Opinion
A153042
03-08-2018
J.Q., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. JD15-3314)
Petitioner J.Q. (Mother) seeks writ review (Cal. Rules of Court, rule 8.452) of a juvenile court order terminating parental rights and setting a hearing under Welfare and Institutions Code section 366.26. Mother challenges the juvenile court's determinations that she was provided reasonable reunification services and that the San Francisco Human Services Agency (Agency) made diligent efforts to locate and evaluate potential relatives for placement. We deny the petition.
All undesignated section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2015, the Agency filed a section 300 petition for J.Q. (Minor; born April 2014) after he sustained second-degree burns on his buttocks while in the care of his father, R.B. (Father). Mother took Minor to the hospital, although she may have delayed seeking care. Doctors concluded the burns were likely non-accidental.
Mother and Father were not living together but shared custody of Minor. Father has not filed a writ petition, and we omit background facts relating to him except where relevant to Mother's petition.
According to the detention report, Mother recently abandoned her housing due to ongoing problems with neighbors, and she and Minor were staying with Minor's maternal great-grandmother. Minor's three older half-siblings were staying with other relatives while Mother looked for stable housing. Mother had seven prior child protective services referrals for general neglect—three were evaluated out, three were deemed unfounded, and one was deemed inconclusive. Mother had no known domestic violence history. At the detention hearing, the juvenile court ordered Minor removed from Father and placed with Mother. In reports filed in advance of the jurisdiction/disposition hearing, the Agency recommended the petition be dismissed with sole custody awarded to Mother. On January 7, 2016, the juvenile court sustained the petition as amended and referred the parties to mediation for disposition orders regarding visitation.
The parties submitted to the following allegation: "The father has failed to protect the child, [Minor], in that the child sustained non-accidental injuries while in the father's care. SFGH Medical staff reported the child to have [sic] '18 m/o with second degree burns of bilateral buttocks'. The father's explanations of the child's injuries are not consistent. The father failed to seek necessary medical treatment for the child."
On January 27, 2016, the Agency filed a section 342 subsequent petition after Mother was arrested for shoplifting alcohol and baby clothes while with Minor and his half-siblings. According to the detention report, Mother " 'took a swing' " at the store's security guard and resisted arrest when police arrived. Minor's maternal grandmother (Grandmother) told the Agency about the arrest and said she believed Mother could possibly be using drugs. Grandmother also told the Agency that Minor was with Father following Mother's arrest. The Agency removed Minor from Father's custody and placed him in foster care. The Agency asked both Mother and Father if there were any family members able to care for Minor; neither identified anyone. The detention report stated Mother "continues to struggle with her housing" and, while she was working with service providers, "she has not followed through with their recommendations of staying in a shelter or applying for transitional housing. Instead, [Mother] would rather remain in the streets with the children." The report also noted "various family member[s] state that the children have been wearing clothes that do not fit them properly or are dirty." At the detention hearing, Minor was detained and placed in foster care.
Minor's older half-siblings were placed with relatives as temporary guardians.
At the March 2016 jurisdiction/disposition hearing, the parties submitted to amended allegations of the subsequent petition. The juvenile court declared Minor a dependent of the court and placed him in foster care. Mother's reunification plan included individual therapy, participation in a parenting program, substance abuse assessment and weekly drug testing, obtaining suitable housing, participation with the Families Moving Forward Program, and a psychological evaluation.
The parties submitted to the following allegations: "On or around 1/24/16 [Mother] was arrested for stealing 3 bottles of Patron tequila and children's clothes from Target while the child and his half-siblings were with the mother. She in fact put the items in the child's stroller for the purpose of exiting the store without the items being seen. Mother pleaded guilty and is currently on misd[emeanor] prob[ation]"; and "Mother has a possible substance abuse problem requiring assessment and treatment in that she was stealing alcohol to drink."
