Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. 509438 Ann Q. Ameral, Judge.
Laloni A. Montgomery, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Mandy H. (appellant) challenges the juvenile court’s dispositional orders finding reasonable reunification services had been provided and removing the minor Robert V. from her care. She also contends the trial court abused its discretion in fashioning the visitation order. We find no error and affirm.
FACTUAL AND PROCEDURAL HISTORY
Robert was first removed from appellant’s care shortly after his birth in August of 2006 due to appellant’s drug use during her pregnancy with him. He was made a dependent of the juvenile court the following month. At the time the Welfare and Institutions Code section 300 petition was filed by the Stanislaus County Community Services Agency (agency), appellant’s three older children (half siblings to Robert) were dependents of the juvenile court due to a lengthy history of domestic violence, physical abuse, and substance abuse on the part of appellant and her partners, the children’s fathers. Appellant had been offered services aimed at reunification with her three older children but, other than a one-day stay at an inpatient drug treatment center in June of 2006, she had not availed herself of the services.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Not until December of 2006, some six weeks before the section 366.21, subdivision (e) hearing, did appellant begin to resolve the problems that led to the children’s dependencies. Even then, she only sporadically visited the children, causing the agency to initially recommend the termination of reunification services for two of the children. The agency subsequently changed its recommendation when it observed commitment on appellant’s part.
During this dependency period, appellant completed inpatient treatment, sought and accepted agency assistance in clean and sober living, and began to resolve her domestic violence issues. Custody of Robert and one daughter, Emma, was restored to appellant in July of 2007, and Robert’s other siblings were returned to the care of their father. Appellant continued to make progress with the provision of services and moved into her own residence in September of 2007. Dependency was dismissed in January of 2008.
In August of 2008, appellant left Robert in the care of a paternal relative, Amy V., and returned Emma to her former foster parents because appellant was homeless and living on the streets. In January of 2009, Amy V. petitioned for legal guardianship of Robert, but an investigation revealed that Amy had been arrested in November of 2008 for being drunk in public. While in custody, she attempted to kick out the window of the squad car, stated she wanted to kill herself, attempted to light herself on fire with a lighter, and choked herself with her stockings. She was also found to be in possession of cocaine. The guardianship petition was subsequently denied.
During this same time period, appellant became incarcerated, first in Nevada and then in Stanislaus County, on charges relating to stolen property. She was slated to remain in jail until May of 2010. By November of 2009, appellant had not seen Robert for nine months.
On November 4, 2009, the agency filed a second section 300 petition on Robert’s behalf, while Emma’s former foster parents obtained guardianship of her. Robert was detained and the juvenile court determined that Robert was a minor described by section 300, subdivisions (b), (g), and (j), and again made a dependent of the juvenile court. Appellant was offered reunification services; Robert’s father was not. Appellant was ordered to participate, inter alia, in a substance abuse assessment and to follow recommended treatment, and to submit to random drug testing.
Appellant continued to deny that drug use was an issue for her. She attributed her homelessness to “conflicts with her landlord.” She admitted frequent alcohol use but denied drug use, although she acknowledged that she could benefit from drug treatment.
In the report prepared in anticipation of the disposition hearing, the social worker stated that appellant was participating in services while incarcerated at the public safety center (Center). She was participating in a vocational training program for welding and indicated her intent to participate in an upcoming parenting education program. According to appellant, she was also attending “AA/NA meetings” as frequently as they were available at the Center.
Robert visited appellant at the Center in November of 2009, but the rules of the facility changed due to health concerns, and children under the age of 16 were no longer allowed to visit. Appellant was encouraged to send letters to Robert until the restriction was lifted.
By the time of the six-month section 366.21, subdivision (e) status review hearing in May of 2010, appellant had been released from the Center early and was enrolled in the alternative work program (AWP) to complete her sentence. According to appellant, she had not begun any of her reunification services because she was required to attend AWP. Appellant rebuffed requests for a drug test, claiming not to have an identification card.
