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Jennifer S. v. Superior Court

California Court of Appeals, Second District, Second Division
Mar 11, 2008
No. B203029 (Cal. Ct. App. Mar. 11, 2008)

Opinion


JENNIFER S., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest. B203029 California Court of Appeal, Second District, Second Division March 11, 2008

NOT TO BE PUBLISHED

ORIGINAL PROCEEDING; Petition for extraordinary writ. Marilyn Mackel, Commissioner. Los Angeles County Super. Ct. No. CK62803.

Lisa J. Huerta for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Aileen Wong, Associate County Counsel, for Real Party in Interest.

BOREN, P. J.

Petitioner, Jennifer S., seeks extraordinary writ review of a juvenile court order terminating reunification services and setting the matter for a permanency planning hearing. (Welf. & Inst. Code, § 366.26, subd. (1); Cal. Rules of Court, rule 8.452.) We find sufficient evidence supports the juvenile court’s finding that the Los Angeles Department of Children and Family Services (DCFS) made reasonable efforts to reunify petitioner with her daughter S.C. and therefore deny the petition.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

I. PROCEDURAL HISTORY AND STATEMENT OF FACTS

Dependency Petition.

On July 28, 2005, DCFS received a referral alleging petitioner’s children, Daniel S. (born Apr. 2001) and S.C. (born Sept. 2004), were victims of general neglect by petitioner. According to the referral, petitioner did not bathe or feed the children, made her heroin needles accessible to the children, and in May 2005, Daniel found a syringe and returned it to his mother. The children’s primary caretakers were the maternal grandparents. It was also reported that petitioner had burglarized her parents’ home to obtain money for her heroin addiction. Petitioner’s parents called the police and a burglary report was taken. Petitioner, who was under the influence of heroin, left the residence while driving under the influence of heroin.

Petitioner denied owning the drugs and drug paraphernalia and claimed she was holding it for S.C.’s father, Robert C. During the investigation, live ammunition was found under petitioner’s bed.

Petitioner constantly used heroin and methamphetamine in addition to her daily dose of methadone. Petitioner tested positive for heroin on May 13, June 9, July 14 and August 9, 2005. She tested positive for methamphetamine on August 9, 2005.

On October 4, 2005, petitioner agreed to voluntary maintenance services and services were provided for a four-month period. During this time, petitioner was unable to maintain a stable residence and failed to notify the social worker of her whereabouts and the whereabouts of Daniel and S.C.

In August 2005, petitioner began attending a methadone program at Western Pacific Medical Clinic. Initially, petitioner was taking 70 mg of methadone and needed to reach 40 mg to enter a detoxification program. However, petitioner misled the social worker into believing that she was in a reduction program, when, in fact, she was not. By the end of September 2005, petitioner had failed to reduce her dosage of methadone and was therefore unable to enter the outpatient treatment program at El Proyecto. The social worker made an appointment for petitioner to enroll at Total Family Support, but petitioner failed to keep the appointment.

El Proyecto’s program required clients to finish a detoxification program prior to entering an outpatient program.

In August and September 2005, petitioner tested positive for three illegal substances. In October 2005, she tested negative for drugs, except for methadone.

By November 2005, DCFS was having a difficult time locating petitioner and Robert C. because they had moved out of the motel in which they had been staying and were staying at various homes. On December 5, 2005, the social worker located the couple and met with them. Robert C., who had been released from prison two months earlier, refused to be part of the case plan and said he felt that he did not need any services.

On December 9, 2005, a referral to “Family Team Decision-Making” was made in order to include Robert C. and best determine how DCFS could assist the family with stabilization. The meeting was scheduled for December 13, 2005. Petitioner went to the meeting with the children, but Robert C. refused to participate.

Petitioner agreed to drug test at Pacific Toxicology Laboratories and to participate in family preservation. Services began on December 12, 2005, at the Institute for Multicultural and Education Services (IMCES) in Glendale. Petitioner was to receive services at the maternal grandparents’ home until she could be assisted with housing of her own. By December 21, 2005, petitioner’s whereabouts were unknown and IMCES and DCFS could not locate her. As a result, on January 11, 2006, family preservation services were terminated. Petitioner failed to drug test on December 21, 2005, January 10, 2006, and January 26, 2006.

In late January 2006, the social worker made an unannounced visit to S.C.’s paternal grandparents’ home. Petitioner, Robert C. and the children were leaving the home. Petitioner stated that they had been living in a car because they did not have a place to live. They went to S.C.’s paternal grandparents’ home to do their laundry. Petitioner stated she was unable to contact the social worker because she had a “lot going on.”

On January 24, 2006, the social worker met with petitioner to review her compliance with the case plan. Petitioner stated that she continued to participate in her program at Western Pacific Medical Clinic. The social worker again discussed family preservation with petitioner and the necessity of having a stable residence to receive services. Petitioner did not want to reside with the maternal grandparents, stating they had a poor relationship and the maternal grandmother had obtained a restraining order against Robert C. in November 2005.

