Opinion
F085921
06-02-2023
H.G., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Shaylah Padgett-Weibel for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Ashley N. McGuire, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review Super. Ct. Nos. 22CEJ300138-1, 22CEJ300138-2, 22CEJ300138-3 Amythest Freeman, Judge
Shaylah Padgett-Weibel for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Ashley N. McGuire, Deputy County Counsel, for Real Party in Interest.
OPINION
THE COURT [*]
Petitioner H.G. (father) seeks an extraordinary writ (Cal. Rules of Court, rules 8.450-8.452) from the juvenile court's orders terminating his reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his sons K.G. (born April 2017), R.G. (born August 2019), and L.G. (born December 2020) (collectively the children). He requests this court order the section 366.26 hearing vacated and reunification services continued. We deny the petition.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
Referral and Petition
On April 22, 2022, the Fresno County Department of Social Services (the department) received a referral on behalf of the children against A.R. (mother) and father, alleging the family home was filthy and the parents smoked methamphetamine in the home. The reporting party stated there was drug paraphernalia within the children's reach and father cared for the children while under the influence. The department responded to the home and spoke with mother. Father was not home. The home was dirty, disorganized, and there was feces and unsafe objects throughout. Mother denied drug use and domestic violence. The social worker advised mother to clean the home and requested mother and father drug test. The children were placed in a protective hold due to the home's unsafe condition. Thereafter, the social worker attempted to reach father by telephone and left a voicemail requesting a call back. Father did not call back but sent a text message stating he would not drug test because he suffered from "[s]hy [b]ladder [s]yndrome."
On April 25, 2022, the department held a team decision making meeting. Father admitted he had been using methamphetamine for five and a half years, but denied using while caring for the children. He said he left the home to use methamphetamine.
According to father, mother was aware of his drug use. He was willing to complete a drug program and wanted services. Father stated he had been unable to produce a urine sample for drug testing because he suffered from shy bladder syndrome. The department noted it had not received medical documentation to confirm his condition. Both parents denied domestic violence and reported they would" 'play fight'" and sometimes argue verbally. Father said he would hit things when they fought, but denied ever hitting mother.
On April 26, 2022, the department filed a petition on behalf of the children pursuant to section 300, subdivision (b)(1) (failure to protect), alleging two counts against mother and two counts against father. In regard to father, count b-3 alleged he exposed the children to domestic violence. K.G. had reported mother and father punched and slapped each other. He said father kicked mother in the leg and mother grabbed a knife and threw it at father. He witnessed father hit mother, causing her nose to bleed. Father would become upset and break things. Count b-4 alleged father had a substance abuse problem. Father had admitted he used methamphetamine recently.
Initially, counts b-3 and b-4 only listed K.G. and R.G. in the allegations, but the petition was later amended to add L.G.
Detention
In its detention report, the department recommended the children be detained from mother and father. The department was concerned father would expose the children to domestic violence and would be under the influence of methamphetamine while caring for them. It recommended father participate in a parenting class, a substance abuse assessment with recommended treatment, random drug testing, a mental health assessment with recommended treatment, and domestic violence assessment with recommended treatment.
On April 28, 2022, the juvenile court held a detention hearing and ordered the children detained. Both parents were offered reunification services. Father was offered parenting classes, a substance abuse assessment with recommended treatment, random drug testing, a mental health assessment with recommended treatment, and a domestic violence assessment with recommended treatment. He was given supervised visits.
Jurisdiction and Disposition
The department prepared a jurisdiction and disposition report recommending the allegations in the amended petition be found true and that father be ordered to participate in reunification services, consisting of the previously offered services. The department had mailed father an individualized service letter advising him of upcoming appointments and services. So far, father had been scheduled to begin parenting classes and was referred to Family Youth Alternative (FYA) for a substance abuse assessment. He had enrolled in random drug testing through Averhealth and completed domestic violence and mental health assessments. Father did not meet the medical criteria for ongoing mental health treatment. As for random drug testing, although he had enrolled in services, he had not submitted to any testing.
