Opinion
F085919
06-29-2023
A.R., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
A.R., in pro. per., for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Ashley N. McGuire, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review Super. Ct. Nos. 22CEJ300138-1, 22CEJ300138-2, 22CEJ300138-3. Amythest Freeman, Judge.
A.R., in pro. per., for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Ashley N. McGuire, Deputy County Counsel, for Real Party in Interest.
OPINION
THE COURT [*]
Petitioner A.R. (mother), in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rules 8.450-8.452) from the juvenile court's orders issued at a contested six-month review hearing (Welf. &Inst. Code, § 366.21, subd. (e)) terminating her reunification services and setting a section 366.26 hearing as to her sons K.G. (born April 2017), R.G. (born August 2019), and L.G. (born December 2020) (collectively the children). She contends the Fresno County Department of Social Services (department) failed to provide reasonable domestic violence services and the juvenile court erred in not crediting her for the progress she made in her court-ordered services and her ability to complete her services plan if granted another six months of services. We deny the petition.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
Petition and Detention
On April 22, 2022, the department received a report the children, then five-year-old K.G., two-year-old R.G. and 16-month-old L.G., were being neglected by mother and Hector G. (father), the children's father. The family home was reportedly filthy and the family was being evicted. Cockroaches and broken glass were observed throughout the home and dog feces and urine covered the floors. The children were dirty and covered with what appeared to be feces. Their clothes were very dirty and caked with food or dirt. L.G. had a diaper on and had feces running down his leg. He and R.G. were strapped in their car seats.
Father filed a writ petition from the order setting the section 366.26 hearing in case No. F085921, which we denied. (H.G. v. Superior Court (June 2, 2023, F085921) [nonpub. opn.].)
The reporting party stated the parents smoked methamphetamine in the home and on April 21, 2022, father was caring for the children alone while under the influence. There were methamphetamine pipes, crack pipes, and torches throughout the home accessible to the children but no food in the cabinets. Neighbors told the reporting party mother banged on their doors, saying she was being followed by a ghost. Father was screaming and yelling at the children and the children were crying for mother. There were two aggressive pit bulls in the home.
Social workers and Fresno County police officers responded to the report. The social workers observed a large blade, nails, screws, tools, feces, trash, a box spring, bedframes and other items on the walkway leading to the apartment and trash and a large open bucket of paint in the home. There was feces in every room. The children did not appear dirty but R.G. and L.G. were wearing diapers that were full but not overflowing. The children were barefoot despite hazards on the floor. One of the social workers stepped on a nail that imbedded in her boot.
Mother explained their home was in disarray because they were moving and she was tired when she returned home from work. She denied she and father were using drugs or alcohol but also said she did not know if father was using drugs. She denied that anyone had any mental health conditions but attributed the condition of the home to father's depression. The police officers placed the children under a protective hold because of the unsafe condition of the home and the social workers took them into protective custody, told mother to clean the home and for mother and father to submit to a drug test that same day. Father declined, explaining he had a medical condition called "Shy Bladder Syndrome."
K.G. saw his parents slap each other in the face and punch each other. Father kicked mother in the leg. She grabbed a knife and threw it at father. While describing the punching, K.G. punched his stuffed animal. He said father got mad and broke things in the home. He saw father hit mother, which made her cry and her nose bleed. He said his parents smoked cigarettes and marijuana.
On April 25, 2022, the parents and relatives, including maternal aunt Melissa R., attended a team decision making meeting. Mother denied using drugs and said she did not know if father was using drugs because of the limited time they spent together, explaining he sold plants and was absent a lot. Sometimes he did not come home until the next day. He had a" 'spazz personality,'" but that was just" 'how he is.'" She had no reason to suspect he was using drugs. Father, however, disclosed that he had been using methamphetamine for approximately five and a half years. He denied using methamphetamine while caring for the children. He said the entire family, including mother, knew he was using drugs. Mother said she did not feel it was her place to say anything. The parents were asked about domestic violence and denied engaging in it despite K.G.'s disclosures. The social workers decided it was unsafe to return the children to their parents' custody because of father's drug use and their lack of candor and placed the children together in foster care.
