Opinion
B195469
4-20-2007
In re J. H., Minor. VERONICA W., Petitioner, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Emma Castro for Petitioner. No appearance on behalf of Respondent.
NOT TO BE PUBLISHED
Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel for Real Party in Interest.
INTRODUCTION
Petitioner Veronica W. is the mother of J. H. The dependency court terminated reunification services, found that the relative placement preference no longer applied, and set the juvenile proceeding for permanency planning hearing. (Welf. & Inst. Code, § 366.26.) Petitioner filed a petition for extraordinary writ review. (Cal. Rules of Court, rules 8.450, 8.452, 8.456.) We deny the writ.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The initial detention.
Petitioner suffers from sickle cell anemia disease. She had a history of homelessness and multiple hospitalizations. According to petitioner, she was hospitalized for about a week six times per year. She received Supplemental Security Income (SSI).
Petitioners son, J. H., was born in April 2005. The day after J. H. was born, real party in interest the Department of Children and Family Service (DCFS or the Department) received information that J. H. was a victim of caretaker absence/incapacity and was at substantial risk of neglect. Petitioner could not provide the social worker with the name of J. H.s father, or any family member or friend who could care for J. H. Petitioner refused to discuss her other two children (who lived with their respective fathers) or answer questions about her drug use. She refused to permit the doctor to wean her off Demerol. Petitioner had been residing at a sober living facility prior to giving birth to J. H. However, petitioner could not return to the facility because it had no provisions for children.
J. H.s father provided the Department with the telephone number for J. H.s paternal aunt, Jocelyn B. Jocelyn B. was out of town.
On May 9, 2005, J. H. was detained pursuant to a petition alleging petitioner had failed to provide for J. H.s siblings and her only residences were shelters and treatment facilities. (§ 300, subds. (b), (g).) The juvenile court ordered that the parents were to receive reunification services and monitored visitation. The Department was to provide petitioner with referrals for weekly drug testing and with transportation funds.
On May 12, 2005, petitioner tested positive for methadone. Less than 14 days later, she tested positive for methadone and opiates. Petitioner admitted taking pain medicine every day.
On May 16, 2005, the social worker reported J. H. was medically fragile and anemic. Petitioner denied having a drug or alcohol problem. J. H. was detained in foster care because petitioner did not provide an address where she would be staying and could not name a person who could care for J. H. J. H.s half-siblings had been out of petitioners care for more than one year. Petitioner made arrangements to stay at a shelter (Grand Avenue Center for Dignity).
Sheryl M., a paternal great aunt, could not care for J. H. because she would lose her Section 8 housing. At the petitioners request, the Department evaluated paternal aunt Jocelyn B. and paternal aunt Gabrielle B. for possible placement. The Department concluded Jocelyn B. was not appropriate for placement because she lived in a one-bedroom apartment with four children.
On June 3, 2005, a first amended petition was filed adding allegations that J. H.s father had a history of drug abuse and mental illness.
2. The jurisdictional hearing.
A contested jurisdictional hearing was held on June 14 and 15, 2005. The juvenile court sustained the first amended petition (§ 300, subd. (b)) alleging petitioner and fathers lifestyle of chronic transience and instability, and fathers drug use and mental health were detrimental to J. H. The Department was to provide petitioner with parenting class referrals and to arrange visits. The juvenile court ordered that petitioner was to be evaluated by Dr. Clive D. Kennedy, Ph.D.
Because the father is not a party to this writ proceeding, we hereafter omit most facts that refer to him. We note, however, that reunification services for father were terminated in February 2006.
