Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County No. DP017137, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Juvenile Defenders and Bryan P. Patridge for Petitioner
N.O. Deborah A. Kwast, Public Defender; Frank Ospino, Assistant Public Defender, Dennis Nolan and Paul DeQuattro, Deputy Public Defenders, for Petitioner Daniel P.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Jr., Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.
Law Office of Harold LaFlamme and Jess Ann Hite for the Minor.
OPINION
SILLS, P. J.
N.O. seeks extraordinary relief from the orders of the juvenile court terminating reunification services and setting a permanent plan selection hearing in the dependency case of her daughter, B.P. She contends there is no substantial evidence to support the court’s finding that she was offered reasonable reunification services or that there was no substantial probability of return to her custody within the next six months. The father, Daniel P., joins in the mother’s petition without making any arguments on his own behalf. (Cal. Rules of Court, rule 8.200(a)(5).) We find substantial evidence supports the findings and deny relief.
FACTS
The parents of B.P. surrendered her to a hospital at birth, in June 2008. A few days later, they changed their minds and sought custody. Orange County Social Services Agency (SSA) filed a dependency petition on behalf of the baby because she tested positive for morphine and the parents admitted to recent drug use. The petition was sustained in July 2008; the court ordered the parents to complete drug treatment programs, parenting education, counseling, and random drug testing.
The parents received referrals for services and information to implement visits with the baby. But the parents failed to participate in services and effectively dropped out of sight until December 2008, when the mother finally returned one of the social worker’s calls. The social worker, Ramona Griffin, reviewed the case plan with the mother at an appointment on December 17, 2008, but did not give her new referrals to services because she had done so in June, when the baby was detained. The mother told the social worker she and the father had stopped using drugs when the baby was born. They attended perinatal and AA in June 2008, but they stopped after several weeks. Griffin reported, “[T]hey ‘felt overwhelmed,’... it was very expensive to buy the gas to travel to the services, and it made them ‘want to use [drugs] more.’ [The mother] said that the heroin made them feel better and let them forget about their ‘reality.’ However, the heroin itself became their ‘reality.’” The parents used heroin daily from July to late October 2008. At the time of the interview, the father was in jail and did not expect to be released until April 2009, and the mother had lost her job.
In January 2009, Griffin referred the mother to a parenting class, but the mother declined the referral because she intended to take the parenting class as part of the perinatal program. The mother enrolled in a perinatal program in February.
The six-month review hearing began on February 2 and concluded on March 2, 2009. SSA recommended termination of services and referral to a permanent plan selection hearing. But the juvenile court found reasonable services had not been provided to the parents and set a 12-month review hearing for June 2009. SSA and the minor appealed the order, claiming there was insufficient evidence to support the finding of no reasonable services. Subsequently, the parties to the appeal stipulated that the finding was not supported by substantial evidence and the case should be reversed and remanded for a new six-month review hearing. This court accepted the stipulation and issued an opinion reversing the orders made at the six-month review hearing and remanding for a new six-month review hearing. (In re B.P. (May 8, 2009, G041723) [nonpub. opn.].)
The new six-month review hearing began on June 30 and concluded on July 8, 2009. The reports prepared by Griffin were admitted into evidence. Griffin reported the mother and the father had been cited for shoplifting in July 2008, shortly after the baby was born. The father was subsequently incarcerated for a crime he committed in March 2008. Although the mother told Griffin she stopped using drugs in October 2008, she was arrested for possession of heroin in November 2008. When pulled over by the police for an expired registration, she admitted having a pipe and some marijuana; a consensual search revealed a small quantity of heroin. The mother said it belonged to her friend.
Griffin gave the mother a list of all low-cost rentals in South Orange County and referred her to a parenting class with Olive Crest, which the mother completed on April 23. She completed Phase I of the four-phase perinatal program and was in Phase II at the time of the hearing. She had also been attending Alcoholics Anonymous and Narcotics Anonymous meetings, and her drug tests were all negative. The mother was employed full time as the manager of a coffee shop. Since April, the mother had been provided two four-hour monitored visits per week. All the monitors reported she was appropriate with the baby. Griffin was concerned, however, that the mother had to be prompted several times to make sure the baby ate solid food during the visits.
The father had been released from jail in April, and he and the mother lived together in a motel in Costa Mesa. On two separate occasions in June 2009, he tested positive for cocaine and admitted to using illegal drugs. The mother missed a perinatal class on June 18 and had a “very diluted” drug test on June 22. The mother’s perinatal counselor told Griffin that Phase I of the program stresses the importance of not having relationships with drug users and that this subject was emphasized repeatedly throughout the program. “‘There are so many ways we emphasi[ze] that they jeopardize their sobriety’ by being with a person who is not maintaining their sobriety.” The perinatal counselor considered the mother at a “‘high level of risk’ for relapse as long as she continues to reside with someone who is actively using illegal drugs.”
