Opinion
A149500
01-06-2017
M.T. et al., Petitioners, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN & 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. J15-00799 & J15-00800)
S.W. (mother) is the parent of T.W., born in May 2014, and M.T.1, born in May 2015. M.T. (father) is the parent of M.T.1. Mother and father separately petition for extraordinary writ review of juvenile court orders terminating their reunification services and scheduling a permanency planning hearing for the children (Welf. & Inst. Code, § 366.26.) The hearing is currently set for January 9, 2017, for which both parents seek a temporary stay pending a ruling on their petitions. Both parents contend they did not receive reasonable reunification services, and there is a lack of substantial evidence to support the court's findings that returning the children to their custody posed a substantial risk of detriment to them. Father separately argues there is a lack of substantial evidence to support the court's finding that he could not successfully reunify with M.T.1 if services were extended for six months. Real Party in Interest Contra Costa County Children & Family Services Bureau (the Bureau) opposes the petitions. We conclude the parents' challenges have no merit. Accordingly, we shall deny their petitions on the merits and deny the requests for a temporary stay as moot.
M.T.1 and the child's presumed father share the same initials. For purposes of protective nondisclosure, we shall refer to the child as M.T.1. T.W.'s father is not a party to these proceedings.
All further unspecified statutory references are to the Welfare & Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. Jurisdictional and Dispositional Proceedings
In July 2015, the Bureau detained 14-month-old T.W. and two-month-old M.T.1 after receipt of a referral alleging that mother was neglecting the children and father was neglecting M.T.1. At the time the parents were homeless. On July 21, 2015, the Bureau filed for each child a section 300 petition, later amended by the court, alleging, in pertinent part, that each child was at substantial risk of harm due to mother's failure to provide adequate care and supervision, and M.T.1 was at substantial risk of harm due to father's substance abuse problem. (Id., subd. (b) (failure to protect).) At a jurisdictional hearing in August 2015, the court found the children were persons described in section 300, subdivision (b), after mother submitted on an amended allegation that she had failed to provide adequate care and supervision for the children, and father pled no contest on an amended allegation that his substance abuse problem put M.T.1 at substantial risk of harm.
In its report for the scheduled September 16, 2015, dispositional hearing, the Bureau social worker made various case plan recommendations based on information concerning the family. The Bureau social worker recommended that mother's case plan include participation and successful completion of individual counseling and a parenting program, and, that she obtain a stable and suitable home for the family, and that father's case plan include obtaining and maintaining a safe home and living situation for six months, and successful completion of a parenting education class. Father's case plan also addressed his substance abuse problem. It was recommended that he complete an assessment for substance abuse and follow all treatment recommendations, successfully participate in and complete an outpatient substance abuse program and receive a positive evaluation, successfully participate in a AA/NA program and provide written proof of attendance of 1-3 meetings per week; and participate in random drug/alcohol tests, with all tests to be negative for six months, and, with the understanding that a "[n]o show for a test will be considered positive."
At the September 16, 2015, dispositional hearing, the juvenile court declared each child a dependent of the court and placed them in the Bureau's custody. The Bureau was directed to provide reunification services to the parents. The court adopted the Bureau's recommendations concerning the parents' case plans with certain modifications regarding overnight visits. The court also amended father's case plan by adding a requirement that father was to enter a residential drug treatment program if he tested positive for drugs or alcohol. The parents' case plans granted them supervised visits with the children. The court ordered, in pertinent part, that the Bureau could authorize consecutive overnight visits for a maximum of five days, provided mother made substantial progress in her case plan, and submitted to drug testing and tested "clean." Mother began unsupervised overnight visits with the children on February 26, 2016. On March 2, 2016, the date originally scheduled for the six-month review, the court ordered the parents to submit to drug testing. Mother tested positive for THC and cocaine. Father tested positive for THC. Mother's unsupervised overnight visits with the children were suspended. The six-month hearing was continued to March 30, 2016.