An August 2016 report filed in advance of the six-month review hearing stated Mother was living with the maternal great-grandmother but working with service providers to find other housing. Mother was participating in the parenting program, had completed a psychological assessment, and was attending weekly individual therapy. Mother completed a substance abuse assessment, which recommended drug testing; she had three normal tests, one positive test for alcohol, and eight missed tests. The report again noted Mother had no reported history of domestic violence. Mother had been attending supervised visitation with Minor. During the visits Minor frequently cried, got angry, and hit Mother, and Mother had been referred to therapeutic visitation. Minor was doing well in his foster placement and had formed a "healthy attachment" to his foster mother. The report stated that a maternal aunt (Aunt) submitted a request for placement and approval of her home was pending. If reunification is not successful and no relative is approved, Minor's foster family would be interested in moving forward with adoption. At the September 2016 six-month review hearing, the juvenile court ordered six more months of reunification services for Mother.
In December 2016, Mother filed a section 388 petition to end drug testing and allow unsupervised visits because she was scheduled to move to housing outside of San Francisco. The Agency and Minor's counsel both agreed with the request, and the juvenile court granted it.
In a February 2017 report filed in advance of the 12-month review hearing, the Agency recommended Minor be returned to Mother. Mother had moved into a 3-bedroom apartment in December and was living there with her 3-month-old baby. Mother's brother and the alleged father of her baby, D.S., frequently stayed at the apartment. Mother had been having biweekly unsupervised visits with Minor and weekend visits were scheduled to begin immediately. Mother was participating in weekly individual therapy but the Agency was waiting to hear back from Mother's therapist about treatment goals and progress. Mother had been participating consistently with Minor in the Infant Parent Program before her move, but only "sometimes" participated at the time the report was filed. Mother had recently agreed to start participating in Minor's weekly therapy sessions, but she missed the first session without calling, later reporting that she was sick. Mother had completed the parenting program, was attending monthly meetings with the Families Moving Forward program, and was responsive when contacted by the Agency. The report again noted she had no known history of domestic violence.
However, before the 12-month review hearing took place, the Agency filed a section 388 petition seeking to return to supervised visits. The petition stated that after weekend visits commenced, the Agency received information raising concerns about Minor's safety: there was "a lot of arguing and possible domestic violence" between Mother and D.S., including an incident where the front door gate was kicked in; D.S. was smoking marijuana in the apartment; Minor had a 102 degree fever and Mother did not take him to the hospital or consult with a doctor; Minor started using inappropriate language and mimics arguing; the maternal uncle found an unattended burning pan on the stove while Mother was asleep; and Mother is "often" sleeping while Minor is in the apartment unattended.
The juvenile court temporarily ordered Mother's visits supervised pending a hearing on the section 388 petition, which it set to be held at the same time as the 12-month review hearing. In an addendum report filed in advance of this hearing, the Agency changed its previous recommendation that Minor be returned to Mother, and instead recommended Minor remain in out-of-home placement with 6 additional months of reunification services. The report explained, "there are concerns about the mother's ability to provide adequate supervision for [Minor] and meet his needs. Additionally, there are concerns that the mother's relationship with [D.S.] is taking a priority over [Minor], preventing her from giving him the attention that he needs." The report stated that, at a recent family team meeting, the group consensus was that for unsupervised visits to resume, D.S. should no longer be in the home and service providers should provide support on the days Mother has unsupervised visits. The recommended case plan did not add any new service objectives to Mother's plan. At the March 2017 hearing, the juvenile court continued Minor in out-of-home placement, ordered additional reunification services for Mother, and granted the Agency's section 388 petition that Mother's visits be supervised.
In a July 2017 report filed in advance of the 18-month review hearing, the Agency recommended Mother's reunification services be terminated and a section 366.26 hearing be set. While supervised visits with Minor had been going well and Mother was participating in services, the Agency was "very concerned" about Mother's relationship with D.S. Before March, Mother informed the Agency that she and D.S. were not together and D.S. came by the home only occasionally to see Minor's younger half-sibling. At a family team meeting in March, Mother agreed that D.S. would no longer spend time in the home. However, in April, an Agency social worker conducted an unannounced home visit and found D.S. in the home. The social worker invited D.S. to attend family team meetings but he did not do so and also did not respond to outreach attempts from the Fatherhood Initiative program. In May, Mother's sister reported seeing marijuana paraphernalia on the living room table and a syringe in the kitchen garbage can at Mother's home (Mother said D.S. needed the syringe because he had Crohn's disease). On May 21, Mother called the police to report a domestic violence incident. Mother told police that D.S. pushed her while she was holding Minor's younger half-sibling, and that he punched her after she put the baby down. Mother later told the Agency that she had broken up with D.S. but he would not leave, so she called the police and made up the domestic violence incident. Later still, Mother said D.S. had broken up with her and when he left she called the police and made up the story. The Agency concluded, "it would not be safe for [Minor] to return to the mother's care due to the fact that there seems to be domestic violence and possible substance use in the home."
