra, 36 Cal.4th at p. 1018.) Accordingly, father long ago forfeited his right to challenge the findings and orders made at the February 24, 2021 six-month status review, the 12-month review held on June 10, 2021, and the 18-month review held on October 22, 2021. He is, however, entitled to challenge the reasonable services finding made at the 24-month review because it is the subject of the petition for an extraordinary writ now before us.
The record does not support father's claim that the Department did not make reasonable efforts to provide him with visits or communications regarding his case. In her report for the 24-month review hearing, the social worker noted that she or another social worker communicated with father by text or phone several times to discuss case plan progress, concurrent planning and service needs. She arranged for him to have the children every other weekend as well as over the holidays. When she discovered father had been cited for driving without a valid license, she contacted him to be certain he understood he would not be allowed to transport the children to and from visits until he was properly licensed. In addition, the worker encouraged father to comply with the drug testing orders and provided referrals for him to do so.
DISPOSITION
The petitions for extraordinary writs and the requests for stay are denied.
We concur: McKINSTER, J. RAPHAEL, J.