Opinion
A152799
02-09-2018
C.G., Petitioner, v. THE SUPERIOR COURT FOR THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY et al., Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. JD16-3348)
Petitioner C.G. (Father), father of one-year-old P.G., seeks review by extraordinary writ, pursuant to California Rules of Court, rule 8.452, of the juvenile court's orders terminating reunification services and setting the matter for a permanency planning hearing, pursuant to Welfare and Institutions Code section 366.26. Father contends substantial evidence does not support the juvenile court's finding that the San Francisco Human Services Agency (Agency) provided him with reasonable services. We shall deny the petition for extraordinary writ.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In this opinion, we will focus on those facts related to the issue raised on appeal.
On December 2, 2016, the Agency filed an original petition alleging that then four-day-old P.G. came within the provisions of section 300, subdivisions (b)(1) and (j). The petition alleged that her mother (Mother) had a long history of substance abuse for which she had received treatment through the dependency of P.G.'s half sibling. Mother failed to benefit from treatment and failed to reunify with that child. Mother reported that she had used methamphetamine the previous week and P.G. tested positive for methamphetamine at birth. The petition further alleged that Father had a substance abuse problem for which he required a current assessment and treatment. He had been arrested on drug related charges and was referred to Horizons Unlimited, Inc. (Horizons), an outpatient treatment program, for substance abuse counseling.
In the detention/jurisdiction report also filed on December 2, 2016, the social worker reported that during a November 28 interview, Father said he struggled with alcohol and marijuana. He had been referred to Horizons and both parents had been attending substance abuse counseling there for about two months. The parents told the social worker that they had been staying under a bridge on Cesar Chavez Street in San Francisco, and spoke of their homelessness as a primary reason why they used drugs. The Agency recommended that P.G. be detained in foster care.
On December 5, 2016, the court ordered Father's status changed from alleged to presumed father, ordered P.G. detained in foster care, and ordered supervised visitation for both parents.
On December 29, 2016, the Agency filed a jurisdiction/disposition report in which the social worker reported that she had left numerous phone messages for the parents until she was able to reach them on December 16. They made an appointment to meet on December 27, to discuss the case, but the social worker received a message from Mother saying they could not make the appointment because she was in the hospital with an infection. The social worker tried to reach the parents at the hospital, but was told Mother had been discharged. She tried to reach them by phone, but their voicemail was full. The following day, she left a message asking the parents to contact her to reschedule the appointment. The social worker had not yet heard back from them. The Agency asked the court for additional time to make contact with the parents.
At a noticed settlement conference on January 5, 2017, regarding jurisdiction and disposition, the court found that the parents had willfully failed to appear and continued the matter to February 17.
In a February 10, 2017 jurisdiction/disposition addendum report, the social worker reported that she had "had an extremely difficult time connecting with both of these parents. On several occasions this worker tried to schedule to meet with them but the parents were not able to meet or failed to respond to . . . text messages." On January 13, the social worker had texted both parents referrals to Accurate for drug testing, the Homeless Prenatal Program (Homeless Prenatal), Jelani Residential Treatment Program (Jelani House) and Epiphany Residential Treatment Program (Epiphany). The parents had responded and confirmed they had received the referrals.
The parents finally met with the social worker on January 17, 2017, at which time she reviewed the petition with them. Father said he did not have a substance abuse problem and that he only sold drugs, specifically methamphetamine. He later acknowledged that he did actively use drugs and the last time was a few days earlier. He said he was on probation and his probation officer had required him to attend Horizons. During the meeting, the parents said they both had an intake appointment scheduled at Homeless Prenatal. They also said they both attended Horizons twice a week for one hour and had signed releases of information with both Horizons and Homeless Prenatal. They also were visiting P.G.
The social worker reported that, as of February 10, 2017, the parents had not engaged with random drug testing, Homeless Prenatal, or any residential treatment program. The social worker contacted Alicia McCray at Homeless Prenatal and was informed that Father's referral was closed on February 3, due to lack of engagement, and had spoken with Norman Mathis, apparently at Jelani House, about the parents' referral and the wait list process. The social worker had also introduced the parents to Family Treatment Court and had contacted Father's probation officer to inquire about his probation requirements and compliance, but had not heard back from her.
The social worker had spoken with the parents' case manager at Horizons, Maria Guerrero, who said that she had been working with Father since September 9, 2016. He had been participating in individual work at Horizons once a week for one hour until September 20, when he also started attending group meetings, for a total of twice a week for two hours. Guerrero told the social worker that the parents had been provided with many services and referrals, but they had not yet engaged in or followed through with any of them. Guerrero said she "has had many discussions with both parents how they need to enter residential treatment to address their substance abuse and homelessness but both parents appear 'not ready and are not putting any effort' into making life changes."
