Opinion
A168281
09-26-2023
D.M., et al., Petitioners, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent, CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, et al., Real Parties in Interest.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. Nos. J2200219 & J2200220)
PETROU, J.
D.M. (Mother) and D.D. (Father) are the parents of D.D. (D.D.). Mother is also the parent of K.L. Both parents have filed writ petitions challenging orders (one as to each child) that set a hearing pursuant to Welfare and Institutions Code section 366.26 and terminated reunification services.
All further statutory references are to the Welfare and Institutions Code.
Mother contends she is entitled to an extension of services as she did not receive reasonable reunification services. Father contends he is entitled to an extension of services as he regularly participated and made substantive progress in the court-order treatment plan.
Having thoroughly reviewed the record, we conclude Mother and Father have failed to meet their burdens of demonstrating error in the juvenile court's findings. Accordingly, we deny the petitions for an extraordinary writ on the merits. We also deny as moot the related requests for a temporary stay of the section 366.26 hearing set for November 6, 2023.
FACTS
Jurisdiction Hearing - June 27, 2022
Mother and Father are the parents of D.D., born October 2020. Mother is also the parent of K.L., born July 2017.
K.L's alleged father is not a party to these writ proceedings.
On April 14, 2022, real party in interest Contra Costa County Children and Family Services Bureau (the Agency) received a referral report concerning an altercation that took place while Father was driving a car with Mother and the children inside. During this altercation, Mother struck Father in the face and gave him a bloody nose.
During the Agency's initial investigation, the parents admitted to engaging in domestic violence in the presence of the children, with conflicting accounts regarding the seriousness of the incidents. Each parent alleged the other used alcohol and illicit substances, including while driving a car with the children inside. Consequently, on April 26, 2022, the Agency removed the children and filed juvenile dependency petitions (one as to each child) under section 300, subdivision (b) (failure to protect).
At the jurisdiction hearing, the parents pleaded no contest to the petitions' allegations, as amended, that: (1) D.D. was at substantial risk of serious physical and emotional harm as both parents engaged in intimate partner violence in D.D.'s presence and Father had a substance abuse problem that impaired his ability to adequately parent D.D.; and (2) K.L. was at substantial risk of physical and emotional harm due to intimate partner violence between Mother and Father in K.L.'s presence. The court declared the children to be persons described in subdivision (b) of section 300 and continued the Agency's custody of the children for out of home placement. A disposition hearing was scheduled.
Disposition Hearing - September 22, 2022
The juvenile court adopted the agency's recommendations. It adjudged the children dependents of the court, continued their removal, and granted the Agency custody of the children for their placement out of the home.
The court granted both parents reunification services and directed them to comply with case plans including parenting education, individual counseling, substance abuse treatment, and domestic violence services.Each parent was granted separate supervised weekly visits, with the agency given discretion to allow overnight visits. Mother's case plan also directed her to complete a mental health assessment, but the record contains no evidence that the mental health assessment ever occurred.
Following the disposition hearing, on October 31, 2022, the Contra Costa County Superior Court granted Mother a three-year restraining order against Father, protecting herself and both children. The order directed Father to not abuse Mother and included a stay-away order of 100 yards, a no-contact order (with the exception of peaceful communications concerning the child D.D. for court-ordered visits), and a child custody and visitation order directing each parent to follow current Juvenile Court orders for custody and visits regarding D.D.
This case plan requirement appears to have been based on then 24- year-old Mother's self-report of a history of mental health diagnoses, including attachment disorder and depression. According to Mother, she took prescribed psychotropic medication from the ages of 7 to 14; saw a therapist weekly from the ages of 14 to 18; and at age 19 resumed taking antidepressants after giving birth to K.L. Mother used marijuana to cope with her depression but asserted she did not abuse it and did not use around the children. Mother also drank "socially." Despite her struggles with depression, Mother opined she had a" 'good healthy life.' "
Agency Review Reports and Hearings - December 2022 through July 2023
Following the disposition hearing, the Agency filed several reports with the court concerning interim reviews, the six-month status review for D.D., and the 12-month status review for K.L. D.D.'s six-month status review was originally set for February 27, 2023, and continued several times. This status review and K.L.'s 12-month status review were commenced on June 26, 2023, and completed on July 10, 2023, resulting in the orders now under review.
