Opinion
E084059
09-13-2024
A.M., Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.
Law Offices of Michael J. LaCilento and Michael J. LaCilento, for petitioner. No appearance for Respondent. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie Jarvi, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for extraordinary writ. No. DPRI2200099 Mona M. Nemat, Judge. Petition denied.
Law Offices of Michael J. LaCilento and Michael J. LaCilento, for petitioner.
No appearance for Respondent.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie Jarvi, Deputy County Counsel, for Real Party in Interest.
OPINION
McKINSTER J.
The juvenile court terminated petitioner A.M.'s (mother) reunification services and set the Welfare and Institutions Code section 366.26 hearing. On petition for extraordinary writ, mother contends the juvenile court erred in concluding real party in interest the Riverside County Department of Public Social Services (the department) had provided her with reasonable services, in its finding of detriment in not returning minor to her custody, in denying her request to remove the social worker for bias, and in denying her motion for a mistrial. The petition is denied.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL HISTORY
On September 13, 2022, the department received an immediate response referral alleging physical and emotional abuse. Mother had gone to work on September 8, 2022, where a coworker became worried after observing extensive bruising on mother's face; the coworker shared photographs she took of mother's face with the maternal aunt; the maternal aunt contacted the maternal grandmother; both called law enforcement.
Both parents were arrested. L.M. (minor, born June 2019) was released to the maternal grandmother. When minor awoke, she could not put weight on her leg. Minor disclosed that mother kicked her and that both parents hit her. A soft cast was applied to minor's leg, and it was advised she have a follow up with a pediatrician. The social worker responded to the maternal grandmother's residence where she observed minor with a soft cast on her leg; there was bruising and swelling to minor's shin, leg, and back.
The maternal grandmother reported that mother had previously been placed on a psychiatric hold. She reported that mother had a significant history of substance abuse but was unsure if mother was using again. The maternal grandmother reported that mother had mental health diagnoses including battered women's syndrome, depression, and anxiety. Mother had a prior dependency history, which included unfounded and inconclusive allegations she used cocaine, marijuana, Xanax, and alcohol to cope with stress.
On September 15, 2022, the social worker took minor into custody pursuant to a protective custody warrant and placed her with the maternal grandmother. Mother disclosed a history of drug use including cocaine and MDMA (ecstasy). She said she last used cocaine three years earlier and ecstasy a few months earlier. Mother maintained she had engaged in self-harming behaviors including punching herself and cutting herself with a knife.
The department filed a juvenile dependency petition alleging, as relevant to mother, that parents had an extensive history of engaging in domestic violence in the presence of minor, the most recent of which resulted in injury to minor (a-1 &b-2); that mother neglected the health, safety, and well-being of minor (b-3); and that mother suffered unresolved mental health issues (b-4). The court detained minor on September 20, 2022.
Father is not a party to the petition.
On November 8, 2022, the department filed a first amended petition, which removed the a-1 allegation.
In the jurisdiction and disposition report filed October 17, 2022, the social worker recommended the court find the allegations in the petition true, remove minor from parents' custody, and order reunification services for parents. The social worker proposed that visitation be supervised twice weekly for one hour. Mother's proposed case plan included a domestic violence program, general counseling, parenting education, an outpatient drug program, and drug testing.
The social worker reported that visitation with parents had been positive. Minor was excited to see parents. Parents engaged in age-appropriate conversation and games with her. Minor had difficulty separating from mother during a visit. A forensic medical exam of minor found no definitive physical abuse findings; however, the social worker noted that exposure to violence was associated with psychological harm to minor and would constitute neglect.
On October 28, 2022, the maternal grandmother filed for de facto parent status. In an addendum report filed November 3, 2022, the social worker reported that parents visited separately; when minor saw parents, she appeared happy. Parents engaged in appropriate games and conversation with minor. Minor was bonding well with parents and no safety concerns had been observed. The social worker called and emailed MarSell Consulting (MarSell) to verify services; parents had attempted to enroll but had been unsuccessful.
At the hearing on November 8, 2022, the court found the allegations in the amended petition true, removed minor from parents' custody, and approved the parents' case plan. The department noted that referrals were given to the parents: "Mother had MarSell . . . and they have been trying to contact the mother, but not able to get in touch with mother." The court directed "the Department to contact mother and father again to ensure that the referrals are valid, and they have everything they need to be able to enroll in the services that they need to enroll in." Mother's counsel observed, "It appears for services mother has been having difficulty getting callbacks on the referrals submitted. I request assistance in securing the services. Mother has left quite a few voice mails. She's struggling to secure that service." The court granted the maternal grandmother's request for de facto parent status.
Mother waived her rights to a contested hearing and submitted on the petition and reports.
In the six-month status report filed April 11, 2023, the social worker recommended the court grant parents six months of additional services. Mother reported she had moved into an apartment with father and the maternal grandfather. Mother said she was taking medication managed by a psychiatrist. She had a private therapist whom she had been seeing for two years. Mother said she smoked marijuana to eat and sleep.
The social worker had referred mother to MarSell on September 30, 2022. On March 9, 2023, the social worker requested mother sign a release of information for the MarSell, which mother did. On April 3, 2023, MarSell personnel sent an email to report that mother was enrolled and scheduled to begin weekly domestic violence services and classes beginning on May 12, 2023; mother was not enrolled in individual therapy through MarSell because she had a personal therapist. The social worker could not confirm mother's participation in private therapy; the social worker informed mother that it would not be appropriate for her to see a second therapist through MarSell.
The social worker had referred mother to MFI Recovery Center (MFI) on September 30, 2022, for the parenting education program. On March 9, 2023, the social worker requested mother provide a release of information for the program; mother refused to do so. On April 7, 2023, MFI informed the social worker they could not release any information without a signed release. Mother failed to show for random drug testing on December 2, 2022.
The court ordered visitation by parents to take place separately; however, mother "would linger into the father's visitation time frequently. Because of this, a change was made . . . so that there was a 15-minute window in between the parents' visitation times." Otherwise, the "visits had been going well."
The maternal grandmother informed the social worker on January 8, 2023, that father had physically assaulted mother the prior night. She called the police. Father left before police arrived. The maternal grandmother sent photos of mother's injuries.
The social worker had previously told parents their visits could start to take place out in the community; however, after the domestic violence incident, the social worker required that all visits be supervised by a social services assistant (SSA) in the department's offices.
In the addendum report filed May 9, 2023, the social worker reported that mother had completed a parenting program on January 4, 2023. During a supervised visit on May 4, 2023, the SSA expressed concern that mother did not "look good" and asked if mother were required to drug test. "Due to the mother's current lack of compliance with a substance abuse assessment," the social worker "requested that the mother complete an on-demand saliva drug test after the visit ended .... She declined but indicated that she would complete an on-demand urinalysis drug test." Mother agreed to go to a specified location that day for testing but later texted the social worker she would go the following day due to transportation and work conflicts. The social worker offered mother two additional testing centers which were open additional hours. Mother selected an afterhours testing center.
Mother had texted the social worker on February 23, 2023, that MarSell had not received the referral. The social worker submitted a new referral for domestic violence services that day. Mother texted the social worker on April 17, 2023, writing that MarSell had only received half the referral and had been trying to contact the social worker but had not received any response. Mother expressed disappointment with the lack of communication and support from the department.
The social worker responded, "I have not heard from you since I had asked for you to sign the releases of information .... I have been communicating with MarSell, and they are unable to refer you for counseling because you are receiving therapy privately. I have not been able to confirm whether that is still occurring or not, because I don't have a signed release, but we cannot refer you to a second therapist if you're already seeing a therapist on your own." Mother replied that she wanted to do therapy through MarSell.
At the hearing on May 12, 2023, the department informed the court that "mother's counsel provided . . . certificates of completion for mother for program[s]. One of those certificates of completions was for a 12-hour drug treatment program." The department indicated it had to check whether the program was approved. Minor's counsel noted, "It's my understanding that mother did go to drug test as referenced in the report, but when she arrived[,] she did not have her identification. So I would request the Department provide two more random referrals for mother between now and the next date."
Mother's counsel responded, "Anyway, as far as testing, she did show up. She had a copy of her I.D., and we have a GPS coordinate; she was there. No dispute she showed up. She only had a copy of her I.D., but she did personally show."
The court ordered, "Prior to the next date, I do want two more random drug tests for mom. I want the Department to assess whether the drug treatment that she has participated in complies with the Department's requirements. I want an addendum on that, as well as the random drug testing." "I also want additional information. I noticed in the [delivered service logs (DSLs)], there was an additional domestic violence incident in January, but the report makes zero mention of that. So I want additional information as to the circumstances surrounding that. And I do want-assuming counsel allows for it, I do want the parents interviewed as to that particular incident, as well." The court also ordered the additional drug tests requested by minor's counsel.