II. Six-Month Status Review
Before the continued six-month review hearing, the Bureau filed a six-month status review report dated March 1, 2016 and a March 29, 2016, memorandum, both of which recommended that the children remain in out of home placement, and that the court terminate father's reunification services and continue mother's reunification services. The recommendation to terminate father's services was based on his failure to comply with his case plan objections, specifically those requirements imposed to addressed his substance abuse problem. Between December 17, 2015 and March 11, 2016, father either tested positive for marijuana and alcohol or failed to show for random drug testing. Father, however, had not entered an inpatient drug treatment program as required under the court-ordered case plan. The recommendation to continue mother's services was based on the fact that the Bureau recently learned mother had a substance abuse problem and the Bureau social worker felt mother should have an opportunity to address the issue. Additionally, despite mother's repeated referrals since September 4, 2015, mother did not start individual counseling therapy until January 4, 2016, and she had only attended seven sessions as of March 29, 2016. The therapist reported that the focus of therapy was on increasing mother's coping skills and decision-making process so she could create a stable environment for the children. The therapist, however, did not disclose whether mother was actually making progress or had developed any insight into her issues. The Bureau reported both parents had supervised weekly visits with the children.
Following the six-month review hearing, the court found both parents had made significant progress in resolving problems that led to the children's removal, had demonstrated the capacity and ability both to complete the objectives of their case plans and to provide for the children's care, and there was a substantial probability that the children would be returned to the care of the parents if services were extended. Rejecting the Bureau's recommendation that father's reunification services be terminated, the court continued reunification services for both parents until the 12-month review hearing.
III. 12-Month Status Review
Before the 12-month review hearing, the Bureau filed two reports: a status review dated July 20, 2016, and a memorandum dated September 8, 2016. In the reports, the Bureau social worker discussed the parents' current circumstances. Both parents participated in supervised visits with the children, and, when the parents were able to visit, the visits were generally good and it was evident the parents loved the children. Nonetheless, both parents had failed to comply with other aspects of their case plans, specifically substance abuse treatment. Mother had entered an inpatient drug treatment program on March 10, 2016, and was discharged because of a positive THC test on April 1, 2016. She reentered the program on May 12, and was discharged in early July 2016, because of a physical altercation with another client in the program. As of September 8, 2016, mother had not entered another inpatient drug treatment program. Mother submitted to drug testing at the Bureau from March 18, 2016 through July 15, 2016. During that four-month period, mother tested "positive" or failed to show on six occasions. Mother also tested "negative" on 11 occasions, until a positive test for alcohol on August 24, 2016. The Bureau social worker also reported on father's participation in drug testing and substance abuse treatment. Father had been ordered and referred for random drug testing starting in February 2016. Between February 2016 and April 25, 2016 (last random drug test), father tested positive on six occasions, and he failed to show on six occasions. When asked why he had stopped submitting to the Bureau's drug tests, father offered various reasons: he would test positive for marijuana because he was using " 'edible' " marijuana for pain and sleep; he did not have to " 'drug test' " for the Bureau because he had to drug test for his employment and therefore he was "clean;" and he did not have the time for drug testing. Father failed to submit any documents confirming his reported enrollment in an outpatient drug treatment program on March 25, 2016, or evidence that he completed a parenting course. Father acknowledged he had failed to comply with various aspects of his case plan but asserted he had to work to support himself, he could not find any classes in his area, and the Bureau was not giving him enough referrals. The Bureau social worker acknowledged father was currently battling an illness, but noted his failure to engage in services since the beginning of the dependency. As of September 8, 2016, the Bureau social worker reported father failed to stay free of illegal drugs, he no longer participated in random drug testing, and he had not been able to maintain a home and was currently staying with friends. Father attended visits with the children "for the most part but has had to cancel due to his work schedule, medical reasons and the visits have been canceled due to [father] not confirming the day before."
