Opinion
H031586
7-27-2007
In re CODY B. et al., Persons Coming Under the Juvenile Court Law. SHANNAN B., Petitioner, v. THE SUPERIOR COURT OF SANTA CRUZ Respondent, HUMAN RESOURCES AGENCY OF SANTA CRUZ COUNTY, et al., Real Parties in Interest.
NOT TO BE PUBLISHED
Petitioner Shannan B. challenges the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing to consider a permanent plan for 10-year-old Cody and eight-year-old Phoenix and the possible termination of her parental rights. She contends that the juvenile court erred "when it determined that mother was provided or offered reasonable reunification services." We grant her petition for a writ of mandate.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Background
Ms. B. challenges the findings and orders made by the juvenile court at the May 18, 2007, 12-month review hearing. Much of the testimony at that hearing was about visitation. When Cody and Phoenix were detained in February 2006, the juvenile court ordered the Human Resources Agency (agency) to provide petitioner with a minimum of two supervised visits per week per child. The court gave the agency the discretion to increase visitation or to allow unsupervised visitation. It appears from this record that, throughout this dependency, the agency provided, at most, half of the ordered visits and that many of these visits were cancelled.
Cody and Phoenix, both of whom have special needs, first became dependents of the juvenile court after a section 300 petition was filed in September 2004. The sustained petition included allegations that Ms. B. had substance abuse problems, had tested positive for methamphetamines, and had jeopardized her section 8 housing by allowing non-relatives to live with her. During the dependency, Cody and Phoenix continued to live with Ms. B. who received six months of family maintenance services. Ms. B. did very well on her case plan, which included drug testing, counseling, and obtaining housing. The juvenile court dismissed the dependency as to each child in May 2005.
Phoenix has been diagnosed as mentally retarded and Cody has been diagnosed as having "emotional difficulties, including Oppositional Defiant Disorder and Attention Deficit Disorder."
In February 2006, the agency filed a new section 300 petition that included allegations that Ms. B. had left Cody and Phoenix in the care of a known drug user, had used methamphetamine and marijuana, and had failed to pick Phoenix up from a bus stop where he had to wait for over an hour. When the juvenile court detained Cody and Phoenix, the court ordered the agency to provide Ms. B. with a minimum of two supervised visits per week, per child.
The March 2006 jurisdiction/disposition report said that Ms. B. was "in the process of getting evicted from her apartment" for non-payment of rent. The report noted that a visit had been arranged for Ms. B. with Cody and Phoenix and the visitation supervisor informed Ms. B. when it would be and asked her to call by the close of business hours the day before the visit to confirm the scheduled visit. Ms. B. did not return the call until the morning of the visit. Because the visitation supervisor had by then already scheduled something else, the social worker supervised the visit. The social worker "was impressed with the quality of the visit. [Ms. B., Cody and Phoenix] read books, talked about how things were going at school and in placement. They also gave each other lots of hugs and kisses." The next visit was cancelled because the children were sick.
An April 2006 "update" to the court said that Ms. B. had "been very inconsistent in returning the telephone calls of the Visitation Supervisor" and that these supervisors had said that "they have had a difficult time setting up visits due to the fact that Ms. B[.] does not return their calls in a timely manner." Because of this, the person who supervised the visits was authorized by her supervisor "to set up visits for the B[.] family without prior confirmation from the mother."
On April 28, 2006, the court found that Cody and Phoenix were persons described by section 300, subdivisions (b), (g) and (j).
In May 2006, after a contested disposition hearing, the court ordered the agency to provide 12 months of family reunification services and, again, ordered supervised visits of two times per week per child with the social worker having discretion to increase visitation or allow unsupervised visits. The case plan for Ms. B. included counseling, parenting classes, obtaining housing, a substance abuse assessment, drug testing, and a minimum of three 12-step meetings per week.
By the six-month review in October 2006, Ms. B. had completed the substance abuse assessment. She had not secured housing in a sober living environment or contacted service providers regarding counseling or parenting classes. She had not drug tested or provided proof of attendance at 12-step meetings. Phoenix was in foster care and Cody was in a residential program in another county. The court ordered that the reunification services continue and restated its prior visitation order that visitation between Ms. B. and each child "shall occur a minimum of twice per week, supervised."
