Opinion
A155270
10-29-2018
L.S., Petitioner, v. SUPERIOR COURT FOR THE COUNTY OF CONTRA COSTA, Respondent; CONTRA COSTA COUNTY CHILD & FAMILY SERVICES BUREAU, et al., Real Parties 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1701179)
Petitioner is the mother of T.S., who is now about two and a half years old. In November 2017, the Contra Costa County Children and Family Services Bureau (Bureau) filed a petition under Welfare and Institutions Code section 300 alleging that mother failed to provide regular care to T.S. and was unable to arrange for T.S.'s care. After offering six months of services, the Bureau recommended, and minor's counsel agreed, that these services should be terminated because of mother's failure to comply with her case plan, which the record indicates was due to her continued substance abuse. At a contested six-month review hearing, the court agreed with this recommendation for these reasons, terminated reunification services and set a section 366.26 hearing for December 19, 2018. Mother petitions for this court to reverse the juvenile court's findings and rulings and direct the court to continue services in an effort to reunify the family. The evidence fully supports the juvenile court's findings and rulings. Therefore, we deny mother's petition.
All of our statutory references are to the Welfare and Institutions Code.
BACKGROUND
In its November 2017 petition, the Bureau alleged that mother failed to provide regular care to T.S., then 20 months old, and placed T.S. at serious risk of harm or injury because on November 10, 2017, during a health and safety check of a residence where the two were staying, methamphetamine and drug paraphernalia were found in parts of the residence accessible to T.S., including a bathroom counter and a bedroom closet, and mother admitted to a history of drug use. The Bureau further alleged that mother was arrested that same day on an outstanding warrant and was unable to arrange care for T.S. T.S. was detained and placed with a licensed resource family in the county.
I.
The Court's Jurisdiction and Disposition Rulings
In December 2017, mother, still incarcerated, pled no contest to the allegations in the petition, and the court sustained the petition and asserted jurisdiction over T.S.
T.S.'s alleged father did not meaningfully participate in the proceedings below.
In its January 2018 disposition report, the Bureau reported that mother had been arrested 10 times from 1997 to 2017, including for controlled substance offenses. At the time of T.S.'s birth, mother tested positive for THC, which she said she took for nausea; she denied use of any other drug or alcohol. At first, mother said she had not used drugs for years, and that she and T.S. were only temporarily staying at the residence that was the subject of the health and safety check. Mother subsequently admitted using substances since T.S.'s birth, and said she would enter an inpatient substance abuse treatment program when she was released from custody on January 7, 2018. However, after her January 2018 release, she did not enter a program, nor submit to drug testing. She also was inconsistent in attending scheduled visits with T.S.
After meeting once with mother, the Bureau attempted to further interview her, but she was late for one appointment and did not attend two others. She made an unscheduled visit to the Bureau's offices a couple of hours before one of these scheduled appointments, and reportedly "appeared [to be] under the influence as she struggled with her thoughts and it was difficult for her to keep her eyes open."
The Bureau concluded that there was "no evidence [mother] is addressing the issues that led to her child being removed from her custody." The Bureau continued, "[B]ased on the information available, the Bureau is concerned that she is actively using substances. The Bureau is recommending Family Reunification Services for [mother] as it appears she continues to struggle with substance abuse which negatively impacts her ability to safely care for her young daughter."
On the date of the disposition hearing, January 31, 2018, mother was again arrested on an outstanding warrant, but appeared at the hearing. She tested positive that day for marijuana and benzodiazepines. The court scheduled a contested disposition hearing, and a few days later mother entered a residential treatment program. She tested positive for THC twice over the next ten days.
At the February 21, 2018 contested disposition hearing, the juvenile court ordered T.S. removed from mother's custody. It approved a case plan that provided mother with reunification services, including individual counseling, parenting classes, and substance abuse treatment and drug testing. Also, along with authorizing supervised visits, it gave the Bureau discretion to allow unsupervised and overnight visits if mother tested consistently negative for 90 days.
II.
The Court's Termination of Services After Six Months
In its August 2018 six-month status review report, the Bureau indicated mother had not worked on the problems that led to T.S.'s removal from her custody. Mother had failed to show up for sixteen drug tests from February 21, 2018, to June 11, 2018, tested negatively three times, tested positive for ethanol in one May test, and had invalid test results in one June test. In June 2018, mother reported that she was no longer in the residential treatment program, and claimed that she planned to go to another one when a bed became available. On June 18, mother claimed she was going into a residential treatment program the next day, but there was no indication that she did so, or that she engaged with any other services.
The Bureau further reported that mother had attended 16 of her 20 scheduled visits with T.S. Three visits, scheduled in May and early June, were cancelled when she failed to confirm her attendance, and she did not show up for a fourth in April. During one visit observed by a social worker, T.S. appeared comfortable with mother, showed mother physical affection and sought comfort from her. During visits, mother redirected T.S. appropriately and expressed affection and positive reinforcement as well. Mother also had weekly phone calls with T.S.