The social worker opined that appellant’s entire focus was on completing her AWP rather than engaging in her case plan. In fact, although she was released at the end of March, she did not request a visit with Robert until the end of April, which was subsequently scheduled after the social worker’s report was submitted. The social worker recommended that Robert remain in placement and that the court find that, although reasonable services had been offered appellant, she made only limited attempts to avail herself of the services. The current plan had allowed for a minimum of two visits per month, but at that point, appellant had seen Robert, who was not yet four years old, only once in the prior 18 to 24 months.
Robert’s counsel subsequently filed a section 388 petition asking that the case plan be modified because Robert was having difficulty after two visits with appellant. A hearing on the petition was scheduled to coincide with the contested section 366.21, subdivision (e) status review hearing.
At the combined contested hearing in June of 2010, Robert’s caregivers testified that Robert had been in their care since February of 2010. Since then, Robert had been easily toilet trained, slept through the night without bed wetting, and did not have behavioral problems until visits with appellant began. Although four visits were scheduled, May 4 and 18 and June 1 and 18, only the first two occurred because appellant failed to show for the other two. After the two visits which did take place, Robert hit other children, broke toys, wet the bed, and woke up crying during the night. While in the caregivers’ home, Robert never asked about appellant.
Appellant testified that she was unaware of one of the visits and that another visit was rescheduled. She blamed the social worker for failing to confirm the date of the rescheduled visit. She testified that, since her release from custody, she attended AA/NA meetings “a couple days a week” until she met with the social worker in May and was told she was supposed to attend AA/NA meetings daily. Although she claimed to have complied with this requirement, she was unable to provide proof of attendance. Appellant entered a clean and sober living facility only three days before the hearing, claiming she had to finish AWP first and did not know she was supposed to have entered earlier. Although she completed a parenting class while incarcerated, she admitted that she had not attended a substance abuse treatment program and had taken no steps to enroll in one.
Social worker Kathleen Grundy testified that she was assigned appellant’s case in January of 2010 and, as of March of 2010, when she first spoke to appellant, all services appellant could access while incarcerated were already in place. Appellant told Grundy she was going to be released in a few days, and Grundy advised appellant to contact her immediately upon her release.
Appellant met with Grundy a week after her release. Appellant told Grundy that she had to complete AWP, which, according to appellant, was from 8:00 a.m. to 5:00 p.m. each day, although Grundy later learned that AWP in fact ended at 2:00 p.m. each day. Because she was in AWP and claimed she could not attend a drug treatment program, appellant was instead required to attend daily AA/NA meetings. Both appellant’s extensive past, which included failed drug treatment, and her present behavior, including her resistance to drug testing, caused Grundy concern. Grundy articulated numerous avoidance techniques employed by appellant, which included claims that she could not drug test because she lost her ID, that she did not get the message to drug test because her phone got wet and didn’t work, her attendance at two drug tests that were not considered random, and her failure to bring proof of her AA/NA attendance.
Grundy twice told appellant that she needed to attend First Step drug treatment. When appellant stated that she was not able to enroll in the drug treatment program until she completed AWP, Grundy informed her that she would have to do so upon completion of AWP. Appellant never voiced any confusion to Grundy about this part of the case plan.
Grundy testified that, contrary to what appellant testified, appellant had not requested a visit with Robert during her first meeting after release. Grundy testified that she purposefully did not bring up the issue of visitation with appellant due to her limited contact with the child to that point. By waiting for appellant to request a visit, Grundy stated she was gauging appellant’s commitment to Robert. When appellant did request a visit, Grundy set one up immediately and scheduled them weekly thereafter. When Grundy reminded appellant about the scheduled visit in June, appellant called and left a message the day before stating she needed to reschedule, but appellant missed the rescheduled visit. Appellant never indicated to Grundy that she was confused as to the timing of the visits.
Grundy observed two visits between appellant and Robert and found Robert happy to see appellant, and their interaction was appropriate until the end of the visit, when Robert began acting out.