In April 2007, in the 12-month review report, the social worker recommended that the court terminate reunification services for Ms. B. Ms. B had "displayed a sincere motivation to address her use of drugs and alcohol" had entered a residential in-patient drug treatment program. While in the program, Ms. B. had "a significant change in the appearance of her health, affect, and engagement in case plan services. During this time Ms. B[.] was co-operative, insightful, and fully engaged in recovery." Unfortunately, Ms. B. was discharged from the program after a conflict with the staff during a visit from Cody. However, both the visitation supervisor and the staff member of Codys group home were of the opinion that "Ms. B[.] acted appropriately and was attempting to calm and ensure the safety of her son."
Cody was visiting Ms. B. at Janus, her treatment program. He began pulling the hair of the group home staff member who had taken him to the visit. Ms. B. "directed Cody not to pull her hair. At this time Cody began to scream at his mother and try to run away. [The visit supervisor] reports that in an attempt to comfort and protect Cody, Ms. B[.] placed her arms around her son. It appears that Janus staff objected to the commotion and ordered Ms. B[.] to let go of her son. Ms. B[.] did not comply with Janus staff direction. [The visitation supervisor] canceled the visit and Cody returned to [his group home]."
Ms. B. needed six more parenting classes to complete that aspect of her case plan. Ms. B had not obtained housing, participated in drug testing, or provided proof of attendance at 12-step meetings. Ms. B. was on a waiting list for a counselor as the counselor who had worked with her during the previous dependency, and with whom she preferred to work now, was not an agency-approved provider.
The report said that Ms. B. was engaged in weekly supervised visitation through Childrens Mental Health of Santa Cruz County. The visitation supervisor reported that "the quality of visitation is good. . . . [F]or the most part Ms. B[.] is consistent with visitation although there are periods in which Ms. B[.] is un-reachable or does not show up as scheduled." The social worker supervised one visit and said that it was "clear . . . that both Ms. B[.] and Phoenix greatly enjoyed their time together. Ms. B[.] was appropriate and sensitive to the special needs of her son. As visitation ended, and Phoenix did not want to return to his Foster home, Ms. B[.] tenderly reminded her son that we will see each other soon and if you dont go now [the foster parent] will miss you . . . . " The report said that Ms. B.s visits with Cody were "adequate although there are periods in which Cody expresses anger and disappointment with his mother."
The court-appointed special advocate for Phoenix reported that although Ms. B. and Phoenix clearly love each other, Phoenix was distressed when Ms. B. made "promises she cannot keep" such as that he would be returned to her soon or when she "does not show up for scheduled visitations."
In an addendum, the social worker said that there had been some "changes in circumstances" since the preparation of the 12-month report. Ms. B. had begun to "engage in areas of the case plan in which she had [previously] not." Ms. B. had begun to see her counselor of choice and was participating in drug and alcohol testing. However, the agency recommendation that services be terminated remained unchanged.
The social worker said that, "Ms. B[.]s engagement in testing supports this Social Worker assessment that she has not adequately addressed her substance use and proves that she is currently using Methamphetamine and Marijuana."
At the contested 12-month review hearing, David Resnikoff testified that he was a senior social worker with the agency and had taken the case over from the previous social worker shortly after the six-month review hearing. At that point, he knew that Ms. B. was homeless. He filled out an application referring her to Families in Transition and faxed it to that organization. When asked if Ms. B. was aware of this referral, Resnikoff testified, "I believe so. I cannot — I cant recall. It would probably have been based upon a conversation I had with her."
Resnikoff testified that the agency had an arrangement with Ms. B. that she was to call the day before a scheduled visit with her children "to confirm with the visit supervisor the time and location where they would meet." He said that "frequently" visits did not occur because either Ms. B. did not call to confirm the visit or did not show up for it. Resnikoff testified that the day before the hearing, he arranged for Ms. B. to visit her child at his office, but that she had called and that said she could not make it there. She asked if the visit would have to be cancelled. Instead, Resnikoff picked her up and "the visit happened."
When Ms. B. was terminated from the drug treatment program, Resnikoff made various efforts to contact her but she did not show up for a scheduled meeting. He "sought her out" on a street that offers a variety of services for the homeless and discussed the possibility with her of "reengaging in the case plan." Resnikoff testified that, as for regular participation by Ms. B. in her case plan, "There was very few parts of the case plan that she had regular participation in. In fact, I would say the visitation was the only thing that was regular" but that there was no part of the case plan where he saw "substantive progress."