The report also stated Minor has a "close relationship with his current caregiver, the caregiver's extended family, and her adopted 5-year-old son." He had been with this caregiver for about 18 months, was "thriving" with her, and was "receiving excellent care." His caregiver would like to adopt him if reunification fails. Grandmother and Aunt also expressed interest in providing a permanent home for Minor. Minor had seen Grandmother when he was having unsupervised weekend visits with Mother, and Grandmother had recently requested visits with Minor which the Agency was in the process of arranging. The concurrent plan was adoption or guardianship with Minor's current caregiver or a family member. In an addendum report, the Agency revised its permanency recommendation to adoption by the current foster parent. The report stated the foster parent was "very much interested" in adopting Minor. The home assessments for Grandmother and Aunt were not yet complete.
In September 2017, the juvenile court granted the foster mother's request for de facto parent status. After continuances, the contested 18-month review hearing was held in November 2017. The Agency social worker who handled Minor's case from January 2017 through August 2017 testified his main concern about Mother was domestic violence. He first became concerned about domestic violence when the maternal uncle reported yelling between Mother and D.S., but he was not aware of any incidents involving physical violence until Mother's police report. Mother's counsel attempted to ask this social worker about relative placements. The juvenile court initially sustained the Agency's relevance objection to this line of questioning but subsequently allowed some testimony on the issue. The social worker testified that after Aunt's home inspection, "they wanted her to get new carpets and clean -- clean the house. That didn't happen for quite -- at all, I believe. And then she contacted me and sort of -- and withdrew her -- her interest in having him placed and said that [Grandmother] would be most appropriate. And [Grandmother] did express her desire to have [Minor] with her" at the March 2017 family team meeting. The social worker did not receive information about all the adults living in Grandmother's home until June, and he submitted the referral in June or July. The court excluded any further questioning of this witness on the issue under Evidence Code section 352.
The Agency social work supervisor who supervised the previous witness testified next. He testified that Aunt was present at a March 2017 family team meeting, where the decision was made not to consider Aunt for placement anymore. His recollection was that Aunt wanted Grandmother to take over the relative assessment process. Mother's counsel asked whether Aunt was told her application had lapsed and she would have to start the application process anew. The social work supervisor did not recall but testified it was possible because referrals are closed if requirements are not met after a certain amount of time.
The final Agency witness was the Minor's current social worker, who took over his case in September 2017. The social worker did not know whether D.S. still lived with Mother or whether they were still in a relationship. The social worker testified she agreed with the recommendation to terminate reunification services to Mother because "at the 18-month hearing we're still at supervised visits" and "there hasn't been a DV class completed." In the social worker's experience, education combined with therapy can be successful for parents with domestic violence issues, but it takes time and a 52-week program is "ideal." When asked the status of Grandmother's home assessment, the social worker testified that Grandmother had "some convictions that need to be exempted." The court excluded questioning about the nature of the convictions.
Grandmother testified she first requested to be considered for placement around February or March of 2017. She was not contacted about a home assessment until the end of July, and the home visit still had not taken place. The juvenile court precluded further questioning on this issue.
Aunt testified that she first asked to be considered for placement in January 2016, but the assessment process did not start until July of that year. She was told that she needed to change the carpet because of Minor's asthma. This process took some time to complete and when it was finally done, she was told she had to restart the home assessment process by getting a referral from the social worker. Aunt testified she told the social worker she still wanted to be considered, but a new referral was never made. In response to questioning from Minor's counsel, Aunt testified she leaves for work at 4 a.m. and returns home between 6:30 and 7 p.m.