The mother did not believe her recovery would be affected by living with the father. She told Griffin that the father “was ‘going through a lot lately’; that he needed support; and that it is not easy to stop using drugs.” The mother complained that Griffin had not been supportive of her and the father and that Griffin’s reports “had not acknowledged her progress in her services.” When Griffin reminded the mother that, among other services, Griffin had given her low-cost housing referrals, the mother said that “it was a ‘huge packet, it was too much,’ and she asked, ‘What was I supposed to do with that?’” Griffin continued to recommend the termination of services because “[n]either of the parents are close to reunifying with the baby.”
At the hearing, Griffin was cross-examined by counsel for the mother and the father, and she was questioned by the court. Griffin testified at her meeting with the mother in December 2008, they discussed the perinatal program to which she had been referred the previous June. The mother said she already had the telephone number to the program, so Griffin did not give it to her again. Griffin did not offer visits in December because the parents had not had any contact with the child for six months. “I was waiting for an indication that they wanted a relationship with the child, that they cared about her, that they wanted to see her and they did not ask questions about her and I found that disturbing.” The first time the mother asked for visits was January 8, and the visits started a few weeks later.
Griffin did not set up separate drug testing, which was the usual procedure, because it would be done through the perinatal program. “The mother had indicated previously that she felt that she was overwhelmed with our demands and that it, actually, caused her to use drugs. I was hesitant to put too many burdens on her too quickly. I believed that it would cause her to relapse if she was clean and sober at that time.” Griffin told the mother at the December 2008 meeting that she was recommending the termination of reunification services.
The notes from the visitation monitors recorded many more positive comments about the mother’s behavior and parenting skills during the visits than Griffin reflected in her reports. Furthermore, Griffin’s reports did not reflect the mother’s requests for updates about the baby’s progress, her gratitude towards the foster parents, and her willingness to cooperate with the foster parents’ schedules. The parents had not been invited to attend the baby’s medical appointments because the foster mother did not want to meet the biological mother. “[T]he foster parents want to maintain their confidentiality. It’s very important to them and I feared that if I pushed them harder than they wanted to go, it might harm the relationship that they might eventually – that I was trying to promote, so I have not asked for that at this time.”
At the end of Griffin’s testimony, the father moved to strike all the social worker’s reports “on the grounds that the documents are biased, inaccurate, incomplete.” The juvenile court found that bias existed. “[I]t’s clear that the agency saw this as a safe-surrender case from the beginning and I think that’s the direction they were going with this case.... [¶] [The foster parents] don’t want to meet the parents. They don’t want to cooperate with visitation. They don’t want to even allow the parents to be present for medical appointments, which is important for reunification. And presumably, in the first instance, the agency was justified in making such a placement.... [¶] [W]hen the parents... failed to participate almost completely in services in the first few months of the case,... the agency felt justified in [believing the case would go to adoption] because the parents did not seem to be interested in reunifying with the child, and so they were going... towards, I think, termination of parental rights and towards permanency for this child with this family that wanted to adopt the child.... [¶] And then the parents showed up and there was a certain... momentum that had set into the case....” The court noted the social worker’s statement that she was afraid of overwhelming the mother with referrals to services was “just unheard of and it begs credulity. It just is a remarkable lax.” It also remarked that the visitation monitors showed the mother’s performance “in an entirely different light” than the social worker’s reports. “[A]s a result of the cross-examination, it comes out that... the folks that, actually, were on the ground and watching what happened were singing [the mother’s] praises.” The court commented on the unusual deference that the social worker gave to the foster family. “There is no reason why the parents should not have been not only entitled, but encouraged to attend [the medical appointments]. And if the agency was truly seeking to carry out the court’s order, which was reunification, the agency would have been discussing with these caretakers, listen, you don’t have a choice. This has to take place.”
The court found, however, that Griffin’s bias was not intentional. It declined to strike the reports because the information brought out in cross-examination supplemented the reports and made them sufficiently reliable.
