Opinion
B325378
09-19-2023
In re MATTHEW H. et al., Persons Coming Under the Juvenile Court Law. v. HEATHER G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel and Jane Kwon, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 22CCJP00930, Pete R. Navarro, Judge Pro Tempore.
Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel and Jane Kwon, Principal Deputy County Counsel, for Plaintiff and Respondent.
BENDIX, J.
This is a dependency case regarding orders issued after the juvenile court's six-month review hearing and is mother's second appeal. We previously affirmed the juvenile court's dispositional order removing mother's four children from her custody. In the current appeal, mother challenges the juvenile court's finding made at the six-month review hearing that it would be detrimental to return the children to mother's custody. We conclude that substantial evidence supports the juvenile court's order; mother has not demonstrated any progress since the children were removed from her custody.
Mother incorporates by reference her arguments from her prior appeal. The issues decided in the prior appeal are final, and we thus do not reconsider mother's prior challenges to the dispositional order.
Mother also argues the Los Angeles County Department of Children and Family Services (DCFS) did not provide reasonable reunification services during the six-month review period. Mother's argument is persuasive, and we reverse the juvenile court's order insofar as the court found DCFS provided reasonable reunification services. In all other respects, we affirm.
We limit our Background to facts relevant to mother's arguments in the current appeal.
Mother has four children: Matthew (born in 2014), Hunter (born in 2015), Levi (born in 2018), and Anabella (born in 2021). Mother was married to Mr. G. from 2010 to 2021 and represents that Mr. G. is not the father of any of her children. Father H. is Matthew's and Hunter's father. Mother was in a relationship with Father H. from 2013 to 2015. Mother said she left that relationship because of domestic violence. Mother reported she was in a relationship with Father R. from February 2016 through January 2021. Father R. is the father of Levi and Anabella.
Mother had lost contact with Father H. Father H. did not want appointed counsel and was not otherwise involved in the dependency proceedings.
1. Petition
On March 11, 2022, DCFS filed a Welfare and Institutions Code section 300 petition seeking jurisdiction of all four children. As later modified and sustained, the petition recited that mother and Father R. had a history of violent altercations. Father R. repeatedly struck mother with a door in a doorway and pointed a handgun at Matthew, Hunter, and Levi. On another occasion, Father R. broke the rear window of the family vehicle. On other occasions, mother threw a mug and soda can at Father R. (In re Matthew H. (June 1, 2023, B320221) [2023 WL 3749294 at pp. *2 -*3] (Matthew I).)
The juvenile court also sustained the allegation (as modified) that mother "has mental and emotional problems including suicidal ideation ...." Mother "treats" her problems "by self-medicating using marijuana." "These mental and emotional problems . . . manifested . . . in suicidal ideation and an expression of being overwhelmed with the care of her children." (Id. at p. *3.)
2. The juvenile court assumes jurisdiction and removes the children from mother's custody
After a jurisdictional hearing, the juvenile court assumed jurisdiction and sustained the allegations described above. (Matthew I, supra, B320221, [2023 WL 3749294, at p. *6].) On April 28, 2022, the juvenile court set forth a case plan requiring mother submit to random drug and alcohol tests, participate in a domestic violence support group for victims, participate in individual counseling to address case issues, and undergo a psychological and psychiatric evaluation. The court also ordered mother to take prescribed psychotropic medications. The juvenile court removed the children from mother's custody, and mother challenged that determination in her prior appeal.
We affirmed the juvenile court's removal of the children from mother's custody. We relied on the cumulative evidence showing (1) mother's history of domestic violence, (2) mother's longstanding marijuana use, which was detrimental to the children because mother left them unattended when she smoked marijuana and supervised her children while she was under the influence of marijuana, and (3) mother's multiple suicidal ideations. (Matthew I, supra, B320221, [2023 WL 3749294 at p. *7].) Mother's marijuana use dated back to at least 2015 when Hunter tested positive for marijuana at birth. (Id. at p. *1.) Levi and Anabella also tested positive for marijuana at birth. (Id. at p. *2.)
3. Six-month review period
During the six-month period after disposition, mother told social workers she was pregnant and, on August 16, 2022, mother told the social worker that she was moving to Michigan. (The record does not identify the specific date mother left California, but mother represents that it occurred in "mid-August of 2022.")
