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M.A. v. Superior Court of Sonoma Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Jan 18, 2012
A133633 (Cal. Ct. App. Jan. 18, 2012)

Opinion

A133633

01-18-2012

M.A., Petitioner, v. THE SUPERIOR COURT OF SONOMA COUNTY, Petitioner; SONOMA COUNTY HEALTH & SOCIAL SERVICES DEPARTMENT ET AL., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Sonoma County Super. Ct. No. 3226DEP, 3227DEP)

M.A. (Mother) petitions for extraordinary relief under California Rules of Court, rule 8.452, asking us to set aside the juvenile court's order setting a permanent plan hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). We deny the petition on the merits.

All statutory references are to the Welfare and Institutions Code. All rule references are to the California Rules of Court.

I. BACKGROUND

A. Jurisdiction and Disposition

Mother has two sons, G.J.A. and O.A. (Minors). The Sonoma County Human Services Department (the Department) filed juvenile dependency petitions on behalf of both children pursuant to section 300 in November, 2009. The petitions alleged that Mother had a history of substance abuse, that O.A. was a newborn, that both he and Mother had tested positive for methamphetamine, and that Mother had used methamphetamine throughout her pregnancy and had provided inconsistent prenatal care. The petition as to G.J.A., who was then three years old, alleged in addition that Mother had a history of domestic violence and had exposed G.J.A. to domestic violence in October, 2009, by brandishing a kitchen knife at her 16-year-old sister. The whereabouts of Minors' alleged fathers were unknown. Minors were detained.

The alleged fathers took no part in the juvenile court proceedings and are not parties to this petition.

The Department prepared a report for the December 17, 2009 jurisdiction and disposition hearing, recommending that Minors be declared dependents of the court and that Mother receive reunification services. According to the report, Mother admitted she had started using drugs in 2004 and that she had used drugs during her pregnancy with O.A. She also acknowledged grabbing a knife during a fight with her sister.

Minors were in separate foster homes. G.J.A. had severe behavioral problems, possibly stemming from drug exposure via breast milk. O.A. was still withdrawing from his prenatal drug exposure a month after his birth. Mother had three two-hour visits with them each week. The report described her as having "difficulty managing two small children," but being "open to suggestion and support." Mother was patient with G.J.A., and she appeared to be bonding well with O.A. Mother had received supportive services from Public Health Nursing after O.A.'s birth, and she had been referred for drug treatment. She had entered residential drug treatment, and appeared committed to recovering from her addiction.

The Department recommended a case plan for reunification services, under which Mother would successfully complete a residential treatment program and follow-up treatment for drug abuse; visit Minors regularly; attend Alcoholics Anonymous or Narcotics Anonymous regularly; submit to random drug testing; complete a parent education course and demonstrate the ability to identify normal child development, problems of development, health concerns, and age-appropriate discipline; submit to an evaluation for anger management and complete any recommended program or classes; and cooperate with the social worker.

The juvenile court found the allegations of the petitions were true and that Minors came within the provisions of section 300, continued them in the Department's custody, ordered reunification services for Mother, and required her to comply with the case plan outlined in the report. The court also advised Mother that reunification services would not be extended beyond 18 months from the date Minors were originally removed from her physical custody.

B. Status Review Hearings

It appears that at a March 11, 2010 oral update, it was reported that Mother was scheduled to complete a residential treatment program on March 20, 2010, and all her drug tests had been negative. She was going to begin aftercare, had applied for transitional housing, and had been referred to an in-home parent educator. Her visits with Minors were going well.

According to a report prepared for the June 10, 2010, six-month review hearing, Minors were still in foster care. Earlier in the review period, G.J.A. had had behavioral problems, including aggression toward other children, tantrums, excessive crying, difficulty sleeping through the night, and difficulty accepting time-outs. His behavior had recently improved.

Mother had successfully completed a residential treatment program, and was participating in follow-up treatment. She was also participating in Drug Dependency Court, was doing well in treatment, had been attending Twelve Step meetings, and her random drug test results had all been negative. She was arriving on time and participating in her visits with Minors. She was working with an in-home parenting educator. The social worker had found a group addressing domestic violence and anger management, and believed Mother would benefit from it, but "[g]iven that the mother's schedule is very full with her other services, the undersigned has decided it would be best to wait to have the mother begin this group." Mother had been cooperative with the social worker and met with her regularly. The Department reported that Mother had made "steady and significant progress" with her drug treatment and had shown a commitment to being a good parent.

