Opinion
F079980
12-11-2019
AMANDA G., Petitioner, v. THE SUPERIOR COURT OF TUOLUMNE COUNTY, Respondent; TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Scott J. Gross, Public Defender, and Dana R. Gross, Deputy Public Defender, for Petitioner. No appearance for Respondent. Sarah Carrillo, County Counsel, and Cody Nesper, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JV7922, JV7923)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Kate Powell Segerstrom, Judge. Scott J. Gross, Public Defender, and Dana R. Gross, Deputy Public Defender, for Petitioner. No appearance for Respondent. Sarah Carrillo, County Counsel, and Cody Nesper, Deputy County Counsel, for Real Party in Interest.
Before Poochigian, Acting P.J., Detjen, J. and Meehan, J.
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Amanda G. (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) from the juvenile court's orders issued at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)(1)), terminating her reunification services and setting a section 366.26 hearing as to her now six-year-old daughter, Al.S., and three-year-old son, Ar.S. (the children). Mother contends there was insufficient evidence to support the court's decisions not to return the children to her custody and to terminate her reunification services. We deny the petition.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
On July 5, 2018, deputies from the Tuolumne County Sheriff's Department conducted a probation search at the home of mother's sister, Amy, and Amy's boyfriend, Jason. Amy had been caring for the children for a year. The deputies found drug paraphernalia within the children's reach in the home. A methamphetamine pipe and two plastic Ziploc bags containing white residue were discovered in the master bathroom attached to the bedroom where then four-year-old Al.S. was sleeping. Several pieces of burnt foil indicative of heroin use were located in a cabinet underneath the guest bathroom sink and a methamphetamine pipe was located in another bedroom. There was also garbage, pornography, sexual devices and dog feces throughout the home. Social workers from the Tuolumne County Department of Social Services (department) were called to the scene.
Amy said she and Jason argued and she left approximately 10 days before. She and the children returned that morning. She denied using drugs but declined to test for the social workers. Jason used methamphetamine during Amy's absence and said the paraphernalia belonged to him and his friends.
Sheriff's deputies arrested Amy and Jason for child endangerment and unlawful possession of drug paraphernalia and the social workers took the children into protective custody and placed them in foster care.
Social workers met with Morgan S. (Morgan), the children's father, who said he had limited visitation with Al.S. and had never held his son. He believed mother had signed custody of the children over to Amy. He said he completed inpatient treatment for methamphetamine abuse and had been sober for approximately a year. However, he tested for the social workers and produced a presumptive positive result for various drugs, including methamphetamine. He claimed it was a "false positive."
On July 9, 2018, mother contacted the department to inquire about the children. She spoke to a social worker who asked her to meet and develop a safety plan for the children. However, mother declined and objected to the worker's attempt to force a meeting. Her anger escalated, and she hung up the phone. That day, the department filed a dependency petition on the children's behalf, alleging their parents failed to protect them by placing them with Amy and Jason.
The juvenile court ordered the children detained and adjudged them dependents. (§ 300, subd. (b)(1).) The department recommended the court order the parents to participate in mental health and substance abuse services, complete a parenting program and visit the children weekly under supervision. It also informed the court that Amy filed a petition in October 2017, seeking guardianship of the children. The court investigator was unable to make a recommendation and highlighted some concerns with the safety and cleanliness of Amy's home, Al.S.'s behavioral issues and the ongoing involvement of Amy's mother, Cheryl, and Cheryl's boyfriend, Randy, in the children's lives. Cheryl and Randy had extensive criminal backgrounds, were chronically homeless and abused drugs. The investigator was also concerned that Amy had a pending case for driving under the influence and Jason had a recent misdemeanor drug conviction.
At the dispositional hearing in August 2018, the juvenile court adopted the department's recommendations and ordered mother and Morgan to participate in Dependency Drug Court (DDC).
Mother did not participate in reunification services during the first six months and only visited the children twice. She entered residential drug treatment on September 20, 2018, but left the following day. She entered another treatment program on October 12 but left six days later. On November 6, the juvenile court terminated her from the DDC program and ordered her to comply with a family reunification plan that required her to participate in individual mental health and substance abuse counseling, parenting education, substance abuse treatment groups, random drug testing and 12-Step meetings. On November 20, the court terminated Morgan from the DDC program because he was in custody, serving a two-year prison sentence for robbery.
In January 2019, mother's attorney filed a modification petition under section 388 (section 388 petition), asking the juvenile court to reinstate DDC services. As changed circumstances, mother alleged she abstained from drug use, associated with sober people, was engaging in services and visiting the children.