On January 19, 2006, the Los Angles Police Department (LAPD) investigated a burglary where the victim suspected that in 2005 petitioner and Robert C. had burglarized her home, stole her checkbook and forged her signature on some checks. On February 2, 2006, after the LAPD investigated several pawn shops and discovered the stolen goods were pawned by petitioner, petitioner and Robert C. were arrested and charged with burglary. Petitioner admitted that she knew an item she had pawned was stolen.

Petitioner was incarcerated and bail was set at $80,000. The police released the children to S.C.’s paternal grandparents at petitioner’s request. However, due to the grandparents’ health, specifically, the paternal grandmother was blind and wheelchair bound, DCFS placed the children with the maternal grandparents.

Daniel disclosed to the maternal grandparents that while he was living with Robert C. and petitioner, Robert C. would hit him. Daniel did not want to return to petitioner. The maternal grandmother reported that Daniel was having nightmares. Daniel was being enrolled in counseling and play therapy.

Petitioner’s criminal history including a 1999 misdemeanor conviction of possession of a hypodermic needle, and a felony conviction for possession of a narcotic controlled substance. In 2002, she was arrested for possession of a narcotic controlled substance.

Dependency Petition.

On March 24, 2006, DCFS filed a section 300 petition alleging: (1) petitioner’s history of substance abuse, positive drug tests, and use of heroin, methamphetamine and methadone rendered her incapable of providing the children with regular care and supervision; (2) petitioner had failed in her attempts to complete a substance abuse rehabilitation program; (3) petitioner had a criminal history which included convictions of possession of a hypodermic needle and possession of a narcotic controlled substance; (4) petitioner had failed to regularly participate in random drug testing, parenting classes, and a substance abuse rehabilitation program as required by a voluntary family maintenance agreement with DCFS; and (5) petitioner had failed to inform DCFS of her whereabouts.

Detention Hearing.

A detention hearing was held on March 24, 2006. The juvenile court found a prima facie case for detaining Daniel and S.C. under section 300, subdivision (b). The court ordered DCFS to provide petitioner with referrals to parenting, individual counseling, and a drug rehabilitation program with random testing.

Adjudication Hearing.

An adjudication hearing was held on April 24, 2006. DCFS reported on its interview with the maternal grandmother, who stated that petitioner was born in Orange County and placed with an adoption agency immediately after birth. The maternal grandparents adopted petitioner in 1978 when she was about 14 months old. Petitioner went to high school in Woodland Hills, but was expelled after six months. She transferred to another high school, but ended up in the wrong crowd and did not graduate. Petitioner enrolled in a nursing school and became a nursing assistant. After graduation, she worked for a physician. However, petitioner began abusing drugs and lost that job. The maternal grandmother did not believe petitioner would be able to stop using drugs without enrolling in an inpatient treatment program because petitioner had been using drugs since she was 16 years of age. According to the maternal grandmother, she and her family had raised Daniel and S.C. Although she loved her daughter, the maternal grandmother did not believe the children would be safe with petitioner.

The maternal grandmother also reported that on different occasions petitioner stole from the homes of her parents, her maternal uncle and a friend. Petitioner wrote her name on checks and cashed them as gifts to herself. Robert C. had been controlling petitioner since they met.

Daniel’s father, Justino P., advised DCFS that he and petitioner had lived together for six months, but that when she became pregnant with Daniel in 2001, petitioner moved back into her parents’ house. After Daniel’s birth, petitioner improved. She attended college, obtained a degree and began working at Tarzana Treatment Center. Petitioner met Robert C. at the center and they were married in October 2001, a month later. The first time Robert C. physically abused petitioner she called Justino P.

First Amended Petition.

On May 18, 2006, DCFS filed a first amended section 300 petition. In addition to the previous allegations against petitioner and Robert C., it was alleged that Justino P. had a history of substance abuse and a criminal history.

Pretrial Resolution Conference.

A pretrial resolution conference was held on May 18, 2006. The court sustained the following allegations under section 300, subdivision (b): (1) petitioner had a history of substance abuse and was a current abuser of heroin, methamphetamine and methadone, which rendered her incapable of providing the children with regular care and supervision; (2) on August 9, 2005, petitioner had a positive toxicology screen for methamphetamine; (3) petitioner had a criminal history that included a felony conviction for possession of a narcotic controlled substance; (4) petitioner failed in her attempts to complete a substance abuse rehabilitation program; (5) petitioner, after entering a voluntary family maintenance agreement with DCFS, failed to keep DCFS informed of her whereabouts, and failed to regularly participate in random drug testing, parenting classes and a substance abuse rehabilitation program.

The juvenile court dismissed the petition filed on March 24, 2006.

The juvenile court ordered DCFS to provide petitioner with reunification services. She was directed to attend parenting classes and a DCFS-approved drug rehabilitation program with random drug testing. Petitioner was granted monitored visits by a DCFS-approved monitor in a neutral setting.

