Opinion
D071324
02-28-2017
JOSE R. et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY et al., Real Parties in Interest.
Dependency Legal Services of San Diego and Nicole J. Johnson for Petitioner Jose R; Steven Shenfeld for Petitioner N.R. No appearance by Respondent. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Real Party in Interest San Diego County Health and Human Services Agency. Children's Legal Services of San Diego and Beth Ploesch for Real Party In Interest, A.R., a Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EJ4003) PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Gary M. Bubis, Judge. Petitions denied; requests for stay denied. Dependency Legal Services of San Diego and Nicole J. Johnson for Petitioner Jose R; Steven Shenfeld for Petitioner N.R. No appearance by Respondent. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Real Party in Interest San Diego County Health and Human Services Agency. Children's Legal Services of San Diego and Beth Ploesch for Real Party In Interest, A.R., a Minor.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Jose R. (Father) and N.R. (Mother) separately seek writ review and stay of a juvenile court order denying reunification services as to their minor daughter, A.R. and setting a section 366.26 hearing. Both Father and Mother contend the court abused its discretion in granting A.R.'s petition under section 388 requesting termination of their reunification services. Mother also contends there was not substantial evidence to support the court's finding that the San Diego County Health and Human Services Agency (Agency) provided her reasonable services. We deny the petitions and the petitioners' requests for a stay.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2015, the Agency received a referral from its Child Abuse Hotline reporting that the parents had a history of smoking methamphetamine. There was concern that Mother had been smoking methamphetamine while A.R. was in her care and that she had untreated mental health problems, including speaking about time machines and demons and spirits walking around her home. In addition, she reportedly had not been bringing her children to school.
During the Agency's investigation, Mother presented as disoriented and paranoid. She initially denied using drugs, but eventually admitted she had used methamphetamine or other drugs two or three days earlier. She reported that there had been physical fighting between her and Father and that he had hit her "a couple of times" and they had thrown things at each other. Father reported that Mother started using drugs and having mental health issues after her son Dominic's father died. He stated that although domestic violence between him and Mother used to occur daily, "since the last CPS referral, we've gotten a lot better."
Thirteen-year-old Dominic had been staying with an uncle for the past few months and stated he did not want to return to Mother's home because, "my mom's a bit crazy." He told the social worker Mother "talks about crazy stuff, like saying that she owns Apple, iTunes and Bluetooth. She talks about flying and time travel." He thought Mother needed "a psychiatric hospital . . . where they have those white suits and a therapist." Dominic also reported there had been fighting or arguing at Mother's house, stating, "I guess they're getting a divorce. They get drunk a lot and usually my stepdad will go to a hotel or something like that. The cops have been there a lot in the last few months."
Dominic was an enrolled member of the Sycuan tribe and was in a tribal guardianship with his paternal uncle.
A.R. told the social worker that "Mommy and Daddy fight[,]" and that "they push each other a lot and hit each other." She said they hit each other "all over [their bodies]." When asked how often they fought, A.R. said, "I don't know. A lot. I don't know why they fight a lot. I kinda get scared and I want my grandma."
In January 2016, the Agency filed a petition on behalf of A.R. under section 300, subdivision (b)(1), alleging that between August 2015 and the present, A.R. was periodically exposed to violent confrontations in the family home between Mother and Father involving the use of physical force, and the parents had ongoing domestic violence, placing A.R. at substantial risk of serious physical harm. The court found a prima facie showing had been made on the petition and detained A.R. in foster care. The court ordered the Agency to provide the parents services as soon as possible, including crisis intervention, case management, counseling, and transportation. The court further ordered liberal visitation between A.R. and the parents.
In the jurisdiction/disposition report filed on February 4, 2016, Agency social worker Jessica Angeles reported that A.R. was detained in a relative's home and recommended A.R. be placed there. Angeles also recommended the parents be provided reunification services and be assessed by a substance abuse specialist and that Mother be ordered to undergo a psychological evaluation.