Regarding visitation, the social worker reported that the parents' supervised visits had been sporadic because of Mother's illness, because they had cancelled some visits for unknown reasons, and because of P.G.'s medical appointments.
At the February 17, 2017 jurisdiction hearing, the parents submitted to the allegations of the petition, as amended, and the court sustained as true the allegation that Father "has a substance abuse problem for which he requires a current assessment and treatment."
On March 1, 2017, the parents did not appear for the dispositional hearing, but the court declared P.G. a dependent child, continued out of home placement, bypassed reunification services for Mother (see § 361.5, subd. (b)(10) & (11)), and ordered reunification services for Father. Father was ordered to complete a service plan, which included participation in a residential drug treatment program, substance abuse testing; individual therapy, a parenting education program, compliance with the terms of his probation, visitation with P.G. on a regular basis, cooperation with the social worker in developing and signing a case plan and making his whereabouts known to the social worker at all times, and signing the necessary consents to release of information in order to evaluate his compliance with reunification services. Father's service objectives included obtaining resources to meet P.G.'s needs and providing her with a safe home, maintaining a relationship with P.G. by following the conditions of the visitation plan, staying free from illegal drugs and showing his ability to live free from drug dependency, complying with all required drug tests, and developing positive support systems with friends and family.
John Huynh, who had replaced the original social worker in this case, filed a status review report on September 6, 2017, for the six-month review hearing. Huynh reported that during a meeting with the parents on July 12, Father told Huynh that he tried to enter Jelani House, but he did not like the program because it did not accept couples. Father said he intended to enter a residential treatment program, but had not done so. Huynh planned to contact Horizons to verify if Father was currently attending the program there. Huynh also referred Father to a new testing agency, Mega Lab Services, on July 28. On August 23, Huynh contacted Mega Lab to verify whether Father had begun testing, and was told that he had not tested since the referral date. On July 17, Huynh set up a new weekly visitation plan for the parents, and as of September 6, Father had participated in three visits, one in July and two in August. Huynh believed that, other than visitation, Father "does not seem motivated in completing the court reunification requirements."
The Agency recommended termination of Father's reunification services and the setting of a section 366.26 hearing.
In an addendum report filed on October 17, 2017, Huynh reported that he had met with Father on September 22 and October 11, to follow up on the service plan. Father said he was no longer on probation and had not engaged in the various services to which he had been referred. The parents had been visiting P.G. weekly. They seemed very attentive to her needs and were engaged with her during visits. The current foster parents had expressed a strong desire to adopt P.G.
At the six-month review hearing, which took place on November 1, 2017, social worker John Huynh testified that he was assigned to the case in April or May 2017. He recommended termination of reunification services to Father based on his failure to start services after the prior social worker on the case referred him to various programs, including residential treatment at Jelani House or Epiphany, Homeless Prenatal, and drug testing at Accurate. The previous social worker followed up with Father three times, but he still did not engage in any services. Although Father had completed an outpatient program at Horizons, which was a condition of his probation, that program did not satisfy the residential treatment requirement in his case plan.
Huynh testified on cross-examination that he had attempted to meet with Father in June 2017, a month after he was assigned to the case, but Father "was a no-show." His first meeting with Father was on July 12, when he met with both parents. Because Father had not visited P.G. in five months, his visitation case had been closed. After the July meeting, Huynh set up new visitation for Father, starting on July 26. Because Father had not followed through on drug testing with Accurate, Huynh made a new referral for testing with Mega Lab Services on July 28. He then called Mega Lab on August 23 to follow up on whether Father had begun testing there, and learned that he had not done so. Huynh met with Father again on September 22 and October 11.
During all of Huynh's follow-up meetings with Father—on July 12, September 22, and October 11, 2017—Father said he had not started any of his services because "he was busy; he could not do that." The referrals to residential treatment had been made by the previous social worker; she had referred Father to Jelani House and Epiphany. Huynh was aware that the Epiphany program was for women and children only. He was not aware that Jelani House had closed in April or May of that year. Huynh had not referred Father to any residential treatment program since he was assigned to the case in April or May. Although Father told him that he could not enroll in Jelani House because it was not a couple's program, Huynh never made any additional referrals to a program that would accept couples and did not explain to Father that the reunification services were for him only, and therefore a couple's program was not necessary. Nor had he called Father's probation officer regarding whether he was in compliance with his probation or referred him to a specific parenting education program, which was part of his case plan. Huynh did not refer Father to a parenting program because the previous social worker had referred him to Homeless Prenatal's parenting program and Father had told Huynh he was too busy to participate in his services, though he never said what he was busy doing.