Dr. Kennedy completed his evaluation on July 27, 2005. Petitioner told him that she met father when they were both staying at a shelter. Petitioner stated she started drinking alcohol around 15 or 16 years of age and began using marijuana at age 18. The father of one of her other two children had obtained a restraining order against her based upon domestic violence allegations. Testing revealed petitioner had average intelligence, was defensive, could erupt with sudden expressions of anger, became overwhelmed with ordinary daily interaction with family, had limited capacity to develop an affectionate bond with her child, and had a propensity for paranoid thinking. She was diagnosed with unspecified substance abuse, major depressive disorder, and schizoid personality traits. These traits placed J. H. at risk. She had seen J. H. regularly for the first month, but had not seen him for a month. Dr. Kennedy was concerned about petitioners long-term interest in raising J. H. Among other recommendations, he recommended that petitioner participate in individual counseling.
In a July 28, 2005, report, the social worker reported petitioner was participating in activities at the Grand Avenue Center for Dignity, where she resided. These included drug and parenting classes and counseling.
3. The disposition hearing.
A continued disposition hearing was held on August 1, 2005. J. H. was removed from the custody of his parents. Petitioner was ordered to submit to random drug tests and to participate in parenting classes and mommy-and-me type classes. As had been recommended, petitioner was to participate in individual counseling. Petitioner was to have monitored visitation.
Petitioner appeared on September 26, 2005, at a progress hearing. It was reported that petitioner was visiting J. H. twice a week and was participating in mommy-and-me classes. Her counseling, however, was not being done by a licensed therapist. The Department was providing petitioner with bus passes and had provided her with a therapist recommendation. Petitioner was to have unmonitored visitation and overnight stays. The Department was to work with petitioner in developing a plan if she had to be hospitalized during an unmonitored visit. Petitioner had not been missing drug tests. A few weeks earlier, petitioner had been reminded by the social worker of the counseling order.
Petitioner began unmonitored visits twice a week. However, in an October 25, 2005 report, the social worker stated the foster mother had seen petitioner hit father while she was holding J. H. and had seen petitioner place J. H. in fathers lap while he was asleep. The foster mother also reported petitioner left J. H. with an unapproved person during an unmonitored visit. The Grand Avenue Center for Dignity agreed to contact the social worker if petitioner were to become ill during a visit with J. H.
At an October 25, 2005, hearing, the juvenile court ordered further reunification services and petitioner was not to leave J. H. with anyone who was not approved by DCFS.
In the November 2005 progress report, the social worker reported that petitioner failed to attend a scheduled visit and failed to meet with the social worker to discuss the case. The social worker located petitioner in the hospital, where she had been for a number of weeks.
At the November 23, 2005, hearing, the court ordered the Department to facilitate visits when petitioner was released from the hospital. It was later learned that petitioner had tested negative for drugs in August, September, and October 2005. She did not get drug tested in November and December 2005.
The social worker met monthly with petitioner and provided referrals and bus passes.
Petitioner visited with J. H. once in late December 2005.
4. The six-month review hearing.
A six-month review hearing was held on January 30, 2006. (§ 366.21, subd. (e).) The social worker reported that between November 4, 2005, and the time the report was completed, petitioner had been hospitalized at least four times. The hospitalizations prevented petitioner from attending programs and visiting J. H. The juvenile court ordered six more months of services and a Family Group Decision Making conference to be held. Petitioner was to devise a plan to care for J. H. when she was hospitalized.
In the March 30, 2006, report, the social worker reported that petitioner continued to have frequent, and often lengthy, hospitalizations and was only present at the Grand Avenue Center for Dignity approximately one and a half-weeks per month. Petitioner was not having individual counseling nor participating in other programs. She missed visits with J. H. Petitioner was on strong pain medicine. Petitioners hospitalizations were abrupt. She would scream from pain and then call 9-1-1. The social worker had continual problems knowing when, or where, petitioner was hospitalized.
Petitioner did not see J. H. for an entire month due to hospitalizations. The hospitalizations hampered the social workers ability to monitor petitioners progress and prevented petitioner from being present at a Family Group Decision Making Program meeting. It was agreed that a plan to accommodate petitioners needs would be formulated. However, petitioner left the Grand Avenue Center for Dignity before one was developed.
