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Tina v. Superior Court of Orange County

Court of Appeals of California, Fourth District, Division Three.
Nov 13, 2003
G032796 (Cal. Ct. App. Nov. 13, 2003)

Opinion

G032796.

11-13-2003

TINA C., Petitioner; v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties In Interest.

Donna P. Chirco for Petitioner. No appearance for Respondent. Benjamin P. de Mayo, County Counsel, and Mark R. Howe, Deputy County Counsel for Real Parties in Interest. Law Offices of Harold LaFlamme, Harold LaFlamme and Linda ONeil for the Minors.


Tina C. petitions for a writ of mandate to compel the superior court to vacate its order made at the 12-month review hearing scheduling a permanency hearing (Welf. & Inst. Code, § 366.26), as to her children, Stacie, Cody, and Justin. She contends she substantially complied with her case plan and there was a reasonable probability the children could be returned to her by the 18-month review. In the alternative, she argues the reunification services offered were inadequate. We conclude the courts findings are supported by substantial evidence and deny her petition.

I

In May 2002, petitions were filed to declare then 17-year-old Nicole, 14-year-old Stacie, four-year-old Cody, and two-year-old Justin dependent children under section 300, subdivisions (b) [failure to protect] and (j) [abuse of sibling]. The petition alleged that the familys home was unsanitary and unsafe, Tina had an unresolved drug abuse problem, and she had lost custody of three other children in 1996 and 1999 due to her drug abuse and general neglect of those children. Nicoles and Stacies father was deceased. Codys fathers whereabouts were unknown. Justins father, Eric K., participated minimally in the proceedings below, but is not a petitioner.

The children were placed in protective custody at Orangewood Childrens Home. At the detention hearing, the court ordered Tina and Eric to undergo drug testing twice weekly and they were allowed monitored visitation. The maternal grandmother was permitted unmonitored visitation, but the court ordered such visitation to occur away from her home, where Tina and the children had been residing.

Orange County Social Services Agencys (SSA) first report for the jurisdictional and dispositional hearing, filed June 19, recounted Tinas long history of substance abuse. She underwent drug rehabilitation programs in the prior dependency proceeding, but never reached a level where her other children could be returned to her care. Those children now resided with relatives. Tina was still involved with Justins father, Eric, who she met in a residential drug rehabilitation program in 1998. Both had extensive criminal records, but Tinas was almost entirely comprised of drug-related offenses.

On April 10, Tina and Justin were passengers in a car that was stopped by police. Drugs and drug paraphernalia were found in the car. Tina denied the drugs were hers, but later admitted to the social worker she had been using methamphetamine that day with the cars driver. As a result of the April 10 incident, SSA had become involved again with the family.

On May 16, 2002, a social worker went with police to conduct a welfare check on the children. They were residing with Tina in the three-bedroom home of the maternal grandmother. Tina and the three children had moved in with the maternal grandmother about a year earlier. Prior to that, Tina had been living with her boyfriend, Eric. A maternal uncle resided at the house with his two daughters. None of the adults in the household were employed; the only income was social security checks received by the maternal grandmother and Tinas two daughters (who received social security due to their fathers death). The house was filthy, and there was inadequate food. The police officer believed the house was unsafe for the children. When asked how she intended to provide food for her children over the weekend, Tina replied she would start looking for a job the following week.

SSA initially recommended reunification services for Tina and Eric. Tina admitted that if she continued to associate with drug users, she would continue abusing drugs. She was told she must participate in a drug rehabilitation program and undergo drug testing. The children continued to be placed at Orangewood Childrens Home. The social worker rejected the maternal grandmother as a possible placement, because Tina and the maternal uncle were still residing there, and the house was still in a filthy condition.

