Opinion
E073133
10-21-2019
J.G., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Law Offices of Valerie Ross and Valerie Ross for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Svetlana Kauper, Deputy County Counsel, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J274358) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Annemarie G. Pace, Judge. Petition denied. Law Offices of Valerie Ross and Valerie Ross for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Svetlana Kauper, Deputy County Counsel, for Real Party in Interest.
Petitioner J.G. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court's order terminating reunification services as to her children, T.B. and L.B. (the children) and setting a Welfare and Institutions Code section 366.26 hearing. Mother contends that the San Bernardino County Children and Family Services (CFS) failed to provide her with reasonable reunification services. She has also requested a stay of the section 366.26 hearing, which is scheduled for October 28, 2019. The writ petition is denied. The request for a stay of the section 366.26 hearing is also denied.
All further statutory references will be to the Welfare and Institutions Code section, unless otherwise noted.
We have been informed that mother passed away after this case was submitted, although we have not received official notice of her death (e.g., a death certificate). In any event, we deny the writ petition. (Code Civ. Proc., § 669.)
FACTUAL AND PROCEDURAL BACKGROUND
On January 3, 2018, CFS filed section 300 petitions on behalf of the children. T.B. was one month old at the time, and L.B. was 21 months old. T.B.'s petition alleged that he came within the provisions of section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse), and (g) (no provision for support). The petitions alleged that the children were exposed to incidents of domestic violence in the home between mother and their father (father). The petitions included allegations that mother failed to take reasonable measures to protect the children, in that she maintained a relationship with father, allowed him access to the children, refused to press criminal charges, and refused to obtain a restraining order. The petitions further alleged that mother had an untreated mental illness that impaired her ability to provide adequate care. T.B.'s petition additionally alleged that, on December 30, 2017, he sustained a laceration to his ear as a result of mother and father (the parents) engaging in domestic violence. The petitions were subsequently amended to reflect that mother suffered from "a history of depression," rather than an untreated mental illness, and to add an allegation under section 300, subdivision (j) (abuse of sibling) that father's parental rights as to a half sibling were previously terminated.
Father is not a party to this writ.
The juvenile court detained the children in foster care on January 4, 2018. Pending the development of a case plan, the court ordered CFS to provide reunification services.
The court also detained two older siblings, but they are not subjects of this writ petition.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on January 23, 2018, recommending that mother be provided with reunification services. The social worker reported that she interviewed mother on January 9, 2018, and mother admitted to not considering the safety concerns expressed by previous CFS workers to not have contact with father, due to the ongoing domestic violence between them. On November 16, 2017, CFS social workers spoke with mother, who said that in September, father was using drugs and punched her in the face. The social workers offered domestic violence services, but mother declined to engage in a safety plan and/or participate in services, stating she did not do anything wrong; however, when she was informed that without intervention she may lose her children, she agreed to participate.
However, on December 30, 2017, mother and the children visited father at his home because she felt it was important for them to spend time with their father. Mother allowed the children to have unsupervised contact with him. Also, during that visit, she and father had an altercation, where father screamed in her face and berated her, while T.B. was strapped to her in a baby carrier. Father pushed her to the ground, grabbed her, and pushed her into the television. Mother told the social worker that she discovered a mark on T.B.'s ear and took him to the hospital since she feared the mark was caused during the altercation. Mother told the hospital staff T.B. was strapped to her chest while father was physically abusing her. However, it was determined that the mark was not caused by the altercation. Mother admitted that she made a mistake by letting father see the children and staying the night at his home. The children were removed from her as a result of the incident on December 30, 2017.
During the interview on January 9, 2018, mother said that she and father had been in a relationship since 2014, and the verbal and physical abuse started the following year when she discovered that he was using methamphetamine and was unfaithful to her. Mother admitted that father had been physically abusive to her when the children were present. The social worker asked mother about getting a restraining order against father. Mother said she attempted to get one, but father told her he would stop abusing her. She believed him and did not follow through with a restraining order.
Mother subsequently obtained a restraining order against father on January 11, 2018. Regardless, she allowed father into her home the next day because he said he needed to pick up his belongings.
