Opinion
D060294
12-02-2011
JENNIFER R. et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Diego County Super. Ct. No. NJ10847B)
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Laura J. Birkmeyer, Judge. Petition granted. Stay vacated
Jennifer R. and A.B. seek review of a juvenile court order setting a hearing under Welfare and Institutions Code section 366.26. Jennifer challenges the finding she was offered or provided reasonable reunification services. A.B. joins with Jennifer's petition. He does not raise any claims on his own behalf. We grant the petition.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2010 James B. was born to unmarried parents, Jennifer R. and A.B. (together, the parents). In August the San Diego County Health and Human Services Agency (the Agency) initiated dependency proceedings after A.B. choked Jennifer, who was holding James. Jennifer told police when she was assaulted she was unable to breathe, urinated on herself, and dropped the baby, who fell face first to the floor. A.B. acknowledged he used methamphetamine prior to the incident.
When interviewed by the social worker, Jennifer minimized the severity of the incident of domestic violence and said it was "a normal dispute." Jennifer claimed she contacted police to get A.B. into trouble, and blamed it on postpartum depression. Jennifer immediately bailed A.B. out of jail. She refused to press charges or file a restraining order against him.
The social worker asked Jennifer if she had a substance abuse problem. Jennifer said she used methamphetamine when she was a teenager. She lost custody of her oldest child. Jennifer said she participated in inpatient substance abuse treatment and was clean for 13 or 14 years. She relapsed in January 2009 and lost custody of her second child to his father. Jennifer said she had not used drugs since smoking marijuana two weeks before she discovered she was pregnant with James.
Jennifer disclosed she was treated for depression in 2008. She told the social worker she could benefit from parenting education and substance abuse treatment. Jennifer denied needing domestic violence treatment.
A.B. denied any domestic violence. He said he and Jennifer argued because she coddled and spoiled the baby. A.B. used methamphetamine from 1978 to 2006, and relapsed in 2007. He estimated he had been arrested from 20 to 30 times for various crimes, and was convicted of assault with a deadly weapon, possession of a controlled substance, receiving stolen property, vehicle theft and burglary. A.B. served a total of 18 years in prison. He was released in November 2006.
James' height and weight were below normal. The circumference of his head was small for his age, and the back of his head was flat, which was indicative of neglect. His pediatrician said he became concerned about James' well-being at his check-up in May. Jennifer had a black eye. A.B. displayed volatile behaviors. The pediatrician ordered a full body scan of James. He did not have any injuries.
Jennifer voluntarily began a domestic violence program for victims and enrolled in a parenting program. She told the social worker she and A.B. were separating.
In November 2010 the juvenile court sustained the section 300 petition, placed James in foster care and ordered a plan of family reunification services. The court stated that before James could be returned home, the parents needed to address significant domestic violence and relationship issues, and substance abuse issues. Jennifer's case plan required her to participate in a domestic violence treatment program for victims, parenting education and random drug testing. A.B. was required to participate in a domestic violence perpetrator group, a parenting education program and outpatient substance abuse treatment.
We grant the Agency's unopposed motion to augment the record with the reporter's transcript of the November 2, 2010, jurisdictional and dispositional hearing.
Jennifer visited James regularly. She was attentive and affectionate with him. Jennifer attended James' developmental evaluation and 12-month check-up. Jennifer said A.B. became upset when she telephoned the foster parents to check on James. She decided to check on his welfare at her twice weekly visits. While in foster care, James went from the third to the 50th percentile in weight.
A.B. did not visit James from December 31, 2010 to July 5, 2011.
On January 11, 2011, A.B. stabbed Jennifer in the neck with an unknown weapon. The wound was very close to a major artery. Jennifer waited 12 hours before seeking medical attention to avoid disclosing the incident. She was reluctant to talk to the police, saying she was afraid for herself and her children, and feared retribution. Jennifer admitted she and A.B. used methamphetamine before the incident. She said there had been approximately 10 prior domestic violence incidents. She did not report the incidents because she was afraid of A.B.
Jennifer stayed at a women's shelter for several days and then returned to A.B. She later told the social worker she might have been injured by her car or the underwire on her bra.
On March 1 Jennifer tested positive for amphetamine and methamphetamine. Jennifer suggested the results were due to the cold medicine she was taking. The social worker advised Jennifer to attend Narcotics Anonymous (NA) meetings. Later that month, Mark Guynn, the facilitator of Jennifer's domestic violence treatment group, told the social worker Jennifer presented as depressed and hopeless. He said her situation was "as bad as it gets."