Although the 12-month review hearing was originally scheduled for July 27, 2016, the hearing was ultimately held on September 12 and 15, 2016.
At the contested 12-month review hearing, held on September 12 and 15, 2016, the juvenile court heard testimony from the Bureau social worker, mother and father. The court also considered the Bureau's September 8, 2016, memorandum, and the July 20, 2016, report for the July 27, 2016, status review hearing, and attached documents including reports on parents' drug testing, a letter regarding mother's enrollment in a parenting program, letters and reports regarding mother's enrollment, progress, and discharge from a residential drug treatment program, and a June 2, 2016, letter from father's primary care physician.
The Bureau attached to its status review a June 2, 2016, letter from father's primary care physician regarding his medical condition. Father suffered from a chronic venous thromboembolism for which he was hospitalized in July 2015 and again in May 2016. The diagnosis caused father to have chronic chest pain and shortness of breath. Because father was not a "good candidate for NSAIDS ([as he was on anticoagulation medication]) or chronic opiates, edible marijuana [was] a reasonable treatment option for him" at that time. The physician also stated father "has been open . . . regarding a history of cocaine and benzodiazephine use in the past and continues to follow up with [the physician] about these issues. There are no concerns for relapse at this point." Lastly, the physician noted father had started mental health treatment with medications and therapy for anxiety related to his medical disease and the custody issue regarding M.T.1. At the 12-month review hearing, both the Bureau social worker and father testified that each had requested further information about father's medical care from father's primary care physician. When they tried to contact the primary care physician, a representative told them that the primary care physician was on maternity leave and the representative could not find any further documents other than the June 2d letter.
Following argument by counsel, the court adopted the Bureau's recommendations and proposed findings and orders. Specifically, the court found the Bureau had either offered or provided parents with reasonable services, that the children would be at substantial risk of harm if returned to either parent, and that termination of reunifications services was appropriate. In support of its findings and orders, the court explained it had initially been optimistic that the parents would engage in services and be able to reunify with the children, but that had not proved to be possible because "the parents have failed to really engage meaningfully in services," "both parents have failed to be open with the social worker and work with the social worker," and instead, "they have avoided all contact with her at all costs;" and "neither Mother [n]or Father ever gave the social worker the names of the people that they live with. They've been very cagey about where they live, when they live there," which caused the court "grave concern that these two parents, if given the opportunity, would completely wall out the [Bureau] and the ability to maintain these children safely in the home." The court specifically commented that father had failed to address his substance abuse problem that had required the detention of M.T.1: "Father tested initially before that first status review. But since then, since March [2016], he really has not tested at all. So for him to say he's not been using anything other than marijuana, I quite frankly don't believe it at all. I don't find his denial or his testimony to be very credible at all on those issues." The court also rejected father's claim that his primary care physician had been testing father for the presence of drugs: "I think it is completely improper to argue that [father's] been going to his doctor and getting tested for drugs.[] There's a letter that talks about him eating edible marijuana for his medical condition. But before Father was using alcohol, he was using cocaine, he was using benzodiazepine. And as far as I am concerned, and as I always tell parents, you miss a test, it is a positive test. So all of those missed tests are positive tests. [¶] Dad has continued to abuse substances, . . ., and at the same time be[en] very dishonest with the [Bureau]." The court specifically discounted father's testimony that he had only used cocaine on two occasions. The court further stated father had confirmed he had not participated in substance abuse treatment, and if father had attended meetings, he had gained no insight regarding his substance abuse problem. The court also noted father had missed nearly half of his visits with M.T.1. The court acknowledged mother had visited the children regularly and behaved appropriately during the visits. The court also commended mother for trying to complete a residential drug treatment program on two occasions. Nonetheless, the court found "concerning and alarming" mother's failure to successfully complete a residential drug treatment program. The court also noted that despite mother's participation in drug treatment, she showed no insight that alcohol was a substance that she should not be consuming, and, it required a large consumption of alcohol for a drug test to detect alcohol. The court also commented on mother's failure to inform the Bureau social worker that mother was suffering from depression: "And the fact that [mother] wouldn't even disclose to the social worker that she has depression. Quite frankly, the [Bureau] could have helped Mom with that. That's not the [Bureau's] fault. That is a parent's failure to engage openly and honestly with the social worker on a case plan so that reunification has a chance to succeed." The court scheduled a section 366.26 hearing for January 9, 2017.