On May 18, 2022, father participated in a staffing to address random drug testing. Father had reached out to his attorney and requested an alternate drug testing method because he had a difficult time providing a sample while being watched. County counsel requested the department accommodate him. Father agreed to try hat testing. The substance abuse specialist informed him that if he had further issues, the department would need a court order to change drug testing. The following day, father called his social worker and informed her he could not do hat testing because a cone was used to collect his urine, and someone would still watch him test. He said he did not want anyone watching him.
On May 31, 2022, the juvenile court held a combined jurisdiction and disposition hearing. Father's attorney informed the court that father had been having a "great deal of difficulty producing a urine sample [and] a number of tests [had] been treated as presumptive positives." However, he had been able to provide a sample for his substance abuse treatment provider, but was told that test would not count even though he had a negative result. Father's attorney asked the court why that test would not count and requested father be given a hair follicle test to establish a baseline to show decreasing levels of drugs in his system in case he continued to have difficulties providing a urine sample. County counsel responded that the department had not received medical documentation regarding father's inability to submit to random drug testing. The court gave the department discretion to give father a hair follicle test.
Regarding father's negative drug test result, the court stated, "[Father,] when your case comes back before the [c]ourt-whether it's me or another judge that hears the matter-that judicial officer is going to take everything as it relates to your case. So the date that you had a negative test-I can't think of any reason that would or wouldn't count and I'm not sure where you got that information ._" The court went on, "And I'm telling you today that I haven't heard anything that would suggest that your prior drug tests wouldn't count. [¶] So don't be discouraged by what somebody may have told you, or what you feel was not a fair shake given somebody's comment [to you]. That's not how this [c]ourt is going to proceed ._"
The juvenile court found the allegations in the amended petition true, found the children's continued detention was necessary, found father had made minimal progress, and ordered father to participate in reunification services and supervised visits. The court set a six-month review hearing.
Six-Month Status Review Reports
In its six-month status review report, the department recommended father's reunification services be terminated and that a section 366.26 hearing be set. The report stated father's perception of his needs was that he needed more time with the children and to not be watched while drug testing. He reported he was not going to drug test if someone was watching him. Out of all of his services, father had only completed parenting classes.
On June 9, 2022, father participated in a staffing where he stated he was having a difficult time producing a urine sample for random drug testing. The department asked father to submit to a hair follicle test, which he did. The test was positive for THC.
On August 3, 2022, father informed the department he was in need of mental health services. Thereafter, he completed another mental health assessment and was diagnosed with depression and anxiety. The provider recommended he participate in weekly therapy.
On August 12, 2022, the department held a child and family team meeting. The parents' action plan was to remain sober of all controlled substances, including alcohol and marijuana. The department again addressed concerns about father's noncompliance with random drug testing. Father was informed he could not progress in visitation until he was participating in all court ordered services and making progress. The department advised father to address his concerns about drug testing with his attorney.
On August 23, 2022, father failed to show up to a staffing intended to address random drug testing and domestic violence treatment.
On September 6, 2022, father participated in a staffing where he stated he would not drug test with Averhealth because he did not want anyone to watch him test. He said he had a difficult time urinating when someone watched him, but that he had been drug testing through FYA because no one watched him test there. FYA confirmed father was enrolled in weekly substance abuse classes and was testing through them. They reported he was in compliance with his substance abuse program. The department advised father to speak to his attorney about random drug testing through Averhealth. Father stated he would wait to address his issues in court. Additionally, father had been scheduled to attend an intake for domestic violence services.
On October 3, 2022, mother and father engaged in a domestic violence incident, in which father vandalized her property and the police were called. Mother requested an emergency protective order, but it was denied. The following day, they engaged in another domestic violence incident and mother was issued an emergency protective order.
On October 19, 2022, a social worker contacted father about his participation in services. Father stated he was not going to participate in domestic violence treatment anymore, which consisted of child abuse classes. He said he was not going to speak on the subject and would discuss it in court with the judge. Additionally, he stated he would not be participating in mental health services either because he felt he did not need therapy.
