Opinion
A150131
03-14-2017
Z.N., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Real Party 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J 16-00491)
Z.N. (Mother), mother of Z.H., petitions to challenge the juvenile court's October 24, 2016 order terminating reunification services and setting a hearing, pursuant to Welfare and Institutions Code section 366.26, for March 15, 2017. Mother contends that there is no substantial evidence supporting the juvenile court's decision declining to return Z.H. to her. Because the juvenile court's decision is supported by substantial evidence, we deny the petition.
Unless otherwise noted all statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Z.H. was initially removed from Mother's home on March 25, 2014. As explained in a status review report filed by the Alameda County Social Services, Children and Family Services Department (the Department), Mother called the police, stating that her family members were terrorists, that she could not trust anyone because they were out to get her, and spoke about witchcraft. Z.H., who was then about 16 months old, lived with Mother. The officers found no baby food in the house nor much food for an adult. Mother stated she had been diagnosed as schizophrenic, bipolar, and was suffering from postpartum depression. She had not taken her medication for approximately one month. A paternal aunt came to care for Z.H.
Although the police notified the father, Y.H., about the situation he did not come to care for the child. His lack of involvement during the pendency of the child welfare case has been consistent. In an October 17, 2016 report, the social worker responsible for the case reported that Y.H. "has not been in contact with the Bureau or attempted to be involved in [Z.H.'s] life." He is not a party to this writ proceeding.
The Alameda County Juvenile Court found two allegations pertaining to Mother to be true. First, her mental health issues affected her ability to safely care for her child, as evidenced by an involuntary psychiatric hold, her messy home, the lack of food for Z.H., and Mother's delusional statements. Second, she had substance abuse issues involving marijuana and alcohol, and she used these substances while taking prescription psychotropic medications.
On June 26, 2014, the Alameda County juvenile court, following recommendations made in the disposition report, ordered that mother be provided family reunification services. Her case plan required her to comply with medical and psychological treatment, obtain and maintain a stable and suitable residence for her and Z.H., show an ability and willingness to have custody of Z.H., maintain her sobriety, meet Z.H.'s physical, emotional, medical and educational needs, abstain from using illegal drugs, and comply with required drug testing. Her responsibilities included undergoing psychotropic medication evaluation and monitoring, submitting to a psychological evaluation, participating in therapy, completing parenting education, completing a residential substance abuse program, and submitting to substance abuse testing.
The record before us does not establish the elements of Mother's case plan as of the June 26, 2014 order. The Contra Costa County Children & Family Services Bureau's (Bureau) opposition asserts that these were the elements. The petition is silent on this issue. Mother's progress on these elements, however, is discussed in the December 9, 2014 status review report.
In preparation for the six-month status review, the Department recommended that reunification services be continued due to Mother's "partial" compliance with her plan. She was enrolled in a residential treatment program and completed her psychological evaluation. Some of the treatment recommendations were being addressed in her residential program, while others were deferred until her discharge. The residential program provided her individual therapy and medication. She received family therapy in conjunction with her therapeutic visits with Z.H. She had obtained Section 8 housing, but had not yet begun parenting education (which was unavailable at her residential treatment program). The juvenile court accepted the Department's recommendation to continue family reunification services for another six months.
Prior to a March 12, 2015 interim review, the Department recommended that Z.H. be returned to Mother's care with family maintenance services. Mother completed her residential treatment program on December 24, 2014. She attended Ujima House Outpatient Program five days per week and had been testing clean for drugs. Her visits with Z.H. were increasing. In January she had two eight-hour visits. In February she had overnight visits and an extended two-week visit was in progress in March. The Department concluded that Mother had demonstrated "significant progress" in mitigating the problems that led to removal.
At the August 25, 2015 review hearing, the Department recommended another six months of family maintenance services, albeit with some reservations. The social worker had difficulty communicating with Mother due, primarily, to Mother's failure to promptly respond to texts and voicemails. Mother had twice been discharged from her outpatient substance abuse program due to "attendance issues." She had also allowed her medication to run out. The Department reported that Mother's overall progress during this period was "minimal." She had not been actively involved in her substance abuse program and had not demonstrated her sobriety through testing. She had difficulty managing her psychotropic medications, which contributed to sporadic attendance at her outpatient program and her increased depression and anxiety. Despite a reduction in her attendance requirement, she was discharged from the outpatient program for attendance issues. Other aspects of Mother's plan, including parenting education, individual therapy, and Z.H.'s daycare, all remained to be addressed.
The report stated that Mother had to attend an outpatient program that included drug testing for at least three months. She had to attend parenting education and substance abuse counseling, and she still required "intensive case management services." She had yet to seek daycare for Z.H. The Department also wanted Mother to work with FIRST 5 Contra Costa County to obtain Z.H. age-appropriate services.
