Opinion
E073130
09-30-2019
X.S. et al., Petitioners, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Dennis Moore for Petitioner X.S. David M. Levy for Petitioner S.I. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Michael A. Markel, Deputy County Counsel for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J275937) OPINION ORIGINAL PROCEEDINGS; petitions for extraordinary writ. Annemarie G. Pace, Judge. Petitions denied. Dennis Moore for Petitioner X.S. David M. Levy for Petitioner S.I. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Michael A. Markel, Deputy County Counsel for Real Party in Interest.
Petitioner S.I. (Mother), joined by X.S. (Father; collectively, Parents), seeks extraordinary relief pursuant to California Rules of Court, rule 8.452, from a juvenile court's order terminating reunification services and setting a hearing under Welfare and Institutions Code section 366.26 with respect to her daughter, U.S. (Minor). For the reasons set forth below, we deny Parents' writ petitions.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
Minor was first named A.D.; her name was later changed to U.S. --------
FACTUAL AND PROCEDURAL HISTORY
Minor was born in March 2018. Mother, who was 24 years old at the time, had four older children (Siblings) who were under a legal guardianship with the maternal grandmother (MGM). On April 30, 2018, San Bernardino County Children and Family Services (CFS) filed a petition under section 300, subdivision (b), alleging that Mother engaged in domestic violence with MGM; mother had a history of untreated mental illness; Mother had a substance abuse issue; and Mother was currently homeless.
The social worker, Christi Bell, made several attempts to locate and interview Mother. Although it was reported that Mother continued to live in the home of MGM and Siblings, MGM told Bell that Mother was "currently living somewhere in San Bernardino off Tippecanoe but she could not give more precise information as to the address or whereabouts of mother." When Bell, accompanied by another social worker, Kat Kolde, returned to MGM's home, MGM stated that Mother was not living there and informed the social workers that Mother was living in Los Angeles with Father and the paternal grandfather. MGM did not have any contact information for Father or the paternal grandfather. Bell noticed newborn clothing, blanket, and hygiene items at MGM's home. However, during transport of the Siblings, one told Kolde that Mother was living in MGM's home; a maternal aunt also reported that Mother was living in the home when she gave birth to Minor. The aunt stated that Mother was now squatting in an abandoned house with Minor.
In addition to filing the petition, CFS also filed a warrant of apprehension; neither Mother nor Minor had been located. In the jurisdiction/disposition report filed on May 17, 2018, Bell reported that CFS still had not located Mother or Minor.
Included in the jurisdiction/disposition report was a history taken from a prior jurisdiction/disposition report dated February 21, 2017, wherein MGM reported that on January 24, 2017, she left Siblings with Mother because MGM had to take her own child to the hospital. When MGM returned, the house was in disarray. MGM confronted Mother and their argument escalated. Then, Mother went into the kitchen, grabbed a knife, and threatened to kill herself in front of Siblings. With regard to that incident, Siblings were removed from MGM, but she ater reunified with them as their legal guardian. Mother had been offered reunification services for her substance abuse and untreated mental health issues, but Mother did not complete the services by the time Siblings were returned to MGM under legal guardianship.
MGM also reported that Mother was diagnosed with major depressive disorder, bipolar disorder, and schizophrenia in 2012 or 2013. MGM further stated that Mother was molested when she was five years old, raped when she was 12 years old, and raped again when she was 16 years old. Mother was attending therapy at the Department of Behavior Health. Mother, however, would not "open up" to the therapists.
Additionally, on February 7, 2017, a hospital social worker interviewed Mother regarding the substance abuse allegation. The social worker encouraged Mother to call an inpatient treatment center because Mother tested positive for amphetamines and cannabis. Mother told the social worker, "I've been there. I don't want to do that again."
At the jurisdiction/disposition hearing on May 22, 2018, neither Mother nor Minor had been located. The matter, therefore, was continued for 90 days, to August 20, 2018. On July 13, 2018, at a warrant recall hearing, counsel for CFS advised the court that Minor had been located and was is CFS custody. Counsel advised the court that an amended petition would be filed. The court confirmed the August 20, 2018, date for the jurisdiction/disposition hearing.
