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Ruby B. v. Superior Court

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 22, 2020
F080258 (Cal. Ct. App. Jan. 22, 2020)

Opinion

F080258

01-22-2020

RUBY B., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party in Interest.

John W. Stovall III for Petitioner. No appearance for Respondent. Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Party in Interest.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JVDP-18-000187 & JVDP-18-000188)

OPINION

THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q. Ameral, Judge. John W. Stovall III for Petitioner. No appearance for Respondent. Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Party in Interest.

Before Franson, Acting P.J., Smith, J. and Meehan, J.

-ooOoo-

Ruby B. (mother) seeks an extraordinary writ (Cal. Rules of Court, rules 8.450-8.452) from the juvenile court's orders issued at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)(1)), terminating her reunification services and setting a section 366.26 hearing as to her sons, now seven-year-old C.V. and three-year-old D.S. (collectively, the children). Mother contends there was insufficient evidence to support the juvenile court's decisions not to return the children to her custody and to terminate reunification services. She also contends the juvenile court erred in making certain evidentiary rulings relevant to these issues. We deny the petition.

Undesignated statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

On July 16, 2018, a Merced County Sheriff's deputy encountered then two-year-old D.S. and his father, Jimmy S., in a park in Hilmar. The two had slept there overnight and Jimmy did not have any clothing, food, or water for his son. The deputy contacted Merced County Human Services Agency (Merced agency), who sent a social worker to the park. Jimmy told the social worker he recently separated from mother and he had his son for four days on a visit. The night before, he rode his bicycle from Ripon to Hilmar with D.S. sitting on a cushion in the bicycle's basket. Jimmy said he and mother had been together for three years and he helped mother raise her other son, five-year-old C.V. Jimmy was arrested for felony child endangerment.

The social worker called mother, who said the children were on a visit with Jimmy. When told C.V. was not with him, mother said she did not know where C.V. was. Jimmy then stated C.V. was camping with his sister in Tuolumne County. Mother arrived at the park and began yelling at Jimmy from across the parking lot. Mother admitted to a history of drug use, stating she used marijuana daily, methamphetamine a week ago, and a valium, for which she did not have a prescription, the prior day. Mother, however, claimed she did not have a drug problem and could stop whenever she wanted. While mother said Jimmy also used methamphetamine, Jimmy told the social worker he had not used methamphetamine for over three years. Jimmy admitted using marijuana at night. The parents continually argued during this encounter.

Jimmy's sister was contacted and confirmed C.V. was with her. She agreed to bring him to the office. When she arrived, she reported Jimmy began using methamphetamine, marijuana, and alcohol which paternal grandmother supplied, when he was 13, and he currently was using methamphetamine. She had witnessed physical and verbal fighting between mother and Jimmy, and they also "smack the boys around." She described an incident in the paternal grandmother's home in which mother was drunk and kicked C.V., who hit his head on the table and began to throw up. She was called to pick up C.V. a couple days before the current incident and told to keep him until she got tired of him.

The social worker spoke with C.V., who said when he gets in trouble he gets a "pow pow," which means he is spanked on his butt with a belt. This happened "a lot." He also said he and D.S. got "smacked around," although D.S. did not get "pow pows." C.V. said mother and Jimmy used drugs and marijuana, and he was afraid of them when they used drugs, as they acted weird. Mother and Jimmy fought a lot, and cops came and arrested Jimmy as mother "got bruises and was bleeding blood." C.V. said Jimmy "needs to go to jail because he hurts his mommy," and mother "punches [Jimmy] back because he keeps being mean." It scared him when he saw Jimmy hit mother. D.S. was present during these incidents. Sometimes mother held D.S. when she and Jimmy fought, which C.V. did not "like that at all."

When mother failed to appear for a drug test, the social worker spoke with her again. She admitted she and Jimmy "verbally fight all the time." She could not recall the last time she saw C.V. and could only say it had been "a while."

The children were taken into protective custody. A dependency petition was filed in Merced County Superior Court alleging the children came within the provisions of section 300, subdivision (b)(1) based on mother and Jimmy's substance abuse, domestic violence, chronic homelessness and failure to provide medical care, and section 300, subdivision (g), as Jimmy was incarcerated and the whereabouts of C.V.'s father, Victor V., were unknown. The children were ordered detained on July 18, 2018.

The Jurisdiction/Disposition and Transfer-out Hearing

In its reports, the Merced agency recommended the Merced court take jurisdiction over the children, offer reunification services to mother and Jimmy, and transfer the case to Stanislaus County, where mother and Jimmy were living. The Merced agency noted the section 300, subdivision (g) allegation no longer applied to D.S., as Jimmy was no longer incarcerated. The children were placed together with relatives in Tuolumne County.

The social worker reviewed the petition's allegations with mother in September 2018. She denied all allegations of physical and domestic violence in her relationship with Jimmy and attributed C.V.'s statements of domestic violence to him "being five (years old)." Mother admitted she and Jimmy verbally argued, and she would throw things when she was upset, but not at people or her kids. She also admitted pushing Jimmy to "get his attention" during altercations. Mother said she was a victim of domestic violence from Victor. She and Jimmy separated one month before the children were detained, as they were constantly arguing, but as soon as her children were removed, they realized they needed to stay together.