Angeles interviewed A.R. at school and asked how her parents got along at home. A.R. responded, "Good, but sometimes they fight, but not all the time." The fighting made her cry and ask for her grandmother. When asked if anyone got hurt when they fought, A.R. said, "Only my mommy and daddy get hurt. They kinda get hurt all over." She said they pushed each other and fought with their hands, and "argue[d] with words."
Angeles spoke by phone with Mother on January 25, 2016, and Mother agreed to meet with Angeles at Angeles's office the next day at 1:30 p.m. Angeles asked that Father attend as well. The next day Mother called Angeles at 1:48 p.m. and said she was running late but would be at the office by 2:30 p.m. Angeles waited about an hour and a half at her office for Mother and later received a voicemail from Mother stating she could not find the office and would prefer to meet at a "Starbucks or eatery of your choice."
In a phone conversation on January 28, Angeles asked Mother if she and Father were willing to schedule an appointment to discuss the case with her and develop a case plan. Mother asked if Angeles could "do it now" over the phone. Angeles explained that she had less than 20 minutes due to another appointment and wanted to schedule an appointment to meet with Mother in person on February 1, 2016. After additional conversation during which Mother became upset when Angeles asked about her drug use, Angeles again asked if Mother and Father were willing to meet with her on Monday, February 1, 2016, at 10:00 a.m. Mother responded, "Right now, I'm not sure. I'm not sure because Monday can come around and I can disappoint you again or get a bad feeling." When Angeles asked Mother what she meant, Mother hung up the phone.
Neither parent showed up for the 10:00 a.m. appointment with Angeles on February 1. At 4:05 p.m., Mother came to Angeles's office and said she was there for a visit with A.R. Angeles explained to Mother that no one had heard from her to confirm the visit and A.R. was no longer there. Angeles told Mother she could visit the following Monday but would need to confirm that morning that she would attend the visit. Mother became increasingly upset and began to ramble, asking for Angeles's driver's license to confirm that Angeles was a United States citizen. Angeles attempted to "de-escalate" mother and explained she would not be getting a copy of Angeles's driver's license. Angeles gave Mother notice of the next court hearing (February 9, 2016) and reminded her that she could visit A.R. the next Monday if she confirmed that she would attend.
Angeles reported that the parents had minimal contact with A.R. since she was removed from their care and had not met with Angeles to discuss services, although they were provided a list of county referrals that included drug treatment classes, parenting classes, domestic violence classes, and counseling. The Agency had been unable to randomly drug test the parents due to their uncooperativeness and lack of contact with the Agency. Mother had made various excuses as to why she could not meet with Angeles and Father would not return Angeles's phone calls.
Angeles further reported that Mother had been recently been arrested for DUI (driving under the influence) and for trespassing on the Sycuan reservation. A search of her vehicle revealed two small baggies containing methamphetamine and three glass pipes. Mother was cited for three federal violations: paraphernalia, possession of methamphetamine, and trespassing. Angeles's assessment was that the parents had shown no insight into the protective issues. Mother minimized the domestic violence and substance abuse issues and neither parent had engaged in services.
An incident report prepared by the Sycuan Tribal Police Department stated that Mother was trespassing at the residences of Joe S. and Alana S., presumably relatives of Dominic.
The Agency filed an amended petition on February 8, 2016, to add a second count under section 300, subdivision (b)(1), alleging that Mother "had a mental illness, as evidenced by, but not limited to, the mother's behaviors, such as trespassing on an Indian reservation despite an existing expulsion order, resisting arrest, and driving recklessly while in possession of a useable amount of methamphetamine. Further, the mother has expressed thoughts of being God and traveling through time, in addition to making threats of killing [A.R.] if the child is taken away from her custody . . . ."