Petitioner missed scheduled drug testing in February, March, April, May and June 2006. Petitioner was not informing the social worker of her whereabouts or hospitalizations.
On March 30, 2006, the Department was ordered to evaluate the paternal aunt, Gabrielle B., as a possible placement and the Department was given the discretion to allow the aunt to be a monitor. However, the social worker could not evaluate aunt Gabrielle B. as a possible placement because over the prior two months, aunt Gabrielle B. had failed to provide a fingerprint live-scan or cooperate with the social worker in this regard. Petitioner was to be included in the Family Group Decision Making meeting.
On June 30, 2006, petitioner contacted the social worker. When petitioner was asked why the social worker had not heard from her, petitioner responded, "`I dont know." Petitioner provided the social worker with an incorrect address and inoperable telephone number. Petitioner had failed to drug test since the previous court date.
5. The 12-month and 18-month hearings.
On July 10, 2006, the dependency court received the 12-month (§ 366.21, subd. (f)) report. Aunt Gabrielle B. had not followed through with the live-scan. Petitioner had not visited J. H. in months. The foster mother continued to provide J. H. with excellent care and wanted to adopt him. Petitioners counsel stated that petitioner had completed a parenting class and a mommy-and-me class. Petitioners counsel reported that aunt Gabrielle B. had live-scanned on June 30, 2006, but her home had not been evaluated. The matter was continued to August 15, 2006, for a contested hearing.
On July 28, 2006, petitioner did not show up for a scheduled visit with J. H. Petitioner had missed 12 drug tests since February 2006.
On August 8, 2006, the social worker inspected aunt Gabrielle B.s home. Aunt Gabrielle B. revealed that as a minor she had a criminal history of assault with a knife. A May 2005 child abuse report matched aunt Gabrielle B.s name. Aunt Gabrielle B. had never met J. H., although she was willing to adopt him.
On August 11, 2006, DCFS filed a section 388 petition requesting reinstatement of monitored visitation for petitioner to assure J. H. was safe and because she was not drug testing or keeping the social worker informed. There was also a concern that petitioner was living with father.
On August 14, 2006, the Department applied ex parte for a change order because petitioner had contacted the social worker for the first time since the last court date and demanded an unmonitored visit with J. H. Petitioner had not been drug testing.
A contested 12-month review hearing was held on August 15, 2006. Petitioners counsel informed the court that petitioner was in the hospital. Petitioners counsel asked that the social worker be present for the contested hearing because counsel wanted to address whether the Department had provided reasonable reunification services efforts. Counsel was suggesting that the Department had failed to accommodate petitioners sickle cell disease. The juvenile court ordered the case workers service log, referred to as Title 20s, be provided and the matter was continued.
On September 7, 2006, the social worker reported that J. H. cried hysterically when he was visited by aunt Gabrielle B. While petitioner told the social worker that she was living by herself in an apartment, aunt Gabrielle B. disclosed petitioner was living with father. Mother stated that if she was hospitalized, aunt Gabrielle B. could be a back-up to care for J. H. However, petitioner did not know what would happen if aunt Gabrielle B. had to work.
The Title 20s were attached to the September 7, 2006, report. These and subsequent reports showed petitioner had visited J. H. four or five times in May 2005, once in July 2005, once in October 2005, once in November 2005, once in December 2005, and once in January 2006.
On September 7, 2006, the juvenile court continued the matter because petitioner was in the hospital. Petitioner was to have monitored visitation.
Petitioner was discharged from the hospital on September 28, 2006. A visit with J. H. was arranged for petitioner on October 21, 2006. Petitioner did not appear. Petitioner was back in the hospital on October 25, 2006.
The newly assigned social worker had difficulty locating petitioner. When petitioner was located, she was provided with a bus pass.
On October 26, 2006, petitioner left the hospital against medical advice. That day, her medical condition deteriorated such that she was taken from the courthouse by paramedics back to the hospital.
