Opinion
F080867
06-19-2020
B.S., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party in Interest.
Patty Bazar for Petitioner. No appearance for Respondent. Thomas E. Boze, County Counsel, and Maria Elena Ratliff, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. JVDP-18-000149)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ. Ann Q. Ameral, Judge. Patty Bazar for Petitioner. No appearance for Respondent. Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Party in Interest.
Before Detjen, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
B.S. (father) seeks an extraordinary writ from the juvenile court's orders issued at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)(1)) terminating reunification services and setting a section 366.26 hearing on June 23, 2020, as to his now 19-month-old son, N.S. Father contends the court erred in terminating reunification services because the services provided by the Stanislaus County Community Services Agency (agency) were not reasonable. He seeks an order for continued services. We deny the petition.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
The agency took newborn N.S. into protective custody in September 2018 after his mother S.K. (mother) tested positive for marijuana at the time of his birth. N.S. was born prematurely at 35 weeks gestation and placed in the neonatal intensive care unit. The agency was contacted because of mother's previous child welfare history. In October 2016, her then one-month-old son was removed from her custody for physical abuse after sustaining multiple fractures and significant injuries while in her care. Mother was provided reunification services but failed to reunify and her parental rights were terminated in January 2018.
Mother did not file a writ petition. --------
Mother denied any involvement in the injuries suffered by her older son, claiming they were inflicted by his father while in his care. She decided not to complete reunification services and forfeit her parental rights.
Father said he and mother were not in a relationship but planned to co-parent the baby. At age 27, he had fathered eight children but two were born prematurely and died. The other six children who lived with their mothers were 11 years of age and younger. His criminal history is extensive, dating back to 2006 when he was a minor and included multiple drug-, weapons- and domestic violence-related offenses. He was released from prison in August 2017 after serving one year for possession of a firearm. He declined to drug test for the social worker, stating he might be positive for marijuana which he used a month before.
The agency filed a dependency petition alleging the parents' substance abuse, domestic violence, mother's prior welfare history and father's significant criminal history placed N.S. at a substantial risk of harm. (§ 300, subds. (b) & (j).) The petition was amended, adding an allegation father was arrested in February 2018 for battery on his then live-in girlfriend (not mother).
The juvenile court ordered N.S. detained and the agency placed N.S. in foster care. The agency provided the parents referrals to Sierra Vista Child and Family Services (Sierra Vista) for individual counseling and parenting instruction and for a substance use disorder (SUD) assessment. By the jurisdictional/dispositional hearing in December 2018, father had begun parenting classes and completed a SUD assessment. He was directed to test weekly to check his levels of THC (tetrahydrocannabinol), the psychoactive constituent in marijuana. At that time, he was testing at reduced levels.
The juvenile court exercised its dependency jurisdiction over N.S., ordered him removed from parental custody and ordered the parents to participate in reunification services. Father's services plan required him to participate in individual counseling to address domestic violence issues as a perpetrator, anger management, coping with N.S.'s removal and grief over the deaths of his daughters. The plan also required him to complete parenting instruction, a substance abuse assessment and any recommended treatment and provided for weekly supervised visitation.
The juvenile court continued reunification services at the six-month review hearing in May 2019 and admonished the parents they needed to make better progress by the 12-month review hearing to reunify with N.S. At that point, father had just begun addressing his domestic violence issues in counseling and continued to test positive for THC. As a result, he was referred for a second SUD but had not completed it. The agency was concerned about his continuing marijuana use and risk of engaging in domestic violence with mother. Although the parents acknowledged the wisdom of avoiding each other, they nevertheless maintained contact. As a result, father reportedly hit mother in the face and broke her cell phone during a visit. The court approved an updated services plan requiring mother to participate in domestic violence counseling and mental health services.
In its report for the 12-month review hearing filed in October 2019, the agency recommended the juvenile court terminate reunification services for the parents and set a section 366.26 hearing. Father had been arrested twice during the reporting period; on June 14, 2019, for misdemeanor battery and on July 21, 2019, for possession of ammunition by a felon. He tested positive for THC every time he was required to drug test and smelled of marijuana during visits in May and August 2019. He completed a SUD in May 2019 and was referred for outpatient treatment and sober living but did not attend treatment and refused the sober living bed. He was referred for another SUD but did not complete it. He tested positive for THC on October 3, 2019. His counselor at Sierra Vista, Catherine Linville, reported that he completed 12 individual counseling sessions and demonstrated comprehension of the material by providing appropriate examples. He failed to show for an appointment in July and did not meet with Linville again until September 26, 2019. He also completed four parent/child labs and generally engaged appropriately with N.S. At one point, he used language that Linville did not consider age-appropriate or positive but was receptive to correction.
