Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJ07006258
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.
Victoria B. petitions for writ relief from an order terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing for her son, Tyrone T. We deny the petition.
Background
On February 22, 2007, police found Victoria B. (Mother) standing on MacArthur Boulevard in her pajamas in the rain, holding her infant child Tyrone T. (born in September 2006). She was yelling, she appeared delusional and irrational, she and the baby were soaking wet, and she had no supplies for the child. The police placed Mother on a psychiatric hold and placed the child in foster care. (Welf. & Inst. Code, §§ 5150, 305.)
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On February 26, 2007, the Alameda County Social Services Agency (Agency) filed a section 300 petition on behalf of Tyrone alleging (1) failure to protect due to both parents’ history of mental illness, substance abuse and domestic violence, and (2) abuse of a sibling based on the parents’ failure to reunify with Tyrone’s older brother, Tyler T. (born in March 2005). (§ 300, subds. (b), (j).) Mother had been placed in a psychiatric hospital when Tyler was detained. After receiving 12 months of services including drug treatment, counseling and parenting classes, she failed to reunify with Tyler and services were terminated in November 2006. The court terminated parental rights with respect to Tyler on March 1, 2007.
Tyrone was formally detained on February 27, 2007. At a March 13 jurisdictional hearing, Mother submitted on the written record and the court sustained the allegations.
In its initial disposition report dated March 28, 2007, the Agency recommended that reunification services be denied because the parents had been provided services in Tyler’s case and had failed to reunify with him. (§ 361.5, subd. (b)(11).) In a May 2 addendum, the Agency changed its position and recommended that reunification services be provided. “[T]he parents appear to be motivated to conduct themselves differently than in the past and are optimistic about their ability to parent and their ability to comply with the current case plan.” On April 3, Mother signed a case plan and agreed to participate in substance abuse treatment, drug testing, domestic violence classes and parenting classes. She also agreed to comply with a supervised regime of psychotropic medication and to obtain a psychological evaluation. On March 9, the Agency had referred Mother to a Highland Hospital outpatient program that provided substance abuse treatment, anger management and parenting classes. Mother enrolled in the program and was attending sessions. She was also receiving mental health treatment through Richmond Mental Health and taking psychotropic medication under medical supervision. The Agency had given Mother a referral for a psychological evaluation.
At the May 10, 2007 disposition hearing, the court found that reunification was in the child’s best interest, even though services could have been denied under section 361.5, subdivision (b). (§ 361.5, subd. (c).) The court ordered services for Mother and expressly advised her that, because Tyrone was under three years of age, services would not extend beyond six months from the date he entered foster care unless the court found at that time that there was a substantial probability he would be returned to her care by the 12-month hearing. The court advised Mother that if she failed to participate regularly in court-ordered treatment, a hearing to terminate her parental rights could be set at the six-month hearing. (§ 361.5, subd. (a).) The court set the six-month hearing for September 7.
A new social worker was assigned to the case on May 31, 2007. She left a message for Mother on June 15 or 18 and Mother returned the call June 20. Mother told the social worker she had been living in a shelter and had just moved in with her mother in Hayward. She said she was taking her medication and attending her monthly mental health appointments. She said Dr. Wang (or Wong) at the Richmond clinic had given her a psychological evaluation. She said she was attending the Highland Hospital substance abuse treatment sessions and participating in drug testing. However, she asked for a referral to a new program that would not conflict with her work schedule. The social worker immediately referred her to Terra Firma for substance abuse treatment, parenting classes and a domestic violence program.
Mother canceled a follow-up appointment with the social worker on June 27, 2007. On July 17, the social worker sent a certified letter to Mother at the Hayward address. The letter was returned as having an insufficient address. On July 30, the social worker spoke to Mother’s grandmother, who reported that Mother was living with her. The social worker sent a second certified letter to the grandmother’s address, asking Mother to attend an August 14 appointment. On August 2, Mother told the social worker she was moving and did not have a new address or a cell phone. She said she was attending Terra Firma and had enrolled in parenting and domestic violence classes. She agreed to meet with the social worker on August 8.
At the August 8, 2007 appointment, Mother complied with a hair follicle test, which is designed to assess drug exposure in the previous few months. She tested positive for cocaine. Mother reported that she was going to be terminated from the Terra Firma substance abuse program for poor attendance. On August 28, Terra Firma informed the social worker that Mother had attended only one drug education class in July and had not signed up for counseling. She had attended three domestic violence classes and three parenting classes in July and August. If she missed any more parenting classes, she would be terminated from that program.