Although Huynh wrote in his status review report that he would contact Horizons to verify that Father was attending the program, he did not do so because he "was focusing more on . . . the residential program." However, Huynh never informed Father that his participation in Horizons, which is an outpatient program, was insufficient to meet his case plan requirements. He never specifically told Father that the requirement was for a residential program; he assumed Father knew about that requirement because he had signed the case plan, which included residential treatment as one of the requirements. Nor did Huynh go over the case plan document with Father, though he did "ask Father what he had done in terms of reunification services." The most recent case plan Huynh had on file was dated January 26, 2017.
Huynh did not present Father with any releases of information when they met, and he did not know if Father had signed or refused to sign any consents or releases of information with the previous social worker. Finally, Huynh had not referred Father to individual therapy, another of his case plan requirements, because the previous social worker had referred him for individual therapy through Homeless Prenatal. Homeless Prenatal closed the case on February 3, 2017, due to Father's lack of engagement. Since then, Huynh had not submitted another referral to Homeless Prenatal and there had been no further referrals for individual therapy.
With respect to visitation, since Huynh had set up a new supervised visitation plan for the parents, which began on July 26, 2017, Father had consistently visited P.G. weekly for three hours from July until the present, for a total of 14 visits. The visits had been positive and appropriate.
On redirect examination, Huynh testified that Father never asked how he could comply with the residential treatment program requirement. Huynh "assume[d] that [Father's] responsibility is to let me know whether he [had] any problem . . . entering a program." Every time Huynh met with him, Father merely said he did not do anything. It did not seem to Huynh that Father was interested in complying. Huynh believed that if Father had trouble with entering a program, "he should let me know and I will be happy to help him." After his first meeting with Father in July 2017, Huynh did not specifically mention the need to complete a residential treatment program, but did advise Father more generally "to complete the service plan." Father responded, " 'Yes, I will do it,' " but never did. He always said he was busy and could not start any services.
Father also testified at the hearing. He had been residing at a homeless shelter for the last four to five days, and before that was living at his grandmother's house and also staying under the overpass at Cesar Chavez and Potrero with Mother. Father had signed the reunification plan prepared by the previous social worker on March 29, 2017, acknowledging that he had participated in the case plan development, agreed to participate in the services outlined in the plan, and had received a copy of the case plan. Father had completed an outpatient program at Horizons in March 2017, for which he received a certificate. Father told the previous social worker that he had done this program, but she wanted him to do a residential treatment program. Maria Guerrero, Father's counselor at Horizons, had also recommended that Father do a residential program. At Horizons, which he attended in for about six months, he participated in counseling, but was never asked to drug test there. Father did not recall the last time he used methamphetamine, but stated that it had "been a while."
When Father met with Huynh in September and October 2017, Huynh did not go over a case plan with him or ask him to sign a case plan. He told Huynh he had completed the Horizons program and Huynh said he needed some proof. Huynh did not tell Father he wanted Father to do a residential program. Huynh did not provide him with a referral for individual therapy either.
Father had followed up with Homeless Prenatal after receiving a referral from the previous social worker, but Homeless Prenatal terminated him after he did not make it to the first parenting classes. He missed the classes because his mother was sick and he was taking care of her. Homeless Prenatal never set him up with individual therapy. The previous Saturday, Joey from Homeless Prenatal had come to the bridge where Father was staying, and Father was now trying to find out if he could get back into the Healthy Prenatal program.
A month or two earlier, Father had also tried to enroll in Jelani House and Epiphany, but never got through to anybody there. He had not received any other referrals for a residential treatment program. Father understood that participation in a residential treatment program, individual therapy, and a parenting education program were requirements for reunification.
Father was not able to connect with Accurate for drug testing because he was always put on hold when he tried to call. Recently, when Joey from Homeless Prenatal called Accurate for him, Joey was also put on hold and was unable to get through. When Father met with Huynh in July 2017, he told Huynh he was unable to test at Accurate, and Huynh gave him a referral to another place to test, Mega Lab. Father had been unable to drug test since April because he was dealing with family problems, specifically related to his mother, who had cancer. He did not believe, however, that his obligations to his mother would prevent him from drug testing within the next month, if the case were extended. The reason he could do it now, but not before, was because his mother had been in the hospital and he was going there every day, bringing her things and making sure she was all right.
