Opinion
A157965
10-22-2019
E.J., Petitioner, v. THE SUPERIOR COURT FOR THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. JD18-3109)
E.P. (Mother) petitions this court for extraordinary relief under California Rules of Court, rule 8.452, asking us to set aside the juvenile court's order setting a permanent plan hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). She contends that she was not offered reasonable reunification services and that, because she was incarcerated for part of the reunification period, she should receive six additional months of services. We will deny the petition on the merits.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. Jurisdiction
The San Francisco Human Services Agency (the Agency) filed a petition pursuant to section 300 on behalf of E.J. (Minor), then four years old, on April 30, 2018. The petition alleged Mother had physically and verbally assaulted people in Minor's presence, that her ability to care for Minor was impaired by anger management and mental health issues, that she inserted her finger into Minor's vagina on public transportation to check for signs of sexual abuse, and that she left Minor with no provision for support after she was arrested.
According to the detention report, Mother physically attacked the property manager of her housing complex in Minor's presence. Minor was "in the middle" of the altercation and was "screaming and yelling and telling [Mother] to stop." There were reports that Mother had assaulted multiple other people at the housing complex in the past in Minor's presence, and she was facing eviction. There were also reports that Mother had a history of accusing people of sexually abusing Minor, which led to Minor being interviewed and examined for unfounded sexual abuse allegations. The previous year, the Agency had received two reports that Mother inserted her finger into Minor's vagina on public transportation to check for signs of sexual abuse after Minor had been at daycare. Mother had been arrested for violating a protective order, and the person with whom she had left Minor was unable to provide long-term care for her. Minor was detained and supervised visitation was ordered for Mother on May 1, 2018.
The Agency made an application to suspend visitation between Minor and Mother on June 11, 2018. A social worker provided a declaration stating that Mother had accused Minor's foster parent of "touching" Minor, that Mother became "dysregulated" and called 911 when Minor arrived at a visit, and that she disrupted the visit. At a meeting to discuss the Agency's concerns about her behavior, Mother violently bumped into a psychologist, screamed obscenities, cried, and slammed her fist on the table. Mother later threatened to have the social worker followed and threatened to " 'smack' " him and shoot him. On June 12, 2018, the court issued a temporary restraining order protecting the social worker and suspended visits pending a medication and psychological evaluation; it later issued a restraining order.
The Agency's report for the June 18, 2018 jurisdiction and disposition hearing set forth the efforts it had made: referrals for housing assistance, substance abuse assessment, mental health services, supervised and therapeutic visitation, and contacts with the social workers.
On June 18, 2018, the juvenile court found true allegations that Mother had anger management issues and Minor had witnessed verbal and physical altercations and had tried to intervene; that Mother had mental health issues that required assessment and treatment; and that Minor was at risk because Mother had a history of making unsubstantiated allegations of sexual abuse. It declared Minor a dependent and removed her from Mother.
II. Disposition
The dispositional hearing took place on August 31, 2018. In the meantime, the Agency reported on the progress of the case. Mother was working with a different social worker on her assessment and case plan, she was respectful, and she expressed remorse about her behavior toward the first social worker. Mother had experienced neglect, physical abuse, and sexual abuse in her life, and she showed insight into her own history of trauma. She had been evicted from her housing because of violent behavior toward staff, and she was now homeless.
By August 2, 2018, Mother had received psychological and medication evaluations and was taking medications. She had been referred to a variety of services: she had an appointment scheduled for individual therapy; she was on a waiting list for mental health residential treatment; and she had been linked to a female batterer program to address anger management and poor impulse control.
Mother was homeless, and either stayed at shelters or slept on the streets. The Agency held a meeting with Mother and a CalWorks "Linkages" worker regarding her entitlement to financial support, and she was given information about resources for housing assistance. The Agency had tried to hold a team meeting to address Mother's housing needs, but Mother did not show up for the meeting.
Mother had sent text messages to her social worker saying she had hired a private investigator and had the FBI watching the social worker and the foster parents.
Mother began to receive three hours of therapeutic visitation with Minor per week in August 2018, after the Agency met with her to set expectations, including that the visits were only for Mother and Minor. Nevertheless, Mother brought her 16-year-old sister to the first therapeutic visitation session, which was delayed while the social worker persuaded them that the sister could not attend.
Minor's foster parents reported that she had nightmares, was aggressive to animals, and had been violent toward the foster parents, who were not sure they could continue caring for her. Minor was having a difficult time after the visits.
