Opinion
E076516
04-30-2021
E.A., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Ashlee Poullard, for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J279791, J280311, J280312 & J282650) OPINION ORIGINAL PROCEEDING; petition for extraordinary writ. Christopher B. Marshall, Judge. Petition denied. Ashlee Poullard, for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, for Real Party in Interest.
INTRODUCTION
Petitioner E.A. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court's order terminating reunification services as to her children Ar.A., M.A., T.A., and A.A., and setting a Welfare and Institutions Code section 366.26 hearing. She contends the court erred in finding that reasonable services were offered to her. We deny the writ petition.
All further statutory references will be to the Welfare and Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On February 15, 2019, the San Bernardino County Children and Family Services (CFS) filed a dependency petition on behalf of Ar.A., who was six years old at the time. The petition alleged that she came within the provisions of section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). It specifically alleged that Ar.A.'s father, A.C., was arrested for public intoxication while caring for Ar.A., that mother knew or reasonably should have known Ar.A. would be at risk if left in A.C.'s care, that mother had a history of substance abuse, and that she failed to reunify with Ar.A. in a prior dependency case.
A.C. is not a party to this writ. Therefore, we will focus our discussion on the allegations regarding mother.
A juvenile court held a detention hearing on February 19, 2019, and detained Ar.A. in foster care. The court ordered supervised visitation one time a week. It authorized CFS to increase the frequency and duration of visits and for mother to have unsupervised overnight and weekend visits if she tested clean.
Jurisdiction/Disposition as to Ar.A.
The social worker filed a jurisdiction/disposition report on March 8, 2019, and reported that a referral was received on February 13, 2019, alleging general neglect by A.C., when he was arrested for public intoxication, which left Ar.A. without any supervision. Mother had a prior dependency case regarding Ar.A., and her services were terminated on July 17, 2018. During an interview, mother stated that she previously failed to reunify with Ar.A. due to not having a stable home. However, now she was married to T.A., Sr., and they lived in the home of the maternal grandmother. The social worker reported that mother had a history with CFS beginning in 2013. She reunified with Ar.A.'s half siblings, G.A., T.A., and M.A., on February 15, 2019. Thus, she had recently completed case plan services, including counseling, parenting education, substance abuse treatment, and random drug testing. The social worker further reported that mother began overnight and weekend visits with Ar.A. on March 8, 2019. The social worker recommended placing Ar.A. in mother's care and dismissing the dependency case with family law orders for A.C.
The court held a hearing on March 12, 2019, and mother requested an extended visit with Ar.A. (Ar.A. had apparently been with her since detention.) The court granted the request and continued the hearing until April 11, 2019.
On April 9, 2019, the social worker filed an information memorandum with the court stating that the recommendation to grant custody to mother and dismiss the dependency was no longer appropriate since Ar.A.'s half siblings were recently removed from mother. (See ante.) The social worker instead recommended that the court declare Ar.A. a dependent of the court, remove her from mother and A.C., and order reunification services for both of them.
The court held a hearing on April 11, 2019, and county counsel informed the court of the change in recommendation. The court trailed the case to the next day to hear both cases together.
Section 300 Petition Regarding M.A. and T.A.
On March 21, 2019, the social worker filed separate petitions on behalf of M.A. and T.A. Each petition alleged that the respective child came within the provisions of section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). M.A. was 20 months old at the time, and T.A. was four years old, and they had the same father—T.A., Sr. The petitions included the allegations that mother had a substance abuse problem, an anger management problem, and histories of criminal activity and domestic violence. They also alleged that mother struck her other child, G.A., with her hand, leaving a handprint on G.A.'s cheek and bruising under her eye.
T.A., Sr. is not a party to this writ.
G.A. is not a subject of this writ. On February 16, 2021, this court dismissed the writ petition concerning G.A. because no selection and implementation hearing had been set as to her. Thus, this opinion will not focus on her.
In a detention report, the social worker stated that mother and T.A., Sr. (the parents) were arrested for child endangerment (Pen. Code, § 273a) and inflicting injury on a child (Pen. Code, § 273d). The social worker also reported on mother's dependency case history, which showed that Ar.A. had been removed from parental custody four times, T.A. and M.A. had previously been removed twice, and G.A. had been removed three times.
The court held a detention hearing on March 22, 2019, and detained M.A. and T.A. It ordered supervised visitation upon mother's release from custody, once a week, with the authority to increase the frequency and duration.
Jurisdiction/Disposition as to M.A and T.A.