Resnikoff reviewed the visitation logs, which had been prepared by someone else whose "use of the formats of [the] logs" was "inconsistent." Resnikoff considered that one obstacle to visitation was the transportation difficulties presented by Codys placement out of the county. Visits were offered two days per week, one for each child. Resnikoff did not see any notations to indicate that any visit was to make up for a missed visit. Resnikoff was aware that the visitation order was for two times per week per child and he testified that that he did not seek to have visitation reduced due to non-participation by Ms. B.
Ms. B. testified that the agency set up a visit schedule of one day a week per child and that she was never offered more than that. When she asked for more visits, she was told "they didnt have the manpower to provide two visits per child per week."
Ms. B. testified that she contacted the parent center for a referral for counseling but that they had a waiting list. By the time they contacted her, she had scheduled an appointment with the counselor with whom she had worked successfully earlier, and by the time of the review hearing, Ms. B. had had four counseling sessions with that counselor. She was never contacted by Families in Transition, but when she contacted them she was told that "there was an appointment scheduled for me in January of 2008." Ms. B. had been incarcerated for three days, and out of the county for two weeks to see "a woman who is close to [her] like a mother half of [her] life" who had had a stroke. Ms. B. testified that she had been attending NA and AA meetings but that, due to her homelessness, she had lost her meeting slips. She had completed a court-ordered psychological evaluation.
Counsel for Ms. B. argued that the agency had not shown that reasonable reunification services had been provided for Ms. B. Counsel argued that, given that the court ordered visitation of a minimum of two times per week per child was never offered to Ms. B., the "lack of visitation, Your Honor, per se, is not reasonable services." Counsel also argued that the agency had not done enough to assist Ms. B. in obtaining housing. Counsel asked the court to extend reunification services for Ms. B. for an additional six months. Counsel for the agency argued that "Mr. Resnikoff was very [conscientious] in this case, and he re-referred the things that the mother had already been referred to." Counsel for Cody and Phoenix argued that Ms. B. had failed to show progress and that her "ability to care for these children is the same as it was on the day of the detention."
At the conclusion of the hearing, the court terminated reunification services to Ms. B. and set the matter for a section 366.26 hearing. The court said, "Were reasonable services provided? It appears to be clear and convincing that they were. [¶] I disagree that it is controlling that visitation was not completed two times per week per child. Mother alleges that this was the case. The social worker testified that, basically, there was an arrangement, because of mothers past lack of participation, visits would be confirmed ahead of time. And the Court has no evidence as to the contrary. [¶] I have evidence that she did visit periodically and on the one-time-per-week. But I do not believe that this is sufficient to outweigh the lack of — this is sufficient to indicate that reasonable services were not provided. I do believe they were provided. And we will make that finding today. [¶] In addition, I will find that mother has not made — has not participated regularly or made substantive progress as she failed to engage in counseling, especially, in drug testing and maintaining sobriety, which is the most disturbing of all, and that the parenting class and counseling have not been completed or at least even sufficiently engaged in. [¶] So the burden shifts to [Ms. B.] as to whether or not there would be a substantial likelihood that the children would be returned to her within the remaining portion of the 18 months. . . . At this time, [Ms. B.], unfortunately, is not in much of a different position than she was at detention."
Discussion
Petitioner contends, "The trial court erred when it determined that mother was provided or offered reasonable reunification services."
The juvenile court may order a section 366.26 hearing only where clear and convincing evidence establishes that reasonable reunification services have been offered or provided. (§ 366.21, subds.(g)(1), (g)(3); Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1165.) "The adequacy of reunification plans and the reasonableness of the [agencys] efforts are judged according to the circumstances of each case." (Id. at p. 1164.) "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. Accord, In re Julie M. (1999) 69 Cal.App.4th 41 48; In re Alvin R. (2003) 108 Cal.App.4th 962, 972.)
We review the courts findings for substantial evidence. "[ [W]ith regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile courts finding that reasonable services were provided or offered]. " (In re Julie M., supra, 69 Cal.App.4th at p. 46.) " " [W]hen two or more inferences can reasonably be deduced from the facts, either deduction will be supported by substantial evidence, and a reviewing court is without power to substitute its deductions for those of the trial court. . . ." . . . [Citation.]" (In re Misako R., supra, 2 Cal.App.4th at p. 545.)
