Opinion
A150003
03-13-2017
S.E., Petitioner, v. THE SUPERIOR COURT OF HUMBOLDT COUNTY, Respondent; HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. JV160023)
S.E. (Father) is the presumed father of 14-month-old J.E. (Son), who came to the attention of child welfare authorities when he was one day old because he was born with opiates in his system, and his mother, K.W. (Mother), admitted she had used drugs during pregnancy. Mother continued to have drug problems, and Father failed to ensure Son's safety, so the Humboldt County Department of Health and Human Services (Department) initiated dependency proceedings. At the six-month review, the court ordered reunification services to Father terminated and set a hearing under Welfare and Institutions Code section 366.26 for March 20, 2017. Father filed this writ petition under California Rules of Court, rule 8.452, seeking relief from those orders. We conclude he fails to make the required showing and deny the writ.
Statutory references are to the Welfare and Institutions Code.
Citations to rules are to the California Rules of Court.
I. BACKGROUND
The parties are familiar with the facts of the case, so we review them only briefly. Mother has had a serious drug problem for many years that negatively affects her ability to care for Son. She has a long child welfare history and criminal convictions for drug offenses and offenses involving physical aggression, as well. Son is her sixth child and Father's first, but Mother does not have custody of any of her other five children. The three eldest live with their paternal families, and the next two were removed through the dependency process, Mother failed to reunify with them, and they were adopted.
The family was monitored by the Department practically from Son's birth. On January 25, 2016, when he was one month old, the Department filed a dependency petition on his behalf. Twice in January, Mother had passed out from drug ingestion while caring for Son, in one instance while he was sleeping in the same bed, which posed a risk of suffocation. The Department's allegations with respect to Father were that he failed to recognize when Mother was using drugs, failed to appreciate the risk to Son based on Mother's drug use and its impact on her parenting ability, and failed to protect Son from the consequences of Mother's drug addiction.
Early in the dependency, the Department discovered that Father, too, had a problem with methamphetamine. Father was offered reunification services at disposition, whereas Mother was bypassed because two older children had been removed from her care and she had failed to reunify with them. (§ 361.5, subd. (b)(10).) As part of his reunification efforts, Father went into and out of drug recovery programs for several months after Son was detained, as will be described below.
Meanwhile, Son was initially put into foster care with his older half-brother, Benjamin. He is now placed in the home of his maternal aunt and uncle, where he is "happy [and] well adjusted." The couple is interested in adopting him and would ensure he has a continuing relationship with his paternal grandmother and with Benjamin, who is now in an open adoption.
II. DISCUSSION
Father contends the court should have extended reunification services until the 12-month review (or beyond) and asks us to set aside the order terminating reunification services and remand to the juvenile court with instructions to order additional services for Father. He also claims there was no substantial evidence to support the court's finding that reasonable services had been offered to him. He asks us to reverse the order setting a hearing under section 366.26 and stay the hearing if necessary.
A. Extension of Services
Reunification services for a child under age three at the time of initial removal are limited to "a period of six months from the dispositional hearing . . . , but no longer than 12 months from the date the child entered foster care . . . ." (§ 361.5, subd. (a)(1)(B).) In such a case, if the "parent failed to participate regularly and make substantive progress in a court-ordered treatment plan," the court is authorized to set a hearing under section 366.26 at the six-month review. (§ 366.21, subd. (e)(3).) So long as the Department has provided reasonable services, extension of reunification services beyond six months is authorized only if the court finds a "substantial probability that the child . . . may be returned to his or her parent or legal guardian within six months." (§ 366.21, subd. (e)(3).) Section 361.5 creates a presumption that services will be provided only for six months in the case of such a young child. (Tonya M. v. Superior Court, supra, 42 Cal.4th at p. 843; Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1027.) Father was warned about this prospect at the disposition hearing.
Under section 361.49, Son entered foster care on the date of the jurisdictional hearing, which was held on February 17, 2016. Thus, although Father's six-month review hearing did not occur until November 18, 2016, Father had only until February 17, 2017—not six months from the six-month review—to regain custody of Son before services would terminate. (See § 361.5, subd. (a)(1)(B); Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 846.)