The Bureau wrote there was "no evidence [mother] is addressing the issues that [led] to her child being removed from her custody . . . and . . . the Bureau is concerned she is falling into a pattern which negatively impacts her ability to safely care for her young daughter." It added, "Although it is clear that [mother] and her daughter love each other and demonstrate great affection towards each other through positive weekly visits, [mother] has not demonstrated that she is able to provide [T.S.] with the stability and care she needs from a sober and reliable parent by addressing the concerns which led to her daughter's removal." It recommended the termination of reunification services.
Mother requested a contested six-month review hearing, which the court scheduled for August 29, 2018. For that hearing, the Bureau reported mother had not shown up for three random drug tests in July and had positive results in one test and negative results in another. The Bureau also filed with the court an email to a Bureau social worker from a representative of the residential treatment program mother had left. The representative stated that mother had been discharged from the program on April 24, 2018 after "[s]everal clients had made allegations that [mother] was using and selling methamphetamine in the program and that she was obtaining clean urine from others in order to pass her required drug tests. When staff attempted to address these allegations by [urinalysis] testing her and searching her room, she became confrontational and left the program, stating that she was being referred by her parole agent to a different program that would be closer to her daughter."
At the August 29, 2018 contested six-month review hearing, mother arrived late. Her counsel objected to the termination of reunification services, acknowledged mother struggled with her addiction, and said mother intended to enter another residential treatment program the next day, as she had recently told the Bureau. Counsel stressed that mother had "fairly consistently" visited with T.S., that the visits were positive, that T.S. looked forward to them, and that mother and T.S. appeared to have a close bond. She contended that mother had missed one visit with T.S. because mother had pneumonia and did not want to risk her child becoming sick.
The Bureau's counsel noted that mother had said previously in the case that she was going to enter a program but did not, and characterized mother's latest representation as a "day late." Counsel also contended mother had not consistently visited T.S., which had disappointed T.S., and that mother had "definitely not fully engaged in her services." She argued that T.S., at two and a half years of age, deserved permanency, and that mother had not shown there was a substantial probability that she was going to be able to have T.S. returned to her care.
Minor's counsel agreed with the Bureau's counsel's contentions. She added that mother's "appearance today is also questionable. She appears to me to be under the influence of something today. Yes, [T.S.] does enjoy the visits, which is, again, another sad factor because unfortunately mother cannot maintain her sobriety. And continuing on with this basically charade for another six months is not in [T.S.'s] best interest." She agreed that services should be terminated.
The court agreed that mother appeared to be under the influence at the hearing. It noted mother's positive drug tests, including at the birth of T.S. and said, "It is tragic that mother has squandered this time that she's been given for reunification. In many respects I feel like we're back to square one, as mom has made no progress. . . . [¶] And mother was clearly told that if she failed to submit to testing, any missed test would be a considered a positive test. And she has missed . . . most of her drug tests." The court added, "And although I appreciate that [T.S.] enjoys the visits, of course she does. I'm sure she loves her mother dearly, and I'm sure mom loves her child dearly. But how confusing to a child if I were to continue this, the child were to continue to have regular contact with mother when the reality is the likelihood of successful reunification is quite slim at this point. [¶] I do not believe that [T.S.] should be denied the opportunity to seek permanency with a fit, appropriate, safe, loving caregiver. And although mother is certainly loving and I know she loves her daughter, she is not fit. She is not safe and she has not done much of anything to address the issues that brought the child before the Court in the first place." The court concluded that the Bureau's recommendation to terminate services was "wholly supported by the evidence" and in T.S.'s bests interests. It terminated reunification services and set a section 366.26 hearing for December 19, 2018.
Mother timely filed a notice of intent to file a writ petition and subsequently filed her petition. We issued an order to show cause why the petition should not be granted, and in response the Bureau filed an opposition to the petition.
DISCUSSION
Mother argues the juvenile court erred by failing to exercise its discretion to continue family reunification services for her, even though she had not been in substantive compliance with her case plan during the six-month period, because mother demonstrated the capacity to engage in these services and the willingness to continue to do so, and because of her strong bond with T.S. The Bureau contends mother has engaged in substance abuse for many years and has not made substantive progress in addressing this abuse, and that the court did not abuse its discretion in terminating services. We agree with the Bureau.
For a child under three years of age who is removed from a parent's care, a juvenile court six months after disposition may in its discretion set a section 366.26 hearing, provided 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. (§§ 361.5, subd. (a)(1)(B), 366.21, subd. (e)(3).) "If, however, the court finds there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (§ 366.21, subd. (e)(3).)
