Filed 10/11/18 A.W. v. Superior Court CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

A.W., mother of Christian, petitions for extraordinary review of an order in which the juvenile court terminated her reunification services following the 12-month review and scheduled a Welfare and Institutions Code[1] section 336.26 hearing to determine the child’s permanent placement.^[2] We granted mother’s request to temporarily stay the section 366.26 hearing, pending a ruling on the petition.

Mother argues there is insufficient evidence to support the juvenile court’s finding that she could not successfully reunify with the child if services were extended until the 18-month review. She also contends she did not receive reasonable reunification services. Real party in interest Contra Costa County Children and Family Services Bureau (the agency) opposes the petition. We conclude mother’s contentions do not warrant relief. Accordingly, we deny the petition on its merits.

FACTS

A. Background

In December 2016 and early January 2017, mother and then three-year-old Christian came to the attention of the agency based on referrals from the police who had responded to reports that the child had been wandering the streets outside his home unsupervised. After the second report, the police entered mother’s home and found it to be hazardous and dirty. The police arrested mother after she was found to be under the influence of a controlled substance and for child endangerment.

On January 18, 2017, the agency filed a juvenile dependency petition under section 300, subdivision (b) (failure to protect). The petition alleged Christian was at substantial risk in mother’s custody because her history of alcohol and substance abuse compromised her ability to safely care for the child. Following a hearing, the juvenile court detained Christian and determined he was an Indian child, a member of the Muscogee (Creek) Nation. The Indian tribe confirmed the child’s status but declined to intervene in the case. At a contested jurisdictional hearing, the juvenile court sustained the allegations in the petition relating to mother’s conduct, and found the child was a person described in section 300, subdivision (b).

Following a contested dispositional hearing, held in May and June 2017, the court declared Christian a dependent of the court, removed him from mother’s care, and placed him in the agency’s custody. Mother was granted reunification services and supervised one-hour weekly visits. Mother’s case plan required her to cooperate with the agency social worker and participate in individual counseling, inpatient drug treatment and random drug testing, parenting classes, submit to a mental health evaluation, sign all necessary consents and releases of information, and follow any recommendations resulting from the mental health evaluation.

A contested six-month review hearing was originally scheduled for November 16, 2017 and was ultimately held on January 11, 2018. At that time mother withdrew her request for a contested hearing. The court extended mother’s reunification services until the 12-month review scheduled for February 22, 2018.

B. 12-Month Review

Before the 12-month review, the agency filed a report, recommending that the court terminate mother’s reunification services and schedule a section 366.26 hearing to determine Christian’s permanent placement. The recommendation was based on an assessment and evaluation by the social worker assigned to the case since July 2017. The social worker noted that mother had consistently visited the child and had completed a parenting education course. Mother also had submitted to random drug testing. However, mother had not addressed and consistently refused to fulfill two of the most important components of her case plan: (1) participation and completion of an inpatient substance abuse program and (2) submission for a mental health evaluation. Because mother had not complied with the two latter components, the social worker believed mother had not and could not demonstrate she had mitigated the safety threat and neglect that lead to the dependency. According to the social worker, it would be very dangerous for mother to independently supervise the child. There was a question as to whether mother possessed the capacity to keep the child safe, and it was not clear whether mother’s conduct was due to an unmet mental health need, mere reluctance, or refusal.

The contested 12-month review hearing was held over several days in mid-April and early May 2018.[3] Four-year-old Christian had been detained for approximately 14 months and moved to a concurrent foster care and prospective non-Indian adoptive home outside the county. The court considered the agency’s report and exhibits submitted by mother and heard testimony from mother, the social worker who wrote the review report, and the agency worker who supervised visits since January 2017.

Mother testified she had received and was aware of the components of her case plan. She had supervised visits with the child for one hour each week for “the past year and a half, almost.” During those visits, she took the child for walks, they played, read, and sang, and the child enjoyed the visits every much. Mother also submitted a certificate indicating she had participated in parenting classes from January 31, 2017, to July 11, 2017. Since then mother had taken two more parenting classes. She learned “positive discipline, a lot of different things, communication. . . . Mainly, it was focused on positive parenting and how to deal with different situations with the child.”