The contested section 366.22 permanent planning hearing was held on November 13, 2006. The juvenile court denied petitioners counsels continuance request based upon the fact that petitioner was in the hospital. The social worker, who had handled the case for the last six weeks, testified.
Petitioner testified by telephone from the hospital to the following: She had participated in domestic violence, self-esteem, parenting, life skills, drug abuse and alcohol counseling. She did not submit to drug tests because her medicines would cause her to test "dirty." She was allergic to morphine and thus was given Dilaudid and Demerol and other narcotic medicines. She did not use any illegal drugs in the past year and had only taken medicines prescribed for her. She had been in the hospital since November 9, 2006, as the result of another sickle cell crisis. She was hospitalized two times a month for the last six months, for a week or two each time. She knew when a crisis would start and would have at least 30 minutes to an hour to arrange care for J. H. Aunt Gabrielle B. was willing to care for J. H. At the beginning, she had been able to see J. H. frequently. However, she had only seen J. H. about three times in the last six months because after being discharged from the hospital she needed time to detox from the medicines. Stress was one of the triggers for sickle cell disease. The court proceeding was causing her stress, which would subside if J. H. were returned to her. When she was not in the hospital she was able to get around with a bus pass she received through the Department.
The evidence before the court showed that beginning June 10, 2005, until the time of the November 2006 hearing, petitioner was in the hospital at least 20 times, and in the emergency room 3 times. The hospital stays ranged from one day to two weeks. Ten of the visits were longer than a week.
During the November 13, 2006, hearing, petitioner requested additional reunification services in light of her disease. Minors counsel argued that J. H. had been in the foster home since he was nine days old and had had little contact with petitioner. Further, J. H. would not be returned to petitioner, even if six more months of reunification services were offered.
The juvenile court terminated services and set the matter for a section 366.26 hearing. In ruling, the juvenile court indicated it was satisfied petitioner went to the programs she claimed to have completed. However, the court expressed serious concerns that petitioner was using narcotics, supplementing with prescription medicines, and self-medicating. The court stated that petitioner had failed to comply with the case plan because she had not participated in individual counseling or submit to drug testing. Further, the Department had made reasonable efforts to return J. H. to petitioner. The juvenile court declined to continue reunification services stating they would not be helpful in that petitioners situation had deteriorated to the point that she was constantly in the hospital. The court concluded that petitioner had, in effect, become a stranger to J. H. The trial court rejected petitioners request that J. H. be placed with aunt Gabrielle B.
Additionally, the juvenile court granted the section 388 petition and restricted petitioner to monitored visits.
Petitioner filed a notice of intent to file writ petition. (Cal. Rules of Court, rule 8.450.)
The notice of intent to file writ petition was signed by petitioners counsel. Upon a subsequent motion, we waived the requirement that this document must be filed by the petitioner. (Cal. Rules of Court, rule 8.450(e)(3).)
DISCUSSION
1. There was substantial evidence that adequate reunification services were provided and there were no exceptional circumstances warranting an extension beyond 18 months.
Petitioner contends the Department did not provide adequate reunification services and, pointing primarily to In re Elizabeth R. (1995) 35 Cal.App.4th 1774, contends the juvenile court should have extended reunification services beyond 18 months. These contentions are not persuasive.
Reunification services are designed to address the problems which initially brought the case before the court. (In re Brittany S. (1993) 17 Cal.App.4th 1399; In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) Thus, services are to be tailored to the needs of the family. (In re Dino E., supra, at p. 1777; In re Monica C. (1995) 31 Cal.App.4th 296, 306; In re Christina L. (1992) 3 Cal.App.4th 404, 414.) This includes accommodating the special needs of disabled, institutionalized and incarcerated parents. (§ 361.5, subd. (e); In re Elizabeth R., supra, 35 Cal.App.4th at p. 1791; In re Victoria M. (1989) 207 Cal.App.3d 1317 [developmentally disabled natural parent entitled to services responsive to familys special needs].) The services provided must be formulated towards the goal of returning the children to their parents. (In re Christina L., supra, at p. 414; In re Jamie M. (1982) 134 Cal.App.3d 530, 545.)