On November 14, 2022, father participated in a staffing to address substance abuse treatment, random drug testing, and domestic violence treatment. Father reported he had been participating in substance abuse services, but had not attended sessions in a while. The social worker stated she would schedule another staffing to engage him in substance abuse services again. The substance abuse specialist encouraged father to participate in random drug testing and said she would submit a new referral for him. As for domestic violence treatment, father had been participating in child abuse services but had missed two sessions.
On November 28, 2022, father participated in another staffing to address substance abuse treatment and random drug testing. FYA reported they had unsuccessfully discharged father from treatment because he had stopped attending sessions and had been testing positive for THC and "benzos." FYA scheduled another substance abuse assessment for him. Father stated he was not going to participate in random drug testing. He said, "I can't do all this that they [are] asking for. It is hard right now, I am homeless[,] I am staying with a friend right now. I work and I can't do all these services and test[s]. I can't test, they did a hair follicle [test] the last time I tested. I am letting my hair grow out so I can do the hair follicle. I was unable to attend the last court hearing to ask the judge for a court order for hair follicle." He went on to state, "I am not going to participate in [random drug testing]. Since April 22, 2022, I have not done meth. I only smoke weed. I had a problem with meth over a year ago but not anymore. I am doing everything for my kids already. I am working and not smoking dope. I barely picked up weed.[] Services are not helping me just setting me up for failure." The team informed him he needed to comply with court ordered services and another referral for random drug testing was submitted on his behalf.
On December 23, 2022, father again participated in a staffing to address substance abuse treatment, random drug testing, domestic violence treatment, and mental health treatment. Earlier that month, father had entered inpatient substance abuse treatment but left after one day because it "was not for him." He reported he last used marijuana earlier that month. Father agreed to begin participating in random drug testing and the substance abuse specialist submitted a new referral for him with hat testing in place. As for domestic violence treatment, father had missed several sessions and his services had been placed on hold. Father reported he had no excuse and did not attend because he had a lot going on. The team decided father would benefit more from in-person classes as opposed to the virtual program he was in, and he was scheduled for intake with a new provider. Additionally, father had not been participating in mental health services and the social worker completed a new referral so that he could begin treatment again.
On January 17, 2023, father was arrested because he had a warrant out for vandalizing mother's home. He was scheduled to be released the following month and wanted to begin services.
Overall, from June 2022 to January 2023, father did not show up to 13 random drug tests, refused two tests, was unable to provide a sample once, and submitted to one hair follicle test, which was positive for THC. In addition, he tested positive for THC and "benzos" through his substance abuse treatment provider. The department recommended father's reunification services be terminated.
Six-Month Status Review Hearing
On February 28, 2023, the juvenile court held a contested six-month status review hearing. Father's social worker testified father had been refusing to participate in random drug testing because he did not want to urinate in front of someone. As a result, she said they implemented hat testing for him, which would allow him to produce a sample while sitting down but someone would still have to observe him. They also held six staffings where they addressed his random drug testing. She said father had been submitting to drug testing through his substance abuse treatment provider, which did not require him to provide a sample in front of anybody. However, in October 2022, he was discharged from the program because he had stopped attending and had been testing positive for THC and "benzos." The department and the substance abuse treatment provider then determined he needed inpatient care. Father enrolled in an inpatient program, but left after one day because "it was not for him." The social worker noted that before implementing hat testing they had done a hair follicle test on father to get a baseline for him.
Father testified that when he agreed to cooperate with reunification services, the social worker did not develop a case plan with him, ask him to sign a case plan, provide a copy of the case plan, or review or discuss the case plan with him. He said he told the social worker he was unable to urinate while being watched and asked for accommodations. The social worker told him it was court ordered and there was nothing she could do. The social worker told him drug test results from his substance abuse treatment provider would not count. He felt discouraged, devastated, and hopeless. He further testified he sought counseling with mother to ensure future episodes of domestic violence did not occur. However, he had not been attending counseling with her because he had been incarcerated, but planned to resume. So far, they had only attended one session.
