Opinion
A154376
08-29-2018
H.S., Petitioner, v. SUPERIOR COURT OF HUMBOLDT COUNTY, Respondent; HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES et al., Real Parties 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. Nos. JV160290, JV160289)
H.S. (Mother) seeks writ relief from an order terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing. She contends the court should have found extenuating circumstances to extend services and challenges the court's finding that she was provided reasonable services. We deny the petition on the merits.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
In October 2016, the Humboldt County Department of Health and Human Services (Department) received a referral regarding two of Mother's children, N.S. (then six years old) and her half-sister A.G. (then two years old). The referral recited general neglect as to both children based on Mother's homelessness, her use of methamphetamine, and the "concern that the children were in an unsafe homeless encampment."
Mother has five children, and has had 12 past referrals with "allegations specific to her as a parent."
The Department filed a non-detention petition alleging Mother "may have substance abuse issues that contribute to [her] being unable to provide adequate shelter, medical treatment, or a consistant [sic], stable and safe home environment" for the children, that A.G. had been left without any provision for support, and that A.G.'s other half sibling had been abused or neglected. (§ 300, subds. (b), (g) & (j).)
In preparation for the jurisdictional hearing, the social worker contacted the public health nurse who had been to the campsite where Mother and the children had been seen, known as the Devil's Playground. The nurse saw the children and observed feces and urine on the ground, hypodermic needles, glass pipes, and a .22-caliber rifle. A woman at the campsite told the nurse that "everyone there, including [Mother], used methamphetamine."
When N.S. was in school she stayed with Mother's boyfriend's mother, Cindy M., during the week and then returned to Mother during the weekends. Mother and A.G. would also stay with Cindy "when it is really stormy," or they would stay with Mother's father at a motel. When the social worker visited Cindy, she learned that although Mother and the minors had periodically stayed with her, N.S. had since gone back to living with Mother full time due to Cindy's limited financial situation. Cindy also "admitted" Mother was living at a camp and that A.G. was with her. The social worker noted there was "an odor of marijuana emanating" from Cindy's apartment and she "had small pinned eyes." When asked about Cindy's drug use, Mother confirmed she " 'uses a hella lot of weed,' " and stated that she had used methamphetamine in the past, "but could not attest" to her current use. Cindy confirmed her current marijuana and past methamphetamine use, but stated she smoked marijuana only when N.S. was at school or after she had gone to bed, and that she had not used methamphetamine for the last year and a half.
Though Mother retained custody of both children, N.S. stayed with various "caregivers as arranged by [] [M]other so that [N.S. could] attend school and have shelter during the winter." A.G. remained with Mother.
At a family team meeting, the social worker discussed an action plan with Mother including that Mother would get drug tested, inquire about a shelter program, and not stay at the camp with the children. Mother failed to get drug tested and admitted to smoking methamphetamine through mid-January 2017. However, she claimed she had not used it around the children and she had sent them out to play while using. When the social worker expressed concern about the children playing unsupervised near the beach where the campsite was located, Mother claimed the children were always supervised.
Mother stated she was willing to seek substance abuse treatment, but did not want a hair follicle test performed on the children to test their level of exposure. She received a referral to Healthy Moms, but stated she did not believe child welfare services should be involved with her children and that she only needed help to obtain housing.
At the jurisdictional hearing, the court sustained the allegations of the amended section 300 petition, and set the matter for a dispositional hearing.
In its disposition report, the Department stated that while Mother denied A.G. slept at the campsite, a visit to Mother's tent revealed a smaller bed that A.G. identified as where she slept. Mother also left N.S. with various caregivers who themselves used illicit drugs and had histories of child abuse and neglect. The continual caregiver changes resulted in instability and N.S. arriving either late to school or missing school entirely. N.S. was not current on her immunizations, and she was "regularly dirty and in dirty clothes while with . . . [M]other." The social worker opined Mother's drug use contributed to her "being unable to provide adequate shelter, medical treatment, or a consistent, stable and safe home environment" for the children. The social worker described Mother as "resistant" to working with child welfare services, stating she had missed several drug tests. Mother informed the social worker she had attention deficit disorder but that she had not been taking her prescribed medication. Mother stated she went to the campsite daily to visit her dog and she supported herself with benefits she received for her children or money she received from her father.
The Department also detailed its efforts in providing Mother with reasonable services, including referrals to different housing programs, WIC, food banks, parenting programs, and for different assessments. Mother turned down a housing referral and an offer for housing with Humboldt Domestic Violence Services. The Department had also had a family team meeting, consulted with school staff, and had done case plan development with Mother.