In the May 31, 2023, addendum report, the social worker indicated that despite attempts, she had been unable to interview the parents regarding the domestic violence incident as requested by the court. On May 10, 2023, the social worker received a noshow notice regarding mother's on-demand drug test; mother said she went but was not allowed to test because she did not have identification. On May 18, 2023, the social worker requested mother submit to a drug test; mother said she had gone to urgent care that day due to an allergic reaction; she requested to test the next day. On May 19, 2023, the social worker requested that mother drug test, but cancelled the test because the social worker was unable to obtain a referral for a test without identification. Mother reported she had an appointment to obtain a new identification card on May 24, 2024. On May 30, 2023, the social worker called and texted mother asking mother to call her. The social worker indicated she did not know if mother had obtained an identification yet but asked mother to complete drug testing once she had.
At the hearing on June 5, 2023, mother's counsel noted that the DSLs reflected a lot of cancellations of visitation by the social worker: "There's cancellations, rescheduling based on the social worker, which is something I haven't seen. I counted almost 30 times during visits that are canceled, rescheduled." Mother's counsel also complained that the addendum report did not contain information regarding all the programs mother had completed or more information regarding the domestic violence incident: "Now, I've made a motion to recuse the worker, but my client is not perfect; but, you know, the reunification process with the Department has been less than perfect. I think the DSLs tell a lot of information, Your Honor. I will not go into it ad nauseam. But it's there. Even with your addendum report, there are problems. You ordered the Department to get the story on that, on the incident you were concerned about. It didn't happen. It's not in the report."
Some visitation was cancelled or not scheduled by the social worker, who later attempted to schedule make up visits; however, some visitation issues were complicated when mother's phone would not accept calls or voicemails.
There is nothing in the record to suggest mother's counsel had filed a written motion to recuse the social worker at this point.
There is no further information reflected in the record regarding the incident of domestic violence.
Mother's counsel additionally complained about drug testing: "And I understand your concerns with the lack of urine. Now, my client indicates that she did swab. I don't know how there can be insufficient saliva. I've done this 30 years. I never heard that one. That's a first. I haven't heard that."
The report reflected that mother declined to submit to a saliva drug test, not that she could not provide enough saliva for the test.
The department responded, "Regarding the incident, the domestic violence incident, the social worker was not able to get in contact with mother. And it was back and forth. But she does have that information regarding the incident. And if the social worker were to testify, she could provide that information to the Court." "As to the saliva drug test, I've been doing this for 30 years, and we do have-it is common when people are-they go out to do saliva tests, they don't have enough saliva in their mouth, so the test is not able to be conducted. Mother did not have enough saliva when she went in- when the social worker asked her to submit to that saliva drug test. Also, mother went in for the urine test, didn't have enough urine to provide, sat there. Twice they asked her to do the urinalysis, and she was not able to provide enough urine."
There is also nothing in the reports reflecting that mother went to do a urine drug test but could not provide sufficient urine.
With respect to visitation, the department noted that "a lot of those visitations were made up for the mother and a lot were missed by mother, not by fault of the social worker, but by mother .... Needless to say, some of the visitation that mother-was the Department's fault were made up for the mother."
The court noted, "there were issues with some visitation. That was clear from the DSLs. And the Court does note that mother did attempt to make those visitations up. And mother kept contacting the social worker." The court observed that it had continued the matter so that the social worker could obtain more information regarding the domestic violence incident and so that mother could drug test: "Despite this matter being continued a few weeks, almost a month, I have no test results from mother still, not for lack of the Department not submitting referrals, but for other reasons."
The court granted parents six additional months of services and directed the department to include information regarding domestic violence incidents and mother's drug test results in future reports. The court ordered the department, within a month, to determine whether mother's completed services were appropriate and, if not, to provide new referrals.
In the October 24, 2023, 12-month status review report, the social worker recommended the court terminate father's reunification services but provide mother six additional months of services. Mother's therapist provided a copy of mother's certificate of completion of a domestic violence class. The therapist reported that she believed mother "benefitted from her services, as she appears to have gained a lot of insight into her own behaviors . . . and has identified specific things that she plans to do differently moving forward." In August 2023, mother indicated she would like a referral for general counseling as she was no longer receiving individual therapy. The social worker issued the referral on October 23, 2023.
The social worker confirmed that the drug and alcohol awareness classes mother completed would not suffice as they were "online read and review classes, and were not an evidence- based substance abuse treatment program." Therefore, on July 3, 2023, the social worker provided mother a referral for substance abuse treatment. On August 2, 2023, she made a follow-up referral to MFI.
On May 31, June 1, July 6, 11, August 3, 15, September 13, and 22, 2023, mother failed to show for random drug tests. On August 14, 2023, mother provided the social worker with the results of a self-referred hair follicle drug test taken on August 7, 2023; the results were negative for all substances. Mother consistently visited with minor during the reporting period.
During one visit, the SSA reported that mother entered the office during father's supervised visit to retrieve her key; when she exited, "she ran into the SSA and looked stunned, as if she had been caught doing something she should not be doing." "Nonetheless, it appears that the mother is making adequate progress at this time and will soon be ready for unsupervised and overnight/weekend visits."
In the November 21, 2023, addendum report, the social worker reported that mother indicated she had enrolled and was participating in prevention services with MFI; she had completed the first three sessions and needed to complete one more. MFI reported it was short-staffed and could not confirm mother's participation. Mother indicated she wanted to enroll into general counseling through a referral provided from the department; the social worker was working on a referral for her. "However, the mother needs to inform [the department] as to the reason why she is not able to go through her private insurance first. There is concern regarding the mother's lack of compliance with random drug testing."
The report reflects that that the DSLs would be provided to the parties separately prior to the next hearing date, as directed by the court at the hearing on November 7, 2023.
Father had not been cooperative with the department and had not initiated any of the services to which he had been referred. The social worker noted, "there continues to remain concern that the mother is not genuinely benefitting from her services and is merely checking off a checklist to get the dependency terminated. The maternal grandmother and I worry that once the mother successfully reunifies with the child and dependency is terminated, she and the father will leave California . . . together." "Once dependency is terminated, the maternal grandmother believes that the mother is going to leave the state with the father, which will further expose the child to domestic violence, . . ." The maternal aunt reported that mother kept telling father to stay away until minor was returned to her custody, at which time they could do "'whatever they want.'"
At the hearing on November 28, 2023, minor's counsel noted that, in an off-the-record discussion, the court indicated it "may be inclined to order some limited unsupervised visitation to begin upon certain conditions." Minor's counsel submitted on the recommendations, but requested mother submit to a hair follicle test. Mother's counsel agreed that pursuant to "a lengthy off-the-record discussion," the department would refer mother for a hair follicle test; assuming a negative result, mother would begin unsupervised visitations to "increase to . . . four or eight hours of unsupervised, and then eventually overnight, . . . And dad is not to be around mom." The department agreed: "I'll be submitting on the visits for mother to start at unsupervised possibly, I believe, this week for two hours. And then mother to do a hair follicle, and then once we get that hair follicle back and it is clean, we can start the unsupervised visits for the mother and, hopefully, go into overnights, and then [family maintenance] with mother."
The court terminated father's reunification services. The court granted mother additional reunification services but noted, "I just indicated, there are four months left in an 18-month timeline. That is the drop-dead timeline, and there's no additional time after the 18 months, and we are now at 14 months. So we need to either have the child be in a position to return to mother's care on family maintenance in the next four months or terminate services to mother." The court directed the department "to contact the new counselor and inform them of the recommendation by mother's prior counselor and ask them to incorporate codependency as one of the treatment goals with the new counselor. So once mother's hair follicle comes back, and it is negative, and mother has completed at least four sessions of counseling, I will allow for additional unsupervised visits in duration and frequency, transitioning the child to overnights and ultimately family maintenance."
The court noted, "Mother should not have any contact with dad in the presence of the minor, otherwise the Department is authorized to revert back to supervised or do what the Department feels is appropriate." "I want to be absolutely clear. Mother and father should not be together at any given point when the child is present. I can't really control what you do outside the child's presence. But when the child is around, there should be no contact between mom and dad when the child is around. That includes telephonic contact, video, FaceTime, in person, or any other means."
On January 23, 2024, mother's counsel sent a letter to the department alleging the social worker had not provided mother with referrals for a hair follicle test and for a new therapist as ordered by the court. Mother's counsel noted, "Should you not provide my client with the . . . referrals, we will have no choice but to file . . . a Contempt Motion."