On August 17, 2018, the social worker filed an additional information advising the court that Minor and Parents had been located, and correcting Minor's name.
On August 20, 2018, Mother and Father, with their appointed counsel, were present in court. The amended petition added allegations against Father: (1) history of untreated substance abuse under section 366.26, subdivision (b)(5); (2) homeless and unable to provide a stable home under section 366.26, subdivision (b)(6); and (3) Father had a dependency case in Riverside County in which he was denied reunification services because his whereabouts were unknown under section 366.26, subdivision Father's counsel acknowledged receipt of the petition, waived a formal reading and advisement of rights, and submitted on detention. Moreover, Father submitted a waiver of rights and the court found that Father had made a knowingly, intelligent and voluntary waiver of rights. The court then found true the allegations against Father.
Mother's counsel acknowledged receipt of the amended petition, waived a formal reading and advisement of rights, and entered a denial. Mother also submitted a waiver of rights and only asked that the word "untreated" be stricken from allegation (b)(3), to read: "[Mother] has a history of substance abuse that negatively impacts her ability to adequately parent [Minor], and places [Minor] at risk of harm, abuse, or neglect." The remaining allegations remained the same and were not amended. The court went over the waiver of rights with Mother and determined that she knowingly, intelligently, and voluntarily waived her rights. Accordingly, the court found true allegations (b)(1), (b)(2), (b)(5)—as amended, and (j)(5) true.
The disposition portion of the hearing was continued to September 25, 2018, to allow CFS further time to investigate the matter and to notice potential Indian tribes under the Indian Child Welfare Act. On September 25, 2018, Parents submitted and Minor was declared a dependent of the court. Parents were ordered reunification services. Mother's plan included a psychological evaluation to address her mental health needs, general counseling, domestic violence classes, parenting classes, random drug testing, and an outpatient program. Father's plan included general counseling, parenting classes, outpatient substance abuse treatment, and random drug testing.
On March 18, 2019, social worker Karol Reynoso filed a six-month review report. Regarding Mother's progress, Reynoso reported that Mother had completed a parenting education class as of January 16, 2019; Mother had completed eight sessions of counseling; and Mother had completed a domestic violence program on December 17, 2018. Moreover, on February 7, 2019, Mother underwent a psychological evaluation with Dr. Julie Yang. The evaluation summary stated: "There is evidence of a mood disorder, specifically Major Depressive Disorder. It is recommended for [Mother] to be referred to a psychiatrist for a medication consult to determine if antidepressant medication is warranted. It is recommended [Mother] participate in individual therapy to assist her to recognize, accept and develop healthy coping skills to manage her depression."
Reynoso further reported: "Dr. Yang recommended therapy 'with a skilled clinician in the area of sexual abuse.' [Mother] has anxiety that is likely secondary to depression and PTSD. [Mother] has a history of self-injurious behavior and suicidal threats. [Mother] has a significant history of substance abuse and homelessness. Although [Mother] reports she has been sober since April 2017, she does not have insight on her triggers and may fail to see when her substance abuse is a problem until she is in crisis. [Mother] reported some difficulty with the demands of parenting. She has not parented her children since 2010 due to her mental health problems, substance abuse problems and transient lifestyle."
On July 14, 2019, Mother completed a primary treatment program at Inland Valley Recovery Services for substance abuse. Because of her negative drug tests, Mother was referred for relapse prevention services. Mother tested negative on January 29, February 11, and February 25, 2019. However, when asked to drug test randomly for CFS, Mother failed to drug test seven times; she had eight negative tests.