Social worker Erin Webster, who had spoken to appellant while she was at the Center, testified that appellant had been informed about the availability of parenting programs and substance abuse treatment programs at the Center and was encouraged to participate in them. But appellant seemed more interested in her involvement in the vocational welding program. Over the various appointments Webster had with appellant, appellant never indicated she was having any difficulty in participating in the various programs available to her.
At the close of testimony, appellant’s counsel asked that Robert be returned to appellant’s custody, but gave no explanation as to why appellant had made no inroads in addressing her substance abuse issues. She also argued that reasonable services were not provided, specifically because appellant had not had face-to-face contact with the social worker during February of 2010. She also complained that the social worker had not pushed appellant to request visits with Robert sooner or more often, and claimed that the agency inappropriately delegated the responsibility to appellant of determining what programs were available to her at the Center.
The juvenile court noted its concern with appellant’s limited contact with Robert for 13 months and found that it was her substance abuse and the associated incarcerations that caused these lapses. The court found that although appellant claimed to be clean and sober for 14 months, her untreated substance abuse issues that existed outside of a custodial environment caused a substantial risk of detriment to Robert if he were returned to appellant’s custody. The court found appellant’s conduct after her release from jail worrisome, particularly her inability to provide proof of attendance at AA/NA meetings and her failure to drug test.
The court specifically found that the services available to appellant while she was incarcerated were appropriate. It also noted that, because she had completed the AWP, she could now devote all of her time and energy toward reunification. The court found that the failure to attend various visits with Robert was of appellant’s own doing.
Appellant’s case plan was modified to require parent/child and one-on-one counseling between appellant and Robert to address the minor’s difficulties in contacts with appellant. The court denied appellant’s request for overnight visits and instead set visits at two hours, once a week. The court cautioned appellant to consistently attend the visits. The social worker was given discretion to increase the number of visits. Given the modification, the court determined that the section 388 petition was moot.
DISCUSSION
1. Reunification Services
Appellant contends that the agency failed to offer or provide her reasonable services while she was incarcerated to overcome the problems that led to the removal of Robert from her custody; that the agency failed to maintain reasonable contact with appellant; and that the agency failed to assist appellant where compliance proved difficult. We disagree.
Preservation of families is the first priority of the child dependency laws. (In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1112.) When a child is removed from the parents’ custody, the juvenile court is required to order that child welfare services be provided to the parents. (§ 361.5, subd. (a).) The reunification plan and services must be tailored to serve the particular needs of the parents and designed to eliminate the condition that led to the child’s removal from their custody. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010-1011.) If the court determines at the six-month review hearing that a child who has been in out-of-home placement will not be returned to his or her parent, it “shall determine whether reasonable services that were designed to aid the parent … in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent ….” (§ 366.21, subd. (e), par. 8.) These reunification services “implement ‘the law’s strong preference for maintaining the family relationships if at all possible.’ [Citation.]” (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.)
In providing reunification services, the supervising agency must identify the problems leading to the loss of custody, offer services designed to remedy those problems, maintain reasonable contact with the parents during the course of the service plan, and make reasonable efforts to assist the parents in areas where compliance proves difficult. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 793-794.) All that is required, however, are reasonable services. “In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. 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.)
The applicable standard of review is sufficiency of the evidence. (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625-626; In re Misako R., supra, 2 Cal.App.4th at p. 545.) If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472.)
The primary reason for Robert’s dependency was appellant’s illegal drug use. The services offered appellant were designed to overcome this problem. Erin Webster, the social worker who authored the case plan for appellant at the dispositional hearing, testified that the plan required appellant to participate in a substance abuse assessment and to participate in random drug testing. Webster did not specifically inquire of services available to appellant at the Center because she was aware, through the course of her work, what types of services were normally available there. According to Webster, appellant was housed in the minimum security section of the Center, and Webster understood that parenting, NA/AA meetings, and drug and alcohol treatment were all available to those in that section of the Center on a “rotational basis.” Webster met with appellant at the Center and encouraged her to participate in programs available to her, including parenting and drug treatment. Appellant voiced no question to Webster about what programs were available to her. When appellant told Webster that she was participating in the vocational welding program, Webster encouraged appellant to participate in the parenting or drug treatment program in lieu of the welding program.
