Opinion
A151306
07-18-2018
In re H.M., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. JD15-3334)
At the 12-month permanency hearing in this dependency case involving H.M., a girl born in the summer of 2000, the juvenile court terminated reunification services to H.M.'s mother, C.M. (Mother), and selected placement in a planned permanent living arrangement as H.M.'s permanent plan. (See Welf. & Inst. Code, §§ 366.21, subd. (g)(5)(A), 16501, subd. (i)(2).) At the time of the hearing, H.M.'s whereabouts were unknown.
Undesignated statutory references are to the Welfare and Institutions Code.
On appeal, Mother contends (1) there was insufficient evidence to support the court's finding that the San Francisco Human Services Agency (the Agency) provided reasonable services to help Mother overcome the problems that led to H.M.'s initial removal and continued custody (§ 366.21, subd. (f)), and (2) the court considered an improper factor in deciding to terminate services to Mother. Mother argues this court should reverse the order terminating reunification services and order the provision of additional services. We find no merit in Mother's arguments and therefore affirm the court's order.
I. BACKGROUND
A. The Petition, Detention, Jurisdiction, and Disposition
The Agency filed a dependency petition on behalf of then-15-year-old H.M. in November 2015. An amended petition sustained by the court in March 2016 after a settlement conference on jurisdiction/disposition alleged (under § 300, subd. (b) (failure to protect)) that (1) Mother and H.M. had irreconcilable differences, and Mother was unable to address H.M.'s emotional needs, and (2) despite Mother's efforts, Mother was unable to protect H.M. appropriately, which placed H.M. at risk for neglect and abuse.
In a November 2015 detention report, the Agency recounted that Mother stated she was unable to keep H.M. safe in her custody due to H.M.'s mental health needs. H.M. had been expelled from a school in San Francisco and later from a residential boarding school. Mother did not want H.M. to return home. H.M. stated she hated Mother. Prior referrals to the Agency alleged that Mother drank excessively and neglected and physically and verbally abused H.M. and her younger brother. The referrals that were investigated were found to be inconclusive or unfounded.
The court ordered H.M. detained in early November 2015, and she was placed in foster care, ultimately residing in a group home.
In a December 2015 disposition report, the Agency provided further information, based on interviews with H.M., her brother, and others, about Mother's alleged alcohol abuse, anger issues, and neglectful and abusive behavior, including a friend's statement that the children were " 'terrorized' " by Mother. H.M.'s brother had by this point been detained as well. The Agency stated it had concerns about Mother's parenting, her lack of supervision of her children, her drinking, and her difficulty in addressing H.M.'s challenging behavior. The Agency stated it was concerned that H.M.'s allegation that she had been raped by a male friend of Mother's (an allegation that was included in the initial dependency petition) might be false. Rape kit tests did not reveal any evidence that H.M. had been raped. The Agency suggested a false allegation might have been a desperate effort by H.M. to get Mother's attention.
H.M. did not want to visit with Mother and did not want to participate in therapeutic visitation. The Agency social worker and the clinician who had been assigned to conduct therapeutic visits were working on encouraging H.M. to participate. H.M. was doing well in school.
At the jurisdiction/disposition hearing in March 2016, the court sustained the amended petition described above, declared H.M. a dependent, and ordered that she remain in foster care. The court found that the Agency had made reasonable efforts to prevent or eliminate the need to remove H.M. from Mother's home. The court specified reunification requirements for Mother, including participation in individual therapy, family therapy/therapeutic visitation (after she had begun individual therapy), parenting classes, an outpatient substance abuse treatment program, Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings, random drug testing, and visitation with H.M.
B. The Six-Month Review Hearing
In its report for the six-month review hearing, the Agency recommended that the court terminate services to Mother due in part to her poor participation in her case plan requirements, such as mental health and substance abuse treatment. After participating in a mediation session in connection with the six-month review hearing on October 5, 2016, the parties agreed and the court ordered that services would continue until the 12-month permanency hearing set for January 5, 2017. The court found in its October 5, 2016 order that the Agency had made reasonable efforts to assist Mother in overcoming the problems that led to the initial removal and continued custody of H.M.
C. The 12-Month Permanency Hearing
In a report prepared in December 2016 for the 12-month hearing, the Agency recommended that the court terminate reunification services to Mother and select a planned permanent living arrangement as H.M.'s permanent plan. The Agency reported Mother had made minimal progress in her case plan requirements, including mental health and substance abuse treatment.
