IN RE L.W.

No. A151101.

In re L.W., a Person Coming Under the Juvenile Court Law. H.B., Petitioner, v. THE SUPERIOR COURT OF DEL NORTE COUNTY, Respondent; DEL NORTE COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Real Party in Interest.

Court of Appeals of California, First District, Division Two.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

MILLER, J.

H.B. (Mother) is serving a four-year term for child endangerment (Pen. Code, § 273a). She petitions this court for extraordinary relief from dependency court orders terminating reunification services as to her three-year-old son L.W. (Minor) and setting a hearing under Welfare and Institutions Code1 section 366.26 to select a permanent plan for Minor. Mother's sole argument is that the dependency court erred in finding that she received reasonable reunification services from the Del Norte County Department of Health and Human Services (Department). We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

A. Minor is Detained

Minor was just over two years old on June 1, 2016, when the Del Norte County Sheriff contacted the Department and asked a social worker to meet deputies at the residence where Minor lived with his parents, maternal grandmother and maternal uncle. When the social worker arrived, Minor's father (Father) was being arrested on drug-related charges; Mother and Minor were not present.

The social worker entered the house, and found household trash, dirty diapers, dishes with old food, toys and debris throughout. The old food was within the child's reach. One room was so full of dirty clothes that the social worker could not see the floor. The door would only open part way, and there was a child's toy and cup nearby. The bedroom where Minor slept with his parents was filled with dirty clothes and dishes with old food within Minor's reach. Next to the bed was a child's cup with a white milky substance that had separated. A small refrigerator on a nightstand contained open pudding containers with a spoon in one, and over-the-counter children's medicine. There was mold on containers in the refrigerator and on a layer of a liquid substance on the bottom of the refrigerator. A drawer in the nightstand contained a prescription bottle with pills in it. On a chair, within reach of the child, was a purse that contained a bag of methamphetamine. The main bathroom was filthy, with feces, dirty clothes, dishes with old food, toys and trash on the floor next to the child's toilet. There were rodent feces on the kitchen floor, and there was a hole next to the refrigerator where rodents had chewed through, with a knife on the floor next to the hole.

The yard had debris and toys throughout. A shed in the yard contained toys, and over a pound of methamphetamine, some of which was within reach of the child. The shed also contained two digital scales, a radio scanner, numerous methamphetamine pipes, and a loaded shotgun. Minor's uncle told law enforcement that Mother and Father sold methamphetamine from the shed.

When the social worker asked where Mother and Minor were, the grandmother directed her to a friend's house down the road, saying that Mother had left earlier in the day. The social worker went to the friend's house, where the friend told her she had not seen Mother since the day before. Over the next month, the social worker attempted without success to locate Mother and Minor.

On June 28, 2016, the Department filed a petition in Del Norte County Superior Court pursuant to section 300, subdivision (b) (failure to protect), alleging that Minor was at substantial risk of abuse or neglect based on the condition of the house and ready access to controlled substances at the residence.2 The Department also alleged that Mother had absconded with the child.

The dependency court held a detention hearing on July 11, 2016, and ordered Minor detained, although Minor and Mother had not been located. A jurisdictional hearing was scheduled for August 1, 2016, but was continued because Minor and Mother had still not been located. A felony warrant was outstanding for Mother.

B. Jurisdiction and Disposition Hearings

On August 27, 2016, law enforcement located Mother and Minor at the family residence. In an unsuccessful attempt to flee, Mother threw Minor over a fence, injuring him. Mother was arrested on various charges including possessing controlled substances for sale (Health & Saf. Code, § 11378), keeping a place to sell controlled substances (Health & Saf. Code, § 11366), and willful cruelty to a child (Pen. Code, § 273a, subd. (a)).

Minor was taken into protective custody and placed in a foster home. His hair tested positive for methamphetamine. At the age of two and a half, he had developmental delays and flat affect, and he was subsequently diagnosed with autism. Minor's service providers believe that the diagnosis is attributable, in part, to the neglect of Minor's needs before he was placed in foster care.

On August 31, 2016, the Department filed a subsequent petition pursuant to section 342 alleging that Mother's "[f]leeing law enforcement with the child in her arms resulted in physical abuse when he was thrown and put the child in extreme danger," and that therefore Minor came under section 300, subdivision (a) (serious physical harm), as well as subdivision (b) (failure to protect).