In asking the court to find the Bureau had not provided reasonable services to father, his counsel argued: "I think my client has provided his medical releases to the Department so that they can verify the information regarding his medical history, and has attempted to put his doctor in touch with the social worker. But . . . through no fault of his own that has not happened. [¶] Because . . . of Father's medical conditions, he's tested very regularly through his doctor. [¶] [THE COURT]: . . . Tested for what? How do we know what he's tested for by his doctor? Didn't your client testify that he's submitting . . . blood samples to check for blood thinner medication? Is there any evidence that his doctor is testing for anything other than monitoring that medication? [¶] [Counsel]: I think her letter indicates that she's aware of his . . . use of marijuana, and that he's not using any other substances . . . - [¶] [THE COURT]: But it doesn't say that she's having Father submit to drug testing, does it? [Counsel]: The letter says that she has no concerns regarding his use of cocaine or benzodiazepine. . . . I don't think the doctor would make a statement that that's not an issue for him if she weren't testing. [¶][THE COURT]: Is that the kind of assumption the Court should make when reviewing evidence and making decisions? I think if I were to do that . . ., rightfully parties would be objecting that I'm considering matters that are not before the Court, that there's no evidence to draw that conclusion. [¶] [Counsel]: And what I'm saying is that we think that information is available and . . . the release is available to the Department. And probably easier for the Department to get than it has been for my client to get. So that's our position."
DISCUSSION
I. Substantial Evidence Supports Findings of Reasonable Services
Before a juvenile court may order a hearing pursuant to section 366.26, it must find, by clear and convincing evidence, that reasonable services have been offered or provided to the parent. (§ 366.21, subd. (g)(1).) In evaluating the juvenile court's findings that the Bureau provided reasonable services to both parents, "our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered. [Citations.]" (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)
Mother contends the services she was offered were inadequate because, although she was known to be depressed and to have had a prior psychiatric admission, her case plan contained only a requirement of individual counseling and did not provide for a mental health evaluation or psychological assessment. We see no merit to mother's argument. In its report for the dispositional hearing in September 2015, the Bureau's social worker reported that during a prior referral dated July 14, 2014, in Merced County, regarding mother's general neglect of T.W., there was a concern about mother's ability to care for the child because, among other things, mother had been admitted to the psychiatric center in the past for cutting herself. Additionally, father reported that after the birth of M.T.1, mother suffered postpartum depression, she had been isolating, crying, and not caring for herself, she had expressed suicidal ideation as well as had anger outbursts and mood swings. However, when questioned by the Bureau social worker, mother reported suffering from postpartum depression for one month only, and she denied any on-going mental health concerns that would impact her ability to care for the children. The jurisdictional findings against mother were based on her failure to adequately care for the children by providing them with shelter and clothing. At the dispositional hearing, the court adopted the Bureau's recommended reunification plan, which appropriately included a requirement that mother "enter and successfully complete individual counseling [with a therapist], . . . and receive a positive evaluation from [the] therapist that parent understands the factors contributing to this dependency, has successfully addressed those issues, and the child is not at risk at this time." At the 12- month review hearing, mother revealed for the first time that her individual counseling therapist