The restraining order was filed on February 2, 2018, and is set to expire on February 2, 2021. --------
The social worker opined that mother continued to minimize her involvement in placing the children at risk of harm, as she allowed them to be present during numerous altercations between her and father.
The court held a jurisdiction/disposition hearing on January 25, 2018, and referred the matter to mediation.
The court held a contested jurisdiction/disposition hearing on April 6, 2018. Counsel for mother informed the court that there was an agreement to drop the allegation that T.B. sustained a laceration on December 30, 2017. The court sustained the amended petitions, finding that the children came within the provisions of section 300, subdivisions (b) and (j). The court declared the children dependents, removed them from the parents' custody, and ordered mother to participate in reunification services. Her case plan required her to participate in general counseling, a domestic violence program, and a parenting education program. The court added the requirement that the parents participate in conjoint counseling, and that mother undergo a psychological evaluation. Mother's counsel informed the court that mother had already completed a domestic violence program.
Six-month Status Review
The social worker filed a six-month status review hearing on September 28, 2018, recommending that the court continue mother's services. Mother completed the psychological evaluation on June 28, 2018. The clinical psychologist opined that she was only experiencing minimal symptoms of depression, which were related to her situation with CFS. The psychologist administered a test regarding mother's cognitive functions, and her abilities were estimated to be in the extremely low range. Mother told the psychologist she had a history of significant head injuries. During an early relationship, she suffered a head trauma that resulted in difficulty walking, concentrating, and memory issues. The psychologist thus "suggested" the diagnosis of "mild neurocognitive disorder due to traumatic brain injury."
The social worker further reported that mother completed a domestic violence program and a parenting education program. She had also participated in eight sessions of individual counseling. Mother reported on several occasions that she and father had made contact with each other, despite the active restraining order. The social worker inquired on several occasions whether the parents were comfortable engaging in conjoint counseling. Mother was not willing, since it would require that the restraining order be modified. Father said he did not want to participate in couples counseling.
The court held a contested six-month review hearing on November 5, 2018, and continued mother's services.
Twelve-month Status Review
The social worker filed a 12-month status review report on February 7, 2019, recommending that mother's services be terminated and a section 366.26 hearing be set. The social worker reported that she met with mother regarding her case plan on January 10, 2019. They spoke about her traumatic brain injury (TBI) and how it was currently affecting her. Mother stated it would be better off for the children to be adopted because of the TBI and admitted she could not keep them safe. She requested that the children be permanently placed with the current caregivers. The social worker concurred that returning the children to mother would be a detriment, since mother had been diagnosed with a TBI, resulting in memory loss and "black out symptoms."
The court held a contested 12-month status review hearing on February 28, 2019. At the request of mother's counsel, the court appointed a guardian ad litem (GAL) for mother. Mother agreed that one should be appointed, since she was confused about certain aspects of the case. The court appointed one and set the matter contested on behalf of mother.
The court held the contested hearing on March 21, 2019. Mother was represented by counsel and her GAL. County counsel stated CFS's view that mother was not in a position to care for the children on her own, but could possibly care for them if she had family assistance. County counsel informed the court that mother agreed to seek out family assistance. Mother's plan was that the maternal grandfather, who lived in Nevada, would most likely move to the Barstow area and obtain a job, and that he would have her and the children live with him, when appropriate. Additionally, CFS wanted mother to complete another domestic violence program and see a neurologist so that it could get "a better understanding of what she [was] capable of doing with her [TBI] diagnosis." Thus, county counsel wanted the case plan updated to require mother to see a neurologist and comply with any recommendations regarding her TBI. Mother's counsel affirmed that mother was in agreement with everything. The court continued mother's services and approved the amended case plan to include the requirements that she complete a domestic violence program, see a neurologist (under her own insurance), and comply with the neurologist's recommendations.
Eighteen-month Status Review
The social worker filed an 18-month status review report on June 25, 2019, recommending that mother's services be terminated, that adoption be the permanent plan, and that a section 366.26 hearing be set. On May 10, 2019, the maternal grandfather reported that he had yet to find a job and had been rejected from two that he had applied for. He also stated that the family had a meeting, and they did not want the children to be "adopted out." Then he said placing the children "would be a detriment," since they had formed a bond with their current caretakers.
