Opinion
H045314
02-28-2018
K.F., Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 115-JD023395)
K.F. (hereafter "mother") has filed a petition for extraordinary writ challenging the juvenile court's orders terminating reunification services and setting the matter for a Welfare and Institutions Code section 366.26 permanency planning hearing with respect to her son, J.F. Mother claims she should have been granted additional reunification services because the Santa Clara County Department of Family and Children's Services (Department) failed to provide her with reasonable services and failed to facilitate visitation.
Unspecified statutory references are to the Welfare and Institutions Code.
For the reasons stated below, we will deny mother's writ petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. J.F.'s initial dependency
On August 12, 2015, a juvenile dependency petition (the 2015 dependency) was filed on J.F. when he tested positive for methamphetamines at birth. Mother claimed not to know who J.F.'s father was and refused to cooperate with the Department in making that determination. Mother said she last used methamphetamines more than five months previously, and her blood test was negative for drugs.
At the time of J.F.'s birth, mother's two older children were in a legal guardianship due to her 2012 incarceration. In 2014, mother was convicted of possession of drugs in a prison or jail. That same year, she completed a 90 day in-custody substance abuse program at Elmwood Correctional Facility (Elmwood). She had previously suffered a conviction for possession of drugs in a prison or jail in August 2012. In March 2012, she was convicted of receiving known stolen property, possession of stolen property, possession of burglary tools, possession of and being under the influence of a controlled substance, and possession of personal ID with the intent to defraud. She was incarcerated again in 2015 on charges of being under the influence of a controlled substance and possession of burglary tools. She is a registered narcotics offender until August 2020.
While in the hospital for J.F.'s birth, mother blamed the hospital for his positive drug test, suggesting that it was part of a conspiracy. The Department offered to provide informal services to her, including a residential substance-abuse program where children are placed with their mothers, but she refused to sign the agreement. The Department sought, and obtained, a protective custody warrant for J.F.
On August 17, 2015, the juvenile court ordered that J.F. be detained. The September 8, 2015 jurisdiction/disposition report recommended that the petition be sustained and that mother be offered family maintenance services while she participated in treatment at the residential substance-abuse program. The report noted that mother was now cooperating, attending 12-step meetings, and submitting to voluntary tests. Mother acknowledged her substance abuse problem and her need to learn how to maintain sobriety.
At the September 8, 2015 jurisdiction and disposition hearing, the court sustained the petition, releasing J.F. to mother's custody and ordering family maintenance services. Mother was ordered to participate in, and successfully complete, a parent-orientation class offered by the Department, a parenting class, random alcohol and/or drug testing once a week, on-demand testing at the social worker's request, and attend three 12-step meetings each week. She was also ordered to complete the residential substance abuse program and an aftercare drug treatment program.
The Department's section 364 status review report dated February 24, 2016, recommended that the case be dismissed. Per the report, mother had completed the required classes and attended 12-step meetings. Her one positive drug test was found to be due to a prescribed medication. Mother had successfully completed the residential substance abuse program and had enrolled in an outpatient drug program for ongoing services. At the section 364 hearing on February 24, 2016, the court declined to dismiss the case, and ordered that family maintenance services continue for another six months.
In the August 10, 2016 status review report, the Department recommended continuing family maintenance services for an additional three months. Mother's drug tests were negative and she was attending 12-step meetings as ordered. J.F. was now one year old and doing well. On September 22, 2016, the court dismissed the dependency.
B. J.F.'s second dependency
A second dependency petition was filed on behalf of J.F. on December 2, 2016 (the 2016 dependency), alleging that mother's behavior created an extreme risk of physical harm to J.F. (§ 300, subd. (b)) and further alleging that J.F. was without any provision for support (§ 300, subd. (g)). J.F. was placed into protective custody when mother was arrested after she was found harboring R.C., an escapee from the Santa Clara County Main Jail.
The petition alleged that, prior to escaping from jail on November 23, 2016, R.C. contacted mother and told her he would see her soon. Following his escape, mother allowed R.C. to stay with her and J.F. Sheriff's deputies found him hiding in her attic, under the influence of a controlled substance, and deputies had to deploy tear gas to take him into custody. While apprehending R.C., deputies discovered a loaded firearm in the home. J.F. was present during this incident and, when law enforcement arrived to look for R.C., mother initially refused to allow them to enter her home.