The department filed an original petition on the children's behalf (§ 300, subd. (b)(1)), alleging the parents exposed them to domestic violence and failed to provide them with adequate shelter. The petition further alleged mother failed to protect the children because she knew father was using methamphetamine and allowed him to care for the children while under the influence.
On April 28, 2022, the juvenile court held a detention hearing and ordered the children detained. The parents were offered parenting classes and any recommended mental health and domestic violence services. Father was additionally offered substance abuse services, including random drug testing. The court ordered them to participate in supervised visits and set a combined jurisdiction and disposition hearing (combined hearing) for May 31, 2022.
Combined Hearing
The juvenile court conducted the combined hearing on May 31, 2022. By that time, the children were living with their maternal aunt Melissa. Mother had completed a mental health assessment at Central Star Behavioral Health and was referred for ongoing treatment. She completed a domestic violence inventory and was referred to North Star Wellness Center (North Star) for their 52-week child abuse intervention program. Father completed a domestic violence inventory and the results were pending. He did not meet the criteria for mental health treatment. He was enrolled in random drug testing but had not provided a sample because he objected to being watched while urinating. The parents were scheduled to begin a parenting class on May 25, 2022.
The juvenile court sustained the allegations, ordered the parents to complete the services previously offered and set a six-month status review hearing for November 15, 2022. It was subsequently set for a contested hearing in February 2023.
Six-Month Status Review Reports
The department prepared two six-month status review reports-one initial report and one addendum report after the matter was set for contest. In both reports, the department recommended terminating the parents' reunification services and setting a section 366.26 hearing in light of their ongoing relationship and inadequate compliance.
The Parents' Ongoing Domestic Violence
Throughout the dependency, the parents maintained an on-again, off-again romantic relationship. In June 2022, mother reported she no longer wanted to be in a relationship with father and wanted to work on her case plan alone. Father wanted to continue the relationship. In October 2022, the parents engaged in two back-to-back domestic violence incidents which required police response. During the second incident, father broke into mother's home and tried to break down the door to a room where she was hiding. He was detained and cited for trespassing and vandalism and placed on a psychiatric hold (§ 5150) because he said he wanted" 'suicide by cop.'" Mother was issued an emergency protective order against father. Two days later, father reported he and mother were still in a relationship and secretly living together. In mid-December 2022, mother reported being pregnant with father's baby. She acknowledged she and father had relations after she obtained the protective order against him but said it was only a seven-day protective order. They declared themselves a couple and were living together. They planned to participate in family counseling and work on their case plan together. In January 2023, mother took father to the hospital after he took "a bunch of Benadryl pills," and was stuttering and hallucinating. He was placed on a 72-hour psychiatric hold in the hospital because hospital staff thought he was trying to leave. Once he was released, he went back to his residence with mother, but was arrested shortly thereafter because he had a warrant out for his arrest related to the domestic violence incident he had with mother. Mother stated that once he was released, he would be going back to their home.
The Parents' Compliance
The parents completed a parenting program in August 2022, but mother was otherwise inconsistent in her other court-ordered services and father was noncompliant. Mother frequently cancelled sessions with her mental health therapist and, in January 2023, after multiple warnings, was discharged from treatment. Afterward, she assumed she no longer needed therapy because she had not heard from the therapist in a while. She reported she and father had enrolled in couples therapy and had completed one session. The social worker informed her couples therapy was separate from her court-ordered mental health services and sent mother a new referral. Father reported having some mental health needs in August 2022 and was referred for therapy. He was diagnosed with depression and anxiety but did not respond to the therapist's attempt to schedule therapy and, in October 2022, declined therapy, stating he did not need it. On December 23, 2022, following a meeting with father, the social worker provided him a new referral for treatment.