At the disposition hearing on August 31, 2018, the juvenile court continued Minor in foster care, ordered reunification services for Mother, and continued the matter for a six-month review on February 28, 2019.
III. Request to Suspend Visitation and First Incarceration
The Agency filed a request to suspend visitation on October 1, 2018. The request followed a September 26, 2018, incident in which Mother punched a social worker in the face, apparently thinking she was Minor's foster mother; followed Minor's therapist and an associate down the street and yelled that they had kidnapped her child; apparently vandalized the therapist's car; and shoved another Agency employee. The court issued a restraining order protecting the social worker from Mother. The court suspended visitation pending a hearing on the Agency's request.
On November 2, 2018, Mother physically and verbally assaulted another social worker, apparently believing her to be a social worker who had worked on the case earlier in the year. The trial court issued a restraining order protecting both social workers from Mother.
Mother was arrested twice during the six-month review period, and was incarcerated in San Francisco, San Mateo, and Alameda County for a total of approximately four weeks. On December 12, 2018, the juvenile court denied the Agency's request to suspend Mother's visitation and allowed her to have supervised visitation once a week while incarcerated in a county jail if she was in a program that allowed contact visits with Minor. The order provided she would have supervised visitation once a week upon her release from custody, which occurred December 21, 2018.
IV. Six-Month and Twelve-Month Hearing
Before the six-month hearing scheduled for February 28, 2019, the Agency recommended that the court terminate reunification services. The matter was set for a contested hearing. It was eventually continued again and took place concurrently with the 12-month hearing on July 24, 2019. At the hearing, the Agency recommended that reunification services be terminated and the matter set for a .26 hearing.
A. Services Before Mother's Second Incarceration
In February 2019, the Agency reported that Mother lacked housing. The Agency had referred her to another organization for housing support, completed an application for Section 8 housing, given Mother information on an open housing list in San Francisco, and given her shelter locations. Mother had not followed up on any of the referrals or information.
Mother had received referrals for individual therapy and medication evaluation in May, June, September, and December 2018. Mother did not believe she needed mental health services, and said the reason she " 'act[ed] out' " was because the Agency had taken Minor from her. She appeared paranoid and anxious, but refused therapy and medication. Her use of narcotics was increasing.
Mother had received a referral for anger management. She was initially unable to attend because of problems with MediCal reimbursement, but the Agency contacted the program and said it would pay directly. Because of Mother's history of trauma with men, the psychologist who had evaluated Mother had recommended she receive treatment from female providers. Mother would have had to meet with a man to handle the initial paperwork for the anger management program, before seeing a woman for anger management therapy. The Agency was at first unsuccessful in its efforts to locate any female-only anger management programs, but found one in February 2019. It gave Mother a referral to the female-only program, but she did not attend.
A program manager for the Agency, who was handling the case because of Mother's attacks on social workers, offered to drive Mother to her appointments, including to a mental health clinic that was accustomed to serving homeless clients, bought food for her, talked with her at least twice a week to encourage her to go to therapy and take her medication, encouraged her to engage in anger management services, gave Mother her cell phone number, and told Mother she would come if she needed help. Mother visited the clinic once, but she did not go to her next appointment. The program manager also testified that Mother received a referral for parenting education.
Mother was visiting with Minor. The visits generally went well, although Mother sometimes had to be "redirected" when she blamed other people for the fact that she and Minor could not live together, asked Minor if anyone was hurting her, or said negative things about men.
The Agency described Mother's parenting skills as "marginal at best." She did not set boundaries for Minor, she had difficulty understanding Minor's developmental stages, and her fear for Minor's safety caused Minor anxiety. Minor was frightened when Mother constantly asked if she was being hurt or touched inappropriately or when Mother spoke negatively about men and cried. The Agency reported that Mother and Minor were "very bonded and connected," but concluded Mother did not understand how her aggressive and violent behavior affected Minor.
B. Services During Mother's Second Incarceration
Mother was arrested on March 15, 2019 in San Francisco County, and by April 8, 2019 was being held in San Mateo County on charges unrelated to the dependency. She was still incarcerated at the time of the July 24, 2019 hearing.
On the same day it learned Mother had been arrested, the Agency made a referral to an organization called Community Works to begin services and arrange for Mother and Minor to visit in jail. Mother was visiting with Minor regularly.
The Agency followed up with Community Works to see if it worked with clients in the San Mateo County jail; a Community Works employee told the social worker she had met with Mother and referred Mother to services in jail. However, mental health services were unavailable at the jail. Mother was switched from one "pod" at the San Mateo County jail to another after about three weeks, apparently as a result of an incident with another person. She attended one session of a parenting class while in the first unit, but had to stop attending when she was moved. She had looked into attending an anger management program while she was in the first unit.