On September 3, 2015, the Bureau reported to the Department that Mother was acting strangely. She was not consistently coherent. Her eyes were droopy and she stated she was tired. Her landlord spoke with her regarding a report of a natural gas odor. When the Mother checked, she realized the gas to her stove was on. She speculated that she or Z.H. might have accidentally turned on the stove. Later that day the gas smell was gone and Z.H. appeared to be fine. Notwithstanding this incident and the reports of Mother's behavior and appearance, on September 15, 2015, the juvenile court adopted the Department's recommendation to continue family maintenance services and set a status review for February 2, 2016.
"Bureau" in this opinion refers to the Contra Costa County Children & Family Services Bureau. "Department" refers to the Alameda County Social Services, Children & Family Services Department.
In its December 17, 2015 interim review report, the Department again recommended continued family maintenance. Mother seemed to be doing well as of October 13, 2015, part way through the review period. She was participating in a new outpatient drug program, having her psychotropic medication adjusted by a psychiatrist, searching for an apartment, and participating in parenting classes. However, by November 2015 the situation was deteriorating. Mother was not responding to the social worker's repeated attempts to contact her. The worker made an unannounced home visit and concluded that Mother was attempting to mislead the Department into believing that she was actively participating in her case plan, when in fact, she had been placed on a list to be dropped from her parenting program due to her frequent non-attendance. Similarly, she was to be discharged from her outpatient drug treatment program because she missed ten group sessions and required drug tests. Mother was living in Contra Costa County. The Department suggested that if Mother continued to live in Contra Costa County, that the case be transferred there.
She made up four of the ten sessions.
She took one drug test during this period, which was positive for benzodiazepines. Mother claimed that she had a prescription for a benzodiazepine, but never provided it to verify her claim.
The status review report submitted in advance of the February 2, 2016 hearing recommended that Mother continue to receive family maintenance services, but agreed that the matter be transferred to Contra Costa County. The Department reported Mother's progress during the reporting period as "minimal," but suggested that if a social service department were closer to the family, it would be easier to provide the necessary intensive services. On May 2, 2016, the Alameda County juvenile court transferred the case to Contra Costa County for dependency status review. On May 19, 2016, the Contra Costa County juvenile court accepted the transfer. It noted Mother's poor testing and participation in services. The Bureau was directed to conduct an unannounced visit before the next hearing, set for June 8, 2016. On June 8, the Bureau reported it had made eight separate attempts to contact Mother. All were unsuccessful. The attempts included sending her letters, calling her, going to her apartment, and a health and safety check by the Sheriff. The Bureau learned from the apartment manager that Mother was a legal tenant, but the manager had not seen her since a May 10 court proceeding intended to address Mother's failure to pay rent. Although a payment plan was arranged, Mother had not complied with it. The most recent contact between Z.H. and a social worker before the June 8 hearing was on May 2.
In a memorandum filed June 21, 2016, the Bureau reported that Mother had come to court late on June 6, 2016, but had met with the social worker. Mother reported that she had financial difficulties because her SSI payments had been temporarily stopped. Nonetheless she paid her landlord $326 toward her rent. She reported that she completed an outpatient substance abuse program and she was in individual counseling and a parenting class. On June 10, however, the social worker conducted a home visit and Mother was not able to provide verification that she had completed a drug program or that she was in counseling. The social worker gave her referrals for drug testing and instructions regarding how to know if she had to submit a sample. On June 20, 2016, she missed her first drug test and the social worker was unable to contact her.
At the June 22, 2016 hearing, Mother initially failed to appear. Mother was ordered to appear the next court day, with notice given via her attorney. When she did not appear on June 23 either, the court ordered her to submit to on-demand drug testing and continued the matter to June 29. On June 28, the Bureau filed a supplemental petition, alleging that Mother missed drug tests on June 20 and 24, 2016, and an on-demand drug test on June 27. On June 22, she had a "presumptive" in-court test and was positive for cocaine. It recommended that Z.H., who had been living with Mother, be placed in foster care. An accompanying memorandum explained that after testing positive for cocaine on June 22, Mother missed her drug test two days later. Furthermore, despite telephonic and in-person attempts, the social worker had been unable to contact Mother on June 27 and 28, 2016. On June 29, the juvenile court detained Z.H., finding there was a substantial danger to her and that remaining in her Mother's home was contrary to her welfare. The matter was continued to July 21, 2016, for a jurisdictional hearing on the supplemental petition. At that hearing the court ordered that all visits between Mother and Z.H. were to be supervised, and continued the matter to September 8 for a contested jurisdictional hearing. Furthermore, on July 21, Mother's in-court drug test was positive for THC.