Mother testified that she and D.S. were still "[u]nofficially" in a relationship. Minor was never present when she and D.S. argued. She and D.S. did not argue until March when he became an issue in Minor's dependency case. She did not recall yelling between her and D.S., but testified he yells in his sleep. She testified D.S. was currently in a program and focusing on anger management and his marijuana use. She talked to her individual therapist "a lot" about the issues with D.S. and she knew domestic violence classes were offered at Homeless Prenatal; she also had received a domestic violence referral following her police report, but she did not follow up with either. Mother wanted Minor to return to her care or, if that was not possible, to have him placed with Grandmother, who was already caring for two of Minor's half-siblings.
The juvenile court terminated reunification services and set a section 366.26 hearing. The court reasoned that, "as much progress as [Mother] has made, she has miles to go in her understanding of her relationship with [D.S.] and how that impacts an infant or a child. And I don't think it's reasonable to assume that she could make the progress she needs to make within the next six months." The court found the Agency made "substantial efforts" to find appropriate relative placements, noting it did not find Aunt's testimony credible. Finally, the court noted, "there's a total absence of a 388 to look at that [relative placement] issue," and going forward "there can be 388s filed if there's movement on some relative placement that hasn't happened that should have happened."
DISCUSSION
I. Reasonable Services
Mother first argues the juvenile court erred in finding the Agency provided her with reasonable services. We reject the challenge.
"The 'adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged according to the circumstances of each case.' [Citation.] To support a finding reasonable services were offered or provided, 'the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . .' [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.' " (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426.) We review the juvenile court's reasonable services finding for substantial evidence. (In re T.G. (2010) 188 Cal.App.4th 687, 697.)
Mother argues "the Agency's case plan lacked a vital component of services . . . namely, services to address the mother's victimization by her boyfriend's domestic violence." Although Mother contends the issue arose at the 12-month review, at that time the Agency only reported "possible" domestic violence between her and D.S. Moreover, two days before the 12-month review hearing, a family team meeting was held and Mother agreed that D.S. would no longer spend time at her home. After the 12-month hearing, when the Agency learned that D.S. was still in the home, it attempted to engage D.S. in services. It was not until Mother's May 2017 police report that the significance of the domestic violence issue became clear. At this point, Mother was still in individual therapy, and the scheduled 18-month review hearing was only two months away (although it was continued for some months because it was contested and referred to mediation).
There were other areas of concern at the time of the 12-month hearing, including D.S.'s drug use in the home, Mother's failure to supervise Minor, and Mother's failure to seek medical care for Minor.
The Agency provided the following services for Mother: individual therapy, dyadic therapy, parenting classes, housing assistance, psychological assessment, substance abuse assessment, drug testing, and visitation. When the issues with D.S. arose, the Agency encouraged Mother to exclude D.S. from her home; when it became apparent that, despite Mother's agreement to do so, he was still present in her home, the Agency attempted to engage D.S. in services. The juvenile court's finding that the Agency provided reasonable services is supported by substantial evidence. This conclusion is not altered by the fact that the Agency did not refer her to domestic violence services when the issue arose after the 12-month review hearing.
II. Relative Placement
Mother argues the trial court erred in excluding evidence about relative placements at the 18-month review hearing absent a section 388 petition on the issue, and in finding the Agency made diligent efforts to locate and evaluate appropriate relatives. We find any error harmless.
Family Code section 7950, subdivision (a)(1), provides in relevant part: "At any permanency hearing in which the court terminates reunification services, . . . the court shall find that the agency or entity to which this subdivision applies has made diligent efforts to locate an appropriate relative and that each relative whose name has been submitted to the agency or entity as a possible caretaker, either by himself or herself or by other persons, has been evaluated as an appropriate placement resource." Thus, evidence about the Agency's efforts to locate and evaluate potential relatives for placement was clearly relevant at the 18-month hearing, regardless of whether a section 388 petition on the issue had been filed. It is unclear whether the juvenile court in fact excluded testimony on this ground, and we note that the court permitted a fair amount of testimony on the issue. However, to the extent the juvenile court held the issue of the Agency's efforts to locate and evaluate potential relatives could not be raised at the 18-month hearing absent a section 388 petition, it erred.