Six-Month Status Review Hearing.

A section 366.21, subdivision (e) hearing was held on October 10, 2006. In a report prepared for the hearing, DCFS advised that petitioner remained incarcerated, and Daniel and S.C. remained with their maternal grandparents. The children appeared well adjusted to the grandparents’ home and were well bonded with the maternal grandparents.

In June 2006, while incarcerated at Central California Women’s Facility in Chowchilla, California, petitioner gave birth to a daughter, D.C. On August 31, 2006, the social worker spoke with a prison counselor, who stated that petitioner had applied for admission to “Family Foundation,” a program that would have allowed petitioner to have D.C. and S.C. placed in the prison facility. However, the program had no openings. Petitioner, whose release was set for March 2007, was in a “Bridging” program and was participating in a “Life Skills” group. She was not enrolled in a substance abuse program. According to the prison counselor, petitioner had a ‘“nonchalant attitude’” and ‘“doesn’t care.”’ Petitioner did not visit her children because she was incarcerated. However, she did make a few telephone calls to the maternal grandmother and wrote letters.

On several occasions, petitioner stated that she would like to enroll in a program so she could have her children with her. The maternal grandparents stated they were willing to adopt the children or become their legal guardians.

The juvenile court found that petitioner was in “moderate” compliance with the case plan.

Twelve-Month Status Review Hearing.

A section 366.21, subdivision (f) hearing was held on March 1, 2007. DCFS reported that petitioner had qualified for a program that allowed well-behaved prison inmates to finish their sentences in a drug treatment program. On November 22, 2006, petitioner entered Light House, a substance abuse/behavioral modification program focused on reducing the rate of recidivism, substance abuse, and helping to prepare women to reintegrate into society. On January 16, 2007, petitioner contacted the social worker and advised her that she was residing at Light House. Petitioner added that she was enrolled in drug counseling/drug testing, parenting, domestic violence counseling, anger management, and individual and group counseling. Petitioner stated that she would be released from Light House on March 18, 2007, and would then move to Walden House, an after care program located in El Monte.

On February 1, 2007, the social worker spoke with the Light House program coordinator who reported that petitioner was scheduled to begin a 12-week parenting class, and was currently participating in random urinalysis drug testing, drug counseling, and domestic violence classes. In addition, petitioner attended individual counseling on a weekly basis and group counseling. Discussions included recovery education, relapse prevention, family dynamics, confrontations and dealing with trauma. Petitioner was also attending a 12-step program. One-on-one counseling sessions were held, and petitioner had access to counseling staff 24 hours a day. Petitioner was doing well in her programs, and had shown a desire to make positive changes in her life. She had expressed a desire to begin visitation with her children in order to begin family reunification. Petitioner would be released on March 18, 2007, and had expressed a desire to extend her recovery program by going to Walden House.

On February 16, 2007, the social worker spoke with the Walden House coordinator who stated that Walden House provides job skills, parenting classes, counseling and assistance in maintaining a sober life.

On March 1, 2007, the Light House program coordinator advised that petitioner had been given random urinalysis testing while at Light House, and that all the tests had been clean of any substances. Petitioner had been introduced to a 12-step recovery program to assist her in a smooth transition into society. Petitioner had demonstrated a positive change in her behavior and attitude toward treatment and had begun to become a strong leader in her recovery community.

S.C. and D.C. had had two visits with petitioner at her facility. At the first two-hour visit, petitioner held D.C., but S.C. refused to go to her. Petitioner made some telephone and written contact with the maternal grandmother and the children.

The maternal grandmother reported that S.C. had good motor skills and a good grip holding utensils. However, S.C. appeared to have difficulties with her speech. She screamed or pointed her finger when she wanted something. She had temper tantrums when she did not get something she wanted and/or the maternal grandmother could not determine what she wanted. S.C. could only say a few words and could not put sentences or phrases together. Because S.C.’s pediatrician stated that S.C. had some developmental delay, S.C. was referred to Regional Center for further assessment. On January 5, 2007, S.C. was referred to speech therapy.

The juvenile court found that DCFS had provided reasonable services and that petitioner was in substantial compliance with her case plan. The court ordered family reunification services to continue until August 1, 2007. DCFS was directed to facilitate weekend overnights visits between D.C. and petitioner. Petitioner was granted unmonitored visitation with Daniel and S.C.

Section 388 Petition.

On March 18, 2007, petitioner was admitted to Walden House. On June 18, 2007, petitioner filed a section 388 petition requesting: (1) overnight visits to begin for D.C. in petitioner’s drug program; (2) overnight visits for S.C. after petitioner had four successful overnight visits with D.C.; (3) DCFS to have discretion to further liberalize petitioner’s visits; and (4) DCFS to have discretion for a home of parent order. Petitioner stated that the requested changes were in the best interest of the children because: (1) petitioner had cared for S.C. for the first two years of her life; (2) petitioner had complied with the court’s orders; (3) petitioner had demonstrated her commitment to recovery and desire to reunify with the children; (4) petitioner was in a program that allowed the children; and (5) petitioner could provide a safe and stable permanent home for the children.