Mother, who was 31 years old, admitted to struggling with substance abuse since she was 13, and while she had been clean for four years during her early 20's, she had used drugs since her children were born. The day before the detention hearing, mother tested positive for hydrocodone, methamphetamine, amphetamine, cannabinoids/THC, benzodiazepine, ecstasy, and marijuana. A week after the children were detained, she was arrested for possession of drug paraphernalia.

Mother reported she had untreated mental health diagnoses of depression, anxiety and attachment disorder, which developed in childhood as a result of trauma she experienced when she was a foster child. She was adopted when she was six. She received counseling until she was 13, when she stopped participating in part because she started using drugs. She stopped taking medication for her depression when she was 17. She continued to experience depression and anxiety. The social worker noted that while mother stated she was motivated to seek services, as of October 2018, she had yet to do so.

C.V. was experiencing anger and behavior issues. He was caught "choking" another student at school and was unable to control his anger. He had difficulty socializing. After visits, C.V. would become angry, and punch cabinets and chairs. He had a mental health assessment and it was determined he would receive weekly counseling.

Mother's proposed case plan included domestic violence counseling, a mental health evaluation and recommended treatment, a parenting program, a substance abuse assessment and recommended treatment, and random drug testing.

A combined jurisdiction, disposition and transfer-out hearing was held at the Merced court on October 18, 2018. Mother and Jimmy appeared by telephone. They denied the allegations, but submitted on the reports. The Merced court found the petition's allegations true, with the exception of the section 300, subdivision (g) allegation as to D.S., and adopted the disposition findings and orders, including a finding that mother's progress in alleviating the causes necessitating placement was "none." It then ordered the matter transferred to Stanislaus County.

The Merced court denied reunification services to Victor, as his whereabouts were unknown.

The Transfer-in to Stanislaus County

At the October 26, 2018 transfer-in hearing, the Stanislaus County juvenile court accepted the transfer from Merced County and appointed counsel for mother and Jimmy. A transfer-in review hearing was set for November 27, 2018, and the court ordered all previous orders from Merced County to remain in full force and effect. The juvenile court later granted the request of the Stanislaus County Community Service Agency (Agency) to continue the hearing to January 9, 2019, in part because the social worker was having trouble assessing the parents as they were homeless.

Subsequent references to dates are to dates in 2019, unless otherwise stated.

The Agency filed a report on January 4, which recommended modification of the case plan approved by Merced County. Mother and Jimmy continued to be homeless; they stayed in hotels paid for by Jimmy's SSI income and paternal grandmother. On January 3, mother reported that Jimmy had been arrested and was in custody. The social worker determined he was charged with grand theft auto, drug and firearm offenses, and failure to appear.

C.V. had been suspended from school for pushing another child to the ground. He was having difficulty staying in his seat and following directions, and disrupted the classroom. His foster mother requested an IEP. He was in counseling and had been referred to Parents United for an assessment due to his sexualized behaviors and comments.

Mother and Jimmy had not yet begun to participate in any reunification services. They had not applied for services at Sierra Vista or attended a substance abuse assessment. Mother came to the Agency for a substance abuse assessment on January 2, but she was advised to return early the next morning, as assessments were not being done that day. Mother, however, arrived the following day too late to be assessed.

Jimmy told the social worker his medical issues contributed to his and mother's inability to follow through with the service referrals provided to them. The social worker told him she was concerned they had not been able to follow through with their referrals, as their services were time limited, and asked how she could support them. They denied needing additional support, other than bus passes. While they managed to get to visits, they did not start services despite the encouragement and offers of assistance. Mother and Jimmy both suffered significant childhood trauma that resulted in a long history of ongoing drug use, and they did not seem to understand how this impacted their ability to care for their children or their current circumstances. They questioned why domestic violence was part of their case plan and did not seem to comprehend the gravity of their circumstances.

The proposed modified case plan adjusted referral agencies to those used by the Agency. It also added general counseling for both parents to address specific topics including past trauma, coping skills for life stressors, and grief and loss, as well as the current dependency case.

On January 9, the transfer-in review hearing was continued to January 24, at the Agency's request. At the January 24 hearing, which neither parent attended, the juvenile court approved the modified case plan and set a six-month review hearing for April 12.

In February, C.V.'s father, Victor, was located. An attorney was appointed for him and reunification services offered.

The Six-Month Review Hearing

The Agency's report for the six-month review hearing recommended continued services for all three parents. The proposed case plan added codependency counseling to mother's previously approved services plan.

Case notes attached to the report showed the social worker gave the parents referrals for their services on December 7, 2018. Nearly two weeks later, the social worker contacted Jimmy to follow up on his and mother's progress on their service referrals. On January 17, the social worker called mother to remind her of the January 24 court hearing and encouraged her to get back on track with the substance abuse assessment. Mother said she and Jimmy would be in court and try to attend their assessments. Two days before the hearing, the social worker called again to remind the parents of the hearing and their service referrals. Mother said they had been busy, but were planning to come in for their substance abuse assessments and go to Sierra Vista. Jimmy was no longer in custody.