December 5, 2022 Interim Review
In the report for an interim review set for December 5, 2022, the Agency social worker reported on Mother's circumstances since the disposition hearing. Mother had made significant progress in addressing her substance abuse challenges, therapeutic needs, was medication compliant, and continued to attend AA/NA support groups. In October 2022, mother reported that she had entered a year-long residential treatment program; at that placement, there were programs that met her case plan requirements and she could have overnight visits with the children. Mother also reported she had seen a psychiatrist in August 2022 who had given her a prescription of Lexapro (an SSRI) and had an appointment scheduled in October at a mental health clinic to meet with a new psychiatrist.
At the end of November 2022, the Agency received information that Mother had to leave the residential treatment program due to two incidents during which she had created an unsafe environment for other residents in the presence of children.
February 27 Hearing
In its report for the February 27 hearing, the Agency recommended termination of reunification services for Mother and recommended Father be granted custody of D.D. with family maintenance services. Father had consistently engaged in case plan services and completed multiple plan objectives, was able to meet the immediate needs of D.D. during supervised visits at the Agency, and had been approved (beginning February 2023) for overnight visits supervised by D.D.'s paternal great grandparents in their home.
Mother had not made similar progress. After leaving her residential treatment program at the end of November 2022, Mother had no stable housing and instead had been living at various places including hotel and Airbnb locations. On December 20, mother called the Agency social worker to re-engage in case plan services and resume visits with the children. The Agency social worker assisted Mother with admission into two different residential shelter programs, but Mother voluntarily left those programs after a few days.
The Agency social worker reported on Mother's mental health and compliance with case plan services. At a meeting on December 20, Mother stated she was still working with her psychiatrist, who had prescribed Lexapro for anxiety and depression. Mother reported she was starting therapy, scheduled once a week, at a named program. Mother had also started (but not completed) domestic violence courses and was waiting to hear from service providers for anger management. At a meeting on January 20, Mother stated she had an appointment with a psychiatrist once a month for medication, she was continuing to take her medication, and she had recently filled the prescription.
In January 2023, Mother tested positive for cocaine and cannabis. While Mother insisted she only drank socially and used cannabis but did not have a substance abuse problem, the Agency social worker referred Mother to a service provider to complete substance abuse assessment and Mother agreed to random drug testing.
The Agency social worker also reported on Mother's visits with the children. At her first residential treatment program, Mother had an overnight visit (4 nights) in November 2022. Since she had left that program and was not fully participating in case plan services, Mother's visits had reverted to supervised visits at the Agency, which went well and did not raise any safety concerns. She had one supervised visit in December 2022 and four supervised visits in January 2023. In February 2023, she had one supervised visit and three cancelled visits.
At the February 27 hearing, the juvenile court continued the matter to March 27 for a contested six-month review for D.D. In the interim, the juvenile court expanded the Agency's discretion to grant Father overnight visits with D.D.
March 27 Hearing
In its memorandum for the March 27 hearing, the agency reported that it had to pause overnight visits for Father as he had tested positive for the use of cocaine and benzodiazepine, with no plausible explanation for the positive test results. In addition, and despite an outstanding restraining order, both parents continued to engage "in a harassing and threatening manner" via text messages that had nothing to do with the co-parenting of D.D.
Hence, the Agency now asked the court to terminate reunification services for both parents. Although Father had participated in multiple case plan services and obtained certificates of completion, "he has not demonstrated behavioral change nor has he used the tools or coping strategies to not engage in harmful communication with the [child's Mother]. Both parents continue to talk about their child in their text messages and email communication as a means of power and control. Due to [Mother's] entering and voluntarily [leaving] treatment programs, [she] has not had stability in housing, participation in a certified domestic violence program, or demonstrated she is free of all substances to be a safe and sober parent."
At the March 27 hearing, the juvenile court continued the matter for a contested six-month review for D.D., and later continued the matter for a combined contested six-month review for D.D. and a 12-month review for K.L.
May 2023 Report for 12-Month Review for K.L.
The Agency filed a report for the 12-month review for K.L. (originally set for May 8) informing the court that Mother had no visits with K.L. during March as she was changing residential treatment programs. On April 3, mother entered her fourth residential treatment program, which provided programs in parenting education, life skills, substance abuse education, random drug testing, job readiness, and housing assistance. Mother resumed supervised visits with the child at the Agency and visits went well.
