Opinion
A155489
06-18-2019
In re A.P., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. J.S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. JV170151)
J.S. (mother) appeals from an order after the six-month review hearing which terminated reunification services and dependency jurisdiction and placed her daughter A.P. (daughter) with B.P., the child's father (father). Mother argues that because A.P. was older than three years of age when she was removed from mother's home, an additional six months of services was required under Welfare and Institutions Code section 361.5, subdivision (a)(1)(A). We conclude that because the child had been placed with a parent, the case was governed by section 361.2, subdivision (b)(3), which gave the court the discretion to order services (if at all) for less than 12 months. We find no abuse of this discretion and therefore affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. BACKGROUND
Mother gave birth to daughter in 2012, while she was married to father. The couple began the process of divorcing and initially shared joint custody of daughter.
In March 2017, mother took daughter to a party and drove her home while intoxicated despite warnings by friends. She left daughter alone at home and went out again, and was later arrested for driving under the influence. Mother was on summary probation at the time for a "wet reckless" (Veh. Code, § 23103.5) and had a blood alcohol content of .33 percent. Daughter walked to father's house in the early morning and told him she had been left alone. Father reported that mother had physically attacked him several times, had grabbed daughter when she was in his arms, and had dropped daughter at least six times while intoxicated. Daughter told a social worker that mother pushed her and father, had once passed out and could not be woken up, "always" drank liquor before getting into the car, and stumbled and fell many times.
In August 2017, respondent the Humboldt County Department of Health and Human Services (the Department) filed a dependency petition under Welfare and Institutions Code section 300, subdivisions (a) and (b), due to mother's conduct relating to alcohol abuse. At the jurisdictional hearing held in September 2017, the mother claimed she had not consumed alcohol since May 22, 2017, testified that she did not believe daughter had made the statements attributed to her, testified that she thought father was trying to alienate daughter from her, and denied pushing daughter and father. The court sustained the dependency petition. At the dispositional hearing held in November 2017, the court removed daughter from her mother's care, placed her in the home of father, and ordered reunification services for mother. We affirmed the judgment in an unpublished opinion. (In re A.P. (Nov. 30, 2018, A153062) [nonpub. opn.].)
We take judicial notice of the record and our opinion in that case on our own motion. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(1); Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 517, fn. 2.)
A six-month review hearing was held over several dates beginning in August 2018. The Department recommended in its report that the dependency case be terminated with sole legal and physical custody granted to father. The report noted that daughter was very comfortable living in father's home and there were no concerns about the care he was providing. The case plan for mother included her staying sober, showing an ability to live free of alcohol dependency and learning to express anger appropriately. Although mother had availed herself of treatment, she had not met these goals.
Visitation had been initially supervised by a community support person, but this was deemed insufficient as evidenced by a visit in which mother used her time to confront father and created a scene in front of daughter. Visits were then supervised by the Department, and though their quality improved, mother struggled with boundaries, asking daughter questions about father. Visitation then was unsupervised for a time, but daughter reported that mother drank alcohol secretly during some visits. Mother denied this and agreed to drug and alcohol test in a meeting held March 21, 2018, but she asked the social worker to remove the alcohol component of the test saying it was not required by her case plan. Mother then admitted drinking a beer the night before but denied drinking around her daughter. The test was positive for ethanol, which confirmed she had been using alcohol. Mother stated she was not aware her case plan required her to abstain from drinking alcohol entirely. In April 2018, she moved into a clean and sober living environment and provided clean urine tests.
Supervised visits resumed. Daughter continued to exhibit "conflicted" feelings about mother and was opposed to having the visits with her go unsupervised. She had reported more than once to not feeling safe in mother's care and recounted the times mother had been intoxicated. The report expressed concern that while mother had recently relapsed, she had not acknowledged her difficulties with alcohol or the effect her drinking had upon daughter. An addendum report indicated that on June 4, 2018, mother had submitted a sample for urinalysis that tested positive for ethanol, indicating she had been using alcohol within the last 72 hours.
At the hearing itself, the social worker employed by the Department testified that daughter was apprehensive about visits with mother and daughter had said on occasion that she hated her. The social worker thought that father encouraged daughter to engage with mother at visits. Daughter sometimes "warms up" to mother during visits and told mother she loved her. Mother was doing individual counseling weekly and testing for substances twice a week. Although she spoke to the counselor about alcohol, she did not tell the Department that she struggled with alcohol or take responsibility for why daughter was out of her care. Mother had expressed frustration that father was coaching daughter, but the social worker had not seen any signs of that.
