Opinion
B236829
01-17-2012
J.D., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Los Angeles Dependency Lawyers, Inc., Law Office of Marlene Furth, Danielle Butler Vappie and Diane Nicola for Petitioner. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Peter Ferrera, Senior Deputy County Counsel, for Real Party in Interest. Children's Law Center of Los Angeles, CLC 2, and Charles Aghoian for Minor.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. CK81267)
ORIGINAL PROCEEDING; Petition for extraordinary writ. Rudolph A. Diaz, Judge. Petition for extraordinary writ denied.
Los Angeles Dependency Lawyers, Inc., Law Office of Marlene Furth, Danielle Butler Vappie and Diane Nicola for Petitioner.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Peter Ferrera, Senior Deputy County Counsel, for Real Party in Interest.
Children's Law Center of Los Angeles, CLC 2, and Charles Aghoian for Minor.
J.D. (mother) has filed a petition for extraordinary writ (Cal. Rules of Court, rule 8.452) challenging an order of the juvenile court terminating reunification services with her son Joshua, and setting a hearing pursuant to Welfare and Institutions Code section 366.26. Mother contends the evidence presented at the hearing below was insufficient to support the juvenile court's finding that Joshua could not safely be returned to her custody. We find that substantial evidence supports the court's order. Accordingly, we deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
Joshua was born eight weeks premature in June 2009. While he was in the hospital, mother received instruction at the hospital on how to care for Joshua, including CPR training and how to operate the apnea monitor Joshua would need upon his release. Hospital personnel were concerned that mother would not be able to care for Joshua because she appeared to be developmentally delayed, had problems feeding Joshua, and had not fully complied with the training. Hospital personnel referred the matter to Los Angeles County Department of Children and Family Services (DCFS) on August 22, 2009. DCFS placed a "hospital hold" on Joshua and he was discharged to out-of-home care on September 10, 2009.
On October 2, 2009, mother attended a DCFS "Team Decision Making" (TDM) meeting and agreed to participate in voluntary reunification services. DCFS provided mother with case management services, bus passes, assistance in completing the general relief application process, and referrals for substance abuse and parenting programs. Mother also had the assistance of a Health Services Aide (HSA), who helped her with transportation and monitoring visits with Joshua. The HSA reported that mother had trouble performing even the most basic child care tasks such as holding the baby properly, feeding, diapering, and using a car seat. Mother was also evasive about her living arrangements.
Mother had been convicted of misdemeanor driving under the influence (DUI) in 2007 and had not yet enrolled in a court-ordered substance abuse program.
At the end of six months, mother had "not complied with designated services to alleviate current concerns." DCFS cited mother's "questionable mental capacity, an outstanding criminal DUI, lack of parenting skills, inadequate bonding, and unstable living arrangement." DCFS filed a section 300 petition on February 22, 2010. The only allegation relating to mother was her DUI and alleged history of alcohol abuse. DCFS filed a First Amended Petition (later withdrawn) on April 16, 2010.
On May 3, 2010, DCFS filed a Second Amended Petition which added the allegation that mother "has displayed impaired intellectual functioning and mental & cognitive deficiencies which renders [sic] the mother incapable of providing regular care and supervision of a special needs child as demonstrated by the child being in the high risk clinic and receiving regional center services. The mother's inability to care for the child endangers the child's physical and emotional health and safety, placing the child at substantial risk of physical and emotional harm, damage and danger."
On October 1, 2010, the juvenile court sustained the Second Amended Petition, but ordered additional reunification services and a psychological evaluation for mother. We affirmed the court's disposition order on September 26, 2011.
The juvenile court appointed the USC Institute of Psychiatry and Law to evaluate mother pursuant to Evidence Code section 730.
Dr. Reba-Harrelson evaluated mother at the Institute "for a period of approximately three hours" on November 12, 2010. At the time of the evaluation, mother was unemployed, supporting herself on welfare and food stamps, and living in her car. In addition to the substance abuse and parenting programs she had already completed, mother was enrolled in a program called "People for Progress" to assist her in finding housing. Mother also participated in the group's "Mommy and Me" class and was taking Spanish. Mother stated she had learned a considerable amount from her parenting classes, and the classes helped her keep her spirits up. Mother displayed "great affection" when describing Joshua and said that her thrice per week visitation with him was not enough. Mother said she would be able to obtain food and diapers through community resources, and was "currently working on housing" so Joshua would not be in a shelter. Dr. Reba-Harrelson concluded that, contingent upon mother's continued sobriety, mother was mentally capable of parenting her child. Dr. Reba-Harrelson recommended that Joshua remain with his foster mother until mother was able to provide him with stable food, clothing and shelter.
Responding to the court's query of what services mother required for successful reunification with Joshua, Dr. Reba-Harrelson recommended an array of services, including suitable housing, "continued means for transportation, such as bus passes," services through the WIC program, continued career counseling, individual and group therapy to address a variety of issues, and additional parenting classes.
