Filed 9/18/12 C.A. v. Super. Ct. CA6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
C.A.,
Petitioner,
v.
THE SUPERIOR
COURT OF SANTA
CLARA COUNTY,
Respondent;
SANTA CLARA COUNTY DEPARTMENT
OF FAMILY AND CHILDREN’S SERVICES,
Real Party in Interest.
H038463
(Santa Clara
County
Super. Ct.
No. JD20519)
C.A. was three years old when he was removed from
the custody of petitioner, C.A. (mother).
He was declared a dependent child of the court due to mother’s
incarceration and concerns about mother’s mental health and substance
abuse. At the contested 12-month review
hearing, the juvenile court accepted the recommendation of the
Children’s Services (Department) to terminate reunification services (Welf.
& Inst. Code, § 366.22, subd. (a))
and set a selection and implementation hearing pursuant to section 366.26. Mother petitions for a writ of mandate
directing the juvenile court to
vacate that order. Mother argues that
Department did not offer reasonable reunification services. Mother also faults Department for failing to
provide an opportunity for C.A. to visit with his half sibling, I.R. We reject the arguments and deny the
petition.
I.
Background
Mother was arrested on
February 28, 2011, after a
probation search and burglary investigation at her home revealed stolen
property, methamphetamine, and an unsecured vintage handgun. C.A. was taken into protective custody and
Department filed a petition alleging that he came within the jurisdiction of
the juvenile court pursuant to section 300, subdivisions (b) and (j). C.A.’s
half brother, 14-year-old I.R., was also placed in protective custody but he
fled the placement the following day.
The juvenile probation department notified Department that I.R. had open
citations for grand theft and vandalism.
I.R. continued in the juvenile justice system throughout the course of
this case.
Mother
had over 20 previous referrals to Department related to
physical abuse and neglect of her children.
I.R. had previously been the subject of a dependency petition, as had a
third child, A.P. I.R. was reunited with
mother. A.P. was ultimately placed with
his father.
Mother
had a history of mental health problems, substance abuse, volatility, and
involvement in physically violent personal relationships. Mother had nine drug-related criminal
convictions between 2005 and 2010.
Department’s case plan for mother related to this constellation of
parenting difficulties. The plan
required that she participate in a parent orientation class, a substance abuse
parenting class, a program of counseling or psychotherapy, weekly drug testing,
a domestic violence victims support group, and a 12-step or other substance
abuse self-help program. Mother was
receiving psychiatric services while in custody and reported that she intended
to be seen at Valley Medical
Center for future psychotropic
medication needs. Accordingly, her case
plan required that she cooperate with any mental health treatment recommended,
take her prescribed psychotropic medication, and participate and complete a
substance abuse assessment.
Mother
told the social worker during a visit at the jail on May 18, 2011, that she
would do whatever she needed to do to get C.A. back but since she was in
maximum security most programs were not available to her. Mother did participate in Bible study and a
program called Road Map to Recovery.
At disposition
proceedings on May 23, 2011,
the juvenile court adjudged C.A.
a dependent child of the court and ordered that he be continued in foster care
and that mother and C.A.’s
father receive reunification services.
ordered mother to have a minimum of two supervised visits per week “upon
release, or upon admission into the PACT program†and that C.A.
have “reasonable†visitation with I.R. “once [I.R.] is released from Juvenile
Hall.â€
Mother was placed on
probation for crimes related to the stolen property and controlled
substance. Probation conditions included
that she abstain from drugs and alcohol and complete a substance abuse
program. She was released from custody
on September 18, 2011.
At the six-month
review hearing held in November 2011, Department recommended continuing
reunification services. C.A.
was thriving in his foster home. He had
no physical or developmental problems.
Mother had twice weekly supervised visits with minor which were going
well. Mother had begun the Celebrating
Families program and an intensive outpatient drug treatment program at Blossoms
Perinatal on October 19, 2011. She had participated in four sessions of
individual therapy with Richard Garcia, LMFT.