Section 361.5, subdivision (e)(1) reads in part: "If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider [a number of specified factors]. Reunification services are subject to the applicable time limitations imposed in subdivision (a). . . ."
Balancing the rights of parents to reunify with their children, against the right of children to have permanency, the Legislature has determined that the permissible length of reunification services is 18 months. (§ 361.5; Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388; In re Dino E., supra, 6 Cal.App.4th at p. 1776.)
Section 361.5 reads in relevant part: "(a) [W]henever a child is removed from a parents or guardians custody, the juvenile court shall order the social worker to provide child welfare services to the child and the childs mother and statutorily presumed father or guardians. . . . [¶] . . . [¶] (2) For a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under the age of three years, court-ordered services shall not exceed a period of six months from the date the child entered foster care. [¶] . . . [¶] [C]ourt-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian if it can be shown, at the hearing held pursuant to subdivision (f) of Section 366.21, that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period. The court shall extend the time period only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or guardian within the extended time period or that reasonable services have not been provided to the parent or guardian. . . . ."
Some courts have held that in rare and exceptional circumstances reunification services can be extended beyond the 18 months. For example, in In re Dino E., supra, 6 Cal.App.4th 1768 extended reunification services were warranted when no reunification services had been provided to the father. In In re Daniel G. (1994) 25 Cal.App.4th 1205 additional services were to be provided because a reunification plan had not been implemented during most of the reunification period. (Id. at p. 1213.)
In In re Elizabeth R., supra, 35 Cal.App.4th 1774, a mothers mental illness required lengthy periods of confinement compromising her ability to participate in reunification services. Despite this obstacle, she had an impeccable record of visitation and efforts to comply with the reunification plan. (Id. at pp. 1777-1778.) Under these unusual circumstances, the appellate court held that the juvenile court could extend services beyond 18 months. (Id. at p. 1799.)
In that we are reviewing the juvenile courts decision at the section 366.26 hearing, we review the record to determine whether the record discloses substantial evidence supporting the juvenile courts finding that reasonable services were provided or offered. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 594.)
Here, the Department provided services appropriate for the circumstances. When the case first came to the Departments attention, the social worker tried to assist petitioner with living arrangements. The social worker set up random drug testing, contacted the center where petitioner was living to ensure petitioner was receiving the necessary services, and took many steps to monitor petitioners progress. The Department provided transportation assistance to enable her to attend the court ordered programs and to visit J. H. Thereafter, the social worker maintained contact with petitioner monthly, but there were numerous times when petitioner did not appear for schedule appointments, or could not be located because she was hospitalized or had not kept the social worker informed of her whereabouts.
Further, DCFS maintained monthly contact with J. H.s caretaker and tracked petitioners visits. The social worker investigated possible relative placements. The Department complied with the courts request for progress reports.
The Department tried to involve petitioner in a March 2006, meeting with Family Group Decision Making to discuss visitation and a contingency plan in the event J. H. was returned to her custody. However, petitioner was not present as she was hospitalized. Another meeting could not be arranged because petitioners whereabouts were not known.
The Department facilitated visitation between petitioner and J. H. when possible. At the beginning, petitioner visited J. H.
Later, however, the Department was stymied as it could not locate petitioner. Petitioner stopped drug testing and exerted little effort to see J. H. There were months when petitioner did not see J. H., even when petitioner was not in the hospital. This was not caused by the fact that there was a new social worker in the case. Rather, it was due to petitioners failure to communicate with the Department or to appear when appointments were made for her. Petitioner did not comply with the case plan. She did not drug test nor set up individual counseling. When petitioner was hospitalized, she did not have the means for caring for J. H. and she did not try and contact J. H. for long periods of time. She had only seen J. H. about three times in the prior six months. J. H. had been out of petitioners care almost from the time he was born. He had little contact with petitioner over the time of these proceedings. As the juvenile court found, petitioner had become a stranger to her child. Thus, unlike the mother in In re Elizabeth R., supra, 35 Cal.App.4th 1774, petitioners compliance with the reunification plan was not exemplary.