The court found Mother had made minimal progress towards alleviating or mitigating the causes necessitating involvement, and that the Department had made reasonable efforts to eliminate the need for removal and had offered reasonable services. Because of Mother's substance abuse and mental health issues, her lack of resources and homelessness, the court ordered (1) N.S. and A.G. placed with Mother, (2) the Department to provide family maintenance services to Mother, (3) Mother to participate in evaluations specified in the case plan; and (4) Mother to comply with her case plan. Mother's case plan outlined service objectives and Mother's responsibilities, including that she acquire resources to meet her children's basic needs, address her mental health needs, refrain from using illegal or non-prescribed drugs, participate in a mental health assessment and follow recommendations made by the assessor, complete a parenting class, demonstrate an effort to secure stable housing, engage in an alcohol and other drugs (AOD) program, and submit to drug testing upon request.
A February 2017 conversation with Cindy revealed N.S. had returned to staying with her "ninety-five percent of the time." It is unclear exactly when, but subsequently Mother and both minors began living with Mother's friend, J.C. and his family, who were "also involved in a court family maintenance case."
An April 2017 addendum report stated Mother had told a social worker that she had contacted Humboldt County Mental Health and gotten a phone assessment. Mother also claimed a mental health "representative stated [] she did not require mental health services." A follow-up by the social worker revealed there was no record of Mother having called. When confronted with this information, Mother suggested she may have called the wrong number. The social worker again provided the contact information. Mother did eventually call and made a request for services on April 11.
Mother also reported she had been using methamphetamine from October 2015 through January 2017. She became "very angry" when asked to do a hair follicle test. Mother stated it was against her "right as a woman and a Native American, and it was against her belief to cut her hair." Mother also said she did not want to participate in the Healthy Moms Program, so the social worker provided her the information for an AOD program at Humboldt County AOD Services. Mother claimed she had been seeing a minister named "Mark, who attend[ed] a Catholic church in Eureka," but did not have his contact information. She said that she and Cindy "would just show up [at] his house to talk," and that she had talked to him two or three times about her case.
Mother had not participated in any parenting classes, stating that "in the past she participated in parenting classes and feels that she holds the knowledge necessary to discipline" her children, though she continued to struggle with disciplining A.G.
The Department's assessment was that Mother had "begun to make slow progress toward her case plan goals."
The court ordered Mother to comply with hair follicle drug testing and authorized the Department to test the children as well. In May 2017, Mother's lab work showed positive results for amphetamines, methamphetamine and methylenedioxy-methamphetamine (MDMA). When confronted with the results, Mother claimed she had "slipped up one time," and that she had "used after the last court date because she was really upset." Mother also said that when she smokes the drug, she only does so "in the basement part of the home," while the children are upstairs with J.C. J.C., however, expressed "concern" for Mother, stating that "she 'checks out' when she is 'overwhelmed,' " and that Mother would go into a bedroom or sit on the couch "for up to 30 minutes and just 'space out.' " He would try to "nudge[]" her when this happens and sometimes she "will react and sometimes not."
The children's hair follicle test revealed they "were exposed to methamphetamine on an ongoing basis." A.G.'s "levels measured at 7131 pg/mg, the minimum level for a positive test being 500 pg/mg," and N.S.'s "levels measured at 3303 pg/mg." N.S.'s "levels indicated frequent exposure; however, [A.G.'s] levels indicated constant exposure . . . like direct exposure, such as someone smoking [methamphetamine] and blowing it in her face or she was somehow getting the drug into her mouth." When confronted with these results, Mother "immediately stated that could not be true and that she did not know where they would have been exposed."
A subsequent section 387 petition was filed and both children detained. The petition alleged Mother's substance abuse placed both children at risk of physical and emotional harm. N.S. was placed with a non-related extended family member, and A.G. was placed in a foster home.
The detention report detailed a late April visit to J.C.'s home by a public health nurse. She stated that when she arrived, A.G. and another child answered the door. In the home, she found a man named " 'Worm' " convalescing on the couch suffering from some sort of liver condition, and at one point an unidentified man walked into the house, went into the bathroom, and did not come out for the entirety of the visit. The visit revealed the home to be messier than it had been on prior visits with toys, blankets and food all over the room. The children appeared "dirty and in their underwear and their feet were black on the bottom." In early May, two social workers again went to J.C.'s home. They found the door unlocked, and once again A.G. and another child answered the door. Inside they found a woman who identified herself as a " 'friend.' " The house appeared in "disarray." A.G. was clothed but the other child was in his underwear with the underwear on backwards.
The court found there was a need for continued detention of the minors and that there was a substantial danger to their physical health should they remain in Mother's care. The court ordered the Department to provide Mother with a parenting education program, random drug screenings and monitoring, and a substance abuse assessment. The court then set the matter for a jurisdictional hearing.
At the jurisdictional hearing, the court sustained the section 387 petition, found that continuance in Mother's home was contrary to the minors' welfare, and that reasonable efforts had been made to prevent the minors' removal. A dispositional hearing was set for July 2017.