At a status hearing on September 12, 2016, the dependency court found the allegations in both the initial and subsequent petitions sustained by clear and convincing evidence, ordered visitation to be arranged for both parents at the jail where they were incarcerated, and scheduled a further hearing on September 19 for findings and orders on jurisdiction. The dependency court took jurisdiction over Minor at the September 19 hearing, and set a disposition hearing for September 26. Disposition was later continued to October 3, which was after the date on which Father was to be sentenced.

At the October 3, 2016 disposition hearing, Father's counsel reported that Father had been sentenced to six years in prison and would be transferred to San Quentin. With respect to Mother, the dependency court adopted the Department's proposed case plan after discussion on the record about the reunification services that would be provided to her. Mother's case plan included services to be provided while she was in custody and then after she was released. Parenting education services to be provided included the Department sending her Powerful Parenting assignments while she was in custody, which she would complete and return to the social worker for review. Mother was also to participate in the Incredible Years Parenting Class while in custody and upon release, and to participate in a program after release intended to "educate parents about their job as their child's teacher and role model." Family preservation services were to be provided in the form of Mother participating in Safety Organized Practice meetings upon release from custody "to develop a positive support system that includes friends and family." Substance abuse services included the Department sending Mother self-paced independent study workbooks while in custody, which Mother would return to the social worker for review. Also, Mother was to participate in any Alcohol and Other Drugs (AOD)/Narcotics Anonymous meetings while incarcerated, to complete an assessment immediately upon her release, and to participate in a testing system after release.

At the time of the disposition hearing, Mother was in jail and had not yet been sentenced; she believed she would be sentenced to one year in the county jail. The court set a hearing for November 7, 2016, to review the parents' case plan. At that hearing, Mother reported she was to be sentenced on November 15, so the court put the case back on the calendar for November 28. At the November 28 hearing, Mother was still awaiting sentencing, and reported that she had completed her parenting class at the county jail. After confirming with Mother's counsel that a case plan was in effect, that Mother was not then requesting any modification and that Mother did not oppose affirming the current plan, the dependency court affirmed the plan, and stated that if Mother was released, the court expected the matter to be put on calendar for a modification.

In January 2017, Mother was sentenced to serve 4 years in state prison for child endangerment (Pen. Code, § 273a). She was transferred from the Del Norte County Jail to the Chowchilla Women's Facility.

C. Six-Month Review Hearing

Mother was transported from prison to appear personally at the six-month review hearing, which was held on April 10, 2017. Mother testified that she completed her parenting class, completed a pamphlet, and was enrolled in AOD while she was at the county jail. She completed a second pamphlet at Chowchilla, returned it to the social worker, and had not yet received another. She was planning to enroll in substance abuse and parenting programs at Chowchilla. She had not missed any visits with her son.

Asked about her possible release date, Mother testified that she had "not been qualified for 33 percent," and that her "out date without [her] 33 percent is August of 2018." Asked if she knew of anything that would lead to an earlier release date, she testified that because she was "eligible for fire camp and A.C.P. programs, which is school," she was hopeful that she would be released in October 2017.

The dependency court found that Minor was under the age of three at the time of removal, that Mother made insufficient progress toward alleviating the causes necessitating removal, and found by clear and convincing evidence that reasonable services were offered or provided to Mother and that Mother "failed to participate regularly and make substantial progress in the court-ordered treatment plan." The court also found that there was no likelihood or substantial probability that Minor could reunify with Mother within the statutory period. The court terminated reunification services and scheduled a hearing pursuant to section 366.26 for June 26, 2017.

Mother timely filed a petition for writ of mandate, arguing that the Department "did not clearly and convincingly provide adequate and reasonable services" that were tailored to her as an incarcerated parent. The Department opposed the petition on several grounds, including that the Department met its burden to show that it offered reasonable reunification services.3

DISCUSSION

A. Applicable Law and Standard of Review

"`[F]amily preservation is the first priority when dependency proceedings are commenced.' (In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1112.) To that end, `[w]hen a child is removed from a parent's custody, the juvenile court ordinarily must order child welfare services for the minor and the parent for the purpose of facilitating reunification of the family.' (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843 . . .; see § 361.5, subd. (a).)" (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 174 (M.V.).)