We describe social worker efforts to assist mother with her case plan. On May 11, 2022, a social worker e-mailed mother her case plan with a list of low-cost resources for psychiatric evaluations, therapy, and domestic violence support groups. Social workers referred mother to a laboratory for weekly drug testing and while she lived in California, mother took seven tests. Beginning on June 21, 2022, mother missed all of her scheduled tests. Prior to June 21, 2022, each test was positive for marijuana.
On June 29, 2022, a social worker met with mother in person to provide additional resources. On the same day, the social worker assisted mother in calling Casa de la Familia to begin therapy. Mother began therapy the following week. The social worker also provided mother with the number for a hotline for sexual assault survivors because mother reported she had been sexually assaulted. On July 26, 2022, a social worker texted mother to remind her of an upcoming therapy appointment. On August 10, 2022, the social worker "texted the mother resources in order for her to inquire if she would qualify for the victims of crime no cost domestic violence program."
The social worker requested bus passes for mother in July and August 2022, but the passes were "returned due [to the social worker] being unable to make contact with mother." "Mother blamed [the social worker] for not making more of an effort to deliver the mother's bus passes" and indicated that the social worker "knew where mother parked her truck."
Mother indicated that she was not able to follow through with services because she did not have a phone, a home, or food.
After mother moved to Michigan, on August 31, 2022, the social worker "emailed the mother her Court ordered case plan and a list of resources near her address in Michigan." The social worker resent that information in September 2022 because mother indicated that her e-mail had changed. On October 4, 2022, the social worker "emailed mother additional resources near her area in Michigan" and later that month social workers e-mailed mother another copy of her case plan.
In October 2022, (while living in Michigan) mother told social workers that she would go to a psychological and psychiatric evaluation at a hospital in Michigan.
4. Six-month review hearing
Mother was the only witness at the November 4 and November 8, 2022 six-month review hearing. She represented that she has posttraumatic stress disorder, a depressive disorder, and anxiety. Regarding her children, she said, "[W]e are looking into a lot of play treatment for Anabella and Levi. And then besides that, I have a lot of group therapy set up for the boys. And then I also have counselors set up at the school already that are waiting for them and everybody at Henry Ford [Hospital in Michigan] that is waiting for them." Mother stated that at the end of the month, she would begin individual therapy. Mother added that the psychiatrist told her marijuana was "a good nonchemical non-habit forming herbal substitute. And that they feel that if I feel it is working, then it is working." She added that a doctor told her that marijuana and mother's "coping mechanisms" were helpful for her posttraumatic stress disorder.
According to mother, while living in California, she "was completely depleted of all funds and had no food or nothing, [and] . . . was stuck in my car with no phone." Mother said social workers did not keep their promise to bring her bus passes even though they knew where she parked her vehicle.
Mother testified she used the "V.A. crisis center" when she needed therapy but could not continue because she did not have a phone. Mother said when she had a phone, she completed five video therapy sessions. Mother testified that she used music therapy to "prevent things like depression ...." Including the VA crisis center, mother spoke to a therapist between 30 and 60 times in the six months prior to the hearing.
Mother told the juvenile court that she was not in a relationship with Father R. since January 2021. She explained that she had not enrolled in a domestic violence class "[b]ecause sitting down in a room filled with women telling me their trauma is going to traumatize me. I have already been through enough."
Mother represented to the juvenile court that if the children were returned to her care, she would set up mental health services for them. Mother explained her move to Michigan because in California, she was homeless, broke, and without food. She blamed her failure to comply with her case plan on having no resources. Mother testified that she stopped testing for controlled substances because she did not have transportation to get to the testing facility. Mother testified that the last time she used marijuana was the night before the hearing "[s]o that I can try to stop my nightmares from happening." The court told mother, "[Y]ou might want to consider just cleaning yourself completely out of that substance." Finally, mother told the court that she worked as a manager at a bar and had space for her children to move in with her.
Mother's counsel requested that all four children be returned to mother's care. Matthew's counsel argued it was unsafe for Matthew to be released to mother because mother did not comply with her case plan. Levi and Anabella's counsel requested further reunification services and argued it was "premature" to release the children to mother and that mother was not credible. Hunter's counsel argued mother was not consistent with her individual counseling or drug testing. Hunter's counsel also argued it would be "premature" to return Hunter to mother's care.