In an addendum report filed on March 3, 2016, Angeles reported on visitation between A.R. and the parents. Father had three independent (without Mother) visits in February that had been positive with no noted concerns. Mother had two visits during which her behavior was concerning at times. She questioned A.R. about her placement and appeared to be preoccupied with being on her phone. She left Angeles a note after her second visit stating that A.R. needed to come home as soon as possible and requesting that future visits with Father be "at public 'fun' areas like Chuck E Cheese, or Park, or McDonalds that [are] kid friendly but not just in a small room." Multiple times when Mother called A.R. at the caregiver's home, the caregiver had to end the call because Mother continually questioned A.R. about her placement and told A.R. she was going to pick her up. On one occasion she sent the caregiver a nonsensical text message in which she stated she was "God."
Angeles reported that the Agency continued to be concerned about Mother's mental health and possible substance abuse. Both parents continued to be out of contact with the Agency except for attending visits with A.R. Although Father stated he was willing to do anything to get A.R. returned to his care, he also stated he would not leave Mother and had not been in contact with the Agency regarding services. Mother continued to deny responsibility for any of the protective issues and continued to blame others, including A.R.'s caregivers.
In an addendum report filed on March 10, 2016, Angeles stated she had met with Mother on March 7th after a visit with A.R. Mother complained that Angeles was treating her and Father like they were separated and not married and asked that her visits with A.R. take place in a public setting. Angeles explained that visits would remain in the Child Welfare Services office supervised by a social worker due to concerns about Mother's mental health and substance abuse. Mother demanded to speak to Angeles's supervisor and Angeles gave her the supervisor's contact information. Mother then began to ramble and repeatedly ask Angeles, "Are you doing this for an [A]pple account? Is this about an [A]pple account?" Mother walked away and left the building after Angeles told her she did not understand what she was referring to.
Angeles attempted to contact Father by phone on March 9, 2016, to speak about random drug testing and services specified on the case plan. She left Father a message stating that it was important for him to contact her, but had not heard back from him.
At the jurisdiction/disposition hearing on March 23, 2016, the court sustained the amended petition and made true findings on both counts. The court declared A.R. a dependent of the court, removed her from the parents' custody, and continued her relative placement. The court ordered reunification services and supervised visitation for the parents and ordered Mother to undergo a psychological evaluation.
In September 2016, Agency social worker Michelle Gibson filed the status review report for the six-month review hearing. Gibson reported that on April 16, 2016, police responded to the parents' home to investigate Mother's allegations of illegal sexual activity between Father and Dominic. The allegations were not confirmed, but Father was seen to have minor abrasions on his left shoulder and right wrist, and visible redness on the back of his neck. The police arrested Mother for spousal/cohabitant abuse with minor injury.
Mother had not been engaged in reunification services during the six-month review period. Mother was referred for a psychological evaluation with Dr. Kristin Filizetti, who tried to contact Mother several times. Gibson scheduled an appointment for August 16, 2016, and then attempted to call Mother several times to inform her of the appointment. Gibson left a voicemail and sent Mother a letter with the information about the appointment. She also spoke to Father on August 9 and gave him the information about Mother's appointment. On August 20, 2016, Dr. Filizetti informed Gibson that she had not met with Mother and Mother had not returned any of her phone calls. Because Mother had not undergone a psychological evaluation, there were no treatment recommendations to report.
On June 28, 2016, Gibson and social worker Patrice Clark met with Mother and she told them she was interested in participating in services. Gibson informed Mother she would get referrals and contact Mother. Gibson attempted to contact Mother by phone on June 29, July 22, and August 23, 2016, but was unsuccessful. She went to Mother's home unannounced on August 10, 2016, but there was no answer. Gibson also sent Mother letters on July 18 and August 9, 2016. Mother called Gibson and left messages for her on August 10 at 8:50 p.m. and August 22 at 4:22 p.m. Because Gibson had not been able to contact Mother, Mother had not yet participated in a domestic violence group, as she was recommended to do before participating in individual counseling or a parenting program.
