Opinion
A160503
10-02-2020
L.A., Petitioner, v. SUPERIOR COURT FOR THE COUNTY OF CONTRA COSTA, Respondent, CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, ET AL., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J18-00593)
Petitioner L.A. (Mother) seeks writ relief from a juvenile court order terminating reunification services as to her daughter J.M. (Minor) and setting a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26. She contends the juvenile court abused its discretion in denying her request for a continuance of the 24-month review hearing and there was no substantial evidence to support the finding that it would be detrimental to return the Minor to Mother's custody. She also argues that federal law eliminated time limitations for reunification and this court should follow federal law. We deny the petition.
All statutory references are to the Welfare and Institutions Code.
I. FACTS AND PROCEDURAL HISTORY
In June 2018, the Bureau filed a dependency petition pursuant to section 300 alleging, in part, that Mother had engaged in domestic violence with her boyfriend in the presence of the Minor, a child of less than three years old; Mother had a mental health concern that placed the Minor at risk of harm; and Mother had a substance abuse problem.
A. Jurisdiction
The Bureau's detention and jurisdiction report advised that Mother lived in a motel for up to 10 days each month and then in her car when her aid money ran out. She stated that her boyfriend recently punched her in the face when she bought a bottle of water for a friend. The social worker observed her making confusing statements and exhibiting paranoia.
At a jurisdictional hearing in July 2018, the court sustained the allegations relating to domestic violence and Mother's mental health but dismissed the allegation regarding her substance abuse.
B. Disposition
The Bureau's disposition report recommended that the court deny reunification services to Mother based on her failure to reunify with the Minor's half-sibling (K.). The report noted that Mother had six prior child welfare referrals. Of her 10 children, five were adults; her five minor children had been the subject of dependency proceedings and were not returned to her. According to the Bureau, Mother had made no attempt to remedy her homelessness, lack of employment, or mental health issues during the 14 years after she failed to reunify with K. K. told the Bureau that the maternal grandmother protected the children from Mother's erratic behavior, such as leaving the home for days without telling anyone where she was going. K. believed that Mother suffered from substance abuse because she found drug paraphernalia and saw Mother smoking marijuana.
The Bureau again noted that Mother displayed paranoid behavior. The social worker perceived that Mother was struggling with her mental health because she rambled, provided inconsistent information (particularly regarding her employment), fabricated information, and was unable to answer a direction question.
The Love-A-Child shelter, where Mother had recently been staying, reported that she was communicating with the boyfriend with whom she had engaged in domestic violence, and she was given a warning.
In October of 2018, the court ordered the Minor placed out of home and granted reunification services to Mother.
C. Six-Month Review Report
In its April 8, 2019 six-month review report, the Bureau recommended that the court terminate reunification services. Although Mother had completed her case plan, the social worker advised that Mother's "attitude, demeanor and actions do not reflect any changes in her, or her sometimes bizarre behavior," and Mother's chaotic behavior and unstable lifestyle rendered her unable to meet the Minor's needs.
Mother continued to display paranoid behavior, rambled, provided contrary information, and falsely accused people of being out to get her or working for the FBI or working with Hitler. She accused the social worker of getting a bonus for taking her daughter and giving her to enemies. During a conversation, the social worker noticed that Mother appeared to be listening to an unseen person. The social worker described an incident at which Mother failed to follow the rules when leaving a supervised visit with the Minor, arguing loudly and aggressively with the therapist and the social worker so that a guard had to be called to ask her to leave. The next day, when the social worker spoke with her about seeking therapy, Mother yelled "I don't need mental help." After Mother attended an intake appointment at Contra Costa County Behavior Health, the intake staff member informed the social worker that Mother should seek mental health treatment, while Mother told the social worker that she was deemed not eligible for mental health treatment. When the social worker tried to discuss the mental health assessment with her, Mother hung up the phone. The social worker tried to refer Mother to two county therapists, but Mother did not return the social worker's call.
While Mother completed parenting and substance abuse classes, she missed six out of twenty-three drug tests.
Mother remained in contact with the boyfriend with whom she had engaged in domestic violence. In February 2019, while again living at the Love-A-Child shelter, Mother was caught sneaking him into her cottage.
D. Interim Status Report
On June 24, 2019, the Bureau summarized therapeutic records indicating Mother's acknowledgement that she suffered from a variety of symptoms, Mother had poor insight, and she refused a medication evaluation. Mother's therapist advised that Mother attended therapy through Ruby's Place starting in January 2019 and had attended six group sessions and 12 individual sessions, and she received psycho-education on parenting, self-care and domestic violence issues.
E. 12-Month Review Report
In its 12-month status review report of August 5, 2019, the Bureau recommended that the court terminate reunification services and set a section 366.26 hearing.
