Opinion
A163095
10-21-2021
O.G., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, et al. Real Parties in Interest.
NOT TO BE PUBLISHED
(San Francisco County Super. Ct. No. JD193301)
STEWART, J.
O.G., the mother of 22-month-old Gabriel G., petitions for extraordinary writ relief to overturn the juvenile court's July 16, 2021 order terminating her reunification services and scheduling a hearing under Welfare and Institutions Code section 366.26. She contends the juvenile court abused its discretion in terminating her reunification services. We reject her contentions and deny her petition.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
Gabriel came to the attention of the San Francisco Human Services Agency (the agency) in November 2019, when he and mother tested positive for amphetamines at his birth. Despite having a history of alcoholism, mother and her family members denied that mother used drugs or had a substance abuse problem. A safety plan was developed, and mother agreed to refrain from using drugs when caring for her baby and made arrangements with another family member to ensure the child's safety. The agency also referred mother to substance abuse testing, a substance abuse assessment, and a public health nurse.
On December 2, 2019, the agency filed a petition under section 300 alleging, among other facts, that mother has a substance abuse issue based on a history of alcohol and amphetamines abuse and also had failed to obtain prenatal care for Gabriel. Several weeks later, on December 17, the agency received drug test results indicating mother again tested positive for amphetamines (as well as methamphetamines) on December 12. When confronted with these results, both mother and the relative involved in her safety plan again denied that mother had used drugs. The agency obtained a removal warrant on December 20, mother evaded the agency's attempts to execute it for nearly two full days, and finally relinquished the infant after hours on December 21, through a third party. The agency then, on December 24, 2019, filed an amended petition alleging mother's most recent positive test results as well as her evasive conduct and continued denials of any substance abuse issue, and Gabriel was subsequently ordered detained in foster care.
At the detention hearing (held on December 26, 2019), the court gave the agency discretion to release Gabriel back to mother's custody on the condition that she enroll in a certified residential treatment program and remain "clean & sober & drug free." The court also ordered supervised visitation "as frequent[ly] as possible."
The jurisdiction/disposition hearing was originally scheduled to take place on March 9, 2020, but was continued numerous times and eventually took place nine months later, on December 18, 2020. By the time it occurred, in the year since Gabriel had been removed from mother's custody she had not ever visited with him; had been completely non-responsive and out of touch with the agency; had missed all of her drug tests during 2020; and in April 2020 had been hospitalized after taking drugs laced with Fentanyl and passing out for a day and a half (and then denying the incident happened).
At the December 18, 2020 jurisdiction/disposition hearing, the court sustained jurisdiction (based on a further amended petition striking various allegations not pertinent here), declared Gabriel a dependent, and ordered reunification services. Mother was ordered to participate in substance abuse testing; drug abuse treatment (either residential or outpatient); individual therapy; a program called SafeCare (which, it appears from the record, is intended to address safety in the home); participate in therapy with Gabriel if recommended; and to visit regularly with her son.
During her six months of reunification services, mother consistently tested clean in drug tests. But by the time of the contested status review hearing held on July 14, 2021, mother still continued to deny she had a substance abuse problem. In its May 21, 2021 report prepared for the hearing, the agency wrote that mother "maintains that she does not use illicit substances and she does not have a history of substance use. She denies substance abuse is present. [Her] assertions contradict numerous case records that include police reports, [and] conversations with family members that speak to a significant and prolonged history of substance abuse. As recently as April 2020, [mother] reportedly got high and was found unconscious face down on her arm." The report also noted that her denials contradicted the content of court records establishing a guardianship over her older child due to her" 'progressive alcoholism . . . driving drunk and taking [the child] with her to do drugs'" on several occasions.
The report went on: "[Mother] believes that the allegations of substance abuse against her are untrue. She claims that her positive test for methamphetamines in December 2019 is due to a mix-up at the testing laboratory. In February 2021, [mother] said the positive drug test was due to someone putting drugs in her drink. It appears that [mother] is not ready to acknowledge and perhaps may not even perceive that there is a problem and blames other people or external factors for the events that led to the Agency's removal of Gabriel from her care. I assess that [mother's] denial and refusal to address her substance use and the dangers it has posed to Gabriel and her older child that lead [sic] to all of their subsequent removals would pose an ongoing danger to Gabriel if he was reunified with [mother]. . . . Since January 2021, [mother] has taken minimal steps to engage in services, and has demonstrated minimal new skills consistent with her case plan objectives. I am impressed by [mother's] participation and completion of Safe Care, and [mother] demonstrated healthy skills during supervised visits with Gabriel. However, [mother's] ongoing denial of her substance use despite evidence of use and problems that resulted from that use, poses an ongoing unmitigated danger to Gabriel if he was left unsupervised for any period of time with [mother], and especially if returned to [mother's] full-time care."