In the dispositional report, the social worker stated Mother had tested positive for methamphetamine in June, she was "disconnected" during her Healthy Moms group, and she "talked about how much she hated it there and how much she hated her social worker." The contact person at Healthy Moms further stated that Mother, who was now pregnant, had missed a scheduled assessment, and "she stated her belief that [Mother] could not succeed in outpatient treatment." The social worker spoke with Mother and asked her what she believed she needed to do to get her children back. Mother responded, "she did not believe she needed to do anything," and she felt like the "Early Recovery" program was a "trigger for her use." However, when offered other programs, Mother declined to attend. She also declined to discuss inpatient treatment. Mother had been given bi-weekly visitation, but had missed two visits and was late to a third. The Department once again outlined the reasonable efforts made on Mother's behalf, including numerous referrals.
The court found Mother had made minimal progress toward alleviating the causes necessitating placement and that return of the children would create a substantial risk of detriment to their safety. It ordered Mother to participate in her case plan, and advised her of the possibility of permanency planning and a termination of her parental rights. The court then set the matter for a six-month status review hearing. Mother's case plan reiterated her need to show she could appropriately care and adequately provide for the minors. Her responsibilities included participating in a psychiatric assessment, completing parenting classes, securing stable housing, submitting to drug testing upon request, and participating in inpatient drug treatment.
Mother subsequently moved out of J.C.'s home and was going back and forth between Cindy's home and the campsite. She missed a scheduled substance abuse assessment in September, and in October, she refused inpatient and outpatient treatment. In January 2018, Mother entered the Waterfront Recovery Services, an inpatient substance abuse treatment program, where she initially was isolated for five days of detox. For the next 20 days to a month, however, Mother did not engage in the program.
A few weeks before entering Waterfront, Mother had received a psychiatric evaluation which recommended "no less than 60-days" and ideally up to a year of treatment. During the evaluation, Mother had denied drug use, though she acknowledged a chronic problem with substances and that she was scheduled to enter Waterfront. Mother was referred for a psychological evaluation and was diagnosed with major depression, posttraumatic stress disorder, and substance abuse disorder.
In its status review report, the Department detailed a February meeting with Mother's psychiatrist, Dr. Ruby Bayan, and her counselor, Susan Dager, at Waterfront. There, the social worker learned Bayan had diagnosed Mother with depression and severe posttraumatic stress disorder and prescribed her medication. Bayan recommended an additional 30 days of residential treatment. Mother agreed to stay because she otherwise lacked housing, but did not agree that the additional treatment was necessary. Mother continued to do bi-weekly visitation with the minors. However, the Department was "concerned about the quality of the visitation between [Mother] and her children." Mother was "easily frustrated with the children's . . . behavior" and "frequently reluctant to interact" with them. Additionally, Mother called the children names and with the exception of one visit, "did not show any physical or verbal affection toward any of her three children." The social worker stated Mother had not made substantial progress in resolving issues that led to removal and there was "not a substantial probability" that she would be able to fully address those issues by the 12-month date. The Department thus recommended termination of services and that a section 366.26 hearing be set.
Mother's youngest child had been taken away at birth and was currently residing with her father. Mother was receiving visitation with that child as well as N.S. and A.G. --------
At the belated contested six-month review hearing, the court heard from one witness for Mother, Susan Dager, her counselor at Waterfront. Dager testified that after the initial 30-day period, Mother began to engage and had "been blossoming through the month of April." As of the date of the hearing, Mother had not obtained housing, but she was on the waiting list for "two housing possibilities" both of which allowed children.
While observing that Mother had recently undertaken positive steps, the court nevertheless found she had "longstanding issues that couldn't even be addressed until [she] stabilized, which has been in the very recent past." The court then found by a preponderance of the evidence that return of the minors would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being and further determined by clear and convincing evidence that reasonable services had been offered and that Mother had failed to participate regularly and make substantive progress in her case plan. The court concluded there was no "substantial probability" of return of the children by the fast-approaching June 14, 12-month review date. After taking into consideration the submitted reports and testimony, the court terminated services and set the matter for a 366.26 hearing.
DISCUSSION
No Extenuating Circumstances
Citing to In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1796 (Elizabeth R.) and In re Dino E. (1992) 6 Cal.App.4th 1768, 1778-1779 (Dino E.), Mother contends the juvenile court should have found extenuating circumstances and extended services.
In both cases, the juvenile courts were working under the "erroneous belief" that they could not extend the reunification period beyond the 18-month period and thus were "compelled to either terminate reunification services or return the minor to the [parent]." (Elizabeth R., supra, 35 Cal.App.4th at pp. 1777-1778; Dino E., supra, 6 Cal.App.4th at p. 1777.)