We note that this issue—whether the Agency acted diligently in locating and evaluating potential relatives—is a separate issue from whether the relative placement preference applies after disposition when no new placement is required. (Compare In re Lauren R. (2007) 148 Cal.App.4th 841, 854 ["The [relative placement] preference applies at the dispositional hearing and thereafter 'whenever a new placement of the child must be made . . . .' "], with In re Joseph T. (2008) 163 Cal.App.4th 787, 795 ["During the reunification period, the [relative placement] preference applies regardless of whether a new placement is required or is otherwise being considered by the dependency court."].) We need not decide this issue because at the time of the order we are reviewing, no relative had been approved for placement.
Any such error was harmless with respect to Aunt, because the juvenile court permitted sufficient testimony to decide the issue. In addition, the court's finding that the Agency made diligent efforts with respect to Aunt is supported by substantial evidence. The Agency social workers testified Aunt was assessed for placement and told to redo her floors, but after completing this task she withdrew from consideration. Although Aunt testified she told the Agency she still wanted to be considered for placement, the juvenile court found her testimony not credible. "Issues of fact and credibility are the province of the juvenile court and we neither reweigh the evidence nor exercise our independent judgment." (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.)
With respect to Grandmother, however, the issue is less clear. Minor's previous social worker testified Grandmother expressed interest in placement in March 2017 and he submitted her referral in June or July as soon as he had information about all the adults in the house. Minor's current social worker testified Grandmother's home assessment was still incomplete at the time of the 18-month review hearing in November because she had criminal convictions. However, because the court precluded further questioning on the issue, there was no testimony about whether Grandmother's convictions were exemptible and, if so, whether the Agency intended to seek exemptions and what efforts it had made to do so. (See In re Autumn K. (2013) 221 Cal.App.4th 674, 707 ["Convictions generally fall into two categories: exemptible and nonexemptible. [Citations.] If an offense is exemptible, a designated county agency has the authority to grant an exemption where there is 'substantial and convincing evidence to support a reasonable belief that the person with the criminal conviction is of such good character as to justify the placement and not present a risk of harm to the child . . . .' [Citation.] If an offense is nonexemptible, the child cannot be placed in that home." (fn. omitted)].) Without this evidence, the juvenile court could not determine whether the Agency had made diligent efforts with respect to Grandmother and the court thus erred by excluding testimony about this issue.
However, the error was harmless. Assuming the excluded evidence about Grandmother's conviction revealed that the Agency had not made diligent efforts, the court would simply have ordered the Agency to make such efforts. (Cal. Rules of Court, rule 5.720(a)(4) [at an 18-month permanency review hearing, "[i]f the child is not returned to his or her parent or legal guardian and the court terminates reunification services, the court must find as follows: [¶] (A) The agency has made diligent efforts to locate an appropriate relative; or [¶] (B) The agency has not made diligent efforts to locate an appropriate relative. If the court makes such a finding, the court must order the agency to make diligent efforts to locate an appropriate relative; and [¶] (C) Each relative whose name has been submitted to the agency as a possible caregiver has been evaluated as an appropriate placement resource; or [¶] (D) Each relative whose name has been submitted to the agency as a possible caregiver has not been evaluated as an appropriate placement resource. If the court makes such a finding, the court must order the agency to evaluate as an appropriate placement resource each relative whose name has been submitted to the agency as a possible caregiver."].)
Even further assuming that Grandmother was approved for placement and that the relative placement preference is applicable (see fn. 7, ante), it is not reasonably probable the juvenile court would have removed Minor from his current placement and placed him with Grandmother. Minor had been with his current placement for nearly two years, more than half his life; was bonded to and thriving with his foster family; and his foster mother was very interested in adopting him. In contrast, Grandmother had not requested visits with Minor until around June of 2017 (while Grandmother saw Minor during his unsupervised weekend visits with Mother, these only took place between mid-February and mid-March of 2017). "The relative placement preference . . . is not a relative placement guarantee . . . ." (In re Joseph T., supra, 163 Cal.App.4th at p. 798.) To the contrary, "regardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected." (In re Stephanie M. (1994) 7 Cal.4th 295, 321; see also § 361.3, subd. (a)(1) ["[i]n determining whether placement with a relative is appropriate, the county social worker and court shall consider" various factors, including "[t]he best interest of the child"].) Because we find no prejudicial error, we affirm.
DISPOSITION
The petition is denied. The request for a stay of the March 29, 2018 section 366.26 hearing is denied. This decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.