On June 29, 2007, the juvenile court ordered overnight visits to begin for D.C., and granted DCFS discretion to allow overnight visits for S.C. On July 18, 2007, the court ordered DCFS to follow the visitation orders issued on March 1, 2007. DCFS was directed to prepare a report to address the issues raised in petitioner’s section 388 petition.

On August 1, 2007, the juvenile court scheduled a hearing on petitioner’s section 388 motion for September 27, 2007. The court again ordered that DCFS was to have discretion to allow overnight visits for S.C. at petitioner’s facility.

Progress Hearing.

On September 4, 2007, the juvenile court held a progress hearing. In a report dated August 1, 2007, DCFS advised that petitioner had been admitted to Walden House in March 2007, she had completed an orientation phase and was now in a treatment phrase. It was expected that she would soon be graduating to the “Submit or Reentry” phase and would begin an effort to gain employment and housing. On average, clients spent six to 12 months in Walden House.

In a letter dated July 23, 2007, Bryan Rowland, a Walden House therapist, coordinator and manager, described Walden House as having a highly structured environment designed to handle in-depth clinical issues regarding behavior, coping mechanisms, emotional expression, parenting issues, the disabling effects of addiction and vocational/educational/housing issues. Walden House offered a myriad of services, including parenting skills coaching as needed, family therapy, children’s psychotherapy groups, support groups, court advocacy, nurturing parenting course, pediatric case management, and a parenting center that provided child care and recreational services, including arts and crafts, play and educational enrichment.

Mr. Rowland stated that petitioner had identified and continued to identify the issues that led to her substance abuse and addiction. Petitioner displayed a willingness to work toward a grounded recovery process and worked in compliance with her treatment plan. She had voluntarily sought therapy and had been engaged in individual therapy sessions with a licensed therapist for two months to address core childhood issues that had contributed to her addiction lifestyle and unhealthy relationships. In addition, petitioner had completed a “Nurturing Parenting Program” which consisted of 24 sessions geared toward education and the practice of developing and fostering a nurturing parental attitude and home environment. Petitioner’s parenting instructor advised that petitioner’s in-class participation was a clear indication of her willingness to change and grow as a person and as a parent. Throughout petitioner’s participation in the class, petitioner had been forthcoming about her past choices and subsequent behavior and the detrimental impact on her children. She had openly taken responsibility for the abuse she had inflicted on her children as well as the abuse she had allowed to occur at the hands of Robert C. Petitioner had requested one-on-one parenting skills coaching to address any deficits in her parenting approach. Petitioner had worked to create a foundation of positive and healthy interactions that would promote healthy growth for herself and her children. In sum, petitioner was stable, motivated toward growth, and had demonstrated the ability to effective parent her children.

DCFS noted that petitioner had completed her parenting class on July 6, 2007, and that as of August 1, 2007, petitioner had had three overnight visits with D.C.

On May 16, June 4, June 18, and July 7, 2007, petitioner drug tested at Pacific Toxicology Laboratories through DCFS. The results were negative for drugs. Petitioner also tested through Walden House on April 15, May 13, June 6 and June 22, 2007. The results were also negative for drugs.

Although DCFS recognized that petitioner had made some strides in addressing her drug addiction, DCFS opined that it would not be in the children’s best interest to be returned to petitioner because in the past she had been arrested for drugs and theft after attending a rehabilitation program. DCFS noted that petitioner had only spent four and one-half months at Walden House and that both S.C. and Daniel had special needs. Daniel, who suffered from ADHD and was on medication twice daily, was very vocal about not wanting to live with his mother. S.C. was developmentally delayed and had a speech impediment. D.C. was bonded to her brother and especially bonded to her older sister, S.C.

On September 4, 2007, DCFS submitted an information form to the juvenile court advising that the maternal grandmother was concerned because D.C. was “sick” and “very, very tired” when she came back from her overnight visits with petitioner. When S.C. visited with petitioner, she would state, “I go home.” This meant she wanted to go home to the maternal grandmother. The social worker did not believe S.C. could tolerate overnight visits with petitioner because S.C. needed extra care and attention because of her developmental delays.

On September 4, 2007, petitioner filed a “walk-on” request asking the juvenile court to order overnight visitation with S.C. to begin immediately. Petitioner noted that she had asked for overnight visitation with S.C. to begin after she, petitioner, had had four overnight visits with D.C. Even though she had had eight overnight visits with D.C., DCFS have refused to exercise its discretion to allow overnight visits with S.C.

On September 4, 2007, the juvenile court ordered DCFS to determine and ascertain petitioner’s schedule at Walden House, assess the situation for visitation and exercise its discretion for visitation.

Eighteen-Month Status Review Hearing.

On September 27, 2007, the juvenile court conducted a section 366.22 hearing and, at the same time, considered petitioner’s section 388 petition. The court admitted into evidence various DCFS reports, information forms and correspondence.

