Opinion
F087520
04-04-2024
MARIAH S., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest.
Law Office of Michelle Trujillo and Michelle Trujillo for Petitioner. No appearance for Respondent. Margo A. Raison, County Counsel, and Judith M. Denny, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. (Super. Ct. No. JD143676-00) Christie Canales Norris, Judge.
Law Office of Michelle Trujillo and Michelle Trujillo for Petitioner.
No appearance for Respondent.
Margo A. Raison, County Counsel, and Judith M. Denny, Deputy County Counsel, for Real Party in Interest.
OPINION
THE COURT [*]
Petitioner Mariah S. (mother) seeks extraordinary writ relief (Cal. Rules of Court, rule 8.452) from the juvenile court's orders issued at a combined six- and 12-month review hearing (Welf. & Inst. Code, § 366.21, subds. (e) & (f)) terminating reunification services as to her minor child, J.B., and setting a section 366.26 hearing for May 15, 2024, to implement a permanent plan of adoption. Father has not sought writ relief.Mother, who also seeks a stay of the section 366.26 hearing, contends the court erred by denying her request for extended reunification services beyond the 18-month limit.
All further undesignated statutory references are to the Welfare and Institutions Code.
We omit facts regarding father to the extent they are not relevant to the issue presented in mother's writ petition.
We deny the petition and the request for a stay.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2022, then 10-month-old J.B. suffered from a fentanyl overdose because she had put her mouth on a straw that the parents had used to smoke fentanyl. J.B. was transported to the hospital, and she and her siblings, L.B., then age seven, and S.B., then age six, were placed into protective custody. The parents were arrested and charged with felony child abuse along with other crimes.
Mother reported to the Kern County Department of Human Services (department) investigating social worker that she and father both smoked fentanyl a couple of times a week. She further reported they both were addicted to opiate pills and had been for a couple of years. The family had come from Coalinga to Bakersfield a few days prior in order to find treatment. Mother reported she used drugs due to childhood trauma that she did not want to talk about at the time. She was diagnosed with depression in 2018 and attended therapy from 2018 to 2019 and was supposed to take medication but was not currently.
Mother had a previous child welfare referral from September 2022, alleging general neglect. It was determined to be substantiated, as mother gave birth to J.B. at home, did not receive prenatal care, declined to drug test, and did not take J.B. to the hospital for newborn screening to detect congenital diseases. The referral was closed because the parents and children were no longer living in the county.
Mother also had an active warrant in San Bernardino County dating back to July 2016 for misdemeanor use or being under the influence of a controlled substance.
On July 29, 2022, the department filed a dependency petition on behalf of J.B. and her siblings, alleging they came within the juvenile court's jurisdiction under section 300, subdivision (b).
At the detention hearing conducted on August 1, 2022, the court ordered the children detained from the parents.
On September 2, 2022, the children were placed together with the paternal grandmother.
At the jurisdiction hearing conducted on September 13, 2022, the juvenile court found the allegations in the petition true and that the children were described by section 300, subdivision (b).
At the disposition hearing conducted on October 19, 2022, the juvenile court adjudged the children dependents and ordered them removed from the parents. Both parents were ordered to participate in reunification services, for a period not to exceed six months, with mother's ordered services to include substance abuse counseling, 26 weeks of parenting/child neglect classes, a mental health assessment and recommendations, and random drug testing.
Following the hearing, the social worker reviewed the case plans with the parents. Mother drug tested once at the end of October 2022, and the test was positive for marijuana, phencyclidine, and fentanyl. She made no further efforts toward participating in services. She did not enroll in a court-ordered counseling program, did not complete a mental health assessment, and failed to complete any further drug testing. She did not make herself available for visitation with the children. The parents did not attend a case plan review scheduled in January 2023, and subsequently, the social worker became unable to contact them.
The parents were arrested and taken into custody in February 2023. Around this time, the department provided a 14-day notice to remove the children from the paternal grandmother because she was not keeping in contact with the department. The department subsequently lost contact with the paternal grandmother and the children altogether, and their whereabouts became unknown. The department obtained protective custody warrants for the children and filed missing persons reports.
In the department's six-month status review report dated April 7, 2023, the department recommended termination of reunification services and setting of a section 366.26 hearing.
In a supplemental report dated June 14, 2023, the department indicated the social worker consistently encouraged mother to engage in any available services in jail. It was further reported the children had not yet been located. The department changed its recommendation to continuing reunification services to the parents "[g]iven the circumstances of the case."