Despite completing her case plan, Mother continued to display behaviors that caused concern about her emotional and mental stability, including claiming the social worker worked for the FBI, the social worker and Hitler were doing things to her, and the worker received a bonus for turning her daughter over to enemies. She missed a number of drug tests and refused to test for the court. After attending a domestic violence program and receiving her own apartment from the program, she reengaged in a relationship with Father, who reported they had multiple arguments at the apartment to the point she called the police several times. Mother had not disclosed to the social worker that she was again in a relationship with Father and failed to update the social worker about her changed employment. The social worker concluded that while Mother had fulfilled her case plan by "checking the boxes," she displayed a profound lack of understanding about the seriousness of the domestic violence and safety concerns surrounding her continued contact with Father.
F. Contested Six-Month and Twelve-Month Review Hearing
On October 21, 2019, the Bureau provided an update from the newly assigned social worker. Mother had not completed all of her case plan. She had finished a parenting course, but she was not in therapy. She finished a domestic violence program and was living in the apartment provided by the program, but this housing was going to be terminated in a matter of months and Mother had no solid plan to acquire housing thereafter. Moreover, despite the domestic violence program, Mother admitted that she had Father visit her residence on more than one occasion for companionship and sexual encounters, a violation of the case plan goal. Although Father had recently died, Mother failed to understand that her own internal issues leading her to resume the domestic violence relationship did not resolve with his death.
The contested review hearing concluded on October 21, 2019, with an agreement that the court find that reasonable services had been offered up to the six-month review of April 8, 2019, and services were not reasonable from April 8, 2019 to October 21, 2019. The court found by clear and convincing evidence that return of the Minor to Mother's custody would be detrimental, found that extraordinary circumstances existed to continue the case to the 24-month review, and granted Mother an additional six months of reunification services.
G. Interim Status Review
In its January 27, 2020 interim review report, the Bureau stated that Mother tested negative on some drug tests, but failed to appear for six drug tests and tested positive for amphetamine or methamphetamine on December 30, 2019. A three-hour assessment by the Domestic Violence Liaison in December 2019 indicated she had difficulty differentiating between right and wrong by engaging in relationships with people who had criminal, drug, and domestic violence history; when asked about her drug history, she was evasive, defensive, and refused to discuss it. As of November 15, 2019, Mother reported she was unemployed and her housing was unstable.
According to the Bureau, Mother's reluctance to be forthcoming or to acknowledge issues regarding substance use, individual therapy, and domestic violence delayed her ability to benefit fully from services. She received domestic violence education through Ruby's Place and Women's Alliance, but made the poor decision to bring Father to her new apartment. It was recommended that she receive therapy through Kaiser, but she declined. She chose therapy through her domestic violence programs, but she failed to disclose to the therapists that she told Father where she lived and allowed him into her home.
H. 24-Month Review
In its 24-month status review report dated March 30, 2020, the Bureau recommended that the court terminate family reunification services and set a section 366.26 hearing. Since January 2020, Mother drug-tested negative seven times but missed three tests. Due to her positive drug test in December 2019, the social worker convened a Child Family Team meeting at which Mother denied knowing how she tested positive but acknowledged drinking a "witches' brew" that contained a prescription medication. In March 2020, she again tested positive for amphetamine or methamphetamine. Later that month, she claimed the drug testing facility turned her away because she had a cough. With that, she stopped drug-testing altogether. Mother's unwillingness to address her substance abuse issues compromised her mental health treatment, because it would be hard to know if her paranoid thoughts were due to her mental health or her substance use. The Bureau concluded that Mother still had not demonstrated consistency in her ability to parent the Minor.
The matter was set for a contested review hearing on June 15, 2020. At a readiness hearing on June 12, 2020, Mother's counsel requested a continuance of the review hearing because Mother claimed to be ill. The court continued the review hearing to July 13, 2020.
Mother did not appear at the hearing on July 13, 2020. Her attorney orally requested a continuance on her behalf but had no documentation to support the claim that Mother was ill or could not attend the hearing. Finding no good cause for a continuance, and further finding that a continuance would be contrary to the Minor's best interest, the court denied the request and proceeded with the review hearing.
At the conclusion of the review hearing, the court made statutory findings, terminated Mother's reunification services, and set a section 366.26 hearing for October 26, 2020.
Mother filed a notice of intent to file a writ petition. She thereafter filed the petition and request for a stay of the section 366.26 hearing. We issued an order to show cause, to which the Bureau responded.
II. DISCUSSION
A. Denial of Continuance
Mother contends the court abused its discretion in denying Mother's request, through counsel, for a continuance of the 24-month review hearing.