According to an addendum report filed on July 8, 2021, a week before the review hearing, mother didn't begin any drug abuse treatment until around May 18, five months after she'd been ordered to do so.
At the July 2021 hearing, mother continued to deny on the witness stand that she continued to use methamphetamines after Gabriel was born, despite grudging acknowledgement of her own positive drug test on December 12, 2019 ("That is what I was told"). She also denied being hospitalized in 2020 after taking drugs that were laced with Fentanyl. She had attended only 10 AA meetings in the past six months. And even her counsel acknowledged in closing argument that mother "got[] fully on board with her treatment" only "belatedly."
At the conclusion of the contested hearing, the court terminated mother's reunification services and set an implementation hearing under section 366.26 for November 3, 2021. We subsequently stayed that hearing pending our consideration of this petition.
DISCUSSION
Mother asks us to vacate the juvenile court's order terminating her reunification services and setting a hearing under section 366.26, with directions "extending the period for [her] reunification services" for two reasons. One, she contends that under the legal standard applicable at the six-month review hearing (§ 366.21, subd. (e)(3)), the court abused its discretion in terminating her services because she had complied with the essential elements of her reunification plan. And, second, she contends the court erred in finding she had been provided reasonable services.
Mother also asserts in passing that the juvenile court erred by explicitly considering the 12-month period prior to the court's jurisdiction and disposition orders in assessing the reasonableness of services provided to her and the extent of her progress (i.e., from December 2019 to December 2020). She does not develop this point and cites no authority that it is improper for the juvenile court to do this when hearings get delayed, and we are aware of authority to the contrary. (See, e.g., Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 395, 398 [assessing reasonableness of mother's efforts to stay drug-free by the time of six-month review hearing based on nine-month period beginning pre-disposition at detention hearing, in case where contested disposition hearing was continued several times], disapproved on another ground, Tonya M. v. Superior Court (2007) 42 Cal.4th 848.)
It is unnecessary to address mother's first set of contentions about the extent of her participation and progress, because the six-month standard she relies upon does not apply. With continuances and delays, the passage of time caused the six-month review hearing to merge with the 18-month review hearing. (See Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 846 ["Delays in the timing of one hearing should not affect either the timing of subsequent hearings or the length of services to be ordered"]; see also, e.g., Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1508-1509; In re Albert B. (1989) 215 Cal.App.3d 361, 374, fn. 2.) Indeed, mother concedes that by the time of the July 14, 2021 status review hearing at which her services were terminated, she "had been afforded the maximum time allowed by law" for the provision of reunification services, because the six, twelve and eighteen-month review periods had "essentially run[] concurrently." That concession is appropriate, because ordinarily services "may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of the child's parent" (§ 361.5, subd. (a)(3)(A)), which in this case was June 21, 2021 (i.e., 18 months after Gabriel was removed from mother's physical custody on December 21, 2019). In other words, the 18-month cut-off had already passed by the time the status review hearing took place.
In relevant part, section 366.21, subdivision (e)(3) states: "If the child was under three years of age on the date of the initial removal, . . . and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child, who was under three years of age on the date of initial removal . . ., may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing."
The only conceivable basis for extending mother's reunification services past 18 months that we can discern from her arguments is her second contention: that she did not receive reasonable reunification services. As briefed by the agency (but ignored by mother), there is a split of authority as to whether reunification services may be extended past the 18-month cut-off on the ground a parent has not received reasonable reunification services.(Compare, e.g., N.M. v. Superior Court (2016) 5 Cal.App.5th 796, 806-808 [no extension of reasonable services beyond 18 months based on failure to provide reasonable services] with T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1256 [failure to provide reasonable services for statutory minimum justifies the extension of services beyond 18 months]; In re M.F. (2019) 32 Cal.App.5th 1, 23 [reunification period may be extended past the 18-month review date where reasonable services were not provided or offered to a parent of a child who was under three years of age at time of removal]; Serena M. v. Superior Court (2020) 52 Cal.App.5th 659, 678 [remedy for failure to provide reasonable services is extension of reunification period].)
In narrow circumstances, reunification services "may be extended up to a maximum time period not to exceed 24 months after the date the child was originally removed from physical custody of the child's parent" (§ 361.5, subd. (a)(4)), but mother does not argue she falls into any of the categories of parents potentially eligible for 24 months of services (see § 366.22, subd. (b)).
Assuming without deciding the juvenile court had authority to extend mother's reunification services past the 18-month cut-off if reasonable services were not provided to her for the statutorily required minimum six months (see § 361.5, subd. (a)(1)(B)), substantial evidence supports its determination that mother did receive reasonable services.
We review the court's reasonable services finding for substantial evidence, taking into account the "clear and convincing evidence" standard that governed below. (See Serena M. v. Superior Court, supra, 52 Cal.App.5th at p. 674.)