At the six-month review hearing (§ 366.21, subd. (e)) conducted on June 21, 2023, both parents were still in custody. The juvenile court found the extent of progress made by the parents toward alleviating or mitigating the causes necessitating the children's placement was "none." The court further found mother had not made acceptable efforts and had not availed herself of the services provided, and that there was clear and convincing evidence the parents had failed to participate regularly and make substantive progress in court-ordered treatment programs. Nonetheless, the court further found that the department had not complied with the case plan because it did not make reasonable efforts to complete whatever steps were necessary to finalize the permanent placement of the children, and the court continued reunification services to a date not to exceed January 23, 2024. The matter was set for a combined section 366.21, subdivision (e) and subdivision (f) hearing for December 21, 2023.
In July 2023, the children were located by Sacramento police and transported back to Kern County. They were placed in a resource family home.
Mother was released from custody on July 28, 2023. Before and after her release, the social worker encouraged mother to engage with services as soon as she was released. Upon her release, mother struggled with housing and staying sober but enrolled in some services while waiting for housing through her housing referral. She failed to participate in random drug testing in August and September 2023. She enrolled in parenting classes in August 2023 and mental health counseling in September 2023. Mother was inconsistent, however, with her participation and was facing being dropped by her service providers. On two occasions in October 2023, mother tested positive for amphetamine and methamphetamine; on one of those occasions, she also tested positive for fentanyl.
On October 16, 2023, mother suffered a drug overdose, which led to substantiated child welfare referral as to J.B.'s older sibling, A.B., who was in mother's care at the time. A.B. was taken into protective custody, and she was found to come within the juvenile court's jurisdiction.
Following her overdose, mother continued to attend parenting and neglect courses, completed a mental health assessment on October 26, 2023, and entered residential substance abuse treatment on November 22, 2023. Since November 2023, mother had all negative drug tests. Mother was consistent with visits and the visits were reported to go well, and the children wanted to return to mother's care.
The department found J.B. to be appropriate for adoption/guardianship planning, but not her siblings. J.B. was expected to be moved from the placement she shared with her siblings and gain placement in a potential pre-adoptive home.
As of January 2024, mother had attended 16 of her 26 parenting classes. Her substance abuse treatment program reported she was doing "amazing." She was reported to being open and actively participating in class and becoming a positive person. She completed the 45-day residential program as well as phase one of a voluntary anger management program. She was referred to outpatient treatment and was testing clean and anticipated to transition to sober living.
The department recommended the court terminate mother's reunification services because she had not completed any case plan components, and her ability to maintain sobriety out of residential treatment and obtain and maintain stable housing was unknown.
The combined section 366.21, subdivision (e) and subdivision (f) review hearing was conducted on January 16, 2024. The court noted that January 28, 2024, would mark 18 months since the children were originally removed from the parents' custody. The matter was also set for a disposition hearing for A.B.'s case.
The social worker testified that when she was assigned to the case, mother had just been released from custody. Upon mother's release, she immediately wanted to get started on her classes but did have "a little bit of a struggle in the beginning because of her substance abuse." Mother did not call in to the random drug testing call-in system and overdosed in October with her older child in her care. Since November, however, she had been consistently going to classes, been testing clean, and "has been showing that she really wants to get better and do better for her children." Mother was currently enrolled in her parenting class and had voluntarily completed an anger management class. She finished residential substance abuse treatment and was scheduled to start outpatient the day after the hearing. The social worker had seen a change in mother's attitude from August until the date of the hearing and testified that mother "very much loves her children, and she's trying the best that she can with the circumstances that she's in." The social worker further testified that mother's visits with the children went "really well." The children would go to her and hug her as soon as they saw her and enjoyed the visits. The social worker had observed mother's affection for the children. Mother had been struggling with getting housing, but the department was assisting her in that regard, and mother was on a waitlist for housing.
The social worker testified that return to mother would not be appropriate at that time even if she were to secure housing because "she hasn't shown enough months of being clean." The social worker went on, "Although she's progressing really well in her classes, and I commend her for doing really well in her classes and having November and December, clean months of testing, I would like to see a little bit more to be more certain that she can handle having them back in the home."
The manager of mother's sober living residence testified that mother resided in the home, went to residential treatment, and returned to the home. He could "[a]bsolutely" see a difference in how she was before treatment and the present. He testified he now "s[aw] a drive in her to do something different, and it's driven by her kids." He said that as long as he had been working at the residence, about 700 clients had come through, and he had only been asked to testify twice. For mother's case, he volunteered to come "because I believe in her so much, that I see the drive in her, and the willingness." He went on, "[T]here is a drive in her to make sure that she is at her appointments so she can be reunited with her kids." He further testified mother was doing "great" in the program; she had met all the requirements, including five meetings a week, getting a sponsor, having a "home group," and submitting random drug tests.