The petition also referenced mother's history of substance abuse.
On December 5, 2016, the court ordered that J.F. be detained, with interim supervised weekly visitation for mother once she was released from jail.
1. Jurisdiction/disposition report and hearing
In the jurisdiction/disposition report dated December 27, 2016, the Department recommended that the petition be sustained on both grounds, i.e., failure to protect and failure to support, and dependency established with mother and J.F. receiving family reunification services.
Mother was still in jail and had been charged with several violations of the Penal Code. The lead detective in the criminal case explained to the social worker that the pending charges against mother were part of a very involved case which included multiple law enforcement agencies, including the Federal Bureau of Investigation. R.C. stayed with mother for at least one, possibly two, nights before he was arrested, and mother refused to admit law enforcement officers to her home for approximately 45 minutes, giving R.C. time to hide in her attic. According to the detective, R.C. was an active Norteño gang member and had a history of convictions for violent crimes, including a drive-by shooting.
The detective also reported that law enforcement believed mother had been in contact with other gang-affiliated inmates, had acted as an informant to gang members on the outside, and had also helped supply drugs to inmates who were in the hospital. Mother's interactions with gang members, both in and out of custody, were the subject of an ongoing investigation.
The Department was concerned that mother was gang-affiliated, and was making decisions to maintain her gang allegiance, without regard for J.F.'s safety. The report noted that mother had two prior felony convictions for transporting drugs into a correctional facility.
The social worker interviewed mother at Elmwood. Mother admitted she had stopped attending 12-step or other support groups after the 2015 dependency was dismissed, but denied having a substance abuse problem. Mother said she might benefit from counseling to help her make safer decisions in the future. At the time the report was authored, it was unknown how long mother would remain in custody.
In an addendum report dated February 16, 2017, the Department noted a gang enhancement had been added to mother's pending criminal charges, which could result in a significant sentence if she were convicted.
J.F. had begun the transition to a concurrent non-related extended family member (NREFM) home, and that transition was going well. He was displaying delays in his speech and fine motor skills.
On February 16, 2017, the court conducted the jurisdictional hearing. Mother filed a waiver of rights and submitted the petition on the reports.
On March 13, 2017, the court entered dispositional orders, declaring 17-month-old J.F. a dependent for the second time and removing him from mother's custody pursuant to section 300, subdivisions (b) and (g). Mother, who was still incarcerated, was ordered to receive reunification services.
In addition, the court ordered that mother participate in, and complete, a case plan, including the following: (1) a parenting class; (2) a program of counseling or psychotherapy aimed at helping mother: (a) recognize the impact of her decisions on her son, (b) learn to take responsibility for her actions; (c) provide her with skills to help choose healthier friendships and support systems; (d) help mother re-evaluate priorities in her life; and (e) understand how her association with gang members had placed her son at risk. Mother was also ordered to participate in weekly random testing for alcohol and/or controlled substances, and attend 12-step meetings a minimum of two times per week, with written proof of attendance. She was directed to undergo a substance abuse assessment, and complete any treatment program recommended in that assessment. Mother was allowed supervised visits with J.F., twice a week for two hours each visit, upon either her release and/or her entry into the PACT program while at Elmwood.
In an interim review report dated June 12, 2017, the Department noted that social worker Aida Taye met with mother at Elmwood on April 28, 2017. At that meeting, mother said she completed the 12-week Three Rs program and Career Mapping at the facility. She had participated in mental health services and had been prescribed psychotropic medication, but that medication was discontinued after her symptoms of depression diminished. The social worker gave mother pictures of J.F.
The social worker also noted in the report that the deputy district attorney called her on June 1, 2017, and left a voice message advising that mother had pleaded guilty to the charge of being an accessory to escape from jail and admitted the gang enhancement. Mother would be sentenced to five years in state prison at a future hearing.
At the June 12, 2017 interim review hearing, the court ordered that its prior orders remain in effect.
2. Six-month review of family reunification services
The August 28, 2017 six-month review report recommended that mother's reunification services be terminated. Mother had been transferred to the Central California Women's Facility in Chowchilla (Chowchilla) on June 27, 2017, to serve her five-year sentence.