On February 2, 2024, the social worker informed mother they were going to discontinue unsupervised visitation for mother; mother responded, "'This is retaliation [for] my lawyer representing me in court today. There ha[ve] been no issues and is no issue. I've followed the rules and did the hair follicle and have started the therapy and other course.'" The court ordered a temporary halt to unsupervised visitation.
At the hearing on February 8, 2024, mother said she received her hair follicle drug test referral on February 1, 2024, which she completed on February 3, 2024. Mother's counsel stated, "The other issue was therapy. There was also a major delay in . . . getting the therapy referral. She just got it and did the intake for it. So the significant delay is prejudicing my client." The court indicated that it had scheduled the instant hearing to ensure mother had received the referrals and that any argument mother had with respect to prejudice could be made at the next hearing.
On February 14, 2024, the department filed an ex parte request to terminate mother's unsupervised visits. The maternal grandmother reported that on January 25, 2024, minor asked if she would get to see father at mother's apartment again. On the same day, minor told the SSA that she would sometimes see father during visits. On February 1, 2024, minor told the SSA she would sometimes see father at mother's home, and they would play together. The social worker emailed mother asking if father had been present at any of her unsupervised visits with minor. Mother responded, "No, he has not been present during any of the visits with me ...." She indicated that father and she "aren't even on speaking terms and I surrendered my ownership of the car . . . so that's not a connection anymore either." The maternal aunt reported that minor informed her she had seen father recently, and that they had watched videos together with mother.
In the February 15, 2024, 18-month status review report, the social worker recommended the court terminate mother's reunification services and set the section 366.26 hearing. The social worker reported that she had resubmitted a referral for general counseling for mother on November 13, 2023. A clinician consulted with the social worker and advised that since mother had private insurance, she should enroll in services through her private insurer. Mother responded that she was unable to enroll through her private insurer, which is why she requested the referral. The clinician referred mother to MFI on November 20, 2023. On December 5, 2023, mother requested a referral for virtual counseling services. MFI indicated that they provided virtual services and requested mother contact them. The social worker provided mother with the number at which to contact them.
The social worker provided the contact information to mother again on December 11, 2023. On December 14, 20223, mother reported that MFI informed her they needed a new referral for virtual services. MFI confirmed they needed a new referral because mother failed to show for individual therapy intake sessions scheduled for December 4, and 14, 2023. On December 28, 2023, the social worker resubmitted the referral. On January 24, 2024, mother was rereferred to MFI.
Over the ensuing weeks, the social worker made repeated, unsuccessful attempts to contact the clinician, who failed to return calls. This apparently necessitated yet another referral.
The social worker submitted a hair follicle test on November 29, 2023. Pharmatech Laboratory (Pharmatech) confirmed receipt of the referral and informed the social worker that mother's voicemail box was full and they were unable to leave a voicemail. The social worker provided mother with Pharmatech's phone number. Pharmatech confirmed receipt of the referral and left a voicemail on mother's cellphone on January 10, 2024. On January 16, 2024, Pharmatech left a reminder voicemail noting the last day for her to test under the referral was January 17, 2024. Mother failed to test. On January 25, 2024, the social worker resubmitted the hair follicle test. On February 2, 2024, Pharmatech confirmed that mother had tested; however, the results of the test were still pending.
The social worker had conducted an unannounced visit on November 22, 2023, to mother's home after father's supervised visitation; while parked outside, she observed father drive his car into mother's garage. The social worker knocked on the door, but no one answered even though she heard shuffling feet. After the social worker cancelled unsupervised visitation, mother denied that father lived with her: "She reported that both she and the father own the car that he drives, but they had arranged for her to keep the car and he is able to use the car when he was in town for his visits." "She stated that she does not allow the father to come into her apartment." Mother and minor had a supervised visit on February 6, 2024: "The mother was appropriate and very attentive and loving towards [minor]."
The social worker opined "mother has not been able to complete her case plan services, and it is questionable as to whether she has genuinely benefitted from the services that she has completed. Although she was provided with 18 months of reunification services, she has only completed a parenting education program and a domestic violence program. The mother does not appear to be truthful with the Department about her relationship with the father, which poses a safety concern for the child. The father was uncooperative with the Department in terms of completing his case plan when he was offered 12 months of services. Further, he failed to take any responsibility for the family's circumstances and placed all culpability on the mother. The father's unaddressed anger issues and history of domestic violence, coupled with the mother's lack of insight as to the effects of her child witnessing intimate partner violence, places the child at high risk of future physical and emotional harm if she were to be returned to the mother at this point in time."
The social worker opined, "Instead of complying with her case plan and trying to truly benefit from the services that have been offered and provided to the mother, she has continued to miss several phone contacts and appointments with her service providers, resulting in needing her referrals to be resubmitted several times. Further, instead of holding herself accountable for missed appointments, phone calls, and sessions, the mother verbalizes that she blames the Department, stating that I never provided her with referrals, which is simply not the case. As such, the mother's lack of insight as to the effects of her child witnessing intimate partner violence, coupled with the father's unaddressed anger issues and history of domestic violence, would place the child at high risk of future physical and emotional maltreatment if she were to be returned to the mother."
On February 27, 2024, mother's counsel filed a motion to remove the social worker or, in the alternative, to strike the social worker's reports due to bias. Mother and counsel alleged the social worker had ignored requests to provide court ordered referrals for therapy and drug testing. They further alleged the social worker had retaliated in response to mother's counsel's "letter saying that I was going to hold her in contempt for disobeying this Court's order."
Counsel's declaration attached to the motion requested both the social worker's removal and the striking of her reports.
At the hearing on February 27, 2024, mother's counsel requested the DSLs be provided and that the social worker be ordered to be present at the contested 18-month hearing. The court ordered the matter continued to March 12, 2024, and that the DSLs from November 28, 2023, through March 8, 2024, be provided to all counsel.
On March 12, 2024, mother's counsel requested the matter be continued. On the same date, the results of mother's hair follicle test of February 1, 2024, were filed; they reflected mother tested negative for all illicit substances.
At the hearing on March 12, 2024, the department objected to the matter being continued; counsel for the department noted, "The DSL[]s that mother's counsel's requesting, I did just print those, so I can get those to him after the hearing."
Mother's counsel indicated he had just received the drug test results, needed the DSLs to cross-examine the social worker, and had not yet obtained documentation of mother's therapy sessions; thus, he was requesting a continuance. Mother's counsel also indicated he wanted to call minor to testify at the hearing.
The court found good cause to continue the matter "in light of the fact that counsel was unable to access the DSL[]s." The court directed that mother's counsel receive a copy of the DSLs. The court also directed that social worker and minor be present at the scheduled hearing on April 9, 2024.
The court noted that it had held an off-the-record discussion regarding mother's motion to recuse the social worker: The court indicated it was "inclined to deny it because the arguments being raised in that motion really go towards unreasonable services and not necessarily towards conflict or bias. But I am denying that without prejudice, so if there's additional information and counsel seeks to revive that, certainly, they . . . [can] do so at a later time."
On April 9, 2024, the department filed the DSLs. On November 28, 2023, the social services supervisor wrote, "I can agree with [the social worker's] assessment of this case and the mom's complaints that usually occurs when she doesn't like what [the social worker] has to tell her about her case. I have met with this mom . . . in person before to address her concerns on a previous complaint. When I was on vacation one time, the then . . . supervisor . . . spoke with her at length when she filed a different complaint. Her allegations about [social worker] not responding to her for months, etc[.] is simply not true. [The social worker] is in regular contact with her." "[I]t was clear in the DSL[]s that all of [mother's] complaints were addressed. I am guessing that there ha[ve] been at least [three] or [four] formal complaints from her while [the social worker] has been overseeing the case. Of huge concern to us is the fact that the mother has told family members that she intends to get back with the father when the child is returned to her care. This makes it difficult to consider the benefit of her services successful as there was [domestic violence] with this dad, ongoing even after it became an [dependency] case. We saw photos of mom's face being beat up but I believe [the social worker] said she denied that father did it."
The DSLs reflect that the social worker submitted a referral for mother's hair follicle drug test on November 29, 2023. The social worker received an email from the testing center reflecting the testing cite had been changed and testing personnel could not leave a message for mother because her voicemail was full.
Mother texted the social worker on December 4, 2023, that she needed a referral to somewhere other than MFI because MFI did not do "telehealth appointments" and that she still did not have a referral for a drug test. The social worker responded, "I was informed they tried calling you but couldn't leave a message because your voicemail box was full." Mother replied, "I found the paper so [M]arsell also does preventative and riverside health system. And then [M]arsell also does tell[e] health therapy and so does riverside health system. As well as corona wellness center." The social worker emailed MFI asking if mother could be referred for virtual counseling.
