IN RE Y.A.

No. F074548.

In re Y.A., et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. EDUARDO A., Defendant and Appellant.

Court of Appeals of California, Fifth District.


Attorney(s) appearing for the Case

Melissa A. Chaitin , under appointment by the Court of Appeal, for Defendant and Appellant.

John P. Doering , County Counsel, and Carrie M. Stephens , Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

THE COURT*

Eduardo A. (father) appeals from the juvenile court's order terminating his reunification services as to his five children at the six-month review hearing. We affirm the court's order.

FACTUAL AND PROCEDURAL BACKGROUND

Father and Amy L. (mother) are the parents of five children: daughters Y.A., A.A. and Alaina A., born in May 2007, February 2009, and August 2014, respectively; and sons Eduardo A., Jr. and Martin A., born in April 2011 and December 2012, respectively.

The family came to the attention of the Stanislaus County Community Services Agency (Agency) on February 2, 20161 at about 11 p.m., when police responded to a domestic violence disturbance at an apartment mother shared with her sister, Suzanne L. Police found the home to be in a deplorable condition and deemed it unsafe to occupy. Seven children were in the apartment — two of whom were Suzanne's and the rest father's and mother's. The adults in the home were intoxicated and unable to identify the children to police. The only edible food in the home was a bag of dinner rolls. There were electrical hazards in the kitchen, which had a significant amount of water on the floor. Marijuana growing equipment was being stored in the bedroom and a large machete was on the floor, accessible to the children. It was clear to the social worker who was called to the scene that the children could not reside in the home.

Shortly after midnight, father showed up at the front yard of the apartment and said he was there to pick up his children. Father said he did not live in the home and blamed the landlord for its condition. Father appeared to be under the influence of drugs or alcohol, as evidenced by his slurred speech, unsteady gait, and inability to clearly pronounce his children's names. Father wanted the children to go with their grandmother, but he could not provide any information for her and said he would need to drive over to her house. The social worker told father it was not safe to release the children to him, and he left while the social worker re-entered the home to tend to one of the children.

The children were dirty and did not have adequate winter clothing. Y.A. told the social worker she only ate at school, not at home, because her parents needed to buy beer. Mother was arrested for child endangerment and the children were placed into protective custody.

In the late morning on February 3, father came to the Agency with the paternal grandparents. Father again said the home's condition was the landlord's fault and the family was planning on moving out anyway. Father thought he and mother were good parents. He did not think that having no food in the home was a problem as he "feeds his children pizza." He liked to drink and "have a good time," and he liked to smoke marijuana, but that was not a problem. The paternal grandparents appeared shocked at what father was saying and attempted to reprimand him for not keeping a clean home, but father brushed off their comments. Father initially agreed to drug test, but then stated "I'll just do it another day."

Mother and father both tested positive for THC and benzodiazepines on February 4. They denied having a drinking problem and denied using any drugs other than marijuana and alcohol on occasion. Father admitted taking a "Xanax bar" for pain that resulted from being "jumped" in front of his home, but he did not have a prescription for it.

Based on these facts, the Agency filed a petition alleging the children came within the provisions of Welfare and Institutions Code section 300, subdivision (b).2 The juvenile court ordered the children be detained and ultimately placed together with the paternal grandparents.

Both parents were given immediate service referrals. Father was referred for individual counseling and parenting education at Sierra Vista, and a substance use disorder (SUD) assessment. Father completed his SUD assessment on February 8. He tested positive for THC and was referred to day treatment at the Stanislaus Recovery Center (SRC). He was provided with an intake appointment for February 17. Both parents continued to blame the landlord for the home's condition. The Agency was concerned that they had not accepted responsibility for allowing the children to live in unsafe conditions, much of which could not be blamed on the landlord.

At the March 25 combined jurisdiction and disposition hearing, the Agency recommended that the children be adjudged dependents and the parents offered reunification services. Father's proposed service plan consisted of: (1) individual counseling; (2) parenting education; (3) a substance abuse assessment and recommended treatment; and (4) random drug testing.

The Agency submitted further case notes which indicated that father had been attending his substance abuse classes regularly, but had been "verbally non-compliant." He had made statements such as "I am still going to smoke weed, I'm not going to stop," and his THC levels were rising. On one occasion, he walked out of class after the counselor asked him to read aloud and when he refused, told him to leave if he did not want to participate. Father told the social worker for the first time that he could not read and he was too embarrassed to tell the counselor. The social worker told him his inability to read would not keep him from participating in treatment. The social worker called father's counselor and told her about this; the counselor said she would look into the matter. Mother's THC levels had also risen after she began drug treatment.