Mother was "in compliance" with her parenting education program, having completed a parenting course curriculum at her first residential program. She was in "partial compliance" with counseling and mental health services, as she was currently receiving therapy services at her residential treatment program, but those services were in process. She was not in compliance with her domestic violence program, as she had not submitted any verification of successfully completing a domestic violence program. Mother was also not in compliance with her substance abuse treatment program. She missed 10 random tests (between February 28 and April 17) at the Agency and tested positive for marijuana on April 3 and April 17 at her residential program. When questioned, Mother explained she was overwhelmed and had stopped focusing on her case plan services, but she was now committed to her sobriety.
June 13, 2023 Update Memoranda
The Agency submitted updated memoranda dated June 13, 2023 (one for each child) regarding the family's circumstances.
The Agency had received a police report detailing a horrific physical altercation between the parents that occurred on March 31, 2023. Mother told the police that Father had picked her up from a women's shelter several days earlier and they had been sleeping in a car. Father punched her and she lost consciousness. A witness reported seeing Father punch and kick Mother "over 30 times." Mother was hospitalized due to her injuries.
At the June 26 and July 10 hearings, Mother testified regarding this incident. She stated that prior to the incident she and Father had been staying in Father's car and had been drinking. Mother wanted to leave and Father got angry and kicked her out of the car. Once she was outside, Father kicked her repeatedly and hit her in the face. Mother could not defend herself. People on the street stopped Father and someone called the police. Mother sustained a broken rib and a few fractures to her face. Father ran from the scene and Mother did not know if the police ever contacted Father about the incident.
Almost immediately after the March 31 incident, both Mother and Father re-entered separate year-long residential treatment programs where they were actively participating in services. Both parents were subject to random drug testing at both the Agency and at their residential treatment programs. Mother tested negative on one occasion, results of one test were not available, and she failed to appear for testing on June 2 and June 7 despite the Agency having changed the testing location at Mother's request. Father tested negative on one occasion, results of one test were not available, and he failed to appear for tests on May 25, June 2, and June 7, despite the Agency having changed the testing location at Father's request. The parents had resumed supervised visits with the children, without any safety concerns.
The Agency continued to recommend termination of reunification services to both parents because of their significant and ongoing domestic violence history. Given the seriousness of the March 31 incident, their violation of a restraining order, and their lack of transparency as to the incident, the Agency was concerned regarding the parents' ability to keep the children safe.
June 26, 2023 and July 10, 2023 Hearings
The court convened hearings on June 26 and July 10. The court applied the legal standards for a six-month review for D.D. and a 12-month review for K.L. The court read and considered all the Agency reports for each child filed since the commencement of the dependencies. The court also admitted into evidence letters from the parents' most recent service providers regarding their participation in services as well as text messages between the parents.
The court heard testimony from Mother and the Agency social worker who had been assigned to the case from approximately September 2022 to April 2023 and had prepared the March 27, 2023 memorandum for the sixmonth status review for D.D. Father was present but did not testify. The court also considered argument by counsel for the Agency, both children, Mother, and Father.
The juvenile court set a section 366.26 hearing and terminated reunification services after finding by clear and convincing evidence that the children's return would be detrimental, the parents had been offered reasonable reunification services designed to aid them in overcoming the problems which led to the initial removal and continued custody of the children, and the parents had failed to participate regularly in court-ordered treatment plans. The court also determined that Mother had made minimal progress and Father had made partial progress in addressing the reasons for the children's removal.
The court noted the parents had participated in some services, and yet both had violated a restraining order to stay away from each other. The parents' most recent altercation in March raised serious concerns regarding the children's safety. The court stated that at the six-month review hearing in February, Father was "mostly in compliance" with his case plan, and the court thought the case was going to be a success story. However, after listening to Mother's testimony, the court found it was clear that while Father "was complying with his case plan, at least on paper, all the while, he was in violation of court orders . . . [and] restraining orders. . . [N]one of it was real. There continued to be horrific intimate partner violence."
Pending the section 366.26 hearing, the juvenile court granted the parents the right to separate supervised visits.