In a supplemental report filed on July 8, SSA recommended against reunification services for Tina because she continued to use drugs. Between June 7 and July 2, she missed three drug tests and had two positive tests. The social worker also reported in the prior dependency proceeding Tina was discharged from the perinatal program due to noncompliance, had routinely missed drug tests or tested positive. The children continued to reside at Orangewood Childrens Home. The social worker had located a foster home that would take both boys, but it was out of the county and Tina would not approve the placement. Subsequently, Cody and Justin were placed in separate emergency shelter homes.

In its August 20 report, SSA continued to recommend against services for Tina. Tina had missed all seven scheduled drug tests between July 5 and July 26. On July 12, Tina asked the social worker to refer her to a residential drug treatment program. Tina told the social worker she had been too busy to drug test. On July 24, Tina told the social worker she was on the waiting list for a drug program called The Villa. Nicole had been moved to an emancipation group home, and Stacie to an emergency shelter home.

By September, SSA was recommending services for Tina. Tina had missed two more drug tests, but on August 8 she had begun The Villa Residential Drug Treatment Program. Tina was doing very well in the drug program, all random drug tests were negative, and the program staff described Tina as cooperative. Cody and Justin had been placed together in a foster home. Tina visited the children consistently, and there was a close bond between Tina and all the children.

The combined jurisdictional and dispositional hearing took place on September 11, 2002. Tina and Eric plead no contest to the allegations of the petition. The court declared the children dependents of the juvenile court. It approved reunification service plans for Tina and Eric. Tinas service plan required, among other things, that she refrain from use of alcohol and drugs and submit to drug testing twice a week. She was advised that a missed test would be considered a positive test. She was also required to obtain and maintain suitable housing for the children, be capable of meeting her childrens physical, emotional, medical and educational needs, attend counseling, complete a parenting class and drug treatment program, and participate in Narcotics Anonymous (NA) and Alcoholics Anonymous (AA). Erics service plan was similar.

The January 3, 2003, report filed for the six-month review hearing, indicated Tina had been making some progress. She had moved to a sober living home in November 2002 after successfully completing The Villa. She had obtained a part-time job at a Mervyns store and had begun parenting classes. However, Tina continued to miss many scheduled drug tests. Eric, who had been incarcerated, began drug testing on December 17. He missed three tests and tested positive once. The social worker was concerned about Tinas inability to separate herself from Eric. Tina admitted she could not stay drug free if she associated with drug users, but continued her relationship with Eric, who continued to use drugs.

Nicole, had turned 18 and was no longer part of the dependency proceeding. Stacie was moved to the home of her paternal grandmother. Justin and Cody remained in the same foster home. Justin suffered from asthma. The foster mother reported his behavior problems had improved greatly.

In a January 15 supplemental report, SSA again noted that Tina and Eric had missed many drug tests, although they provided proof of attendance at NA and AA meetings. Tina was unable to commit to participation in a counseling program because of her work schedule, although Tina and Eric were now both unemployed. The court found the parents had made some progress with their service plans. It continued services and scheduled a 12-month review hearing.

By the 12-month review, SSA recommended terminating services and scheduling a permanency hearing. Tina had left the sober living home in order to live with Eric. They lived in motels, but claimed they might be moving in with a friend in a couple of months. SSA referred Tina for housing assistance, but she "never got the voucher." Tinas and Erics employment was sporadic at best. Tina had completed her parenting program, but Eric had been terminated from his parenting program. Between January and May, Tina missed seven drug tests. As to each of four tests she missed on Fridays, she scheduled same day tests the following Monday. Eric missed 10 drug tests and tested positive once.

The social worker had warned Tina against moving from the sober living home to live with Eric. Nonetheless, Tina moved in with Eric knowing it could adversely impact her ability to get her children back. The social worker noted Tinas missed drug tests coincided with Erics missed drug tests. Tina had made progress with her case plan early on, but had now returned to her old patterns. At a June 25 meeting with Tina and Eric, Tina told the social worker she would not leave Eric because she was dependent on him for support.