Mother reported that she was taking her prescribed medications. She missed some of the required drug tests;
four of the five tests she did submit were normal. She tested positive for alcohol upon entering
the Blossoms Perinatal program but the program director reported that she
usually gave her clients 30 days to stabilize.
Overall, the social worker was “pleased and encouraged†with mother’s
progress in her case plan and her motivation.
I.R. was by then still within the juvenile justice system and residing
at “the Ranch.†C.A.’s
therapist felt that C.A.
should be “shielded†from I.R.
Department did not recommend visitation with I.R.
The juvenile court
found by clear and convincing evidence that Department had offered and provided
reasonable services designed to aid mother in overcoming the problems that led
to removal of C.A. The juvenile court ordered that C.A.
continue in care of the foster family and that mother continue to receive
services according to the case plan Department had devised. The court ordered mother to have a minimum of
two supervised visits per week. No
sibling visitation was ordered.
Mother filed a motion
pursuant to section 388 seeking an order for visitation between C.A.
and I.R. and parent-child therapy for her and C.A. The hearing was set concurrently with the
12-month review hearing.
Department’s April 30, 2012 report for the
12-month review indicated that mother had not made the hoped-for progress. Although she had successfully completed a
parenting class, she had made no progress on the rest of her plan. She had not met the requirement that she
participate in a 12-step program and obtain a sponsor. She had been terminated from Blossoms
Perinatal after less than a month due to “belligerent and enraged behavior
towards staff.†She enrolled in another
outpatient program on January 23, 2012, but did not engage with the other
clients in the group and was “verbally disrespectful†to the counselor. A bed came available at a transitional
housing unit (THU) on March 8, 2012, but mother arrived under the influence of
methamphetamine so she was not admitted.
Mother began a residential drug treatment program at Mariposa House on
March 26, 2012, but was terminated on April 18, 2012, after she had become
abusive toward the staff. Her therapist
terminated her from therapy on March 12, 2012, for constantly failing “to show
for scheduled appointments.â€
It was believed that
mother was living with a man on parole about whom mother refused to provide any
information. She had not attended her
domestic violence support group since March 8, 2012. She missed two or three visits with minor
every month since December 2011. As for
random drug testing, mother missed 10 tests and two were abnormal. On March 9, 2012, mother reported to her
probation officer that she was, indeed, using drugs. The social worker concluded that mother
continued to struggle with making good choices and was completely overwhelmed
by the demands of her case plan.
Accordingly, Department recommended that the juvenile court terminate
family reunification services and set the matter for a selection and
implementation hearing pursuant to section 366.26.
In an addendum report
dated June 14, 2012, Department reported that mother had been incarcerated
twice since the April 30 report. Mother
had been participating in outpatient drug treatment as a condition of her
probation but she was discharged from that program on May 7, 2012, for failing
to respond or engage in the treatment.
Mother had also been admitted to a program for mentally ill offenders. In connection with that program mother met
with a psychiatrist on May 17, 2012 and admitted to him that she had not been
taking her medications. The reason, she
said, was “I just do whatever the fuck I want.â€
Mother became aggressive and swore at the doctor and the case
manager. Accordingly, the program team
concluded that she should be referred back to the criminal court judge. Mother was arrested on May 30, 2012, for
violating probation and held until June 6, 2012. She was arrested again the next day and
charged with two counts of burglary.
Meanwhile, C.A.
continued to thrive. He was “very
bonded†with his foster family and he did not mention his brother I.R. Department reiterated its recommendation that
services be terminated.
Mother contested
Department’s recommendation and a trial was held beginning June 14, 2012. The hearing on mother’s section 388 petition
trailed the status review hearing.
Mother testified that she had been unable to obtain housing for about
four months after she was released from jail the preceding September. She believed she had a better chance of
staying sober when she had her own place to live but that Department had not
assisted with her housing search. Since
she had housing she had no domestic violence incidents. She asked to have therapy with C.A. and asked
the juvenile court to set up visitation between C.A. and I.R. She said she needed her children and wanted
“to work through my problems with my kids.â€
The social worker
testified to the facts set forth in Department’s two reports. She agreed that stable housing can be helpful
but she believed that mother needed to address her other concerns first. She believed that parents can reunify with
their children even when living in shelters or THUs. Mother’s instability was related to more than
just her initial lack of housing.