At the six-month review hearing, the juvenile court found reasonable services had been provided and that the Department had complied with the case plan, found Mother had made significant progress in resolving the problems that had led to Minors' removal, and ordered her to comply with her case plan.

According to the report for the 12-month status review hearing scheduled for December 9, 2010, mother had been generally consistent in attending her follow-up drug treatment, had attended Twelve Step meetings, had been participating fully in Drug Dependency Court, and her random drug tests had all been negative. She continued to visit Minors consistently, and was working with an in-home parenting educator on discipline, limits-setting, and activities with the children. Mother had graduated from a parent education program provided through the Drug Dependency Court. She was in individual therapy through the Family Service Agency, and the social worker had asked the therapist to focus on helping Mother manage her anger. Mother had cooperated fully and met regularly with the social worker. During the review period, the Department had offered referrals for outpatient treatment, coordination with the Drug Dependency Court, in-home parenting education, a parent education program, and family and individual therapy. The Department recommended that Mother continue to receive reunification services.

At the 12-month hearing, the juvenile court continued Minors as dependents, continued them in their placement, found by clear and convincing evidence that reasonable services had been provided or offered, found the Department had complied with the case plan by making reasonable efforts to make it possible for Minors to be safely returned home, and ordered Mother to comply with the case plan.

The report prepared for the May 5, 2011, 18-month review hearing noted that Minors had been living with Mother on a trial home visit since March 4, 2011, and recommended that the court authorize family maintenance services for Minors. On March 16, 2011, someone had reported that Mother had hit her children. A social worker investigated the referral, but found it to be inconclusive. In-home parent education services were continuing, and Mother had graduated from her follow-up drug treatment and the Drug Dependency Court. G.J.A.'s behavior continued to be difficult, and his therapist was working with Mother on how best to handle it.

During the review period, Mother had continued to work with the in-home parent educator, had attended Twelve Step meetings, and was in individual therapy, although she had been inconsistent in attending therapy due to problems with child care. The social worker had asked the therapist to focus on anger management, and the therapist reported that she had been working on "anger and relationship issues" with Mother. Mother had met with the social worker and updated her on any changes in her household.

At the May 5, 2011 hearing, the juvenile court retained Minors as dependents, found that reasonable services had been provided or offered and that the Department had complied with the case plan, placed Minors in Mother's home under a program of court-ordered family maintenance, and ordered family maintenance services.

C. Supplemental Petitions

On July 13, 2011, the juvenile court issued a protective custody warrant for Minors. According to supplemental juvenile dependency petitions filed July 14, 2011 (§ 387), Mother and her live-in boyfriend had been involved in an incident of domestic violence on or about June 18, 2011. The boyfriend had agreed to leave the home. On July 11, 2011, however, G.J.A. told a social worker the boyfriend had been spending every night at Mother's home and still lived there, although Mother denied that G.J.A.'s statements were true. In June, Mother had revealed in therapy that she and her boyfriend had argued and he grabbed her by the throat, threw her on the bed, and held her down. G.J.A. came in, saw what was happening and started to swear at the boyfriend. The boyfriend threatened to hit G.J.A. before calling Mother a bitch, telling her she was worthless, and leaving. Mother was pregnant, and expected to have her baby in September. Mother later told a social worker she had begun the fight with her boyfriend, that she had tried to restrain him physically when he tried to leave, and that he resisted her and pushed her down onto the bed. She denied that her boyfriend had grabbed her by the neck or threatened to hit G.J.A. The social worker told Mother and her boyfriend that if they continued to live together, Minors would be removed. She told them the Department would assess whether to provide services to the couple, and they agreed to receive services.

On July 11, 2011, a social worker made an unannounced visit to the home. She complimented G.J.A. on a new haircut, and he told her Mother's boyfriend had cut it the previous day, and that the boyfriend slept in the home every night because he lived there. Mother looked "terrified" and denied that her boyfriend lived in the home. G.J.A. also told the social worker Mother had hit him a month previously because he had tried to steal something from a store. Mother said she would burn his hands on the stove if he stole anything. The children were detained and placed in temporary placement.