DISCUSSION
I. Mother's Challenge to Reasonable Services Finding
Mother's sole contention in her writ petition is that she was not provided with reasonable reunification services because the Agency did not secure a mental health assessment, which should have been its first step in determining the services necessary to assist her in reunifying with the children. We conclude Mother's argument is forfeited because she did not present it in the juvenile court. (See Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1347-1348, fn. 5; In re Kevin S. (1996) 41 Cal.App.4th 882, 885, 886.)
The record reflects, based on Agency reports and according to reports by Mother, that from August 2022 (before the jurisdiction hearing) through early 2023 Mother had seen psychiatrists for prescription medication to address her mental health issues of anxiety and depression. In late 2022, Mother also reported to the Agency social worker that she was starting weekly therapy at a named program. At the June 26, hearing, Mother confirmed she was still taking medication prescribed by a psychiatrist. While she believed she needed alternate medication, she made no request for a mental health assessment and raised no complaint that the Agency had failed to recognize her mental health needs.
Had Mother made any assertion at either the June 26 or July 10 hearings concerning the missing mental health assessment, both the Agency and the juvenile court would have had an opportunity to address the issue and make a record before the court made its reasonable services finding. Mother, with the assistance of counsel, could have "cross-examined the social worker," or "introduced [her] own evidence on the issue. . . . [F]or [her] to now make this argument amounts to nothing more than an attempted sandbagging of the [juvenile] court. This we cannot tolerate." (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 813.) Given the absence of an objection in the juvenile court, we find Mother has forfeited her argument that she was denied reasonable services because the Agency did not secure a mental health assessment.
We note that even if the issue were not forfeited, we would find no merit to Mother's argument that the Agency should have considered her "mental health" as the" 'starting point'" for a reunification plan. In support of her argument, Mother asserts her situation is similar to Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397 (Patricia W.) and In re K.C. (2012) 212 Cal.App.4th 323 (K.C.). We disagree as both cases are inapposite.
In Patricia W., supra, 244 Cal.App.4th 397, the agency removed the children from the mother's care after she had multiple schizophrenic episodes in the presence of the children. (Id. at p. 401.) The agency secured two mental health evaluations and sought professional input to address mother's mental health, but the agency failed to obtain a proper diagnosis of mother's mental health and consequently never offered or provided any appropriate treatment. (Id. at pp. 422-424.) Under those circumstances, the appellate court found that "the Agency was required, first, to identify mother's mental health issues and provide services designed to enable her to obtain appropriate medication and treatment that would allow her to safely parent [her child]." (Id. at p. 422.)
Similarly, in K.C., supra, 212 Cal.App.4th 323, the agency removed the child from the father's care due to his psychological problems. (Id. at p. 325.) The agency had secured a recommendation that father should be evaluated for treatment with psychotropic medication. (Id. at p. 329.) The Agency referred the father to a public mental health clinic, but when the clinic declined to treat the father, the agency made no other attempts to secure the psychotropic medication evaluation. (Ibid.) Under those circumstances, the appellate court found the agency's failure to arrange for the psychotropic medication evaluation for the father was unreasonable. (Id. at pp. 333-334.)
Unlike the situations in Patricia W. and K.C., where the children were removed due to the parents' mental health issues, in this case the critical problems that led to the children's removal were intimate partner violence and substance abuse. While we do not question that mental health struggles are often a significant factor in substance abuse and intimate partner violence, the Agency social workers appropriately focused on offering and providing services focused on remedying the latter problems, including referrals for parenting classes, substance abuse treatment, domestic violence services, and residential treatment programs where Mother could receive services including counseling services. The Agency social worker also maintained reasonable contact with Mother during the reunification process and made reasonable efforts to assist Mother when she had difficulty finding a residential treatment program. (See In Re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.)
And in contrast to Patricia W. and K.C., in this case the record reflects that during the reunification period mother was under the care of a psychiatrist who provided her with medication to cope with her depression and anxiety. Mother specifically informed the social workers that in August 2022 (before the disposition hearing) she had seen a psychiatrist and secured an initial prescription of Lexapro, in October 2022 she had made an appointment to see a new psychiatrist to refill the prescription medication, in December 2022 she was continuing under the care of a psychiatrist to address her depression and anxiety, and in January 2023, she was seeing a psychiatrist on a monthly basis for prescription medication.
Hence, were the issue properly before us, we could not conclude on this record that the Agency's purported failure to arrange for a mental health assessment required reversal. Although it is possible a mental health assessment might have uncovered other issues, as Mother argues, on this record such speculation is not a basis for finding that the Agency's failure to arrange for the assessment rendered the reunification services inadequate.
