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M. C. v. Superior Court of Los Angeles Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 25, 2012
No. B236699 (Cal. Ct. App. Jan. 25, 2012)

Opinion

B236699 Super. Ct. No. CK56354

01-25-2012

M. C. Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.

Law Offices of Katherine Anderson, Victoria Doherty and Omid Pouya for Petitioner. No appearance for Respondent. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Real Party in Interest.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of Court, rule 8.452.) D. Zeke Zeidler, Judge. Petition denied.

Law Offices of Katherine Anderson, Victoria Doherty and Omid Pouya for Petitioner.

No appearance for Respondent.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Real Party in Interest.

M. C. (mother) has filed a petition for extraordinary writ (Cal. Rules of Court, rule 8.452), challenging an order of the juvenile court terminating family reunification services with her children M.W. and R.W. (collectively "the minors"), and setting a hearing pursuant to Welfare and Institutions Code section 366.26 to consider the termination of parental rights. Mother argues that: (1) substantial evidence does not support the juvenile court's finding that DCFS provided mother with reasonable reunification services; and (2) the juvenile court violated mother's "due process rights" and "constitutional safeguards" when it found that DCFS had provided mother with reasonable reunification services. We deny mother's petition.

Because the minors in this case have unusual first names, we will refer to them using their first and last initials to protect their anonymity. (See Cal. Rules of Court, rule 8.400(b)(2).)

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

BACKGROUND

A. Initial Detention and Jurisdictional Proceedings

Mother is the biological mother to five children: D.P., B.T., M.W. (born 2005), R.W. (born 2006), and A.J. (born 2009). In 2005, the juvenile court declared D. P. and B. T. dependents of the court, and in 2007, the juvenile court terminated mother's parental rights over them and finalized their adoptions.

In September 2008, the Los Angeles County Department of Children and Family Services (DCFS) filed a dependency petition against mother alleging that mother had failed to reunify with two of her children, that mother had failed to comply with prior court orders regarding substance abuse treatment and drug testing, and that mother had a history of substance abuse, all of which placed M.W. at risk of serious harm. The juvenile court placed M.W. in the custody of her biological father Ronald W. (father).

In September 2009, DCFS filed another dependency petition against mother. This time, the petition alleged that mother had a history of substance abuse, was currently incarcerated on felony drug charges (possession and purchase of cocaine base for sale), and failed to make an appropriate care plan for R.W. and A.J., which placed them at risk of serious harm. The juvenile court placed R.W. in the custody of father, and placed A.J. in the care of DCFS for suitable placement.

In June 2010, father informed DCFS that he was no longer able to care for M.W. and R.W., and that he had placed them in the care of their paternal grandmother (grandmother).

On August 18, 2010, the juvenile court sustained the section 300 petition allegations made against mother, placed the minors with grandmother, who lived in the city of Ontario, and ordered reunification services for mother in the form of individual counseling to address her criminal history and drug use, parenting classes, drug rehabilitation counseling, and random drug testing. The juvenile court also granted mother twice weekly monitored visits with the minors upon her release from prison.

The juvenile court ordered similar reunification services for mother with regard to A.J., who was also declared a dependent of the court.

B. Six, 12, and 18-Month Status Review Hearings

In its six-month status review, dated February 2, 2011, DCFS reported that M.W. and R.W. were in good health, that they were achieving their developmental milestones, that they had significantly improved their behavior at school, that they appeared to be doing well emotionally, and that grandmother was providing them with "stability, structure, and lots of love[.]" As to mother, DCFS reported that she had been released on parole on December 28, 2010, to Walden House, a substance abuse and mental health residential treatment facility. While mother was residing at Walden House, the case social worker assigned to the matter, Valencia Parker (CSW Parker), called Walden House to arrange for transportation funds for mother. On February 2, 2011, mother left Walden House and failed to notify CSW Parker of her whereabouts. DFCS further reported that it had approved monitored visits for mother on Saturdays and Sundays at grandmother's home, and that mother had missed two of six possible visits during the review period. During her visits with the minors, mother styled their hair and required encouragement from grandmother to interact with them on a more meaningful level.