In a letter dated September 14, 2007, a Walden House counselor advised that petitioner was reliable, committed, open-minded, motivated, patient, empathetic, loving, a listener and a teacher. Petitioner completed all personal and curricular evaluation forms in addition to in-class and homework assignments with thoughtfulness and detailed oversight. The counselor noted that petitioner was willing to share painful past experiences during group discussions, and that such disclosures can lead to dramatic transformations.

A Walden House representative reported that on September 17, 2007, petitioner was scheduled to enter the phase of the program that included finding a job and locating housing. Petitioner had, however, participated in therapy for four months to address core childhood issues that contributed to her addictive lifestyle and unhealthy relationships. She had also been addressing the special needs of the children, especially S.C., in therapy. The visits between petitioner and S.C. had appeared healthy and appropriate, which indicated the beginning of a positive bonding process. Although a Walden House representative had made efforts to contact the assigned social worker in order to arrange for a meeting to address familial needs (especially increased overnight visitation), the attempts had not been reciprocated.

In an information form submitted by DCFS on September 27, 2007, DCFS reported that after only a short time during her visits with petitioner, S.C. became anxious and overwhelmed. DCFS also reported that the primary social worker was absent due to illness or disability. Attached to the information form was an assessment conducted by Rhonda Solomon, the preschool psychologist at the Los Angeles Unified School District’s Division of Special Education.

Ms. Solomon reported that S.C. had been delivered requiring Phenobarbital for an unspecified period of time because she had the “shakes” and “withdrawal” until she was six months old. S.C. had been referred by Regional Center due to very significant prenatal and post-natal experiences. She had significant difficulties with expressive language, physical aggressiveness and numerous ear infections. S.C. kicked, hit and slugged both adults and peers. She jumped and ran from loud noises such as sirens. She did not listen to her grandparents or teachers and would take what she wanted without thought to the possible consequences. S.C. had a minimum of one temper tantrum each day and had “meltdowns” at school and home. S.C. had a difficult time with transitions. She would take items from the counter, such as soap, and play with them. She still took a baby bottle of milk at night. The maternal grandmother explained that the purpose of the bottle was to calm S.C. S.C. did not drink from an open cup, but would drink from a sippy cup. She wore diapers. She would use a small toilet and tell her grandmother when she made a bowel movement, but would not use the adult toilet with any consistency. She still slept in a crib. She did not eat her meals with others, but at a small table alone with the television on. S.C. had nightmares and difficulty going to sleep. She would hit herself. Although S.C. demonstrated characteristics typically associated with autism, autism was “not recommended” because S.C. also displayed behaviors and characteristics consistent with that of a child with mild mental retardation, in that all of her skills were significantly below her chronological age, including adaptive behavior. The recommendation was to “use developmental delay” until S.C. was in kindergarten. A better assessment could then be made.

DCFS reported that on September 13, 2007, the social worker observed a visit between petitioner and S.C. in the DCFS office. Petitioner was appropriate and attentive to S.C.’s needs. After petitioner and S.C. spent 10 minutes together, S.C. stated she wanted to see “mommy,” which is her term for the maternal grandmother. S.C. was only comfortable with petitioner for a short period of time, and then she sought the comfort of her grandmother. S.C. stayed a little longer, but then went to the door and said, “I go home.” S.C. had limited ability to be away from her grandmother and seemed stressed after time apart from her. In the social worker’s opinion, it was not in S.C.’s best interest to force a longer or overnight visit because S.C. exhibited little tolerance for extended visitation. The social worker would set up a visit with petitioner and S.C. at Walden House so as to evaluate the situation.

Bryan Rowland, a licensed marriage and family therapist, testified on petitioner’s behalf. He stated that Walden House was a six to 15-month program that kept the client until the client was ready to acclimate back into society. The facility was staffed 24 hours a day and random bedroom checks were conducted every 15 minutes.

Mr. Rowland testified that he treated petitioner once a week for about three months and they discussed various issues and her efforts to reunify with her children. Mr. Rowland listed the programs petitioner had completed at Walden House. Petitioner attended about 13 hours of programming a day. Although petitioner had had overnight visits with D.C., she had not had overnight visits with S.C. Although he had telephoned the social worker four to five times and left messages about meeting to discuss the direction Walden House was taking, he did not receive a response from the social worker. He stated that the assigned social worker had been on medical leave for three weeks. However, this was five weeks after his initial attempt to contact her.

Mr. Rowland noted that Walden House worked with Regional Center by providing families with referrals and providing information to Regional Center, such as assessments of developmentally delayed children. He had wanted to assess S.C. by using the Denver Developmental Assessment, which is a test to determine where children are developmentally.

Mr. Rowland had observed petitioner’s visits with S.C. extensively in April 2007. S.C. seemed very happy and played with the other children, and S.C. liked being held by petitioner. He noted that S.C. and petitioner interacted a lot and appeared to be bonding. During visits, S.C. was generally on petitioner’s lap doing things. If S.C. was placed with petitioner, there would be caretakers throughout the day to care for her.