Mother testified that she spent six of the previous 18 months in custody-from February 5, 2023 to July 28, 2023. Prior to going into custody, she was attending visits but did not enroll in classes. She did not take the case as seriously as she should have but was now doing everything to change that behavior. Upon release from custody, mother contacted her case manager who put in the referrals for all of her classes, and she started her services right away. She testified she was, at the time of the hearing, attending all of her classes and had been 99 days clean and sober from all substances, including alcohol and cigarettes. She was in substance abuse treatment when she overdosed in October, but after that experience, she requested a modification to go to inpatient treatment. She had a "spiritual awakening" after her overdose in October. In inpatient treatment, she felt like a "light clicked on," and she had come to realize that her higher power divinely intervened. She was required to complete a 56-week parenting class as a condition of her criminal probation, so she would continue to go to classes after she completed the 26 weeks required as part of her case plan. She did not have housing but would be willing to go to a homeless shelter if the children were to be returned to her. She had already started searching for an apartment. She further testified visits with the children were always positive. She did not engage in classes while in custody because she was in protective custody and inmates in protective custody were not offered classes.
Mother's counsel argued that mother's services should be continued because mother was incarcerated for six months during which she did not have access to services. Mother's counsel argued that under section 366.22, subdivision (b), the court could continue services to mother based on the fact she was incarcerated and had no services available. Since her overdose in October, she had been participating in services and was very engaged in her case plan.
Minors' counsel argued that although mother had been making excellent progress, it was "quite recent," and mother had not met the burden to get further services at that time. She argued that even if mother had had access to services while incarcerated, she would not have participated based on her testimony that at that time she was not taking the case or her case plan seriously, as she was in active addiction. She further argued that exceptional circumstances to continue services at that juncture did not include a parent's own failings, such as relapse.
Counsel for the department concurred in minors' counsel's comments and argued that mother did not qualify for services to be extended under section 366.22.
In ruling, the juvenile court explained that to qualify for an extension of services beyond the 18-month period, there would have to be a recent release from custody, and the court found mother's release on July 28 did not qualify as recent. The court further found that mother had not made consistent progress in the last 18 months. The court noted that mother had done a remarkable job since her overdose but "based on the confines of where I'm at right now, I just can't extend services on these children to you." The court explained, "[B]ased on our record and based on what was before the Court, I am going to follow the recommendations, as to … [L.B.], [S.B.], and [J.B.], and terminate services at this time as to these children, but as to [A.B.], we are going to offer services." The court stated it anticipated receiving a section 388 petition from mother "sometime in the spring, if not before that," suggesting it believed mother would continue to make positive progress toward reunification.
The court found mother's progress toward alleviating the causes necessitating placement was moderate and that mother had moderately made acceptable efforts and moderately availed herself of services. The court further found a return of J.B. to the parents' physical custody would create a substantial risk of detriment to the safety, protection, or physical emotional well-being of the child. The court found there was not a substantial probability the children would be returned to the parents within six months and ordered services terminated. The court found by clear and convincing evidence the department complied with the case plan in making reasonable efforts and providing reasonable services to return the children to a safe home, and to complete any steps necessary to finalize a permanent placement of the children. As to J.B., the court set a section 366.26 hearing and directed the County Adoption Agency to prepare an assessment.
DISCUSSION
At the outset, we must clarify the parameters of the issue mother raises in her petition. While the hearing was characterized as a combined section 366.21, subdivision (e) and subdivision (f) hearing, mother argued services should be extended beyond 18 months due to her recent discharge from incarceration, an issue generally decided at a section 366.22 hearing, or 18-month hearing. This is presumably because the hearing was being conducted approximately 2 weeks before the 18-month limit.
Notably, on December 21, 2023, the day initially set for the combined review hearing, the court continued the hearing so the social worker could be present for mother's cross-examination. The court noted the section 366.22 (18-month) date would be January 28, but continued the matter to January 16, 2024, to coincide with the disposition hearing set for A.B. Counsel for the department asked if the court would be treating the following hearing as a section 366.22 hearing "as well," to which the court responded, "I would think so, yes."
In her petition, mother does not challenge any of the findings the court made pursuant to section 366.21, subdivision (e) or subdivision (f) such as the court's finding that J.B. was at risk of suffering detriment if returned to the parents' custody. She only contends the court erred by declining to extend services beyond 18 months pursuant to mother's request at the hearing: specifically, she contends the department "failed to provide reasonable services" and the evidence demonstrated mother "made substantial progress." (Capitalization omitted.) For the reasons that follow, we reject mother's contentions.