Mother completed her substance abuse assessment on January 31, which recommended inpatient treatment followed by sober living. Mother was admitted to Nirvana Women of Hope the following day, when she tested positive for methamphetamine and marijuana. Due to her issues with treatment, her stay was extended from 60 to 90 days. She was set to graduate from Nirvana on May 1, when she would transition to Redwoods and First Step.

Mother was "just beginning to process the reasons for her substance use." She had codependency issues with Jimmy, which the service providers were attempting to address. Mother and Jimmy, who was in Nirvana's men's residential treatment program, got into trouble because mother was using the phone at Nirvana to call Jimmy while both were in the blackout phases of their programs. During their visits with the children, they were focusing on each other, rather than visiting the children, so their visits were separated.

Substance abuse treatment was the only element of mother's case plan she had started. She had not made an appointment for her mental health assessment, or turned in an application at Sierra Vista for individual counseling, domestic violence, and parenting, which the social worker noted more likely was due to her recently beginning the treatment program and being on blackout. On March 21, the social worker met with mother after her visits and provided her with a copy of her case plan.

C.V. was attending Parents United groups each week. He was very loving and sweet, but lacked boundaries. A student study team meeting was held at his school and an action plan developed. The children were moved from the relative placement to a foster home on April 9. C.V. was struggling with his behavior at the new home; he did not listen, was aggressive with others, and would laugh when disciplined. He was to be assessed for mental health services, with the hope the placement could be preserved through intensive services. Mother appeared to be growing frustrated during visits due to C.V.'s behavior, but remained adamant she could control him if he were returned to her at Redwoods.

The six-month review hearing was trailed several times, and ultimately held on May 14. Mother attended the hearing. The juvenile court approved the updated case plan, found mother's progress in services had been "good," continued the children's out-of-home placement and the parents' reunification services, and set a 12-month review hearing for September 5. Mother was advised of her appeal rights.

The 12-Month Review Hearing

In its 12-month review report, the Agency recommended termination of reunification services as to all parents and the setting of a section 366.26 hearing.

Mother had been living at Redwoods since May 1, attending her programs, and remained sober. She did not have a support system, which she was told was crucial to her long-term recovery, and seemed resistant to having one. Instead, she had the same people in her life as before treatment, including Jimmy's mother, who was an active methamphetamine user.

While Jimmy had a vehicle, he did not have a driver's license or insurance. On May 23, he picked mother up around the corner from Redwoods. Mother was placed on a two-week blackout and Jimmy was told not to drive his vehicle again until he had a license and insurance. On June 28, Jimmy was driving his vehicle when he was pulled over because he was not wearing a seatbelt. He was arrested after police found he had multiple outstanding warrants in Butte County. He was transported to Butte County and remained incarcerated there. The social worker received the police report, which revealed that Jimmy was pulled over around the corner from the Agency on a day mother had a visit with the children. Both parents denied mother was in the vehicle until the social worker told each the other had confessed. Mother did not think she had done anything wrong and was frustrated everyone was trying to keep her away from Jimmy, when they just wanted to be together.

Mother completed her mental health assessment on June 11 and was referred to counseling for depression. She told the social worker, however, that she was found not to need any services and failed to provide the social worker with paperwork showing the assessment results. The social worker received the assessment results via fax from Redwoods on July 8, which showed mother refused the recommended mental health referral. The social worker told mother she could not refuse the recommendation and needed to follow through with the referral. Although mother did not feel she needed it, she said she would follow the social worker's request. On August 12, mother told the social worker she completed the referral and could pick from three clinicians to begin counseling, but mother had yet to do so.

Mother completed her application for Sierra Vista services, including individual counseling, domestic violence, and parenting, on March 21, and attended her intake on April 2. Thereafter, she completed 10 parenting group sessions, one individual session, and one parent/child lab. She attended three individual counseling sessions and was a no-show for two. She began attending domestic violence groups on June 14, and attended the orientation and four groups, missing one.

Mother consistently denied any domestic violence with Jimmy, outside of their being verbally abusive with each other. Although mother admitted to her Nirvana case manager they had gotten physical, she immediately minimized it. On August 9, the social worker met with mother and told her that accountability and insight were important, including admitting the full scope of domestic violence. Mother denied domestic violence until she was confronted with services being terminated. Mother wrote the social worker a letter, in which she admitted physical and verbal domestic violence.

Mother visited regularly, but visits frequently did not go well. She struggled with the children's behaviors, as evidenced by her frustration, yelling and not using coping skills she learned in her parenting program. She was assessed as needing improvement in her parenting skills. Negative comments were made about her parenting in at least half of the 21 reported visits.

The social worker noted that while mother and Jimmy had participated in services, they had not fully addressed the issues that brought them to the Agency's attention or met recommended case plan goals. Accordingly, there continued to be detriment to the children if they were returned to their parents' custody. Since the parents failed to demonstrate, address or resolve the problems that led to the children's removal, the children were at substantial risk of abuse or neglect, and there was not a substantial probability they would return to any parent's care within the next six months.

