Opinion
A152286
11-07-2017
In re P.M., a Person Coming Under the Juvenile Court Law. Melinda M., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MSJ16-00477)
Melinda M. (Mother) petitions this court for extraordinary relief from dependency court orders terminating reunification services as to her daughter P.M. (Minor) and setting a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26. Mother's sole argument is that the dependency court erred in finding that the Contra Costa County Children and Family Services Bureau (Bureau) provided reasonable reunification services. Because substantial evidence supports the dependency court's finding, we will deny Mother's petition.
Further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
We discussed in some detail the factual and procedural background of this case through the December 2016 disposition hearing in our unpublished opinion affirming the dependency court's jurisdictional and dispositional orders. Here we summarize the pertinent parts of those orders: The dependency court found that Mother had a substance abuse problem that interferes with her ability to provide safe and adequate care for Minor, that Mother abandoned Minor with a caregiver who was unable and unwilling to provide for Minor's long term care, and that Mother resided in another state and had not provided adequate provisions for Minor's care. It its dispositional order, the dependency court ordered the Bureau to arrange supervised visitation between Mother and Minor, who was then 13 years old, and approved a case plan consisting of general counseling, parenting education, and testing and treatment for substance abuse. Visitation was for a minimum of one hour, two times per month when Mother, who resided in Las Vegas, was in the local area. The six-month review hearing was set for June 2, 2017.
In re P.M. (Oct. 18, 2017, A150586) [nonpub. opn.].
In a status review report submitted for the June 2017 hearing, the Bureau recommended terminating family reunification services for Mother. The Bureau reported that during the review period Mother had not responded to letters or monthly phone messages, except that the Bureau received one voicemail from Mother in April 2017. The Bureau reported arranging for substance abuse testing for Mother in Las Vegas, and attempting to mail Mother information about Las Vegas resources for substance abuse treatment, parenting classes and counseling, and that all mail was returned to the Bureau unopened. The Bureau reported that during the review period, Mother did not "engage[ ] in services or with the undersigned social worker. . . . Based on her lack of engagement with the Bureau and no progress on her case plan for the past 11 months, it is clear that [Mother] is not currently able to be a placement option for" Minor. During the review period, Mother had phone contact with Minor about once a week, but did not visit her in person. The Bureau acknowledged that Mother's telephone contact with Minor indicated Mother's desire to have a relationship and maintain a connection with her. The Bureau also reported that Minor consistently expressed that she was not interested in returning to live with Mother and that she prefered to remain with her foster mother if possible.
Mother appeared with her counsel at the June 2, 2017, hearing and requested a contest on the recommendation to terminate reunification services. The contested hearing was set for August 16, 2017.
Before the contested hearing, the Bureau submitted an updated status report to the court. The Bureau reported that outside the courthouse after the June 2017 hearing, Mother told the social worker repeatedly that she had already completed services, referring to a prior case in Los Angeles County, and that it was not Mother's fault that Minor was in the Bureau's care, but rather the fault of the man with whom Mother had left Minor and her sister more than a year before. The social worker explained to Mother that even if she had completed services for a previous case in Los Angeles, those services did not refer to the present case, and encouraged Mother to engage in the current case plan services. During that interaction, Mother provided an updated address to the social worker.
The Bureau reported that on July 6, 2017, the social worker mailed Mother referrals to service providers at the updated address and on June 16 and August 1 the social worker tried unsuccessfully to reach Mother by telephone. The social worker made contact with Mother just once after June 2, by telephone on August 14. During that call, the social worker asked whether Mother had engaged in any services since they last saw each other in June, to which Mother responded that because she felt she had done nothing wrong, she would not engage in any services. Mother further reported that she was volunteering at a Las Vegas homeless shelter and food pantries. The Bureau also reported that since the hearing in June, Mother had continued her telephone contact with Minor, but had changed to a telephone call every other week with regular text message contact on a weekly basis to accommodate Mother's volunteer work schedule.
Mother appeared with her counsel at the contested hearing on August 16, 2017. The Bureau's counsel noted that by virtue of the passage of time, the hearing was effectively a combined six- and 12-month review hearing. The Bureau submitted on its reports, and then social worker Middleton, who prepared the Bureau's report for the June 2, 2017 hearing as well as the updated report for the contested hearing, was called to the stand by Mother's counsel.
Ms. Middleton testified that she had been assigned to the case since late February, 2017. Social worker Johnson was responsible for the case until early February 2017, when social worker Butell took over for a few weeks. The Bureau's records showed that the social workers made numerous attempts to contact Mother by mail and telephone from January 27 through August 14, 2017, most of which were unsuccessful. The Bureau's first recorded attempt to contact Mother to implement her case plan was sending her a letter and information about drug treatment, mental health and parenting services in Las Vegas by certified and by first class mail in January 2017, about six weeks after the disposition hearing. Both packets were returned to the Bureau unopened.
Ms. Middleton testified that she spoke with Mother by telephone on June 1, 2017, met her in person at the hearing the next day, and spoke with her by telephone on August 14, 2017, two days before the contested hearing. Ms. Middleton testified that on June 1, she asked Mother why she hadn't come to visit Minor, and that Mother responded that she was severely depressed, and there were a lot of days she couldn't get out of bed.