At the six-month status review hearing, the juvenile court found that mother was in partial compliance with the case plan and ordered continued reunification services. Additionally, it found that DCFS was in full compliance with the case plan and that DCFS had provided reasonable reunification services.

In its 12-month status review, dated April 7, 2011, DCFS reported the minors continued to blossom, that grandmother met M.W.'s medical needs on a daily basis, and that grandmother expressed a desire to become the minors' legal guardian should their parents fail to reunify with them. DCFS also amended its earlier report on mother's visitation and clarified that mother had visited with the minors three times (not four) since her release from prison, that the visits ranged from five to nine hours each visit, and that the last visit occurred sometime in March 2011.

DCFS further reported that mother did not reside at Walden House long enough for it to determine whether she had made progress in her drug rehabilitation and that mother declined to provide CSW Parker with her current address despite three telephonic requests to do so. On April 1, mother informed CSW Parker that she was enrolled in an outpatient drug program in Los Angeles, but could not remember its name. Also, during this period, CSW Parker contacted the case social worker on A.J.'s case to obtain the results of mother's random drug testing, and mother's parole agent to obtain a progress report.

At the 12-month status review hearing, the juvenile court continued its orders regarding visitation and reunification services for mother. It also found that DCFS was in full compliance with the case plan "by making reasonable efforts to enable the [minors'] safe return home and to complete whatever steps [were] necessary to finalize [their] permanent placement" and that DFCS had provided reasonable reunification services.

On May 24, 2011, DCFS reported to the juvenile court that mother had enrolled in a substance abuse program at the Weingart Center Association (Weingart Center) on March 28, 2011, had tested positive for cocaine on April 19, 2011, and was a no-show on another drug test.

In its 18-month status review, dated August 9, 2011, DCFS reported that M.W. and R.W. appeared to be "happy, friendly little girls" and had "made significant progress in their attitudes and behaviors while with their grandmother[.]" As to mother's visitations, DCFS reported that mother had not visited with the minors since March 2011, and had declined an invitation to attend the minors' graduation ceremony at their school. DCFS also reported that mother had called CSW Parker to express frustration with her inability to visit with the minors. Mother maintained that she had been unable to contact grandmother to schedule visits because grandmother had changed her telephone number, and that grandmother was allowing father and father's girlfriend to take the minors on unmonitored outings. When CSW Parker confronted grandmother with these allegations, grandmother responded that her home telephone number had remained the same for the past three years and that mother had this telephone number, that she never permitted father to take the girls on unmonitored outings, and that father did not have a girlfriend.

On the topic of mother's substance abuse counseling, mother's counselor at the Weingarten Center reported that mother "continue[d] to adhere to the . . . program's requirements and [was] actively involved in a program of recovery in order to become a productive member of society." The counselor noted that mother underwent random drug testing and weekly individual and group counseling as part of the program.

During this review period, CSW Parker informed mother that mother could pick up a July bus pass for Los Angeles County and additional funds to purchase a San Bernardino County pass at the DCFS office in Glendora. Mother did not come to pick up the bus pass or the additional transportation funds.

According to DCFS delivered service logs (which were taken into evidence by the juvenile court), on August 9, 2011, mother called CSW Parker and complained that she was unable to visit the minors because a parole condition prohibited her from leaving Los Angeles County. CSW Parker questioned why mother had waited eight months after she was paroled to raise this issue, but nonetheless assured mother that she would contact mother's parole agent to inform the agent that mother was permitted to leave Los Angeles County to visit her children. During this conversation, mother requested weekend visits with the minors and CSW Parker reaffirmed that mother was permitted to visit with the minors each weekend, and added that grandmother had invited mother to stay for Sunday dinners.

On September 27, 2011, DCFS reported to the juvenile court that from August 13 through September 18, mother missed 10 out of 12 possible visits with the minors, and of the 10 missed visits, mother called only once to inform the minors that she would not be coming.

C. Section 366.22 Hearing

At the contested section 366.22 hearing, which took place on September 27 and September 28, 2011, CSW Parker and mother testified.