During the reunification period, mother's social worker met with her in person every month to discuss her case plan and progress, beginning on January 14, 2021. Mother does not assert the agency failed to use reasonable efforts to provide her with substance abuse treatment-it clearly did so, starting in their very first meeting together and continuing for months after that, despite mother's continued denial of her substance abuse issues and failure to enroll in substance abuse treatment until nearly the end of her review period. Mother asserts the agency failed to provide reasonable services to her in two respects.
First, she contends the agency "prevented" her from having in-person visitation "for a period of five months following the disposition in this case." She provides no record citations for that contention, and it is inaccurate. As noted, reunification services were ordered at the contested jurisdiction/disposition hearing on December 18, 2020. At that point, mother had not visited her son at all in the year since he had been removed from her custody despite being offered visitation, and had not responded to any of the agency's efforts to arrange visitation for her. The court ordered virtual supervised visitation for mother at the hearing, and gave the agency discretion to move her supervised visits to in-person visits with 72 hours' notice to the child's attorney, and with the proviso that mother contact the social worker if she "seek[s] visitation." Mother did not ask to visit her son in person until several months later, in March 2021. After she did so, the social worker tried but could not establish a visitation plan agreeable to all parties, and so on April 16 he held a Child and Family Team meeting to discuss the parties' COVID-19 health concerns and the COVID protocols in place at the visitation center, and their discussions continued over the next few weeks. Eventually, a visitation plan was agreed upon and mother's first in-person visit took place on May 18, 2021. Although the social worker acknowledged at the hearing that virtual visits are not ideal for a very young child of Gabriel's age, he testified that the agency was transitioning to in-person visitation during that period and "wrapping up COVID stuff."
Mother cites no authority that the roughly two-month period it took to arrange for in-person visits during the pandemic after she asked for them was unreasonable, and it wasn't. The foregoing is substantial evidence that from the moment mother expressed interest in moving her visits to in-person, the agency worked diligently to arrange them for her within the constraints posed by the state of the pandemic, while mother continued to visit with her son virtually. "In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. 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.) Here, they were.
Mother also argues that reasonable services were not provided because she was "deprived for many months of the ability to participate in a timely way in individual therapy because of a series of bureaucratic snafus." There is ample substantial evidence to the contrary. The agency reported (in its May 21, 2021 report) that mother didn't engage in any mental health services during the first five months of the reporting period because "[s]he does not believe that she needs mental health services" (italics added). Despite mother's resistance, the social worker discussed mother's individual therapy requirement with her in every monthly meeting for four months; provided her with two written letters that included information on accessing individual therapy services; and spent months trying to track down available services for her in her county of residence (Contra Costa) despite encountering roadblocks and complications due to her Medi-Cal coverage. Mother herself told the social worker she hadn't started individual therapy during the first five months of the reporting period not just "because her Medi-Cal coverage is not active in Contra Costa County" where she lived but also because "she does not believe individual therapy is an appropriate service for her at this time." The agency reported that mother did not call any of the therapy services providers to which it had referred her from January to March 2021, and then in April 2021 when she finally called an access line to start the assessment process for individual therapy, she was referred to a provider whose services she declined because she denied any need for them. Mother has not discussed any of this evidence.
Then, in late May 2021, mother told the agency she had begun transferring her Medi-Cal coverage to San Francisco County, which injected new bureaucratic complications that the agency detailed in its addendum report concerning the last two months of the reporting period (May and June of 2021). Yet that addendum report (filed July 9, 2021) reflects that the agency still kept up its efforts to help mother locate an individual therapist, in both Contra Costa County and San Francisco (it discussed the subject with her several times, re-submitted a referral for her, and called an access line together with her that provided her with an intake phone number for another provider). In June 2021, while mother was still working to get her Medi-Cal coverage transferred to San Francisco, she finally began individual therapy with a therapist at Lee Woodward Counseling Center (LWCC), the same provider with whom she began substance abuse treatment the same month.
There is thus substantial evidence that during most of the reporting period it was mother's lack of interest in individual therapy, and not any lack of reasonable efforts by the agency, that prevented her from starting individual therapy sooner. Moreover, even the bureaucratic delays that mother now stresses were mostly a problem of her own creation. Regardless of mother's motivations for trying to change the county associated with her Medi-Cal coverage (not once but twice) while the agency was trying ardently to link her with a provider who would accept her health coverage, it was mother's own actions that engendered the bureaucratic confusion and delay, not any failure on the part of the agency to try to accommodate her ever-shifting Medi-Cal coverage preferences.
DISPOSITION
Mother's petition is denied on its merits. The stay of the section 366.26 hearing we previously entered on September 21, 2021, is lifted. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
We concur. KLINE, P.J. MILLER, J.