On cross-examination, father confirmed he never received a copy of the case plan, but that the social worker did inform him he was court ordered to complete parenting classes, a mental health assessment, substance abuse treatment, a domestic violence assessment, and random drug testing. He understood he needed to complete services due to his children being removed because of his drug problems. He also recalled attending the prior hearings and the court ordering him to complete the same services. He recalled the court advised him he had six months to reunify with the children. He understood that if he did not complete services within six months, his reunification services would be terminated, and the children freed for adoption.
Father's attorney argued father did not receive reasonable services because the department did not tailor his plan to his specific needs. As a result, father asked for reunification services to continue with reasonable accommodations for random drug testing. The juvenile court deferred ruling for one week. On March 7, 2023, the juvenile court issued a ruling. The court noted father had only completed parenting classes to date. The court summarized as follows:
"It was also noted in the report that [father] just blatantly stated that he was not going to participate in certain programs. It was very noteworthy to the [c]ourt that the [d]epartment accommodated his concerns with regard to drug testing as much as possible, and he felt comfortable enough to address those concerns with the [d]epartment, but then there were other issues that he had.
"He did not accomplish other goals that were set by the [d]epartment or complete other programs that were provided by the [d]epartment, and he never addressed those issues with the [d]epartment and just missed classes and sometimes just outright refused to attend.
"[Father] stated inpatient treatment was not for him and he requested new substance abuse assessment. That was after leaving WestCare after one day.
"On October 19, 2022, [father] reported that he was not going to do mental health services any longer, as he felt he did not need therapy."
The juvenile court found the department provided father with reasonable services and that father's progress toward alleviating or mitigating the causes necessitating placement of the children in foster care had been minimal. Both mother and father's reunification services were terminated and a section 366.26 hearing was set.
On March 14, 2023, father filed a notice of intent to file a writ petition.
DISCUSSION
Father contends the department failed to provide him with reasonable services. Specifically, he argues the department failed to provide reasonable drug testing services because he was not accommodated for his inability to comply with Averhealth's drug testing procedures. Additionally, he contends he was not provided with reasonable domestic violence services because the department made his separation from mother a condition of moving forward with reunification. We conclude the juvenile court's reasonable services finding is supported by substantial evidence.
The juvenile court may terminate reunification services at the six-month review hearing and set a section 366.26 hearing where the children constitute a sibling group and the court finds by clear and convincing evidence the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan. The court may not, however, terminate reunification services if reasonable reunification services were not provided. In such a case, the court must continue services to the 12-month review hearing. (§ 366.21, subd. (e)(3).) To be a sibling group, the children must have been removed at the same time and at least one of the children must have been under the age of three at the time of initial removal. (§ 361.5, subd. (a)(1)(C).)
"' "Reunification services implement 'the law's strong preference for maintaining the family relationships if at all possible.' .. ." ... The department must make a"' "good faith effort" '" to provide reasonable services responsive to the unique needs of each family.... "[T]he plan must be specifically tailored to fit the circumstances of each family ., and must be designed to eliminate those conditions which led to the juvenile court's jurisdictional finding.." . The effort must be made to provide reasonable reunification services in spite of difficulties in doing so or the prospects of success.. The adequacy of the reunification plan and of the department's efforts to provide suitable services is judged according to the circumstances of the particular case.. "[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult .." '" (In re K.C. (2012) 212 Cal.App.4th 323, 329-330.) "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." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
When a party challenges the finding that reasonable services were offered or provided, we determine whether there is substantial evidence to support the juvenile court's finding by reviewing the evidence most favorable to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Julie M. (1999) 69 Cal.App.4th 41, 46.) We conduct our substantial evidence review bearing in mind the required clear and convincing standard of proof. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.)
In the present case, father's loss of custody stemmed from his substance abuse and domestic violence problems. The department quickly helped father secure assessments and recommended treatment for both issues. In addition, the department set father up with random drug testing to help him demonstrate his sobriety. All three services were part of father's case plan. Father takes issue with the drug testing services and the domestic violence treatment he was provided.