Mother's case plan required her to participate in a parenting program, drug/alcohol treatment program, AA/NA (Alcoholics Anonymous/Narcotics Anonymous) meetings, and random drug testing. On June 28, 2016, Gibson asked Mother to provide a drug test and Mother agreed to do so. On July 1, 2016, Gibson was informed that Mother failed to appear for her scheduled drug test. Gibson did not know whether Mother was participating in a parenting program, AA/NA meetings, or a substance abuse program because she had been unable to contact Mother.
Father's case plan required him to attend a domestic violence group. On April 26 and May 25, 2016, Clark provided Father with referrals for services and went over his case plan with him. On May 25 Clark sat with Father while he made calls to arrange for counseling, a domestic violence program, a parenting program, and a substance abuse program. As of the filing of the six-month review report (September 2016), Father had not attended any programs.
Father was offered individual counseling to address issues of domestic violence, parenting, healthy boundaries, communication, substance abuse, addictive lifestyle, intimacy, coping strategies for stress, and how to not let these issues impact his ability to safely parent A.R. Father informed Gibson on August 9, 2016, that he had identified a therapist. The same day, the therapist called Gibson and informed her he would be scheduling an appointment with Father for that week. On August 11, Gibson received a message from the therapist that Father did not show up for his appointment and the therapist would not reschedule.
Gibson reported that parenting education had been removed from Father's case plan because Father had "not shown any concerns regarding his parenting abilities." Father underwent drug tests in April, May, and June, and all three tests were negative.
In the assessment/evaluation portion of the six-month review report, Gibson noted the parents had not yet engaged in services and it had been difficult to contact them. Although the parents had received referrals for services, they had not attended their appointments. Mother had expressed interest in participating in services and visitation, but had not made herself available to discuss services and visitation. Clark and Gibson had made numerous unsuccessful attempts to contact Mother regarding services. Father had made attempts to engage in services. He reported that he had made phone calls for therapy but had not been successful in arranging it.
On September 20, 2016, A.R.'s counsel filed a section 388 petition on A.R.'s behalf asking the court to terminate both parents' reunification services and set a section 366.26 hearing to determine a permanent plan for A.R. The petition alleged: "Since reunification services were ordered to the parents, neither has enrolled in or participated in any services. While the father has visited and had negative drug tests, the mother has not visited and has also missed her drug testing. The parents continue to reside together and have not made any changes to their lives to alleviate the risk to [A.R.] . . . ." The petition further alleged: "The parents have not made any changes to their circumstances and have not put in any real effort to do so. [A.R.] is placed with a relative who will provide her with permanency should reunification efforts fail. It is in her best interests to be provided permanency and stability now and not wait around for her parents to make an effort to reunify with her."
The court made prima facie findings of changed circumstances and that it may be in A.R.'s best interest to grant the relief requested in the petition. The court set a contested hearing on the petition.
In an addendum report filed on October 28, 2016, Gibson reported that Mother had been incarcerated for two months and continued "to have some 'delusional' thinking." Gibson contacted the visitation deputy at the jail (Las Colinas) about setting up visitation between Mother and A.R. but was informed she could not have in-person visitation in the module she was in; she could have only phone calls and video visitation. A.R.'s caregiver reported she would attempt to answer Mother's phone calls to A.R. and set up a video conference for Mother and A.R.
When Gibson visited Mother in Las Colinas on October 7, 2016, Mother did not appear to know why she was in jail and stated her incarceration was unconstitutional because she had not been convicted of a crime. She did not appear to understand that her criminal case and A.R.'s dependency case were separate. A referral for a psychological evaluation of Mother was completed and the evaluating psychologist informed Gibson on October 27, 2016 that he would see Mother at Las Colinas before her possible release date of November 4, 2016. A counselor at Las Colinas told Gibson that Mother had undergone psychiatric evaluations there.