Petitioner suggests there was no substantial evidence to support the juvenile courts finding that she was using street drugs. However, the juvenile court could reach this conclusion because of petitioners background, the times that she tested positive for methadone, her unwillingness to submit to drug testing, and the evidence as to the amount of drugs she was ingesting. And further, this evidence also would support the juvenile courts conclusion that petitioner was abusing prescription drugs and self-medicating.
While petitioner contends she is entitled to additional services, she only suggests that the Department should have contacted her medical providers to determine whether the case plan could be tailored to ease petitioners anxiety and to conform to petitioners frequent hospitalizations. While these additional acts might have assisted petitioner, there are no signs she would have followed additional instructions. The juvenile court followed the suggestion of Dr. Kennedy and ordered petitioner to have individual counseling. However, petitioner did not comply with this order. Further, the social worker often did not have any idea where petitioner was living or if she was hospitalized. Thus, the social worker could not have contacted the medical providers during those hospitalizations. Nor was the social worker required to provide the best that might be provided in an ideal world. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
There is no question that petitioner suffers from a debilitating disease. However, given her lack of compliance with the case plan and the likelihood that she has been abusing drugs, there are no indications that further services would assist her in regaining custody of J. H. (In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068-1069; In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1798-1799.)
These were not exceptional circumstances warranting an extension of reunification services beyond 18 months.
2. The juvenile court did not err in concluding there was no appropriate relative placement.
Petitioner contends the juvenile court erred in failing to place J. H. with a relative. This contention is not persuasive.
Section 361.3 gives preferential consideration to placing the child with relatives. However, a juvenile court is not required to simply grant a relatives request for placement." (In re Luke L. (1996) 44 Cal.App.4th 670, 680.) Rather, section 361.3 lists factors DCFS must consider in deciding whether to recommend the placement of a child with a relative. In addition to these factors, the Department must consider whether the relative has established and maintained a relationship with the child. (§ 361.3, subd. (d).) Section 361.4, subdivision (b), requires the Department to conduct a criminal background of all persons "over the age of 18 years living in the home, and on any other person over the age of 18 years, . . . known to the placing entity who may have significant contact with the child . . . ."
Section 361.3 reads in part: "(a) In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. . . . [¶] . . . [¶] (c)(1) `Preferential consideration means that the relative seeking placement shall be the first placement to be considered and investigated."
Contrary to petitioners suggestions, the Department did not delay in assessing relatives with whom J. H. possibly could have been placed.
The Department assessed three relatives. Aunt Jocelyn was not a suitable placement because she lived in a single apartment with four children. Aunt Sheryl was not an appropriate placement because there were Section 8 housing restrictions that did not permit placement with her.
Aunt Gabrielle B. was not a suitable placement because she did not submit to a live-scan until July 2006. She had a criminal history of assault with a knife when she was a minor and a May 20, 2005, child abuse report history matched her name. This criminal history disqualified aunt Gabrielle B. (§§ 361.3, subd. (a), 361.4; Health & Saf. Code, § 1522.) Further, in August 2006, when aunt Gabrielle B. was interviewed about the potential placement, she had never seen or met J. H. When aunt Gabrielle B. finally met J. H. in August 2006, the child was fearful and clung to his foster mother, who had been caring for him since birth. There is nothing in the record to suggest an exemption should have been granted. (§ 361.4, subd. (d)(2); Health & Saf. Code, § 1522.)
The writ is denied.
DISPOSITION
The petition for extraordinary writ is denied.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.