On August 28, the social worker received documentation that Mother had not attended a medication or mental health appointment at the Richmond clinic since April. The social worker attempted to obtain a copy of Mother’s psychological evaluation from the clinic and was told no Dr. Wong or Wang worked there. She asked Mother several times for a phone number or some way to contact the doctor, but did not receive the information.
Also on August 28, the social worker received documentation that Mother last attended the Highland Hospital program on May 15 and was discharged on June 14. Mother told the social worker in August that she had not attended the program in late May and June because of conflicts with her work schedule. Mother reported in late August that she was working as a waitress at a hotel and living in a studio apartment. She regularly visited Tyrone twice a week for two hours at a time and she acted appropriately with him.
On August 29, 2007, the social worker recommended termination of services for Mother because she had not made significant progress with her case plan. A contested disposition hearing took place on October 10 and 12. Mother testified that she unilaterally stopped taking her psychotropic medication and stopped attending her mental health appointments when she started to work sometime between March and May. Dr. Wang had decreased the medication and had told Mother she intended to gradually take her off the medication once Mother’s life got back on track. When Mother unilaterally stopped taking the medication, she did not experience any symptoms suggesting she needed a psychiatric help. Regarding the psychological evaluation, Mother testified that Dr. Wang had evaluated her in 2005 and that she signed a release for the social worker to obtain a copy of that report.
Mother testified that she had never used cocaine. She speculated that the hair follicle test came back positive because she was living with her mother, who smoked crack in the home. She tested negative while in the Highland program in March and April and while in the Terra Firma program in late August, September and early October. She testified that during the intervening months she tested negative in on-the-job drug tests. Mother provided no information about the frequency or manner of those tests and no documentation of the test results. Mother admitted she had had a drug problem for five years, but said she only ever used marijuana. In connection with her older son’s dependency case, she had attended the Healthy Babies recovery program from April to July 2006, when she transferred to the Magnolia recovery program. She left the Magnolia program in October 2006 without graduating. She had never completed a drug treatment program.
As of the date of the hearing, Mother had attended about 11 of 52 weekly domestic violence classes and seven of 12 parenting classes. In the substance abuse treatment program, she had attended six of eight drug education classes, six of 20 weekly group counseling sessions and four individual counseling sessions. She did not state how many more individual counseling sessions she was expected to complete. She was willing to continue attending the Terra Firma programs and believed she could complete the programs in two months, with the exception of the year-long domestic violence classes. However, she could not pay for the programs without Agency support. Mother noted that she had received six additional months of services in her older child’s dependency case. She acknowledged, however, that the Agency had made it clear she had only six months to complete her case plan. She also acknowledged that she did not do much toward completing her case plan for a few months in the middle of the six-month period.
After taking the case under submission to study the record, the court terminated services for Mother. The court specifically found Mother’s denial of cocaine use to be not credible and noted that the cocaine use coincided with the period when Mother stopped participating in services. The court found by clear and convincing evidence that reasonable services had been provided and that Mother did not regularly participate in those services. The court found that Mother did not make a substantial effort and there was no reasonable probability the child would be returned to her by the 12-month hearing if services were extended. The court scheduled a section 366.26 hearing for February 7, 2008.
The court encouraged Mother to continue participating in services voluntarily by returning to the Highland program. If successful, she could file a section 388 petition seeking reinstatement of services and reunification efforts. In the statement of facts of her petition for writ relief, Mother writes with respect to these comments: “[T]he court seemed to think that the mother could complete the case plan in less than 6 more months, encouraging her and noting a 388 should be filed, while at almost the same time declaring the contrary.” There was no contradiction in the court’s ruling. The court concluded there was no reasonable probability that Tyrone would be returned to Mother’s care within the next six months. Once it made that finding (and the other findings discussed below), it was required to set the section 366.26 hearing and to terminate Mother’s services. (§§ 361.5, subd. (a)(2); 366.21, subds. (e), (h).) The no reasonable probability finding did not eliminate the possibility Mother could excel in her reunification efforts and successfully petition for a modification of the court’s order pursuant to section 388. The court’s comments were proper.
Discussion
Mother argues three essential findings by the trial court were not supported by substantial evidence: that Mother received reasonable services, that she did not make substantial progress on her case plan, and that there was not a substantial probability Tyrone could be returned to her care within the next six months.