The social worker summarized by saying it had been 13 months since the children were removed, and while mother had been "somewhat cooperative and compliant" with services, she had not "been in any hurry" to get them accomplished. The continued codependency and only recent acknowledgement of physical domestic violence was very concerning. The parents had to be reminded "month after month" to start certain services. Despite being informed they had limited time to mitigate the concerns that led to the children's removal, that had not occurred after 13 months. While mother had been sober since entering treatment, she continued to minimize the reasons for removal and domestic violence. Mother's limited growth and failure to complete her case plan led to the recommendation to terminate reunification services.

On September 5, mother requested a contested review hearing, which the juvenile court set for October 1. In the interim, the court reduced mother's visits to two in-person visits per month, with phone or social media visits in the off weeks.

An addendum report for the hearing revealed the children had been separated and placed in two different relative's homes, which were concurrent placements. Jimmy had been sentenced to four years in the Butte County jail. When the social worker met with mother on August 23 to discuss her case plan goals, mother said she decided to separate from Jimmy because they needed to focus on themselves and she was putting her children first. By September 5, mother had changed her mind and told the social worker she did not feel right "doing this" without Jimmy, as they were a family and those were his children. When she learned of Jimmy's sentence, she got upset and guessed she had to go it alone.

As of September 12, mother had not acquired a counselor to address her mental health concerns. The Sierra Vista progress report for the 52-week batterer's intervention program stated mother had attended 10 group sessions, with one absence, and she was rated at a high risk to reoffend.

The October 1 hearing was trailed to October 17. A second addendum report stated mother had her first counseling session for mental health services. She had not completed any of the 10 sessions of domestic violence as a victim, and had at least 14 more sessions of group domestic violence classes to complete, as she was being required to complete 26, rather than 52, sessions. Mother was in the "beginning stages" of codependency counseling; she had completed four codependency individual counseling sessions and needed to complete six more. Additional parenting sessions had not begun because mother was working on codependency, but her counselor would begin alternating between parenting and individual counseling once codependency had been addressed.

C.V. was moved to a concurrent non-relative home after the relative he was with stated she could not keep him, as he was becoming violent with her children and getting into multiple fights at school. Mother continued to struggle to handle the children during visits. Neither child listened to mother, as she did not have effective discipline. While mother had been informed of techniques to use, she did not follow through. In one visit, D.S. spit in her face and cursed at her, and the social worker had to discipline him.

The 12-month review hearing took place over three days, beginning on October 17 and concluding on November 1. The Agency called mother's Sierra Vista counselor, Katherine Lindville, who was working with mother on codependency in individual counseling. They had "scratched the surface of parenting" and would cover domestic violence victim counseling in the future. Lindville also was responsible for mother's parenting program, which mother was halfway through. Mother had about 11 to 15 more individual counseling sessions to complete, plus nine individual parenting sessions and two parent/child labs. How many more individual sessions were needed was dependent on mother's progress, particularly in codependency. Lindville's sessions with mother were on a weekly basis, which was typical. Lindville was available only one day per week per client due to the workload at Sierra Vista. Mother was "pleasant and cooperative" during individual counseling sessions, and Lindville believed she was trying to complete the program and get better for the children.

Mother called as witnesses Narcotics Anonymous sponsor Kathy Clay, Nirvana counselor Alyssa Baker, and social worker Melody Pannell. Clay testified mother completed the first six steps of the 12-step program in six months. Clay said mother made a huge mistake when she got in a car with her boyfriend, as she was given "pretty severe consequences for that." Clay was impressed with mother's ability to bounce back, as it was a "pretty severe obstacle" since "she was about to get her kids back and she lost that right," and she was not able to go to 12-step meetings with Clay. Clay was aware of only one incident where mother got into her boyfriend's car. Mother was not able to attend meetings with Clay on Wednesday nights because of other obligations at her program, but Clay saw mother at Sunday meetings five to six times during the first three or four months of their relationship. Clay had not seen mother in the last two or three months.

Baker testified the Nirvana program requires clients entering treatment to wait 30 days before starting outside appointments, such as at Sierra Vista. Since mother entered Nirvana on February 1, she had to wait until March 1 to start her other services. Mother met the objectives of her treatment plan and successfully graduated from the program. Originally, she was to graduate in 60 days, but Baker extended the program to 90 days because she thought mother would benefit from additional time since it took her "a little bit longer" to open up, trust, and be receptive.

Social worker Pannell had worked with mother for nearly a year. After questioning Pannell about her education, job experience, and background, mother's attorney moved to have her "declared an expert in the provision and coordination of reunification services." Upon objection, mother's attorney explained: "I would note for the Court that one of the things that happens is that a[n] inherently hypothetical recommendation is made to this Court; the recommendation being that there would be a detriment to the children if they were returned at the 12-month hearing. If this person is a nonexpert, I don't believe they even have the ability to make that recommendation as it is inherently hypothetical and a layperson cannot make that recommendation." He further argued that based on her qualifications, Pannell was an expert in providing reunification services. The juvenile court denied the request, as well as a request to find Pannell an expert in social work. Mother's attorney then asked the juvenile court to "strike from [Pannell's] written testimony the recommendation or the statement that there would be a detriment if the children were returned as that is a hypothetical future statement for which she has no expertise to give." The court denied the request.