The social worker reported that mother was given referrals for domestic violence classes and individual counseling. On April 1, 2019, mother reported that she had started her classes and had scheduled an appointment with her doctor to get a referral for the neurologist. On May 2, 2019, mother reported that her doctor "messed on the referral" and that she was still waiting for an appointment with Niva Institute of Neuroscience (Niva).
Mother was evaluated by a doctor at Niva on June 6, 2019. She reported that she had a brain injury in 2016 when she was head butted and had since had an episode of blacking out; she also had been having headaches and dizziness. The evaluation report showed that mother's alertness, orientation as to time, place, and people, and memory were "normal and present," as were all other neurologic functions that were tested. The report indicated that there would be an electroencephalogram (EEG) planned for a future date, that there was an MRI or CT scan "ordered, reviewed or requested," and that mother was to follow up with NIVA in four weeks.
The social worker spoke with the therapist with whom mother had met four times since May 2019. The therapist opined that mother appeared to put responsibility on other people and that there was a lack of progress "due to denial and avoidance." Mother self-reported that she would forget things. The therapist was concerned about her mental and emotional stability and parenting skills.
Additionally, the social worker reported that mother had been having visits, but was observed to be "not active during visitation, sitting in the corner of the visitation room." Furthermore, mother turned in a certificate of completion for 12 weeks of the domestic violence program.
Ultimately, the social worker opined that mother failed to show significant progress "in her case plan and [in] showing protective measures" and that reunification was unlikely.
The court held an 18-month review hearing on June 28, 2019. Mother's counsel objected to the termination of services and the setting of the section 366.26 hearing, but offered no affirmative evidence. The court adopted the findings and orders provided by county counsel, including that reasonable services were provided that were designed to overcome the problems leading to removal of the children, and that mother failed to make substantive progress in her case plan. The court terminated her services and set a section 366.26 hearing for October 28, 2019.
ANALYSIS
There Was Substantial Evidence to Support the Court's Finding That Reasonable
Services Were Provided to Mother
Mother contends there was insufficient evidence to support the finding that she was provided with reasonable services designed to address her special needs. She asserts that there were no services provided or offered to address the issues resulting from her TBI (e.g., the memory loss and blackouts), which were "the very issues that led to the court setting the .26 [hearing]." She adds that the issues which led to the removal of the children "were, in effect, supplanted by the later discovered issues of [her] memory loss and blackouts." She further argues that CFS failed to make any efforts to assist her "where compliance with the Agency's plan involving the grandfather proved difficult." Mother's claims are meritless.
A. Relevant Law
"When reunification services are ordered, the reunification plan 'must be specifically tailored to fit the circumstances of each family [citation], and must be designed to eliminate those conditions which led to the juvenile court's jurisdictional finding.'" (In re Precious J. (1996) 42 Cal.App.4th 1463, 1474.) "Services will be found reasonable if the Department has '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 . . .).' " (In re Alvin R. (2003) 108 Cal.App.4th 962, 972-973.)
"A social services agency is required to make a good faith effort to address the parent's problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult. [Citation.] . . . '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.' " (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598-599 (Katie V.).)
"[W]ith regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762 (Angela S.).) "We determine whether substantial evidence supports the trial court's finding, reviewing the evidence in a light most favorable to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling." (Katie V., supra, 130 Cal.App.4th at p. 598.)
B. Mother's Claim is Forfeited
At the outset, we note that mother's claim she was not provided with reasonable services is forfeited because it was not raised in the juvenile court. (See In re T. G. (2015) 242 Cal.App.4th 976, 984.) "[A]lthough an appellate court has the discretion to excuse such forfeiture, it should do so 'rarely and only in cases presenting an important legal issue.' [Citation.] This is especially true in juvenile dependency cases, which involve the well-being of children and in which 'considerations such as permanency and stability are of paramount importance.' " (Ibid.)