Petitioner argues that at the beginning of this dependency, "the juvenile court ordered the agency to provide Mother with visitation two times per week per child with discretion given to the social worker to only increase the frequency and duration of the visit. . . . At the heart of the matter, the agency failed to follow the juvenile courts simple and direct order to provide Mother with visitation, twice per week, per child. In addition, the social worker could neither confirm nor deny whether Mother ever received a makeup visit for visits that were cancelled." Respondent states, "it is not clear in the record whether visits occurring once a week (rather than twice) was the result of cancellation by the mother (as had apparently been an early pattern) and then no offer of a make-up visit, or that there was no initial offer of two per week. It was also unclear whether visit non-occurrence happened because the mother failed to make the confirming contact prior to otherwise scheduled visits. The testimony was that there were many cancelled visits, although visitation was more regularly participated in by [Ms. B.] than other parts of the case plan." The juvenile court did note that "there was an arrangement, because of mothers past lack of participation, visits would be confirmed ahead of time. And the Court has no evidence as to the contrary." We are puzzled by the social workers testimony on this point, the courts observation, and respondents argument that visit "non-occurrence" may have been due to Ms. B. failing to make confirming contact, in that by April 2006 the visitation monitors supervisor had directed the visit monitor to arrange visits without such confirmation.
"Among its components, the reunification plan must include visitation. [Citation.] That visitation must be as frequent as possible, consistent with the well-being of the minor." (In re Luke L. (1996) 44 Cal.App.4th 670, 679, citing § 362.1. Accord, In re Alvin R., supra, 108 Cal.App.4th at p. 972; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138; see also, Cal. Rules of Court, rule 5.695 (f)(4).)
It appears to us that Resnikoff is a hard-working, insightful, dedicated social worker who was called upon at the 12-month hearing to testify as to matters about which he had limited personal knowledge. It also appears that, for whatever reason, the agency never, at any time during this dependency, offered petitioner the court-ordered two visits per child per week. The juvenile court made a determination early on in this case that two visits per week with each child would be the visitation component of the reunification plan for this family. Although undoubtedly petitioner herself was responsible for some cancelled visits, this record leaves us no way of determining the number of times that happened, or how many visits were cancelled because of problems transporting Cody, or whether any make-up visits were arranged for cancelled visits.
The cases cited by respondent in support of the position that the trial court did not err in finding that reasonable services had been provided are, for the most part, cases in which the agency provided the services that the juvenile court had ordered, the juvenile court found that reasonable services had been provided, and the parent argued on appeal that those services were inadequate. For example, in In re Misako R,.supra, 2 Cal.App.4th 538, a mother with intellectual deficiencies and language difficulties argued that the agency should have obtained an earlier psychological evaluation, an evaluation which revealed her intellectual limitations and that thus the reunification plan did not accommodate her special needs. However, there was no suggestion that the agency had not provided everything that the juvenile court had ordered as part of the reunification plan at disposition. Likewise, in Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, the agency provided the father with an array of services in which he failed to participate. By the time of the 12-month hearing, the father was incarcerated in Nevada and the juvenile court terminated reunification services. The father brought a writ contending that he had not been provided with reasonable reunification services especially during the period in which he was incarcerated. The appellate court found that the father had, by his own actions, "placed himself out of the reach of any meaningful rehabilitative services which the Department could have provided." (Elijah R., supra, 66 Cal.App.4th at p. 971.) Again, there was no contention that the agency had not provided everything in the way of reunification services that the juvenile court had ordered for the father.
Here, it is undisputed that, although the juvenile court ordered that petitioner be provided with two visits per week per child, this visitation schedule was never implemented. What is clear from this record is that the agency facilitated at best fewer than half of what the juvenile court considered, at the beginning of and throughout this dependency, to be the appropriate number of visits for Ms. B. to have with Cody and Phoenix during the reunification period. Whatever the limitations on the agencys resources to provide this visitation, the courts order remained unchanged throughout the dependency. Perhaps the juvenile court ordered this component of the reunification plan based on the first dependency. At that time, Ms. B. completed her case plan in six months while having custody of Cody and Phoenix and her counselor, when that dependency was dismissed, reported that Ms. B. was "a caring and committed parent of special needs children and that she seems very motivated to create a secure and happy home for her and her family." It would seem, then, that the more contact Ms. B. had with her children during the period of dependency the more she was engaged in the services provided.