Pannell confirmed the six-month plan did not state the number of sessions that would be involved in the case plan. Citing to Lindville's testimony about the number of sessions mother was required to complete, mother's attorney asked when that number was determined. Pannell explained the parenting program had a set number of sessions, and referrals for individual counseling and "domestic violence victim" each start with 10 sessions, but more could be added if additional time was needed to focus on areas mentioned in the case plan.

Mother's attorney asked if the Agency ever notified his office "about the number of parenting labs, groups, and individual counseling that would be required." The juvenile court sustained county counsel's relevancy objection and asked why Pannell would need to notify his office. The attorney argued the question was relevant to whether services were reasonable, as the case plan did not list the total number of sessions, which if provided on a weekly basis exceeded the amount of time left in the plan, and the number had changed over the six-month period. The court again sustained the objection.

Mother's attorney asked Pannell what detriment she believed would occur if the children were returned to mother. Pannell explained when she assesses whether to recommend termination of services, she looks at the factors that brought the children into care and determines what has changed and been mitigated. Pannell stated: "And the fact that the mother has not completed a large portion of her services and continues to have behaviors, that shows that things still have not changed," and there continued to be detriment to the children's return, as "her behaviors have shown that the same things would happen" if they were returned. When mother's attorney asked what could happen, Pannell cited to the initial referral, including that D.S. was sleeping in a park, the children witnessed domestic violence, mother's substance abuse and her not being present for the children.

Mother's attorney asked Pannell whether she believed mother had the ability to reunify with the children when she "provided the report outlining the case plan for this reporting period." County counsel objected based on relevance and speculation. Mother's attorney responded that it called "for the speculation that was actually made, which was that there was reunification, and it is relevant as to the—the reasonableness of the services provided." The juvenile court did not understand why Pannell's belief was relevant, as that was a finding the court made at the six-month review hearing. Mother's attorney asked whether Pannell's recommendation that it would be detrimental to return the children and it is not possible nor probable to reunify was relevant to the court. The court responded: "It's for the Court to make that finding based upon the evidence presented. The Agency makes a recommendation, and it is up to the Court to decide whether to approve or not approve the Agency's recommendation."

When mother's attorney asked Pannell if she believed when she submitted the case plan for the six-month review hearing that mother would be able to complete its components by the 12-month review hearing, Pannell responded she always hoped a case plan could be completed, or enough of it completed, to mitigate the issues. The number of sessions needed is "very fluid," as a topic like codependency may take more or less than 10 full sessions.

Pannell became aware mother would not complete her services during this reporting period around the time she completed her initial report on August 19. Since then, she did not recommend Sierra Vista make changes to facilitate completion of the case plan on a faster basis "because it is not just about attending sessions, it is not just about going once a week, it involves actual behavior changes and actually taking in what you're learning.... [¶] ... [¶] It is not about just attending each weekly session. She could attend ten codependency and not get anything out of it."

At the beginning of the reporting period, the Agency considered starting mother on overnight visits, but then the June 28 incident in which mother rode with Jimmy in his car occurred. Since then overnight visits were not started because visits at the Agency did not go well. Mother struggled to handle the children "a great deal," she did not follow through with any parenting techniques or skills she learned in her parenting groups, and Pannell had seen D.S. spit and cuss at mother, who did nothing. Pannell had not seen D.S. spit at the foster parent during home visits.

Mother testified on her own behalf. When her attorney asked mother's understanding of why the court had taken jurisdiction over the children, mother replied: "Because I put drugs first." When asked why she believed she had a problem with codependency, mother responded that sometimes she thought she could "fix other people" and she liked to take care of, and depend on, others "too much." She was "not sure," however, how that impacted her ability to parent her children. When asked how having a codependent relationship impacts her parenting, mother responded, "I don't see that it does. I don't know." Mother realized she "had co-dependency" since she was a teenager and it was a "character defect."

About her drug treatment, mother testified her "recovery today is awesome" and she had "learned how to cope with a lot of my triggers and trauma that happened in the past." When the juvenile court asked what her triggers were, mother responded: "At this time I don't have any triggers. I am pretty much—when I came in recovery, like I was already done with getting high." Mother said her triggers before she came into dependency were "stress, homelessness, [and] struggling," and she would call her sponsor or go to an NA meeting if one of those triggers arose again. Mother testified about what she had learned in her parenting and domestic violence classes that would help if the children were returned to her. She had not used illegal drugs since she entered Nirvana. She believed she had the ability to complete her counseling objectives and be a good parent, and she loved her children.