In its report for the hearing on the section 387 petition, the Department recommended that Mother not be offered further reunification services because she had already had more than 18 months of services, and that a .26 hearing be set for development of a permanent plan. Mother acknowledged that her boyfriend visited and that he had "faded" G.J.A.'s hair, but denied that he slept in the home. Mother had missed five urine analysis tests between May 24, 2011 and June 21, 2011.

The supplemental petitions had included two allegations. Allegation S.1(1) asserted that the relationship between Mother and her boyfriend placed Minors at substantial risk of mistreatment because "[o]n or about June 18, 2011, there was a Domestic Violence incident between the mother and her live-in boyfriend. [The social worker] spoke to the mother and she disclosed information about the DV incident. The boyfriend agreed to leave the home as a safety plan." According to allegation S.1(2), "[o]n or about July 11, 2011, on an unannounced visit, [G.J.A.] reported to [the social worker] that the boyfriend had been staying the night every night and still lived there. The mother stated that he had not been staying there, and minimized the risks of exposure to Domestic Violence on the children." At the hearing on the supplemental petitions, the juvenile court allowed the County Counsel to amend allegation S.1(1) to add the allegation that Mother had a history of domestic violence that had been previously found true by the court.

At the hearing on the supplemental petitions, the social worker assigned to the case expressed his concern that despite the services Mother had received, she had still placed Minors at risk once they were returned to her care on family maintenance. Mother had told her therapist about the incident of domestic violence between her and her boyfriend. She later told the social worker she was a jealous woman and initiated the violence as her boyfriend tried to leave the home, ripping his shirt off and getting into a physical altercation with him. G.J.A. walked into the room as the boyfriend was pinning Mother down on the bed, and attacked the boyfriend because he was afraid the boyfriend was hurting Mother.

The social worker testified that Mother first denied, and later admitted, that her boyfriend had cut G.J.A.'s hair at the home. Mother told him in June, 2011, that G.J.A.'s mental health doctor had diagnosed him with anxiety and depression, and had prescribed medication. Since G.J.A. had been returned to foster care, however, his anxiety and anger appeared to have lessened without the medication, which the social worker attributed to the more consistent, structured environment in foster care.

Mother and her brother both testified that it was her brother who had cut G.J.A.'s hair. Mother also testified that her boyfriend left the home when the social worker told him to.

At the conclusion of the hearing, the juvenile court found allegation S.1(1) to be true, but concluded the evidence was insufficient to support allegation S.1(2). The juvenile court found, based on clear and convincing evidence, that Minors should be removed from Mother's physical custody based on a substantial danger to their health, safety, or well-being. It denied reunification services and ordered a .26 hearing. Mother petitions for extraordinary review of this order.

II. DISCUSSION

A. Substantial Evidence to Support Supplemental Petitions

Mother contends the evidence does not support a finding that the incident resulting in the removal of Minors created a substantial risk of harm in the future and that the previous disposition had not been effective. She argues that the juvenile court could only sustain the petition if it found that, at the time of the hearing, the following three elements were met: neglectful conduct by the parent, causation, and serious physical harm or illness to the minor or a substantial risk of such harm or illness, and that such evidence did not exist here. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) She also argues that the trial court's finding that the evidence did not show the boyfriend still lived in the home implies a finding that Mother had complied with the safety plan that was put in place to protect the children. "When we review a sufficiency of the evidence challenge, we may look only at whether there is any evidence, contradicted or uncontradicted, which supports the trial court's determination. We must resolve all conflicts in support of the determination, and indulge in all legitimate inferences to uphold the court's order. Additionally, we may not substitute our deductions for those of the trier of fact. [Citations.]" (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969 (Elijah R.).)

Sufficient evidence supports the juvenile court's findings. The juvenile court had previously sustained an allegation of domestic violence. After the children were returned to Mother's care after more than a year of reunification services, including therapy directed at helping her manage her anger, she initiated a physical fight with her boyfriend, serious enough that G.J.A. believed he needed to attack the boyfriend in order to protect Mother. The juvenile court could reasonably conclude Mother was not yet able to protect Minors from her pattern of engaging in domestic violence and that there would be a substantial danger to their health, safety, or well-being if they were returned to Mother.