"Parents of children under three are presumptively eligible for at least six months of reunification services. [Citation.] … Reunification services are ordinarily provided for a maximum of 18 months after a child has been removed from parental custody.." (Michael G. v. Superior Court (2023) 14 Cal.5th 609, 625 (Michael G.).)
If the child is not returned to the parent at the 18-month review hearing, the court may continue the case for up to six months if it finds by clear and convincing evidence the best interests of the child would be met by the provision of additional reunification services to a parent who falls into one of the delineated categories: "[(1)] a parent or legal guardian who is making significant and consistent progress in a court-ordered residential substance abuse treatment program, [(2)] a parent who was either a minor parent or a nonminor dependent parent at the time of the initial hearing making significant and consistent progress in establishing a safe home for the child's return, or [(3)] a parent recently discharged from incarceration, institutionalization, or the custody of the United States Department of Homeland Security and making significant and consistent progress in establishing a safe home for the child's return." (§ 366.22, subd. (b)(1).)
The court shall only continue the case as relevant here "if it finds that there is a substantial probability that the child will be returned to the physical custody of their parent or legal guardian and safely maintained in the home within the extended period of time [or] that reasonable services have not been provided to the parent or legal guardian." (§ 366.22, subd. (b)(3); see § 361.5, subd. (a)(4)(A).) To that end, "the court shall be required to find all of the following": (1) "[t]hat the parent or legal guardian has consistently and regularly contacted and visited with the child"; (2) "[t]hat the parent or legal guardian has made significant and consistent progress in the prior 18 months in resolving problems that led to the child's removal from the home"; and (3) "[t]he parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of their substance abuse treatment plan as evidenced by reports from a substance abuse provider as applicable, or complete a treatment plan postdischarge from incarceration, institutionalization, or detention, or following deportation to their country of origin and their return to the United States, and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (§ 366.22, subd. (b)(3)(A)-(C).) "If these conditions are not met, then the usual timeline set forth in section 366.22, subdivision (a)(3) [that a section 366.26 hearing must be set] governs." (Michael G., supra, 14 Cal.5th at p. 628.)
We review for substantial evidence a court's factual findings supporting an order terminating reunification services. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688.) Under this standard, "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.'" (Id. at pp. 688-689.) When examining the evidence supporting the trial court's findings, we bear in mind the clear and convincing evidence standard where required. (See Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
As to mother's first contention-that the court's finding that the department provided reasonable services was not supported by sufficient evidence-she only supports this assertion with the fact that the court found reasonable services were not provided at the six-month review hearing conducted on June 21, 2023. She does not cite any specific deficiencies in the services she was provided in the review period between the first six-month review hearing and the combined six- and 12-month review hearing at issue before the juvenile court or in the present writ proceedings. Mother provides no legal support for her suggestion that the court was required to take its previous finding into consideration in determining whether she was provided reasonable services in the subsequent review hearing. As the department points out, mother already received a remedy for not being provided reasonable services during the first review period- continuance of reunification services beyond the initial six-months ordered. (See § 366.21, subd. (e)(3) [prescribing that if the court finds reasonable services have not been provided at the six-month review hearing, it shall continue the case to the 12-month permanency hearing].) We reject mother's contention the court erred by finding she was provided with reasonable services.
Mother appears to be basing her reasonable services argument in part on the premise that she was entitled to 12 months of services and was only, by her estimation, provided with seven (the number of months between her release from custody and the review hearing). We note mother's assertion that she was ordered 12 months of reunification services at the dispositional hearing on October 19, 2022, is a misrepresentation of the record. Mother, in fact, was ordered reunification services "for a period of time not to exceed 6 months, which expires on 04/19/2023." (See § 361.5, subd. (a)(1)(B) ["For a child who, on the date of initial removal from the physical custody of the child's parent or guardian, was under three years of age, court-ordered services shall be provided for a period of 6 months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months from the date the child entered foster care, as provided in Section 361.49, unless the child is returned to the home of the parent or guardian"].)
In any event, the California Supreme Court has recently held a finding that a parent was not offered reasonable services at the 18-month hearing does not require a juvenile court to continue reunification services. (Michael G., supra, 14 Cal.5th at pp. 629‒630.) The Michael G. court makes clear that where the juvenile court finds reasonable services have not been provided, it can continue the case if the parent falls into one of the categories under section 366.22, subdivision (b)(1) or pursuant to section 352, the general statute governing continuances in dependency cases, requiring a court to find exceptional circumstances constituting good cause and that continuance would not be contrary to the child's interest. (Michael G., at pp. 632, 635.) Mother notably did not below and does not now contend the court should have continued the hearing under section 352.