Mother meanwhile completed a psychological evaluation at the request of her therapist because of her pattern of unhealthy relationships with men. The psychologist diagnosed her with a personality disorder with antisocial features and a possible bipolar condition. He opined an additional six months of reunification services would not improve her emotional stability, impulse control, judgment and effective parenting skills. He recommended termination of reunification services for her based on her "mental disorders, passive aggressive approach to [the] evaluation and impaired judgment in maintaining an abusive relationship with a man with an extensive criminal history."
Among the attachments to the agency's filed report was an e-mail from father to his assigned social worker, Diane Lind, dated October 24, 2019, thanking everyone for taking such good care of N.S. Father realized he was not in a position to take custody of his son but hoped to have that opportunity in the future. He believed N.S. should remain with his foster parents. Father wrote:
"I would just like to state that I appreciate everything that has been provided to me in order to better myself for my son[.] [I]t hasn't been easy but to the best of my abilities I've done as much as I can being that I have other children that need me. I would like to thank [N.S.'s] [foster] mom for the wonderful job she [has] done to protect and keep my son safe and happy. I know you may think or look at me and think that I'm not the best parent or in the best position to have a child and at this point in my life I couldn't agree with you more. I am struggling with a place to stay and more and so to keep a permanent job but even with those problems I'm still [N.S.'s] father and want to be [a part] of his life[.] [O]ne thing I've learned with all the services that's been provided to me is that [you're] always supposed to put your child's best interest first and at this point the best thing for my son is to remain in the care of his [foster] mother until I am physically able to take care of him with[out] any problems. I've seen [firsthand] that my son has a lot of health issues with his skin and his foster mother has done a wonderful job making sure he is taken care of and I am highly appreciative. All I can say is that I appreciate everything the court[,] my social worker and [everyone] involved has put me through because it's changing me as a father and a man to do better not just for [N.S.] but for my other children too[.] I know they [are] counting on me and I just want to be able to be the father they deserve to have...."
On November 14, 2019, the juvenile court set a contested 12-month review hearing, which was continued and conducted over multiple sessions in February 2020. Father's attorney argued the agency devoted most of its efforts trying to reunify N.S with mother and failed to provide father reasonable reunification services. The parties agreed that an 18-month review hearing, if services were continued, would have to be set on March 26, 2020. The court heard testimony from both parents and Lind.
Mother testified her last incident of domestic violence with father occurred around June 2019 when he slapped her. He also threw her belongings out of the car and broke her cell phone. She denied it was father who assaulted and raped her as reported by the social worker, claiming instead that it was perpetrated by the father of another child. She considered father someone she could rely on and called him when she needed help. She believed she needed outpatient drug treatment and to attend Alcoholics Anonymous/Narcotics Anonymous meetings (AA/NA) meetings. She had not attended AA/NA meetings since January 2020.
Father admitted perpetrating domestic violence on mother by verbally and physically abusing her. He completed the parenting course with the exception of one parent/child lab, but he only completed 18 of 52 sessions of the domestic violence program. He stopped using marijuana in September 2019 and his last positive test result was in October. He was not having any difficulty staying clean. As a result of his services, he was better able to manage his anger and interacted more with his children.
Father wanted the juvenile court to continue reunification services for him. He did not know how much time he needed or even if he could complete services because he was facing charges of being a felon in possession of ammunition and assault of his girlfriend's mother. He was scheduled for a preliminary hearing on April 27, 2020.
Lind recommended termination of reunification services because of the parents' continuing contact, father's gap in services at Sierra Vista from July to September 2019 and his continuing use of marijuana. Lind considered the same factors in deciding not to advance the parents beyond supervised visitation. The parents' continuing contact was a concern because of the potential for domestic violence. Mother claimed to be afraid of father but continued to seek him out and reported various incidents to Lind. Lind did not report the incidents to father's counselor or ask him about it because she did not necessarily believe mother and they said they were not speaking to each other. She did not want to "fuel the fire." She had more contacts with mother than with father.