In late December 2016, H.M. (then 16 years old) left her group home. At hearings in January, March, and April 2017, the Agency and H.M.'s counsel reported her whereabouts were unknown. The court ordered the Agency to do everything it could to locate H.M., and directed the Agency to report her as missing to the National Center for Missing and Exploited Children. Her whereabouts remained unknown at the time of the contested 12-month hearing, which the court held on April 12, 2017 (after a few continuances), 17 months after the initial removal of H.M. from Mother's custody.
At the April 12 hearing, the court adopted the Agency's recommendations. The court found (1) the return of H.M. to Mother's custody would create a substantial risk of detriment to H.M.'s well-being, (2) Mother had made minimal progress with her case plan, (3) the Agency had made reasonable efforts to assist Mother in overcoming the problems that led to the dependency, and (4) there was not a substantial probability that H.M. would be returned to Mother's custody within six months. The court terminated reunification services to Mother and selected placement in a planned permanent living arrangement as Hailey's permanent plan. The court set a further hearing for a progress report on H.M.'s status and whereabouts.
Mother appealed the order terminating reunification services and selecting a permanent plan for H.M.
II. DISCUSSION
Mother contends the juvenile court erred by finding the Agency provided reasonable services, specifically with respect to its efforts to engage Mother in individual therapy. Mother also argues that, in making its decision to terminate reunification services, the court considered an "improper factor," i.e., it misstated or misunderstood the extent of Mother's progress in the portions of her case plan that concerned substance abuse. Mother argues this court should reverse the order terminating services and order the provision of additional services, even if the extended service period runs past the 18-month permanency review hearing.
A. Reasonable Reunification Services
At the 12-month hearing, the court must "determine whether reasonable services that were designed to aid the parent or legal guardian to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent or legal guardian." (§ 366.21, subd. (f)(1)(A).) The court here found by clear and convincing evidence that the Agency provided reasonable services to Mother. We review the court's finding for substantial evidence. (T. J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1238.) "Substantial evidence is that which is reasonable, credible and of solid value." (Ibid.) "We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record in favor of the juvenile court's order and affirm the order even if other evidence supports a contrary finding. [Citations.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order." (In re T.W. (2013) 214 Cal.App.4th 1154, 1161-1162.) When applying the substantial evidence standard here, we bear in mind the clear and convincing evidence standard applied by the juvenile court. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.)
The Agency's report for the 12-month review, which the court admitted into evidence at the April 12, 2017 hearing, outlines the Agency's efforts to engage Mother in services, including therapy and substance abuse treatment. An Agency social worker also testified at the hearing about the services offered to Mother. Mother's sole contention on this point is that the evidence does not show the Agency made sufficient efforts to refer her to a therapist for individual therapy. We reject this argument.
The Agency's report and the social worker's testimony support a conclusion the Agency made reasonable efforts to connect Mother with an individual therapist. In early 2016, the Agency referred Mother to an individual therapist through Foster Care Mental Health (FCMH). Mother decided the therapist was not a good fit for her, so the Agency assigned her a different therapist through FCMH on April 1, 2016. Mother attended one session with that therapist and then failed to show for several sessions, so the therapist was unable to evaluate her. Mother asked to receive therapy from her parenting class instructor, so the Agency spoke to the instructor to determine if that was possible. After discussing the matter, the Agency social worker and the parenting class instructor agreed the instructor did not have the experience or background to provide individual therapy to Mother.
The Agency next referred Mother to Sunset Mental Health for individual therapy. Mother told the Agency that Sunset Mental Health had determined it was not the appropriate provider for her because of where she lived, so the social worker informed FCMH that Mother instead wanted to be referred to Richmond Area Mental Health Services (RAMS). Mother later told the Agency that she had completed the intake process at RAMS and was to start therapy on December 8, 2016. Mother apparently did not continue with RAMS, although the social worker was unaware of any reason why RAMS (which is a "whole clinic" with multiple therapists) would not have been appropriate for Mother. In or around February 2017, the Agency referred Mother to a different individual therapist, and Mother was seeing that therapist at the time of the 12-month permanency hearing.