MFI responded by email to the social worker on December 6, 2023: "MFI can provide virtual services for Individual Therapy. As for . . . counseling, the Intake, Individual services and drug testing are done in person. MFI offers Hybrid groups and consumers can be placed in one . . . [if] space is available." The social worker then texted Mother: "I was informed today that MFI is able to provide virtual services for individual therapy. As for substance use counseling, MFI offers a hybrid group in which you can be placed as long as space is available."
Mother texted the social worker on December 8, 2023, "can you please check the numbers you sent me. When I call the number you sent for the hair follicle it says it's not a working number and the number . . . says it's been disconnected." On December 11, 2023, the social worker texted mother back with the correct contact numbers for the hair follicle drug tests and services with MFI.
Mother texted the social worker a total of four times between December 14, and 18, 2023, that she needed a new referral for virtual therapy. On December 19, 2023, the social worker responded to mother; the social worker apologized and indicated she had been very sick; she informed mother she would obtain the referral that day. That day the social worker spoke with the service provider, who indicated, "we do need a new referral since [mother was] a no show for Individual Therapy Intakes on" December 4, and 14, 2023.
The next day the maternal grandfather texted the social worker "please send [mother] the referral she needs today. These delays are getting ridiculous .... She is trying to complete the necessary steps to achieve the family reunification we all want to see but you are making it impossible to do that without the proper referrals. I just want to go on record to say this is not right and you need to do your job before your lack of follow through negatively affects the lives of" mother and minor. "It should not be that hard to supply a simple referral. It has been over a month and the clock is ticking."
Mother texted the social worker again on December 28, 2023, "have you submitted my referral?" The social worker responded that she had. Mother replied that she was on the phone with the service provider "and she hasn't received a new referral for me." Later that day, the social worker resubmitted mother's referral to MFI. On December 30, 2024, mother texted the social worker, "please let me know once my referral has been submitted[.] I spoke with [the service provider] Thursday and yesterday and she hasn't received the referral." On January 2, 2024, the social worker "confirmed that the referral was received, and I was directed to contact and consult with the . . . clinician to complete the processing of the referral."
The maternal grandfather texted the social worker on January 3, 2024, "Please send [mother] the proper referral. This is getting very serious. You are not doing your job and she needs that referral. It has been almost [three] months since the last hearing and nothing yet from you to let her get the court required therapy done. This is unacceptable and needs to be done today. Please respond[.]"
Mother texted the social worker on January 10, 2024, "A month ago you apologized for not responding for over two weeks due to being sick which I understand and I'm glad you're feeling better. It's now been a month since then and they still haven't gotten the referral from you[.]" The maternal grandfather texted, "Please send the referral and you need to let the court know the only reason she hasn't been able to get it done is because you have never given her the proper referral[.]"
The social worker responded, "I submitted the referral for therapy again on 12/28. I have no control over how long it takes for the referral to be processed. I'm guessing it's because so many people were out or on vacation for the holidays but at this time I'm waiting for the clinician to let me know when she is available to consult again if needed so that she can finish processing the referral I will let the Court know the date I submitted the referral and the date the process was completed[.]"
The maternal grandfather replied, "Will you make sure she has sufficient time to finish the process? These delays are not her fault, she has been ready and willing to start but hasn't been able to yet because of the referral[.]" The social worker responded, "I would disagree with that, but I cannot provide additional details due to confidentiality[.]" The maternal grandfather asked, "What are you disagreeing with? Those are the facts[.]"
The same day, the social worker emailed someone asking "Could you please let me know when we can consult for this . . . ? The service provider, MFI, was just requesting a new referral for this client, as the client had missed her sessions. Although the client has told me that the reason a new referral was needed was because is requesting virtual services." The same day the social worker noted, "Resubmitted hair follicle referral for the mother, as I never received results from the first referral submitted."
Mother texted the social worker on January 17, 2024, that she was on her way to take the hair follicle test. Later, mother texted, "I've been here waiting for a while I have to leave for work in 30 minutes if they don't see me before that can I still go to the one off central that's 24 hrs?" The social worker responded, "I don't think so." Mother replied, "What should I do? Could you call and extend it so I can come back tomorrow before work[?]" The social worker replied, "I don't think I can call to request that. Did they tell you how long the referral is good for?" Mother answered, "Only a few days. I've had a lot of changes at my work lately and just started our competitive season so my schedule has been crazy and jam packed working [seven] days a week at the moment so I went in the only day I was available during their open hours if I could do the after hours place still I could go after work."
On the same day, the social worker noted, "I met with the . . . clinician in attempts to consult on mother's contracted services referral. However, she indicated she was unable to consult at that time, and we arranged a consultation for" January 22, 2024.
The next day, someone from MFI informed the social worker, "Our staff prefers that the first appointment is in person so we can make sure the paperwork is complete, but if she cannot, it is ok. What do you think?" The social worker responded, "I think that is fine, too." The social worker noted that on January 22, 2024, she and the clinician had "completed a consultation for the mother's counseling referral." Mother texted the social worker on January 23, 2024, "any update on my referrals? Called yesterday again and still nothing."
The social services supervisor "carbon copied" (cc'd) the social worker on an email on January 24, 2024, asking, "Can you do me a favor and contact Pharmatech, and let me know which dates they attempted to contact the client, referring her to hair follicle tests?" "We have not gotten any results. Thank you."
On the same date, the social worker noted, the "clinician reported the mother was referred to MFI Recovery for individual therapy and medication evaluation." A person from the testing site responded that they received the referral on January 10, 2024, and called and left a message on mother's voicemail. On January 16, 2024, they left a reminder message that January 17, 2024, was the last day to test. On January 22, 2024, they verified that mother was a no show for testing.
The social services supervisor texted mother on January 25, 2024, "you've been re-referred to the same provider." On the same date, the social worker noted, "Resubmitted hair follicle referral for the mother." On January 31, 2024, at 10:42 p.m., mother texted the social worker "I'm at the drug testing place and got here at 945 and still haven't been seen but I have to have it done by today or my referral expires is there any[]way we can do our visit tomorrow?!" The social worker texted the social services supervisor that mother "said she just finished at the test site but has to go to work now. I hope she did get tested but can't help think something is up." Mother's visit with minor was apparently cancelled that day because she was late due to waiting to drug test.
Mother indicated on February 5, 6, and March 6, 2024, she was participating in therapy through MFI. The social worker noted on February 15, 2024, that she observed father driving the maternal grandmother's car to a visit; it was the same car mother had used earlier to drive to her visit.
At the 18-month hearing on April 9, 2024, minor testified she loved mother. Minor visited with parents at separate rooms at separate times, "Because they keep fighting."
Mother testified that she completed a parenting class, a hair follicle test, and a domestic violence class. In the parenting class, she "learned a lot more about how she will pick up my behavior and my stress levels, even if she is not present during different altercations, if she's not even there or knows about it, she will still pick up on if I'm stressed or different energies happening around. And she could internalize them and try to make up for things to compensate, and then not feel like she is worthy of enough when it's not her responsibility to do any of that."
In the domestic violence class, she "learned probably the most from that one is that my-throughout my childhood, I did not have a healthy relationship of an example for coping or how to problem solve or communicate in a healthy environment. And so I learned a lot about how the things that I thought were red flags are really everything is on fire, and what I thought was normal was not normal. And I learned what real red flags are at the beginning of a relationship, and how to avoid them, and how to manage conflicts better. And how it can-more about how it affects the kids and everybody involved." "I learned about safety planning and always making sure you have things set aside in case you need to get away. And I also learned mostly about what the definition of love is and how-what it is to respect yourself and respect someone else, and how you should be treated."
Mother tested negative for illicit substances with a hair follicle test. Since the last hearing in November 2023, she had attended three therapy sessions with MFI and seven with her personal therapist. She continues to see her personal therapist once or twice weekly. She worked full time and lived with the maternal grandfather and maternal great-grandmother in a home with two bedroom and two bathrooms.
Mother "had a problem with getting communication and responses in regards on whether the referrals have been submitted or not, and then where I'm supposed to go and call for with the information that I need to be where I need to be to get it done." "I was required to go through an outpatient program through MFI, and when I went to do my intake, they said with my negative hair follicle results, I'm unable to be admitted ...." There was a month-and-a-half when she would not get ahold of the social worker despite leaving texts and voicemails. She started asking for the hair follicle test in October or November 2023; she requested it at least 10 times. She complained to the social worker's supervisor 30 times over the course of the case.
The DSLs do not reflect any point at which the social worker did not contact mother for a month-and-a-half.
As noted ante, the social services supervisor reported that mother had made three or four formal complaints against the social worker.