The hearing continued with the mother’s testimony. She claimed Griffin told her in December 2008 that she would have to wait until January to restart her services. She reenrolled herself in the perinatal program in February 2009 after she discovered she could go back without a new referral. She was living with the father because it allowed her to save money, although she agreed he was “a risk to [her] sobriety.” She planned to move out soon into a sober living home or an apartment because she knew she had to concentrate on her own sobriety, but she wished she could help the father, “just give him the push to do the program, to live a sober life, to stay clean and to do what he can do to stay clean and be a part of his child’s life as well.” When asked if she thought the father would be part of her future, she responded, “In the future. I would like to say yes, but I don’t know.” The mother testified she missed a drug test in June because she forgot to call to see if she had to test that day; she missed the parenting class because she was late coming from work; and her diluted test was due to not having eaten all day.
The juvenile court found that “return of the child at this stage would create a substantial risk of detriment to [her] physical or emotional well-being....” The court explained the finding was supported by the fact that the mother was “very early in her program” and her “continuing to associate with known drug users... put her own sobriety at risk.” The court did not believe that the mother stopped using drugs in October 2008 because she was in possession of heroin in November. The court observed, “Either [she was using drugs] or she was exhibiting the same poor judgment that she’s been exhibiting in continuing to reside with the father....”
The court found, by clear and convincing evidence, that reasonable services had been provided to the parents. “They had the referrals first thing in the proceedings and they dropped off the face of the earth.” Although the court expressed its concern that the social worker was slow in responding to the parents after they reappeared, the delay of a month was “relatively insignificant” in the context of the year since the child was detained. The court also expressed its concern that the social worker “deferred significantly” to the wishes of the child’s caretaker in not allowing the parents to attend the child’s medical appointments and the observations of the caretaker about the child’s reaction to visiting with the mother. “The fact that the caretaker is the only one that sees any negative things going on, it causes me to wonder what the dynamic of that is. [¶] But having said that, you still have to balance this off against the fact that the parents basically dropped off the face of the earth for half of this child’s life.... [¶] Mother still isn’t getting the program.... She is jumping through the hoops but she’s not benefiting from it.... She’s still associating with people that use drugs. And she’s doing that despite the fact that everybody is telling her not to do that.” The court found SSA was justified in not increasing the visits or lifting the monitor because the mother was not showing progress in maintaining her sobriety.
The court then found there was not a substantial possibility of return by July 29th, the date scheduled for the 12-month review hearing. “Mother is not far enough along in her program or in her sobriety. She is still engaging in risky behavior....” The court then made findings under the standards of a 12-month review hearing. “[E]ven projecting six months down the line, [the court] cannot say based on the progress that’s been made that there’s a substantial probability of return within the next six months.” The court terminated reunification services and set a permanent plan selection hearing for November 2009.
The mother filed a petition under California Rules of Court, rule 8.452; we issued an order to show cause and set a hearing for October 2009. We continued the hearing to November at the mother’s request and stayed the permanent plan selection hearing.
DISCUSSION
Reasonable Services
The mother contends there is no substantial evidence to support the juvenile court’s finding that she was provided with reasonable services, arguing the social worker’s bias in favor of adoption prevented her from making a good faith effort to help her reunify with the baby. We find substantial evidence supports the court’s finding.
The juvenile court cannot set a permanent plan selection hearing at the six-month review hearing or the 12-month review hearing unless it finds, by clear and convincing evidence, that reasonable services were provided to the parents. (Welf. & Inst. Code, § 366.21, subds. (e), (g)(1)(C).) The services need not be perfect. “[I]n 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. [Citation.]” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) When reviewing an order for substantial evidence, we search the record for evidence that supports the juvenile court’s findings and draw all legitimate inferences in favor of its ruling. Even in the presence of conflicting evidence, we will uphold the order if it is supported by substantial evidence. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.)
All statutory references are to the Welfare and Institutions Code.
The mother points to Griffin’s less than glowing evaluation of her visits and her failure to increase the amount of visitation time or to lift the visitation monitor. The juvenile court noted the discrepancies between Griffin’s reports and the visitation monitors’ notes, but it did not fault Griffin for refusing to increase or liberalize the visits based on the mother’s continuing association with the father. Griffin’s evaluations of the mother’s visits did not affect the mother’s ability to reunify.
The mother also complains Griffin did not tell her soon enough that “continued cohabitation with the father would negatively impact the social worker’s recommendation.” This complaint is disingenuous. The mother’s task is to maintain her sobriety, and she was well informed by her perinatal counselor and from her drug classes about the dangers of associating with anyone who uses drugs. Shortly after the mother told Griffin she wanted to live apart from the father, Griffin provided her with a list of sober living homes, as she requested. While Griffin may have only supplied “the bare minimum,” as the mother asserts, this does not translate to the lack of reasonable services.