J.F. continued to do well in the care of his NREFM caretaker. He was healthy and the Early Start assessment had been scheduled. The report included that the social worker had met monthly with mother at Elmwood, and had provided her with pictures of J.F.
The social worker contacted Chowchilla on July 14, 2017 and July 30, 2017, and inquired about programs offered at the facility. Staff at Chowchilla informed her there were over 100 programs available to inmates and that inmates did not require a referral from a social worker to participate. The staff advised the social worker that the inmates were aware of the programs available at Chowchilla.
The maternal grandmother e-mailed the social worker and asked that she provide a referral for mother for a "community prisoner mother program" at Chowchilla. The social worker informed the grandmother that mother did not need a referral to enroll in prison programs.
The report indicated that mother had failed to enroll in the parents and children together (PACT) program while she was incarcerated at Elmwood, so she did not have any visits with J.F. J.F. did have visits with both maternal and paternal extended family members.
The six-month review hearing was continued at mother's request, and set for an early resolution conference. After the hearing, mother was kept in local custody until she was transferred back to Chowchilla on September 19, 2017.
The social worker met with mother at Elmwood on September 1, 2017. Mother said she had applied for a program at Chowchilla that would allow her to be released with an ankle monitor. On her return to prison, she would be assigned a counselor who could assist her with that process.
On September 25, 2017, mother was put on the transfer list for California Institution for Women (CIW) in Corona. However, while on the transfer list, she was not eligible for any programs at Chowchilla.
On October 3, 2017, the social worker contacted mother's counselor at Chowchilla. The counselor said a committee would determine if mother qualified for a program that would allow her to be released with an ankle monitor, but the counselor indicated that the program did not allow children. The counselor also said that mother's application for this program was not in the system and the application process itself took anywhere from 90 to 120 days to complete. The counselor told the social worker that mother could not participate in Chowchilla's Community Mother's Program because her conviction was gang-related.
On October 12, 2017, the social worker spoke to mother by telephone in her counselor's office. Mother confirmed she had not been able to participate in programs at Chowchilla while she awaiting transfer to CIW.
In a November 29, 2017 addendum report, the social worker reported that mother's counselor informed her that mother had been transferred to CIW on November 2, 2017, and was trying to get into the Department of Corrections' Fire Camp program. The counselor said he was going to do an intake, and would refer mother to the program if she met the criteria. He also advised the social worker that mother made the transfer to CIW just to participate in the Fire Camp program, and did not know that she was interested in any other programs.
On November 20, 2017, the social worker contacted the counselor, and he advised that he referred mother to Fire Camp and she would start training the following week. If mother passed the training, she would be transferred to the Fire Camp program within six weeks. Successful participation in Fire Camp could greatly reduce mother's sentence, and her earliest prospective release date would be November 28, 2018. The counselor thought there might be some drug classes at the Fire Camp, but mother's primary purpose for transferring there was to work as a firefighter. He did not know if mother was participating in any other services. The counselor indicated he would ask mother to call the social worker, as she had access to a pay telephone, if she needed assistance. The social worker also scheduled a date and time for mother to call from the counselor's office so they could talk about her participating in other services.
Mother did not call the social worker at the specified time, so the social worker called the counselor. He said he would have mother brought to his office from her cell and they would call her back. When mother got on the telephone, she told the social worker she was, "in the middle of doing something" and missed the time for the initial telephone call. Mother confirmed her Fire Camp training started the next week and that she would submit a request for a parenting class, 12-step meetings and an anger management class, as she had only been "classified" to start programs the week before. When the social worker encouraged mother to look into a counseling program because it was also part of the case plan, mother said she had not done so and did not think counseling was available. After her counselor said counseling services were available, mother said she would add it to her request for services. She did not know when she could start any of the programs, because some of them had wait lists.
The social worker listed the efforts she had undertaken to facilitate mother's case plan services. In that list, the social worker indicated she met with mother in person on April 28, 2017; May 19, 2017; June 23, 2017; June 26, 2017; and September 1, 2017. The social worker noted she had telephone contact with mother on both October 12, 2017 and November 21, 2017. The social worker left messages for the prison program facilitator twice in July 2017, and spoke to prison staff and mothers' counselor a total of 10 times between August and November, 2017. As of the date the November 29, 2017 report was prepared, mother had provided no evidence to the social worker that she had participated in any services during her incarceration.