Where the child is less than three years old at the time of removal from the family, as Minor was here, "the presumptive rule . . . is that `court-ordered services shall not exceed a period of six months from the date the child entered foster care.' (§ 361.5, subd. (a)(2); see In re Christina A. (2001) 91 Cal.App.4th 1153, 1160-1161.)" (M.V., supra, 167 Cal.App.4th at pp. 174-175.) Services are presumptively provided for 12 months to children over the age of three and their parents (§ 361.5, subd. (a)(1)), but the developmental needs of younger children "justif[y] a greater emphasis on establishing permanency and stability earlier in the dependency process `"in cases with a poor prognosis for family reunification."'" (M.V., supra, 167 Cal.App.4th at p. 175, quoting Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 611.)

"The status of every dependent child in foster care shall be reviewed periodically as determined by the court but no less frequently than once every six months." (§ 366, subd. (a)(1).) Section 366.21, subdivision (e)(3) requires specialized inquiries at the six-month review for children who, like Minor, are under the age of three at the time of initial removal. "First, the statute identifies specific factual findings—failure to participate regularly and make substantive progress in the court-ordered treatment plan—that if found by clear and convincing evidence, would justify the court in scheduling a .26 hearing to terminate parental rights." (M.V., supra, 167 Cal.App.4th at pp. 175-176.) "[T]his inquiry does not require the court to schedule a .26 hearing . . .[;] [i]nstead, it authorizes the court to set such a hearing if the required findings have been made." (Id. at p. 176.) Here, Mother does not contest the dependency court's finding that Mother failed to participate regularly and make substantial progress in her treatment plan.4

Section 366.21, subdivision (e)(3) also requires inquiries that "protect[] parents and guardians against premature .26 hearings. Notwithstanding any findings made pursuant to the first determination, the court shall not set a .26 hearing if it finds either: (1) `there is a substantial probability that the child . . . may be returned to his or her parent . . . within six months'; or (2) `reasonable services have not been provided to the parent.'" (M.V., supra, 167 Cal.App.4th at p. 176, quoting § 366.21, subd. (e).) "In other words, the court must continue the case to the 12-month review if it makes either of these findings. . . . The parent is also entitled to continued reunification services (with any necessary modifications) if the court makes either of these findings in favor of the parent." (Ibid.) The Department has the burden of proving that reasonable services have been provided by clear and convincing evidence. (§ 366.21, subd. (g)(1)(C)(ii); In re Monica C. (1995) 31 Cal.App.4th 296, 306 [evidence of reasonable services "`must be so clear as to leave no substantial doubt'"].) Here, Mother does not challenge the court's finding that there was no likelihood or substantial probability that Minor could reunify with Mother within the statutory period; she challenges only the court's finding that reasonable services were provided.

Reunification services for incarcerated parents, such as Mother, are governed by section 361.5, subdivision (e)(1), which provides that reasonable reunification services are to be ordered unless the court determines that services would be detrimental to the child. Reunification services for incarcerated parents are subject to the time limitations set forth in section 361.5, subdivision (a), as discussed above, and "may include, but shall not be limited to, all of the following: [¶] (A) Maintaining contact between the parent and child through collect telephone calls. [¶] (B) Transportation services, when appropriate. [¶] (C) Visitation services, when appropriate. [¶] (D)(i) Reasonable services to extended family members or foster parents providing care for the child if the services are not detrimental to the child. [¶] (ii) An incarcerated or detained parent may be required to attend counseling, parenting classes, or vocational training programs as part of the reunification service plan if actual access to these services is provided. . . ." (§ 361.5, subd. (e)(1).)

"In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all reasonable and legitimate inferences to uphold the judgment. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) `If there is any substantial evidence to support the findings of a juvenile court, a reviewing court is without power to weigh or evaluate the findings.' (In re Carrie W. (1978) 78 Cal.App.3d 866, 872.) [¶] The adequacy of a reunification plan and of the department's efforts are judged according to the circumstances of each case. (In re Michael S. (1987) 188 Cal.App.3d 1448, 1454.) . . . `[T]he record should show that the [department] identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the [mother] during the course of the service plan, and made reasonable efforts to assist the [mother when] compliance proved difficult. . . .' (In re Riva M. (1991) 235 Cal.App.3d 403, 414, italics deleted.)" (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1361-1362 (Ronell A.).) "[W]e . . . recognize that in most cases more services might have been provided, and the services which are provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969 (Elijah R.).)