On May 24, 2019, a social worker sent the jail a request for services that would assist Mother and followed up with a phone call. However, Mother was placed in administrative segregation at the end of May, and she was not able to participate in any services. Although the jail would not reveal its reasons for placing a particular inmate in administrative segregation, it said some typical causes could be behavior issues, mental health issues, fighting, or other disruptive behavior.
C. The 12-Month Review Hearing and Ruling
The program manager and a social worker who also worked on the case testified at the 12-month review hearing. At several points during the hearing, Mother disrupted with profanity, crying, or vulgar gestures.
The juvenile court found Mother had received reasonable services and had made minimal efforts to alleviate the causes of the dependency, terminated reunification services, and set the matter for a .26 hearing.
DISCUSSION
I. Legal Standards
Mother contends she was not offered reasonable reunification services designed to meet her needs. A parent is normally entitled to 12 months of reunification services from the time of removal from the parent's custody. (§ 361.5, subd. (a)(1)(A).) This period may be extended to 18 months only if the court finds that there is a "substantial probability" that the child will be returned to the parent's physical custody within that time period or that "reasonable services have not been provided to the parent or guardian." (§ 361.5, subd. (a)(3)(A).)
The burden is on the Agency to prove, by clear and convincing evidence, that it has provided reasonable reunification services. (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1345.) It must make a good faith effort to develop and implement a family reunification plan; specifically, it must identify the problems leading to the loss of custody, offer services designed to remedy those problems, maintain reasonable contact with the parent, and make reasonable efforts to assist the parent where compliance is difficult. (Ibid.) " '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.' " (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426 (Tracy J.).)
When a parent is incarcerated, reasonable services must be provided unless they would be detrimental to the child. (§ 361.5, subd. (e)(1); In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.) Those services may include visitation between parent and child, and requiring the parent to attend counseling or parenting classes. (§ 361.5, subd. (e)(1)(C) & (D)(ii).) A child welfare agency should contact the institution to see if there is any way to make services available to a parent. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1013 (Mark N.), superseded by statute on other grounds as noted in Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1504.) When determining whether to extend reunification services past 12 months, the court must consider the "special circumstances" of an incarcerated parent, including "barriers to the parent's or guardian's access to services and ability to maintain contact with his or her child." (§ 361.5, subd. (a)(3)(A).)
We review a finding of reasonable services for substantial evidence, determining whether there is substantial evidence from which a reasonable factfinder could make the finding based on clear and convincing evidence. (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1239-1240.)
II. Services During Incarceration
Mother contends she should have been offered six additional months of reunification services because she could not engage in her reunification plan while she was in jail, including one month in late 2018 and the four months between her March 2019 arrest and the 12-month hearing. Mark N. describes the efforts a child welfare agency should make for an incarcerated parent: "[W]hile the department cannot tell prison officials how to run their institutions, it can: notify the prison an incarcerated parent is in need of reunification services; determine whether any appropriate services are available at the particular institution in question; and explore whether changes in the housing of the parent prisoner can be made to facilitate the provision of such services consistent with legitimate prison and public safety concerns." (Mark N., supra, 60 Cal.App.4th at p. 1013, italics added.)
The Agency's actions met these standards. Mother's initial period of incarceration was relatively brief, and she was held in jail in three different counties for a total of about four weeks during late 2018. The court ordered visitation while Mother was in jail, and the Agency made extensive efforts to help Mother comply with her case plan during the next several months. As soon as the Agency learned Mother had again been incarcerated on March 15, 2019, a social worker made a referral to Community Works to arrange for services and visitation, and when Mother was transferred to San Mateo County's jail, a social worker arranged clearances for supervised visitation. A social worker checked with Community Works to see if it had contacted Mother, and received confirmation that a Community Works representative had met with Mother and helped her with paperwork for visitation and that Mother was making plans to attend parenting classes and academic classes. The Agency then arranged for supervised visitation in jail.
After Mother was involved in an incident with another inmate and transferred to a pod in which she could not continue her parenting class, a social worker sent the jail a request for specific services that would benefit Mother and followed up with a telephone call. Unfortunately, Mother was then transferred to administrative segregation. The Agency again contacted the jail to see if Mother could receive services for anger management in administrative segregation, and was told that she could not. Mother continued to receive regular visits with Minor while she was in administrative segregation.