Father testified that he had completed probation in March 2017, when he finished the Horizons outpatient program. He had been visiting P.G. since July. He had not visited consistently before then because he and Mother were sick or because the foster parents called them. He confirmed that his mother's current illness did not keep him from visiting P.G.; he "made sure to visit [his] daughter."
Father testified that he had tried to contact the social worker around eight times and left messages for him. If he were provided additional time for reunification, Father "would comply with everything if my service worker [sic] was able to actually help me. I mean, they weren't really helpful at all."
At the conclusion of the hearing, counsel for Father, Mother, P.G., and the Agency stipulated that Homeless Prenatal does assessments and makes referrals to residential treatment programs. The court also asked for a stipulation that "Jelani was not in service after a certain date, and that Epiphany only takes women and children. Otherwise, we're all talking about this as though it's true, and I can't really consider it." Mother's counsel said she would stipulate that Jelani House closed "[s]omewhere in April or May of 2017," and the court said it thought the program had closed in May. Counsel for P.G. and the Agency said they did not know, and the Agency's counsel said he would submit the question to the court. Mother's counsel then said she would stipulate that Epiphany is for mothers and children only and Father's counsel responded, "Yes." However, no stipulation was apparently reached as to this fact.
In ruling that reasonable services had been provided the court stated: "I think this is a close call. . . . I really think there should have been a lot better follow-up by the Agency—[¶] . . . [¶]—with this individual. He should have gone to [Homeless Prenatal]. They do make referrals to residential treatment. He basically was trying to say that he finished—that—the argument that his side was making was, well, he did Horizons. They don't even drug test at Horizons. And he knew, and it's clear he knew, from the moment of detention he was to do a residential treatment program.
"His testimony on the witness stand is not believable, and I'll just have to say that upfront; it's just not. He didn't make any efforts at all, and he blames it on his mother being sick. What he does say is, Well, oh, sure, I recently have met with my child because that's important to me. The other referrals are not important to me, is the implication there.
"I think it's a close call, the argument you're making Ms. Nakanishi [counsel for Father]. I think it is a close call whether there were, I guess, enough reasonable services here, whether there was enough follow-up, but there were services provided, there were referrals provided. They were provided eight, ten months ago. He hasn't done them. He hasn't been interested. He has admitted he's too busy to do them, and yet we don't know one gosh darn thing he's busy about doing, other than visiting his mother in the hospital. . . . [¶] . . . [¶]
"So I can't say that there were no reasonable services provided. . . . I can say there should have been better follow-up on the reasonable services that were provided. But based on the state of what I have here, based on the fact he just blew off Homeless Prenatal that refers you to residential treatment, based on the fact I have a case plan that refers him to residential treatment, and based on the fact that he's making all sorts of excuses, I just can't say that he's interested. Nor can I say that he would even do his program if services were to start today, that he would be able to finish them within the next six months. I can't say that."
The court further stated that it agreed with P.G.'s counsel "that a client can't be a potted plant. He can't just do nothing if a service isn't working or if there's some problem with the service and then use that as an excuse to extend his services, and that seems to be what's happened here."
The court therefore found "by clear and convincing evidence reasonable efforts have been provided or offered to [Father] which were designed to aid [him] to overcome the problems which led to the initial removal and continued custody of the child." After also finding that return of P.G. to her parents would create a substantial risk of detriment to her safety and that there was not a substantial probability of P.G.'s return home with the next six months, the court terminated Father's reunification services and set the matter for a section 366.26 hearing.
On November 1, 2017, Father filed a notice of intent to file writ petition.
DISCUSSION
Father contends substantial evidence does not support the juvenile court's finding that the Agency provided him with reasonable services.
Court-ordered services for children under age three on the date of initial removal are presumptively limited to six months from when the child entered foster care. (§ 361.5, subd. (a)(1)(B).) If, however, at the six-month review hearing, the juvenile court finds that reasonable services have not been provided or offered to the parent, the court must continue the case to the 12-month review hearing. (§§ 366.21, subd. (b)(1)(C); accord, 361.5, subd. (a)(3).)
"Family reunification services play a critical role in dependency proceedings. [Citations.] Reunification services should be tailored to the particular needs of the family. [Citation.] . . . [¶] The 'adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged according to the circumstances of each case.' [Citation.] To support a finding reasonable services were offered or provided, '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.] '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.]" (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1425-1426.)