5. Juvenile court finds DCFS provided reasonable services and it would be detrimental to return the children to mother's custody
The court stated, "Let me say that, ma'am, you appear to the court to be very, very extremely fragile. I am concerned that if I send these children to your home, that we are going to be in a position that you were at one time, when you acknowledged that it was overwhelming, that you were unable to take care of these kids." The court later continued, "The other thing I am finding hard to accept is your statement that your psychiatrist said, yeah, it is okay if you want to use marijuana to treat yourself. That is up to you." The court continued, "I would question the professionalism of the provider, if they made such a statement. [¶] I think marijuana is the last thing you should be using, ma'am. And if you are using marijuana, it is not working. That is for sure." The court further told mother, "Your circumstances appear to continue to be unstable. You haven't really settled in."
The court found that returning the children to mother's care would create a substantial risk of detriment to their safety, protection, or physical and emotional well-being. Regarding mother's marijuana use, the court found: "Mother has a number of no-shows. And the time she did test, it was positive for marijuana. And I don't have any support for a recommendation for use [of marijuana] by mother, given her psychiatric history, of marijuana to treat her symptoms. [¶] Mother has incredible anxieties. And they need to be addressed and treated before she can resume taking care of small children."
The court ordered that Levi and Anabella be placed in Michigan with their paternal grandmother. Matthew and Hunter continued their foster care placements in California.
The court found mother was noncompliant with her case plan. The court also found "by clear and convincing evidence that D.C.F.S. has complied with the case plan by making reasonable efforts to return the children to a safe home." The court indicated that "[t]he mother needs psychiatric, heavy duty, treatment." The court said, "The court will order further reunification services." The court, however, did not order any specific type of services.
DISCUSSION
A. DCFS Did Not Provide Reasonable Reunification Services
Mother argues that we must reverse the juvenile court's finding that DCFS had provided reasonable reunification services during the six-month review period. Generally speaking, juvenile courts must conduct a hearing at six-month intervals to evaluate the adequacy of reunification services and a parent's progress. If the court finds reunification services were not adequate, it extends reunification services for another six-month period rather than proceed to permanency planning. (Michael G. v. Superior Court (2023) 14 Cal.5th 609, 625.) The court may schedule the section 366.26 permanency planning hearing" 'only if'" it finds" 'there is clear and convincing evidence that reasonable services have been provided or offered to the parents or legal guardians.' [Citation.] In other words, at the six- and 12-month status hearings, the court must find that the parent has been provided or offered reasonable reunification services before the court can proceed to set a hearing to decide whether to terminate parental rights and select a permanent plan for the child." (Michael G., at p. 625; In re Alvin R. (2003) 108 Cal.App.4th 962, 971 [same].)
When reviewing for substantial evidence, we must consider the heightened burden of proof. (In re Alvin R., supra, 108 Cal.App.4th at p. 971 ; Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.) "The adequacy of the reunification plan and of the department's efforts to provide suitable services is judged according to the circumstances of the particular case." (In re Taylor J. (2014) 223 Cal.App.4th 1446, 1451.)
The juvenile court erred in finding that DCFS offered reasonable services during the six-month review period. On March 16, 2022, when the juvenile court detained the children, it ordered DCFS to provide family reunification services, including transportation assistance. In April 2022, the court ordered mother attend drug and alcohol testing, a domestic violence support group, individual counseling, and a mental health evaluation. In the prior appeal, we concluded that "DCFS should have made greater efforts to assist [mother], including to provide mental health services, housing, and transportation as ordered by the juvenile court at the detention hearing." (Matthew I, supra, B320221, [2023 WL 3749294, at p. *9].)
The record does not show that DCFS provided such assistance during the six-month review period. There is no explanation for a social worker waiting until June 29, 2022, to assist mother with mental health services, specifically in calling Casa de la Familia to begin therapy. Once she received this assistance, mother began therapy the following week. Social workers never assisted mother with housing or transportation. Although a social worker procured bus passes for mother, the passes were never delivered to her even though social workers knew mother lived in her vehicle and where it was parked.
Access to transportation was essential for mother to comply with her case plan and failure to provide it undermined DCFS's other efforts to assist mother. Attempting to mail mother bus passes four months after the juvenile court ordered transportation assistance when social workers knew mother lived in her vehicle, was not reasonable efforts to assist mother in complying with her case plan. Except for individual counseling, which mother could attend using her phone, the record does not indicate mother could comply with any other facet of her case plan without transportation, and it was undisputed that mother had no funds. Mother testified, and it was undisputed that she stopped testing for controlled substances because she did not have transportation. The fact that social workers provided mother with referrals did not assist mother when she could not access those services because she did not have transportation, a fact DCFS does not dispute.
