M.C. v. SUPERIOR COURT OF DEL NORTE COUNTY

No. A151539.

M.C., 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 One.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

MARGULIES, Acting P.J.

M.C. (Mother) petitions this court for extraordinary writ review of a juvenile court order setting a hearing under Welfare and Institutions Code section 366.26 for her children, K.C. and C.C. She contends there was insufficient evidence to support the juvenile court's (1) finding that she was provided reasonable services, and (2) termination of reunification services. We disagree and deny the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

In September 2015, Mother was arrested for possession of a controlled substance, possession of drug paraphernalia, possession of marijuana over 28.5 grams, possession for sale, receiving stolen property, and carrying a dirk or dagger. The Del Norte County Department of Health and Human Services (Department) concurrently filed dependency petitions regarding Mother's two children, C.C., who was then five years old, and K.C., who was then 11 years old. In October 2015, both children were declared dependents of the Del Norte Superior Court, and family reunification services were offered.

In June 2016, the court held a six-month review hearing. Because Mother had been sentenced to state prison, the Department recommended services be terminated as it was "`unknown what services would be available or offered' while she [was] incarcerated." (M.C. v. Superior Court (2016) 3 Cal.App.5th 838, 842.) The juvenile court agreed with the Department, ordered services terminated, and set the matter for a permanency hearing under section 366.26. (M.C., at p. 842.) Mother filed an extraordinary writ, which this court granted. (Id. at p. 851.) We concluded the "12-month reunification period[] in section 361.5, subdivision (a)(1), [is] mandatory and can only be cut short through the procedure set forth in section 388 or at the six-month review hearing if the court finds by clear and convincing evidence one of three circumstances [listed in section 361.5, subdivision (a)(2)] exists," neither of which occurred. (Id. at p. 849, fn. omitted.)

Mother was released from prison in late November 2016. Prior to her release, the juvenile court approved a case plan for Mother. The case plan identified Mother's "substance abuse addiction" and "criminal life" as placing the children at risk. To address these concerns, the case plan identified key areas of responsibility for Mother, which included participating in mental health services, alcohol and other drugs (AOD) program, and safety organized practice (SOP) meetings, complying with probation, and obtaining resources to provide a stable and safe home.

After her release, Mother was referred to the Department's Mental Health Branch (Mental Health) and AOD. Her social worker also established a regular visitation schedule with her children, provided telephone minutes and transportation to appointments, and assisted Mother in obtaining a deposit for a trailer.

In June 2017, the juvenile court conducted the 12-month review hearing. The social workers noted various positive developments: Mother's demeanor had improved, and she regularly attended visitation and did well with her children. That said, the review hearing identified a number of concerns regarding Mother's compliance with her case plan. Most notably, Mother continued to struggle with her sobriety. Mother tested positive for methamphetamine on at least four occasions during the review period. She did not attend AOD, and was banned from an alternative substance abuse program, Daily Bread. Mother subsequently attended a third substance abuse program, Celebrate Recovery, at least three times in April 2017, although it is unclear whether she has continued to attend.

Mother also allowed her initial referral to Mental Health to expire. She did not meet with a mental health counselor until March 2017. Even then, the counselor testified he scheduled a weekly meeting with Mother, but had only met with her five or six times.

As a result of her ongoing drug use, Mother was incarcerated multiple times for parole violations. In the month prior to her 12-month review hearing, Mother became noncompliant with probation for failing to appear for drug testing and had not met with her mental health counselor for approximately three weeks. She also was in the process of being evicted from her housing for nonpayment of rent.

Following the 12-month review hearing, the juvenile court found reasonable services had been provided to Mother, she had "made insufficient progress toward alleviating . . . the causes necessitating placement," and the children's return to Mother would "create a substantial risk of detriment to [their] safety, protection, or physical or emotional well-being." The court ordered reunification services to Mother terminated, and set a hearing under section 366.26. Mother timely sought writ review.

II. DISCUSSION

A. Reasonable Reunification Services Were Provided

The purpose of reunification services is to place the parent in a position to gain custody of the child. (In re Karla C. (2010) 186 Cal.App.4th 1236, 1244.) The law governing the provision of reunification services was summarized in Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415: "Family reunification services play a critical role in dependency proceedings. [Citations.] Reunification services should be tailored to the particular needs of the family. [Citation.] . . . [¶] The `adequacy of reunification plans and the reasonableness of the [Agency's] efforts are judged according to the circumstances of each case.' [Citation.] To support a finding reasonable services were offered or provided, `the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult. . . .' [Citation.] `The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.'" (Id. at pp. 1425-1426.) We review the juvenile court's finding of reasonableness for substantial evidence, which requires us to "review[] the evidence in a light most favorable to the prevailing party and indulg[e] in all legitimate and reasonable inferences to uphold the court's ruling." (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.)

In light of the petition allegations, the Department adopted a reunification plan directed at substance abuse, mental health, and establishing a safe and stable residence. This plan included referrals to Mental Health and AOD. In contending reunification services were not adequate, Mother focuses on a single aspect of the reunification program: the AOD referral. Mother relies on the testimony of her probation officer, who stated Mother was not permitted to attend AOD. As a result, Mother argues the case plan was not tailored to meet her needs.

The record is unclear as to whether Mother was actually able to attend AOD. While her probation officer testified Mother was not permitted to attend, the probation officer did not know why Mother was prohibited. Mother's social worker, however, believed Mother was allowed to attend AOD. The social worker testified Mother had previously been banned from AOD because she was using marijuana. However, Mother was no longer using marijuana, so the social worker believed Mother's nonattendance at AOD was her choice.