had diagnosed mother as suffering from clinical depression. Mother followed the therapist's recommended treatment of anti-depressant medication. Mother was prescribed and taking anti-depressant medication on a daily basis under the continued supervision of a health clinic doctor. Mother testified she never told the Bureau social worker that she was seeing a health clinic doctor and the Bureau social worker confirmed that mother never told her she was seeing a health clinic doctor and she was taking anti-depressant medication. Mother further testified she was not then receiving any individual counseling or therapy for her clinical depression because her individual counseling therapist was not then accepting Medi-Cal and she had lost the list of other therapists accepting Medi-Cal that she had been given by the Bureau social worker. The Bureau social worker confirmed that the only information received from mother's individual counseling therapist was the report contained in the Bureau's March 30, 2016 memorandum. Thus, on this record, the juvenile court could reasonably find that because the Bureau social worker was never informed that mother had been diagnosed and was being treated for clinical depression, the Bureau social worker could not be faulted for failing to ask a medical professional to determine if additional services would be helpful to mother to assist her in compliance with her stated case plan goals. In all events, in the absence of any evidence that mother's mental health issues alone prevented her from meeting her case plan objectives, there is no basis for concluding the services offered or provided were inadequate. "If [mother] felt during the reunification period that the services offered her were inadequate, she had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan." (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) A parent may not "wait silently by until the final reunification review hearing to seek an extended reunification period based on a perceived inadequacy in the reunification services occurring long before that hearing. [Citations.]" (Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093.) "The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) On this record, we conclude there is no basis for finding that services provided or offered were inadequate. The cases cited by mother are factually distinguishable, and in all events, do not warrant a different result.
At the 12-month review hearing, father denied he had reported he had concerns about mother's mental health at the time the children were detained by the Bureau. --------
In challenging the reasonableness of the services provided or offered to him, father argues in a conclusory fashion: "In this case there was a lack of communication between the Bureau and the service providers for the father. . . . [T]he burden was on the Bureau to obtain information on the father's progress from the providers and it did not [do so]. . . . [I]t would have been much easier for the Bureau to obtain the releases necessary than the father. His limitations are previously noted." However, father cites no portion of the record in support of his argument, except the arguments of his counsel at the 12-month review hearing, which were considered and rejected by the juvenile court. More importantly, father fails to identify any specific inadequacy in the reunification services provided or offered by the Bureau. Accordingly, on this record, there is no basis for concluding the services offered or provided were inadequate. The cases cited by father are factually distinguishable, and in all events, do not warrant a different result.
II. Substantial Evidence Supports Findings of Substantial Risk of Detriment to Children If Returned to Either Parent At 12-Month Review Hearing
At the 12-month hearing, the juvenile court is to "order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (f)(1).) In analyzing the issue of detriment, a parent's failure to "regularly participate and make substantive progress in a court-ordered treatment program is prima facie evidence that return would be detrimental." (§ 366.21, subd. (g); Cal. Rules of Court, rule 5.715(b)(1).)