C. There Was Substantial Evidence to Support the Court's Finding
Notwithstanding the forfeiture, we have reviewed the record and find mother's argument unavailing. The court ordered her to participate in general counseling, a domestic violence program, a parenting education program, and conjoint counseling with father, as well as undergo a psychological evaluation. The record indicates that she was provided with services designed to assist her with meeting these case plan requirements. Mother participated in predisposition services, and by April 2018, when the court took jurisdiction, she had completed a 12-week domestic violence program and a parenting program. Mother completed the psychological evaluation on June 28, 2018. The psychologist stated that she was only experiencing minimal symptoms of depression related to her situation with CFS. Mother started participating in therapy, but was notably continuing to make contact with father, despite the restraining order. By October 2018, mother completed all the components of her case plan, with the exception of conjoint counseling, which could not be completed since there was an active restraining order in place, and because father refused to participate in conjoint sessions.
Subsequently, at the 12-month review hearing, the court added the requirements that mother complete another domestic violence program, see a neurologist, and comply with the neurologist's recommendations. The social worker reported that she was given referrals for domestic violence classes and individual counseling. On May 17, 2019, mother completed her second 12-week domestic violence program. In May 2019, she also started individual counseling with a new therapist. On June 6, 2019, she was evaluated by a neurologist. The evaluation report showed that all the neurologic functions tested were normal, including her alertness, orientation, and memory.
Thus, the record discloses substantial evidence that supports the juvenile court's finding that reasonable services were provided and that mother participated in them. (See Angela S., supra, 36 Cal.App.4th at p. 762.)
Furthermore, we find mother's claim that the evidence was insufficient to support the finding she was provided services to address her special needs to be disingenuous. She asserts there were no services offered "to address the issues resulting from her traumatic brain injury—the memory loss and blackouts—the very issues that led to the court setting the .26 [hearing]." However, "the focus of reunification services is to remedy those problems which led to the removal of the children." (In re Michael S. (1987) 188 Cal.App.3d 1448, 1464.) The court here removed the children from mother's custody because they were exposed to domestic violence incidents between her and father, and she failed to protect them. She also had a history of depression that impaired her ability to care for the children. As discussed ante, mother was provided with reasonable services to address these issues. Contrary to her claim, CFS was not required to provide services to address her memory loss and blackouts, since the children were not removed due to those issues.
We recognize the court added components to mother's case plan at the 12-month review hearing, requiring her to see a neurologist and comply with the neurologist's recommendations. This addition was at the request of CFS, simply so it could get "a better understanding of what [mother was] capable of doing with her [TBI] diagnosis." Accordingly, mother was evaluated at Niva, and the doctor recommended that she have an EEG done and follow up with an appointment at Niva in four weeks. Mother presented no evidence at the 18-month review hearing that she complied with those directions. In her writ petition, she appears to cast blame on CFS, stating, "Why order a neurological exam if the Agency, itself, was not going to follow through?" However, it was mother's responsibility to follow through with the neurologist's recommendations.
Furthermore, mother's claim that her memory loss and blackouts led the court to set the section 366.26 hearing is false. The court set the section 366.26 hearing because mother failed to show significant progress in her case plan and made minimal progress toward alleviating or mitigating the causes necessitating placement; thus, return of the children to her would create a substantial risk of detriment to them. As late as June 2019, her therapist reported that she denied responsibility regarding the incidents that led to the removal of the children. The reasons cited for mother's lack of progress were "[d]enial and avoidance to discuss."
Finally, we note mother's contention that CFS failed to make any efforts to assist her "where compliance with the Agency's plan involving the grandfather proved difficult." However, the record shows that, at the time of the 12-month review hearing, mother admitted it would be better off for the children to be adopted since she could not keep them safe. CFS suggested the possibility that she could care for them if she had family assistance. Mother agreed to seek family assistance and proposed the idea of the maternal grandfather moving to the Barstow area and obtaining a job, so they could live with him. (Unfortunately, he was unable to find a job in the area.) Thus, the idea of having the maternal grandfather move to the area was not part of the case plan requiring services, but rather mother's plan to get family assistance.
In sum, rather than showing CFS failed to provide reasonable services, the record reveals that mother was provided with services, but failed to benefit from them. We conclude there was sufficient evidence to support a finding that the services provided were reasonable. (Katie V., supra, 130 Cal.App.4th at p. 598.)
DISPOSITION
The writ petition is denied. The request for a stay of the section 366.26 hearing is also denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. RAPHAEL
J.