Mother enrolled in domestic violence services at North Star on June 1, 2022, and missed six classes over the next four months. She attributed the two absences in September to her work shift, which ended at midnight and made it difficult for her to make the 10:00 a.m. class the following morning. Since North Star could not accommodate a different class time, mother was enrolled in Comprehensive Counseling Services (CCS). She missed three consecutive sessions beginning in late September 2022. By January 30, 2023, she completed 15 sessions. Between North Star and CCS, mother attended 23 and missed nine sessions by the end of the review period. Father was also referred for the 52-week child abuse program at North Star and enrolled in September 2022. However, he missed two sessions that month and in October 2022, stated he was not going to attend.
Father enrolled in substance abuse classes on May 24, 2022, and was initially compliant but was discharged from services in October 2022 after he stopped attending and tested positive for marijuana and benzodiazepines. On December 12, 2022, he entered inpatient treatment but left after one day. He was scheduled for another substance abuse assessment at the end of December 2022, which he missed. He was arrested on January 17, 2023, on a warrant for vandalizing mother's home.
The parents visited the children under supervision at the visitation center. Prior to that, Melissa supervised visits until father threatened her and her family. In January 2023, the visitation monitor reported that the children were very aggressive with each other and yelled at the top of their lungs. They hit, slapped, and punched each other and pulled each other's hair. Mother attempted unsuccessfully to control them. On January 19, 2023, the family was scheduled for weekly intensive supervised visitation. Two days before, father was arrested but was expected to join the visitation upon his release.
The department opined that the parents' prognosis for reunifying with the children was poor. Father was not participating in his court-ordered services, including random drug testing, and was mentally unstable. Although mother had recently become more consistent in attending domestic violence sessions, she continued to engage in domestic violence with father as evidenced by the two incidents in October 2022. She chose to continue her relationship with him despite his incarceration for the second domestic violence incident. In addition, she allowed father to move back into the home even though he was not engaged in services and was not mentally stable. Further, mother was not consistent in her own mental health services and had been discharged from treatment. Accordingly, mother had not shown a commitment to providing a safe and stable home for the children and was not benefitting from services.
Contested Six-Month Review Hearing
The contested six-month review hearing was conducted on February 28, 2023. Social worker Carlie Hicks testified mother completed a total of 26 classes through North Star and CCS. She consistently attended her domestic violence sessions through CCS since November 11, 2022. Hicks completed a new mental health referral for mother in February 2023 after she was discharged from treatment. It took a couple of weeks following a referral to get back into treatment. Mother completed a new assessment the Friday before the hearing. As for father, the social workers arranged for him to participate in "hat" drug testing which allowed him to sit rather than stand while urinating. However, someone was still present while he urinated as required by the drug testing laboratory policy. After he was discharged from substance abuse treatment on October 31, 2022, the department arranged for him to complete another substance abuse assessment. He required a higher level of care and was admitted for inpatient treatment but left after one day, stating "it was not for him."
Hicks's recommendation to terminate mother's reunification services was based on her ongoing relationship with father despite their recent domestic violence incidents and his lack of engagement in services. She said her recommendation would have been different if they were not an intact couple. She explained mother did not appear to be learning from her services because she continued to engage in domestic violence with father. Mother was aware that father was not participating in his services. Father was released two days before the hearing and was living with mother.
Father testified Hicks never discussed his case plan with him and told him there was nothing she could do to address his inability to urinate while being observed. He hoped to reunify with the children before being arrested and was in counseling with mother to address their domestic violence. They planned to resume the counseling. On cross-examination, he conceded being present when the court ordered him to complete parenting, mental health, domestic violence and substance abuse services and submit to random drug testing, that he received a copy of his case plan, and met with Hicks six times to discuss those specific services.