In closing, mother's attorney argued services were not reasonable because it was impossible for her to complete them in six months and her counsel did not have notice of the problem since the case plan did not specify the number of sessions ordered. The attorney further argued the children should be returned to mother, as the Agency had not met its burden of proving detriment. He asserted that since the Agency objected to Pannell being declared an expert there was "no competent opinion testimony" of detriment, and he "was not able to question them as to their opinion as to what the specific detriment would be in this case." Moreover, mother was doing very well in her program and the visitation logs showed that visits were not as negative as the Agency portrayed. Finally, he argued at the very least, the court should continue mother's reunification services.

In ruling, the juvenile court reviewed the timeline of the case, which showed the parents did nothing for the three months between the detention hearing, when they were given referrals, and disposition. The parents were given local referrals at the October 26, 2018 transfer-in hearing, yet they failed to engage in services until they entered Nirvana at the beginning of February. As of the six-month report, mother had made no progress on her mental health assessment, individual counseling, domestic violence and parenting, although the court had found her progress to be good. Mother received a referral for Sierra Vista by December 6, 2018, at the latest, but did not complete her application until March 21 and her intake until April 2.

The juvenile court was concerned about mother's and Jimmy's significant delay in starting services, which affected their ability to make meaningful progress. While the court did not expect a parent to complete every single case plan component by the 12-month review hearing, it expected significant progress. The court applauded mother's nine months of sobriety, but was concerned about her testimony that she had no triggers, as the court believed it was necessary to be able to identify triggers in order to avoid relapse.

Given mother's inability to progress to visits outside the Agency, coupled with the concerning behaviors that occurred during visits, the juvenile court could not find the children would be safe if returned to mother's care. Because mother did not have a "good grip on domestic violence," she did not understand the issue of triggers, and she had a long history of substance abuse, the court found return of the children to their parents' care created a substantial risk of detriment.

The juvenile court found reasonable services were offered or provided to the parents, and mother could have completed her services had she engaged more fully. Finally, the juvenile court found there was not a substantial likelihood the children could be returned to the care of any of the parents within the 18-month reunification period, which would end on January 16, 2020. With respect to mother, the court found she had not made significant progress in resolving the issues that caused the children's removal and since she had so many services left to complete, there was not a substantial likelihood they would be returned to her if services were continued for the remaining two and a half months. Accordingly, the court terminated reunification services to all of the parents and set a section 366.26 hearing for March 2, 2020.

DISCUSSION

I. Detrimental Return

Mother contends the juvenile court erred in not returning the children to her custody. She argues the Agency failed to satisfy its burden of proving there was a substantial likelihood of detriment because (1) by disqualifying the social worker as an expert, the Agency eliminated her ability to give opinion testimony as to detriment, and (2) there was insufficient evidence of detriment. In an argument related to the first point, she contends the juvenile court erred by refusing to qualify the social worker as an expert and then allowing the Agency's "opinion testimony and hearsay evidence to come in," which "allowed the agency to enter ultimate opinion testimony (detriment to the child) while preventing Mother's counsel from cross examining on the matters."

There is a statutory presumption at each review hearing that a dependent child will be returned to parental custody unless the juvenile court finds, by a preponderance of the evidence, that returning the child would create a substantial risk of detriment to the child's safety, protection or well-being. (§§ 366.21, subds. (e)(1) & (f)(1), 366.22, subd. (a)(1).) The burden of establishing detriment falls on the Agency. (Ibid.)

On a challenge to the juvenile court's detriment finding, we review the record to determine if substantial evidence supports it. (In re Barbara R. (2006) 137 Cal.App.4th 941, 951.) The question is not whether a contrary finding might have been made, but whether substantial evidence supports the finding the court made. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) " 'Substantial evidence' means evidence that is reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) In reviewing the record for substantial evidence, we consider the evidence favorably to the prevailing party and resolve all conflicts in support of the juvenile court's finding. (Ibid.)

We begin with the admissibility of the social worker's recommendation on detriment. Section 281 authorizes the juvenile court to "receive and consider social service reports in determining 'any matter involving the custody, status, or welfare of a minor.' " (In re Keyonie R. (1996) 42 Cal.App.4th 1569, 1572.) At the 12-month review hearing, the social worker is required to file a report regarding, "where relevant, the prognosis for return of the child to the physical custody of his or her parent or legal guardian" and make a "recommendation for disposition." (§ 366.21, subd. (c).) The court "shall review and consider the social worker's report and recommendations." (§ 366.21, subd. (f)(1)(C).) "The reports are admissible regardless of whether the authors are available for cross-examination." (J.H. v. Superior Court (2018) 20 Cal.App.5th 530, 536.)

Thus, Pannell was authorized by statute to make a recommendation concerning whether it would be detrimental to return the children to mother, which the juvenile court was obligated to consider. The juvenile court was not required to base its detriment finding on the opinion of a qualified expert and the court could fully comprehend the evidence of detriment without the need of an outside expert's interpretation. Thus, expert testimony was not required and the juvenile court did not err in refusing to strike Pannell's detriment recommendation. While mother contends the juvenile court prevented her attorney from cross-examining Pannell on detriment, the record shows her attorney specifically questioned Pannell about her detriment recommendation and the basis for it.