B. Analysis

Substantial evidence supports the dependency court finding by clear and convincing evidence that reasonable services were provided to Mother. The record shows that the Department identified Mother's substance abuse and lack of parenting skills as placing Minor at risk of harm and neglect. There is ample evidence from Mother's testimony and the Departments' reports that Mother was provided with substance abuse counseling and parenting skills training intended to remedy the problems that led to Minor's removal, as well as with visitation services. Further, Mother testified that once she was "classified" at Chowchilla, she would be able to participate in additional substance abuse programs and a parenting class. The Department remained in contact with Mother and attempted to make contact with the family services coordinator at Chowchilla to inquire about the services and programs that would be available to Mother there. In these circumstances, we have no difficulty concluding that substantial evidence supports the dependency court's conclusion that the Department showed by clear and convincing evidence that it provided reasonable services to Mother. (See Ronell A., supra, 44 Cal.App.4th at p. 1362.)

Mother contends that the reunification services offered or provided to her were inadequate because jail visits for her "were insufficiently arranged"; because "[t]he social worker made little or no effort to make herself knowledgeable" about the circumstances in which Mother could avail herself of AOD services while in the county jail; and because the "social worker was unaware of what programs that may be available to [Mother] in the State Prison System to comply with reasonable efforts to allow her to reunify with her son." These contentions lack merit.

Mother's sole support for her claim that jail visits were "insufficiently arranged" is a portion of the Reporter's Transcript of a hearing held on September 12, 2016, just two weeks after Mother was taken into custody and the child was detained. At that hearing, Mother requested visits at the jail; the Department and the social worker agreed that would be appropriate; and the dependency court ordered visitation to be arranged, not to exceed two hours per week. And Mother subsequently had one hour per week of supervised visitation, in accordance with the jail's policy. Mother testified that she never missed a visit and had visited Minor the day of the six-month review hearing. She does not explain, and we cannot fathom, how the record here could support a claim that visits for her at the jail were "insufficiently arranged."

Mother's contention that the social worker was not adequately knowledgeable about AOD services at the jail is similarly puzzling. At a hearing on October 3, 2016, the social worker said she understood that AOD was not available at the jail, but there were other meetings that Mother could attend. But ultimately, Mother not only enrolled in AOD at the jail, but also completed substance abuse workbook assignments. In these circumstances, the social worker's statement at the October hearing does not undermine the Department's showing that it provided reasonable reunification services.

Mother's argument that the social worker was unaware of programs available to Mother in state prison rests in large part on portions of the Reporter's Transcript that concern the provision of services to Father in San Quentin at times when Mother was still in county jail, and had access to services. The social worker's statement that she had not investigated opportunities for Mother to be released early from Chowchilla does not show that Mother was not provided with reasonable services, nor does the social worker's failure to immediately send Mother a third pamphlet for study. Even if we assume that the Department could have sent Mother additional study materials more promptly, that would not mean that the services provided were unreasonable, particularly in the absence of Mother providing any authority or argument to show that the services provided were unreasonable. (See Elijah R., supra, 66 Cal.App.4th at p. 969.)

Because we conclude that substantial evidence supports the dependency court's finding that reasonable reunification services were provided to Mother, we will deny Mother's petition on the merits without addressing the Department's other arguments in opposition.

DISPOSITION

The petition for extraordinary writ is denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.450(a), 8.490(b)(2)(A).)

Richman, Acting P.J. and Stewart, J., concurs.

FootNotes


1. Statutory references are to the Welfare and Institutions Code unless otherwise stated.
2. The petition alleged that Father, as well as Mother, failed to protect Minor. Reunification services were terminated as to both parents in April 2017. Father's counsel filed a Notice of Intent to File Writ Petition on behalf of Father, and later informed this court that he would not pursue writ relief.
3. In addition, the Department argues that Mother forfeited her argument that she was not offered reasonable services because she did not raise it below. We reach the merits because Mother's argument that the dependency court's ruling is unsupported by substantial evidence is not waived by her failure to raise it below. (See In re Javier G. (2006) 137 Cal.App.4th 453, 464 ["when the merits of a case are contested, a parent is not required to object to the agency's failure to carry its burden of proof"].)
4. We observe that Mother testified that she participated in services provided to her. Participation in a case plan, however, does not fulfill the "requirement [that] a parent make substantial progress towards reunification with a three-year-old child within the statutorily prescribed time period of six months." (Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1029.)

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