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Elvira C. v. Superior Court of Los Angeles Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 12, 2012
No. B235958 (Cal. Ct. App. Jan. 12, 2012)

Opinion

B235958

01-12-2012

Elvira C., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.

No appearance for Respondent. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, William D. Thetford, Deputy County Counsel for Real Party in Interest.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. CK78447)

ORIGINAL PROCEEDINGS in mandate. Deborah L. Losnick, Commissioner. Petition denied.

Law Offices of Katherine Anderson, Victoria Doherty and Christina Curtis for Petitioner.

No appearance for Respondent.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, William D. Thetford, Deputy County Counsel for Real Party in Interest.

Elvira C. (mother) seeks writ review of an order of the juvenile court terminating her reunification services at an 18-month review hearing and setting a selection and implementation hearing for her daughters Gabrielle and Yvette. (Welf. & Inst. Code, §§ 366.22, 366.26.) Mother argues that the Department of Children and Family Services (DCFS) failed to provide reasonable services because it did not arrange for alcohol testing in San Diego where mother lives and did not offer her conjoined counseling with her daughters. She argues that the court's contrary finding was in error, as was its refusal to extend her family reunification services. Alternatively, mother argues that the court erred in not returning her daughters to her custody. We find no error and deny the writ petition.

All further statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL SUMMARY

When they were referred to DCFS in 2009, seven-year-old Gabrielle, five-year-old Yvette, and their 12-year-old brother Joseph were living with their maternal aunt, while mother lived in Tijuana with the alleged father, who is not a party to this appeal. On August 12, 2009, DCFS removed the children to a foster home and filed a dependency petition on their behalf. The court detained the children and ordered monitored visits.

In September 2009, the court sustained DCFS's petition, finding that the parents had engaged in violent altercations in the children's presence; mother had made an inappropriate plan for the children by leaving them with the aunt; mother had an ongoing drug and alcohol problem, and was diagnosed with major depressive disorder and post-traumatic stress disorder which rendered her incapable of taking regular care of the children. The court ordered mother to attend parenting education, alcohol counseling with random weekly testing, individual counseling to address domestic violence and conjoint counseling with the children when deemed appropriate by the children's therapists. She was to take all her prescribed medication.

The children were placed in a home in the San Fernando Valley, but mother chose to live in San Diego. The social worker gave mother referrals for services in the San Fernando Valley and San Diego and provided her with monthly bus passes. Mother visited the children three times in October 2009, and once a month in November 2009, February 2010 and March 2010. She called them regularly, albeit at inappropriate hours, and at times appeared to be under the influence. Mother did not enroll in individual counseling, did not test for alcohol at the approved Hollywood testing site, and was not taking her medication consistently. In March 2010, she submitted to urinalysis through an outpatient drug treatment program and tested negative for alcohol and drugs. At the six-month review hearing in April 2010, the court found DCFS and mother were in compliance with the case plan, and continued mother's reunification services.

In the next six months, mother lived in Tijuana and San Diego. Although she was on a weekly visitation schedule and was given transportation funds, mother visited the children once or twice a month and called them on a weekly basis. On the telephone, she occasionally sounded intoxicated. Mother claimed she could not test for alcohol at the Hollywood site, and the social worker offered to change the testing site to Santa Fe Springs, closer to San Diego, but mother responded that she could not test there either. Mother enrolled in a substance abuse program in San Diego but was attending irregularly. The social worker asked mother to provide the test results from that program, but mother did not do so. Mother completed a parenting program and had her psychotropic medication monitored, but did not enroll in individual counseling. At the 12-month hearing on August 11, 2010, the court once again found DCFS and mother were in compliance with the case plan, and continued mother's reunification services. The court directed DCFS to address by November 2010 how a transfer of the case to San Diego would affect the children's placement and wraparound services.