The social worker filed a jurisdiction/disposition report on April 9, 2019, recommending that M.A. and T.A. be removed from the parents' custody and be declared dependents of the court. The social worker reported that due to mother being incarcerated, she was unable to comply with the court-ordered visitation. However, she was released from jail on April 3, 2019. Thus, the social worker submitted a supervised visitation contract so consistent visitation could be scheduled.
On April 12, 2019, the court held a combined hearing on Ar.A.'s case and M.A. and T.A.'s case. County counsel indicated that CFS was going to file an amended petition in Ar.A.'s case that would have similar allegations to those alleged in M.A. and T.A.'s case. The court continued both matters.
Ar.A.'s Amended Petition
On May 15, 2019, CFS filed an amended section 300 petition on behalf of Ar.A. The amended petition added the allegation under section 300, subdivision (j) (abuse of sibling), that mother admitted to inflicting injury to G.A. and was arrested for violations of Penal Code sections 273a and 273d, and that Ar.A. was at risk of similar harm or abuse. In a detention report, the social worker stated that mother admitted to slapping G.A. because she was not listening. Mother said she was arrested on March 19, 2019, and released on April 3, 2019, on four years of probation.
Further Proceedings on Both Cases
The court held a hearing on May 16, 2019, on both cases and ordered all parties to mediation on June 6, 2019.
On May 30, 2019, the social worker filed an information memorandum with the court and reported that Ar.A. was placed with M.A. and T.A. in the home of Mrs. D on May 16, 2019. The social worker further reported that a supervised visitation referral was submitted for M.A. and T.A. on April 9, 2019. However, mother's probation orders forbade her from seeing her children. Mother provided an updated probation order stating that she could visit, and her first visit was to take place on May 30, 2019. The social worker further reported that mother was referred to Youth Hope Inc. for individual counseling, parenting education, and couples counseling. She was also participating in random drug testing.
On June 6, 2019, mother reached a full agreement in mediation. She submitted on some of the allegations and CFS dismissed some of the allegations. She signed a waiver of rights and submitted on the petitions. The court held a hearing and accepted mother's waiver form. It followed the mediation agreement and sustained the petitions finding that Ar.A., M.A., and T.A. came within section 300, subdivisions (b) and (j), and it declared them dependents. The court ordered all three children removed from their parents and ordered all three parents to participate in reunification services. It also ordered supervised visitation one time a week for two hours.
A.C. and T.A., Sr., also signed waiver forms.
Six-month Status Review for Ar.A., M.A., and T.A.
The social worker filed a six-month status review report on November 26, 2019, recommending that the court continue services. The social worker reported that services had been provided to the three parents, including general case management, face-to-face monthly contacts, arranging and maintaining placement, bus passes, and referrals to community resources and services. The social worker specifically reported that mother was referred to individual counseling, couples counseling, parenting classes, and substance abuse testing. Mother had successfully completed her parenting program on August 9, 2019, and had successfully completed eight sessions of individual counseling and eight sessions of family therapy at Youth Hope, Inc. As to visitation, the social worker reported that the parents currently visited M.A. and T.A. together every Saturday morning. The visits were consistent and going well and CFS requested authority to move visits to being unsupervised.
The court held a six-month review hearing on December 6, 2019. It continued Ar.A., M.A., and T.A. as dependents, continued services, and granted unsupervised visits twice a week for two hours each.
Twelve-month Status Review as to Ar.A., M.A., and T.A.
The social worker filed a 12-month status review report on May 27, 2020, recommending that services be terminated for mother and the two fathers and that a section 366.26 hearing be set. The social worker reported that on February 12, 2020, the caregiver informed her that the parents were going to visits unprepared, without snacks or activities for Ar.A, M.A., and T.A. The children told the caregiver several times that they were hungry during visits. It was reported that on March 9, 2020, the parents did not bring wipes for M.A., and his diaper was soiled. The parents ended the visit an hour early. The caregiver reported that the parents seemed to run out of things to do, as they had been ending visits early for the past couple weeks. Furthermore, the parents would bring unapproved individuals to the unsupervised visits, even after the issue was addressed by the social worker several times.
On March 17, 2020, mother told the social worker she was okay with having the visits via video chat due to COVID 19. The caretaker reported that T.A. seemed to have a shift in behavior since the unsupervised visits began; he refused to follow directions at times, would test boundaries, and talked back. The caregiver subsequently reported that all three children were having behavioral issues after their unsupervised phone calls and were not following directives.
The court held a hearing on June 9, 2020, and mother set the matter for contest. The court found it in the best interests of the children to go back to supervised visits.