This evidence supports a conclusion that the Agency repeatedly attempted to refer Mother for individual therapy and that Mother's dislike of certain therapists contributed significantly to the delay in her participation in therapy. Mother argues, however, that the Agency's referral to Sunset Mental Health and Mother's subsequent involvement with RAMS must be disregarded in evaluating the Agency's efforts, because the Agency was obligated to select a particular therapist for Mother. She relies on a sentence in the service plan approved by the court at the disposition hearing, which states Mother is to "undergo[] individual therapy with a therapist selected by the agency which addresses[] coping skills, parenting skills, and mental health issues." (Italics added; underlining in original.) (The italicized phrase was added in handwriting to a typed version of the service plan.) Mother asserts that, if we ignore this portion of the chronology, there was an unacceptably long gap between the Agency's two referrals to therapists in early 2016 and its last referral to a therapist in February 2017.
We decline to parse the record in this manner. The handwritten phrase in the court's service plan (i.e., that Mother is to participate in individual therapy "with a therapist selected by the agency") makes clear that Mother cannot just choose a therapist without any input from the Agency, but we do not read it as specifying that the only way the Agency may assist Mother is by assigning a named individual as her therapist. Particularly after Mother rejected the first two therapists to whom the Agency referred her, it was more than reasonable for the Agency to take a broader approach and refer Mother to a clinic with several therapists, one of whom might be a good fit for Mother. Viewing the evidence as a whole, we find no basis for overturning the juvenile court's finding that the Agency provided Mother with reasonable reunification services, including in the area of individual therapy.
B. The Termination of Reunification Services
If a child is not returned to parental custody at the 12-month hearing, the court may set an 18-month permanency review hearing and extend reunification services until the 18-month mark, but only if it finds that there is a substantial probability the child will be returned to parental custody within the extended period, or that reasonable services have not been provided. (See §§ 361.5, subd. (a)(3)(A), 366.21, subd. (g)(1); T.J. v. Superior Court, supra, 21 Cal.App.5th at pp. 1254-1255.) The court here found at the April 12, 2017 hearing that reasonable services were provided (a finding we have discussed in part II.A. above) and that there was no substantial probability of return within the extended period.
In stating its finding on the latter point, the court noted the 18-month date was fast approaching. The court then briefly outlined the state of Mother's participation and progress in reunification services. The court stated Mother "has miles to go: substance abuse testing, random testing, substance abuse treatment, AA/NA meetings." The court elaborated on these and other services, noting that, although Mother had completed a parenting class, she had missed numerous random drug tests. She had just begun individual therapy. There was no reason to believe that, when H.M. was found, she would be willing to participate in therapeutic services with Mother. Mother stated she had attended some AA meetings but had not provided any documentation to the social worker. Mother's conduct, including with respect to selection of a therapist, suggested she was still "trying to dictate her own treatment plan."
The court stated the 18-month mark was in June 2017, but it appears the actual date was even earlier, in May 2017 (i.e., 18 months after the November 2015 initial removal of H.M. from Mother's custody, and just one month after the 12-month hearing held in April 2017). (§ 366.21, subd. (g)(1); see § 361.5, subd. (a)(3)(A).)
Mother does not contend there is a lack of substantial evidence to support the court's finding there was not a substantial probability of return. (See Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688-690 [substantial evidence standard applies].) She argues, however, that the court considered an "improper factor" because it allegedly misunderstood the extent of Mother's progress in connection with substance abuse. Mother bases this assertion on one sentence in the court's oral announcement of its ruling at the April 2017 hearing, i.e., its statement that Mother "has miles to go: substance abuse testing, random testing, substance abuse treatment, AA/NA meetings."
We reject Mother's claim that this statement shows the court misunderstood the facts. The evidence supported a conclusion Mother had not participated adequately in drug testing and had not provided documentation of her participation in AA/NA meetings. Mother's appellate assertion that she could have completed these items in "six more months" ignores the actual time limitations involved. In any event, the court was not required to conclude Mother was likely to begin performing well in these areas.
As to substance abuse treatment, Mother emphasizes she completed a 90-day, one-day-per week outpatient program with an organization in San Rafael, and she notes the service plan approved by the court at the disposition hearing did not require her to participate in residential treatment. But contrary to Mother's suggestion, the court did not state at the 12-month hearing that it believed the service plan itself required residential treatment. The court did note the Agency's statement in its report that the case manager at the San Rafael organization (after working with Mother and after speaking with the Agency social worker) stated residential treatment would have been more appropriate for Mother than the limited program she had completed. We are not persuaded that any discrepancies between the court's description of this issue and the wording of the Agency's report provide a basis for reversal.
III. DISPOSITION
The juvenile court's April 12, 2017 order terminating reunification services to Mother and selecting placement in a planned permanent living arrangement as H.M.'s permanent plan is affirmed.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Smith, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.