On April 13 Jennifer asked the social worker to help her find a substance abuse treatment program. She said she was attending NA meetings but the meetings were not helping her to stay clean. The social worker directed her to obtain a treatment assessment at the courthouse. Jennifer enrolled in an outpatient substance abuse treatment on April 20. In July, without notice, Jennifer stopped attending that program and enrolled in the same treatment program A.B. was attending.
The six-month review hearing was held on August 9 and 10, 2011. The social worker testified that Jennifer completed a parenting education and a domestic violence treatment program. In late March 2011 Jennifer indicated she had a substance abuse problem. The social worker contacted the person responsible for court-ordered substance abuse treatment assessments to find out if he could accept a parent who had not been court-ordered into treatment. After he responded, she told Jennifer to contact him for an assessment. Jennifer tested clean since enrolling in a substance abuse treatment program. Although Jennifer completed her case plan, the social worker said she did not make substantial progress. The social worker said it would benefit Jennifer to participate in individual therapy.
Guynn testified Jennifer completed her domestic violence treatment program on June 28. She was highly motivated but had limited emotional insight into her relationship with her abuser.
Jennifer said she learned she was as much a perpetrator of domestic violence as A.B., especially when she was using methamphetamine. She had been clean and sober since April 12. Jennifer acknowledged she was living with A.B. She testified she was moving to a sober living facility that night.
The juvenile court found that return to parental custody would be detrimental to James' safety and well-being. Jennifer minimized domestic violence and appeared to be dependent on A.B., who had only recently started services. The court commented on Jennifer's long-term substance abuse history and said it was too early to determine whether she could remain drug free.
With respect to counsel's argument Jennifer was not provided reasonable family reunification services, the juvenile court found that Jennifer's substance abuse problems did not become apparent until January 2011. A delay of approximately two months for treatment was not unreasonable. Jennifer's reference to postpartum depression in August 2010 was her excuse for A.B.'s violent behavior. In March 2011, after learning that Jennifer appeared depressed, the social worker reasonably determined Jennifer needed substance abuse treatment, not individual therapy.
The court found that reasonable services were offered or provided to Jennifer and A.B., terminated family reunification services and set a section 366.26 hearing.
Jennifer and A.B. petition for review of the juvenile court's findings and orders under California Rules of Court, rule 8.452. They ask this court to order the juvenile court to reverse the finding that reasonable services were offered or provided to Jennifer, vacate the order setting a section 366.26 hearing and offer additional services to her. On September 6, 2011, this court issued an order to show cause and the Agency responded. The parties waived oral argument. On November 18, 2011, this court issued a stay of the section 366.26 hearing.
DISCUSSION
A
Reasonable Services
The only issue raised in this proceeding is whether the Agency offered or provided reasonable family reunification services to Jennifer.
If, at a six-month review hearing for a child under the age of three years, the court does not return the child to the physical custody of the parent, the court shall continue the case only if it finds there is a substantial probability that the child will be returned to the physical custody of his or her parent and safely maintained in the home within the extended period of time, or that reasonable services have not been provided to the parent. (§ 366.21, subd. (e).)
To support a finding that reasonable services were offered or provided, "the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . ." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The child welfare agency must make a good faith effort to provide reasonable services responsive to each family's unique needs. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.)
Reunification services should be tailored to the particular needs of the family. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 793.) The adequacy of a reunification plan and the reasonableness of the agency's efforts are judged according to the circumstances of each case. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) "The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
At each review hearing, the court is required to determine the "extent of the agency's compliance with the case plan" in making reasonable efforts to return the child to a safe home. (§ 366, subd. (a)(1)(B) (italics added).) We review a reasonable services finding to determine if it is supported by substantial evidence. (In re Christina L. (1992) 3 Cal.App.4th 404, 414.) We do not resolve conflicts in the evidence, pass on the credibility of witnesses, or determine where the preponderance of the evidence lies. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) The burden is on the petitioner to show the evidence is insufficient to support the juvenile court's findings. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
There Is Not Substantial Evidence to Support the Finding that Jennifer's Services Were
Reasonable Under the Circumstances
Jennifer contends she did not receive reasonable services because her case plan did not include substance abuse treatment and a mental health evaluation. She argues the Agency knew she had a substance abuse problem, and possible depression, at the outset of the case, and did not specifically tailor her reunification case plan to help her resolve those issues.
The Agency argues it tailored services to the family's needs as they were known at the time of the dispositional hearing. It contends the social worker reasonably designed the case plan to focus on treatment for domestic violence. The Agency acknowledges it knew of Jennifer's substance abuse history. Because Jennifer initially denied using drugs, the Agency argues it was reasonable to ask her to submit to random drug tests as a deterrent against relapse while allowing the Agency to monitor for drug use and refer her for substance abuse treatment if it became necessary.