The parents both submitted offers of proof. Father's included statements that he had a cannabis card, which expired in June 2015, due to chronic pain in his legs caused by a plate and screws, and he stopped smoking cannabis four weeks before the hearing. His attorney also asserted that father walked out of the SRC class because he was told to leave as he was noncompliant, father told the teacher and her manager he was not able to read, and he believed he told the social worker as well.

Both parents were willing to submit on disposition. Father's attorney stated that father understood he needed to participate in his case plan and, in light of the information that father was unable to read, asked that his services be tailored so he can participate and complete his classes "with his disability or the situation being what it is." The juvenile court responded that it expected accommodations would be made. County counsel added that the social worker had contacted Sierra Vista with the information so his services there could be tailored.

The juvenile court found the allegations of the petition true, the children were persons described by section 300, subdivision (b), adjudged them dependents, removed them from parental custody, granted reunification services to the parents, and adopted the proposed service plan. The juvenile court set a progress review hearing for June 22, as well as a six-month review hearing.

In a report prepared for the progress review hearing, the social worker stated that the children remained with the paternal grandparents, where they were well cared for and appeared to be well adjusted. The grandparents were supportive of the reunification process, but were willing to adopt the children should reunification fail. Father's attendance at SRC was good, but his participation was "mediocre." Father's SRC counselor told him on May 24 that he needed to participate more often in groups. He did not have a sponsor and was not actively working his 12-step program. The social worker noted that father was a man of "very few words," but he was not uncooperative or disrespectful. He was slow to start his Sierra Vista counseling — he completed his intake on May 2 and was assigned a counselor. He started parenting classes on May 5, and had completed four parenting groups.

The social worker noted that during monthly compliance meetings, mother would answer father's questions pertaining to his case plan compliance. The social worker reminded mother that father needed to answer his own questions. The social worker explained to the parents the time sensitivity of the case and, should they remain an intact couple and only one parent make substantial progress to address the issues that led to removal, the social worker would have to recommend termination of reunification services to both parents. The social worker reminded them about the importance of demonstrating commitment to completing their case plan and making substantial progress by the next court date in order for reunification to be successful.

At the June 22 progress review hearing, the juvenile court found the parents' progress to be "good."

In a report prepared for the six-month review hearing, dated August 31, the Agency recommended continuation of mother's reunification services but termination of father's. Mother was engaged in her court-ordered programs and committed to reunifying with the children. While mother was living with father and his sister, she told the social worker on August 26 that she did not wish to continue in a relationship with him. She was upset with father's lack of effort to engage in services and no longer wanted to associate with him. Mother wanted to move forward without him. The social worker told mother she either needed to move out of the home or prove that father had moved out. Mother had obtained full time employment, but she decided to quit, as the job interfered with her attendance at Sierra Vista and she wanted to focus on her court-ordered treatment plan.

Father did not start individual counseling at Sierra Vista until August 30; he had two sessions and canceled one due to his work schedule. Father told the counselor he and mother were saving money to get a place of their own. According to the counselor, father was in complete denial that there was a problem with the home when the children were removed. Father told the counselor the Agency was making a big deal out of nothing because the house was not dirty, and the mattress was standing against the wall because they were going to "bomb" the house for roaches. Father continued to deny any responsibility for Agency intervention and said he would hire a private attorney to "sue CPS."

Father had completed the group parenting classes and eight of the ten packets, but father's counselor was inclined to have him repeat the group sessions because he had not been able to recall or articulate what he had learned. Specifically, he was unable to articulate or understand what impact the environment had on the children and their self-esteem. Father continued to deny that the home was dirty and did not appear to gain insight about the neglect and danger the children were facing.

Father successfully completed the SRC outpatient program on June 20, with no further recommendations, and he needed to be reassessed for aftercare/NA/AA meetings to maintain his sobriety. On July 19, the social worker submitted an AOD referral for father to the walk-in SUD assessment clinic, but father did not show up or call. During a home visit on August 12, father said he was not able to use the restroom to provide urine for a random drug test. Father admitted he was not currently working on his 12-step program and did not have a sponsor. Father said he would come to the Agency on August 15, but he did not appear or call. The social worker left several messages for father to let him know he was out of compliance with his case plan and he needed to test at the lab. Father, however, did not appear at the lab or call. The social worker also called father on several occasions to tell him he needed to come into the walk-in clinic for a SUD assessment, but he did not appear or call. The social worker had not heard from father since August 12.

The children continued to live with their paternal grandparents and were doing exceptionally well. The grandparents continued to be committed to adopting the children should they be unable to return to their parents' care.