All subsequent date references are to the year 2019. --------
In its report for the six-month review hearing, the department recommended the juvenile court terminate mother and Morgan's reunification services and set a section 366.26 hearing. It also reported Al.S. was having emotional and behavioral problems, which necessitated five foster home placements. She was removed from one foster home because she was engaging in sexual acts with the daughter of her foster parents. When questioned about it, she disclosed she was sexually abused while in Amy and Jason's home. Her therapist reported she struggled with inattention, hyperactivity and mood dysregulation. She frequently cried, screamed, threw tantrums, stomped her feet, yelled, slammed doors and threw herself against the wall when she was angry or sad. She was in a constant state of hyperarousal and anxiety, causing her to isolate herself and at times refuse to leave the house. Her anxiety was severe enough that she became physically ill or verged on panic. She also struggled with sleeplessness, excessive worries, fears, and hypervigilance. Her therapist attributed her symptoms to extensive trauma and neglect.
On April 19, the juvenile court convened a six-month review hearing combined with a hearing on mother's section 388 petition. The department changed its recommendation and recommended that Morgan be ordered reunification services and that mother comply with a DDC reunification plan. The court continued the hearing to April 30.
On April 30, the juvenile court found the department provided the parents reasonable reunification services and ordered mother to complete a parenting program and participate in mental health counseling, substance abuse services through the DDC program and random drug testing. The court also ordered her to participate in a bonding study. Mother signed the case plan, agreeing to participate in the services identified. The court ordered Morgan to participate in services available in prison and set a review hearing for July 23 and a hearing before the DDC for May 14.
On May 9, mother missed a substance abuse counseling session. The following day she failed to appear for a drug test. Over the next several weeks, she tested positive for THC, missed another substance abuse counseling session and failed to submit proof she attended 12-Step meetings.
On June 11, mother appeared before the DDC. The day before, she entered New Life treatment program (New Life), a six-month residential drug treatment program in Santa Cruz. The court ordered her to complete New Life's program.
By July 23, the time set for the 12-month review hearing, mother had completed six weeks of treatment at New Life but regularly tested positive for THC and once tested positive for alcohol. She was also participating in a parenting class and counseling and on her own arranged to have a social worker aide coach her during visitation.
In its report for the 12-month review hearing, the department recommended the juvenile court terminate mother's reunification services because, although she made progress in some areas of her services plan, her participation was inconsistent, and her progress overall was not substantive. In addition, the psychologist who performed the bonding study reported that mother's bond with the children was "positive yet weak." She had not been a consistent caregiver for them. Therefore, they were able to develop new and positive attachments to other caregivers and would not be "negatively, irrevocably impacted" if they were separated from her. By this time, the children had been placed together with foster parents who were willing to adopt them.
Morgan acknowledged he could not care for the children, but mother objected to the department's recommendations and the juvenile court conducted a contested 12-month review hearing on August 21.
Social worker Rachel Sargent testified mother had been actively participating in services since she took over the case the previous May. However, the department was concerned that mother relied on Amy for support and it doubted that Amy was a safe person. The department was also concerned that mother allowed Amy contact with the children. The most recent contact occurred the day before on the occasion of Al.S.'s birthday. Amy and Jason delivered some supplies to the party and had contact with the children although mother had been warned multiple times and knew they were not supposed to be there.
Mother testified Amy had been like a mother to her since she was a teenager. Asked what her relationship was to Amy, mother responded, "She's my sister. She's a very positive support." She was the only stable and supportive person in her life. Amy encouraged her to attend meetings and parenting classes and provided her transportation. She knew Amy was an addict and got clean and sober after the children were removed from her but did not know if she and Jason were using drugs while the children were living in their home. She explained that Amy and Jason did not attend her visit with the children the day before but dropped off some party supplies. She estimated they were there less than two minutes, just long enough to give her the birthday cake, a few gifts and balloons. She did not believe that Al.S. was sexually abused while in Amy and Jason's care. She asked them about it and they emphatically denied it. She said it was still under investigation. She planned to complete residential treatment and request an additional six months to stay in sober living. She had a sponsor and was working on the first step of the 12-Step program.
The juvenile court found it would be detrimental to return the children to either parent's custody, stating "At this time the Mother remains in residential rehab for several more months, if she stays in the program and completes it. The Father remains in prison. And the evidence in the case is that the only other possibility for the children was the home of her sister, [Amy], which was the home from which the children were removed to start this case. [¶] And although mom convincingly and repeatedly believes that it would be a suitable home for the children, the court disagrees."
The juvenile court also found the department provided the parents reasonable reunification services. As to mother, the court noted she participated in DDC which offers a "very long list of services [and] programs ...." Additionally, the department offered her three opportunities to participate in residential treatment, and provided visitation, transportation, counseling, parenting education and testing.