Mother called her own treatment providers as witnesses. Candy Weisse was a substance abuse counselor who had met with mother for 13 weeks and felt that mother had acknowledged her problem with alcohol and did not need further treatment. She characterized mother as a "social drinker" (although she later acknowledged she might be a "binge" drinker) who had a "mild" alcohol disorder. Mother had originally been diagnosed as having a "moderate" alcohol disorder, but she had remained clean and sober for six months so this was downgraded. Most of Weisse's information was based on the client's (mother's) self-reporting, and she did not consider mother's alienation of her daughter as part of her diagnosis. She did not know one of mother's driving under the influence arrests was based on a blood alcohol level of .33, which was "pretty high." It wouldn't make any difference that daughter reported to the social worker that she was in the car when mother was drinking and driving. Mother acknowledged to Weisse her relapse in April; she denied drinking in June and said she was taking a cold medication for a severe cold. After mother's relapse in April, Weisse discussed the case with a social worker and disagreed that mother needed inpatient or more intensive treatment. She noted that mother had told her that visits with daughter were strained because they were supervised. Mother had never said that drinking alcohol was a problem for her.
Daniel Bixler was a psychotherapist who specialized in addiction and who had been having therapy sessions with mother since December 2017. He did not think mother qualified for a DSM5 substance abuse diagnosis because she had stopped using alcohol based on her own report; he had not considered that mother had twice tested positive for alcohol because she was adamant she did not drink. He believed she had used alcohol as a coping mechanism for stressors arising from her marriage and divorce. Mother was angry with the process of this dependency case, but he hadn't seen any maladaptive expressions of that anger. Mother had told him she abused alcohol in the past and the Department wanted her to not drink irresponsibly. He didn't necessarily consider her positive tests relapses because she was so ardent about not using alcohol. Mother claimed there had been domestic violence during her marriage and presented herself as the victim. Although she thinks she may have had an anger management problem in the past, mother does not believe that is an issue today.
Mother also testified in her own behalf. She had been attending Alcoholics Anonymous meetings since before this case began as well as a 13-week drug program. She denied drinking at any visit and explained that in March 2018, she had a beer and a half with her roommate, which lead to a positive alcohol test. As a result of this test, she agreed to enter a clean and sober house, where she stayed for seven to eight weeks rather than the 30 days she was scheduled to stay because it was a supportive environment and close to her work. A test in June 2018 (after she left the clean and sober house) was positive because she had taken cold medicine.
According to mother, alcohol made her "less attentive" to daughter. She denied getting angry when she got drunk, but acknowledged she may have responded to aggression less well. She had used alcohol to cope with domestic violence, which she also addressed in her anger management counseling with Daniel Bixler. Mother used to have a sponsor in Alcoholics Anonymous, with whom she spoke about the fourth step. She found Alcoholics Anonymous, as well as counseling with Candy Weisse, to be helpful. She had also completed a parenting class. She did not have an anger management problem. Her visitation with daughter remained supervised, and she did not think she and daughter were as close as they used to be. She did not believe daughter was afraid of her.
The court terminated mother's reunification services, ordered that father have sole physical and legal custody of daughter, ordered supervised visitation for mother and terminated dependency jurisdiction. The court specifically found that mother was not a credible witness, had manipulated her counselors and lacked insight on why her child was afraid of her and the effect of her drinking and violence. The court also found that the opinions of Candy Weisse and Daniel Bixler were not credible.
II. DISCUSSION
Mother argues that the court should have kept open the dependency case and ordered an additional six months of reunification services. We disagree.
Although couched in different ways (violation of statute, violation of due process), mother's arguments assume she was entitled to a total of twelve months of reunification services under section 361.5, subdivision (a)(1)(A). This is not the case.
"As a general rule, when a child is removed from parental custody under the dependency statutes, the juvenile court is required to provide reunification services pursuant to section 361.5 to 'the child and the child's mother and statutorily presumed father.' (§ 361.5, subd. (a).) The purpose of these reunification services is 'to facilitate the return of a dependent child to parental custody.' [Citation.] Unless an express exemption exists, reunification services provided pursuant to section 361.5 are mandatory, subject to strict timelines, and monitored through periodic court reviews at which parents are admonished that failure to participate successfully in reunification efforts could lead to the termination of their parental rights. (§§ 361.5, 366.21, 366.22.)
"The juvenile court law, however, provides an alternate track for minors who are removed from a parent when a previously noncustodial parent is available and requests custody of the child. Specifically, subdivision (a) of section 361.2 provides: 'When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.' (Italics added.) Once the juvenile court places a minor with a previously noncustodial parent in accordance with this statute, it has three dispositional options. It may grant custody to the previously noncustodial parent and terminate dependency jurisdiction. (§ 361.2, subd. (b)(1).) It may order that a home visit be conducted within three months of the minor's new placement and that the results of that visit be provided to the court before it takes further action with respect to custody of the minor. (§ 361.2, subd. (b)(2).) Or, it may order that the previously noncustodial parent 'assume custody' of the minor subject to the supervision of the juvenile court. (§ 361.2, subd. (b)(3).) If the court chooses option three, it 'may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision, or that services be provided to both parents, in which case the court shall determine, at review hearings held pursuant to Section 366, which parent, if either, shall have custody of the child.' " (In re Jaden E. (2014) 229 Cal.App.4th 1277, 1281-1282 (Jaden E.).)