Social worker Kathleen Grundy was assigned appellant’s case after Webster in January of 2010 and first spoke to appellant in March of 2010. At that point, all services that appellant could access while she was in the Center were already in place. When appellant was released she contacted Grundy, who advised her that she needed to complete drug treatment. Grundy provided her with a person to contact for an assessment for substance abuse treatment. But appellant wished to first complete AWP. Grundy then informed appellant that she would need to attend daily AA/NA meetings, but appellant claimed not to know that the requirement was daily and she also failed to provide any type of proof that she was attending meetings. And despite the fact that Grundy required appellant to random drug test and to provide proof of AA/NA attendance, she failed to do so. Grundy also told appellant that she needed to enroll in a drug treatment program as soon as she completed AWP. Although appellant entered a clean and sober living facility three days prior to the hearing, she had done nothing to begin drug treatment.
So while appellant acknowledged both that she had a drug problem that needed treatment and that the lack of treatment was the main barrier for reunification, she took no affirmative steps to alleviate the problem even though she was offered services to do so. Reunification services
“‘are voluntary, and cannot be forced on an unwilling or indifferent parent. [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 makes another stab at compliance.’” (In re Christina L. (1992) 3 Cal.App.4th 404, 414-415.)
We also reject appellant’s claim that the agency failed to maintain reasonable contact with her and did not assist her where compliance proved difficult. Webster saw appellant three times over the course of three months while appellant was at the Center. When the case was transferred to Grundy in January, Grundy contacted appellant at the Center in March. Upon appellant’s release, Grundy met with appellant regularly and had numerous telephone contacts with her. While not exemplary, the agency maintained reasonable contact with appellant.
Nor is there any evidence in the record that appellant needed additional assistance “where compliance proved difficult.” Both Webster and Grundy testified that appellant never indicated to them that she did not understand the requirements of the reunification plan. In fact, despite being counseled on a number of occasions regarding the best path to complete the plan, appellant insisted on her own path.
The record supports the findings that the agency made reasonable efforts, including efforts with respect to drug treatment, and that reasonable services were provided to appellant.
2. Detriment Findings
Appellant contends that the juvenile court should have returned Robert to her custody at the six-month review hearing because substantial evidence does not support the court’s findings of detriment to Robert if he were returned home. Specifically, appellant contends she complied with all aspects of her case plan. We disagree.
Whether a dependent child should be returned to the care of the parent at the six-month review hearing is governed by section 366.21, subdivision (e). That statute states, in pertinent part:
“[T]he court shall order the return of the child to the physical custody of his or her parent … unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent … would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.…The failure of the parent … to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (§ 366.21, subd. (e).)
Review of the findings made at a dependency review hearing is limited to whether those findings are supported by substantial evidence. (Robert L. v. Superior Court, supra, 45 Cal.App.4th at p. 625.)
Appellant’s case listed the following objectives:
“1. Stay sober and show your ability to live free from alcohol dependency. [¶] 2. Stay free from illegal drugs and show your ability to live free from drug dependency. Comply with all required drug tests. [¶] 3. Do not break the law. Avoid arrests and convictions. [¶] 4. Obtain and maintain a stable and suitable residence for yourself and your child(ren). [¶] 5. Pay attention to and monitor your child(ren)’s health, safety, and well-being. [¶] 6. Consistently, appropriately and adequately parent your child(ren).” (Boldface omitted.)
Appellant was also required to complete a substance abuse assessment and follow all recommendations for ongoing assessment or treatment and submit to random drug testing as requested by the social worker.