Even if Mother could not use the AOD referral, the Department identified and offered two other substance abuse programs, Daily Bread and Celebrate Recovery. However, she failed to take advantage of these alternatives. Mother was banned from Daily Bread because she was accused of selling drugs to other attendees, and her participation at Celebrate Recovery appears to have been sporadic. Nor is there evidence that Mother would have been more successful in AOD than these alternative programs. Her mental health counselor noted Mother "just is not at that place where she's very receptive to the feedback or directions or the suggestions of treatment providers. . . ." While her mental health counselor also sought to work with Mother on substance abuse issues, she did not begin attending counseling until March 2017, and then only attended five or six sessions despite having a weekly appointment.

Mother also never raised her potential ban from AOD with the Department or her social worker during the review period. Instead, Mother only expressed negative sentiments about the quality of AOD when her social worker sought to discuss the program. Parents have an obligation to timely contest provisions of reunification services. They may not "wait silently by until the final reunification review hearing to seek an extended reunification period based on a perceived inadequacy in the reunification services occurring long before that hearing." (Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093.) If Mother believed the Department's referral to AOD was inappropriate, she was obligated to raise this issue before the 12-month review hearing. She failed to do so.

Substantial evidence supports the conclusion that the Department identified the problems leading to the children's detention and made available a reasonable range of services targeted to address those problems. Given the Department's good faith effort, it cannot be held responsible for Mother's delay in taking advantage of the program designed for her. (See In re Christina L. (1992) 3 Cal.App.4th 404, 414 ["`The requirement that reunification services be made available to help a parent overcome those problems which led to the dependency of his or her minor children is not a requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions.'"].)

In reviewing the adequacy of reunification services, we are required to consider them as a whole. A wide range of services were arranged for Mother in an attempt to address the various problems identified by the Department. These included substance abuse programs, mental health counseling, and housing support. In terms of substance abuse, Mother's mental health counselor testified she had access to adequate treatment between his counseling and Celebrate Recovery. Mother has not demonstrated otherwise. Even if additional services could have been provided, substantial evidence supports the juvenile court's finding that the services available were reasonable under the circumstances. (See In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

B. There Is No Substantial Likelihood of the Minors' Return to Mother

If reasonable reunification services have been provided, the juvenile court can continue services past the 12-month review hearing only if it finds "that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home" before the expiration of 18 months from the date of detention. (Welf. & Inst. Code,1 § 366.21, subd. (g)(1); In re K.L. (2012) 210 Cal.App.4th 632, 641.) Under section 366.21, to find a substantial probability of return, the juvenile court must determine "the parent or legal guardian has consistently and regularly contacted and visited with the child"; "the parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home"; and "[t]he 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 child's safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1)(A)-(C).) These findings have been characterized as establishing "a very high hurdle for continuing the case beyond 12 months." (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1060.) We review the juvenile court's finding on this issue for substantial evidence. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688.)

Mother argues she made substantial progress with her case plan. We disagree. Substantial evidence supports the juvenile court's finding that the children were unlikely to be returned to Mother before expiration of the 18-month period since their detention.2 There is no dispute Mother maintained consistent and regular contact with her children—she regularly visited and had positive interactions with them. But she had taken only the first steps toward "resolving [the] problems that led to the [children's] removal from the home" by the time of the 12-month review hearing. (§ 366.21, subd. (g)(1)(B).) Despite receiving and periodically gaining from reunification services, she is not currently compliant with probation, and she has not demonstrated a consistent effort to address her substance abuse issues. For example, Mother tested positive for methamphetamine on at least four occasions during the review period. These positive tests resulted in repeat incarcerations. Nor has she taken responsibility for these issues. She originally blamed a coworker for her positive drug tests. Similarly, she blamed her social worker for the delay in starting mental health counseling. Mother also has not taken adequate steps towards establishing stable housing. She was in the process of being evicted from her trailer despite receiving housing assistance.

During the month prior to the 12-month review hearing, when Mother should have been gaining momentum in her treatment, she took a significant step backwards—she stopped reporting to probation and attending drug testing, stopped attending mental health counseling sessions, and appears to have stopped attending Celebrate Recovery. While some relapses may be expected, at this stage Mother should be much further along in her progress. Her children are entitled to permanence and stability, which Mother has not demonstrated she can provide. Given the uncertainty surrounding Mother's sobriety and her limited progress in other areas of the reunification plan, there is no substantial probability the children would have been returned to Mother. Mother's argument to the contrary is based on a selective reading of the record that fails to account for our substantial evidence standard of review.

III. DISPOSITION

Mother's petition for an extraordinary writ is denied on the merits. (See Kowis v. Howard (1992) 3 Cal.4th 888, 894.) The decision is final in this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)

Dondero, J. and Banke, J., concurs.

FootNotes


1. All statutory references are to the Welfare and Institutions Code.
2. The 18-month period commences on the date the child originally is removed from parental custody. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1509.) Extension of reunification services beyond the 18-month statutory period is warranted only under "extraordinary circumstances `involv[ing] some external factor which prevented the parent from participating in the case plan.'" (Id. at p. 1510.) The minors were detained on October 16, 2015. The notice of intent to file the first writ petition was filed on June 14, 2016. The Court of Appeal filed its opinion on September 29, 2016. Thus, absent extraordinary circumstances not shown here, at the time of the June 6, 2017 12-month review hearing, reunification services for Mother already exceeded 18 months. Alternatively, accepting county counsel's approach of excluding the time during which the first writ was pending, at most reunification services for Mother could be extended for only two months. We do not need to address which approach is correct as, under either method, substantial evidence supports the juvenile court's finding.

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