On her assessment/evaluation of Mother, the social worker wrote: "The mother has participated in some of her case plan requirements. She is attending visits with [Minor]. She understand[s] the risk [Minor] was in that leads to CFS involvement. However, given her long history of substance use and mental illness [CFS] is still concerned about her ability to safely parent [Minor]. She has yet to address her mental health by seeking help from a psychiatrist. Additionally she does not have suitable housing for herself and [Minor] at this time. She continues to be engaged in a relationship with [Father] who has made minimal effort in the reunification process. [Mother] is aware of [CFS]'s recommendation to terminate [F]ather's services. [Mother] also has four other children residing with their legal guardian/grandmother in a Family Maintenance case. She has not expressed a desire to reunify with [Siblings] which lead [sic] [CFS] to doubt her desire to be a parent. [Mother] has not cared for [Siblings] since 2010. [M]other appears to have many mental health issues that would impede her ability to safely parent [Minor]. She has a substantial history of drug use and is unable to identify triggers that led to using drugs. [Mother] has not addressed her sexual abuse history. It is [CFS]'s belief that [M]other's issues such as, mental illness, substance abuse, unsafe living conditions and unsafe relationships, deep seeded and without an intense focus in ameliorating these concerns would put [Minor] at risk. [CFS] is not confident that [Mother] will effectively demonstrate a change in her lifestyle within the statutory timeframes to reunify with [Minor] (age 1)."
In the six-month review report, CFS originally recommended terminating Parents' reunification services. However, when the case was called, CFS changed its recommendation as to Mother. The social worker recommended continuing Mother's services to the 12-month date, but still recommended the termination of Father's services because, as the court noted, "he hasn't completed anything basically." Father's counsel did not object. He simply wanted the court to consider that father had been out-of-state and had gotten a job. Father requested another chance. Mother's counsel submitted on her behalf.
At the hearing, the court terminated father's services, and advised both Mother and father about the next two hearing dates—June 27 for the receipt of the court report and July 11 for the 12-month review hearing. The court stated: ".21(f) date is July 11. Receipt of report, June 27th." Then, at the end of the hearing, the court added, "So folks, the next court date is June 27th, back here. Okay." Thereafter, CFS mailed notice to Mother and father, advising them of the two correct court dates, that the court would be considering the recommendations of the social worker—whether to continue or terminate services, and that the court would proceed in Parents' absence.
At the hearing on June 27, 2019, the court proceeded with the 12-month review hearing in the absence of Parents. Parents arrived at the hearing late, after the court made its rulings.
When the court proceeded with the hearing, Father's counsel stated: "I will object to the setting of the .26 on Father's behalf. I don't believe there's any affirmative evidence." As to Mother, her counsel reluctantly agreed that Mother had several unresolved issues. Thereafter, Mother's counsel did not object with the court proceeding with the 12-month review hearing and did not request to set the matter for trial. Instead, counsel indicated that he "was wishing to just continue this until the 7/11 date" and "would prefer to go to the 7/11 date" because by that time, Mother may have found housing and a job.
The following discussion ensued:
The Court: "So, [Mother's counsel], I assume that everything you've said that you're objecting to the termination of services and to the setting?
"[Mother's counsel]: Well, I am at this time, your Honor. As I said I would prefer to go to the 7/11 date. But I—and I was saying at that date I probably would not be objecting, but I'm objecting right now. [¶] . . . [¶]
"The Court: Okay. So Counsel having objected to the setting of the .26, I will rule that Mother has not sufficiently completed her case plan."
The juvenile court based its ruling on the 12-month review report filed on that date. In the assessment/evaluation section, Reynoso reported: "The mother appears to have many mental health issues that would impede her ability to safely parent [Minor]. [Mother] has not addressed her sexual abuse history. Although [Mother] is in therapy at this time[,] her therapeutic goals are based on her personal goals rather than addressing her severe mental health, and substance use which is why [CFS] became involved in the first place. [CFS] is concerned that when faced with a crisis [M]other's untreated mental health will compromise the safety of [Minor] (age 1)."
After the juvenile court terminated Mother's reunification services and set a section 366.26 hearing, Mother filed her notice of intent to file a writ petition. Father, whose services were terminated at the six-month review hearing, also filed a notice of intent to file a writ petition. In her writ, Mother's sole issue is whether the juvenile court erred in advancing the 12-month review hearing from July 11 to June 27, 2019, in Mother's absence. Father joins in Mother's argument. For the reasons set forth below, we hereby deny Mother's and Father's writs.
DISCUSSION
In Mother's writ petition, which the father has joined, Mother contends that "the court should have continued the matter to July 11, 2019 for the (21F) hearing as requested by petitioner's attorney and not proceeded with the (21F) hearing on June 27, 2019." (Underscore omitted.) CFS argues that Parents have forfeited their claim because neither counsel requested a continuance nor did they object to the court conducting the hearing on June 27. We need not consider the forfeiture/waiver argument because any alleged error war harmless.