Visitation had been going well and had progressed from visits at the paternal grandparents' home to visits in the community. When father failed to test or participate in treatment, however, the social worker told mother that father could not participate in the community visits and he needed to call the social worker to arrange visitation due to his non-compliance.

The report stated that there continued to be a detriment if the children were returned to parental custody. The social worker believed mother would be successful with additional services, but not father. While father had been given numerous referrals and made a couple of attempts at drug treatment, he had yet to make any progress in addressing his addiction. The social worker did not believe anything would change as long as father was in denial of his personal addiction. The social worker did not know if father was committed to his sobriety and to reunification, as he failed to contact the social worker, he had not been compliant, and his whereabouts were unknown. The social worker, however, would reconsider the recommendation as to services if father obtained a walk-up SUD assessment and followed all recommendations before the review hearing. The social worker concluded by saying that offering father additional services would only hinder the children's permanency, and terminating services would be in their best interest, as father was not committed to addressing his drug and alcohol problem that led to their removal.

The Agency filed an addendum report on September 12. Father completed the AOC assessment on September 8, which recommended father complete a drug/urine analysis and enter a residential treatment program. Father provided a urine sample for the drug test, but the sample was too small and the temperature of the urine was questionable. Father said he would drink water and test again. A social worker took father to the bathroom used to collect urine and had him raise his shirt. Underneath was a small green bottle taped to father's right side; father said his urine was in the bottle and he brought it because he has difficulty urinating. The social worker told father he did not believe him and asked him to urinate with the social worker next to him. Father continued to turn away from the social worker as he gave a urine sample; while the social worker was certain father did not use the green bottle, the social worker suspected there might be another container. The second sample was small and invalid because of its temperature. Father exclaimed numerous times that he was clean and asked the social worker not to tell anyone. Father continued to be in denial of his addiction and in complete denial of the issues that led to the children's removal.

A second addendum report was filed on September 26. In a September 9 telephone conversation with an AOD specialist, father declined to take the residential treatment center's phone number, continually stated he was going to "get a lawyer," used foul language, stated he "does not care about the recommendation," and said he went to the lab the day before. On September 23, an AOD specialist reported that father's hair follicle test, conducted on September 15, showed that there was 4.3 ng/ml of marijuana metabolite in father's hair, which was consistent with smoking daily.

The six-month review hearing was continued several times and ultimately held on October 14. The Agency called father as a witness. Father testified that he did not believe the children should have been taken into protective custody and did not believe they were at risk of harm while in his care. Father had not re-enrolled in a substance abuse program. He said he did what he was supposed to do at SRC and he was working. Father denied testing positive for marijuana after he attended SRC, even though he knew the hair follicle test was positive. Father confirmed he had been asked to go into inpatient treatment and had not done so. Asked whether he denied using marijuana in the last six months, father responded, "The last six months? I smoke weed." Asked if he agreed that he smoked marijuana, father answered, "Not marijuana. I took edible for my leg. I got my Cannabis card. I got my paperwork." Father said he first got his cannabis card 12 or 13 years ago, and he renewed the card a few weeks ago. The card was valid for a year. He got it from a cannabis clinic, not his primary care doctor. Father said he told the substance abuse assessor that he had a card, but he was referred to inpatient treatment because the card had expired.

Asked if there were periods of time that he did not have an active card, father responded that his card "was good the whole time. I had CPS involved the whole time." He admitted his old card was expired, but "not for that long," maybe a couple months. Father pulled his old card from his pocket — it expired in June 2015. He got his new card around September 6. Father believed he had been entirely honest about his substance abuse issues. He agreed he provided a tampered urine sample to the social worker, but he believed he was being honest. He submitted the urine from the bottle because he could not "pee," as he was "wired up" from drinking an energy drink. He strapped the bottle to his body under his shirt to keep the urine warm, because if the urine was cold, the social worker would think it was not his. Father denied trying to fool the social workers, but spontaneously stated, "The way I see it, I see marijuana ain't bad. I seen people worse, doing worser drugs and have their kids."

Father denied that he was intoxicated or under the influence of drugs on the night the children were detained. He explained they probably thought he was drunk because he stutters when he speaks English. He was offered and declined a Spanish language interpreter. He continued to blame the apartment's condition on the landlord.