Father's attorney argued the agency failed to provide him reasonable reunification services because it did not increase visitation and Lind had ongoing contact with mother to address her domestic violence needs but did not raise the issue with father or his counselor.
The juvenile court found it would be detrimental to return N.S. to the custody of either parent. As to mother, the court did not find her credible. It found the agency provided her reasonable reunification services and she regularly visited N.S. but she did not make significant progress in resolving the problem that necessitated N.S.'s removal or demonstrate the ability and capacity to complete the objectives of her case plan. The court terminated her services.
The juvenile court found father "sincere" and "honest." It found he made some progress but was concerned he continued to engage with mother and had not completed the SUD assessment. Although he regularly visited N.S. and made better progress than mother, his progress was not significant and he was facing new charges. The court found father made limited progress and there was not a substantial probability N.S. could be returned to his custody by March 26, 2020. Regarding the reasonableness of services, the court believed Lind should have talked to father about mother's allegations of domestic violence but understood she may not have believed mother. Additionally, Lind met with father regularly, including when he was on hold with his service providers. The court found father was provided reasonable reunification services, ordered them terminated and set a section 366.26 hearing. This petition ensued.
DISCUSSION
As a preliminary matter, we dispense with issues father identified in the writ petition but did not develop. As an example, appellate counsel listed "Due Process, Lack of Reasonable Services and Abuse of Discretion" as the grounds for juvenile court error in the preprinted "Petition for Extraordinary Writ" (JV-825). However, nowhere in the points and authorities attached does appellate counsel develop arguments for a due process violation or abuse of discretion. Consequently, we consider those issues abandoned. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120.) Further, although appellate counsel contends there was insufficient evidence father posed a "risk" to N.S. (i.e., "the social worker relied on insufficient evidence to establish a risk to the child"), she does not seek an order placing N.S. with father or develop an argument challenging the court's finding of detrimental return. More importantly, such a challenge would be frivolous based on this evidence. Father did not ask for custody of N.S. at the contested hearing, conceding instead he was not prepared to care for him. Consequently, the only conclusion that can be drawn from this record is that it would be detrimental to return N.S. to father's custody. We therefore review the only issue properly developed in the writ petition—the reasonableness of reunification services.
Reasonableness of Reunification Services
At the 12-month review hearing, the juvenile court may continue the case for up to six months 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).) Before the court may terminate services and set a section 366.26 hearing, however, there must be clear and convincing evidence the agency provided reasonable services to the parent. (§§ 361.5, subd. (a), 366.21, subd. (g)(4).)
The reasonableness of reunification services is judged according to the circumstances of the particular case and assessed by its two components—content and implementation. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.) The content of the plan or, in other words, the nature of the services offered, is reasonable if it properly identifies the family's problems and offers services targeting those problems. The implementation of the services plan is reasonable if the supervising agency maintains reasonable contact with the parent and makes reasonable efforts to assist in areas where compliance is difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)
We review a juvenile court's reasonable services finding for substantial evidence. (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1238.) In so doing, we inquire whether substantial evidence supports the finding the court made, not whether a contrary finding might have been made. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Father contends the services provided by the agency were not reasonable because Lind spoke to mother "much more frequently" than to him and did not address mother's allegations of continuing domestic violence with him and/or his counselor. He also contends he should not be penalized for not completing the SUD since he successfully abstained from marijuana use without treatment and marijuana is a legal substance. If Lind was so concerned about his marijuana use, he argues, she should have provided him a class on how to stop using it.
The essence of father's argument is that Lind did not do more to assist him in making better progress in his services plan. Notably, he does not argue that the services themselves were inadequate or unsuited to his needs. Indeed it would be hard to reconcile such an argument with his email to Lind expressing his gratitude for all the services provided to him and his testimony that he had benefitted significantly from them in terms of controlling his anger and parenting his children. Rather, appellate counsel argues Lind acted unreasonably by choosing not to communicate mother's allegations father perpetrated additional acts of domestic violence. Counsel fails, however, to show how father would have made greater progress had Lind shared that information with father and his counselor. Father knew he placed himself at risk by having contact with mother yet maintained that relationship. Predictably, they engaged in additional episodes of domestic violence. As to providing father a class in how to abstain from marijuana use, surely father would have covered that topic had he completed the SUD and any treatment that followed. The fact that Lind spent more time with mother is irrelevant. As long as she regularly met with father and assisted him in accessing his services, which the juvenile court found that she did, then the agency provided him reasonable reunification services.
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.