The juvenile court granted petitioner’s section 388 in part and denied it in part. D.C. was ordered placed with petitioner under DCFS supervision. However, because of S.C.’s special needs, petitioner’s request that the court order overnight visits for S.C. was denied. Instead, the court ordered S.C.’s visits “expanded up to day long visits.” DCFS was given discretion to liberalize S.C.’s visitation “as deemed appropriate by DCFS.”

With respect to the section 366.22 hearing, the juvenile court found by a preponderance of the evidence that return of Daniel and S.C. to petitioner would create a substantial risk of detriment to the children’s physical and emotional well-being, DCFS had complied with the case plan by making reasonable efforts to enable the children’s safe return home, Daniel and S.C. could not be returned to petitioner’s physical custody and there existed no substantial probability the children would be returned within six months. The court found that petitioner had complied with the case plan. The court ordered four to six hour visits for S.C. The court terminated petitioner’s reunification services with respect to Daniel and S.C. and set a section 366.26 hearing. Petitioner then filed this petition, challenging only that portion of the order terminating petitioner’s reunification services with respect to S.C.

II. CONTENTIONS

Petitioner contends that reasonable reunification services were not provided because DCFS failed to exercise its discretion to allow petitioner overnight visits with S.C. and the social worker failed to return the telephone calls of the Walden House coordinator for six to eight weeks during the reunification period.

III. DISCUSSION

Reasonableness of Reunification Services.

We review the correctness of juvenile court orders pursuant to section 366.22 to determine if it is supported by substantial evidence. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) That standard requires us to determine whether there is reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) In reviewing the reasonableness of reunification services, we recognize that in most cases more services might have been provided, and the services provided are often imperfect. The standard is not whether the services provided were the best that might have been provided but whether they were reasonable under the circumstances. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) A court-ordered reunification plan must be tailored to fit the circumstances of each family and designed to eliminate the conditions that led to the juvenile court’s jurisdictional finding. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) ‘“[T]he record should show that the supervising agency identified the problems leading to 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 . . . . ”’ (Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554-555.)

The record reveals that DCFS did what it could to assist petitioner in reunifying with S.C. DCFS continually provided petitioner with support and assistance. Prior to filing the initial dependency petition, DCFS provided petitioner with voluntary family maintenance services. Petitioner failed to comply with the plan requirements. In addition, she lied to DCFS, failed to keep in contact with the agency and then committed a criminal act, which led to her imprisonment.

When petitioner entered Light House, DCFS began providing visits for D.C. and S.C. at petitioner’s facility. DCFS continued S.C.’s visits with petitioner at Walden House and later allowed overnight visits for D.C.

Although the social worker failed to return the Walden House coordinator’s telephone calls, this failure does not constitute substantial evidence that DCFS failed to provide reasonable services. Prior to the few weeks the coordinator tried to contact the social worker, the worker had continually remained informed about petitioner’s progress in her programs. We conclude that DCFS provided reasonable services under the circumstances of this case.

Petitioner suggests that DCFS failed to follow the juvenile court’s orders by failing to exercise its discretion to extend overnight visits for S.C. We disagree. The record shows that on a number of occasions the juvenile court issued orders giving DCFS the discretion to liberalize petitioner’s visits with S.C. to overnight visits. DCFS chose not to exercise its discretion to liberalize the visitation because of the social worker’s observations and S.C.’s special needs. The social worker reported that S.C. was only comfortable with petitioner for a short time and then wished to return home with the maternal grandmother. Petitioner does not attack the preschool psychologist’s report that concluded S.C. has developmental delays and special needs which cause her to have difficulty with transitions. Petitioner notes, however, that DCFS could not have relied on this report to deny overnight visits with S.C. because the report was not prepared until August 2007. Nothing contained in the record shows that DCFS awaited the results of the preschool psychologist’s report to make a decision as to whether S.C. should have overnight visits with petitioner. DCFS had information as early as March 2007, that S.C. had behavioral and speech problems. It was for this reason S.C. was referred to Regional Center. The report prepared by the preschool psychologist did nothing more than confirm that the behavioral problems observed by the maternal grandmother were evidence of developmental delays. DCFS exercised its discretion not to allow S.C. overnight visits with petitioner based on the social worker’s understanding of S.C.’s behavioral problems, an understanding that developed over a period of several months. Under the circumstances of this case, we conclude that DCFS did not abuse its discretion in refusing to exercise its discretion to allow overnight visitation for S.C.