Mother does not cite any authority to support her contention that expert testimony was required. She cites only to Evidence Code sections 800 and 802, which address the opinion testimony by lay witnesses and the statement of the basis of that opinion. Neither section prohibits the juvenile court from accepting the social worker's recommendation without being qualified as an expert. --------

Moreover, as the juvenile court explained: "It's for the Court to make [a detriment] finding based upon the evidence presented. The Agency makes a recommendation, and it is up to the Court to decide whether to approve or not approve the Agency's recommendation." Thus, regardless of Pannell's recommendation, the court made its detriment finding based on the evidence presented, which we review for substantial evidence.

Substantial evidence supports the juvenile court's detriment finding, which renders any error with respect to Pannell's testimony harmless. The children were removed from mother's custody due to her substance abuse, domestic violence with Jimmy, and inattention to the children's needs. Mother was in the beginning phases of domestic violence treatment and was considered at high risk to reoffend. While mother had been drug-free for nearly nine months, she was still in a structured setting and had yet to live in the community. She claimed she did not have current triggers. Mother had little insight into how her behavior affected her children. She had just "scratched the surface" of parenting issues, failed to employ the parenting techniques she had been taught, and could not relate how her codependency impacted her parenting ability. On this evidence, the juvenile court properly could find the children would be at substantial risk of detriment if placed with mother.

II. Reasonable Services

Mother contends the case plan adopted at the six-month review hearing was vague and unspecific because it did not list the number of classes required or the topics to be addressed, with the exception of individual counseling. She complains the number of sessions changed from the "usual number" to over 50 "without notice to parents counsel." She argues these issues are relevant to whether she was provided reasonable services; therefore, the juvenile court erred in ruling questions her attorney asked concerning the case plan were irrelevant. She argues services were not reasonable because the case plan was not specific or tailored to her needs, as the Agency knew she had not started her classes when it recommended continued services at the six-month review hearing, and although Pannell knew by August 19 that it would not be possible for mother to complete the case plan by the 12-month review hearing, she did not attempt to remedy the situation, such as by accelerating mother's program.

"Family reunification services play a critical role in dependency proceedings. [Citations.] At the dispositional hearing, the court is required to order the agency to provide child welfare services to the child and his or her parents. (§ 361.5, subd. (a).) Services 'may include provision of a full array of social and health services to help the child and family and to prevent reabuse of children.' (§ 300.2.) Reunification services should be tailored to the particular needs of the family." (In re M.F. (2019) 32 Cal.App.5th 1, 13.)

"At each review hearing, if the child is not returned to his or her parent, the juvenile court is required to determine whether 'reasonable services that were designed to aid the parent ... in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent ....' (§§ 366.21, subds. (e)(8) & (f)(1)(A), 366.22, subd. (a).) The 'adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged according to the circumstances of each case.' [Citation.] 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 ....' " (In re M.F., supra, 32 Cal.App.5th at pp. 13-14.)

At the 12-month review hearing, "the juvenile court may not set a section 366.26 hearing unless it finds by clear and convincing evidence that reasonable services were offered or provided to the parent." (In re M.F., supra, 32 Cal.App.5th at p. 14.) "We review a reasonable services finding ' "in the light most favorable to the trial court's order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard." ' " (Ibid.) It is the petitioner's burden to show the evidence is insufficient to support the juvenile court's finding. (Ibid.)

The revised case plan the Agency prepared for mother and ordered into effect at the six-month review hearing required mother to, among other things: (1) complete a mental health assessment, "comply with all medical and psychological treatment that is deemed necessary by the mental health professional," and "work with the mental health professionals to address any mental health concerns that arise during the assessment"; and (2) "attend, actively participate, and successfully complete" individual counseling, a domestic violence program, codependency counseling, and a parenting program, and "follow all recommendations." At no time did mother claim the case plan components were unreasonable, vague, or onerous, either by raising it on appeal from the six-month review hearing or subsequently by filing a modification petition under section 388. Consequently, she forfeited any issue with respect to her claims that the case plan was inadequate or not tailored to her needs because it did not specify the number of classes required or was impossible to complete before the 12-month review hearing, by failing to timely raise them. (In re Julie M. (1999) 69 Cal.App.4th 41, 47.) For this reason, the juvenile court did not err in sustaining relevancy objections to mother's attempts to question Pannell concerning the development and adoption of the case plan.

Mother complains her attorney was not advised of her service providers' treatment recommendations, including the sessions required to complete each service, which she claims exceeded the "usual number." Mother, however, fails to cite any authority that requires the Agency to notify parents' counsel of the treatment recommendations or changes in the plan. Rather, the social worker may adjust the case plan between review hearings without court approval. (§ 16501.1, subd. (g)(14) ["Modifications to the case plan made during the period between review hearings need not be approved by the court if the casework supervisor for that case determines that the modifications further the goals of the plan."].) Nothing in the statute requires the Agency to provide notice to parents' counsel.