Mother’s therapist was
willing to continue working with mother but first they had to reestablish a
rapport. Mother had withdrawn from the
therapeutic relationship because she believed the therapist had contributed to
the recommendation that services be terminated.
I.R. was not
present. His attorney represented that
I.R. was “on runaway status†and that he needed to “come before the social
worker†before the court could consider ordering visitation.
The juvenile court found
by clear and convincing evidence that
Department had provided reasonable services and that the social workers and
others had made “good faith efforts under the circumstances†to offer services
and to help mother comply with the case plan.
There was no substantial probability that C.A. would be returned to
mother’s custody before the next review period, mother had failed to
participate regularly in and substantially benefit from the services that were
offered. The juvenile court denied
mother’s request for sibling visitation, finding no evidence that visitation
with I.R. would be in C.A.’s best interests.
The juvenile court would reassess visitation if I.R. were located. The lack of visits between C.A. and I.R. had
not affected mother’s reunification efforts.
The juvenile court terminated the reunification services to both parents
and set a section 366.26 hearing. Mother
challenges the order by way of petition for writ of mandate. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.450 et seq.)
II.
Discussion
A.
The Reasonableness of Services While Incarcerated
Mother argues that
Department failed to provide reasonable services while she was incarcerated
because the social workers made no effort to identify programs in which mother
could enroll while she was in jail.
Mother has forfeited this argument.
“Section 395 provides in relevant part:
‘A judgment in a proceeding under Section 300 may be appealed from in
the same manner as any final judgment, and any subsequent order may be appealed
from as from an order after judgment . . . .’
‘A consequence of section 395 is that an unappealed disposition or
postdisposition order is final and binding and may not be attacked on an appeal
from a later appealable order.’ (In
re Jesse W. (
355.)†(Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.) Mother was incarcerated when the juvenile
court entered the disposition order, which also approved the case plan as set
forth in Department’s report. If mother
believed the plan was inadequate she was entitled to appeal from the
order. Mother had recently been released
from jail at the time of the six-month review hearing, when the juvenile court
found, again, that Department had offered reasonable services. Mother then had a second opportunity to
challenge the order but she did not. The
trial court’s orders entered following the disposition hearing and the
six-month hearing are both final.
Mother’s failure to challenge them precludes her challenge in this
matter.
B. Services
to Address Mental Health Issues
Mother
next argues that Department failed to provide reasonable services to address
her mental health issues. Generally
speaking, reunification services should be “aimed at assisting the parent in
overcoming the problems that led to the child’s removal.†(Judith P. v. Superior Court (2002)
102 Cal.App.4th 535, 546; In re Nolan W. (2009) 45 Cal.4th 1217,
1229.)
a good faith effort to address the parent’s problems through services, to
maintain reasonable contact with the parent during the course of the plan, and
to make reasonable efforts to assist the parent in areas where compliance
proves difficult.†(Katie V. v.
Superior Court (2005) 130
Cal.App.4th 586, 598.) “However, in most
cases more services might have been provided and the services provided are
often imperfect.†(Ibid.) “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.†(In re Misako R. (1991) 2 Cal.App.4th
538, 547.) “
of reunification plans
and the reasonableness
of [the agency’s]
efforts are judged
according to the
circumstances of each
case.†(
1340, 1345.)
In reviewing a challenge to a
juvenile court’s finding that reunification services were reasonable we look
only for substantial evidence. (In re
Alvin R. (2003) 108 Cal.App.4th 962, 971.) The person challenging the order “has the
burden of showing there is no evidence of a sufficiently substantial nature to
support the finding or order.†(In re
Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another point
in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
Department
identified mother’s mental health difficulties as one of the problems leading
to C.A.’s removal. Mother received
psychiatric services while in custody and later through the county’s mental
health department. Thus, Department
reasonably included in the case plan only the requirement that mother take the
medications she was prescribed through these services. There was no need for Department to provide
duplicate psychiatric services.