In reaching this conclusion, we recognize the commendable steps Mother had taken to recover from her drug addiction.
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B. Reasonableness of Reunification Services

Mother also contends the evidence does not support the juvenile court's finding that she had received reasonable reunification services. She points out that, although her December, 2009, case plan recommended that Mother "[s]ubmit to an evaluation for anger management and complete any recommended program or classes," she was not referred for that service until May, 2010. There is evidence that Mother was resistant to discussing these issues in a group, and at the time her social worker recommended that because Mother's schedule was "very full with her other services," it was best for Mother not to begin the group yet. Mother's social worker also reported that she asked Mother's individual therapist to focus on anger issues.

In reviewing the reasonableness of reunification services, "we must [] recognize that in most cases more services might have been provided, and the services which are provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances." (Elijah R., supra, 66 Cal.App.4th at p. 969; see also In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

To the extent Mother challenges the reasonableness of the services offered before the 18-month hearing, she has waived her challenge by failing to raise it on appeal after the juvenile court found at that hearing that reasonable services had been provided. (See In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 ["an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order"]; accord In re Jesse W. (2001) 93 Cal.App.4th 349, 355; In re Daniel D. (1994) 24 Cal.App.4th 1823, 1832-1833.) In any case, we see no merit to Mother's contention. Mother was provided with a variety of services directed toward her problems, including drug programs, in-home parenting education, a parent education program, and family and individual therapy. Her therapist had been asked to focus on anger and relationship issues. Whether or not more could have been done, the evidence supports the juvenile court's finding that the services were reasonable.

Mother contends, however, that rather than setting a .26 hearing, the juvenile court should have exercised its discretion to continue reunification services beyond the amount she had already been provided. " 'When a juvenile court sustains a supplemental petition pursuant to section 387, the case does not return to " 'square one' " with regard to reunification efforts. [Citations.] Instead, the question becomes whether reunification efforts should resume. The answer is yes if: the parent has received less than 12 months of child welfare services (§§ 361.5, subd. (a), 366.21, subd. (e)); the parent did not receive reasonable child welfare services (§§ 366.21, subd. (g)(1), 366.22, subd. (a)); or the case has passed the 12-month mark but there is a substantial probability the child will be returned within 18 months of the date the child was originally removed from the parent's physical custody (§ 366.21, subd. (g)(1)).' [Citation.]" (In re N.M. (2003) 108 Cal.App.4th 845, 853; see also § 361.5, subd. (a)(3); rule 5.565(f).) Courts have held, however, that in exceptional circumstances, juvenile courts have discretion to continue services beyond 18 months. (See In re N.M., supra, 108 Cal.App.4th at p. 855; see also Cresse S. v. Superior Court (1996) 50 Cal.App.4th 947, 954 [extension of services may be justified where parent has tried to comply with reunification plan but has been prevented by hospitalization or when plan not implemented during most of reunification stage]; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1214 [court may decline to order permanent placement hearing, and continue reunification services, if it determines reasonable reunification services have not been provided]; § 366.22, subd. (b) [court may order additional six months of services where parent is making progress in residential drug treatment program or is recently discharged from incarceration or institutionalization and services are in child's best interest].)

Here, Mother had already received 18 months of services. We see no exceptional circumstances that would justify a delay in the permanency hearing or extension of services. Mother was provided with services throughout the dependency and was not prevented from taking advantage of them. We have already concluded the evidence supports the juvenile court's conclusion that the services were reasonable. In the circumstances, the juvenile court acted properly in denying further reunification services and setting the .26 hearing.

III. DISPOSITION

The petition is denied on the merits. (§ 366.26, subd. (l)(1)(C); rule 8.452(h)(1); In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) Our decision is final immediately. (Rule 8.490(b)(3).) The request for a stay of the February 16, 2012 hearing is denied.

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RIVERA, J.
We concur: ____________
RUVOLO, P. J.
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SEPULVEDA, J.


Summaries of

M.A. v. Superior Court of Sonoma Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Jan 18, 2012
A133633 (Cal. Ct. App. Jan. 18, 2012)
Case details for

M.A. v. Superior Court of Sonoma Cnty.

Case Details

Full title:M.A., Petitioner, v. THE SUPERIOR COURT OF SONOMA COUNTY, Petitioner…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 18, 2012

Citations

A133633 (Cal. Ct. App. Jan. 18, 2012)

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