Section 300 Petition Regarding A.A.
On October 1, 2019, CFS filed a section 300 petition on behalf of A.A., who was less than one week old. His parents were mother and T.A., Sr. The petition alleged that A.A. came within section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling), and essentially alleged that he was at risk of harm since his siblings and half sibling were removed from the parents. The court held a hearing on October 2, 2019, and detained A.A. in foster care.
Jurisdiction/Disposition Hearing for A.A.
The social worker filed a jurisdiction/disposition report regarding A.A. on October 18, 2019, recommending that the court sustain the petition, declare him a dependent, and order reunification services for the parents. The social worker reported that mother had completed a majority of her services in her other children's cases, including parenting education, individual counseling, couples counseling, and weekly visitation. Nonetheless, the social worker was concerned due to the fact that mother had "an extensive CFS history that [had] resulted in repeated removals." The social worker further reported that she was working closely with the current caregiver and foster family agency to implement a consistent and ongoing visitation schedule.
On December 6, 2019, mother filed a waiver of rights form and submitted on the petition. The court held a hearing that day and accepted the waiver form. It found that A.A. came within section 300, subdivisions (b) and (j), declared him a dependent, removed him from the parents' custody, and ordered reunification services. It also ordered unsupervised visitation two times a week for two hours.
Six-month Status Review as to A.A.
The social worker filed a six-month status review report on May 27, 2020, recommending that services be terminated and a section 366.26 hearing be set. The social worker met with the parents on January 22, 2020, and mother said she was not participating in any services at that time. She said she was depressed and was not interested in participating in more therapeutic services. The social worker reported that mother was provided with referrals to individual counseling, couples counseling, parenting classes, and substance abuse testing.
On February 27, 2020, A.A.'s caregiver stated that he saw the parents leave A.A. in the car seat and leave him on a table in the food court and walk away to order food. Furthermore, on multiple occasions, A.A. came back from visits dirty and with a wet onesie. That week, the caregivers noticed bruising on A.A.'s lower back and one side of his torso being dark red. The social worker called mother to inquire about some bruising on A.A.'s back. Mother immediately became upset. She said, "Yes one time we left [A.A.] at the food court and the kids seen me argue with my mom."
On March 17, 2020, mother asked the social worker how visits would work during the pandemic, and the social worker said visits would take place via video chats. On April 6, 2020 and May 6, 2020, the caregivers reported that the parents had not contacted them with regard to video visits. The foster family agent worker stated she had set up four 30-minute video chats, but she was frequently unable to reach the parents.
On May 7, 2020, the social worker informed mother that Ar. A., M.A., and T.A. would be placed in A.A.'s placement, so all the siblings would be together.
The court held a six-month review hearing on June 8, 2020. County counsel requested that visits revert back to being supervised, and the court granted the request. Mother set the matter for contest.
Information Regarding Visits
On August 14, 2020, the social worker filed an information memorandum with the court and stated that, on June 24, 2020, the caregiver reported that M.A. returned from a visit soaked in urine due to the parents putting on the wrong size pull-up, despite being advised of the correct size. On June 29, 2020, M.A. returned from a visit soaked in urine again and had a meltdown. On July 1, 2020, the caregivers called the social worker to report that T.A. was refusing to participate in the visit and refused to get out of the car. When asked if he wanted to see his parents, he said, "No, no, no." After the visit, mother screamed in the parking lot at T.A. The caregiver said T.A. was screaming and crying after dinner, and then pooped in the bathtub.
Apparently, T.A. did visit with mother.
On July 5, 2020, it was reported that the caregivers took Ar.A., M.A., T.A., and A.A. (the children) to the doctor and found out they were infested with a severe case of head lice. The doctor said they could not have out-of-home contact until July 19, 2020.
On July 13, 2020, the social worker met with the children at their placement. T.A. told her he did not want to go to visits. Ar.A. also said she did not want to go to visits because she got lice from her parents. She said she had noticed the parents had a lice comb. The social worker then told the parents to provide medical clearance for head lice.
There were three visits at the end of July 2020. T.A. and Ar.A. refused to participate, but M.A. and A.A. visited.
On November 18, 2020, the social worker filed another information memorandum. During this reporting period, the parents' visits had been inconsistent, and they missed several zoom meetings. On September 15, 2020, the social worker asked the children about visits. Ar.A. said she did not want to visit, T.A. said he would rather color, and M.A. said, "No, no, no." Ar.A. said she loved her placement because the caregivers cooked for them, helped them with school, bought them toys, and helped brush her hair. She also stated she did not ever want to go home because she felt safe in the placement. On October 13, 2020, the social worker again asked the children about visits, and M.A., T.A., and Ar.A. said they did not want to visit with the parents. On November 3, 2020, they again said they did not want to visit.