Mother did not testify at the hearing, though she interrupted the questioning of the social worker several times and interrupted oral argument twice. Mother voluntarily left the courtroom in the midst of her counsel's closing argument to the court.
After counsel had presented their arguments, the dependency court judge discussed the evidence and found that there was "clear and convincing evidence that reasonable services were offered and provided—well, offered to the mother because she, essentially, did not respond to those attempts, but the [Bureau] spent months trying to provide her with some type of services for the case plan and her default answer was, I don't have to do anything. Obviously she is incorrect about that. And her attitude towards this case has been not conducive to engaging in the services that are required of her. [¶] . . . [¶] . . . I am finding that the [Bureau] has provided or offered reasonable services to the mother, which were designed to aid[] the mother in overcoming the problems which led to the initial removal and continued custody of the child. I'm making that finding by clear and convincing evidence."
The judge continued, "Regarding the issue of visitation, similarly, I am finding that the [Bureau] did make efforts to contact her. The visitation order indicated that visitation was to occur when she was in the area. The [Bureau] made numerous phone calls to her. She did not return them until April 26th of this year. She already told [the Bureau], as was testified to by Ms. Middleton, that she was aware of the visitation but she had been depressed and really wasn't up to visitation. It is pretty clear that the Department was attempting to reach her, she was not receptive to that communication; and when actually asked about the visitation, she then gave reasons why she actually had not availed herself of even attempting to visit, because of her own emotional issues."
The dependency court ordered that reunification services to Mother be terminated and scheduled a hearing pursuant to section 366.26 for November 29, 2017. Mother timely filed a petition for writ of mandate, arguing that the Bureau failed to provide reasonable services because it did not provide services to address Mother's housing issues, because it failed to provide reasonable visitation services, and because it failed to provide services in a timely manner in waiting six weeks after the disposition hearing to send her information about those services.
DISCUSSION
A. Applicable Law and Standard of Review
"Family reunification services play a critical role in dependency proceedings . . . ." (In re A.G. (2017) 12 Cal.App.5th 994, 1000 (A.G.), citing Welf. & Inst. Code, § 361.5, subd. (a).) "At each review hearing, the court is required to determine the 'extent of the agency's compliance with the case plan' in making reasonable efforts to return the child to a safe home." (Id. at pp. 1000-1001, quoting Welf. & Inst. Code § 366, subd. (a)(1)(B).)
"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 relevant service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . .' [Citation.] . . . [¶] '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.' [Citation.] The 'adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged according to the circumstances of each case.' [Citation.] If reasonable services are not provided or offered to the parent, the court is required to continue the case for the period of time permitted by statute. (See Welf. & Inst. Code, § 366.21, subds. (e) & (g)(1).)" (A.G., supra, 12 Cal.App.5th at p. 1001.)
"We review a reasonable services finding to determine if it is supported by substantial evidence. [Citation.] We consider the evidence in the light most favorable to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court's ruling. [Citation.] The burden is on the petitioner to show that the evidence is insufficient to support the juvenile court's findings. [Citation.]" (A.G., supra, 12 Cal.App.5th at p. 1001.) B. Analysis
The record before the dependency court included substantial evidence to support the finding by clear and convincing evidence that the Bureau provided or offered Mother reasonable services designed to aid her in overcoming the problems that led to the removal and continued custody of Minor. Mother left Minor in the care of a family friend in California, and then failed to retrieve Minor when she said she would. (In re P.M. (Oct. 18, 2017, A150586) [nonpub. opn.] at pp. 2-3.) That failure, apparently caused by Mother's drug use, led to Minor being removed from Mother's custody and remaining in foster care. (Id. at pp. 21-22.) Mother's case plan included general counseling, parenting education and substance abuse testing and treatment, which were intended to address Mother's substance abuse. The Bureau provided Mother information about counseling, parenting classes, and substance abuse testing and treatment programs in Las Vegas, where Mother lived. The record shows that the Bureau made numerous attempts to contact Mother from January 2017 through May 2017, but she did not respond except for leaving a voicemail in April 2017 with an updated phone number. Mother was clearly aware of the services offered, but as she stated to the Bureau when a social worker eventually made contact with her in June and August 2017, she chose not to engage in them.
Mother argues in her petition that the Bureau's failure to provide her with housing assistance constitutes a failure to provide reasonable services. She argues that her housing situation in early 2016, when she left Minor in California and failed to retrieve her, was "not conducive to providing adequate care for" Minor, and speculates that if she had been provided housing assistance she might have made use of it. This argument, which her counsel did not raise at the contested review hearing in August 2017, is not persuasive. Although Mother "acknowledged" to a social worker in 2016 that "her current housing is not suitable" for Minor, Mother found new housing after that. Mother never objected to the dependency court about the lack of housing assistance in her case plan, and we ruled in the previous appeal in this case that the dependency court did not abuse its discretion in approving a case plan that did not include housing assistance. (In re P.M. (Oct. 18, 2017, A150586) [nonpub. opn.] pp. 21-22.) The dependency court could properly conclude that the fundamental reason that Mother's family came to the attention of the Bureau was Mother's substance abuse (ibid.), which was addressed in the case plan through testing and treatment services, which the Bureau offered and Mother declined.