As to mother's second contention-that there was "significant evidence" of her "progress"-mother does not adequately explain the legal significance of this contention. She does not cite or offer any analysis regarding the applicable statute, the statute mother implicated below and under which the juvenile court considered her request- section 366.22, subdivision (b). For the following reasons, we conclude the court did not err in determining mother did not meet the requirements for continued services under section 366.22, subdivision (b).
In the present case, the juvenile court found that mother's discharge from incarceration did not qualify as "recently," and as such, that she was not a person described by section 366.22, subdivision (b)(1). The court's finding was supported by substantial evidence. Mother was released at the end of July 2023 and was encouraged by the department to immediately begin engaging in services upon her release. We have no trouble concluding the juvenile court's finding that mother was not recently discharged from incarceration within the meaning of the statute was reasonable. As mother herself acknowledges, she received seven months of services following her release from custody, meaning she received an additional month beyond what was initially ordered. Thus, in the context of the case, mother's incarceration did not in any way impede her access to her court-ordered services and therefore the court was reasonable in determining her incarceration should not qualify her for services beyond the statutory maximum.
After finding mother was not recently discharged from incarceration, the juvenile court was not required to do any further analysis. At the 18-month juncture, the exception to return or setting of a section 366.26 hearing is narrow and only applies to the individuals described in section 366.22, subdivision (b)(1). (See Michael G., supra, 14 Cal.5th at p. 628 ["As added by the 2008 amendments and since modified by subsequent amendments, section 366.22, subdivision (b) authorizes a further extension after 18 months for three narrowly defined categories of parents who have faced specified obstacles to reunification" (italics added)].) Mother did not below and does not now contend she was entitled to additional services under the other two statutory exceptions-that she was then a resident of a substance abuse treatment program or that she was a minor or nonminor dependent parent-she only contended she was entitled to continuation of services based on her incarceration.
Mother faults the court for indicating she had not made consistent progress over the entire prior 18 months rather than focusing only on the, by her estimation, seven months of services she received. Mother's contention is misplaced. Under the statute mother implicated in her argument-section 366.22, subdivision (b)-if the court finds a parent has been recently discharged from incarceration or otherwise falls under the exception set forth in the statute, the court must determine, among other things, whether the parent has made significant and consistent progress over the last 18 months. (§ 366.22, subd. (b)(3)(B).) It appears the court was merely tracking the language of the statute. Mother's argument indirectly raises the issue of whether the court's earlier finding that she was not provided with reasonable services for a portion of the reunification period affects the court's ability to consider the entire period in making a determination under section 366.22, subdivision (b)(3)(B). Because, however, the court found mother did not fall under any exception set forth in section 366.22, subdivision (b)(1), it was not required to make a determination under section 366.22, subdivision (b)(3)(B), and we therefore need not examine its determination with any scrutiny, as it would not have an effect on the outcome of this case.
The cases mother relies on to support her contention that the court committed reversible error by denying reunification services-In re Elizabeth R. (1995) 35 Cal.App.4th 1774, In re Daniel G. (1994) 25 Cal.App.4th 1205, In re Dino E. (1992) 6 Cal.App.4th 1768, and In re Brittany S. (1993) 17 Cal.App.4th 1399-all predate the current form of section 366.22, which sets forth the exceptions to terminating reunification services at the 18-month juncture and are inapposite. (See Elizabeth R., at pp. 1788‒1789 [former § 366.22 read:" 'If the minor is not returned to a parent or guardian at the 18-month hearing, the court shall develop a permanent plan,'" " 'order that a hearing be held pursuant to Section 366.26,'" and" 'order termination of reunification services to the parent.' "].) As we have discussed above, our Supreme Court has since interpreted the current version of section 366.22, subdivision (b) (or section 352, which as we discuss in footnote 5, ante, is not at issue here) as providing the only exception to the general rule that reunification services must not extend past 18 months from the time a dependent child is removed from parental custody. (Michael G., supra, 14 Cal.5th at p. 628.) Because the juvenile court found mother was not described by section 366.22, subdivision (b), and its conclusion was supported by substantial evidence, it was required to terminate mother's reunification services.
We commend mother's progress in services and encourage her to keep working on her sobriety. The juvenile court did not err however by determining she was not entitled to services beyond the 18-month statutory limit because she did not fall into any of the categories listed in section 366.22, subdivision (b).
DISPOSITION
The petition for extraordinary writ and request for stay are denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.
[*] Before Peña, Acting P. J., Smith, J. and DeSantos, J.