If mother was dissatisfied with her treatment recommendations, she was fully capable of advising her attorney of what was being required of her. Reunification is a collaborative effort and a parent is presumed capable of complying with a reasonable services plan. (In re Christina L. (1992) 3 Cal.App.4th 404, 415.) Consequently, the parent is responsible for communicating with the Agency and participating in the reunification process. (In re Raymond R. (1994) 26 Cal.App.4th 436, 441.) If mother felt during the reunification period that her services were onerous or incapable of completion, she "had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan." (In re Christina L., supra, at p. 416.) A parent may not "wait silently by until the final reunification review hearing to seek an extended reunification period based on a perceived inadequacy in the reunification services occurring long before that hearing." (Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093.)

Substantial evidence supports the juvenile court's finding that mother was provided reasonable reunification services. Mother essentially argues that once Pannell was aware she could not complete all the recommended counseling sessions by the 12-month review hearing, Pannell was required to tailor the plan to allow her to complete it. The case plan's purpose is to provide services to a parent to assist them in alleviating the issues that led to the dependency and removal. (§ 16501.1.) "[S]imply complying with the reunification plan by attending the required therapy sessions and visiting the children is to be considered by the court; but it is not determinative. The court must also consider the parents' progress and their capacity to meet the objectives of the plan; otherwise the reasons for removing the children out-of-home will not have been ameliorated." (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.)

Thus, as the Agency points out, reunification services are not a "series of hoops" a parent must pass through in order to obtain return of the children. The Agency does not specify the number of counseling sessions in a case plan because the social worker cannot know how long it will take a given person to process the information and make necessary changes. Instead, the Agency requires the parent to complete the treatment recommended by the service provider. While a service provider may have a standard treatment plan that encompasses a certain number of sessions, that is not a guaranty or promise that the problem can be solved in that amount of time. Moreover, completing the service plan does not guarantee return of the children where the parent nevertheless has not made progress toward eliminating the conditions that led to the children's removal. (In re Dustin R., supra, 54 Cal.App.4th at pp. 1141-1142.)

Mother suggests Pannell could have remedied her inability to complete the case plan by increasing the rate at which she received services, such as by requiring Sierra Vista to provide counseling more than once a week. We agree with the Agency that this was not reasonable, as Sierra Vista was able to only provide weekly counseling due to its caseload and loading more sessions on mother would not necessarily speed up her treatment given the multiple programs mother was engaged in. The problem was not that the Agency failed to provide services in an accelerated fashion, but that mother waited for more than half of the case to begin many of those services. During the current reporting period, she did not begin her domestic violence, individual counseling, or mental health counseling until weeks or months into that period. It was mother's failure to engage in services, rather than any failure by the Agency, that led to mother's inability to complete the case plan. As the juvenile court found, "[i]f she would have engaged more fully, she could well have completed the services."

Mother has failed to show the Agency's implementation of her services plan and efforts to assist her in complying with it were unreasonable. Therefore, substantial evidence supports the juvenile court's finding she received reasonable reunification services.

III. Substantial Probability of Return

Mother contends the juvenile court erred in terminating her reunification services because there was a substantial probability the children could be returned to her custody by the 18-month review hearing.

At the 12-month review hearing, the juvenile court may continue the case if there is a substantial probability the children will be returned to parental custody within 18 months from the time the children initially were removed. (§ 366.21, subd. (g)(1).) In this case, that was January 16, 2020, a mere two and a half months after the conclusion of the 12-month review hearing. To find a substantial probability of return, the juvenile court must find mother regularly visited the children, made significant progress in resolving the problems that led to the children's removal, and demonstrated the capacity and ability to complete the objective of the case plan and provide for the children's safety, protection, and well-being. (§ 366.21, subd. (g)(1)(A)-(C).) Otherwise, the juvenile court must terminate reunification services and set a section 366.26 hearing to implement a permanent plan for the children. (§ 366.21, subd. (g)(4).)

Here, the juvenile court found that while mother regularly visited the children, she had not made significant progress in resolving the problems that led to their removal. Mother contends she made significant progress because she had been sober for nearly nine months, she completed 24 classes, the service providers who testified thought she was doing well in counseling, she was doing well at Redwoods, and she had numerous positive visits with the children that outweighed the negative ones. Mother, however, ignores the evidence that supports the juvenile court's finding. The primary issues in this case were domestic violence and codependency, both of which mother had just begun to address. Moreover, mother had not demonstrated the ability to implement the parenting techniques she was learning in counseling and did not understand how her codependency affected her children. In addition, given that mother had so many services left to complete, there was not a substantial likelihood the children could be returned to her care if services were continued for two and half months. Therefore, the juvenile court had no choice but to terminate mother's reunification services.

DISPOSITION

The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court. (Cal. Rules of Court, rule 8.490(b)(2)(A).)


Summaries of

Ruby B. v. Superior Court

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 22, 2020
F080258 (Cal. Ct. App. Jan. 22, 2020)
Case details for

Ruby B. v. Superior Court

Case Details

Full title:RUBY B., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 22, 2020

Citations

F080258 (Cal. Ct. App. Jan. 22, 2020)