The children were in the same placements. The boys continued to have weekly family visits, but the foster mother and therapists reported the boys behavior would usually regress after the visits. At a June visit, Tina used corporal punishment on Cody, despite having been told not to. The children had been having unmonitored visitation with the maternal grandmother. The social worker learned that despite the court order that visits not take place in the maternal grandmothers home, she had been taking them there. The maternal grandmother did not think the order was necessary. The caretakers indicated they wanted to care for the children permanently under a legal guardianship arrangement. The social worker initially opined legal guardianship was the appropriate plan for the children.

In early July, the social worker learned that Eric had been arrested after having physically assaulted Tina. Tina advised the social worker she had left Eric and was homeless. Between June 3 and July 8, Tina had missed six drug tests.

On August 5, SSA reported Eric was still in jail and Tina was still homeless. Tina had not found a job and claimed her homelessness prevented her from participating in drug testing. Tina said Eric had been physically abusing her throughout their relationship. Nonetheless, she visited Eric in jail "to see `where they stood in their relationship."

Cody and Justins foster mother now expressed interest in adopting them, provided she could continue to get assistance with certain issues. Justin had developed a sleep disorder, sometimes going for days without sleeping. During these times he would become aggressive, regress in toilet training, and have nosebleeds. Additionally, Justin had begun to act out sexually after the maternal grandmother took him for visits with Tina. Stacies paternal grandmother indicated she would take Stacie under legal guardianship only if Tinas parental rights were terminated. The maternal grandmother wanted a kinship adoption of all the children.

On August 19, the foster mother reported to the social worker that the boys regressed significantly after having had unmonitored visits with the maternal grandmother. Now almost four-year-old Justin wet his bed and defecated in his pants for a week after a visit with the maternal grandmother, and he began masturbating openly after the visits. The maternal grandmother continued to violate the courts order by taking the boys to her house. SSA asked that visitation with the maternal grandmother be monitored.

At the 12-month review hearing, the social worker was cross-examined by Tinas counsel. The social worker acknowledged that Tina had completed her parenting class and the drug rehabilitation program and had not been asked to complete additional programs. She agreed that of seven tests missed during the last period of supervision, several had been made up the following Monday and were negative.

Tina testified she was ready to have the children returned to her care. She had recently moved back to the maternal grandmothers home, where her daughter Nicole also resided. The maternal uncle and his two daughters also continued to live there. Therefore, Tina asserted, she now had housing for the children. Stacie could share a room with the other girls. Cody and Justin would share Tinas room with her. Additionally, Tina testified she had a job for the past two weeks. She claimed she quit going for drug tests when SSA recommended termination of services.

Tina conceded that since January 2003, she had three jobs—one for one week, one for three weeks, and one for two months. Also since January 2003, she had lived in various places including the sober living home, three different motels with Eric, and then stayed with various friends before moving back in with her mother.

The court found reasonable services had been provided to the parents and there had not been substantial compliance with the service plan. The court terminated reunification services. It found there was no reasonable probability the children could be returned to Tina by the 18-month review date, which in this case would fall in November. The court ordered that a permanency hearing be set. Tina filed the instant writ petition.

II

Tina contends the court erred by terminating reunification services and scheduling a permanency hearing. She argues she substantially complied with her case plan and there was a substantial probability the children would be returned to her within the next review period. We conclude the courts findings are supported by substantial evidence.

If the court does not return the minors to parental custody at the 12-month review hearing, it must do one of three things: (1) continue the case for up to six more months for a permanency review hearing (commonly called the 18-month review because the hearing may not take place more than 18 months from the date the child was originally taken from parental custody) (§ 366.21, subd. (g)(1)); (2) order a section 266.26 permanency hearing (§ 366.21, subd. (g)(2)); or (3) order that the minor remain in long-term foster care (§ 366.21, subd. (g)(2)).

The court may continue the case to an 18-month review hearing "only if it finds that there is a substantial probability that the child will be returned to [parental custody] . . . and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent . . . ." (§ 366.21, subd. (g)(1).) To find a substantial probability of return, the court must 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 childs 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 childs safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1)(A).) We will affirm the courts findings if supported by substantial evidence. (Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 398.)