Relying on isolated portions of the record, both parents argue there was insufficient evidence to support the juvenile court's findings of detriment if the children were returned to their custody at the 12-month review hearing. However, on appeal we do not review the court's findings for substantial evidence that would support a finding in favor of the parents, as they suggest by their arguments. Rather, our authority is limited to determining whether there is substantial evidence to support the court's findings of detriment if the children were returned to the parents' custody at the 12-month review hearing. "If this 'substantial evidence' is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) Whether the parents' circumstances demonstrated they could safely parent the young children with family maintenance services was a "question addressed peculiarly to [the juvenile court,] which heard [the parents'] testimony and observed [their] demeanor at [the hearing]," together with the other testimonial and documentary evidence admitted at the hearing. (In re Marriage of Sheridan (1983) 140 Cal.App.3d 742, 749.) By the time of the 12-month review hearing, mother had failed at a residential drug treatment program on two occasions, after the last discharge she did not attempt to enroll in another residential program, and she was not attending an outpatient drug treatment program. While mother claimed to have attended some unspecified number of "AA or NA" meetings, she did not have her current attendance sheets with her in court. Additionally, mother delayed participation in individual counseling for several months, she then attended only seven sessions according to the therapist, and shortly after she stopped seeing her therapist mother decided to use cocaine and she later tested positive for alcohol. Although father pled no contest to the jurisdictional finding against him, at the 12-month review hearing he admitted that at the time of M.T.1's detention in July 2015, father had a substance abuse problem - he was using "cocaine and other drugs," which was not related to his use of marijuana for medical purposes. Consequently, father's case plan appropriately included requirements that he participate and successfully complete a drug treatment program, that he submit to random drug testing with no shows being deemed positive tests, and that he enter a residential drug treatment program if he tested positive for drugs or alcohol. At the 12-month review hearing, father conceded he had not complied with certain aspects of his case plan designed to address his substance abuse problem. While he offered explanations for his failure to comply with his case plan, the juvenile court reasonably found such explanations were not sufficient to excuse his noncompliance. Despite the parents' further contentions, their compliance with certain aspects of their reunification plans "and visiting the children is to be considered by the [juvenile] court; but it is not determinative. The court must also consider the parents' progress and their capacity to meet the objectives of the plan[s]; otherwise the reasons for removing the children out-of-home will not have been ameliorated." (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.) "[T]he Legislature has declared, 'The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child . . . .' [Citation.]" (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216.) The juvenile court reasonably found that both parents' failure to meaningfully address their substance abuse problems raised serious concerns regarding their ability to safely parent the children, thereby supporting findings that the return of the children would create a substantial risk of detriment. The parents point to no evidence, and we have not found any evidence, from which the court was required to conclude that at the time of the 12-month review hearing the parents were capable of taking custody of the children with family maintenance services. The cases cited by the parents are factually distinguishable, and do not warrant a different result.
III. Substantial Evidence Supports Finding of No Substantial Probability of Returning M.T.1 to Father If Reunification Services Extended for Six Months
Father also contends that if the Bureau met its burden of demonstrating that M.T.1 could not be returned to his care at the 12-month review hearing, the juvenile court should not have terminated his services but continued them for another six months. We disagree. At the 12-month review hearing, the juvenile court could not order an additional six months of services unless it found father met the following three criteria: (1) he had consistently and regularly visited the child; (2) he had made significant progress in resolving the problems that led to the child's removal from the home; and (3) he demonstrated the capacity and ability both to complete the objective of his treatment plan and to provide for the child's safety, protection, physical and emotional well-being and special needs. (§ 366.21, subd. (g)(1)-(3).) We do not review the court's ruling for substantial evidence that would support a finding in father's favor, as he suggests by his arguments. Rather, our appellate authority allows us only to determine whether there is substantial evidence to support the court's implicit finding that father failed to meet the statutory criteria for an extension of services. Here, the court's finding that father failed to comply with the court-ordered treatment plans to address his substance abuse problem constitutes substantial evidence supporting the court's implicit finding that father failed to make significant progress in resolving the problems that led to M.T.1's removal from the home. Contrary to father's contention, his completion of some of the requirements of his case plan and his participation in some services addressing his substance abuse problem does not necessarily constitute significant progress in resolving the problems that led to M.T.1's removal or substantial compliance with the objectives of the reunification plan for the purpose of extending services beyond twelve months. (See In re Dustin R., supra, 54 Cal.App.4th at pp. 1141-1142.) Having upheld the juvenile court's implicit finding that father failed to meet one of the criteria for an extension of services, we need not address his contentions regarding the other two criteria. Accordingly, we see no reason to reverse the court's ruling terminating father's reunification services. The cases cited by father are factually distinguishable, and, in all events, do not warrant a different result.
DISPOSITION
The petitions for extraordinary writs are denied on the merits. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452(h).) The requests for a temporary stay are denied as moot. Our decision is final immediately. (Cal. Rules of Court, rules 8.452(i) & 8.490(b).)
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Siggins, J.