Our review of the record supports Jennifer's contentions. The record shows the Agency knew Jennifer had a significant history of methamphetamine use. The Agency removed her oldest child from her custody when he tested positive for methamphetamine at birth. After completing treatment, Jennifer regained custody of her son and had a long period of sobriety. In January 2009 the Agency substantiated a child abuse referral alleging Jennifer and A.B. were using methamphetamine and marijuana. Nothing in the record indicates Jennifer received substance abuse treatment after her relapse in 2009.
The record shows that approximately a week after the Agency detained James, Jennifer identified substance abuse as a lifelong disease and said she could benefit from substance abuse treatment. The Agency knew there was methamphetamine use in her household. Shortly before the jurisdictional and dispositional hearings, the social worker reported the parents demonstrated behaviors indicative of substance abuse. In October, when the social worker asked Jennifer to submit to a random drug test, Jennifer did not appear for testing. At the dispositional hearing in November, the juvenile court commented on the parents' need for substance abuse treatment.
Although domestic violence was the initial reason for initiating child protective proceedings, the information available to the Agency was more than adequate to identify maternal substance abuse as a risk to James' safety and well-being. The record indicates the juvenile court assumed that substance abuse treatment was included in the parents' case plans. The omission from Jennifer's case plan of court-ordered substance abuse treatment or, at minimum, a substance abuse assessment, was not reasonable under the circumstances.
Further, to the extent the Agency's initial plan to monitor Jennifer for drug use and refer her for treatment if necessary was reasonable, the record shows the Agency did not implement its plan in a reasonable manner. When Jennifer did not test as required in October 2010, the Agency did not respond to what is typically viewed as a positive indicator for substance abuse. In January 2011 Jennifer tested positive for, and admitted, methamphetamine use. The Agency did not refer her for treatment. In March Jennifer tested positive for methamphetamine and amphetamine. The social worker advised Jennifer to attend NA meetings. The social worker did not know whether she could refer Jennifer for an assessment. Approximately six weeks later, Jennifer told the social worker she was trying to enroll in a substance abuse treatment program and needed help because she could not stay clean "by herself." Only then did the Agency refer Jennifer for a substance abuse treatment assessment. In addition, the social worker testified she believed Jennifer could benefit from individual therapy, which was not included in the case plan.
This is not a case where the parent was asking the agency to take her by the hand and escort her to services. (In re Nolan W. (2009) 45 Cal.4th 1217, 1233.) Here the Agency was not required to do more than meet its basic obligations to identify needed services and refer the parent for appropriate treatment. (§§ 361.5, subd. (a), 366, 16501; 42 U.S.C. § 629a(a)(7); see In re Alanna A. (2005) 135 Cal.App.4th 555, 563-564.) The record shows Jennifer was highly motivated to participate in services. She completed her court-ordered case plan. Jennifer's visits with James were regular, affectionate and loving. She attended his developmental evaluation and 12-month check-up. The social worker acknowledged Jennifer was willing to participate in substance abuse treatment from the beginning of the case. Within a week of obtaining a referral for substance abuse treatment, Jennifer enrolled in and regularly attended an outpatient substance abuse treatment program. She did not test positive for drugs after she entered treatment.
Under these circumstances, the record does not support the finding that the Agency identified the problems leading to the loss of custody of the child, offered and provided services designed to remedy those problems, and made every reasonable effort to assist the parent in the areas where compliance proved difficult. (In re Riva M., supra, 235 Cal.App.3d at p. 414.) We conclude there is not substantial evidence to support the finding that the Agency offered or provided reasonable family reunification services to Jennifer.
The record shows the Agency offered or provided reasonable services to A.B. The juvenile court did not abuse its discretion when it terminated his services at the six-month hearing. (In re Jesse W. (2007) 157 Cal.App.4th 49, 60.)
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DISPOSITION
Let a writ of mandate issue directing the juvenile court to vacate its findings and order terminating reunification services as to Jennifer and setting a permanency planning hearing under section 366.26, and enter a new order revising Jennifer's case plan to include at minimum substance abuse treatment and individual therapy, and extending family reunification services to Jennifer for six months. The stay issued November 18, 2011, is lifted. This opinion is final immediately as to this court. (Cal. Rules of Court, rule 8.490(b)(3).)
HUFFMAN, J. WE CONCUR:
BENKE, Acting P. J.
IRION, J.