This recitation leaves no doubt that the Agency made reasonable efforts to help Mother participate in her case plan while she was incarcerated. The interruption in Mother's parenting course and her difficulty in receiving anger management were caused not by any failure on the Agency's part, but on the jail's concerns that caused it to move Mother from one housing unit to another and finally to administrative segregation, where services other than visitation were unavailable. (See Mark N., supra, 60 Cal.App.4th at p. 1013 [services for incarcerated parent are subject to legitimate prison concerns].) We accordingly reject Mother's contention that she was deprived of reasonable services due to her incarceration.
III. Reasonable Services
Mother also contends that, even apart from her incarceration, the Agency failed to provide her with reasonable services in several respects. She argues first that the services were inadequate because the Agency did not provide substance abuse education. We are not persuaded. The psychologist who evaluated Mother noted that in light of her family history of substance abuse and history of using drugs and alcohol, she was at " 'relatively high risk' " of addiction; the psychologist recommended " '[e]fforts in education and prevention.' " At the 12-month hearing, the program manager was asked if Mother had been referred to substance abuse education; she responded that the Agency planned to have Mother's therapist begin to educate her on substance abuse issues. She also testified that she concluded that Mother would not benefit from other services until her mental health was stabilized, so the Agency's first goal was to get Mother to take her medications and begin mental health treatment. We see nothing unreasonable in this approach. In any case, it appears the Agency did in fact provide resources to address any problems with substance abuse: In April 2018, Mother received a referral for a substance abuse assessment, and she received further referrals to the same organization in June and August 2018.
The psychological evaluation also said that it would be helpful for Mother to receive case management services. Mother argues that this recommendation means she should have been assigned to a case manager outside the Agency, in light of her "obvious disdain" for the Agency. The program manager who worked with Mother testified that she did not understand the recommendation to mean that the case should be managed by someone outside the Agency; rather, it was appropriate for the Agency to act as case manager. Mother has not shown that this is an unreasonable interpretation.
Nor has Mother shown that the lack of an outside case manager deprived her of reasonable services. Agency personnel, and particularly the program manager, provided Mother with extensive services; for example, the program manager spoke with Mother regularly and encouraged her to take her medication, go to therapy, and engage in services, she offered to drive Mother to all of her appointments, she helped Mother with housing applications, she had team meetings to discuss interventions that could help Mother, and she gave Mother her cell phone number and invited her to call at any time. This record amply supports a conclusion that the services were "reasonable under the circumstances." (Tracy J., supra, 202 Cal.App.4th at p. 1426.)
Mother makes a number of other challenges to the services. She argues the services were inadequate because she did not receive a referral to parenting education. The record refutes this contention. The program manager testified that Mother was referred to parenting classes, but she could not find documentation of the referral in the case file. We will not presume that her memory of providing the referral was incorrect. In any case, the program manager explained that Mother needed to stabilize her mental health before she could benefit from other services, including parenting classes, and Mother did not avail herself of the mental health resources the Agency offered.
Mother also argues the Agency did not make a good faith effort to connect her with female providers for anger management. We disagree. The program manager testified she made inquiries and was told there were no anger management programs in which Mother could have contact with only women; instead, she found a program in which a man would conduct the intake but Mother would then receive therapy from a female provider. Later, the Agency found and referred Mother to a female-only group. This reflects a " 'good faith effort' to provide reasonable services responding to the unique needs of [the] family." (In re Monica C. (1995) 31 Cal.App.4th 296, 306.)
Finally, Mother argues that, by requiring Mother to seek psychiatric care and individual therapy through local public mental health clinics, the Agency set up "an insurmountable barrier" for Mother. For instance, Mother was referred to a mental health clinic, and was unable to contact the therapist. In this case, according to testimony at the 12-month hearing, a social worker called the therapist and made an appointment for Mother. As another example, Mother points out that when she was first referred to anger management services, there was a problem with MediCal reimbursement; however, the Agency contacted the provider and said it would pay for services directly.
Mother has not shown that these minor delays deprived her of reasonable services or that the Agency did not make a good faith effort. Indeed, as we have discussed, the Agency made consistent efforts to find services for Mother and encourage her to participate in them. The question before us is not whether the services were perfect, but whether they were reasonable under the circumstances. (Tracy J., supra, 202 Cal.App.4th at p. 1426; In re Misako R. (1991) 2 Cal.App.4th 538, 547.) The services provided to Mother meet that standard.
DISPOSITION
The petition is denied on the merits. (§ 366.26, subd. (l)(1)(C); Cal. Rules of Court, rule 8.452(h).) The request for a stay of the November 20, 2019 hearing is denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.