Opinion
H047564
02-05-2020
M.M., Petitioner, v. THE SUPERIOR COURT OF MONTEREY COUNTY, Respondent; MONTEREY COUNTY DEPARTMENT OF SOCIAL & EMPLOYMENT SERVICES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. 19JD000008, 9JD000009, 9JD000012, 9JD000013, 9JD000014)
Petitioner M.M. (father) seeks review by extraordinary writ of juvenile court orders terminating reunification services and setting a selection-and-implementation hearing (Welf. & Inst. Code, § 366.26) for his five children. Father argues he was not offered reasonable reunification services because the Monterey County Department of Social Services failed to assist him in arranging visitation, such that the court erred in terminating reunification services at the 12-month review hearing and setting a section 366.26 hearing. We agree and shall grant father's petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. BACKGROUND
These dependency proceedings involve father's five children with mother: T.M. (born in April 2008), H.M. (born in April 2010), H.M. (born in March 2011), B.M. (born in July 2012), and C.M. (born in December 2014).
A. Dependency Petitions
On August 29, 2018, the Alameda County Social Services Agency filed a dependency petition on behalf of the five children, who then ranged in age from three to 10 years old. The petition was filed following an August 25, 2018 incident in which mother accidentally left seven-year-old H.M. at a store by herself for 30 to 45 minutes before realizing H.M. was missing and returning. By then, law enforcement was on the scene. Law enforcement observed the children to be dirty, hungry, and without shoes. The children reported that they were sleeping in the family van, which did not have enough seats for all of them. Mother admitted using methamphetamine a week prior; a methamphetamine pipe fell out of her belongings while she spoke with police.
The petition alleged that the children were at substantial risk of suffering serious physical harm as a result of their mother's failure to properly supervise them; failure to provide them with adequate food, clothing, and shelter; and failure to provide them with regular care due to substance abuse. (§ 300, subds. (b) & (j).) It further alleged that father's ability to care for the children was unknown. (§ 300, subd. (g).)
The children were taken into protective custody on August 25, 2018 and were placed with maternal relatives in Sacramento.
The Alameda County juvenile court ordered the children detained at an August 30, 2018 detention hearing.
B. Jurisdictional Hearing
The Alameda County Social Services Agency filed a Jurisdiction/Disposition Report on September 17, 2018. The report stated that the children previously had been declared dependents of the court and removed from the home in a prior dependency matter, which closed in April 2015. It was further reported that mother and father were married but had been separated for three or four years. Mother and the children told the social worker that there had been prior domestic violence incidents between mother and father. Father, who was living in Monterey County, acknowledged past drug use and past domestic violence, saying mother initiated the physical altercations. Father told the social worker that the children had not lived with him for over a year and that he did not have stable housing. Both parents had arrest records in Alameda County.
An addendum report filed on October 16, 2018 stated that the social worker had not been able to reach father since the last hearing date. For that reason, there had been no visitation between father and the children.
A jurisdictional hearing took place on October 16, 2018. The juvenile court sustained the petitions under section 300, subdivisions (b)(1), (g), and (j).
C. Dispositional Hearing
In an addendum report filed on November 9, 2018, the Alameda County Social Services Agency reported that the social worker reached father by phone on November 7, 2018. During that call, father expressed interest in visitation. The report indicated that the social worker arranged for father "to call his children every Sunday evening and will arrange for him to visit with the children." Father also agreed to seek out a residential drug treatment program in Monterey County.
The Alameda County Social Services Agency filed another addendum report on January 10, 2019. At that time, it was reported that visitation between father and the children had been scheduled for Wednesday afternoons. Father had been provided weekly train tickets, but had visited only once during the reporting period. Father informed the social worker in January that it was difficult for him to get to the train station in time for the early train because the bus did not run early enough in the morning. He said that moving visitation to the evening would allow him to take a later train. One of the children's caregivers reported that father was not calling on Sunday evenings, as scheduled, and did not inform her when he was going to miss visits.
A dispositional hearing was held on January 10, 2019. At that time, the Alameda County juvenile court declared the children dependents of the court, ordered the Agency to provide family reunification services to mother and father (including arranging for visitation), and ordered that the matter be transferred to Monterey County, where mother and father resided.
D. Transfer to Monterey County
At a February 5, 2019 hearing, the Monterey County juvenile court accepted the case on transfer from Alameda County, ordered the children continued as dependents of the court, and set a six-month review hearing for August.
E. Six-Month Review Hearing
The Monterey County Department of Social Services (Department) prepared a status review report in July 2019 in connection with the upcoming six-month review hearing. The Department reported that it had referred father to parenting classes on March 11, 2019, but that father had not provided any documentation indicating he had attended such classes. The report stated that father had a first meeting with the social worker on March 28, 2019, more than seven weeks after the case was transferred. The report does not explain the delay in holding that first meeting. Apparently at or around the time of that meeting, the Department helped father and the children's caregivers coordinate regular phone calls between father and the children. The caregivers reported that, after a few weeks, father stopped calling.