Following father's testimony, mother's attorney advised the juvenile court he submitted a letter written by mother to the court and the parties and asked the court to receive it into evidence or allow mother to read the letter and be subject to cross-examination. The court stated it would accept the letter as long as mother was willing to be cross-examined. After the attorneys declined to cross-examine mother, the court accepted the letter into evidence. Mother insisted on testifying about a second letter that was not provided to the parties. She read the letter in which she summarized her progress in her services, explained her absences, admitted failing her children and asked for additional time to reunify. Mother was sworn as a witness and county counsel asked her whether she believed six more months of services would give her until August 2023 to reunify. She answered in the affirmative. There were no other questions.
During argument, county counsel pointed out that the 12-month review hearing would have to be conducted on May 31, 2023, given when the children were removed and argued there was not a substantial probability the children could be returned to mother by then. Minors' counsel joined in the recommendation to terminate reunification services. Mother's attorney argued mother could be provided an additional six months of services and there was a substantial probability she could reunify within that time. Father's attorney argued the department failed to accommodate father's medical condition ("Shy Bladder Syndrome"). Therefore, he was not provided reasonable reunification services, the legal remedy for which was continued services.
The juvenile court found it would be detrimental to return the children to their parents' custody and the department provided them reasonable reunification services. The court also found by clear and convincing evidence the parents failed to participate regularly in their court-ordered treatment plans and that it was in the children's best interests to set a section 366.26 hearing. The court characterized mother's progress as "moderate" and father's as "minimal" in resolving the problems that required the children's removal. The court ordered the parents' services terminated, reduced visitation to once a month and set a section 366.26 hearing.
In ruling, the juvenile court noted that the parents had been discharged from programs because of nonattendance and father blatantly refused to participate in certain programs. It stated, "The [c]ourt got the impression that neither [parent] took their services very seriously, and didn't understand or didn't care to understand that the services were ordered for the best interests of their children."
DISCUSSION
A. Applicable Legal Principles
1. Family Reunification Services
"Reunification services implement 'the law's strong preference for maintaining the family relationships if at all possible.'" (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) Consequently, when a child is removed from parental custody, the juvenile court is required (barring exceptional circumstances) to provide the parent with services to facilitate the reunification of the family. (§ 361.5, subds. (a) &(b).)
When the juvenile court orders reunification services, the department must provide the family with a plan that is tailored to the family's needs and designed to eliminate the circumstances that gave rise to the children becoming dependents of the court. (In re Taylor J. (2014) 223 Cal.App.4th 1446, 1451.) The department "must make a good faith effort to develop and implement a family reunification plan. [Citation.] '[T]he 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 ....'" (AmandaH. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) The department must also find and maintain contact with service providers and keep the parent informed of whether his or her progress is consistent and compliant with the court-ordered case plan. (Taylor J., at p. 1452.)
The duration of reunification services is set by statute in section 361.5, subdivision (a) according to the age of the child when taken into protective custody. For children who were over the age of three when taken into protective custody, the statute provides for 12 months of reunification services, beginning with the dispositional hearing and ending 12 months after the date the children entered foster care. (§ 361.5, subd. (a)(1)(A).) In the case, however, of children who were under the age of three when taken into protective custody or who are a member of a sibling group (two or more siblings removed at the same time in which at least one of the children was younger than three), the statute requires the juvenile court to provide court-ordered services for six months from the dispositional hearing but no longer than 12 months from the date the child entered foster care. (§ 361.5, subd. (a)(1)(B) &(C).) A child is deemed to have entered foster care either on the date of the jurisdictional hearing or 60 days after the date of the child's removal, whichever occurs first. (§ 361.49.) "The' "unique developmental needs of infants and toddlers"' [citation] justifies a greater emphasis on establishing permanency and stability earlier in the dependency process' "in cases with a poor prognosis for family reunification." '" (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175 (M.V.).)
Here, the children are considered a sibling group because they were removed together and R.G. and L.G. were under the age of three at that time. Thus, in terms of the duration of services authorized under section 361.5, subdivision (a), mother was presumptively entitled to reunification services until November 30, 2022 (six months from the dispositional hearing on May 31, 2022) or until May 31, 2023 (12 months from the day the children entered foster care on May 31, 2022).