Mother did not attend the six-month review hearing on November 29, 2017. The Department submitted on its reports and made the social worker, Aida Taye, available for cross examination. The court admitted into evidence the August 28, 2017 status review report, the October 16, 2017 addendum report, and the November 29, 2017 addendum report.
Taye testified as an expert in risk assessment and the provision of reunification services. She was assigned this case in March 2017, but only received the actual case file in early April. Her first contact with mother was on April 28, 2017. Taye did not give mother a copy of the case plan, but did tell her to participate in counseling, drug programs and parenting classes at Elmwood.
Taye's next meeting with mother was on May 19, 2017. She again did not give mother a copy of her case plan, because she knew mother already had it. When Taye asked what programs she participated in, mother responded "Three Rs." Taye testified that it was her practice when meeting with clients to not only remind them about their case plans, but to encourage them to participate in those plans.
On June 23, 2017, Taye met with mother and encouraged her to get into any available drug treatment, parenting, and counseling programs. Taye admitted that she did not go over the particular issues in mother's case plan that required her to address in counseling each time she visited, but it was her practice to tell a client to get into counseling. Once the clients were enrolled in programs, Taye would talk to them about the areas and goals they should address for their case plan. Taye would usually also communicate directly with the therapist to ensure the specific case plan goals were addressed.
Taye did not talk to mother about the PACT parenting program when mother was at Elmwood. The client would fill out the form to join that program. Taye would be notified by the facility that the client had enrolled and again once the client was found eligible to participate. The only time Taye would contact the PACT program directly would be to check on the client's wait list status. Taye testified mother knew that she could have visits with J.F. if she enrolled in the PACT program, but to her knowledge, mother did not try to enroll in that program during the seven months she was at Elmwood.
Mother told Taye she had completed some programs at Elmwood, but did not provide any verification. When Taye met with mother in April and May 2017, she asked her for documentation to show she completed these programs. Mother said she would bring the documentation with her to the June 2017 hearing but did not do so.
As for the program mother claimed she completed, the Three Rs, Taye believed its curriculum included career program classes, some drug related classes, and possibly parenting. The program had multiple class options, but when Taye asked which classes she took, mother mentioned career goals, but otherwise her response "wasn't clear."
In July 2017, Taye did not meet with mother because mother was being transferred to Chowchilla. When they had met in June 2017, mother told Taye she would call her and let her know when she was transferred, but failed to do so. Taye only learned of the transfer from the maternal grandmother. Taye left two voicemail messages at Chowchilla in July, trying to learn what services would be available to mother and their process for visits. Taye testified it can be difficult for a social worker to locate a client when they transfer to a different facility. The client can always call the social worker, but mother did not contact Taye.
Taye contacted prison staff at Chowchilla in August but she did not visit mother. In her conversations with the staff at Chowchilla, Taye was informed there were over 100 programs available to inmates, including programs relating to drugs, parenting, and counseling. When she tried to discuss specific services, staff told her the inmates were aware of all the programs available to them and it was up to them to decide which ones they wanted.
On September 1, 2017, Taye met with mother when she was in local custody for a court hearing. Taye again encouraged her to participate in counseling, a drug program, and parenting programs.
Taye called Chowchilla on October 3, 2017, to speak to mother's assigned counselor. At that point, Taye learned that mother was not eligible for the ankle monitoring program she had brought up at the August 2017 court hearing.
She spoke with mother by telephone on October 12, 2017. During their conversation, Taye again discussed mother's case plan, but mother said she was not eligible to participate in programs because she had applied to transfer to the Fire Camp program at another facility. Mother's counselor in CIW, where the Fire Camp program was located, subsequently told Taye that none of the programs required in mother's case plan were available to her in the Fire Camp program.
Mother transferred to her new location on November 2, 2017. Following the transfer, Taye spoke with mother's new counselor two or three times. The counselor told Taye that "there are volunteers who come [to Fire Camp] to do some drug classes, but he wasn't sure which site and how often or any details about it."
Taye next spoke with mother on November 21, 2017, and mother said she would request parenting classes, 12-step programs, and anger management. Taye reminded her that her case plan also required counseling. Although Taye never personally provided a copy of the case plan to mother, the plan was in her case file, with mother's signature on it acknowledging she had received a copy.