Section 352 allows the juvenile court to continue a dependency hearing for good cause. Requests for continuances are to be made at least two court days before the hearing through written notice with declarations detailing the facts showing the necessity for the continuance, unless the court for good cause entertains an oral motion. (§ 352, subd. (a)(3); Cal. Rules of Court, rule 5.550(a).) Before the court can grant a continuance, it must "give substantial weight to a minor's need for prompt resolution of his or her custody status." (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798.) We review for an abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.)
1. The Record
At the beginning of the 24-month review hearing, Mother's counsel informed the court orally that Mother said she was sick and needed lab tests done because her cough and other symptoms had persisted, the doctor who requested the lab testing was unavailable for two weeks, and Mother thought it unfair for her to come to court feeling sick due to the existing pandemic. Counsel admitted, however, that she had not seen any medical documentation supporting Mother's claim that she did not feel well or indicating that she had been told to stay home.
The Bureau and the Minor's counsel objected to a continuance. The Bureau pointed out that Mother had been complaining about a cough since March 2020—when a doctor informed her it was not due to the coronavirus—and that she failed to go to an appointment she had on July 3 for testing. Counsel for the Minor concurred and opined that postponing the hearing would be a detriment to the Minor.
The court denied the continuance with the following explanation: "I do not find that there is good cause to grant the continuance. I think that the mother has had plenty of time to seek some type of medical attention and get documented information related to what she may or may not be experiencing in the realm of sickness. . . . I [already continued this] three weeks for a live hearing. I have not been presented with any documentation that she's in fact been diagnosed with any illness, and I think that that should have been readily available. And also, if she has been concerned about potentially having been exposed to the coronavirus or COVID-19 and she was ordered to have some tests, the reality is the medical professional would have in fact tested her for this. . . . In addition, during the March 30th time frame when this [review] report was submitted, she was—she had two positive tests for methamphetamine, which could also potentially affect her, what I refer to, as credibility and ability to state things as they actually are. . . . But the reality is at least since the information in the June 15th memo, it does not appear that she has taken any active efforts to truly give some type of further documented information as to what is going on with her. So for those reasons I am finding that there is not good cause to continue the matter and a continuance would actually be contrary to [the Minor's] best interests."
The court had also determined that the hearing was not appropriate for Zoom.
2. Analysis
The court was well within its discretion in denying the continuance. Mother had been claiming she was ill for months. The court had already continued the contested review from June 15, 2020 to July 13, 2020, based on counsel's representation that Mother was ill. Mother had plenty of time to seek medical attention or testing and provide written evidence of any illness or circumstance necessitating her absence from court. She also had plenty of time to present a written motion for a continuance. Mother did neither. Furthermore, as the case had been pending for over two years, it was reasonable for the court to conclude that granting a continuance based on the undocumented hearsay provided by Mother's counsel would have been contrary to the Minor's best interests.
Mother argues that a Contra Costa County Superior Court press release of May 13, 2020, said, "If you are sick don't come to court" and that anyone who was sick or exhibiting COVID-19 symptoms would be denied admission. Therefore, Mother asserts, the denial of her motion to continue the hearing deprived her of her constitutional rights to confront the Bureau's witnesses, assist her counsel, and testify.
The argument is unavailing. In the first place, the argument was not made to the juvenile court at the hearing, and there is no indication that Mother even knew about the press release, much less that it caused her not to show up for the hearing. It is not that Mother was denied entry at the courthouse steps—she just never appeared. Furthermore, the rule prohibiting the admission of sick persons into the courthouse did not relieve Mother of having to file a proper motion for a continuance, supported by evidence demonstrating that a continuance was needed. Nor did Mother or her counsel provide any offer of proof why her presence was necessary, if she intended to testify, or what she would testify to. She fails to establish an abuse of discretion.
B. Detriment If Returned
At the 24-month review, "the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.25, subd. (a)(1).) In determining whether there is a risk of detriment, the court shall consider "the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself of services provided." (§ 366.25, subd. (a)(1).) We review the detriment finding for substantial evidence. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400-1401.)
Mother contends there was no risk of detriment by the time of the 24-month review because she had completed her case plan according to the 12-month status report of August 5, 2019. But mere completion of a case plan is not enough; the court must evaluate Mother's progress and the extent to which she availed herself of services. (§ 366.25, subd. (a)(1).) Indeed, notwithstanding her completion of case plan requirements, Mother had not remedied the circumstances that prompted removal, and by October 2019 the Bureau determined that she had not completed her case plan.