On cross-examination mother testified that on January 10, 2024, the social worker responded to her text the same day. On January 17, 2024, she went to do the hair follicle test but did not complete it. She requested counseling through the department because the maternal grandmother indicated that she was unable to continue paying for mother's personal therapist. Mother started seeing her personal therapist in February 2024, even though the department had set up counseling for her through MFI; she was paying out of her own pocket. She is not in a relationship with father. She had no plans to move out of state.
Mother was supposed to complete four sessions with MFI. She did not receive the referral for MFI until February 2024. Mother attempted to enroll but "they only do it on a walk-in basis, and they won't make appointments. So I went three separate times and was there at nine o'clock in the morning. They open at 8:30 and I got there at nine o'clock. And I waited all the way until to go to work at 2:30 and wasn't able to be seen three separate times." Father was not present during her unsupervised visits. The court continued the contested hearing.
On May 2, 2024, the social worker filed an addendum report, in which she reported that she supervised a visit between mother and minor on February 15, 2024. During the visit, the social worker called father's cellphone; he did not answer, but mother checked her phone and indicated she had just received a missed call from the social worker. Father arrived shortly thereafter for his separate visit; after mother left and father's visitation began, "father stepped out of the visitation room and told me he would be right back and explained he was going to take the car keys to the mother out in front of the office." Toward the end of a visit between mother and minor on April 18, 2024, father arrived in mother's car for his separate visit scheduled thereafter; the SSA reported she observed father hand the keys to mother as he entered the room for his visit.
The department cancelled a visit scheduled for April 30, 2024, between mother and minor when mother failed to show up within the first 20 minutes; mother later arrived at the office and told the receptionist, "'You guys make me want to kill myself.'" The SSA followed mother out of the department's offices and asked mother if she needed her to call a mental health provider for her; mother responded, "'Not right now, but maybe after court next week I might need it.'"
The social worker contacted mother's personal therapist and reported concerns about mother's mental health status. Mother's personal therapist said she would contact mother and check in with her. Later that day, the therapist called the social worker back "and said she connected with the mother and the mother is okay." They had arranged an individual therapy session to follow up.
The maternal grandmother reported she and mother had a conversation in which she told mother she "needs to move past the violent relationship she has with the father. The mother then told the maternal grandmother that there are no domestic violence issues between the father and her. [T]hat it was years ago. [A]nd that they are 'past it.'"
The social worker noted, "At this point in time, the mother has not been able to complete her case plan services and it does not appear that she has genuinely benefitted from the services that she has completed. Although she completed a domestic violence program, the Department believes that the mother has not benefitted from this service. The mother does not appear to be truthful with the Department about her relationship with the father, as evidenced by the child's statements about seeing 'daddy' at the mother's apartment, which poses a safety concern if the child were to be returned to the mother's care. Additionally, the Department has further evidence that the mother is in a relationship with the father and has lied about this and about not having contact with him. More than once, the father and mother have been seen exchanging car keys and either arriving or leaving in the same car. In a text message from the father, he referred to the mother's apartment as 'home.' While making a phone call to the father, the mother received the missed call on her phone. Moreover, the security guard at the office reported seeing the mother and father recently kissing in their ear in front of the lobby."
"The Department is very concerned that the mother has been able to verbalize her understanding of herself being a victim of domestic violence and the father being a perpetrator of domestic violence, yet, she does not intend to terminate that relationship. [¶] The child would be placed at risk of serious harm because the Department believes that the mother plans to continue her relationship with the father, who has not addressed his domestic violence history with the mother."
On the day scheduled for the continued, contested 18-month hearing on May 7, 2024, the department acknowledged that mother's counsel had not been served with the addendum report and that mother's counsel had requested a two-day continuance, to which the department had no objection.
Mother's counsel stated, "I got the addendum at 11 o'clock this morning when the Court asked if I had seen the addendum. It's pretty extensive, and I appreciate county counsel falling on their sword and saying I was not served. So I would ask to trail so I can adequately prepare and go over it with my client."
The court observed, "It's unclear to the Court why the addendum was not served on mother's counsel ....I will note it's an 18-page addendum, where the additional information starts on Page 5. So there is at least 10 pages of additional information." Thus, the court continued the matter for two days "to allow mother's counsel adequate time to prepare appropriately in light of the fact that he was just provided a copy of the addendum less than an hour ago."
At the hearing on May 9, 2024, the department noted, "We did have an off-the-record discussion regarding the addendum that was filed . . . while we were mid trial, and for [mother's counsel] to have more time to speak with his client and to . . . subpoena witnesses. We did pick a date of May 30, 2024." Mother's counsel stated, "As we discussed off the record, I need more time based on the addendum served mid trial. I'm going to make a motion to strike, as well, on that."
The court noted mother's counsel had the opportunity to review the addendum report: "There's additional information that was not provided previously. And so at this time, the Court to ensure that mother's due process rights are not violated will find exceptional circumstances." The court continued the hearing to May 30, 2024.
On May 28, 2024, mother's counsel filed a motion for mistrial predicated on a purported violation of due process "based upon the fact that the Department, on May 7, 2024, during the second day of Trial, improperly served a 17 page Addendum with new facts, evidence, and witness (i.e[.] Rece[]ptionist) which was not previously provided to the Attorney for Mother ...."
On May 30, 2024, mother's counsel argued that his motion "goes to the ability to cross-examine witnesses, be ready. The Court gave me a continuance, which was the right thing to do. But I still have all these new facts and circumstances that I have to deal with. I'm looking at it as deliberate, in my motion to recuse the social worker for bias. I know you did it without prejudice. I'm going to renew that motion again. Even on the conduct-the course of conduct here has been, as we said previously, retaliatory. I believe that was deliberate, you know. Some of this stuff is from February, you know." "And it's a total sandbag, and there is no other word for it. And I think the appellate court is going to agree with me."
"I really believe it was designed based on the history of this case, it wasn't accidental .... It's been a deliberate sandbag." "[W]e get hit with this addendum with all these new allegations, which then I have to go out and refute." "So now I have to rebut all this stuff, delay her reunification. The social [worker] has not complied with any of your orders. She has gone rogue on this when . . . I sent a letter she's in contempt for not doing the referrals that you ordered."
"So I don't think this addendum was by any means or any way accidental. It was absolutely deliberate in my mind. And it's been a sandbag this whole way that I've been on this case. I believe whatever animosity she has for my client and then she was threatened-not threatened, but given a letter . . . that she has not complied with your orders, that we were going to file a contempt for not obeying orders."
The department responded that the court had given mother's counsel two continuances, a total of 23 additional days, to review the addendum, speak to mother about it, and subpoena any necessary witnesses: "So I don't think that the mother is prejudiced with having that addendum filed." Minor's counsel agreed with the department: "I request the Court deny the motion. I certainly don't disagree that an addendum should not be filed mid trial. However, the remedy that the Court provided was appropriate, which is a continuance." "Mother was given a three-week continuance. There was a further continuance so that additional witnesses can be made available to the Court, and that would be an appropriate remedy for the error."
The court noted it "did review the motion for mistrial based on due process violation. In reviewing this case, I'll note that we were set for a [section] [366].22 [hearing] back in February, and we're now at the end of May. The addendum should not have been filed. I don't think there's any dispute by anybody that the addendum should not have been filed."
"Regardless of all of that, the actions that the Court took to avoid a due process violation and prejudice to the mother was it continued briefly to allow counsel to review the addendum and then continued the case for an additional three weeks to allow counsel to have the appropriate witnesses." "It's the Court's understanding that today all of the witnesses that are mentioned in the addendum, short of the therapist, are available for testimony today. And then the therapist is available in June. And the Court has set a further hearing date for that date." "At this time, the Court finds that mother's due process rights are not violated as a result of the filing. Whether the filing was intentional or not is to be left for argument at the close of trial. But at this time the motion for a mistrial is denied."
The department receptionist then testified that in April 2024, mother came to the department to sign in for her visit. The receptionist let her know that she was 22 minutes late, and that the SSA had canceled her visit because she was late. Mother started crying. "[S]he proceeded to say, You guys are making me want to commit suicide. You guys are making me want to kill myself."
The SSA testified that she supervised more than 20 visits between mother and minor. She was scheduled to supervise the visit on April 30, 2024; however, mother was late, so she canceled the visit. The SSA was later told that mother said, "'You make me want to kill myself.'" She then spoke to mother in the parking lot where mother was crying. "I asked [mother] if she was okay, does she need help. And she said, 'No, I don't, not right now. But I might need it after the next court hearing.'" The SSA spoke to the social worker and asked if she could give mother the last 30 minutes of her visit, which the social worker approved. Mother then had an approximately one hour visit with minor.