Because daughter was not removed from both parent's custody, but was instead placed with father, a non-offending parent, the case fell under section 361.2, not section 361.5. The court therefore had the discretion to deny reunification services to mother at the outset. It did not do so, instead providing her with services until the six-month review hearing. But the provision of reunification services was "wholly discretionary and analytically distinct from the mandatory reunification efforts required by section 361.5." (Jaden E., supra, 229 Cal.App.4th at p. 1285.) " 'The distinction between the services provided when the minors remain in parental custody and when the minors have been removed from parental custody is a subtle but important one. Services designed merely to support a family's functioning may or may not be the same as those designed to reunify a family even if the ultimate goal in each case is to ameliorate the problems which led to the dependency at the outset.' [Citation.] Additionally, a parent's level of engagement in section 361.2 services may differ when the expectation of a timeline for that parent to complete those services, 'facing ultimate termination of parental rights under an advisement,' is not in place. [Citation.] Moreover, '[c]hildren who are placed with at least one of their parents from the beginning of the dependency are differently situated than those who immediately enter foster care. Such a child, in most cases, is not suffering from the same level of disruption and need for prompt permanency adjudication as he or she might otherwise experience in a foster care placement.' " (Ibid.)
Thus, the sole question presented here is did the juvenile court somehow abuse its discretion in terminating services? "As has been oft repeated, when we review a juvenile court order for abuse of discretion, the ' "appropriate test . . . is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (Jaden E., supra, 229 Cal.App.4th at p. 1288.) The court could readily conclude that daughter remained afraid of mother, that mother had a drinking problem for which she failed to fully accept responsibility, that mother had consumed alcohol at visits with daughter, that mother lacked insight into her own behavior, that minor was doing well in father's home, and that it was appropriate to leave her living situation in place and terminate dependency jurisdiction. Although mother had participated in alcohol and anger management counseling, the court reasonably determined not to give credit to the testimony of her providers based on their admitted willingness to accept mother's self-reporting at face value and their apparent disregard of her behavior when abusing alcohol. These facts support a termination of services.
Mother argues we should not apply section 361.2 because father previously had joint custody of daughter and the statute speaks to placing a child with a previously noncustodial parent. We do not find this distinction persuasive. Daughter is placed with a non-offending parent (with whom the offending parent does not reside) and the clock for the potential termination of parental rights of either parent is not ticking. There is no reason to apply the same rules regarding reunification as would be required if daughter were placed with a stranger. Even if we assumed section 361.2 did not apply, we would apply section 364, which governs cases in which children are declared dependents but are not removed from their parents. (In re Gabriel L. (2009) 172 Cal.App.4th 644, 650.) The discretion to provide services in such cases is similar to that provided by section 361.2. (Id. at pp. 651; see also In re Destiny D. (2017) 15 Cal.App.5th 197, 211 [court has the discretion under § 364 to terminate dependency jurisdiction at dispositional hearing when minor was in custody of both parents, was removed from them, and was then returned to mother after she separated from father]; In re A.J. (2013) 214 Cal.App.4th 525, 536-537 [court had inherent authority to terminate jurisdiction at combined dispositional/six-month review hearing where minor removed from mother's custody and placed out-of-state with presumed father who was only a biological father at time of placement; case "did not fit neatly within the parameters of either section 361.2 or section 364"].)
Mother also notes she was advised at the disposition hearing that she would have 12 months to reunify. The admonition did imply that mother would receive 12 months of services, but mother has cited no authority establishing that the court was bound in any way by the prior admonition, and she cannot prevail on the point simply by alluding to due process. (See In re Baby Boy H. (1998) 63 Cal.App.4th 470, 475 [there is no constitutional right to reunification services]; cf. In re David H. (1995) 33 Cal.App.4th 368, 388 ["[n]owhere is it provided that a minimum of 12 months of services is required"].) Nor can she claim any detrimental reliance on the admonition, when twelve months of services was not a term that was bargained for or operated as an inducement of an admission. (See People v. Avila (1994) 24 Cal.App.4th 1455, 1461.) Deciding whether to terminate services at the six-month stage was within the province of the juvenile court.
The court stated, "Typically, for a child under three, there is a short time window to reunify, but in this case, the child is over three years old. I'm going to just advise you that you have 12 months to reunify with your child except for the fact she's with her father and we don't have to worry about a placement. In these types of cases, it's typical if there is no parent at the end of the 12-month period, if you can't safely return the child to a home, then the court has to make another plan like order a .26 hearing, selection and implementation hearing. That, fortunately, will never happen in this case because she is with the father. [¶] The upshot of it is you should understand you are in a case plan. It's important that you should comply with the case plan, do what's required, and make substantial progress. Then the child can be safely returned to you. But if you don't do that - - unless at the end of the 12-month period after a couple of 6-month reviews, if you can't demonstrate that you are making substantial progress or that the child can safely be returned to you, then your rights as a parent could be jeopardized. I don't want to go into any more detail because it's not as critical in this type of a case where the child is placed with the father. But you have timelines. We will review this case every six months. Assuming that nothing is reversed by the Court of Appeal, we will review it every six months and see where we are."
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, Acting P. J. /s/_________
BURNS, J.