On December 1, 2020, the social worker filed another information memorandum, in which she stated the parents had not benefited from counseling, as they blamed the caregivers and CFS for the children choosing not to communicate with them, rather than taking responsibility for their own actions. The social worker referred them to Parent-Child Interactive Therapy (PCIT) with the children on December 9, 2019. However, the service coordinator said no appointment was made because of the limited availability of the parents; thus, the referral was closed. The social worker resubmitted individual and parenting therapy referrals on January 22, 2020; however, those referrals were closed because the coordinator was not able to reach the parents. The social worker further reported that the parents visited with A.A. on November 30, 2020, but the other children refused to visit.
Contested Six-month Hearing as to A.A. and Twelve-month Hearing as to Ar.A., M.A., and T.A.
The court held a combined contested hearing on December 1, 2020, with regard to all the children. The court heard testimony from mother, T.A., Sr., and the social worker. Mother testified that she completed her required services and benefitted from them. She testified that prior to the pandemic she had consistent visits with the children, and during the stay-at-home orders she had consistent phone visits. However, she was currently only visiting with A.A. since the other children did not want to see her anymore.
The social worker testified that mother demonstrated a lack of benefit from her services when she blamed the caregivers for the children's refusal to visit, rather than "their trauma from everything that has happened year after year." The social worker testified that mother was referred to PCIT in November 2019, and when she followed up with the referral, mother said she was not participating because no one reached out to her. The social worker testified that mother was referred to PCIT again in February 2020. However, the referral was closed because the service coordinator was unable to reach her. Mother was referred again that same month. However, that referral was not active until June because the service coordinator resigned and had to be replaced. The social worker testified that she followed up with mother regarding PCIT, and they discussed that it was not happening because "the children refuse[d] to participate in any type of face-to-face with the parents."
We observe that the social worker's memorandum reflects that mother was actually referred to PCIT on December 9, 2019 and January 22, 2020. --------
During closing arguments, mother's counsel argued that mother's testimony clearly showed she had completed and benefitted from her reunification services. As to visitation, counsel argued that mother had unsupervised visitation throughout the case, and the visits were consistent and appropriate. It was not until the children changed placements that they stopped visiting her. Counsel argued that the social worker did not follow through with referring mother back to PCIT or family counseling that could have helped with "bridging the gap between why some of her children [did] not want to visit with her."
The court found by clear and convincing evidence that reasonable services were offered, but the parents were going through the motions of the services. It found that mother failed to participate regularly and make substantive progress in the case plan. It then terminated services and set a section 366.26 hearing.
DISCUSSION
The Court Properly Found That Reasonable Services Had Been Provided
Mother argues the court erred in finding reasonable services had been provided since CFS failed to make a good faith effort to arrange visitation. Specifically, she contends the social worker knew the children did not want to visit and "failed to offer any type of solutions in order to promote visitation and ultimately reunification." She asserts that visitation did not occur as frequently as possible, and CFS did not provide the children with individual counseling, PCIT, or family therapy. Mother concludes that the court erred in finding reasonable services were offered, terminating services, and setting a section 366.26 hearing. We disagree.
A. Standard of Review
"In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed." (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
B. Mother Has Forfeited Her Claim
At the outset, we address CFS's claim that mother forfeited her reasonable services claim by failing to object or to request additional services. In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived or forfeited and may not be raised for the first time on appeal. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) Appellate courts have applied the waiver (forfeiture) doctrine in dependency proceedings in a variety of contexts in which the parent has failed to object, including situations in which the juvenile court has set a section 366.26 hearing after determining that reasonable services had been provided. (In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886.)
In this case, mother failed to object to the adequacy of the reunification plan. Instead, she argued that she completed the services set forth in her plan and benefited from them. Thus, she has forfeited her claim as to the reasonableness of the services offered in her plan. Mother did complain in the juvenile court that CFS's efforts at arranging PCIT were inadequate. Specifically, she complained she was not provided a referral to PCIT after contacting the carrier social worker and the service coordinating social worker on multiple occasions. Having raised the issue of CFS's efforts below, we conclude that mother did not forfeit the issue of the reasonableness of CFS's efforts in effectuating her plan. Notwithstanding any forfeiture, mother's claim lacks merit.