We review the court's factual findings for substantial evidence (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688 [substantial probability of return]; Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762 [adequacy of reunification services]), and its ultimate rulings on whether services should be extended beyond six months and whether to set a hearing under section 366.26 under the abuse of discretion standard (V.C. v. Superior Court (2010) 188 Cal.App.4th 521, 528; see also, San Joaquin Human Services Agency v. Superior Court (2014) 227 Cal.App.4th 215, 223; In re William B. (2008) 163 Cal.App.4th 1220, 1229).
In this case the court found there was "no reasonable probability" of return within the time allowed, as it was "unlikely that the child could be returned to the parents by the 12-month hearing," that is, by the expiration of twelve months after Son entered foster care. (§ 361.5, subd. (a)(1)(B).) (See fn. 3, ante.) The court concluded, "we are a long ways from reunification." Those findings were supported by substantial evidence, including the social worker's expert testimony that Father would not be ready to reunify with Son within the time allowed. Father does not challenge these findings, but suggests the court had inherent extra-statutory power to extend services beyond the 12-month limit, citing In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1794-1796 (reunification period extended beyond statutory limits where department cut off services following mother's suicide attempt) and In re Dino E. (1992) 6 Cal.App.4th 1768, 1777-1779 (court had discretion to order services beyond the 18-month maximum where no reunification plan had been developed for the parent). In both of those cases, the child welfare agency had failed to provide reasonable reunification services. That is not the case here. And even assuming the court has the power to extend services beyond the statutory limits (In re J.E. (2016) 3 Cal.App.5th 557, 563-566), this is not the exceptional case in which such power should have been exercised.
Father had used methamphetamine for nine or ten years before Son was born. When the Department began its investigation, Father insisted he no longer had a drug problem, but when asked to cooperate with a hair follicle test to assess his use of drugs, he appeared for the test with head and body hair shaved. In the first two months after Son was detained, Father completed an assessment for alcohol and drugs and enrolled in a men's recovery group called "Men Seeking Safety," but he only attended four meetings. He initially tested clean for drugs, but he did admit to the social worker in late March that he had relapsed three times on methamphetamine since Son was detained, and he was then using Suboxone, a medication approved for the treatment of opiate dependency (People v. Noyan (2014) 232 Cal.App.4th 657, 661-662), for which he had no prescription and which he claims he bought "[o]ff the streets."
Father testified he only relapsed twice during that period.
After an unsuccessful attempt at recovery in a sober living house in March 2016 (and after absconding from the program), Father was slow to start into another drug treatment program. He testified he went through detox in May, but the social worker was unaware of that. He did not enter another drug recovery program until June 13, 2016, when he was accepted into the outpatient Dual Recovery Program due to a diagnosis of post-traumatic stress disorder (PTSD). He soon relapsed with methamphetamine and decided he would rather go into a detox program. He entered detox on June 23, but left the next day. On July 12, Father said he did not want to do inpatient treatment and wanted a safe and sober residence instead because he had a new job. He was not, in fact, in a sober home during that time, but was renting a room from a friend. It was not until August 18, 2016—three and a half months after disposition—that Father finally settled into an inpatient drug program at Crossroads, and even then he left the program twice before the six-month review.
The Department questions this diagnosis, since the doctor told Father the diagnosis would have to be revisited after he had at least six months of clean time.
Father testified at the six-month hearing that he entered detox twice during the dependency and completed treatment both times.
Thus, Father was offered, but did not take full advantage of, help with his drug problems. His longest period of continuous sobriety during the dependency was approximately 30 or 40 days. He was quite clearly ambivalent about acknowledging his drug habit and resistant to giving it up. At the six-month hearing he finally admitted he had a substance abuse problem. His self-realization, or owning up to his problem, came too late. He had not taken any proactive steps to ensure that his recovery would be sustained, such as finding a sponsor or working through a 12-step program. He had relapsed less than three weeks before the six-month hearing. Thus, his recovery was fragile and intermittent at best. He was hoping to complete a 90-day inpatient program at Crossroads before the 12-month anniversary of Son's entry into foster care. (See fn. 3, ante.) But that would not give him sufficient time to demonstrate he could remain clean and sober after exiting the program, or that he could find stable housing and appropriately safeguard Son from Mother's addiction.
In addition to drug treatment services, Father's case plan called for mental health counseling (or a men's anger management group), parenting education, and frequent visitation to promote bonding. Father was referred to both Humboldt County Mental Health and the Humboldt Family Service Center as mental health resources. The upshot of those referrals was an unsuccessful and short-lived stint in the Dual Recovery Program in June 2016.