On cross-examination by his attorney, father testified that he stutters because he has a problem speaking in English and he was in special education class when he was in school. Father claimed he finished the SRC program, individual counseling, and parenting education. Father said he had a job, but he quit because the social worker "wouldn't let me work" as he needed to spend more time with his children. Father visited the children at his parent's house — both he and the children enjoyed the visits. Father had recently renewed his cannabis card — it has an expiration date of September 6, 2017. Father did not have a primary care physician because his doctor kicked him out of the clinic when father told the doctor he "wouldn't do a good job." He has a medical marijuana card because he has metal plates and screws in his legs, and his feet get swollen and hurt so he cannot sleep or walk. Marijuana helped him. Father was willing to participate in services, continue visiting the children, and do anything the Agency asked of him.

On redirect examination, father testified he was not willing to go to inpatient treatment, stating "I don't need it." Father admitted he was still attending group sessions to complete the parenting component of his plan. Father agreed the environment in the home was harmful for the children, but when asked why his answer had changed from his previous testimony, father responded that it was "not fair we got this with my kids. I got there with my dad to get my kids. I get them. It's against the law. You have to give the kids to me or my dad. That's against the law." Father did not agree that the children should have been taken into protective custody because he thought they should have been returned to him.

Mother testified she had broken up with father six days before the hearing. She did so because she did not want to lose her kids. She thought that would happen if she stayed with father because the Agency did not want her around him if his rights were terminated. She did not think that father was bad, but she had "to do what I have to do." Mother wanted father to be a part of the children's lives. She believed the children would suffer were he not involved with them.

The children's Court Appointed Special Advocate (CASA) told the court that she did not think it was in the children's best interest to terminate father's services, as they were attached to him. The CASA had been present at a family visit, along with the social worker and the Agency interpreter, where all five children were in the same room. While father was engaged with the social worker, the two younger kids started to fight and before the CASA needed to intervene, mother stopped them appropriately, which the CASA thought showed appropriate parenting. The CASA did not know if father was able to articulate what he had been learning. She had seen the children play with father at the visit and when she visits the children, they ask about both parents and state they want to return home to them. The CASA thought it would benefit the children if father were given more time.

In arguments to the court, father's attorney asserted that father had made some progress, as he had attended parenting and individual counseling, completed the SRC program, and was visiting the children. Father's attorney also asserted it was not clear father had received reasonable services, as father testified he had been in special education classes, stuttered, and had other issues, and people were not sure he understood the situation. The attorney contended the Agency should reevaluate the services father "might need to be able to understand those sorts of things[,]" as well father's need for another program based on him having a medical marijuana card. Father's attorney asked the juvenile court to continue services and order the Agency to reevaluate what father actually needed to be able to make progress.

County counsel responded to the reasonable services argument, asserting that it appeared from the reports that father was provided additional services, and this was the first time the issue had been raised. County counsel did not think there was evidence, other than father's own statements and his inability to testify well, that he had the kind of disability that required additional services not on his case plan.

In its ruling, the juvenile court found it concerning that after almost eight months of services, father did not feel the children should have been removed and did not comprehend the dangerous condition in which they were found. The juvenile court noted that at the time of the removal, both parents were under the influence and unable to provide care for the children, and while father was "shaking his head no," both parents were positive for THC and benzodiazepine, yet father continued to maintain he did not have any issues. The juvenile court did not understand why it was necessary for father to engage in the "elaborate deception" on September 8 if he did not have an issue and had gotten his new medical marijuana recommendation card on September 6. The juvenile court questioned how it could find there was a substantial likelihood the children could be returned to father's care within the next five months when father's attitude was that he would not do anything except parenting classes. With respect to reasonable services, the juvenile court did not believe there was any evidence that the services were not reasonable and therefore it did not find a lack of reasonable services.

Accordingly, the juvenile court did not feel it had much choice but to approve and adopt the Agency's findings and recommendations, which it did. The juvenile court found a substantial likelihood the children would be returned to mother's care within 12 months from date of entry into foster care and she had made significant progress in resolving the issues that led to the children's removal. As to father, the juvenile court found that while he had regularly and consistently visited the children, he had not made significant progress in resolving the issues, nor had he demonstrated the capacity or ability to complete the objectives of the treatment plan within 12 months from the date of entry into foster care. The juvenile court continued mother's reunification services and terminated father's services, and found that reasonable services had been offered to father. The juvenile court approved the case plan, noting it continued to provide father with weekly visits.

DISCUSSION

When a child is removed from parental custody, the juvenile court must (except in certain circumstances) order the social worker to provide reunification services to the parent. (§ 361.5, subd. (a); In re Jesse W. (2007) 157 Cal.App.4th 49, 59 (Jesse W.).) For a child who is under three years of age at the time of removal from custody, court-ordered services must be provided for a period of six months from the disposition hearing, but no longer than 12 months from the date of the jurisdiction hearing. (§§ 361.5, subd. (a)(1)(B), 361.49.) Where, as here, there is a sibling group with a child under the age of three and the group's members were removed from parental custody at the same time, the court may exercise its discretion to terminate services for some or all of the sibling group after six months of services. (§§ 361.5, subd. (a)(1)(C), 366.21, subd. (e).)