C. There Was Substantial Evidence to Support the Court's Finding of Reasonable Services
We have reviewed the record and find mother's argument unavailing. The record reveals that she was offered a plethora of services, including general case management, face-to-face monthly contacts, arranging and maintaining placement, bus passes, and referrals to individual counseling, couples counseling, parenting classes, and substance abuse testing. Furthermore, CFS facilitated visitation throughout the dependencies. Mother had consistent visitation with the children, and the visits went well enough to progress from supervised to unsupervised. When the pandemic hit, she was still provided with visits via video chats. We note that, at times, mother went to visits unprepared without snacks and activities for the children or diaper wipes for M.A., and she would end the visits early. Additionally, when video chats were scheduled, they did not occur because the foster family agent worker was frequently unable to reach mother. During the most recent reporting period, mother's visits were inconsistent, and she missed several zoom meetings.
Mother complains that although the social worker knew the children stopped wanting to visit with her, CFS did not provide the children with individual counseling, PCIT, or family therapy. In support of her position, she relies upon In re Alvin R. (2003) 108 Cal.App.4th 962 (Alvin R.); however, that case is distinguishable. In Alvin R., the son did not want to visit his father, and the juvenile court recognized that visitation would probably not take place without conjoint therapy. (Id. at pp. 967-968.) The reunification plan required the father and his son to participate in conjoint counseling upon the son's therapist's approval or court order, after the son completed eight individual counseling sessions. (Id. at p. 967.) On appeal, the court reversed the juvenile court's finding that the Los Angeles County Department of Children and Family Services (the Department) provided reasonable services to effectuate the plan. (Id. at p. 965.) It noted that the key to the reunification plan was that the father and the child participate in conjoint counseling, but only after the child had received eight sessions of individual counseling. (Ibid.) The appellate court found that "[t]he Department effectively abdicated its responsibility to effectuate timely individual counseling for [the child], which precluded father from participating in conjoint counseling sessions with [him]." (Ibid.) The Department's first review report, filed nearly five months after reunification efforts should have begun, did not even address its efforts to get the child into counseling. (Id. at p. 972.) The court found that the father had done all that was required of him under the plan, and thus, "one service, getting [the child] into eight sessions of individual therapy, stood in the way of all measures remaining under the reunification plan, and the Department submitted no evidence of having made a good faith effort to bring those sessions about." (Id. at p. 973.)
Unlike Alvin R., the court here did not order the children to participate in counseling as part of the case plan. In contrast to the son in Alvin R., the children did not oppose visitation initially. In fact, mother had consistent visitation with them for months. The children only started to refuse to visit after the visitation became unsupervised, and they would come back from visits hungry, bruised, soaked in urine, and infested with lice. Moreover, after the unsupervised visits started, the children had behavioral issues at home. We note that "[d]uring reunification efforts, visitation generally must be as frequent as possible, consistent with the well-being of the child." (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356; see § 362.1, subd. (a)(1)(A).) The evidence indicated that the visits were not consistent with the well-being of the children.
Furthermore, contrary to mother's claim that CFS did not provide PCIT, she was referred to PCIT in November 2019, but did not participate because she said no one reached out to her. She was again referred to PCIT in February 2020. However, that referral was closed because the service coordinator was unable to reach her. Mother was re-referred that same month. However, the referral was not active until June because the service coordinator resigned and had to be replaced. The social worker testified that she followed up with mother regarding PCIT, and they discussed that the therapy was not happening because the children refused to have face-to-face interaction with the parents. These efforts were reasonable. (Alvin R., supra, 108 Cal.App.4th at pp. 972-973 ["Services will be found reasonable if the Department has '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 (such as helping to provide transportation . . . .' "], italics added; In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362 ["The adequacy of a reunification plan and of the department's efforts are judged according to the circumstances of each case."].)
We conclude that there was sufficient evidence to support the court's finding that mother was provided with reasonable services, including visitation. We observe that "[t]he reality in many of these cases is that the parent has irreparably damaged the relationship beyond salvage. This cannot be presumed, of course, and thus courts must, consistent with the child's well-being, order visitation and enforce that order appropriately. But if it turns out, after reasonable efforts have been exhausted, the child simply cannot be persuaded to visit, that, in and of itself, is not a basis for reversal." (In re Sofia M. (2018) 24 Cal.App.5th 1038, 1047.) Moreover, we note that mother does not dispute the court's finding that she failed to participate regularly and make substantive progress in her case plan. Therefore, there is no basis to conclude the court erred in terminating her services and setting a section 366.26 hearing.
DISPOSITION
The writ petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. SLOUGH
J.