Petitioner also suggests that DCFS failed to provide reasonable reunification services because it failed to educate petitioner on S.C.’s special needs. Nothing contained in the record suggests that petitioner was unaware of S.C.’s special needs, or that petitioner needed services in addition to those provided by Walden House to cope with S.C.’s special needs. Mr. Rowland described in letters to the juvenile court the myriad of services Walden House had offered petitioner, and during the section 366.22 hearing he testified that he was petitioner’s therapist, that during therapy he and petitioner had “talked about her efforts to reunify with her children, [and] her desire to understand the needs of her children.” Moreover, throughout the 18 months of reunification petitioner never complained that DCFS failed to provide reasonable programs so that petitioner could learn to deal with S.C.’s special needs.

Petitioner claims that based on the failure of reasonable efforts by DCFS, she is entitled to six months more of services with S.C. As noted above, DCFS did not fail to provide reasonable services to petitioner. We therefore reject petitioner’s claim that additional services must be offered.

IV. DISPOSITION

The juvenile court’s order terminating petitioner’s reunification services and setting a section 366.26 hearing is supported by substantial evidence. Accordingly, the order to show cause is discharged and the petition for extraordinary writ is denied. The temporary stay is vacated.

I concur: DOI TODD, J.

ASHMANN-GERST, J., Dissenting.

I respectfully dissent. I would grant Jennifer S.’s (mother) petition for extraordinary writ on the grounds that the Los Angeles Department of Children and Family Services (DCFS) failed to provide reasonable reunification services to mother.

If a child is removed from a family home, a plan is usually developed to overcome the problem that caused the child to be removed, and services are offered to reunify the family. (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748; Welf. & Inst. Code, § 361.5.)

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

Once a child has been detained under juvenile court custody, family reunification efforts are required. (§§ 319, 361.5, subd. (a).) Reunification services are time limited. For a child who is three years old or younger on the date of initial removal from the custody of a parent, court-ordered services are not to exceed six months. (§ 361.5, subd. (a)(2).) Services may be extended up to a maximum of 18 months if it can be shown that a substantial probability exists that the child may safely be returned home within an extended six-month period, or if reasonable services have not been provided to the parent. (§ 361.5, subd. (a)(3).) The 18-month statutory period may be extended in certain circumstances. ‘“[N]othing in the legislative intent or the specific language of section 366.22 or 366.26 . . . prohibits the court from extending the period for reunification services beyond 18 months from the child’s detention where the agency responsible for providing these services has, in the court’s opinion, failed to make a reasonable effort to provide those services.”’ (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1794.)

At the permanency review (§ 366.22), the juvenile court must consider whether reasonable services have been provided or offered to the parent. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) “[O]ne of the ‘precise and demanding’ substantive requirements DC[F]S must meet to satisfy due process is affording reasonable reunification services. Where reasonable services are not afforded there is a substantial risk the court’s finding the child cannot be returned to the parent will be erroneous. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 256.) To put it another way: in order to meet due process requirements at the termination stage, the court must be satisfied reasonable services have been offered during the reunification stage.” (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1215–1216.)

“Of course, . . . ‘[r]eunification services need not be perfect. [Citation.] But they should be tailored to the specific needs of the particular family. [Citation.]’ [Citation.] As this court has previously explained, ‘to make the requisite findings, 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 (such as helping to provide transportation and offering more intensive rehabilitation services where others have failed).’ (In re Riva M. (1991) 235 Cal.App.3d 403, 414, italics omitted.)” (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 793–794 (David B.).) In other words, the services must be designed to eliminate the conditions that led to juvenile court jurisdiction, specifically tailored to fit the unique circumstances of the parents, and put the parents on notice as to what must be accomplished to reunite the family. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777; In re Precious J. (1996) 42 Cal.App.4th 1463, 1474.)

“The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success.” (In re Dino E., supra, 6 Cal.App.4th at p. 1777.) The adequacy of reunification plans and the reasonableness of the supervising agency’s efforts are judged according to the circumstances of each case. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362.)

We review the reasonableness of the reunification services for substantial evidence. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) “Therefore, ‘[a]ll reasonable inferences must be drawn in support of the findings and the record must be viewed in the light most favorable to the juvenile court’s order. [Citation.]’ (In re Jeannette S. (1979) 94 Cal.App.3d 52, 58.)” (In re Maria S. (2000) 82 Cal.App.4th 1032, 1039.) In reviewing the reasonableness of reunification services, “[t]he standard is not whether the services . . . 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.) “But [the juvenile court’s] conclusions must be based upon substantial evidence which appears in the record, not upon the court’s own unarticulated assumptions.” (David B., supra, 123 Cal.App.4th at p. 795, fn. omitted.)

I agree with mother that inadequate reunification services were provided to her. Undeniably, and as the majority recognizes, mother had participated in her program and was improving herself. On November 22, 2006, mother entered Light House, and was succeeding. At the section 366.21, subdivision (f) hearing on March 1, 2007, the juvenile court granted mother unmonitored visitation with S.C.

On June 18, 2007, after mother was admitted to Walden House, an after care program, she filed a section 388 petition requesting, inter alia, overnight visits for S.C.

On June 29, 2007, mother “walked on” the case for orders enforcing visitation. The juvenile court ordered that DCFS have the discretion to allow overnight visits for mother with S.C. at mother’s program. No overnight visits ensued.