The mother in Elizabeth R. had substantially complied with her reunification plan, but reunification was compromised by the "unusual circumstance[]" of her hospitalization for mental illness. (Elizabeth R., supra, 35 Cal.App.4th at pp. 1777, 1787.) The juvenile court, though "impressed with [the mother's] progress and optimistic about her ability to sustain her mental health," was "frustrated by the department's insistence" that the court only had two options, to terminate services and schedule a selection and implementation hearing or to return the children. (Id. at pp. 1782-1783.) Accordingly, the court terminated services. (Id. at p. 1783.) The Court of Appeal reversed, explaining that the juvenile court had been "unaware it retained some discretion to continue services beyond the 18-month period," and that section 352 "provides an emergency escape valve in those rare instances in which the juvenile court determines the best interests of the child would be served by a continuance of the 18-month review hearing." (Id. at pp. 1794, 1798-1799.)
In Dino E., the juvenile court found inadequate services (indeed, no services) had been provided to the father, but "believed it was compelled nonetheless to terminate reunification services." (Dino E., supra, 6 Cal.App.4th at p. 1777.) The Court of Appeal reversed, explaining that "where the court was faced with the prospect that the 18 months had elapsed and no reunification plan had been developed for the parent, the court was entitled to weigh the various interests involved and exercise its discretion." (Id. at p. 1778.) The court thus granted the father's petition and remanded the case for the juvenile court to entertain a section 352 motion. (Id. at pp. 1779-1780.)
The circumstances of the instant case are markedly different. To begin with, it involves an assessment made at a six-month review hearing, not an 18-month review hearing. More significantly, Mother did not substantially comply with her case plan, nor were the circumstances of her case "unusual" or "extenuating." As we have recounted, Mother came to the attention of the Department in October 2016, was offered numerous services which she refused, and waited until January 2018 to begin any treatment. In short, Mother continually refused to avail herself of an array of services, and the fact that she finally did so at the eleventh hour does not constitute "extenuating circumstances."
It is well-established that " '[r]eunification services are voluntary, and cannot be forced on an unwilling or indifferent parent. [Citation.]' [Citation.] . . . 'The requirement that reunification services be made available to help a parent overcome those problems which led to the dependency of his or her minor children is not a requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions. A parent whose children have been adjudged dependents of the juvenile court is on notice of the conduct requiring such state intervention. If such a parent in no way seeks to correct his or her own behavior or waits until the impetus of an impending court hearing to attempt to do so, the legislative purpose of providing safe and stable environments for children is not served by forcing the juvenile court to go "on hold" while the parent make another stab at compliance.' " (In re Christina L. (1992) 3 Cal.App.4th 404, 414-415 (Christina L.); In re Nolan W. (2009) 45 Cal.4th 1217, 1233.)
Reasonable Services Were Provided
Mother also contends the trial court abused its discretion in finding the Department offered reasonable services. Specifically, she asserts the Department's recommendation to terminate services was made prior to receipt and review of her mental health evaluation and that the recommendation was made prior to a meeting to discuss Mother's progress.
In reviewing the challenged finding, we examine the record in the light most favorable to the juvenile court's order, to determine whether there is substantial evidence from which a reasonable trier of fact could have made the finding under the clear and convincing evidence standard. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694.) We construe all reasonable inferences in favor of a finding regarding the adequacy of an agency's reunification plan and the reasonableness of its efforts. (In re Julie M. (1999) 69 Cal.App.4th 41, 46.) We likewise resolve conflicts in favor of such a finding and do not reweigh the evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
There is abundant evidence supporting the court's finding that Mother was provided reasonable services. As we have recounted, the Department offered Mother extensive services, nearly all of which she refused to accept. (See Christina L., supra, 3 Cal.App.4th at pp. 414-415.)
As for Mother's specific complaint that the Department recommended termination before considering the mental health evaluation, the record shows the following: The Department submitted its status report on February 28, 2018. Mother's psychological evaluation had occurred about six weeks earlier, on January 11, and the Department received a copy prior to submitting its status report. Waterfront also received a copy before the Department submitted its status report, and Mother had received a substantially similar diagnosis from her psychiatrist at Waterfront, which the Department was aware of when it authored its report. In addition, while it appears that a social worker missed a meeting at Waterfront on February 20, Waterfront's own notes and the Department's report document a meeting three days later, on February 23, between Mother, Dr. Bayan, and her case worker. At that meeting, Bayan reconfirmed Mother's diagnosis of depression and posttraumatic stress disorder, Mother talked to the social worker about her improvements in "mothering," and a discussion was held about how Mother was trying "to comply with all requirements of CWS." This was five days before the Department submitted its report to the court.
In sum, the record contains ample evidence that the Department was fully cognizant of Mother's mental health issues when it recommended that services be terminated.
DISPOSITION
The petition for extraordinary writ relief is denied on the merits and the request for stay is denied. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.