The children were taken into protective custody on April 22, 2022. Sixty days from that date is June 22, 2022. Since the jurisdictional hearing was conducted as part of the combined hearing on May 31, 2022, it is the earlier date and thus the date the children entered foster care.
2. Six-Month Review Hearing
Until the child is returned to parental custody or reunification services are terminated, the juvenile court is required to conduct review hearings at six-month intervals. (§ 366, subd. (a)(1).) It is presumed at the six-month review hearing and at each subsequent review hearing that the dependent child will be returned to parental custody unless the court finds by a preponderance of the evidence that returning the child to parental custody would place the child at a substantial risk of detriment. (§§ 366.21, subds. (e)(1) &(f)(1), 366.22, subd. (a)(1) &366.25, subd. (a)(1).) The failure of a parent to participate regularly and make substantive progress in court-ordered services is prima facie evidence of detriment. (§ 366.21, subd. (e)(1).) Mother does not challenge the court's decision not to return the children to her custody at the six-month review hearing.
Instead, mother asserts her reunification services should have been continued until the 12-month review hearing and the juvenile court should not have set a section 366.26 hearing to terminate her parental rights.
A specialized inquiry is required at the six-month review hearing for children like mother's who are a sibling group and are not being returned to parental custody at that time. "For such dependent children, if 'the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child ... may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.'" (M.V., supra, 167 Cal.App.4th at p. 175.)
Here, mother in essence challenges all three findings the juvenile court had to make in order to terminate her reunification services. First, she argues she made more progress than she was given credit for, thus implicating the court's finding she failed to regularly participate and make substantive progress. She further argues she was not provided reasonable reunification services because the department provided her child abuse rather than domestic violence services. Finally, she argues the 52-week child abuse program exceeded the six months she was given to complete it and she could have completed it if given more time. Thus, she in essence argues there was a substantial probability the children could have been returned to her custody with continued services.
3. Standard of Review
Our review of an order terminating reunification services after a six-month review hearing is reviewed, in part, under a substantial evidence standard, and in remaining part, under an abuse of discretion standard. As explained above, in the case of a child who is a member of a sibling group, the juvenile court may terminate reunification services at the six-month review hearing and set a section 366.26 hearing but only after finding under section 366.21, subdivision (e)(3) that the parent failed to regularly participate and make substantive progress in the court-ordered treatment plan, reasonable reunification services were provided and there is not a substantial probability the child may be returned to parental custody within six months. We review the juvenile court's decision to terminate reunification services for substantial evidence, resolving all conflicts in favor of the court's determination. (J.H. v. Superior Court (2018) 20 Cal.App.5th 530, 535.) If the juvenile court's determinations under section 366.21, subdivision (e)(3) are supported by substantial evidence, then the court is empowered, but is not required, to set a section 366.26 hearing. (M.V., supra, 167 Cal.App.4th at pp. 176, 179.) Thus, we review that decision for abuse of discretion. (Id. at p. 176.)
B. The Juvenile Court Did Not Err in Terminating Mother's Reunification Services
1. Regular Participation and Substantive Progress
Mother contends the juvenile court's finding she failed to regularly participate in reunification services and make substantive progress is error because there was evidence presented but not considered that she enrolled in mental health therapy prior to the six-month review hearing and was more consistently participating in domestic violence services. Contrary to mother's assertion, the court did consider that evidence. Hicks testified to those facts. The question for us on this issue is not whether there is evidence to support a finding mother regularly participated in and made substantive progress in mental health and domestic violence services but whether substantial evidence, contradicted or not, supports the court's finding that she did not. (Adoption of A.B. (2016) 2 Cal.App.5th 912, 925.) Since the court has to find both regular participation and substantive progress, its inability to make one of the findings is sufficient to terminate reunification services.