The mother’s final complaint about her reunification services is Griffin’s failure to include her in the child’s medical appointments. The juvenile court found that Griffin’s deference to the foster family’s wishes was clear evidence of bias in favor of adoption over reunification. Having made that observation, however, the court looked at the overall level of services provided to the mother and concluded they were reasonable under the circumstances. Because there is evidence to support that finding, we will not disturb it.
Substantial Probability of Return
The mother contends there is no substantial evidence to support the juvenile court’s finding that the child could not be returned to her by the next review hearing. She points out that the court made findings both under the standard for a six-month review hearing (§ 366.21, subd. (e)) and under the standard for a 12-month review hearing (§ 366.21, subd. (g)) and argues both were erroneous.
In cases involving young children, there is “a greater emphasis on establishing permanency and stability earlier in the dependency process” where the likelihood of reunification is poor. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175.) “The dependency scheme sets up three distinct periods and three corresponding distinct escalating standards for the provision of reunification services to parents of children under the age of three.” (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 845.) At the disposition hearing, “services are afforded essentially as a matter of right,” absent certain statutorily prescribed circumstances. (Ibid.)
At a six-month review hearing, if the juvenile court finds it cannot return the child to the parents and the parents failed to participate in their services, it may schedule a permanent plan selection hearing under section 366.26. But if the court finds there is a substantial probability that the child may be returned to the parents within six months, it must continue the case to the 12-month review hearing and order additional services. (§ 366.21. subd. (e).)
At the 12-month review hearing, if the juvenile court finds it cannot return the child to the parents, it must set a hearing under section 366.26 unless it finds there is a substantial probability that the child will be returned to the parents by the 18-month deadline; in that event, the court must continue the case to an 18-month review hearing and order additional services. In order to find a substantial probability that the child will be returned, “the court shall be required to find all of the following: [¶] (A) That the parent or legal guardian has consistently and regularly contacted and visited with the child. [¶] (B) That the parent or legal guardian has made significant progress in resolving problems that led to the child’s removal from the home. [¶] (C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1)(A)-(C).)
Thus, there are “two crucial differences between the ‘substantial probability’ inquiry required at the six-month review and the inquiry required at the 12-month review. First, the court is not charged by section 366.21, subdivision (e), with finding a substantial probability the child will be returned. The court is charged with finding a substantial probability the child may be returned.... [¶] Second, the court may take all of the evidence into consideration in making its findings [under section 366.21, subdivision (e)]. The court is not limited to inquiring into the three factors set forth in section 366.21, subdivision (g)(1)....” (M.V. v. Superior Court, supra, 167 Cal.App.4th at p. 181.)
The mother first argues the juvenile court was required to exercise its discretion under the six-month review hearing standard to “forebear from scheduling a.26 hearing even if it does not make the finding there is a substantial probability the child may be returned to his or her parent. Section 366.21, subdivision (e), places discretion in the hands of the trial court as to whether to schedule a hearing to terminate parental rights.” (M.V. v. Superior Court, supra, 167 Cal.App.4th at p. 179.) The mother contends because there were only three weeks left to the date of the 12-month review hearing, the court should have continued the case to the 12-month review date and then applied the 12-month standard.
Acknowledging that the court made an alternative finding under the 12-month review hearing standard, the mother also argues the court improperly considered the entire period of services under that standard rather than just the last six months. She contends this error resulted in the application of the higher 12-month review standard on the first six months of reunification rather than the less strict standard applied at a six-month review hearing. Specifically, she argues if the court looked only at the time from January to July 2009, it would have found a substantial probability of return because she met all three factors under section 366.21, subdivision (g).
The juvenile court did not err in looking at the entire history of the case when evaluating the substantial probability of return. As the court acknowledged, “[T]he court can’t ignore what occurred last year. It is part of the record. It is part of what occurred.” Because the mother did not participate in services for the first five months of the case, she had not progressed very far in her perinatal program by the time the hearing was held. Furthermore, she had not yet separated from the father, who had relapsed into drug use. The court had serious doubts about the mother’s credibility throughout the history of the case, which influenced its determination there was not a substantial probability of return. The court did not believe the mother had been drug free since October, as she claimed. It believed that her lapses in June 2009 signified a relapse. The court also did not believe the mother did not understand she could return to her perinatal program in December without a new referral. “I think it’s more likely that it was not until February that Mother had finally made the decision that she really wanted to work on her sobriety....”
The entire history of the case provides substantial evidence to support the finding, under either the six-month or 12-month standards, that there was not a substantial likelihood of return within the next six months. Having made that finding, the juvenile court correctly referred the case to a permanent plan selection hearing.
DISPOSITION
The petition is denied, and the stay of the permanent plan selection hearing is dissolved.
WE CONCUR: RYLAARSDAM, J., ARONSON, J.