Father failed to show up for an appointment he scheduled with Gibson for September 22, 2016. However, he rescheduled and Gibson met with him on October 5th at his home. Gibson gave Father a list of providers who offered domestic violence counseling. Father selected domestic violence counselor Mauricio Cruz, who informed Gibson there were currently no domestic violence victim groups for men but he could provide individual counseling. Gibson submitted a referral for Father to receive individual counseling from Cruz. Father had been consistently visiting A.R. and there had been no concerns regarding his visitation. Father's drug tests had been negative.
The court held the combined contested hearing on A.R.'s section 388 petition and six-month review hearing on November 9, 2016. The court heard testimony from Gibson and received into evidence Gibson's six-month review report, subsequent addendum report, and curriculum vitae. Gibson testified that a psychological evaluation was ordered for Mother in March 2016 but Mother had not yet undergone an evaluation. She further testified that Father's progress in complying with the case plan was minimal, and Mother had made no progress. She stated A.R. was doing well in her current placement and her caregivers were willing and able to provide her long-term care.
The Agency asked the court to continue A.R. in her current placement and continue reunification services for the parents to the 12-month date. Mother's counsel and Father's counsel asked the court to continue services and deny A.R.'s section 388 petition. A.R.'s counsel argued the court should terminate the parents' services because their failure to participate in services made it unlikely they would reunify with A.R. by the 12-month review date.
The court orally announced its finding that returning A.R. to the custody of the parents would create a substantial risk of detriment to her physical and emotional well-being. The court also found that reasonable services had been provided to the parents. Turning to A.R.'s section 388 petition, the court stated, "I'm going to grant the 388. I want to note this. This doesn't give me the discretion that the statute dealing with six months review does. This statute set forth sets forth a standard of proof. If that proof is not met the moving party is entitled to prevail. The court can find by clear and convincing evidence that the parents have failed to participate regularly and make substantive progress in court-ordered treatment programs." The court terminated the parents' services and set a section 366.26 hearing.
The court in its written order found that reasonable services had "been provided to or offered to the parents . . . ."
DISCUSSION
I. Termination of Reunification Services
Father and Mother contend the court abused its discretion in granting A.R.'s section 388 petition requesting termination of their reunification services. Section 388, subdivision (c)(1) provides that a party, including a child who is a dependent of the juvenile court, may petition the court to terminate court-ordered reunification services before a section 366.21 review hearing "only if one of the following conditions exists: [¶] (A) It appears that a change of circumstance or new evidence exists that satisfies a condition set forth in subdivision (b) or (e) of Section 361.5 justifying termination of court-ordered reunification services. [¶] (B) The action or inaction of the parent or guardian creates a substantial likelihood that reunification will not occur, including, but not limited to, the parent's or guardian's failure to visit the child, or the failure of the parent or guardian to participate regularly and make substantive progress in a court-ordered treatment plan."
This case does not involve the more common section 388, subdivision (a) petition, which requires the court to determine whether changed circumstances exist and whether the proposed modification of an order would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) There is no express requirement in section 388, subdivision (c)(1)(B) for a showing or a finding that the termination of services is in the child's best interests.
To grant the petition, the court must make the finding required to terminate services by clear and convincing evidence, and must find by a preponderance of the evidence that the parent was provided or offered reasonable services. (§ 388, subd. (c)(3).) Further, in determining whether a parent has failed to visit the child or participate regularly or make progress in the treatment plan, the court must "consider factors that include but are not limited to, the parent's . . . incarceration, institutionalization . . . or participation in a court-ordered residential substance abuse treatment program." (§ 388, subd. (c)(2).)
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
The decision whether to grant a section 388 petition is addressed to the sound discretion of the juvenile court. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) In exercising its discretion to grant or deny a petition to terminate reunification services under section 388, subdivision (c), "the court has 'the ability to evaluate whether the parent will utilize additional services and whether those services would ultimately inure to the benefit of the minor.' [Citation.] We will not disturb the court's determination unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our judgment for that of the juvenile court." (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881.)