Department’s plan also required mother to participate in individual
therapy and the social worker made the referral to therapist Garcia who worked
with mother until mother just stopped going to her appointments. This is substantial evidence of
reasonableness. Indeed, mother does not
say what else Department could have done.
C.
Services to
Arrange for Housing
Mother
argues that Department failed to make referrals for her to find stable
housing. She maintains that absent
housing she was in no position to make substantial progress on her case
plan. To the extent that mother claims
the case plan as approved by the court at disposition, and again at the
six-month review hearing, was unreasonable for its failure to include a plan
for stable housing, mother has waived that argument by failing to appeal from
those orders when they were made. In any
event, the record shows that the services Department provided were not
unreasonable due to the lack of a plan for stable housing.
The
plan, as designed, addressed mental health, substance abuse, domestic violence,
and parenting issues. There is no
dispute that these were the problems that led to the dependency. These were the problems the social worker
felt deserved the most attention. As the
social worker explained, parents can reunify with the children while in living
situations other than their own homes.
It was the social worker’s opinion that the more important focus was for
mother to reach stability in the areas of substance abuse and mental
health. Although mother insists that without
housing she did not have a chance at stability in these other areas, the record
shows otherwise. Mother obtained housing
on her own in or about February or March 2012, but that did not improve her
ability to participate in her case plan.
To the contrary, among other things, mother was terminated from the
Mariposa program on April 18, 2012, after being abusive to the staff, was
terminated from an outpatient drug treatment program on May 7, 2012, for
failure to engage in the program, stopped taking her medication and became
aggressive with her psychiatrist on May 17, 2012, and was arrested for burglary
on June 7. Indeed, mother had stable
housing when she got into the trouble that led to removal of C.A. in the first
place. We conclude that evidence of the
gravity of mother’s problems with mental health and substance abuse, coupled
with the social worker’s expert opinion that mother’s stability did not turn
upon her having a place of her own, is substantial evidence that the services
Department offered were reasonable notwithstanding the absence of a housing
component.
D.
Sibling Visits
The
juvenile court denied mother’s section 388 petition asking the court to require
Department to arrange visitation between C.A. and I.R. Section 388 allows a parent to petition the
juvenile court to change, modify or set aside a previous order if the
petitioner can establish that circumstances have changed and the proposed order
would be in the best interests of the child.
The burden of proof is on the petitioner. (In re
Cliffton B. (2000) 81 Cal.App.4th 415, 423.) We will reverse the juvenile court’s
determination only if mother can show it was an abuse of discretion. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Department
argues that since visitation between the two half-siblings does not adversely
affect mother she lacks standing to raise the issue. Assuming mother has standing, we reject her
argument on its merits. Mother has made
no attempt to demonstrate changed circumstances or to show that visitation with
I.R. would have been in C.A.’s best interests.
For most of the course of this case I.R. was either in custody of the
juvenile justice system or his whereabouts were unknown. At the time of trial he was “on runaway
status.†Mother offered no evidence of
changed circumstances. And the only
evidence on the point supports the conclusion that visitation would not be in
C.A.’s best interests. Both C.A.’s
therapist and the social worker believed a visit with I.R. would not be a good
thing for C.A. There was no evidence to
the contrary. Accordingly, the trial
court’s decision was not an abuse of discretion.
III.
Disposition
The petition is denied.
Premo,
J.
WE CONCUR:
Rushing, P.J.
Elia, J.
name="_ftn1" title=""> [1]
Hereafter all statutory references are to the Welfare and Institutions Code.
name="_ftn2" title=""> [2]
C.A.’s father had not been part of C.A.’s life.
He participated in reunification services but the juvenile court
terminated services to father at the same time mother’s services were
terminated. C.A.’s father does not
challenge that order.