The social worker testified she had not received confirmation that mother had completed all four required sessions with the therapist. Although mother had completed the bulk of her services, the social worker opined mother had not benefitted from them.
Regarding mother's visit on April 30, 2024, the social worker observed, "The concern is that after being late for her visit, she went to the extreme of talking about killing herself." "So jumping to that extreme makes me concerned for her mental health and stability and perhaps maybe she's not receiving the level of help that she might need."
The social worker contacted mother's personal therapist; the therapist later returned her call and reported that mother was okay. She had never previously spoken to the therapist because mother refused to sign a release of information.
The social worker issued mother a hair follicle referral on November 29, 2023; however, she did not receive confirmation of the referral because the number listed was incorrect; mother had difficulty calling it. The social worker resubmitted the hair follicle test on January 10, 2024; they attempted to contact mother; the referral eventually expired. Mother took the test after the third referral; it reflected negative for all illicit substances.
Throughout the case, mother had purportedly been attending counseling through a private provider; however, mother did not initially sign a release of information. The social worker referred mother to MFI for counseling; however, mother asked for virtual counseling, which necessitated a new referral because mother had missed two intake appointments. The social worker resubmitted the referral for virtual counseling. The social worker knew that mother completed intake and two sessions with MFI; however, mother was to complete four sessions. The social worker had no confirmation that mother had completed all four sessions. In February 2024, minor alleged that she saw father during unsupervised visits with mother.
Mother's personal therapist testified she had been seeing mother on and off since July 2001: "In the beginning, I saw her quite frequently. But as time has gone on, less and less frequently." "[M]ost of the sessions we've had together . . . have been dealing with the stress level of the court case ...." "I'm not remembering specifically doing domestic violence work with her."
Mother "did report that she had done some-I believe some parenting classes and maybe some domestic violence classes. I can't recall exactly." Prior to September 2022, they worked to resolve mother's childhood trauma. Since the initiation of the dependency proceedings, "a lot of the therapist sessions have been about managing the stress of everything that came after that." Mother reported that she is better able to manage her stress levels due to therapy.
The social worker called the therapist when concerned about suicidal statements made by mother. The therapist contacted mother; mother said she was not suicidal.
Mother then testified she had completed all her services. She believed she had benefitted from services: "I think I realized is all of the red flags I wasn't aware of that were red flags in the beginning of situations and also some of my own toxic behaviors, to not continue to have these things in my life." She has not been in a relationship with father for the last 12 months; although, they had been sharing a car. If minor was returned to her custody, they would live with the maternal grandfather.
At the conclusion of evidence, mother's counsel renewed his motion to recuse the social worker for bias. Mother's counsel argued that the social worker retaliated against mother for complaining about the delay in issuing referrals by stating that minor reported seeing father during unsupervised visits with mother. He further argued the social "worker has not done her job. To me, what I got from it, she's very lazy. That's my opinion. She's a very lazy social worker that pawns all the visits off. She's not involved in the visits. She's getting it secondhand, thirdhand. She's canceling the visits. The DSLs are in evidence. Look how many she canceled for various reasons." "You're back to supervised [visits] at the Department because the child allegedly said something, which was never in evidence when we went in to do the chambers."
Minor's counsel argued the court should follow the department's recommendations and terminate mother's services and set the section 366.26 hearing. "I do want to recognize that this is clearly a mother who loves her child very much, and I believe [minor] loves her mother as well." "I would not object to keeping the . . . same weekly visitation so that relationship can be maintained. And Mother can perhaps seek services on her own and potentially file a JV-180."
"The issue here is whether a mother manages to distance herself from the abuser. That's really the issue here. Has Mother been able to distance herself, benefit from services such that she can provide a safe and stable home for [minor]? And I would argue the evidence would suggest she has not distanced herself. I would point to the following. It took a very short period of time for Mother, once she got unsupervised visits at her home, to have the father present at the visit." "This child made credible and consistent disclosures of seeing Father at the Mother's apartment to four different individuals that I can count in a very short period of time. She told her maternal grandmother." "[T]here is an ongoing relationship there. There is not a distancing ...." "I believe the evidence suggests that should [minor] be returned to Mother, that Father will be present with Mother. And she has already witnessed domestic violence." "I would argue there's a substantial risk of detriment of ongoing harm if she's returned."
Counsel for the de facto parent submitted on the department's recommendations and minor's counsel's argument. The department similarly requested the court terminate mother's reunification services and set the section 366.26 hearing.
Mother's counsel replied that mother having continued contact with the father of her child did not amount to detriment. He contended the social worker had an agenda to have minor adopted by the maternal aunt. Mother's counsel requested the court strike the social worker's reports for bias.
The court denied the motion for bias. The court acknowledged that with respect to communications between mother and the social worker, "there was a little bit of a lapse in her responding.... There was an issue with the social worker." Nonetheless, the court noted, "I don't think this is a case of unreasonable services."
"We have a situation where the minor was actually injured during the course of a domestic violence incident between Mother and Father. The minor was removed as a result of that. There was a subsequent incident even after that where Mother and Father were together." The court observed that mother contradicted herself in her testimony with respect to when the relationship with father ended.
The court noted of mother's counsel's letter to the social worker threatening a contempt motion: "The timing is suspicious in that right after that, the minor does disclose-or is alleged to have disclosed on January 25, two days later, that she saw Dad at Mom's apartment a week later-or a week earlier." Nonetheless, the court found minor's reports of seeing father at mother's home during unsupervised visits supported by disclosures made the maternal aunt and maternal grandmother. "[I]t is likely-more likely than not certainly, that the child has seen Mother and Father together at Mother's home, and that there continues to be some form of a relationship, more than just a coparenting relationship between Mother and Father."
"I don't know what additional services could be given to Mother." "[T]his is a benefits issue, and I don't see that Mother has benefited. Mother has not disclosed the domestic violence to her counselor. Mother has continued to interact with Father." The court terminated mother's reunification services and set the section 366.26 hearing.
II. DISCUSSION
A. Reasonableness of Services
Mother contends the court erred in determining she had received reasonable reunification services. We disagree.
"When a child has been removed from a parent's custody, the court ordinarily must order child welfare services designed to facilitate the reunification of the family. [Citations.] Such services may, depending on the case, include evaluations and assessments, counseling, parent education, substance abuse treatment and testing, and other forms of assistance. '"Reunification services,"' we have explained, '"implement 'the law's strong preference for maintaining the family relationships if at all possible.'"' [Citation.] This is because 'services enable [parents] to demonstrate parental fitness and so regain custody of their dependent children.' [Citation.]" (Michael G. v. Superior Court (2023) 14 Cal.5th 609, 624, fn. omitted (Michael G.).)
"'Visitation is a critical component, probably the most critical component, of a reunification plan.' [Citation.] 'Without visitation of some sort, it is virtually impossible for a parent to achieve reunification.' [Citation.] 'The absence of visitation will not only prejudice a parent's interests at a section 366.26 hearing but may "virtually assure[] the erosion (and termination) of any meaningful relationship" between [parent] and child.' [Citation.]" (Serena M. v. Superior Court (2020) 52 Cal.App.5th 659, 673.)
"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 service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult ....' [Citation.] Reunification services should be tailored to the particular needs of the family. [Citation.]" (In re A.G. (2017) 12 Cal.App.5th 994, 1001.)
"'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.]" (In re 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.]" (Ibid.)
Here, the juvenile court sustained allegations that mother had an extensive history of engaging in domestic violence in the presence of minor, the most recent of which resulted in injury to minor; that mother neglected the health, safety, and well-being of minor; and that mother suffered unresolved mental health issues. The court approved the department's proposed case plan for mother, which included a domestic violence program, general counseling, parenting education, an outpatient drug program, and drug testing.
Prior to the court's order sustaining the allegations and approving the proposed case plan, the social worker had already referred mother to Marsell for domestic violence classes and individual therapy. On the same day, the social worker had referred mother to MFI for substance abuse treatment and a parenting education program.
On February 23, 2023, the social worker submitted another referral for domestic violence services. On July 3, 2023, the social worker provided mother another referral for substance abuse treatment. On August 2, 2023, she made a follow-up referral to MFI.
The social worker reported that she had resubmitted a referral for general counseling for mother on November 13, 2023. On December 5, 2023, mother requested a referral for virtual counseling services. MFI indicated that they provided virtual services and requested mother contact them. The social worker provided mother with the number at which to contact them. On December 11, 20203, the social worker provided the contact information to mother again. On December 28, 2023, the social worker resubmitted the referral. On January 24, 2024, mother was rereferred, yet again, to MFI.