We review a juvenile court’s findings for substantial evidence. (In re Katrina C. (1988) 201 Cal. App.3d 540, 547.) All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in favor of upholding the finding. (Ibid.)
I. Reasonable Services
Ordinarily, for a child like Tyrone who was under the age of three years on the date of his initial removal from the parents’ custody, court-ordered services may not exceed a period of six months from the date the child entered foster care. (§ 361.5, subd. (a)(2).) However, if the court finds at the six-month hearing that reasonable services were not provided to a parent, the court must continue the case for a 12-month permanency hearing. (§ 366.21, subd. (e).) Here, the court found that reasonable services had been provided.
The trial court’s finding is supported by substantial evidence. As the court stated when it issued its ruling, the Agency twice offered reasonable services and each time Mother chose not to attend regularly. Beginning shortly after Tyrone’s removal, the Agency referred Mother to Highland Hospital for substance abuse treatment and parenting classes, learned from Mother that she was receiving mental health treatment and was on a supervised medication regime at the Richmond clinic, and gave Mother a referral for a psychological evaluation. As of the May 10, 2007 disposition hearing, when Mother was formally granted services, Mother was attending the Highland program, taking her medication and keeping her appointments at the Richmond clinic. Mother faults the Agency for a lapse in contact and supervision between the May 10 hearing and her June 20 conversation with the new social worker. That lapse in contact, however, did not deprive Mother of any services. She was fully participating in services as of May 10 and those services would have continued uninterrupted except for her unilateral decision to stop them shortly after the disposition hearing. Mother claims she withdrew from the Highland program because of conflicts with her work schedule, but she did not ask the Agency for a new referral until June 20. On that date, the Agency immediately referred Mother to Terra Firma. On August 8, the Agency learned of Mother’s drug relapse. Because Mother was already enrolled in the Terra Firma substance abuse treatment program, which included drug testing, no other specific response by the Agency was necessary. In late August, the Agency learned that Mother had stopped taking her medication and attending her mental health appointments back in April, had dropped out of the Highland program in mid-May, and was not regularly participating in the Terra Firma programs. By that time, the six-month period was about to expire.
Mother testified that she enrolled in the Highland program on her own after hearing about it at a shelter where she was staying. The Highland discharge summary states that Mother was referred by the Child Protective Services Department, a fact the trial court specifically noted for the record. We construe the court’s comment as a finding that the Agency referred Mother to the Highland program. That finding is supported by substantial evidence.
Mother argues services were unreasonable because they lasted four rather than six months. In fact, she argues she effectively received only two months of services following her June 20, 2007 conversation with the new social worker. Mother’s argument fails for two reasons. First, Mother discusses only the period between the May 10 disposition hearing and the six-month review hearing that was scheduled for September 7. As just discussed, Mother received services from early March, shortly after Tyrone was removed from her care. The Agency referred Mother to the Highland Hospital program on or before March 9. As of the May 10 hearing, she had attended 33 sessions at Highland. She had attended two appointments at the Richmond clinic and was on a supervised medication regime. Mother’s services would have continued uninterrupted had she not decided to unilaterally terminate them and would have lasted a full six months.
Second, for children of Tyrone’s age, the dependency scheme does not provide for six months of reunification services. Rather, it authorizes services for six months from the date the child entered foster care. (§ 361.5, subd. (a)(2).) The date of entering foster care is the earlier of the date of the jurisdictional hearing or 60 days after the child’s initial removal. (§ 361.5, subd. (a).) Tyrone was initially removed on February 22, 2007 and the jurisdictional hearing took place on March 13. The six-month reunification period began on March 13 and expired on about September 13. When the court first granted reunification services on May 10, it expressly advised Mother that services could be terminated at the six-month review hearing, which was scheduled for September 7. Mother received services through the October 12 six-month hearing, well beyond the statutory time period.
II. Substantial Progress on Case Plan
At the six-month review hearing for a child of Tyrone’s age, the court may schedule a section 366.26 hearing if it finds by clear and convincing evidence that the parent failed to participate regularly and make substantial progress in a court-ordered treatment plan. (§ 366.21, subd. (e).) Here, the court found by clear and convincing evidence that Mother did not regularly participate in court-ordered treatment and it found that Mother did not make a substantial effort to complete her case plan. It set the section 366.26 hearing and terminated services.