There is some indication in the record that Father and Mother have a tumultuous and possibly violent relationship. Father disputes any suggestion he has engaged in domestic violence.
With respect to parenting classes, Father testified he had successfully completed the Safe Care Parenting Program, and the court accepted his representation, though the social worker dismissed its utility in Father's circumstances because that program was designed to address parental needs when they had custody of the child in their home. Shortly before the six-month hearing, Father had attended one class at another parenting program, Love and Logic, and was signed up for continuing participation in a six-week program.
We note, however, the Safe Care program was specifically recommended in Father's case plan.
Mother and Father initially attended supervised visitation together, but Father sometimes used the visits as a forum for complaints about the Department, and sometimes left to talk on the phone or text. Father also tended to defer to Mother during visits, thereby failing to inspire confidence in his own parenting skills. As of late March 2016, Father had missed five of sixteen visits. To allow Father to develop his independent parenting skills, he was offered independent visits with Son beginning in August 2016, but he missed half of the scheduled visits.
The court found Father had not complied with his case plan and had made only "minimal" progress toward eliminating the causes necessitating court intervention. It also found he (1) had not "consistently and regularly contacted" Son, (2) had not made "significant progress in resolving the problems that led to [Son's] removal," and (3) had not "demonstrated the capacity and ability to complete the treatment plan objectives, or provide for [Son's] protection, physical and emotional well-being and any special needs." These findings were made in accordance with then-extant rule 5.710(c) (effective January 1, 2015), which identified those three factors as contributing to the decision whether there was a "substantial probability" of timely reunification. The findings were supported by substantial evidence, and in turn supported the court's decision to terminate reunification services. The court did not abuse its discretion.
As of January 1, 2017, these three factors have been eliminated from rule 5.710. They are nevertheless relevant to the inquiry whether there is a substantial probability of return.
B. Reasonable Services
The juvenile court found by clear and convincing evidence that the Department had offered reasonable services to Father. (§ 366.21, subd. (g)(1)(C)(ii).) We review that finding for substantial evidence. (In re Monica C. (1995) 31 Cal.App.4th 296, 306; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) That standard is met in this case.
The six-month review report outlined the services provided to Father, which included coordination of visits with Son and observations of parent/child interactions; transportation assistance (bus tickets and gas cards); frequent communication with the social worker; arrangement of random drug testing; referral to alcohol and drug assessment and treatment at several programs, including detox. As noted, the Department also referred Father for mental health services and parenting classes. The services offered were individualized to meet Father's needs. (See In re Dino E., supra, 6 Cal.App.4th at p. 1777; In re Christina L. (1992) 3 Cal.App.4th 404, 416; In re Michael S. (1987) 188 Cal.App.3d 1448, 1458.)
Father complained at the six-month hearing that he frequently was unable to get hold of the social worker when he needed help. He described calling, texting and showing up at her office unannounced, with frequent lack of success in contacting her. This appears to be his primary complaint in the writ proceeding. The social worker, on the other hand, complained that Father did not stay in contact with the Department prior to his entry into Crossroads. The social worker testified at the hearing that she usually communicated with Father by text message, and she sometimes had trouble contacting him because his cell phone number frequently changed. The social worker sometimes called Mother's cell phone when she wanted to reach Father because Father tended to lose his cell phones. Thus, any difficulty in communication was not strictly the social worker's fault. We see no basis for a finding that reasonable services were not offered simply because of the relatively ordinary communication difficulties described by Father. Father's own testimony shows he was generally able to contact someone at the Department who could help him, even when his ongoing social worker was not available. This did not amount to a failure to provide reasonable services.
Father also testified he had PTSD, for which reasonable services arguably had not been provided. The Department countered that he had been referred to Humboldt County Mental Health and the Humboldt Family Service Center as mental health resources, and he had been admitted to a Dual Recovery Program. He then relapsed out of the program. He does not appear to raise this issue in the petition. In any case, the court addressed the mental health issue at some length in making its findings.
III. DISPOSITION
The petition is denied on the merits. (§ 366.26, subd. (l)(1)(C); rule 8.452(h).) The request for a stay of the March 20, 2017 hearing is denied. Our decision is final as to this court immediately. (Rule 8.490(b)(2)(A).)
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Rivera, J.