Mother also described her compliance with individual counseling and her submission to a mental health evaluation. During the previous six months she had attended counseling on a weekly basis as often as she could. She discussed with her own therapist how to be a good mother and the issues that brought the matter to the court. When asked to go into details about her counseling, mother refused because she thought the counseling was confidential. Mother also asserted that her therapist had completed a mental health evaluation and concluded she had no mental health issues. Mother proffered two letters, one dated March 20, 2017, and one dated November 7, 2017, written by her medical doctor and her therapist.^[4] Mother had not asked her therapist to write a letter since November 2017 because she did not think recent information from her therapist would be relevant. Mother did not recall the last time she had seen her therapist. Mother had been told by an agency social worker that the report from mother’s doctor and mother’s participation in counseling “would suffice” to fulfill the mental health evaluation component of her case plan. Mother denied that any agency social worker had ever, throughout the dependency proceeding, asked her to sign an authorization for the release of her information from service providers. When asked if she was willing to sign an authorization that day, mother wanted to first discuss the matter with her therapist. Mother explained that if the request was for information as to what she discussed in therapy, she wanted to keep that information confidential. Since the court hearing in February 2018, and for the six months prior to the April 12, 2018 hearing, mother acknowledged that the social worker assigned to the case told her she needed another mental health evaluation. If the court granted mother another six months of services, mother thought that all she would have remaining to do was submit to a mental health evaluation.

Mother also testified regarding her compliance with her requirement of attendance at inpatient substance abuse treatment. She claimed that an agency social worker said mother could comply by participating in “outpatient testing” and “outpatient” classes. A month after the child’s removal in February of 2017, mother enrolled in an outpatient drug program that she had found on her own. During the six months before the April 12, 2018 hearing, mother had been attending the outpatient program once every other week as her work schedule would permit. The program had taught mother how to cope with problems, keep herself around good people, make positive choices, and the effects and dangers of certain chemicals. She also submitted to drug testing through an outpatient testing site referred by the agency. She was drug testing four times a month and she had clean tests for the past year. No one in the agency ever told her that any of her drug tests were positive. Mother submitted the reports of her tests done at an agency-approved testing site. The reports showed that mother tested clean on December 21, 2017, but she had failed to show for a drug test on December 29, 2017, and she failed to show for another drug test in January 2018. Mother missed a few tests because she had been traveling and had so informed the social worker.

When asked to describe her compliance with participation and completion of outpatient substance abuse treatment, mother asked the court to consider that before the juvenile dependency proceeding she had completed an “online certificate” and “52 hours of training” in 2014. Since that time mother attended Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings. When asked if she participated in any drug treatment program during the current dependency, mother said she had completed NA classes. Mother explained her reasons for failing to bring to court her attendance sheets for the NA meetings. Mother did not recall the last time she had attended a NA meeting. She conceded she had been told that her participation in NA classes “did not count,” and if she was granted an additional six months of services, she was willing to enroll in a program for outpatient drug treatment.

The social worker testified concerning mother’s compliance with her case plan. After one face to face meeting mother had missed all scheduled in person appointments after July 2017 through the date of the April 19, 2018 hearing. But, the social worker had several telephone conversations with mother. During her conversations with mother, the social worker discussed mother’s case plan, including her completion of inpatient drug treatment and submission for a mental health evaluation. When the social worker presented mother with a written referral for an inpatient drug treatment program, mother refused to accept or sign it, saying she did not want to move forward at that time. Mother also refused to accept the agency’s referrals for a mental health evaluation. The social worker informed mother that to arrange for the mental health evaluation, mother had to sign a “release of authorization,” which she refused to do. Because mother never signed a release, the agency never referred mother to a specific clinician for her mental health evaluation. Mother never gave a reason for her failure to comply with her case plan. Her only response was that she needed to consult with her attorney or that her attorney had advised her not to speak with the social worker. During the six months before the April 19, 2018 hearing, the social worker had not received any evidence that mother had completed a drug treatment program and her mental health evaluation or participated in individual counseling. The agency worker who supervised visits testified that mother had not missed any visits during the last review period and was appropriate and engaged with the child.