When she spoke with mother, Taye never got the impression that mother did not understand the goals of her case plan, nor did mother ever ask questions or say she did not know what was expected of her. In every contact, Taye confirmed that mother had her telephone number, reminded her she could call with any questions, and that she was available to assist her in any way she could. Taye believed that, at Chowchilla, mother had access to a telephone and could place calls without a counselor being present. At no time during the dependency proceedings did mother initiate a telephone call to Taye.
Taye asked mother's counselor at Chowchilla to arrange a call with mother on November 21, 2017 at 10:00 a.m. The counselor agreed to do so, but said if mother did not call Taye it was because she did not want to talk to her. Mother did not call Taye at the arranged time, so 15 minutes later, Taye called the counselor. The counselor located mother in her cell and brought her back to his office to call Taye. Taye asked mother why she did not call her, and mother said she was busy doing something else.
Following final arguments, the court terminated reunification services. The court acknowledged the Department bore the burden of proving, by clear and convincing evidence, "that reasonable services were offered and provided to the parent." After considering all of the evidence presented the court found that "despite general resistance . . . and a lack of cooperation from the mother, the social worker did reach out diligently to contact the mother regularly and to obtain information from prison officials regarding mother's status and the availability of services. Court [sic] finds that social worker diligently attempted to engage mother in the case plan. Court [sic] finds that the social worker maintained regular contact under the circumstances given mother's lack of communication, . . . and given mother's multiple transfers from and to various jail and prison facilities."
In addition, the court found that the Department reviewed the case plan with mother. She signed the case plan, and never contacted the social worker for assistance. The court noted that mother was present in court at the case plan review hearing on June 12, 2017, but did not raise any questions or concerns about her case plan.
The court found there was no substantial probability J.F. would be returned to mother by the 12-month review date of January 30, 2018. Mother had not maintained visitation or contact with J.F., nor had she "demonstrated any significant progress in complying with the case plan . . . [or] the capacity . . . to complete the objectives of the case plan by January 30, 2018." Mother's earliest anticipated release date was November 28, 2018, nearly two years from the date J.F. was taken into protective custody.
The court found there was clear and convincing evidence that reasonable services had been offered and provided to mother. As a result, the court terminated reunification services and set a section 366.26 hearing. Mother now challenges those orders.
On December 6, 2017, mother filed notice of her intent to file a writ petition. The petition for writ of mandate was filed on January 12, 2018.
II. DISCUSSION
A. Applicable legal principles
Section 361.5, subdivision (a) generally mandates that reunification services be provided whenever a child is removed from the parents' custody. (See In re Luke L. (1996) 44 Cal.App.4th 670, 678.) When a child is under three years old at the time of removal, reunification services are presumptively limited to six months and "no longer than 12 months." (§ 361.5, subd. (a)(1)(B).) At the six-month review hearing, "the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (e)(1).) If "the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days." (Id., subd. (e)(3).) However, if there is a substantial probability that the child may be returned to the parent within six months "or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (Ibid.)
"We review an order terminating reunification services to determine if it is supported by substantial evidence. [Citation.] In making this determination, we review the record in the light most favorable to the court's determinations and draw all reasonable inferences from the evidence to support the findings and orders. [Citation.] 'We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.' " (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688-689.)
B. Analysis
We first address mother's claim that she was "not provided reasonable services."
"Reunification services must be 'designed to eliminate those conditions that led to the court's finding that the child is a person described by Section 300.' (§ 362, subd. (c).) Accordingly, a reunification plan must be appropriately based on the particular family's 'unique facts.' " (In re T.G. (2010) 188 Cal.App.4th 687, 696.) " ' "[T]he record should show that the [Department] 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 . . . ." ' " (Id. at p. 697.) "The adequacy of reunification plans and the reasonableness of the [Department's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) That additional services might have been possible, or that the services provided were not the services the parent thought were best for the family, does not render the services offered or provided inadequate. "The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
Here, the problem leading to the loss of custody was the mother's harboring of an escapee and her association with gang members. The Department offered services designed to remedy that problem by ordering that mother participate in a parenting class and a counseling program directed at learning to take responsibility for her actions, recognizing the impact of her decisions, including the decision to associate with gang members, on her child, and providing her skills to choose healthier friendships. In addition, because there was evidence that the escapee was under the influence when he was taken into custody, mother was ordered to participate in weekly random alcohol and drug testing, as well as attend 12-step meetings.