In advance of the September 8 hearing, the Bureau filed a memorandum which documented Mother's admission that she had relapsed and used cocaine once or twice and marijuana once. She explained that the " 'only thing that helped her get out of bed was the marijuana.' " She claimed to have been drug-free since July 8, 2016, and entered residential substance abuse treatment on July 21. Mother's drug treatment counselor reported that Mother was participating in treatment and recommended that she remain in residential treatment. Mother had been referred for random drug testing on June 6, 2016, and in addition to a series of "no shows" had two positive tests. But she had been tested eight times since she entered residential treatment and all of those tests were negative. The report also indicated there had been a delay in arranging for therapeutic visitation, but Mother and Z.H. had one visit which went well and felt " 'very natural.' " The juvenile court sustained the allegation of the amended petition and set a disposition hearing for October 17, 2016.
In its October 17 Disposition Report, the Bureau recommended that Mother's services be terminated and that the court set a section 366.26 hearing to terminate her parental rights. Notwithstanding Mother's sporadic history of compliance with her plan and the Bureau's recommendation, the report indicated that since entering residential treatment Mother had 13 negative drug tests. She had been sober for 96 days and her counselor reported that she was "doing really well." Mother was seeing a mental health therapist and a psychiatrist and felt good on her current psychotropic regime. Due to her mental health history, the Bureau was considering three possible programs for Mother—Center Point, Project Pride, and Sheppard's Gate. Although Mother was doing well, the Bureau believed "the real test will be when she is out in the community again." The Bureau wanted to be certain she had optimal support in the community. Mother was aware that due to "timeframes," the Bureau was recommending that services be terminated but hoped she would be given one more chance.
The juvenile court held the continued, contested disposition hearing on December 1, 2016. Mother was participating in a residential program, Project Pride, and requested that Z.H. be placed with her. She argued that Z.H. would be safe there, but conceded that further services could not be extended in this dependency case because of "the timeline." The Bureau's counsel summarized the case, saying that everything that might have been tried in the case had been tried. At least initially, Mother was very cooperative and engaged, but she had repeated failures at various treatment programs. Despite her ups and downs, "things really fell apart" when she was in the community, without the structure of residential programs. The Bureau argued that Z.H. "deserves to know that she has some stability and permanence and it's time to terminate services. . . and let her have that path." Z.H.'s counsel echoed that sentiment, saying that Mother does well when in a structured program, but has been unable to maintain her progress in the community. She predicted that if Mother were given another chance at a different program, the outcome would be similar.
The juvenile court expressed its view of the status and course of the dependency as follows:
So there's a reason why the legislature has set timeframes in these sorts of cases, because they've considered the impact on a child to have disruption in the child's life for prolonged periods of time. Although people like to say, oh, children are so resilient, the science really does prove otherwise, especially over long periods of disruption. . . .
Unfortunately, this case that came to us so late in the proceedings, so much time had elapsed by the time it got to Contra Costa County, that things were really set in motion, placing us here today with no time left. . . .
And mom, she's a lovely person. And she seems to have a heart of gold. And I know that she loves her daughter very, very much and I know this is really hard for her. However, I have to consider the timelines where we are and safety and security, well-being of this child and the child's permanence.
And as much as I have so much empathy and sympathy for mom, I do have to consider the law, consider where we are and consider [Z.H.'s] need for permanency especially at her age.The juvenile court adopted the amended findings based on the Bureau's November 3 memorandum, which included terminating services, and it set a section 366.26 hearing for March 15, 2017.
Mother filed a notice of intent to file a writ petition on December 8, 2016. Briefing was completed on January 22, 2017 and oral argument was deemed waived on February 7.
DISCUSSION
I. THE JUVENILE COURT'S DECISION TO REMOVE Z.H. FROM MOTHER'S CARE, TERMINATE SERVICES, AND SET A SECTION 366.26 HEARING IS SUPPORTED BY SUBSTANTIAL EVIDENCE.
In order to remove a minor from her parent there must be clear and convincing evidence of a substantial risk of harm to the minor if she remains at home. Furthermore, there must be no reasonable alternative to protect the minor other than removal. (§ 361, subd. (c)(1).) The parent's inability to provide proper care and potential harm to the child if left with the parent must be shown by clear and convincing evidence. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) The focus of the law is to prevent harm to the child. (In re J.S. (2014) 228 Cal.App.4th 1483, 1492.) The parent does not need to be dangerous to the child and the child does not need to actually be harmed before removal is appropriate. (In re T.V. (2013) 217 Cal.App.4th 126, 135.) In making its determination, the juvenile court may consider the parent's past conduct and current circumstances. (In re John M. (2012) 212 Cal.App.4th 1117, 1126.) We review the juvenile court's decision for substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1038.) Thus, we do not reweigh evidence or exercise independent judgment. Our sole task is to determine if there are sufficient facts to support the trial court's findings. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688-689.)