Finally, the juvenile court found there was not a substantial probability the children could be returned to parental custody with continued services. Although the court found mother consistently and regularly visited the children and was making substantial progress at New Life, it could not find she was able to complete the objectives of her case plan and safely parent the children. The court's concern was that she did not have a track record of parenting the children while they were in Amy's care and before she started earnestly participating in services. The court was also concerned that she continued to believe Amy was a positive influence and was clean and sober when there was no evidence to support it. The court explained:
"[I]t's of great concern to the Court that [mother] persists in the notion that, quote, Amy and Jason are absolute positives, close quote. Amy is a, quote positive influence. And that she represents to the court that Amy is clean now; although, there is no evidence presented of that factor to the Court.
"But the repeated nature of this testimony, the intensity of [mother's] testimony about her sister, and the body language of [mother] when she talks about her sister [as] a positive causes the court great concern as to whether or not [mother] herself will be able to be a consistent and adequate parent while under the influence of her sister, Amy, whom she calls such a great influence and, in fact, a mother figure of her life, because through [no] fault of [mother] or [Amy], [Amy] ... was [mother's] legal guardian for the last three years of her minority, according to her testimony.
"[T]he ... court was asked to take judicial notice of [Amy's] criminal file, which ... shows that [Amy] was accused of and pled guilty to child endangerment of these very two children. [¶] ... [¶] ...[Mother] shows no signs whatsoever that she's developed the ability through classes, through counseling, through reviewing the assessment to recognize or mitigate the risk and harm that came to her children when she left them with her sister and when a criminal case also developed. [¶] ... [¶]
"These children are still very young. They deserve stability and permanency in a safe home. And the evidence in this case does not lend to a conclusion that there's a substantial probability they will be returned to their mother within the six-month time period, nor that there's another safe place for them to be within their mother's circle of support, friends and family."
The juvenile court terminated reunification services and set a section 366.26 hearing for December 17, 2019. This petition ensued.
DISCUSSION
I. Detrimental Return
Mother contends the evidence was insufficient to support a finding the children could not be returned to her custody without exposing them to a substantial risk of detriment. It was insufficient, she argues, because it was based strictly on her resident status at a drug treatment program without any evidence that it was unsafe for the children. Therefore, the court erred in not placing the children with her there.
There is a statutory presumption at each review hearing that a dependent child will be returned to parental custody. (§§ 366.21, subds. (e) & (f), 366.22, subd. (a).) The juvenile court's decision not to return the child must be based on a preponderance of the evidence that return "would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (f)(1).) The burden of establishing detriment falls on the department. (Ibid.)
On a challenge to the sufficiency of the evidence to support the juvenile court's finding, the question is not whether a contrary finding might have been made, but whether substantial evidence supports the finding made by the court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) We review a finding of detriment for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.) " 'Substantial evidence' means evidence that is reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) In reviewing the record for substantial evidence, we consider the evidence favorably to the prevailing party and resolve all conflicts in support of the juvenile court's finding. (Ibid.) We conclude substantial evidence supports the court's detriment finding.
As a preliminary matter, we note that mother did not ask the juvenile court to place the children with her at New Life. Nor did she or the department present any evidence that the New Life residence policy allowed it. Consequently, there is no reason to believe it was a viable option. However, even if it were, we find no error in the court's decision not to place the children there. Mother's brief participation in drug treatment and relapse history posed a risk of detriment to the children even if the environment at New Life did not. She was only about three months into the six-month residential treatment program, having twice failed to complete treatment within the previous year. She also continued to struggle with substance abuse, specifically marijuana and alcohol. Consequently, the probability she would successfully complete the program was not high at the time of the hearing. If she voluntarily left the program or was forced to leave, the children would have to be removed from her custody again, causing them to suffer additional trauma. On that evidence, the juvenile court could properly find the children would be at a substantial risk of detriment if placed with mother at New Life.
II. Reasonable Services
Mother contends the department had an unspoken and unreasonable expectation that she sever her relationship with Amy but made no effort to help her develop other supportive relationships. Consequently, she argues, the juvenile court erred in finding she was provided reasonable reunification services. We disagree.
"Family reunification services play a critical role in dependency proceedings. [Citations.] At the dispositional hearing, the court is required to order the agency to provide child welfare services to the child and his or her parents. (§ 361.5, subd. (a).) Services 'may include provision of a full array of social and health services to help the child and family and to prevent reabuse of children.' (§ 300.2.) Reunification services should be tailored to the particular needs of the family." (In re M.F. (2019) 32 Cal.App.5th 1, 13 (M.F.).)