The record shows that the Department maintained reasonable contact with mother during the reunification period. Social workers met with mother prior to the jurisdiction/disposition hearing. Taye met with mother in person almost every month between April and September 2017, apart from July and August when mother was housed in Chowchilla. Taye spoke with mother by telephone on October 12, 2017 and November 21, 2017.
The social workers also made reasonable efforts to assist mother by referring her to specific programs and services. On this record, substantial evidence supports the juvenile court's finding that mother was provided with reasonable services.
The record shows that mother made no progress in her case plan, with the possible exception of her completing the Three Rs program at Elmwood. During her brief stay in Chowchilla, she apparently made no effort to engage in any of the programs offered at that facility. Once she requested to transfer to CIW, she was ineligible for any programs at Chowchilla. The Fire Camp program she sought out, while not fulfilling any of the requirements of her case plan, did offer the potential of greatly reducing the time she would have to spend in custody. The record contains substantial evidence to support the juvenile court's finding that mother "failed to participate regularly and make substantive progress in a court-ordered treatment plan." (§ 366.21, subd. (e)(3).)
This demonstrates mother had the ability to find and apply for programs without direction or support from a social worker.
Mother also complains that the Department failed to arrange visitation, and thus she did not receive reasonable services. She argues Taye never discussed with her how to enroll in the PACT program or inform her she had to enroll in that program to visit with J.F. This claim also does not withstand scrutiny.
The court ordered that mother should receive visitation through the PACT program while in custody or upon her release. Mother does not dispute that she was aware of this order, so she is essentially contending that Taye was obligated to reiterate what was contained in the court's order.
Furthermore, the evidence before the court was that social workers do not get parents enrolled into the PACT program. It is up to the parent to enroll, and the facility then notifies the social worker that the parent is eligible for visits. As Taye testified, she could contact the facility to inquire about a client's position on any wait list, but since mother never even attempted to enroll, there was no basis for Taye to make such an inquiry. Mother did not undertake even the first step necessary to visit with J.F., nor did she or her counsel raise a question about the lack of visitation at any time before the contested hearing.
Even after mother transferred to Chowchilla, and later to CIW, she did not ask about visitation. The failure to engage in visitation was the result of mother's own decisions and failure to act.
Furthermore, even if it could be said that the Department failed to do enough with respect to visitation, any such error was harmless. Under People v. Watson (1956) 46 Cal.2d 818, 836, any claimed error is harmless unless it is reasonably probable that a more favorable result would have been reached in the absence of the error. Even if visitation could have taken place in this case, notwithstanding any logistical impediments, mother was incarcerated until at least November 28, 2018, and therefore could not reunify with J.F. until then.
Mother's final claim of error is that the dependency court relied on information outside the record by referencing its own "recollection of what counsel stated or did not state at a non-statutory interim review, referred to as the case plan review." Mother's argument suggests that a judge's first-hand knowledge of what has previously transpired in a case is inadmissible evidence in the absence of a properly noticed request for judicial notice. Again, we disagree, and it is telling that mother cites no case authority to support her argument.
A judicial officer's recollections of prior proceedings are not matters which are subject to the judicial notice procedures, nor should they be. A judge does not wipe his or her memory of what has gone before in a particular case upon taking the bench each day. For example, trial judges must remember what rulings were made on in limine motions in order to rule on objections during trial. To require the judge or the objecting party in such cases to first bring a motion for judicial notice of the relevant in limine ruling would be ludicrous. To the extent that a judge's recollection of the case history or a specific prior proceeding is faulty, the parties may, if they are aware of the mistake, attempt to correct that recollection at the time, or on appeal.
Having carefully reviewed the entire record, we find that substantial evidence supports the juvenile court's findings that reasonable services were provided, that mother failed to make substantive progress in her case plan, and that there was no substantial probability that J.F. would be returned to her within six months. (See § 366.21, subd. (e)(3).)
III. DISPOSITION
The petition for extraordinary writ is denied.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Grover, J. /s/_________
Greenwood, J.