" 'Thus, there are two distinct determinations to be made by trial courts applying the third paragraph of section 366.21, subdivision (e). First, the statute identifies specific factual findings—failure to participate regularly and make substantive progress in the court-ordered treatment plan—that, if found by clear and convincing evidence, would justify the court in scheduling a .26 hearing to terminate parental rights. But this inquiry does not require the court to schedule a .26 hearing . . . .' " (Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1027.) Second, " 'the court shall not set a .26 hearing if it finds either[:] (1) "there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months . . ."; or (2) "reasonable services have not been provided . . ." to the parent. (§ 366.21, subd. (e).) In other words, the court must continue the case to the 12-month review if it makes either of these findings. However, the court is not required to set a .26 hearing even if it finds against the parent on both of these findings. The parent is also entitled to continued reunification services (with any necessary modifications) if the court makes either of these findings in favor of the parent.' " (Id. at p. 1028.)
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." ' " (Fabian L. v. Superior Court, supra, 214 Cal.App.4th at p. 1028.)
Mother argues there was a reasonable basis for the court to conclude that she could reunified with T.S. She acknowledges that she has had "bumps in the road," notes that while incarcerated she participated in parenting classes and highlights her two months of residential treatment. She further asserts that she has "demonstrated not only the capacity to engage in services, but also a willingness to continue to do so, both qualities that favor reunification." She cites Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464 (Renee J.) in support of her argument that "if there is any reasonable basis to conclude that a family can be saved the juvenile court should attempt to do so."
Mother's argument is completely unpersuasive. Renee J. involved the interpretation of certain statutes and changes in the law involving a present dependent's mother's misconduct with prior children that are not relevant here and which we will not discuss. Based on this analysis, the appellate court determined that the juvenile court erred in terminating reunification services for the mother regarding the present dependent. (Renee J., supra, 96 Cal.App.4th at pp. 1459-1463.) The social service agency argued that the court's error was harmless because the mother's "initially spotty performance, including some drug use in the early phases of this dependency, reveals that she had not actually taken reasonable steps to treat her drug problem . . . ." (Id. at p. 1463.) The court rejected this argument because, it concluded, even if the mother's efforts to address her drug problem were insufficient, the juvenile court "could nonetheless have focused on the fact she had made significant changes in her lifestyle . . . and determined that further efforts to deal with the problem would not have been 'fruitless.' " (Id. at p. 1464.) The record supported this conclusion. The mother had "performed quite well under her reunification plan," although she had a positive drug test, and "did well" in a "90-day in-patient drug treatment program upon her release from jail"; at a review hearing, the juvenile court had found a substantial probability that the child would be returned to the mother's custody within six months and ordered additional reunification services; and the mother had "continued to improve in her performance under the reunification plan, . . . living successfully in the sober living home, regularly drug testing, attending 12-step meetings, going to drug court and working part time." (Id. at p. 1456.) In this context, the appellate court stated that "[i]f the evidence suggests that despite a parent's substantial history of misconduct with prior children, there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so." (Id. at p. 1464.)
Here, the issue is not mother's conduct vis-à-vis prior children, but her ongoing conduct in relation to the current dependent. Further, in this case there is virtually no evidence that mother made meaningful efforts to deal with the problems that led to this dependency. Rather, there is substantial evidence supporting the trial court's finding by clear and convincing evidence that mother did not engage meaningfully in the services offered to help her deal with these problems and did not have the capacity to do so in the next six months. She did not enter a residential treatment program until three months after her release from incarceration, and then left two months later after being confronted with allegations that she was selling methamphetamine and faking drug tests. She failed to show up for the great majority of her drug tests and tested positively for a number of those for which she did submit, including one taken on a day she appeared in court. She appeared to be under the influence during an appearance at the Bureau and, later, at the hearing on whether to terminate her reunification services. She indicated she would participate in substance abuse treatment and did not do so. The court could reasonably conclude from this evidence that it should terminate services and schedule a section 366.26 hearing because, although mother had been offered reasonable services, she had not complied with her case plan and there was not a substantial probability that T.S. would be returned to her within six months.
Mother also contends that T.S. "has a positive relationship with her mother that she treasures," was affectionate with mother, sought her out for comfort and looked forward to spending time with her. Mother argues, "Awarding additional time to Mother to reengage in residential treatment and become a safe and suitable parent would therefore also have been in T.S.'s best interests and the juvenile court's failure to do so was an abuse of discretion." We disagree. The court was not required by the existence of this affectionate and positive bond to continue services. Rather, it could reasonably conclude—as it did—based on the evidence we have discussed that despite this bond, the likelihood of successful reunification was "quite slim," that mother had "not done much of anything to address the issues that brought [T.S.] before the Court," and that T.S. should have "the opportunity to seek permanency with a fit, appropriate, safe, loving caregiver."
DISPOSITION
Mother's petition is denied. Our decision is final as to this court immediately. (See Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.