"At each review hearing, if the child is not returned to his or her parent, the juvenile court is required to determine whether 'reasonable services that were designed to aid the parent ... in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent ...' (§§ 366.21, subds. (e)(8) & (f)(1)(A), 366.22, subd. (a).) The 'adequacy of reunification plans and the reasonableness of the [department's] efforts are judged according to the circumstances of each case.' [Citation.] 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 ....' " (M.F., supra, 32 Cal.App.5th at pp. 13-14.)
"We review a reasonable services finding ' "in the light most favorable to the trial court's order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard." ' [Citation.] In determining whether there is substantial evidence to support the court's reasonable services finding, we review the record in the light most favorable to the court's finding and draw all reasonable inferences from the evidence to support the findings and orders. We do not reweigh the evidence or exercise independent judgment, but merely determine whether there are sufficient facts to support the findings of the trial court. [Citation.] The burden is on the petitioner to show that the evidence is insufficient to support the juvenile court's findings." (M.F., supra, 32 Cal.App.5th at p. 14.)
Mother's children were removed because she left them with Amy and Jason, who exposed them to drugs and a squalid living environment. Mother left the children with Amy because she had a serious drug problem and could not care for them. A revised case plan was prepared by the department for her and ordered into effect at the six-month review hearing. It included as one of her objectives that she develop positive support systems with friends and family. A suggested method of developing a positive support system was through Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings. She agreed by signing the case plan, acknowledging her support system would only include people who were clean and sober, active in recovery and not involved in criminal activity. At no time did she claim the objectives of her case plan were unreasonable or the services selected by the department were insufficient for her needs either by raising it on appeal from the six-month review hearing or subsequently by filing a modification petition under section 388.
Mother now claims it was unreasonable for the department to require her to sever her relationship with Amy without telling her it was a requirement. She also claims the department required her to develop a support system through AA/NA attendance but did not instruct her on how to make a safe and sober friend. We find her claims meritless.
The nature of mother's relationship with Amy and its effect on her ability to reunify is more germane to the final issue mother raises; i.e., the probability of resuming custody of the children by the 18-month review hearing, which we address in the next section. In any event, substantial evidence supports the juvenile court's finding mother was provided reasonable reunification services. Contrary to her assertion, there was no requirement that mother sever her relationship with Amy. Her case plan required her to develop a support group, including family, comprised of people who were law-abiding and sober. The department did not believe, nor did the juvenile court, that Amy fit that category. A suggested method was for mother to develop relationships with people attending AA/NA groups who were actively engaging in recovery. However, mother clung to Amy as her primary support person at the expense of healthier relationships. Mother now claims that the department was at fault for not specifically instructing her how to develop such relationships through AA/NA meetings. We can infer, however, she not only received such guidance through her substance abuse counseling and support group meetings but was highly encouraged to do so.
We conclude mother has failed to show the department's implementation of her services plan and efforts to assist her in complying with it were unreasonable. Therefore, substantial evidence supports the juvenile court's finding she received reasonable reunification services.
III. Substantial Probability of Return
Mother contends the juvenile court's concern about Amy's negative influence in her life is speculative and an insufficient basis to conclude there was not a substantial probability the children could be returned to her with additional time to reunify. We disagree.
At the 12-month review hearing, the juvenile court may continue the case if there is a substantial probability the child will be returned to parental custody within 18 months from the time the child was initially removed. (§ 366.21, subd. (g)(1).) To find a substantial probability of return, the juvenile court must find the parent regularly visited the child, made significant progress in resolving the problem prompting the child's removal, and demonstrated the capacity and ability to complete the objectives of the case plan and provide for the child's safety, protection, and well-being. (§ 366.21, subd. (g)(1)(A)-(C).) Otherwise, the court must terminate reunification services and set a section 366.26 hearing to implement a permanent plan for the child. (§ 366.21, subd. (g)(4).)
Here, the juvenile court found mother satisfied two of the three criteria to support a substantial probability of return; i.e., regular visitation and significant progress. It could not, however, find that she demonstrated the ability to safely parent the children, in large part because she continued to regard Amy as her primary source of emotional support. The court was concerned Amy's influence over mother would prevent mother from exercising independent judgment and making good parenting choices for the children. The court had good reason to be concerned; the children were removed from Amy under very dire circumstances and there was no reason to believe that Amy's circumstances had changed. In addition, Al.S. was exhibiting extreme signs of trauma and neglect, resulting from mother's inconsistent caregiving and the neglect and possible sexual abuse she experienced while in Amy's care. If after a year of reunification services mother still had so little insight into why the court had to intervene to protect her children, there was no reason to believe she would be able to assume custody of them in the five months remaining before the 18-month review hearing.
We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.