The WIC "program provides food, health care referrals, and nutrition education for low-income women and their children up to age five."
In a status report dated April 4, 2011, DCFS stated that Joshua was meeting developmental milestones on target and was "starting to bond" with mother, who visited him twice per week. Joshua's caregiver reported that mother's interactions with Joshua while visiting were "limited." Mother held Joshua in her arms "while she's on the phone texting." Joshua would run and play around the house, but mother would not follow him around. Mother did not take the initiative to feed Joshua or change his diaper. The caregiver prompted mother, but had not been successful. The caregiver expressed the view that Joshua did not have a "mother/son attachment" towards mother.
Attempts by DCFS to secure appropriate housing for mother were problematic due to mother's lack of cooperation. In March 2011, CSW Lori Le John referred mother to a program called Mini Twelve Steps, but mother stayed only three days. Mother was approved to participate in the Homeless Outreach Program in Los Angeles, but a counselor at the program said mother did not stay in contact with him. Mother claimed to have rented an apartment in Los Angeles, but said she did not move in because the landlord changed her mind and wanted mother to pay more rent. Mother acknowledged in writing that DCFS had given her referrals for free or low-cost housing.
In an interim review report dated May 16, 2011, Ms. Le John said that mother was still homeless and had told Ms. Le John she would have to have her court-ordered individual counseling sessions at Starbucks. Mother still had not obtained suitable housing by the time of a court hearing on June 16, 2011, nor had she begun individual counseling sessions.
On June 22, 2011, Ms. Le John met with mother at a Starbucks and gave her referrals for individual counseling with a licensed therapist. During the meeting, Ms. Le John called one of the counseling agencies, Kedren Community Mental Health, and confirmed that they had licensed therapists on staff. Mother agreed to go for an intake appointment at Kedren. The social worker also called three other agencies, two of which were accepting clients. All the agencies required the client to appear in person for an intake interview.
During her meeting with mother on June 22, 2011, Ms. Le John also called the Drew Child Development Center, which offered classes for parenting a special needs child. Ms. Le John arranged for others to begin a class on July 11, 2011. Mother, using Ms. Le John's phone, confirmed the appointment.
The next day, Ms. Le John located housing for mother at Arise and Shine Haven, a non-profit homeless shelter for women with children. Ms. Le John left mother a voice mail with contact information for the facility. As of June 27, 2011, mother had not returned Ms. Le John's phone call to confirm that she had received the message or called the facility. Mother later told Ms. Le John that she did not want to live at the facility.
From the date of Joshua's detention, mother had always visited him at the home of his caregiver. On July 12, 2011, the court gave DCFS the discretion to allow mother to take Joshua for "brief unsupervised walk[s] in a stroller to and from placement for around 10 minutes." On August 11, 2011, Joshua's caregiver reported that mother had taken Joshua in the stroller only once. The caregiver also reported that during mother's visits, mother and Joshua were left unmonitored in the backyard for approximately an hour. Mother was attentive to Joshua, but the caregiver was concerned when she saw mother "texting" because Joshua was a very active child.
A hearing pursuant to section 366.21, subdivision (f) [12-month hearing] was set for August 22, 2011. In a report prepared for that hearing, DCFS recommended that the court terminate mother's reunification services. Although mother had complied with other aspects of the case plan, she had not obtained appropriate housing for herself and Joshua despite the efforts of DCFS to assist her. The hearing was continued to September 29, 2011.
On August 23, 2011, mother told CSW Ms. Le John that she had been living with her father and stepmother in Altadena. Ms. Le John contacted the maternal grandfather, who said mother had been living with him for almost two months. He was not aware that Joshua was in foster care. He stated that he was willing to assist mother in finding housing. On September 20, 2011, DCFS contacted the maternal grandfather to assess his home and see if he had completed live scan testing. The maternal grandfather said he was in the process of moving so that mother could have her own bedroom with Joshua, and would not allow DCFS to assess the home until he had moved. He had yet to complete a live scan test.
In a report prepared for the September 29, 2011 hearing, Ms. Le John stated that mother was living with the maternal grandfather and continued to have unmonitored visits with Joshua in his caretaker's home. The caretaker reported that mother's interactions with Joshua had improved since June 2011 and mother no longer needed prompting to change Joshua's diaper, feed him, or wash his hands after eating. Joshua was an active child and mother now followed him around the house to play with him. Mother and Joshua were bonded and Joshua called her "mommy."
A contested hearing was held on September 29, 2011. Ms. Le John testified that in her opinion, it was not safe for Joshua to be returned to mother at that time, because mother had not been able to establish stable housing. Ms. Le John also testified that mother had never had Joshua overnight or for any extended period outside the caregiver's home. The longest time period mother had unmonitored off the premises visits with Joshua was 30 to 45 minutes, when she took him out in his stroller. Ms. Le John further opined that if Joshua were returned to mother, she would need additional parenting classes because "he's two years old and she's a new mother, and she hasn't been with Joshua for over two years."