Both parents suggest the court improperly shifted the burden of proof on A.R.'s section 388 petition to the parents, citing the court's oral statement that if the standard of proof under section 388 "is not met the moving party is entitled to prevail." It is clear from the court's overall oral ruling and written order that the court did not shift the burden of proof on the petition. As noted, to grant a petition to terminate reunification services under section 388, subdivision (c), the court must make the required finding by clear and convincing evidence, which necessarily means the petitioner bears the burden of proving the allegations supporting the request to terminate services by clear and convincing evidence.
Referring to section 388, the court stated: "This statute sets forth a standard of proof. If that proof is not met the moving party is entitled to prevail." (Italics added.) Reading that remark in context, we conclude the court inadvertently misspoke by inserting the word "not" before the word "met," and meant to say: "If that proof is met the moving party is entitled to prevail." Immediately following its misstatement, the court stated: "The court can find by clear and convincing evidence that the parents have failed to participate regularly and make substantive progress in court-ordered treatment programs." The court's written order likewise states: "The court finds by clear and convincing evidence the parents failed to participate regularly and make substantive progress in a Court-ordered treatment plan."
Thus, the court unquestionably complied with section 388, subdivision (c)(3)'s mandate that it make the finding required to terminate services by clear and convincing evidence, which necessarily means it found that A.R. met her statutory burden of proof on the section 388 petition. If the court had truly been under the mistaken view that the parents had the burden of proof to defeat the allegations of the petition, it presumably would have ruled that the parents failed to meet their burden, rather than finding by clear and convincing evidence that the parents had failed to make substantive progress in their case plans—i.e., participate in reunification services, as alleged in A.R.'s petition.
We conclude substantial evidence supports the court's findings that reasonable services had been provided or offered to the parents and that the parents failed to participate regularly and make substantive progress in their court-ordered treatment plans. Father's case plan called for him to participate in general counseling to address "issues of domestic violence, parenting, healthy boundaries, communication, substance abuse, addictive lifestyle, intimacy, coping strategies for stress, and how to not let these issues impact his ability to safely parent [A.R.]" Father's case plan also called for domestic violence counseling and substance abuse treatment.
The Agency and Father agreed in March 2016 that Father would participate in random drug testing and attend two Al-Anon and Nar-Anon meeting per week in lieu of a substance abuse treatment program. As noted, parenting was removed from Father's case plan.
In April and May 2016, social worker Clark went over Father's case plan with him and provided him with referrals. In June 2016, Clark reminded Father that if he and Mother did not make progress or participate in reunification services, they may not be able to reunify with A.R. Gibson's report for the six-month review hearing, filed in September 2016, noted that Father had not yet attended any programs, and neither parent had engaged in reunification services. In August 2016, a therapist Father selected for his individual counseling informed Gibson that Father failed to attend his first scheduled appointment and that the therapist would not reschedule an appointment.
In October 2016, Gibson provided Father with a list of domestic violence counselors and Father selected one (Cruz) who could provide individual counseling. A referral was submitted for Father to receive counseling from Cruz, but there is no evidence in the record that the counseling occurred. Although Father agreed to attend Al-Anon and Nar-Anon meetings, there is no evidence in the record that he ever did so. At the hearing on the section 388 petition, Gibson testified that Father's progress with his case plan had been "minimal." Based on the entire record, the court could reasonably find Father's participation in his case plan had been limited to his undergoing four drug tests and visiting A.R., his progress in his case plan if services were not terminated would continue to be minimal, and his inaction regarding services and lack of progress in his case plan created a substantial likelihood that reunification would not occur.