1. CSW Parker's Testimony

CSW Parker testified that she had been assigned to the case for approximately 18 months, and first spoke with mother on the telephone in December 2010. She did not meet face to face with mother until August 2011.

As CSW Parker understood the court-ordered case plan, mother was required to undergo individual counseling to address the issues that resulted in the minors' detainment (e.g., drug use and related criminal acts), participate in a substance abuse treatment program, and complete a parenting course. Although CSW Parker was aware that mother had completed some programs (possibly on parenting) and individual counseling while incarcerated, CSW Parker believed that mother would have to redo the programs and counseling once she was released in order to comply with the court-ordered case plan. According to CSW Parker, she confirmed that mother had a parenting class referral through A.J.'s case, and informed mother that mother could get additional referrals from her if mother needed them. As the case was progressing, CSW Parker consulted with the case social worker on A.J.'s case to see what reunification services were being provided to mother.

CSW Parker testified that if the minors were returned to mother's custody, the risk of harm to them would be "very high." She explained that mother was living with a boyfriend who had an extensive criminal record, that mother's prior visits with the minors were minimal and of "poor quality," that mother had not demonstrated a financial ability to provide for the minors, and that mother had not undergone the court-ordered individual counseling to address her criminal history. CSW Parker conceded that she had not personally observed mother's interactions with the minors, but that grandmother had reported the visits were of poor quality and she believed grandmother was a neutral observer. According to CSW Parker, she attempted to provide mother with a referral for individual counseling, but mother stated that she had already obtained such a referral through the case social worker on A.J.'s case. At no point did mother inform CSW Parker that she was having difficulty getting into individual counseling. CSW Parker also testified that mother had completed a six to nine month substance abuse treatment program at the Weingarten Center.

CSW Parker was aware that mother and father had a strained relationship, and that they had an altercation during one of mother's visits. After this altercation took place, CSW Parker explicitly requested that grandmother not permit father to be present at her home when mother visited with minors. She acknowledged that mother had requested on several occasions that the visitations take place either at mother's residence, or a venue located in between mother's residence and grandmother's residence. CSW Parker informed mother that a change in venue would require the consent of all involved, and could not occur unilaterally. According to CSW Parker, mother never requested a change in the visitation venue based on mother's concern that she would get into a subsequent altercation with father.

On the issue of transportation, CSW Parker testified that mother did not initially request transportation assistance when she was released on parole in December 2010 because she was receiving it from the case social worker on A.J.'s case. The transportation assistance lasted through May 2011 on A.J.'s case, and mother first requested transportation assistance from CSW Parker at the end of May or early June 2011. In response to mother's request, CSW Parker arranged for mother to have a bus pass and requested that mother pick up the pass at the Glendora DCFS office. CSW Parker did not send the pass via mail because it was against DCFS policy to do so, and she was too busy servicing other clients to personally deliver the pass to mother. According to CSW Parker, she arranged for mother to pick up a bass pass at the Glendora DCFS office in June, July, and August 2011. In September 2011, CSW Parker personally delivered a bass pass to mother.

CSW Parker testified that in addition to arranging for mother to pick up a bus pass, she also referred mother to random drug testing, sent mother a copy of the minute order detailing mother's case plan requirements, contacted the Weingarten Center to see if mother's drug counseling could fulfill the court-ordered individual counseling requirement, and consulted with the case social worker on A.J.'s case to confirm that mother had transportation services and was enrolled in a drug program.

The delivered service logs also show that CSW Parker met with the minors at grandmother's home on multiple occasions and drove the minors to school during a short period in June 2011 when grandmother was recuperating from an illness.

2. Mother's Testimony

Mother testified that during one of her visits with the minors, she became involved in an altercation with father. After this altercation, she felt uncomfortable visiting the minors at grandmother's home because father was usually present, and she feared getting into another altercation with him. Mother requested on several occasion that CSW Parker schedule the visits at a venue other than grandmother's home. CSW Parker rejected her requests, stating that grandmother was comfortable having the visits take place in her own home.