Substantial evidence supported the finding that the Minor's return to Mother would create a substantial risk of detriment to the Minor's safety, protection, and physical and emotional well-being. Despite completing domestic violence classes, Mother continued to maintain contact with two of her abusers, contrary to her case plan. When she moved into a new apartment provided by Ruby's Place, she invited Father to spend time with her there, despite incidents of domestic violence in June and July 2019. She spent time with another boyfriend when she was residing at a shelter in August 2018, leading to her seeking a restraining order when he broke her jaw in October 2018; when she lived at the shelter later in 2019, he visited there again. As of the 24-month review hearing, Mother still had not shown an understanding of how her behavior led her back into the pattern of domestic violence.
Mother also missed several drug tests, tested positive for amphetamine or methamphetamine twice (as late as March 6, 2020) and thereafter stopped submitting to drug testing altogether. Although the substance abuse allegations had not been sustained at the jurisdictional hearing, her failure to address her substance abuse compromised her ability to address her mental health.
Mother completed mental health assessments as required by her case plan, but she refused to disclose her substance abuse issues to her therapist. When she tested positive for drugs, the social worker asked her to complete another mental health assessment; at the next assessment, Mother again denied any substance use; after testing positive again, the social worker requested a third assessment, but Mother failed to follow up; even by the time of the 24-month review hearing, Mother refused to commit to disclosing her positive drug tests at her next assessment.
In addition, Mother fell short in pursuing the mental health treatment that the assessments recommended. The social worker suggested that Mother contact Kaiser for individual therapy, but she declined. Mother pursued therapy from Ruby's Place, but the social worker was concerned with the level of its therapeutic services and Mother stopped going to therapy there too. The social worker told Mother to make a follow-up appointment with San Joaquin Behavioral Health, but she failed to do so.
Mother argues that substantial evidence of compliance with a case plan may be enough to preclude a finding of substantial risk of detriment, citing Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 (Jennifer A.). In Jennifer A., a child was removed because the mother had left the child alone on just one occasion to go to work, when the father had not yet arrived due to mechanical difficulties with his car. The appellate court ruled that completing about 84 out of 95 drug-free tests was sufficient compliance with the case plan, and in any event there was no indication that drug use had caused the mother to leave the child alone. (Id. at p. 1343.) In addition, in that case the mother's therapist had attested that the mother had accepted responsibility for her error and learned proper parenting skills. (Id. at p. 1344.) Jennifer A. bears no resemblance to the case at hand.
Mother argues that mental health issues alone are not a sufficient basis to keep a Minor from her parent, citing In re Joaquin C. (2017) 15 Cal.App.5th 537, 563.) There, the mother had demonstrated her ability to care for her child with adequate food, clothing, shelter, and medical treatment and had a strong family support system. (Ibid.) Not so here. Moreover, in the matter before us there was not merely evidence of Mother's mental health issues, but evidence of Mother's tendency to abide in domestic violence relationships, which can reasonably be seen as posing a substantial risk of detriment to the Minor.
Lastly, Mother argues that In re Jamie M. (1982) 134 Cal.App.3d 530 holds that harm to a child cannot be presumed from the mere fact of a parent's mental illness, but requires expert testimony giving examples of how the parent's behavior will affect the child's safety. But that case is distinguishable. At issue there was whether sufficient evidence supported the initial removal of children from the parents' custody based on evidence that the mother was diagnosed with schizophrenia, where she experienced some delusions that could be controlled by drug therapy, the children were healthy and had not been physically mistreated, and there was no evidence how the illness would adversely affect the children. (Id. at pp. 535-537.) In the matter before us, there was ample evidence of Mother's behavior that would pose a substantial risk of detriment to the Minor.
C. Reunification Time Limits
Mother acknowledges that California law does not allow reunification services after 24 months from the Minor's removal. (§ 361.5, subd. (a)(4)(A).) She claims, however, that the California law is based on outdated federal law, and a new federal law eliminates time limits for reunification services. (Citing 42 U.S.C. § 629a, subd. (a)(7).) Mother contends this is a good case for us to follow the federal law.
The argument is unavailing. Mother did not raise the issue in the juvenile court, so it is waived. Moreover, the California statute remains clear: reunification services, upon the requisite showing, may be ordered only "up to a maximum time period not to exceed 24 months after the date the child was originally removed from physical custody of his or her parent." (§ 361.5, subd. (a)(4)(A).) Mother provides no authority that the federal statute, which is silent on the duration of reunification services in the circumstances of this case, does away with the limit set forth in the California statute. And even if it did, Mother fails to demonstrate that the record in this case would by any stretch of the imagination support the continuance of reunification services beyond 24 months.
Mother fails to establish error.
III. DISPOSITION
The petition is denied. The request for a stay of the hearing under Welfare and Institutions Code section 366.26 is denied. This opinion is final forthwith as to this court. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, Acting P. J. /s/_________
BURNS, J.