On August 1, 2007, the juvenile court continued all prior orders in full force and effect, again granting DCFS discretion to allow mother overnight visits with S.C. DCFS still denied mother overnight visits.

In fact, overnight visits with S.C. had not begun by the time of the section 366.22 hearing on September 27, 2007, even though D.C. had already had eight successful overnight visits. Mother had “substantially complied with the terms of the reunification plan and had insisted upon visitation as much as possible.” (In re Elizabeth R., supra, 35 Cal.App.4th at p. 1792.) She took parenting classes, overcame drug abuse, and participated in counseling. This “appears . . . to be a case where the mother ‘was destined to lose [S.C.] no matter what she did.’ [Citation.]” (Ibid.) Under these circumstances, DCFS’s failure to allow for overnight visits amounts to a denial of reasonable reunification services. (See, e.g., In re Monica C., supra, 31 Cal.App.4th at p. 307 [“The absence of visitation will not only prejudice a parent’s interests at a section 366.26 hearing but may ‘virtually assure[] the erosion (and termination) of any meaningful relationship’ between mother and child”].)

DCFS defends its conduct, claiming that it was concerned with the detriment that could be caused to S.C. by overnight visits because she was only comfortable with mother for a short time and had difficulties with transitions. Undoubtedly, S.C. was going to have to transition back to mother’s care. After all, she had been cared for by her grandmother since at least her detention in March 2006. And, S.C. certainly has development issues that will make the transition challenging. That being said, there is no indication from the evidence that S.C. was incapable of making a transition. In fact, S.C.’s attorney agreed that overnight visits were appropriate. Likewise, nothing in the appellate record suggests that mother, with adequate aid, could not care for S.C. on overnight visits. Put simply, DCFS never gave mother or S.C. a chance.

In addition to denying mother’s requests for overnight visitation, I am also deeply troubled by DCFS’s lack of responsiveness to efforts made by mother’s program counselor to aid mother’s effort to have S.C. returned to her. At the September 27, 2007, hearing, Bryan Rowland (Rowland) testified that he had tried for six to eight weeks to discuss a plan for reunification for S.C. and mother with the social worker or her supervisor, that he had left detailed voice mail messages “four or five times” explaining what he wanted to discuss, and that he had not even received a return telephone call. While the social workers may have been unavailable because of various medical issues, their unavailability should not be used against mother. It is just unfair to conclude that DCFS supplied mother with reasonable reunification services when DCFS social workers were unavailable to provide any services for a significant period of time, particularly in response to a program counselor’s repeated inquiries and requests for help with reunification.

I recognize that by September 27, 2007, the dependency proceedings had reached the 18-month statutory time limit for reunification. (§ 361.5, subd. (a).) Because of (1) DCFS’s lack of responsiveness to mother’s requests for overnight visitation, particularly her efforts in the juvenile court; and (2) mother’s program counselor’s attempts to contact the social workers, I conclude that the juvenile court erred in refusing to extend reunification services beyond the statutory 18-month limit. (§§ 361.5, subd. (a)(3), third par., 366.22; see, e.g., In re Dino E., supra, 6 Cal.App.4th at pp. 1777–1778 [no reunification plan was ever developed by DCFS for the father]; In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1792–1794 [mother was hospitalized during most of the reunification period, and after her release DCFS attempted to restrict visitation]; In re Daniel G., supra, 25 Cal.App.4th at pp. 1209, 1212–1214 [DCFS’s reunification services for the father were a “disgrace”].) Because mother’s attempt to secure overnight visits was thwarted by DCFS, the extension of reunification services beyond the 18-month statutory limit is warranted.

Finally, to the extent DCFS defends the juvenile court’s order denying mother further reunification services based upon findings in a report prepared by the Los Angeles Unified School District, I am not convinced. That report was not prepared until August 2007, about two months after the juvenile court gave DCFS discretion to allow overnight visits, two and a half months after mother filed a section 388 petition requesting overnight visits, and two months after mother walked on the case for an order enforcing overnight visitation. I cannot endorse DCFS’s justification for its conduct based upon belated information and hindsight.

This is not a situation where a parent was unwilling or indifferent to reunification services. (See, e.g., In re Lynna B. (1979) 92 Cal.App.3d 682, 702; In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.) Rather, mother was complying with her program and doing everything that she could to reunify with S.C. It follows that DCFS’s failure to allow her overnight visits amounts to a denial of reasonable reunification services.


Summaries of

Jennifer S. v. Superior Court

California Court of Appeals, Second District, Second Division
Mar 11, 2008
No. B203029 (Cal. Ct. App. Mar. 11, 2008)
Case details for

Jennifer S. v. Superior Court

Case Details

Full title:JENNIFER S., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY…

Court:California Court of Appeals, Second District, Second Division

Date published: Mar 11, 2008

Citations

No. B203029 (Cal. Ct. App. Mar. 11, 2008)