Appellant contends that the evidence demonstrates that she “did in fact comply with all aspects of this case plan.” But the evidence suggests otherwise. While appellant may have been clean and sober during her incarceration when drugs were not available, she presented no evidence that she had addressed her substance abuse by attending any substance abuse classes or treatment while at the Center. Following her release, apart from the fact that she had entered a clean and sober facility three days before the hearing, she had not begun any drug treatment. She was encouraged to daily attend NA/AA meetings both at the Center and after she was released, but failed to provide any proof of attendance. She made excuses for failing to drug test. As for her relationship with Robert, she did not request visits until a month after her release, nor did she attend all of the visits available to her.
Failure to comply with a reunification services plan supports a detriment finding. (Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 398, disapproved on other grounds in Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 848.) And while it does not logically follow that compliance with a reunification plan precludes a detriment finding, “[c]ompliance with the reunification plan is certainly a pertinent consideration …, however, it is not the sole concern before the dependency court judge. [Citations.]” (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704.) “[T]he court must also consider progress the parent has made towards eliminating the conditions leading to the children’s placement out of home.” (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)
Here, although appellant may have been in a clean and sober facility and claimed to be drug-free, she had not yet completed the entire case plan and had not yet adequately addressed the cause of the dependency, namely, her drug dependency, which ultimately led to her abandonment of Robert. Substantial evidence in the record supports the juvenile court’s finding that returning Robert to appellant at this point would be detrimental to him.
3. Visitation Order
Finally, appellant contends that the court abused its discretion in denying her request for overnight visits with Robert. We disagree.
In a dependency proceeding, the juvenile court has the power and responsibility to regulate and define a parent’s right to visit his or her children who have been removed from parental custody. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373; In re Jennifer G. (1990) 221 Cal.App.3d 752, 756-757.)
“The definition of such a right necessarily involves a balancing of the interests of the parent in visitation with the best interests of the child. In balancing these interests, the court in the exercise of judicial discretion should determine whether there should be any right to visitation and, if so, the frequency and length of visitation. The court may … impose any other conditions or requirements to further define the right to visitation in light of the particular circumstances of the case before it.” (In re Jennifer G., supra, at p. 757.)
Because the nature, frequency, and length of visitation are matters within the sound discretion of the juvenile court, the court’s visitation orders will not be disturbed on appeal unless an abuse of discretion is clearly established. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The appropriate test for abuse of discretion is whether the court exceeded the bounds of reason. (Id. at pp. 318-319.) Here, the court did not exceed the bounds of reason in denying appellant’s request for overnight visitation.
As our statement of facts shows, at the time of the six-month review hearing, appellant had had only three visits with Robert in a 14-month period: once at the Center in November of 2009 and on May 4 and 18, 2010. Lack of visits was partly due to the restriction at the Center, but after appellant’s release, she delayed a request for visits. When visits were scheduled, she had the opportunity to visit with Robert on four occasions, but took advantage of only two. Appellant was allegedly focused on completing AWP instead. The juvenile court specifically found that appellant was not credible when she claimed not to have known about the visits that she missed.
In addition, Grundy and Robert’s caretakers testified that Robert was having difficulty with his visits with appellant. After the visits, Robert’s behavior regressed and he wet the bed, hit other children, and broke toys. Appellant herself acknowledged that Robert displayed anger at the conclusion of the visits. And, as discussed earlier at length, appellant had still not addressed her substance abuse, which had led to her difficulty in raising Robert to begin with.
At the review hearing, when appellant requested that the juvenile court increase visitation with Robert to include overnight visits, the juvenile court declined to do so, stating, “At this point … I want to start out a little bit on the slower side, because I want to make sure that mom is going to be consistent with the visits.… [¶] … [¶] … I’m not going to do overnights right now, because I want to make sure mother’s entrenched in a substance abuse treatment program.” The court was presented with substantial, if not overwhelming, evidence that appellant was not yet ready for overnight visits, and its visitation order was not an abuse of discretion.
DISPOSITION
The orders issued at the contested six-month hearing are affirmed.
WE CONCUR: LEVY, Acting P.J., KANE, J.