Following argument, the juvenile court terminated mother’s reunification services and scheduled a section 366.26 hearing to determine Christian’s permanent placement. In so ruling, the court explained that it recalled the case “quite vividly,” from prior hearings. The court had been “very hopeful” and “very optimistic” that reunification would be successful when the parties had appeared for the six-month review, mother’s contest was withdrawn, and everyone agreed mother should be provided with additional services. However, the court was disappointed at the 12-month hearing because “mother’s distrust really has been the biggest barrier to reunification,” and her testimony was not credible or persuasive. The court found, by a preponderance of the evidence, that Christian’s return to mother’s physical custody would create a substantial risk of detriment to the child’s safety because “there’s been no change here” as mother was unwilling to work with the social worker to provide information for both the agency and the court to make that assessment. The court also found mother had not met her obligation to obtain and maintain a stable and suitable residence, with the court commenting that mother had refused to provide information about her true location, she had been “rather nomadic . . . and evasive,” and it was only at the 12-month hearing that the agency and the child’s counsel first learned that mother had moved and resided in the county.

The court also found mother had not complied with her required drug tests, substance abuse treatment, maintenance of a sober lifestyle, cooperation with the agency social worker, and signed consents and releases for information, which would allow the court to safely return the child to her care. The court acknowledged that mother clearly loved Christian, as evidenced by her consistent visits and her attendance in court that showed a level of commitment but did not demonstrate any insight into the reasons for the child’s removal. Given the fact that the 18-month review was to be held in approximately two months, the court found no substantial probability that the child could be returned to mother’s care if services were extended until that time. The court saw no point in continuing services because mother refused to meet with the social worker, refused to sign releases, and failed to produce documentary evidence of participation in a substance abuse program.

DISCUSSION

There is no merit to mother’s contention that the juvenile court erred by declining to extend services until the 18-month review. Before the court could continue reunification services, it was required to find all of the following: (a) mother had “consistently and regularly contacted and visited” with the child; (b) mother had “made significant progress in resolving [the] problems that led to the child’s removal;” and (c) mother had “demonstrated the capacity and ability both to complete the objectives” of her case plan and “to provide for the child’s safety, protection, physical and emotional well-being, and special needs.” (§ 366.21, subd. (g)(1).) While mother had consistently and regularly visited the child under supervision, the court reasonably found that mother had failed to demonstrate “significant” progress in resolving the problems that led to the child’s removal and that she had the capacity and ability to complete her case plan objectives and provide a safe home for the child. Contrary to mother’s contention, the court was not required to accept her testimony that she had substantially complied with her case plan. Nor did mother present any evidence, documentary or testimonial, from which the court was required to find that she would be able to take custody and safely care for Christian if services were extended. Mother’s “argument effectively asks us to reweigh the evidence,” which we decline to do. (In re Zachary G. (1999) 77 Cal.App.4th 799, 812.)[5]

We also see no merit to mother’s argument that she did not receive reasonable services relative to any mental health issues from which she may have been suffering during the reunification period. Mother specifically contends the social worker should have recognized that mother might have been suffering from a mental health condition, like “paranoia,” that prevented her from signing the release form for a mental health evaluation, and the social worker could have referred mother to the agency mental health liaison without the signed release. However, “[i]f [mother] felt during the reunification period that the services offered to her were inadequate, she had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan.” (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) A parent may not “wait silently 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. [Citation.]” (Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093.)[6]

DISPOSITION

The petition for an extraordinary writ is denied on the merits. (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 8.452(b).) The temporary stay, issued by this court on July 24, 2018, is dissolved. Our decision is final immediately. (Cal. Rules of Court, rules 8.452(i) & 8.490(b).)

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Siggins, P.J.

We concur:

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Pollak, J.

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Jenkins, J.

A.W. v. Superior Court, A154281