In In re J.S. (2011) 196 Cal.App.4th 1069, the court held that before any judgment can be reversed for ordinary error, it must appear that the error has resulted in a miscarriage of justice; reversal is justified only when the court, after an examination of the entire case, including the evidence, concludes that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (Id. at pp. 1078-1079, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
In this case, it is not reasonably probably that a result more favorable to mother would have been reached had the hearing been continued for 14 days from June 27 to July 11, 2019.
As discussed above, in the assessment/evaluation section of the 12-month review report, Reynoso noted that Mother had "many mental health issues that would impede her ability to safely parent [Minor]." Moreover, in the report, the social worker wrote:
"[Mother] has a substantial history of drug use and is unable to identify triggers that led her to using drugs. [M]other's sporadic drug test leads the department to doubt her willingness to comply with court orders and prove her sobriety. She is unable to verbalize what behavior changes she has made to help her sobriety.
"[M]other and foster parent both feel that [Minor] is not bonded to [M]other despite the visitations. [M]other feels that [Minor] is more bonded with the foster parent than she is [with mother]. [M]other appears to lack initiative regarding activities during visits to help her bond with [Minor].
"Additionally she does not have suitable housing for herself and [Minor] at this time. She continues to engage in a relationship with [Father]. [Father's] services were terminated on 03/25/19. [M]other's ability and willingness to be protective of [Minor] are questionable based on her continued relationship with [Father].
"[Mother] also has four other children residing with their legal guardian/grandmother. She did not express[] a desire to reunify with [Siblings], which leads [CFS] to doubt [M]other's commitment to be a parent for [Minor] (age 1). [Mother] has not cared for [Siblings] since 2010. When she was asked about why she has not expressed a desire to reunify with them, [M]other stated that she feels that they are already bonded to [MGM]. While [Siblings] were in an open Family reunification case with [M]other, she did not request visits with [Siblings]. [M]other failed to reunify with [Siblings] (ages 8-11 years old)."
Therefore, Reynoso reported that CFS believed that Mother's issues, such as mental illness, substance abuse, unsafe living conditions and unsafe relationships, are deep seeded and without an intense focus on ameliorating these concerns, would put Minor at risk. The social worker further stated that CFS "is not confident that [Mother] will effectively demonstrate a change in her lifestyle within the statutory timeframes to reunify with [Minor], (age 1)."
Moreover, at the hearing, Mother's counsel acknowledged that Mother had unresolved issues. He stated: "Well, as I said, I was wishing to just continue this until the 7/11 date and see whether Mother was able to get a place to live. I think the major issues—there are issues in this case. She's done some of the services, but I saw that she doesn't have her own place yet and is looking for a job. [¶] . . . [¶] I would hope that by 7/11 maybe some of that would have been resolved and then I'd be more comfortable going ahead one way or the other." When the court inquired of Mother's counsel about issues other than housing or a job, he responded: "So anyway, there are other issues, I understand that. [¶] . . . [¶] It's not just housing, but housing is an issue, and employment. If she came in here with housing and employment I'm not sure that we wouldn't go a little further to a .22."
As to Father, Father's services were terminated at the six-month review hearing after he failed to start any of his court-ordered services. There is nothing in the record to indicate that continuing the hearing would have made a difference to Father's case. Even Father's counsel acknowledged that Father did not have any affirmative evidence.
Based on the facts of this case and the discussion that occurred at the hearing, we cannot find that it is reasonably probable that a result more favorable to Mother or Father would have been reached by the juvenile court when it failed to continue the hearing for 14 days—from June 27 to July 11. In the writ petitions, neither Mother nor Father has presented evidence to indicate that holding the hearing on June 27, instead of July 11, caused any harm to either party. Therefore, we hereby deny both Mother's and Father's writ petitions. Parents have also requested that we stay the section 366.26 hearing scheduled for October 25, 2019. Because we have denied Parents' writ petitions, we also deny their request for a stay.
DISPOSITION
The writ petitions and requests for a temporary stay of the section 366.26 hearing are denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. RAPHAEL
J.