Mother testified that she had received individual counseling through her participation in the substance abuse treatment program at the Weingarten Center. The counseling took place twice a week for the first month, and then once a week after that for approximately 30 to 45 minutes. Since her completion of the substance abuse program at the center, mother had not enrolled in any type of 12-step program, such as Alcoholics Anonymous or Narcotics Anonymous. Mother did not deny that she tested positive for illicit drug use on one occasion in April 2011.

On the topic of transportation services, mother testified that she contacted CSW Parker on May 30, 2011, to seek assistance in getting transportation funds so that she could visit the minors. CSW Parker arranged for mother to have a bus pass by the middle of June. Mother, however, maintained that she did not pick up the pass because she had no transportation to Glendora. Mother testified that she was able to obtain an August bus pass from CSW Parker because her cousin drove her to the DCFS office that month, and confirmed that CSW Parker personally delivered a bus pass to her in September.

When asked why she did not visit with the minors at all in September even though CSW Parker had delivered a bus pass to her, Mother testified that the pass did not have a freeway express sticker, and that without this sticker, the trip to grandmother's home took five hours each way. Mother admitted that she often did not call the minors when she missed scheduled visits because she felt guilty. According to mother, she visited with the minors a total of six to seven times, and that she spoke with them on the phone approximately 10 times since her release from prison.

Mother testified that she requested a referral for individual counseling from CSW Parker, but that CSW Parker refused to provide one. When asked by the juvenile court what additional services DCFS could have provided to her, mother testified: "My main need is just transportation needs for my visitation to be set, so whatever is common and that's all I ask for." She later elaborated: "Well, honestly I feel that I have accomplished what I need to accomplish, that was asked of me to get my children back. So I don't think I need any more programs."

3. The Juvenile Court's Ruling

The juvenile court found that returning the minors to mother's physical custody would result in a substantial risk of detriment to their physical and emotional well-being, and that DCFS had provided reasonable reunification services.

In support of its ruling, the juvenile court pointed to: evidence that mother was not enrolled in meaningful aftercare (e.g., a 12-step program) despite her extensive substance abuse history; evidence that mother did not call the minors when she missed scheduled visits, which demonstrated a lack of understanding of how her actions affected the minors; and evidence that mother's visits with the minors were minimal. The juvenile court also cited insufficient evidence demonstrating that mother had received the type of counseling necessary to address the issues that led to the minors' initial detainment. The juvenile court found that although CSW Parker's "efforts [at providing reunification services] were not exemplary," "in the end . . . they were reasonable[.]"

Mother timely appealed from the juvenile court's order terminating reunification services for mother, and scheduling the matter for a hearing pursuant to section 366.26 on January 31, 2012.

DISCUSSION

"[W]henever a child is removed from a parent's . . . custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother and statutorily presumed father or guardians." (§ 361.5, subd. (a).) "In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent." (In re Misako R. (1991) 2 Cal.App.4th 538, 545 (Misako R.).) "If there is substantial evidence supporting the [juvenile court's finding], our duty ends and the [finding] must not be disturbed." (Ibid.)

"The adequacy of reunification plans and the reasonableness of [DCFS's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) "To support a finding [that] 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 . . . .' (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)" (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 691.) "In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. 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." (Misako R., supra, 2 Cal.App.4th at p. 547.)

Here, mother contends that DCFS did not provide her with reasonable reunification services that would allow her to visit the minors on a regular basis. Specifically, she faults CSW Parker for not providing her with transportation assistance to visit the minors, for not insuring that father was not present during the visits, and for not changing the location of the visits to a site more convenient for mother. In short, mother claims that CSW Parker "did nothing to facilitate visitations between [her] and her children." We disagree.