Mother argues the failure to provide reasonable reunification services was not harmless even though at the end of the six-month review period, the juvenile court ordered more services. She further argues reversal of the juvenile court's finding is necessary to prevent prejudice lest the juvenile court schedule permanency proceedings before mother has been provided reasonable reunification services. Mother relies on In re A.G. (2017) 12 Cal.App.5th 994, 1004, which holds the failure to provide reasonable reunification services is not subject to a harmless error analysis. Instead, the proper remedy is "to provide an additional period of reunification services to that parent and to make a finding on the record that reasonable services were not offered or provided to that parent." (Id. at p. 1005.) The same remedies apply here where the juvenile court erred in finding mother had received reasonable services during the six-month review period.
B. Substantial Evidence Supports the Juvenile Court's Finding That It Would Be Detrimental To Return the Children to Mother's Custody
Arguably there is a logical relationship between DCFS's failure to provide reasonable services and mother's lack of progress in complying with her case plan. Nevertheless, the juvenile court must separately evaluate whether it was detrimental to return the children to mother's custody. At the six-month review hearing, the juvenile court must return the child to the parent's physical custody unless the court finds "by a preponderance of the evidence, that the return of the child to their parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional wellbeing of the child." (§ 366.21, subd. (e)(1).) We review the juvenile court's finding for substantial evidence. (In re A.J. (2015) 239 Cal.App.4th 154, 160.)
Here, at the time of the six-month review hearing, mother had not addressed the concerns leading to the dependency petition. The juvenile court found mother's progress was unsubstantial and that finding is supported by substantial evidence. As part of her case plan, the court ordered mother to submit to random drug testing. Mother initially tested for drugs, all of which tests were positive. In June 2022, mother stopped testing.
The case plan called for mother to participate in a domestic violence support group for victims. Mother did not enroll in a domestic violence support group. The case plan included participating in individual counseling. Mother began counseling but then stopped after five video visits, and the record identifies no progress during the counseling sessions she did attend. At the six-month review hearing, mother represented she has posttraumatic stress disorder, a depressive disorder, and anxiety. Mother, however, did not testify or offer any evidence that she took steps to ameliorate those conditions.
Mother's argument that the juvenile court erred in not returning the children to her care does not consider the evidence in the light most favorable to the juvenile court's order. Mother contends she "had made substantial progress" because "she made the difficult decision to return to Michigan. There, she was able to secure both suitable housing and a job, on her own." This argument does not consider her noncompliance with the requirements of her case plan required or her failure to demonstrate any progress in the issues that led to jurisdiction.
Mother mischaracterizes the record when she states she obtained the psychological evaluation required by the case plan. In fact, the document mother cites states, "You were seen in the Henry Ford Emergency Department today." "Please contact Oakland County Common Ground and ask to be referred to a forensic psychiatrist who would be more appropriate to conduct the type of evaluation you are looking for. They can also refer you to a therapist." (Boldface omitted.) Mother also cites to the status review report to support her statement that she "obtained for herself a psychiatric/ psychological evaluation from Henry Ford Hospital in Detroit on October 13, 2022." The status review report, however, states, "[M]other reported that she will complete a psychiatric and psychological evaluation on 10/13/2022 at Henry Ford Hospital ...." Simply put, mother's citation does not support her statement that she actually obtained the required evaluation.
Mother assumes that marijuana use is "a good . . . herbal" remedy ignoring the juvenile court's rejection of that theory as well as this court's prior opinion explaining that mother's marijuana use was detrimental to the children. Mother argues she was "fully aware of her mental health issues, and proactive in addressing them," but the record does not show that mother addressed her suicidal ideations, which we previously held supported the juvenile court's order removing the children from mother's custody. Even if mother had obtained a psychiatric evaluation, as she claims, there is no evidence that mother made progress such that she no longer suffered from suicidal ideations.
In sum, the juvenile court's finding that mother's progress was unsubstantial is supported by substantial evidence. That finding, in turn, supports the juvenile court's conclusion that it would be detrimental to return the children to mother's custody.
DISPOSITION
The juvenile court's order is reversed insofar as the juvenile court found that DCFS provided reasonable reunification services. The court shall enter a new order finding that DCFS did not provide reasonable reunification services. The juvenile court's order is affirmed in all other respects.
We concur: ROTHSCHILD, P. J., WEINGART, J.