In sum, we deny Mother's challenge to the order scheduling a section 366.26 hearing and terminating her reunification services. She has forfeited review of the court's reasonable services finding, and if the issue were before us we would uphold that finding.
II. Father's Challenge to Finding That He Failed to Participate Regularly and Make Substantive Progress in A Court-Ordered Treatment Plan
Because the juvenile court applied the legal standard for a six-month review for D.D., we do not address Father's contentions that his reunification services should have been extended under the legal standard for a 12-month review.
For a child under three years of age at the time of initial removal, like D.D., "reunification services are presumptively limited to six months." (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843 (Tonya M.).) If the child is not returned to parental custody and is under three years of age on the date of initial removal, like D.D., the court may set a section 366.26 hearing if it finds by clear and convincing evidence the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan. (§ 366.21, subd. (e)(3).) We review for substantial evidence a juvenile court's finding, by clear and convincing evidence, that a parent has failed to participate regularly and make substantive progress in a court-ordered treatment program. (J.H. v. Superior Court (2018) 20 Cal.App.5th 530, 535.)
Father argues he was entitled to have his services continued because the record includes evidence that he participated regularly in services and had made substantive progress in a court-order treatment plan. However, the issue before us, and our sole task as an appellate court, is to determine if there is substantial evidence to support the court's contrary finding, and we so conclude on this record. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688-689.)
D.D. was removed from Father's care due to his intimate partner violence with Mother and his substance abuse. His case plan objectives required him to address both issues. Instead, as to domestic violence, the court found credible Mother's testimony that at the end of March 2023 the parents were still engaging in "horrific intimate partner violence." Indeed, the parents' most "recent altercation" at the end of March 2023 caused the juvenile court to justifiably have "serious concerns" about whether Father had "internalized the case planning" services that he had purportedly successfully completed "on paper." As to substance abuse, after Father had reentered a residential treatment program in early April he missed several random drug tests that were "properly considered as the equivalent" of positive tests for drugs. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217.) Accordingly, and contrary to Father's argument, there was substantial evidence to support the court's denial of his request for additional time to participate in reunification services.
At the six-month review hearing for a child under the age of three, like D.D., the juvenile court has the discretionary authority to set a section 366.26 hearing and terminate reunification services, "unless there is a substantial probability the child will be returned to [the] . . . parent in six months or if there was evidence of unreasonable services. (§ 366.21, subd. (e).) Neither delaying event occurred in this case." (Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1031.)
We reject Father's conclusory argument that, even if he did not make substantive progress in his court-ordered treatment plan, the juvenile court should have made a finding that "there [was] a substantial probability the child" might have been returned to his care "by the 12-month date." At the time the juvenile court made its six-month review findings on July 10, 2023, the case was already past the 12-month review period that ended on June 26, 2023. (See § 366.21, subd. (f)(1) [12-month permanency hearing must be held "no later than 12 months after the date the child entered foster care" under § 361.49]; § 361.49 [child is deemed to enter foster care on the earliest of the date of the jurisdictional hearing or 60 days after the date on which the child was initially removed from physical custody of parents].) Because the juvenile court had no authority to extend services beyond the 12-month review (Tonya M., supra, 42 Cal.4th at p. 848), it did not commit error by failing to find at the six-month review that there was a substantial probability that D.D. might be returned to Father by the 12-month review. As recognized by the Tonya M. court: "The vagaries of when a six-month review hearing is set are of no moment to the child when it comes to deciding how much longer [the child] . . . must wait for a stable, permanent placement.... Delays in holding the six-month review hearing do nothing to diminish the child's interest in receiving a commitment and a loving home, from whoever is able to provide it, at the earliest possible time." (42 Cal.4th at p. 847.)
We therefore deny Father's challenge to the order setting a section 366.26 hearing and terminating his reunification services as he has failed to meet his burden of demonstrating the court erred in its findings following the six-month review hearing for D.D.
DISPOSITION
The petitions for an extraordinary writ are denied on the merits. (Welf. &Inst. Code, § 366.26, subd. ( l); Cal. Rules of Court, rule 8.452(h)(1).) The requests for a temporary stay are denied as moot. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
WE CONCUR: Fujisaki, Acting P.J., Rodriguez, J.