In regard to drug testing services, father contends he was not provided with reasonable services because the department did not accommodate his shy bladder condition. The record demonstrates otherwise. After father enrolled in random drug testing through Averhealth, the department addressed his concerns with their testing procedures at six staffings and one child and family team meeting. At the first staffing, which was promptly held within three weeks of the detention hearing, the department changed the testing procedure to hat testing, which would offer father "a little bit more privacy" because it would allow him to sit while providing a sample. Father agreed to try it, but the following day he called the social worker and informed her he could not participate in hat testing either because someone would still watch him test. While this accommodation may not have eliminated father's concerns, it was reasonable under the circumstances. (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426.) Subsequently, at the jurisdiction and disposition hearing, the juvenile court gave the department discretion to implement hair follicle testing in the event father continued to have difficulty producing a urine sample. After the hearing, the department had father submit to a hair follicle test, which father complied with. Again, this was another reasonable accommodation. However, father was still responsible for participating in random drug testing per the court order, but after participating in the hair follicle test, the record shows father did not make any attempts to submit to random drug testing. He refused to test twice and did not show up to 13 tests. At two staffings, father blatantly stated he was not going to participate in random drug testing. He said," 'I work and I can't do all these services and test[s].'" He claimed, "Services [were] not helping [him] just setting [him] up for failure." Notwithstanding father's assertions that he was not going to participate in random drug testing, the department continued to hold staffings to address the issue, encouraged him to comply with the court order, and submitted new referrals for testing. Moreover, as noted, the purpose of random drug testing was to help father demonstrate his sobriety; however, father was not sober. In June 2022, his hair follicle test was positive for THC. In June 2022, he also tested positive for THC through his substance abuse treatment provider, and in August he tested positive for "benzos." At staffings in November and December 2022, father admitted he was still smoking marijuana. Father's case plan required him to test negative on all drug tests. Therefore, even if father had been provided with a testing method that perfectly accommodated him, he still would not have been able to demonstrate he was maintaining sobriety. (In re Misako R., supra, 2 Cal.App.4th at p. 547 ["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"].)
Although the department had discretion to implement hair follicle testing, it is unclear why the department did not have father submit to more than one hair follicle test. However, it appears it might have been because father's hair was not long enough. At a staffing in November 2022, father stated," 'I can't test, they did a hair follicle the last time I tested. I am letting my hair grow out so I can do the hair follicle.' "
As for domestic violence treatment, father participated in an assessment that recommend he participate in a child abuse program. Father argues, however, that treatment should have included services to help him maintain his relationship with mother. He claims instead "the [d]epartment made separation [from mother] a condition of moving forward with reunification," and "[t]he only plan offered to address domestic violence was to keep the parents separated." First, the children were removed from father's custody because he engaged in domestic violence with mother in front of them. Thus, addressing the impact of domestic violence on the children was of paramount importance, and the recommended treatment properly focused on such. Second, nowhere in father's case plan or the department's reports does it state that father's separation from mother was a condition of reunification, nor is it alluded to. The social worker testified she had recommended mother's reunification services be terminated, and that her recommendation would have been different if the parents were not an intact couple. However, that was because mother had already completed 26 domestic violence classes, but had not shown behavioral changes. She explained mother continued to be in relationship with father despite recent domestic violence between them that resulted in a temporary protective order against father. This indicated mother was not applying what she was learning in her domestic violence treatment. At no point, however, did the department indicate that continuation of father's reunification services hinged on the status of his relationship with mother. The department properly identified father's need for domestic violence services and helped him secure the recommended treatment. We note, father never expressed dissatisfaction with the recommended treatment, or indicate he needed additional services. In fact, he admitted he had "no excuses" for not participating in his domestic violence treatment. Even after he refused to participate in treatment, the department continued to hold staffings, tailored treatment, and made referrals in an attempt to engage him.
Accordingly, we find the juvenile court's reasonable services finding is supported by substantial evidence.
DISPOSITION
The petition for extraordinary writ is denied.
[*]Before Levy, A.P.J., Meehan, J. and DeSantos, J.