"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.]" (In re A.G. (2017) 12 Cal.App.5th 994, 1001.)
In this case, Father argues that the Agency's failure to make referrals to residential treatment, parenting education, or individual therapy between April and November 2017, demonstrates the lack of reasonable services provided. We disagree.
The evidence shows that Father's first social worker provided him with referrals to organizations, including Jelani House and Homeless Prenatal, which could have either provided these services or made referrals to other organizations, as well as to Accurate, which did drug testing. The evidence shows that Father did not take advantage of a single one of these referrals, despite follow-up by the first social worker. Then, once Huynh became the social worker assigned to this matter in April or May 2017, he met with Father in July, September, and October 2017. Huynh reminded Father of the need to engage in his reunification services, referred him again to visitation, and gave him a new referral for drug testing. Father failed to ever engage in any of his services, except for visitation.
Regarding the referral to residential treatment, in particular, Father states that Jelani House closed in May 2017, and Epiphany only took women and children, and, therefore, the two referrals to residential treatment were not available to him. Even assuming there is evidence in the record supporting Father's claims about these two programs, Jelani House was open for at least three months after the first social worker made the referral, and Father's only complaint about Jelani House was that they did not take couples. In addition, had Father followed up on the referral to Homeless Prenatal, he could have gotten an assessment and a referral to a residential treatment program there. His case manager at Horizons, Maria Guerrero, had also talked to Father about the need to begin residential treatment, but he was not responsive. Father testified at the six-month status review hearing that he was aware that completion of a residential treatment program was a requirement for reunification with P.G. He made repeated excuses, however, for failing to follow through on the referrals to residential treatment and all other services, claiming to be too busy with family problems that took up all of his time. (See In re Christina L. (1992) 3 Cal.App.4th 404, 414 [" 'reunification services are voluntary, and cannot be forced on an unwilling or indifferent parent' "].)
Father also testified more generally that he had attempted to reach several providers by phone, but could not get through. He testified that if he were given additional time for reunification, he would comply with all case plan requirements, if Huynh would actually help him. The court, however, expressly found that Father's testimony was not believable and that he "didn't make any efforts at all" to comply with his case plan, other than his belated visits with P.G.
The court did find that this was a close case in terms of whether there was enough follow-up by Huynh on the earlier referrals. But, as the court also found, the fact was that referrals to services were provided and Father had consistently made clear since then that he was not interested in engaging in any of those services. It is certainly true that it would have been preferable for Huynh to be more proactive in encouraging Father to engage in the various aspects of his case plan and following up with providers, despite Father's reluctance. As noted, however, the previous social worker had followed up with Father several times and he testified that he knew the requirements of his case plan. Once Huynh became Father's social worker, he met with Father three times to follow up on his progress, reminding him of the need to participate in his reunification services. But Father responded that he was "too busy." (See In re Christina L., supra, 3 Cal.App.4th at p. 415.)
For these reasons, we agree with the trial court that Huynh's failure to make additional referrals for services, while not ideal, did not render the Agency's provision of reunification services unreasonable in the circumstances of this case. As the trial court stated, a parent "can't be a potted plant" by doing nothing if he believes there are any problems with the reunification services provided and then using the alleged problems as an excuse to extend services. Father remained in only sporadic contact with the Agency, refused to engage in virtually all reunification services over the many months of the dependency, and made no objection whatsoever either to the Agency or the court about any aspect of his case plan or the services offered. He may not, after the reunification deadline has arrived, complain that the services provided were inadequate. (See Los Angeles County Dept. of Children & Family Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093 [a parent may not "wait silently by until the final reunification review hearing to seek an extended reunification period based on a perceived inadequacy in the reunification services occurring long before that hearing"].)
The one exception here is Father's belated, positive participation in visitation with P.G. during the last few months of the dependency.
This case is thus distinguishable from In re T.W.-1 (2017) 9 Cal.App.5th 339, 346, 348-349, cited by Father, in which Division Five of this District concluded the trial court's reasonable services finding was not supported by substantial evidence, where a second revised case plan was not prepared until three months after disposition and was still deficient, and the social services department failed to identify services objectives, provide information about programs, or arrange more than one telephone visit with the minor during the six-month review period. --------
In conclusion, viewing the evidence in the light most favorable to the Agency, we conclude substantial evidence supports the trial court's finding that reasonable services were provided. (See In re A.G., supra, 12 Cal.App.5th at p. 1001.)
DISPOSITION
The petition for extraordinary writ is denied on the merits. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.