By November 2010, mother, who was homeless at the time, had admitted to using alcohol and marijuana, had submitted diluted urinalysis samples, and had been terminated from her outpatient drug treatment program for non-compliance. She had failed to submit to random testing and had not enrolled in individual counseling. DCFS concluded that mother was out of compliance and the case should remain in Los Angeles. It made the first in a series of recommendations over several months that mother's reunification services be terminated.

In December 2010, mother enrolled in an inpatient drug treatment program and completed the program in April 2011. Her test results were negative, except for a diluted sample in January 2011. Mother continued to refuse to submit to alcohol testing at DCFS's approved site because of its distance, and except for one test in July 2011, DCFS had no proof that she maintained her sobriety. Although she was given transportation passes and funds, mother did not want to visit the children more than twice a month and did not visit them at all in April and May 2011. She told the social worker that she chose to live in San Diego to be close to her adult children. Mother eventually completed her individual counseling, and partially complied with her mental health services. In July 2011, she rented a one-bedroom apartment in San Diego for $700 a month but it was unclear how she could afford the apartment on the $842 a month she received in SSI benefits.

Meanwhile, the children's situation changed. In February 2011, Joseph was placed in a group home after he began cutting himself. In May 2011, he began smoking marijuana and inhaling from spray cans. His grades deteriorated. He told his therapist that he was depressed about not being returned to his mother. In August 2011, the girls were matched with prospective adoptive parents who had a completed home study and were willing to adopt them. The girls did not think their mother could care for them and were excited to move forward with the adoption.

After several continuances and the transfer of the case to San Diego and back to Los Angeles, a contested 18-month hearing was held on August 30, 2011—over a year after the 12-month hearing. DCFS recommended that mother's reunification services be terminated, that Joseph be ordered into long-term foster care, and that a permanent plan hearing be set for the girls. Mother's attorney argued that the children should either be returned to mother's custody or mother's reunification services should be continued because it was unreasonable to require mother to travel to Los Angeles County for random alcohol testing and DCFS had made no efforts to arrange for such testing in San Diego. The children's attorney seconded DCFS's recommendation as to the girls but recommended that Joseph, who was turning 15, be returned to mother's custody since he had not done well in foster care.

The court followed the recommendation of the children's attorney, finding that Joseph was differently situated than his sisters. Over DCFS's objection, the court returned Joseph to mother's custody and ordered DCFS to address possible termination of jurisdiction as to him. As to the girls, the court concluded that reasonable services had been provided to mother, and while her compliance was significant, it was not complete. The court terminated mother's reunification services and set a section 366.26 hearing for the girls. It ordered DCFS to arrange for mother to drug test in San Diego County if possible.

This writ petition followed.

DISCUSSION


I

We review for substantial evidence the dependency court's findings that reunification services were adequate and return of the children to mother would create a substantial risk of detriment. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762-763.)

Mother contends substantial evidence does not support the finding that reasonable reunification services were provided to her, because it was "absurd to expect a parent with limited finances . . . to randomly drug test 150 miles from her home." She argues that DCFS should have set up drug testing for her in San Diego.

The standard for reviewing the quality of reunification services "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." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) Because DCFS provided mother with monthly transportation funds to comply with court-ordered services, the argument that mother had to pay for travel expenses out of her limited SSI benefits is not supported by the record. It was mother's choice to live in San Diego and Tijuana even though her children were placed in foster care in Los Angeles County. DCFS made reasonable efforts to accommodate mother by offering her an approved test site closer to San Diego. An attempt was even made to transfer the case to San Diego.

A parent may not refuse to participate in reunification services or "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." (Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093.) Mother repeatedly refused to alcohol test at the approved test site, but we see no evidence that she brought her concern about its distance to the court's attention at any time before the final reunification hearing. While the court at that hearing ordered DCFS to attempt to arrange for drug testing in San Diego County if possible, there is no evidence in the record that such an arrangement is in fact feasible. Nor are we convinced that DCFS's efforts to accommodate mother's living arrangement were unreasonable under the circumstances.