On the issue of transportation assistance, the record, read in the light most favorable to the respondent, demonstrated the following: When mother was initially released on parole in December 2010, CSW Parker contacted Walden House, where mother was residing, to arrange for transportation funds for mother. CSW Parker presumably could not follow up on the issue of transportation funds because mother left Walden House shortly thereafter and failed to notify CSW Parker of her whereabouts. Additionally, after mother contacted CSW Parker at the end of May to request a bus pass, CSW Parker arranged for mother to have one by the middle of June, and subsequently for July, August, and September. Mother takes much issue with the fact that CSW Parker asked mother to pick the passes up in Glendora, and did not deliver them to her. CSW Parker explained, however, that she was not permitted to send the passes via mail per DCFS policy, and that she was too busy servicing other clients to personally deliver the first three passes. As noted above, the prevailing standard is whether the services provided were reasonable under the circumstances, and not whether the services provided were the best that might be provided in an ideal world. (Misako R., supra, 2 Cal.App.4th at p. 547.) Notably, CSW Parker did personally deliver mother's bus pass in early September 2011. Mother, nonetheless, still did not visit the minors at all during that month.

On the issue of father's presence during the visitations, the record indicates that as soon as CSW Parker learned of the altercation between mother and father, she requested that grandmother prohibit father from being present when mother was scheduled to visit the minors. There is no evidence to suggest that grandmother did not heed CSW Parker's directive. When asked whether father was present during any visit subsequent to their altercation, mother replied that she did not know because she had not returned to visit the minors. Mother's claim that she would have visited the minors more regularly but for CSW Parker's alleged inaction regarding father's presence simply rings hollow.

Mother's claim that she did not visit the minors because she was afraid of violating the geographical boundaries of her parole is likewise unpersuasive. The record indicates that mother was paroled in December 2010 and visited with the minors in Ontario approximately three times over the next three months without any apparent fear of violating her parole. Mother did not raise the issue of parole boundaries until August 2011, at which point CSW Parker assured mother that she would speak to mother's parole agent to clarify that mother had permission to visit the minors. Even after CSW Parker's assurances, however, mother still made no attempt to visit the minors in September.

We turn last to mother's claim that DCFS failed to provide reasonable reunification services by not moving the visitation site to a venue closer to mother. As stated above, the minors were initially removed from mother's custody because of her substance abuse issues and subsequent incarceration, and placed in the custody of father. Father, in turn, had his own difficulties caring for the minors and eventually turned them over to grandmother. It was with grandmother that the minors had, for what appears to be the first time in their young lives, a household in which they found stability and appropriate care, and where they undisputedly blossomed and continue to thrive. In this context, it was reasonable for CSW Parker to reject mother's request to have the visitations occur outside of grandmother's home. The minors presumably felt safest in their grandmother's home, and their emotional well-being was certainly a major factor to be considered by CSW Parker. While mother's five-hour trips to and from grandmother's home were undoubtedly taxing, and a closer site would have been more convenient for mother, it was incumbent upon mother to demonstrate that she was committed to rebuilding her relationship with the minors and was ready to place their needs over her own, even if doing so required a significant time commitment on her part.

As a fallback argument, mother, relying in large part on In re Hunter S. (2006) 142 Cal.App.4th 1497 (Hunter S.), argues that "when the juvenile court ruled that DCFS had provided reasonable services in this case[,] it violated M.'s due process rights and did not afford her the constitutional safeguards built into the Welfare and Institutions Code." Hunter S., however, is readily distinguishable. (See id. at pp. 1504-1506 [granting mother's petition because juvenile court, "by virtue of three years of error and judicial inattention[,]" refused to enforce its own visitation order by permitting child and child's therapist unlimited discretion in determining when visits with mother could occur].) No such error or judicial inattention has occurred here, and thus mother's constitutional claim has no merit.

In sum, based on the record before us, we conclude the juvenile court properly terminated family reunification services and set the underlying proceeding for a hearing pursuant to section 366.26.

DISPOSITION

The petition for extraordinary writ is denied. Pursuant to California Rules of Court, rule 8.264(B)(3), this opinion is made final forthwith.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_________________, J.

ASHMANN-GERST

We concur:

_________________, Acting P. J.

DOI TODD

_________________, J.

CHAVEZ


Summaries of

M. C. v. Superior Court of Los Angeles Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 25, 2012
No. B236699 (Cal. Ct. App. Jan. 25, 2012)
Case details for

M. C. v. Superior Court of Los Angeles Cnty.

Case Details

Full title:M. C. Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Date published: Jan 25, 2012

Citations

No. B236699 (Cal. Ct. App. Jan. 25, 2012)