On April 4, 2019, father underwent a mental health assessment through the County Health Department. During that assessment, he reported depression, a history of substance abuse and addiction, and current use of methamphetamines and marijuana. The psychologist who assessed father recommended that he participate in an in-patient substance abuse treatment program. The psychologist unsuccessfully attempted to contact father five times between the assessment and the end of May to give him feedback and inform him of referrals. Father did not return any of the phone calls. The social worker similarly reported that father "was unreachable" during that time. According to the social worker, he could not reach father "for over ten consecutive weeks." Eventually, father contacted the Department in late June. Father failed to show up for a random drug test on April 12, 2019. That was the only scheduled drug test during the reporting period because of the difficulty in contacting father.
The Department further reported that it had located a facility in Sacramento where the parents could have supervised visitation with the children. According to the report, the facility stated it "had been making attempts" to contact mother and father to schedule intake interviews and coordinate the supervised visits without success. It is not clear when the Sacramento facility was identified, when the facility attempted to contact father, or how many attempts it made. Father had not participated in any visitation during the review period.
The Monterey County juvenile court held a contested six-month review hearing on August 27, 2019. Father testified that, when the case was transferred from Alameda County to Monterey County in January, he was told by Alameda County that a case worker from Monterey County would contact him. He did not hear from the social worker until April, at which time the social worker said father needed to start with regular telephone contact with the children before having visitation. Father testified that he complied, calling between one and three times a week. Father further testified that, at some point, the social worker gave him information about a facility in Sacramento where he could have in-person visits with the children. Father testified that he called and "tried to set up an appointment . . . , but at the time [his] car was overheating." The social worker was present at the hearing but did not testify.
The juvenile court continued the children as dependents of the court, ordered that family reunification services be continued, and ordered that "father may have visitation with the child[ren]" and that "[t]he time, place, and supervision for these visits shall be arranged by the Department of Social Services." The court set a 12-month review hearing for October 22, 2019.
F. 12-Month Review Hearing
The Department filed a status review report on October 11, 2019, in which it recommended terminating family reunification services to mother and father. The report stated that, according to the caregivers, father had not called to speak with the children during the review period. Father had not provided verification of attendance at parenting classes. Father had enrolled in an in-patient substance abuse treatment program but had left after one day. Father admitted continued drug use to the social worker. It was further reported that father had attended a Child Family Team meeting on September 20 and had responded to a couple of text messages from the social worker, but that father had not otherwise reached out to the social worker.
As to visitation, the report stated that, at the September 20 Child Family Team meeting, mother said that she had called the visitation facility three times and no one had called her back. The social worker advised mother to call the facility "several times per day, each day, until she reaches someone who can assist her." The report noted that the social worker was able to reach Floyd, the manager responsible for scheduling the intake interview and visitation, by phone. The report stated that father had not had any visits with the children. It reported no efforts by the Department to assist father in making contact with the visitation facility.
A contested 12-month review hearing took place on November 13, 2019. Father testified that he spoke with the social worker in person following the August hearing about setting up visitation, but that the social worker never got back to him. Father said he followed up by calling and texting the social worker several times without response. Father acknowledged that he did not contact his attorney or the social worker's supervisor regarding his inability to reach the social worker. Father further testified that he had been attending parenting classes and Narcotics Anonymous meetings and had been sober for 33 days. The social worker was present at the hearing but did not testify.
At the close of the hearing, the court found by clear and convincing evidence that the Department had offered reasonable services. The court did not find a substantial probability of return within the 18-month period if it ordered an additional six months of services. Accordingly, the court ordered reunification services terminated and set the matter for a hearing under section 366.26 for the selection and implementation of a permanent plan.
II. DISCUSSION
A. Legal Principles
" 'Family preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced. [Citation.] Reunification services implement "the law's strong preference for maintaining the family relationships if at all possible." ' [Citation.] Therefore, reasonable reunification services must be offered to a parent. [Citation.] The agency must make a good faith effort to develop and implement reasonable services responsive to the unique needs of each family. [Citation.] The effort must be made, in spite of difficulties in doing so or the prospects of success. [Citations.]" (Christopher D. v. Superior Court (2012) 210 Cal.App.4th 60, 69 (Christopher D.).) "Visitation is an essential component of a reunification plan. [Citation.] To promote reunification, visitation must be as frequent as possible, consistent with the well-being of the child. [Citations.]" (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426.)
If a child is three years or older on the date of his or her initial removal from the physical custody of his or her parent, court-ordered family reunification services "shall be provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care . . . unless the child is returned" home. (§ 361.5, subd. (a)(1)(A).) A child is "deemed to have entered foster care on the earlier of the date of the jurisdictional hearing held pursuant to Section 356 or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent or guardian." (§ 361.49.)
At the 12-month hearing, the juvenile court may continue the matter to a date within 18 months from the child's removal in two instances: (1) where the court finds "a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home within the extended period of time" or (2) where the court finds that reasonable services have not been provided to the parent. (§ 366.21, subd. (g)(1).) The court is authorized to order a section 366.26 hearing at the 12-month hearing only if "there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian." (§ 366.21, subd. (g)(1)(C)(ii).)