Mother failed to show for random drug testing scheduled by the social worker for December 2, 2022. On May 4, 2023, the social worker "requested that the mother complete an on-demand saliva drug test after the visit ended .... She declined but indicated that she would complete an on-demand urinalysis drug test." Mother agreed to go to a specified location that day for testing but later texted the social worker she would go the following day due to transportation and work conflicts. The social worker offered mother two additional testing centers that were open additional hours. Mother selected an afterhours testing center. Although mother showed, she failed to test because she did not bring appropriate identification with her.
Mother failed to show for an on-demand drug test scheduled for May 10, 2023. On May 18, 2023, the social worker requested mother submit to a drug test; mother said she had gone to urgent care that day due to an allergic reaction; she requested to test the next day. On May 19, 2023, the social worker requested that mother drug test, but cancelled the test because the social worker was unable to obtain a referral for a test that would not require identification. Mother reported she had an appointment to obtain a new identification card on May 24, 2024.
On May 30, 2023, the social worker called and texted mother asking mother to call her. The social worker indicated she did not know if mother had obtained an identification yet but asked mother to complete drug testing once she had.
At some point, mother apparently showed up to complete a drug test; however, she either declined to provide salvia or was unable to produce sufficient saliva for the test. Instead, she offered to take a urine test, but she was unable to produce sufficient urine for the test.
On May 31, June 1, July 6, 11, August 3, 15, September 13, and 22, 2023, mother failed to show for random drug tests. The social worker submitted a referral for a hair follicle test on November 29, 2023. Thereafter, the social worker resubmitted the hair follicle referral. Pharmatech confirmed receipt of the referral and left a voicemail on mother's cellphone. Pharmatech left a reminder voicemail noting the last day for her to test under the referral. Mother failed to test. The social worker then resubmitted the hair follicle test. On February 2, 2024, Pharmatech confirmed that mother had tested.
Here, the services offered by the department, described ante, were tailored to the problems leading to mother's loss of custody of minor and were designed to remedy those problems. The social worker referred mother to services for each, specific need on multiple occasions, and she maintained consistent contact with mother. As the court noted, "I don't think this is a case of unreasonable services." "I don't know what additional services could be given to Mother." Substantial evidence supports the court's determination that the services provided to mother by the department were reasonable.
Of course, as the court also noted, services were not perfect. The court acknowledged that with respect to communications between mother and the social worker, particularly in the last few months, "there was a little bit of a lapse in her responding." "There was an issue with the social worker."
However, much of the disconnect had to do with mother. Rather than enroll in the drug treatment program to which she had been referred by the department, mother chose to enroll in another program. The social worker later confirmed that program failed to meet the requirements of mother's case plan, which required a new referral to a drug treatment program. After the social worker made referrals, the service providers had problems contacting mother; they would sometimes either leave voicemails, which were never returned, or mother's voicemail box would be full.
The record does not reflect mother ever completed this portion of her case plan.
Mother initially chose to continue individual counseling with her private therapist rather than through the program offered by the department. She later wanted to do counseling through the department, which required a new referral because the previous one had expired. Later still, mother indicated she would only do counseling in a virtual program. Mother failed to show for two individual therapy intake sessions, requiring the social worker to resubmit the referral again.
Mother refused to sign releases for some programs, which made it impossible for the social worker to determine whether mother had participated in or completed those services. Mother repeatedly failed to show for drug testing. In some instances, when mother did show for drug testing, she was "unable" to provide samples or identification.
Mother appears to contend that the department failed to provide adequate services when it moved mother to supervised visitation. First, mother received ample visitation during the reunification period. Mother moved from twice weekly supervised visitation in the department's offices to unsupervised visitation in her own home. Mother's visitation was never entirely cancelled; it was only changed back to supervised. Thus, this is not a case where the department denied mother any or all visitation.
Second, the record belies counsel's apparent contention that the department failed to present competent or convincing evidence that the father was in the home during mother's unsupervised visits. With mother's agreement, the court granted mother unsupervised visitation with minor so long as father was not present during the visits.
Nevertheless, the maternal grandmother reported that minor asked if she would get to see father at mother's apartment again. On the same day, minor told the SSA that she would sometimes see father during visits. On another day, minor told the SSA she would sometimes see father at mother's home, and they would play together. The maternal aunt also reported that minor informed her she had seen father recently, and that they had watched videos together with mother. The court found minor's reports of seeing father at mother's home during unsupervised visits to multiple people supported the truth of those disclosures. The reports of the maternal aunt, the SSA, and the maternal grandmother were more than sufficient to support the court's order terminating unsupervised visits.
B. Detriment
Mother contends the court erred in not returning minor to her custody. We disagree.
"[T]he court is required to return the child to the parent's physical custody unless the Agency proves, by a preponderance of the evidence, that return would create a substantial risk of detriment to the child's physical or emotional well-being. [Citation.] We review the evidence most favorably to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court's ruling. [Citation] 'The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.' [Citation.]" (In re Mary B. (2013) 218 Cal.App.4th 1474, 1483 (Mary B.).)
We review a finding of detriment for substantial evidence. "'We do not evaluate the credibility of witnesses, attempt to resolve conflicts in the evidence or determine the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding.' [Citations.]" (In re M.D. (2023) 93 Cal.App.5th 836, 857.)
"To balance the interest in family preservation with the child's interest in the prompt resolution of her custody status and long-term placement, the dependency law establishes a detailed timeline for reunification. For qualifying parents, the minimum length of reunification services depends on the age of the child at the time of removal. [Citation.] Parents of children under three are presumptively eligible for at least six months of reunification services. [Citation.]" (Michael G., supra, 14 Cal.5th at p. 625, fn. omitted.)
"Reunification services are ordinarily provided for a maximum of 18 months after a child has been removed from parental custody. [Citations.]" (Michael G., supra, 14 Cal.5th at p. 625.) "'[I]n order to prevent children from spending their lives in the uncertainty of foster care, there must be a limitation on the length of time a child has to wait for a parent to become adequate.' [Citation.] If the child has already been out of the parent's custody for 18 months and still cannot be safely returned, the statute instructs that the court ordinarily must proceed to schedule a permanency planning hearing under section 366.26, at which the court decides whether to terminate parental rights and place the child for adoption or else select another permanent plan. [Citations.]" (Id. at p. 627.)
Here, again, the juvenile court sustained allegations that mother had an extensive history of engaging in domestic violence in the presence of minor, the most recent of which resulted in injury to minor; that mother neglected the health, safety, and well-being of minor; and that mother suffered unresolved mental health issues. The court approved the department's proposed case plan for mother, which included a domestic violence program, general counseling, parenting education, an outpatient drug program, and drug testing.
First, as discussed ante, the department referred mother to services for each, specific need on multiple occasions, and maintained consistent contact with mother. Nonetheless, after 18 months, mother failed to complete her services, which is prima facie evidence of detriment.
Mother did complete the domestic violence and parenting components of her case plan. Mother testified she had completed all her services.
Mother failed to complete the drug testing component of her case plan. As discussed ante, mother failed to show for at least 13 drug tests scheduled by the department over the course of 18 months. Mother only completed one drug test ordered by the department.
Mother completed one additional test, which she took on her own.
There is also nothing in this record to support a contention that mother completed the outpatient drug program portion of her services. Mother completed a self-referred 12-hour drug treatment program, which the social worker confirmed did not meet department criteria because it consisted only of "online read and review classes, and [was] not an evidence- based substance abuse treatment program."
Additionally, there is nothing to support a contention that mother completed the individual counseling component of her case plan. As discussed ante, mother initially wanted to continue participating in individual counseling through her private counselor; however, mother refused to sign a release, which would have enabled the social worker to determine if her counseling was in compliance with the case plan.
Mother's personal therapist testified at the 18-month hearing that she had been seeing mother on and off since July 2001: "In the beginning, I saw her quite frequently. But as time has gone on, less and less frequently." The therapist testified she did not recall discussing domestic violence issues with mother. Thus, mother had not seen her counselor consistently and, as the court ruled, had not discussed requisite domestic violence issues in her counseling sessions.
Mother's therapist's testimony conflicts with mother's testimony that she saw the therapist once or twice weekly.
Toward the end of the reunification period, mother requested a new referral to counseling services through the department. Later still, mother indicated she wanted to do counseling in a virtual program. Mother failed to show for two individual therapy intake sessions requiring the social worker to resubmit the referral again.
After 14 months of services, the court directed mother to complete only four documented sessions of individual therapy prior to the 18-month hearing. However, the social worker had no confirmation that mother had completed all four sessions. Mother herself testified she had attended only three of the four required therapy sessions. Thus, mother had not completed the individual counseling component of her case plan.