A review hearing is held six months after the initial disposition hearing. (§ 366.21, subd. (e).) If a child was under three years on the date of initial removal or is a member of a sibling group described in section 361.5, subdivision (a)(1)(C), "and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26[3] within 120 days. If, however, the court finds there is a substantial probability that the child, who was under three years of age on the date of initial removal or is a member of a sibling group described in . . . [section 361.5, subd. (a)(1)(C)], may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing." (§ 366.21, subd. (e)(3).)4

In this case, the children were removed from parental custody at the same time and the youngest child, Alaina, was under three years old on the date of initial removal. Father was offered six months of reunification services as required by section 361.5, subdivision (a)(1)(B). The record supports the juvenile court's finding that father failed to participate regularly and make substantive progress in his court-ordered case plan. While father attended parenting classes and individual counseling, and completed the SRC outpatient program, he had not made any progress in resolving the problems that led to the children's removal, as he refused to acknowledge the problems even existed. He blamed the landlord for the apartment's condition and did not believe his marijuana use interfered with his ability to care for the children. He refused to enter an inpatient treatment program, claiming he did not need it, and engaged in an elaborate ruse to avoid submitting a urine sample for drug testing.

Father admits that he was slow to start and demonstrate progress in his court-ordered plan, but asserts he regularly participated and made progress taking into account his "unique limitations," and consistently and regularly visited the children. Father asserts the juvenile court failed to consider the evidence of his limitations that impacted his ability to articulate and explain what he had learned, his inability to read, his trouble communicating in English, and his progress in his communication skills, in determining whether he failed to regularly participate and make substantive progress in his court-ordered plan. Father asserts that considering the heightened clear and convincing evidence standard by which the juvenile court was required to make its finding, the evidence was insufficient to support the finding.

Even though the juvenile court was required to make its finding by clear and convincing evidence, we review the record in the light most favorable to respondent to determine whether it discloses substantial evidence to support the juvenile court's finding, bearing in mind the heightened standard below. (Cf. In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) In his argument, father ignores the evidence that shows he was in denial of his problems and refused to participate in drug treatment despite his assessed need for it, which cannot be attributed to any limitation he may have. On this record, we are not persuaded that the juvenile court erred in finding father failed to participate regularly and make substantive progress in his court-ordered treatment plan.

Father contends that even if his own efforts were inadequate and his progress limited, the juvenile court's decision to terminate his services was an abuse of discretion because it was in the children's best interest that father receive services concurrently with mother, as he was progressing in services consistent with his abilities, was visiting the children, and played an important role in their lives. That mother continued to receive services does not compel the juvenile court to continue father's services. (Jesse W., supra, 157 Cal.App.4th at pp. 59-60 [the court's determinations concerning services are made as to each parent individually; the court must evaluate, at each review hearing, "the efforts or progress toward reunification made by each parent individually by considering `the extent to which he or she availed himself or herself to services provided'"].)

Here, eight months after the children were detained, father's participation in his service plan was limited. He refused to enter inpatient treatment and to submit urine tests. He had participated in only two individual counseling sessions. He was in denial about the level of risk he presented to the children and did not believe he had a problem. While father testified he was willing to do what the Agency asked, he also testified he refused to comply and blamed his problems on others, thereby demonstrating a resistance to services and an inability to take responsibility. Under these circumstances, the juvenile court was not required to continue father's services. In other words, the court did not abuse its discretion by not extending reunification services to father for another six months.

DISPOSITION

The juvenile court's order is affirmed.

FootNotes


* Before Gomes, Acting P.J., Peña, J. and Smith, J.
1. Subsequent references to dates are to dates in 2016 unless otherwise stated.
2. Undesignated statutory references are to the Welfare and Institutions Code.
3. Section 366.26 provides the mechanism for termination of parental rights, and the selection and implementation of a permanent plan for the dependent child. (See In re S.B. (2009) 46 Cal.4th 529, 532.)
4. While section 366.21, subdivision (e) does not specify the procedure for a case where termination of services is contemplated for one parent but not the other, the court in Jesse W. concluded the juvenile court is not required to continue to offer services to a parent who has made little or no attempt to reunify, regardless of whether it sets a section 366.26 hearing. (Jesse W., supra, 157 Cal.App.4th at pp. 63, 65.)

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