There was some confusion as to whether the hearing was pursuant to section 366.21, subdivision (f) [12-month hearing] or section 366.22 [18-month hearing]. The court's minute order reflects that the hearing was pursuant to section 366.21, subdivision (f). Counsel for DCFS said the hearing was "actually a .22 . . . we're at 19 months." The court resolved the issue by stating, "It's a .21(f)/.22."
Joshua's caregiver testified that mother had been consistent in her visits and that mother and Joshua were bonded. The caregiver further testified that the longest period of time mother had had Joshua away from the caregiver's home was two hours.
The maternal grandfather testified that "for the past few months" mother had been living at his home "off and on." He then said that for the past few months, mother had "been there every day." He had done the live scan test the week prior to the hearing, and was in the process of moving so that mother and Joshua could have their own bedroom and bathroom. He testified that he would be able to provide a stable home for mother and Joshua, and would have done so before had he known about the situation. He only learned about Joshua a month before the hearing, when Ms. Le John told him. Although he had seen mother over the past two years, she never told him she had a child. Under questioning by mother's counsel, the maternal grandfather confirmed that he lived in Ontario and had never lived in Altadena.
As noted above, mother had told Ms. Le John in August 2011 that she had been living with her father in Altadena. Mother suggests that she had no intent to deceive Ms. Le John because both mother's statement and the maternal grandfather's testimony indicated the maternal grandfather lived on Vineyard Avenue, and "mother was just one ending digit off with both the address and zip code."
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At the conclusion of the hearing, the court noted that mother had received two years of reunification services, when by law she was entitled only to six months of services because of Joshua's age. The court also cited what it viewed as mother's deception when she told the social worker she had been living with father in Altadena, "and we know now that's just not true." The court found, by a preponderance of the evidence, that returning Joshua to mother at that time "creates a substantial risk of detriment to the safety, protection, physical or emotional well-being of the child." Although mother had substantially complied with the case plan, she needed additional counseling to address, for one thing, the issue of why she had failed to tell her father about Joshua for two years. The court found by clear and convincing evidence, that DCFS had "complied with the case plan in making reasonable efforts to return the child to a safe home, and I do want to emphasize that the major factor in not returning the child to mom is her lack of stability." The court also found, by clear and convincing evidence, that mother had not made sufficient progress toward alleviating or mitigating the causes for Joshua's placement. The court terminated mother's reunification services and set the matter for a hearing pursuant to section 366.26.
DISCUSSION
We review the juvenile court's order under the substantial evidence standard, viewing the evidence in a light most favorable to the dependency court's findings. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Where there is any substantial evidence to support the court's order, contradicted or not, we must affirm the juvenile court's decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
The juvenile court found that there would be a substantial risk of detriment to Joshua if he were returned to mother at the time of the hearing because mother had not established stable housing for herself and Joshua. We find substantial evidence supports the court's order.
In making its determination, the court had before it two years of reports documenting the considerable efforts DCFS made to help mother secure stable housing. As early as October 2009, when mother first agreed to participate in voluntary reunification services, she was evasive about her living arrangements. Mother was living in her car when Dr. Reba-Harrelson prepared her report in December 2010. Dr. Reba-Harrelson opined that mother needed to obtain suitable housing for herself and Joshua in order to "facilitate successful reunification, and recommended a Salvation Army program she felt would suit mother's needs. Mother did not avail herself of that program.
In March 2011, Ms. Le John referred mother to the Mini Twelve Steps program, where mother stayed for only three days. Mother was approved to participate in the Homeless Outreach Program, but did not stay in touch with the program's counselor. Mother was still homeless in May 2011 and told Ms. Le John that she would have to have court-ordered counseling sessions at a Starbucks. In June 2011, Ms. Le John located housing for mother at Arise and Shine Haven, but mother said she did not want to live at that facility. Although mother claimed to be aware that she needed to secure housing for herself and Joshua if she wanted Joshua returned to her care, she continued to maintain her transient lifestyle and seemed disinterested in efforts by DCFS to help her find suitable housing.
Mother's unstable lifestyle significantly hampered her ability to complete the objectives of the case plan. Although mother made considerable gains in her parenting skills, DCFS was never able to liberalize her visitation with Joshua to overnight visits because she lacked suitable accommodations. At the time the court terminated mother's family reunification services, Joshua was over two years old and the longest time mother had ever spent alone with him was two hours.
Mother contends that the court's finding of detriment is not supported by substantial evidence because she has now secured housing with "someone who is stable." Although the maternal grandfather might provide some stability to mother's situation, mother's brief stay in the maternal grandfather's home cannot yet be viewed as stable. It bears noting that mother had not lived anywhere on her own for an extended period of time, and had never lived with Joshua.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is made final forthwith as to this court.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_________________, J.
DOI TODD
We concur:
_________________, P. J.
BOREN
_________________, J.
CHAVEZ