Mother does not challenge the court’s finding that she did not regularly participate in services. That finding alone supported the decision to set a 366.26 hearing and terminate services. (§ 366.21, subd. (e).)
The court’s finding that Mother failed to make substantial progress on her case plan is also supported by substantial evidence. Despite an early March referral to substance abuse treatment and parenting classes, in late August Mother still had to complete 48 weeks of domestic violence classes, nine weeks of parenting classes, seven weeks of drug education classes, and an entire course of drug counseling sessions. As of the October 10 evidentiary hearing, Mother still had to complete 41 weeks of domestic violence classes, five weeks of parenting classes, 14 weeks of group counseling sessions and an undefined number of individual counseling sessions. She still had not obtained a psychological evaluation. Moreover, the court found that she had used cocaine in violation of her case plan and had falsely denied the use on the witness stand, calling into question her commitment to recovery.
Mother argues it was impossible to complete her case plan in a six-month period, referring specifically to the year-long domestic violence program. The social worker testified that she assessed Mother’s progress on the case plan based on her regularity of participation, not whether she completed all of her required courses of treatment. Similarly, the court found that Mother failed to regularly participate or make substantial progress on her case plan, not that Mother failed to complete the case plan. Mother also argues she only had four months to complete the plan and the social worker did little to assist her. We have already rejected these arguments.
Finally, Mother argues her lapses were not material and thus were not sufficient to support the finding of a lack of substantial progress on her case plan. She cites Rita L. v. Superior Court, but the case is easily distinguishable. (In re Rita L. v. Superior Court (2005) 128 Cal. App.4th 495.) The mother in that case was “a veritable superstar of the reunification process,” having successfully completed a residential drug treatment program and parenting program and having consistently participated in and tested clean in drug tests. (Id. at pp. 499, 505.) In the midst of a multiple-day 12-month review hearing, the mother took her daughter’s prescription Tylenol with codeine to treat a headache, which was considered a drug relapse. (Id. at p. 501.) Although the mother promptly reported the incident to the social worker and appeared for her regular drug test, the court terminated services based solely on that incident. (Id. at pp. 501, 503.) The appellate court reversed, observing that not all relapses are created equal. (Id. at p. 505.) The mother’s transgression was minor, it did not escalate into more significant drug use, and it did not indicate her child would have been in any danger had he been in the mother’s custody at the time. (Id. at p. 498.) Here, Mother’s transgressions were multiple and significant. She twice failed to regularly participate in services provided by the Agency, she unilaterally stopped her psychotropic medication and mental health care, and she used cocaine.
III. Probability of Child’s Return to Mother’s Custody
At the six-month review hearing for a child of Tyrone’s age, the court must continue the case for a 12-month permanency hearing if it finds there is a substantial probability the child may be returned to the parent’s custody within six months. (§ 366.21, subd. (e).) Here, the court found there was no reasonable probability of return.
The court’s finding is supported by substantial evidence. Shortly after Tyrone’s removal, Mother took steps that suggested a commitment to reunifying with her child. She enrolled in and attended multiple sessions at the Highland program and she obtained mental health care and psychotropic medication. Almost immediately after the disposition hearing, however, she unilaterally discontinued these efforts and she failed to follow up on the referral for a psychological evaluation. In the following weeks, she used cocaine and failed to keep the social worker apprised of her address. After the social worker referred her to Terra Firma, she failed to regularly participate in the program. She had never completed a drug treatment program, despite three enrollments before the Terra Firma referral, and she had failed to reunify with her older child despite receiving 12 months of services. Although Mother attended several Terra Firma treatment sessions between late August and the October 10 review hearing, the court could reasonably doubt whether this renewed commitment to treatment would continue.
Arguing there was a substantial probability that Tyrone could be returned within six months, Mother again contends she was given less than six months to complete the plan and that she received little if any help from the Agency. We have already rejected these arguments.
Mother also argues her cessation of the Highland program due to work conflicts was a relatively minor relapse. In the trial court, Mother’s counsel argued that “it could be inferred” that in May and June Mother was trying to work out a way to continue working on the case plan while she held onto her job. However, he did not elicit testimony to that effect when Mother was on the witness stand. The court found she used cocaine during this period and her housing situation was unstable. The court could reasonably conclude that Mother substantially abandoned her reunification efforts during this period and that this abandonment boded ill for her potential for reunification in the ensuing six months.
Disposition
The petition is denied.
We concur. JONES, P.J., SIMONS, J.