"To support a finding that reasonable services were offered or provided to the parent, '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 . . . .' [Citations.]" (In re M.F. (2019) 32 Cal.App.5th 1, 14 (M.F.).) " '[T]he reasonableness of the [Department's] efforts are judged according to the circumstances of each case.' [Citation.]" (Ibid.)
B. Standard of Review
" 'In reviewing the reasonableness of the services provided,' including visitation, 'this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.' [Citation.] [Father] has the burden to demonstrate that there is no evidence of a sufficiently substantial character to support the juvenile court's order. [Citation.]" (Christopher D., supra, 210 Cal.App.4th at p. 70.)
C. Analysis
Father argues that the Department failed to make reasonable efforts to assist him in arranging supervised visitation. We agree.
Sometime before the six-month hearing, the social worker identified a supervised visitation facility and gave father the facility's phone number with instructions to call to set up an intake interview and visitation. The social worker also gave the facility father's phone number. It is not clear from the record precisely when these events took place. As of the six-month hearing, the social worker knew that the facility had been unable to reach father and that father had not set up the intake interview. Accordingly, the social worker was aware that father had experienced difficulty complying with the visitation aspect of the case plan. Yet the social worker apparently took no steps to assist father in that area. The record indicates that the social worker was in contact with father and with the supervised visitation facility in the two-and-a-half months between the six-month and 12-month hearings. But the record does not indicate that the social worker attempted to help the two parties schedule a call or meeting at a mutually convenient time.
We acknowledge that a social worker is not obligated to " 'take the parent by the hand and escort him or her to and through classes or counseling sessions.' [Citation.]" (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1246 (T.J.).) Moreover, " '[r]eunification services are voluntary, and cannot be forced on an unwilling or indifferent parent.' [Citations.] However, '[a parent's] difficulty meeting the case plan's requirements does not excuse the agency from continuing its effort to bring [the parent] into compliance with the court's orders.' [Citation.]" (In re T.W.-1 (2017) 9 Cal.App.5th 339, 348.) Here, there is no evidence that the Department made any efforts, let alone " 'reasonable efforts[,] to assist [father] in [setting up visitation, an] area[] where [the social worker knew] compliance [had] proved difficult . . . .' [Citations.]" (M.F., supra, 32 Cal.App.5th at p. 14 [Agency did not provide father with reasonable services where social worker knew father was having trouble securing therapy but did not assist him].) Accordingly, the juvenile court's finding that reasonable services were offered is unsupported by substantial evidence. It follows that the court erred in terminating services and setting a hearing under section 366.26. (T.J., supra, at p. 1248.)
It is worth noting that we address "the issue of reasonable services independently of the issue whether there is a substantial probability the child[ren] will be returned to the physical custody of [father] within the extended time period. [Citation.] The focus on review is strictly on the reasonable services issue. [Citation.] . . . Providing reasonable services is one of 'the precise and demanding substantive and procedural requirements . . . carefully calculated to constrain judicial discretion, diminish the risk of erroneous findings of parental inadequacy and detriment to the child, and otherwise protect the legitimate interests of the parents.' [Citation.] Therefore, 'to meet due process requirements at the termination stage, the court must be satisfied reasonable services have been offered during the reunification stage.' [Citations.]" (M.F., supra, 32 Cal.App.5th at pp. 18-19.)
We turn then to the issue of remedy, as the 18-month mark is quickly approaching. "Ordinarily reunification services are available to parents for a maximum of 18 months from the physical removal of the children from their home. (§ 361.5, subd. (a)(3)(A).)" (T.J., supra, 21 Cal.App.5th at p. 1251.) However, courts have held that where "a timely challenge to the adequacy of services for the statutorily required minimum period—here, 12 months—is sustained, that failure to provide services will justify the extension of services beyond 18 months, even without a showing of best interests of the child or substantial probability of return, and even if the permanent plan is not to return the child to the parent." (Id. at p. 1256; In re Alvin R. (2003) 108 Cal.App.4th 962, 975 ["The remedy for a failure to provide reasonable reunification services is an order for the continued provision of services, even beyond the 18-month review hearing."]; see In re Dino E. (1992) 6 Cal.App.4th 1768, 1778-1779 [rejecting argument that a section 366.26 hearing must be set "at the 18-month review, even in the absence of a finding that reasonable services have been provided," concluding instead that "the court has discretion upon a showing of good cause to continue juvenile dependency hearings beyond the statutory time limits"].) We agree and shall direct the juvenile court to provide father with an additional period of reunification services, even beyond the 18-month mark.
III. DISPOSITION
The petition is granted. Let a writ of mandate issue directing the juvenile court to (1) vacate its November 13, 2019 finding that reasonable services were offered or provided to father; (2) enter a new and different finding that reasonable services were not offered or provided to father; (3) vacate its order terminating reunification services to father and setting a hearing under section 366.26; (4) set a continued 12-month permanency hearing at the earliest convenient time; (5) order the Department to provide father with an additional period of reunification services. This opinion is final in this court on filing. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
DANNER, J.