The juvenile court determines at the beginning of a dependency what reasonable reunification services should include, the juvenile court orders those reasonable reunification services, and it is the agencys responsibility to provide those reasonable reunification services, not to substitute its own judgment as to what should be provided. Given the fundamental importance of visitation to reunification, and with a record that shows that the implemented visitation schedule fell so far short of what had consistently been ordered, we cannot say that substantial evidence supports a finding that reasonable services were provided.
Generally speaking, the Legislature has set a time limit of 18 months from the initial detention order within which the court must determine whether the child should be returned to the parents or placed elsewhere, with or without terminating parental rights. (§§ 366.22, subd. (a); 366.26, subds. (b), (c).) That time line marks the outer perimeter within which efforts at preservation of the family have priority. (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1211.) The 18-month limitation, however, is not an inflexible one, for it is predicated on the assumption that during the interval, the agency will have developed and implemented a family reunification plan tailored to the specific needs of the parent and monitored by the juvenile court through periodic six-month review hearings. (§§ 366.21, subds.(e)-(g)(1); 366.22, subd. (a).)
In In re Dino E. (1992) 6 Cal.App.4th 1768, the juvenile court had determined that although no reunification services had been offered the parent by the agency over 18 months, it had no choice but to set the case for a selection and implementation hearing under section 366.26 because, despite parents request for an extension of time to provide reunification services, " the law doesnt permit it. " (Id. at p. 1775.) Granting a peremptory writ of mandate, this court eschewed "a mechanical approach" to the provision of reunification services. After noting that "[i]n the usual case, a service plan will be developed at the dispositional hearing and its implementation will be reviewed at six- and twelve-month intervals," we reasoned that "[w]here no reunification plan is in place . . . a strict enforcement of the time line does not provide the opportunity to reunite the family." "We do not believe," we concluded, "that such a result was intended by the Legislature." (Id. at p. 1778.)
Relying on prior decisions parsing section 352, a provision permitting a juvenile court to grant continuances if not contrary to the minors interests, we framed the following remedy: "No motion was brought under section 352 in this case. We believe that statute indicates, however, that the court has discretion upon a showing of good cause to continue juvenile dependency hearings beyond the statutory time limits. Had the court here been inclined to continue the 18-month review hearing on the basis that adequate services had not been offered [parent], we believe it could have done so. In that case the court could have made findings indicating in what respects it found the services of the [welfare department] to be lacking, so that the appropriate services could be developed during the continuance." (Dino E., supra, 6 Cal.App.4th at p. 1779; see also In re Michael R., supra, 5 Cal.App.4th at p. 694, ["[b]ased on the . . . language of section 352, we hold a court has discretion to consider a motion for continuance which is to be heard before the commencement of a selection and implementation hearing under section 366.26. [¶] . . . Section 352 contemplates there may be circumstances which will warrant a continuance of any scheduled hearing"].)
We recognize that successful reunification of Ms. B. with Cody and Phoenix is not a given. Although her love for her children and their love for her permeate the record, her substance abuse problems and homelessness may still be issues. However, the agency cannot be excused from providing visitation to the extent ordered by the court without something more in the record to justify such a substantial departure from the juvenile courts order of the appropriate schedule. We return the matter to the juvenile court for a section 352 motion. " In exercising its discretion, the juvenile court should consider: the failure to offer or provide reasonable reunification services; the likelihood of success of further reunification services; whether [each childs] need for prompt resolution of [his] dependency status outweighs any benefit from further reunification services; and any other relevant factors the parties may bring to the courts attention. (Fn.omitted.)" (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1466.)
Disposition
Let a peremptory writ of mandate issue. The Santa Cruz County Superior Court is directed to vacate the findings made at the April 27, 2007, 12-month review hearing, including the finding that reasonable reunification services were provided, and to vacate the orders in action Nos. DP001058 and DP001059, authorizing a selection and implementation hearing pursuant to section 366.26. The Santa Cruz County Superior Court is ordered to hold further proceedings consistent with this opinion. On remand, the court shall entertain a section 352 motion for continuance of reunification services to petitioner Shannan B., beyond the statutory time.
We concur:
RUSHING, P. J.
PREMO, J.