The juvenile court's ruling reflects its concern for the time that had elapsed in this case. Z.H. was born in October 2012 and the court terminated services in December 2016 when Z.H. was approximately four years old. She was first removed from her home in March, 2014, and the family began receiving reunification services that June.
In March 2015, approximately nine months later, Z.H. was returned to her mother and the family began receiving family maintenance services. In late June, 2016, Z.H. was again removed from her mother. Thus, Mother received 30 months of combined family reunification/maintenance services. In other words, Mother has received some form of services for more than half of Z.H.'s life. Despite this substantial support, she only achieved mixed success and only while she was in residential programs. Mother was at times receptive and motivated to benefit from treatment, but repeatedly failed. Furthermore, each time she attempted to live independently in the community, she deteriorated dramatically. She relapsed to using drugs, terminated reliable contact with the Bureau, and attempted to mislead the authorities about her participation in her case plan. Thus, Mother never demonstrated that she could independently care for herself and Z.H. on a sustained basis. The August 25, 2015 Status Review Report—written when Mother was caring for Z.H. and receiving maintenance services—says she partially complied with the psychotropic medication evaluation/monitoring requirement of her plan. But her compliance with the individual therapy requirement, the parenting education requirement, substance abuse testing, and substance abuse outpatient treatment were all "minimal."
Hearings on subsequent and supplemental petitions are conducted in accordance with California Rule of Court, Rule 5.565. It provides in pertinent part: "If a dependent child was returned to the custody of a parent. . . at the 12-month review or the 18-month review or at an interim review between 12 and 18 months and a 387 petition is sustained and the child removed once again, the court must set a hearing under section 366.26 unless the court finds there is a substantial probability of return within the next 6 months or, if more than 12 months had expired at the time of the prior return, within whatever time remains before the expiration of the maximum 18-month period." (Cal. Rules of Court, rule 5.565(f) (emphasis added).) Here, Z.H. was initially removed from her Mother on March 24, 2014, and returned to her within 12 months on March 12, 2015. She was again removed in June 2016, so the juvenile court was to determine whether there was a substantial probability Z.H. could be returned within six months. Given Mother's chronic issues, her pattern of initial success in residential programs, followed by failure, and demonstrated inability to live independently, substantial evidence supports the juvenile court's conclusion that it was not substantially probable that Z.H. could be safely returned to Mother within six months.
We recognize that this result is particularly heartrending, especially in light of Mother's temporary success during the period she was receiving services. But the cases Mother relies upon to demonstrate error are readily distinguished from hers. Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 258 is a due process challenge to a court's application of a lesser standard of proof than "clear and convincing evidence." (Id. at 245.) Thus, it is inapposite. Mother cites it for the principle that when a positive, nurturing relationship exists between parent and child, the state's parens patriae interest favors family preservation rather than termination of parental rights. Nothing in Cynthia D., however, suggests termination is error and the state may not use its inherent power to protect a minor whose mother is unable to demonstrate the sustained capacity to provide for and safeguard her children.
Similarly, the juvenile court here did not violate the principle expressed in In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400 (Yvonne W.), where demonstrating that a parent is less than ideal and did not benefit from reunification services as much as possible was insufficient to justify terminating parental rights. In Yvonne W. the mother was sober for more than a year, maintained stable and appropriate housing where she safely cared for her child. The mother had done everything the agency asked of her, including eliminating the conditions that led to the agency's involvement. (Id. at p. 1401.) In short, in Yvonne W., the mother's rehabilitation was far more evident and sustained than Mother's is here. When confronted with lengthy histories of substance abuse, such as Mother's, periods of sobriety of six to seven months are often insufficient to outweigh the possibility of relapse. (See e.g., In re J.C. (2014) 233 Cal.App.4th 1, 7 [seven months of sobriety insufficient to overcome years-long drug abuse]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 [200 days of sobriety insufficient to overcome chronic substance abuse].)
Finally, the petition accurately highlights Mother's temporary accomplishments but neither recognizes nor addresses Mother's various setbacks and difficulties. Its factual recitation omits a major concern of the juvenile court and presents a significantly distorted view of the record. Relying solely on the petition, one would have no idea that Mother had any difficulty in complying with her case plan. Similarly, nowhere does the petition discuss the juvenile court's concern about the "timeline," or the need to limit a parent's potential time to rehabilitate herself in order to accommodate her child's need for permanency and stability—a major issue argued before and weighed by the juvenile court. Ignoring the primary issues that shaped the lower court's decision is not effective.
DISPOSITION
For the reasons given above, the petition for an extraordinary writ is denied. Our decision is immediately final as to this court. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
/s/_________
Siggins, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Pollak, J.