In fact, the social worker testified she had confirmation that mother had only attended an intake appointment and two of the four counseling sessions ordered by the court.
Second, mother did not appear to have benefitted from the portions of the case plan she had participated in and completed. The primary issue leading to the department's involvement had been domestic violence between parents during which minor became injured. More than three months later, after mother began participating in services, parents were involved in another domestic violence incident after which the police had been called.
Included in the record is a fairly gruesome picture of mother after sustaining injuries from that incident.
Despite the incident, the court later moved mother to unsupervised visitation, the sole proviso being that father was not allowed to be present during visitation. Nonetheless, as discussed ante, multiple people reported that minor had informed them that father was present during visitation. The court found those disclosures credible.
Contrary to mother's implication, the juvenile court did not bar mother from having any contact with or being in a relationship with father; the court simply barred mother from allowing father to be present while she had unsupervised visitation with minor: "I want to be absolutely clear. Mother and father should not be together at any given point when the child is present. I can't really control what you do outside the child's presence. But when the child is around, there should be no contact between mom and dad when the child is around. That includes telephonic contact, video, FaceTime, in person, or any other means." (Italics added) Thus, the court did not need to find competent, or convincing evidence that "Mother was in fact . . . back with the Father." Nonetheless, as discussed post, sufficient evidence supported the court's finding that "it is . . . more likely than not . . . that there continues to be some form of a relationship, more than just a coparenting relationship between Mother and Father."
Mother's credibility was at issue here. She initially indicated that father and she "aren't even on speaking terms and I surrendered my ownership of the car . . . so that's not a connection anymore either." Later evidence reflected that father and mother were using the same car. Mother then took the position that she and father shared a vehicle, but that she never allowed him into her apartment. Nonetheless, on one occasion the social worker observed father open the mother's garage door, park the car inside, and close the garage; she later heard shuffling feet inside the home when she knocked on the door.
Mother and father appeared to be traveling together to their contiguous visits at the department's offices. Mother appeared to possess father's phone. Parents were seen kissing in their car in front of the department's offices. Mother testified at the 18-month hearing that she had not been in a relationship with father for the last 12 months; although, they had been sharing a car. The court's credibility determination that parents were still involved in a relationship with one another was supported by substantial evidence.
The social worker, the social services supervisor, the maternal grandmother, and the maternal aunt all worried that if the dependency were terminated, parents would leave the state together with minor and return to the exact same cycle of domestic violence that led to the dependency proceeding in the first place. The maternal aunt reported that mother repeatedly told father to stay away until minor was returned to her custody, at which time they could do "'whatever they want.'"
Thus, the social worker and social services supervisor opined that mother did not appear to have benefitted from services. The social worker testified mother had not benefitted from the services she had completed. Thus, the court's finding that mother had not benefited from the services was supported by substantial evidence. Therefore, the court's inherent finding of detriment was likewise supported by substantial evidence.
C. Motions to Remove the Social Worker
Mother contends the court abused its discretion in denying her motions to remove the social worker. Mother alleges the social worker recommended unsupervised visitation be discontinued as retaliation against mother for threatening to file a contempt motion. We disagree.
"Any party to a dependency proceeding may bring a motion before the juvenile court to have a social worker removed from the case. The juvenile court judge in the dependency proceeding shall grant the motion if a preponderance of evidence shows that a conflict of interest has occurred that would interfere with the social worker's ability to objectively carry out his or her duties ...." (§ 16513.5) Instances of a conflict of interest include, but are not limited to, sexual contact with a party, a relationship with a party, and a conviction for perjury in a dependency proceeding. (§ 16513.5, subds. (a)-(c).)
"Rulings other than judgments ordinarily are reviewed for abuse of discretion." (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066; see In re Guardianship of Coburn (1913) 165 Cal. 202, 218 [Question of bias reviewed for abuse of discretion]; In re J.S. (2024) 100 Cal.App.5th 246, 252 [Decision to seal or refuse to seal records]; In re K.B. (2024) 99 Cal.App.5th 348, 354 [same]; In re I.E. (2023) 91 Cal.App.5th 683, 691 [beneficial parental relationship exception]; In re Abigail L. (2022) 75 Cal.App.5th 169, 178 [de facto parent request].) "Under the abuse of discretion standard of review, we determine whether the juvenile court's decision exceeded the bounds of reason and, in so doing, we cannot substitute our view for that of the juvenile court. [Citations.]" (I.E., at p. 691.)
First, the record belies mother's counsel assertion in the motion to recuse that the social worker had failed to refer mother for the hair follicle test and general counseling. On November 28, 2023, the court directed the department to refer mother for four counseling sessions and a hair follicle drug test. The social worker submitted a hair follicle test on November 29, 2023. The social worker provided mother with an inaccurate phone number, so the social worker issued another referral. Pharmatech confirmed receipt of the referral and informed the social worker that mother's voicemail box was full, and they were unable to leave a voicemail. The social worker provided mother with the provider's correct phone number. The provider left a voicemail on mother's cellphone on January 10, 2024. On January 16, 2024, Pharmatech left a reminder voicemail noting the last day for her to test under the referral was January 17, 2024. Mother failed to test. On January 25, 2024, the social worker resubmitted the hair follicle test. On February 2, 2024, Pharmatech confirmed that mother had tested.
The social worker reported that she had resubmitted a referral for general counseling for mother on November 13, 2023. On December 5, 2023, mother requested a referral for virtual counseling services. MFI indicated that they provided virtual services and requested mother contact them. The social worker provided mother with the number at which to contact them. On December 11, 2023, the social worker provided the contact information to mother again. On December 28, 2023, the social worker resubmitted the referral. On January 24, 2024, mother was rereferred, yet again, to MFI. Thus, the social worker made referrals for both the hair follicle drug test and counseling as ordered by the court.
Second, as discussed ante, there was substantial evidence to support the court's determination that mother had been allowing father to be present during unsupervised visitation, in direct contravention of the court's order. The reports of three different persons that minor had contact with father during unsupervised visits and the contradictions in mother's reports about her relationship with father supported the court's determination to terminate mother's unsupervised visitation. Thus, there was no evidence that the department's recommended change regarding visitation was based on the threatened contempt motion. The court acted within its discretion in denying mother's motions to recuse the social worker for bias.
D. Motion for Mistrial
Mother contends the trial court abused its discretion and violated her due process rights by denying her motion for mistrial and by permitting admission of the addendum report midtrial. We disagree.
In dependency cases, parents do not have the same due process rights as defendants in criminal proceedings. (J.H. v. Superior Court (2018) 20 Cal.App.5th 530, 537.) "This is because '[c]riminal defendants and parents [in dependency proceedings] are not similarly situated. By definition, criminal defendants face punishment. Parents do not. [Citation.]' [Citation.]" (Ibid.) "Due process during a dependency hearing generally requires that parents be given the right to present evidence, to cross-examine adversarial witnesses, and for counsel to be provided the opportunity to argue the merits of an issue. [Citation.]" (In re L.J. (2023) 89 Cal.App.5th 741, 753-754; see In re Jayden G. (2023) 88 Cal.App.5th 301, 309 ["In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them that an action is pending and afford them an opportunity to defend."].)
"The due process rights of the parent are adequately protected so long as [the parent] receives a copy of the social study report in advance of the hearing, has the opportunity to cross-examine the author of the report and subpoena and examine the persons whose hearsay statements are set forth in the report, and is permitted to introduce rebuttal evidence. [Citation.]" (In re Jose M. (1988) 206 Cal.App.3d 1098, 1105; see In re Corey A. (1991) 227 Cal.App.3d 339, 348 ["[D]ue process insures a parent the right to cross-examine any testifying witness, and the right to examine persons whose evidence is compiled within a social study received in evidence."]; In re Nemis M (1996) 50 Cal.App.4th 1344, 1353 [same.].) "We review de novo whether inadequate notice violated a parent's due process rights. [Citation.]" (In re Jayden G., supra, 88 Cal.App.5th at p. 308.)
The court properly denied mother's motion. Whether the filing of the addendum report midtrial was proper, the parties and the court agreed to give defendant more than three weeks to review the 17-paged addendum and call any new witnesses cited in the report. The court noted that all the appropriate witnesses were available either that day or at the next scheduled day for the contested hearing. Mother's counsel received a copy of the report sufficiently in advance of the hearing, had the opportunity to cross-examine the author of the report, had the opportunity to subpoena and examine the persons whose hearsay statements were set forth in the report, and was permitted to introduce rebuttal evidence. Thus, mother's due process rights were not violated.
III. DISPOSITION
The petition is denied.
We concur: RAMIREZ P. J. FIELDS J.