Mother argues further that she was not provided with conjoint counseling sessions with her daughters. There is no evidence that she raised this issue in the juvenile court, and we consider it forfeited. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)

Mother's argument that the court should have extended her reunification services fails for two additional reasons. Section 366.22, subdivision (a) provides that the 18-month hearing must occur within 18 months after the child's removal from the parent's custody; if the child is not returned to the parent at that hearing, the court must order a section 366.26 hearing. At the 18-month hearing, additional services for a total of 24 months may be offered to only two categories of parents: those "making significant and consistent progress in a court-ordered residential substance abuse treatment program" and those "recently discharged from incarceration or institutionalization and making significant and consistent progress in establishing a safe home for the child's return . . . ." (§ 366.22, subd. (b); Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1502-1503.) Mother does not contend that section 366.22, subdivision (b) applies to her. Moreover, because mother's 18-month review hearing was delayed, her services were in fact terminated more than 24 months after her children's removal. Mother cites no authority that the court may continue reunification services beyond 24 months, and the statutory scheme appears to be to the contrary. (See § 366.25, subd. (a)(3) [section 366.26 hearing must be ordered if child not returned to parent at 24-month review hearing].)

II

Alternatively, mother argues that the court failed to find that the return of her daughters to her custody "would create a substantial risk of detriment to [their] safety, protection, or physical or emotional well-being." (§ 366.22, subd. (a).) She argues further that no evidence supports such a finding since the court ordered that the oldest child, Joseph, be returned to her custody.

Section 366.22, subdivision (a) provides that in determining whether there would be substantial risk of detriment, "the court shall review and consider the social worker's report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided . . . ; and shall make appropriate findings pursuant to subdivision (a) of Section 366." Under section 366, subdivision (a), which governs the periodic status review for children in foster care, the court is to consider the necessity and appropriateness of placement; DCFS's compliance with the case plan to either return the minor home or finalize a permanent plan; sibling issues; and progress toward mitigating the causes which led to foster care.

The juvenile court complied with section 366.22, subdivision (a) because it considered the recommendations of DCFS and the children's attorney, mother's progress, and the children's status in foster care, as the statute requires. Both DCFS and the children's attorney recommended that the girls not be returned to mother, and the court agreed with that recommendation. DCFS's report for the hearing indicated that mother had a long history of substance abuse. Her compliance with the case plan had been slow and incomplete. DCFS was concerned that mother had failed to submit to random alcohol testing and had not been enrolled in an outpatient program since she completed her inpatient program in April 2011. DCFS noted that mother had failed to visit the girls regularly, so much so that her youngest daughter did not remember what mother looked like. The children's attorney acknowledged that mother had not fully complied with court-ordered services and taking care of all three children would be too much for her. The children's attorney therefore proposed, over DCFS's objection, that only the oldest child, Joseph, be returned to mother's custody.

The court found that Joseph was differently situated than his sisters because he was older, had talked to his mother on a daily basis, had been placed separately, and had not done well in foster care. Joseph's return to mother's custody was ordered provisionally under DCFS's supervision. As to the girls, the court made the following findings: "I am finding that conditions do continue to exist which necessitated this court's initial intervention. That the case plan and placements are appropriate and necessary. Reasonable services have been provided. Mother is in significant compliance, perhaps not full compliance." The court acknowledged that additional drug testing was necessary to remove any doubt about mother's drug use. DCFS's report for the hearing substantially supports the court's findings as to why the daughters should not be returned to mother's custody. We find no error.

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J. We concur:

WILLHITE, J.

SUZUKAWA, J.


Summaries of

Elvira C. v. Superior Court of Los Angeles Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 12, 2012
No. B235958 (Cal. Ct. App. Jan. 12, 2012)
Case details for

Elvira C. v. Superior Court of Los Angeles Cnty.

Case Details

Full title:Elvira C., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 12, 2012

Citations

No. B235958 (Cal. Ct. App. Jan. 12, 2012)