Mother argues that it was "manifestly unreasonable" that the Bureau did not make affirmative efforts to set up in person visits for her and Minor, or to provide her with financial assistance in traveling to Contra Costa County. We are not persuaded by Mother's characterization of the record. Visitation was ordered for a minimum of one hour twice a month when mother was in the local area. The record reflects that when Mother attended a court hearing in Contra Costa County in July 2016, she told the social worker that her travel plans prevented her from visiting Minor. Nevertheless, the Bureau arranged for at least one visit with Minor when Mother was in the area for the June 2017 hearing and was prepared to arrange more. The Bureau stood ready to discuss with Mother her visitation options and assistance with travel funds, which is routinely provided to parents. But Mother made only very limited responses to the Bureau's calls and letters, and she never sought to make arrangements for visiting. Mother told a social worker that she did not visit Minor because she was depressed and some days could not get out of bed, yet Mother declined to engage in counseling services, and she was able to volunteer at a homeless shelter and at food pantries. Nor are we persuaded by Mother's citations to cases affirming the importance of visitation in child reunification plans. None of those cases supports Mother's claim that the Bureau failed to provide her with reasonable visitation services in this matter.
Although Mother attended a July 2016 court hearing and the two most recent court hearings in person, Mother claims that "historically the record showed that [she] had trouble making it to Contra Costa." In support of that claim, Mother cites two portions of the record. The first shows only that although Mother brought Minor to Contra Costa County, she told the family friend with whom she left Minor that she would not return to retrieve Minor. The second shows that Mother eventually agreed to come to Contra Costa County to take Minor home, but she called Minor on the day of the scheduled pick-up to say that "she was in Marin [County], but something happened and a friend would have to come pick her up." Mother does not mention that the record also shows that she admitting using methamphetamines that day. In sum, the record suggests that Mother's "trouble" in making it to Contra Costa County could have been addressed by her participating in the substance abuse treatment and counseling, which she declined. --------
Finally, we are not persuaded by Mother's argument that because the Bureau did not send her referrals for the services described in her case plan until six weeks after the disposition hearing, the services provided to her were unreasonable. Mother's argument relies entirely on In re T.W.-1 (2017) 9 Cal.App.5th 339 (T.W.-1), which is distinguishable.
In T.W.-1, the Court of Appeal ruled that no substantial evidence supported the dependency court's finding that reasonable services had been provided to an out-of-state parent. There, the parent's counsel objected at the disposition hearing that the proposed case plan was inadequate, and the court ordered the department to develop a more specific plan. (T.W.-1, supra, 9 Cal.App.5th at pp. 342-343.) The parent's counsel objected to the revised plan, and the dependency court again ordered the department to develop a more specific case plan. (Id. at pp. 343-344.) The second revised case plan was not prepared until three months after the disposition hearing, and even then was deficient in several respects, including in failing to include some services that the dependency court ordered. (Id. at pp. 346-347.) In addition, in T.W.-1, the parent was deprived of visitation during a six-month review period except for a single telephone call with his children, despite his requests for more visits and the case plan's provision for weekly calls. (Id. at p. 347.) The Court of Appeal explained that the delay in preparing a revised case plan might be excused by the parent's out-of-state location if that were the only problem with the services provided, but that in addition the Department failed to identify service objectives, failed to provide information about programs, and failed to arrange more than one telephone visit, and in those circumstances the dependency court's finding that reasonable services were provided was not supported by substantial evidence. (Id. at pp. 348-349.)
In contrast, neither Mother nor her counsel ever objected in the dependency court to the Bureau's proposed plan in this case. (In re P.M. (Oct. 18, 2017, A150586) [nonpub. opn.] at p. 21.) To the contrary, Mother contended that she did not need any services at all. And the Bureau sent Mother detailed referrals after six weeks, which is much less than the three-month delay in T.W.-1. (In re T.W.-1, supra, 9 Cal.App.5th at pp. 346-347.) Nor was Mother deprived of visitation. Though the case plan provided for in-person supervised visits at least one hour long twice a month in California, Mother elected to speak with Minor by telephone weekly or every other week, and, as far as the record reflects, from before Minor entered foster care in May 2016 until the contested hearing in August 2017, Mother visited Minor in person just once, in June 2017 when Mother was in California for a hearing in this matter. Mother points to nothing in the record to suggest that she ever objected to the visitation services that were provided or that she or her counsel requested more. To the contrary, Mother told the social worker that she did not visit in person because she was feeling depressed.
Certainly, it would have been preferable for the Bureau to send Mother referrals sooner than it did. But nothing in T.W.-1 persuades us that the Bureau's six-week delay here in sending referrals to Mother renders the Bureau's efforts unreasonable.
In sum, we conclude that substantial evidence supports the dependency court's finding that the Bureau offered Mother reasonable services.
DISPOSITION
The petition for extraordinary writ is denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.450(a), 8.490(b)(2)(A).)
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.