The record supports the courts finding Tina did not substantially comply with her case plan. Tina relies on the fact that she completed aspects of the case plan. She visited consistently, completed parenting classes and a drug rehabilitation program, and attended counseling. But the record supports the conclusion she had not made significant progress in resolving the problems that led to her childrens removal from her custody. Those problems included the lack of stable and safe housing, the lack of means to provide for her children, and her ongoing drug problems. Tina had lost custody of other children in a prior dependency proceeding, in which she also had completed a drug rehabilitation program. Yet she obviously had not been rehabilitated—she continued to use drugs. Despite knowing the importance of ceasing her drug use as a condition of getting her children back, throughout this dependency proceeding Tina routinely missed drug tests. Tina readily admitted she would continue to use drugs if she continued to associate with drug users. Nonetheless, Tina remained in a relationship with Eric who continued to use drugs. Tina was unable to maintain steady employment or housing—she had three short-lived jobs and numerous residences in the preceding eight months. She never bothered to follow up on referrals for public housing assistance. The trial court correctly found Tinas progress was inadequate.

Tinas argument there was a substantial probability the children could be returned to her custody by the time of an 18-month review is likewise without merit. In this case, the 18-month outer limit for services was only three months away. Nothing in this record suggests Tina was likely to have her children back by then. Indeed, at the time of the 12-month review hearing Tina was right back where she was when the proceedings started. She was living with her mother, in the house that had been deemed by police and social workers to be so filthy and piled with clutter that it was unsafe for the children. Although Tina believed the maternal grandmothers home to be perfectly fine for her children, the court had specifically ordered they were not to be taken there. Tina offered no viable alternative. She had only just begun a job and had ceased drug testing. She had in no way demonstrated the capacity or ability to provide for her childrens safety, protection, and physical or emotional well-being.

III

Tina argues, in the alternative, that the services offered were inadequate. We disagree.

The court may not order a permanency hearing unless it finds by clear and convincing evidence that reasonable services have been provided to the parent. (§ 366.21, subd. (g)(1).) We will affirm the trial courts finding if supported by substantial evidence. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 971.)

The gist of Tinas argument is that the services could not have been reasonable if, in the end, she failed to reunify. Tinas argument relies on her assertion that she substantially complied with the case plans major components, i.e., she completed a residential drug rehabilitation program and parenting classes. Since both requirements were met by the six-month review, Tina urges, if the social worker still had concerns about Tinas continuing to use drugs, the social worker should have ordered Tina to complete another rehabilitation program.

The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) Furthermore, the fact there could have been more or better services, does not render the services offered inadequate. (Elijah R. v. Superior Court, supra, 66 Cal.App.4th at p. 969.)

Tina was offered reasonable services and indeed availed herself of many of them. But Tina did not make sufficient progress so as to demonstrate she could in fact remain drug free and provide an appropriate home for her children. She left her sober living home to move in with Eric, who continued to use drugs, even though she was told it could adversely affect her ability to get her children back. Tina missed many drug tests, each of which counted as a positive test. She did not maintain stable employment or housing, and did not avail herself of public housing assistance offered to her. And by

the time of the 12-month review, she was no closer to having the children returned than at the very outset. The trial courts findings are supported by the evidence.

The petition is denied.

WE CONCUR: MOORE, J. and FYBEL, J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.


Summaries of

Tina v. Superior Court of Orange County

Court of Appeals of California, Fourth District, Division Three.
Nov 13, 2003
G032796 (Cal. Ct. App. Nov. 13, 2003)
Case details for

Tina v. Superior Court of Orange County

Case Details

Full title:TINA C., Petitioner; v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent…

Court:Court of Appeals of California, Fourth District, Division Three.

Date published: Nov 13, 2003

Citations

G032796 (Cal. Ct. App. Nov. 13, 2003)

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