The evidence showed that Mother had made even less progress in her case plan than Father. Mother's case plan included drug testing and participation in a substance abuse treatment program, undergoing a psychological evaluation, domestic violence counseling, general counseling, and parenting education. Throughout the case, Mother resisted efforts by the social workers to arrange services and visitation for her. The Agency's six-month review report noted Mother had not been engaged in reunification services during the six-month review period. In the assessment/evaluation portion of the report, Gibson noted Mother had expressed interest in participating in services and visitation, but had not made herself available to discuss doing so. Both Clark and Gibson had made multiple unsuccessful attempts to contact Mother regarding services.
Mother was referred for a psychological evaluation and on August 3, 2016, Gibson scheduled the evaluation for August 16th. Gibson unsuccessfully attempted to inform Mother of the appointment and even gave the information to Father. The evaluating psychologist called Mother about the appointment, but Mother did not return any of the calls and did not show up for the appointment. Mother also failed to show up for a drug test she had agreed to undergo in June 2016. As noted, in the Agency's report for the six-month review hearing, Gibson stated that neither parent had engaged in reunification services and added that "[r]eferrals to services have been made but the parents have not attended their appointments."
Although it is unclear from the record whether Mother was incarcerated between August 3 and August 16, 2016, the six-month review report indicates she was not because it states that she called and a left message for Gibson on August 10th. In the addendum report filed on October 28, 2016, Gibson stated Mother had been incarcerated for two months. --------
Mother contends there was not substantial evidence to support the court's finding that the Agency provided her reasonable services. She asserts there is no documentation in the record that the Agency "had done anything to provide [her] with any services." We disagree with Mother's interpretation of the record. As noted, the social workers made numerous efforts to engage Mother in services and visitation, but Mother resisted those efforts. Clark unsuccessfully attempted to call Mother on four different days and attempted two home visits, and Gibson also unsuccessfully attempted to contact Mother by phone and attempted two home visits. Gibson reported for the six-month review hearing that she had attempted to contact Mother several times "to discuss her services and treatment" but the attempts were unsuccessful. She further reported that when the parents had received referrals for services, they had not attended their appointments.
Mother contends the court failed to properly consider the barriers her incarceration created to her participation in services and that an appropriate case plan could not be developed for her without the psychological evaluation the court ordered her to undergo. Mother's failure to undergo the psychological evaluation was largely the result of her own inaction—specifically, her resistance to meeting with the social workers to address reunification services for months prior to her incarceration. The social workers could not realistically be expected to arrange a psychological evaluation before having a meaningful meeting with Mother to address her case plan and reunification services. When Gibson finally made an appointment for Mother to see a psychologist in August 2016, Mother did not show up for the appointment.
When Gibson learned that Mother was incarcerated at Las Colinas, she asked the court to order a psychological evaluation for Mother there. The psychologist reported that he would schedule a visit with Mother before her possible release date of November 4, 2016. Gibson also inquired about arranging visitation between Mother and A.R. at Los Colinas. Mother's counselor at Las Colinas informed Gibson that Mother was in a "non-program dorm" and was not allowed contact visits. The counselor reported that Mother had been seen by "mental health" at Las Colinas several times and a mental health clinician reported that Mother was scheduled to undergo a psychological evaluation and was taking Wellbutrin. The court could reasonably find that the Agency made reasonable efforts to provide or offer Mother services both before and during her relatively short period of incarceration, and the court presumably took Gibson's efforts during Mother's incarceration into account in making that finding.
In sum, the evidence sufficiently supports the finding that the Agency met its obligation to provide or offer reasonable services. The Agency cannot be faulted for the parents' failure to take the necessary steps to participate in services. " 'It is . . . well established that "[r]eunification services are voluntary, and cannot be forced on an unwilling or indifferent parent. [Citation.]" ' " (In re Nolan W. (2009) 45 Cal.4th 1217, 1233.) There is no " 'requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions. ' " (Ibid., quoting In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.) The court did not abuse its discretion in terminating the parents' reunification services and setting a section 366.26 hearing under section 388, subdivision (c).
DISPOSITION
The petitions are denied. The requests for stay are denied.
BENKE, J. WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.