Here, the juvenile court found mother's progress was moderate at best, noting her many absences from domestic violence counseling and mental health treatment. Even if the court had found mother regularly participated in those services, it could still have found on the evidence that she failed to make substantive progress given her ongoing relationship with father, knowing he was unstable and dangerous and not participating in his services plan. Thus, we conclude substantial evidence supports the court's finding by clear and convincing evidence that mother either failed to participate regularly in the court ordered treatment plan or that she had participated but failed to make substantive progress.
2. Reasonable Services Provided
Mother contends she was provided child abuse services not domestic violence services as ordered. Therefore, she asserts, the juvenile court erred in finding she was provided reasonable reunification services. As a preliminary matter, we note that neither mother nor her attorney at any time claimed that she was not being provided suitable domestic violence services. Consequently, she forfeited the issue on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338 [generally, a parent's failure to object or raise an issue in the lower court forfeits the right to raise the issue in the appellate court.].) Further, assuming mother did not forfeit the issue, she bears the burden on appeal of demonstrating that the services provided were not reasonable. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) According to the record, mother completed a domestic violence inventory and the recommendation was that she complete the 52-week child abuse intervention program. There is no explanation in the record as to why mother was referred to a child abuse intervention program rather than a program carrying the title "domestic violence." We can only infer that the child abuse program was suitable for her domestic violence-related needs and she has failed to establish otherwise. Consequently, we conclude substantial evidence supports the court's finding mother was provided reasonable domestic violence services.
3. Substantial Probability the Children May Return Home
Mother contends she could have completed the 52-week child abuse intervention program if given more time. As noted above, the juvenile court would have had to set the 12-month review hearing sometime around May 31, 2023. Consequently, the question it had to decide at the six-month review hearing in February 2023 was whether there was a substantial probability mother could reunify with the children in the remaining three months.
In determining whether there is a substantial probability of return, the juvenile court may consider all evidence bearing on the issue. (M.V., supra, 167 Cal.App.4th at p. 181.) This may include, but is not limited to, the three mandatory factors enunciated by the Legislature in section 366.21, subdivision (g)(1) that a court considers at the 12-month review in deciding whether "there is a substantial probability that the child will be returned to the physical custody of their parent or legal guardian ... within the extended period of time ._" (§ 366.21, subd. (g)(1).) Those factors are "(A) That the parent . . . has consistently and regularly contacted and visited with the child. [¶] (B) That the parent . . . has made significant progress in resolving problems that led to the child's removal from the home. [¶] (C) The parent . . . has demonstrated the capacity and ability both to complete the objectives of [his or her] treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (Id., subd. (g)(1)(A)-(C).) The court may also consider any extenuating circumstances involving the parent that may explain the parent's "relative lack of evidence of satisfying all three factors." (M. V., at p. 183.)
Here, the parents' failure to make significant progress in resolving the issues that necessitated the children's removal factored in the juvenile court's finding there was not a substantial probability of return. Because of their absences and father's refusal to participate in services, neither of them made sufficient progress from which to find reunification in three months was probable. In addition, they chose to maintain their relationship, the nature of which was at the heart of their problems. Father was a drug abuser, mentally unstable and potentially violent. As long as the parents' domestic violence and father's mental health and substance abuse problems continued untreated and they maintained in an intact relationship, it was not safe to return the children to them, certainly not in the three months before the 12-month review hearing. Thus, there was substantial evidence to support the court's finding that there was not a substantial probability the children could be returned to mother's custody.
4. Exercise of Discretion in Setting a Section 366.26 Hearing
In light of our conclusions mother failed to participate regularly and make substantive progress in a court-ordered treatment plan, the department provided her reasonable reunification services and there was not a substantial probability the children could be returned to her custody by the 12-month review hearing, we further conclude the juvenile court, in its discretion, could set a section 366.26 hearing and terminate her family reunification services. Therefore, 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 California Rules of Court, rule 8.490(b)(2)(A).
[*] Before Levy, Acting P. J., Smith, J. and Snauffer, J.