Connie B. v. Superior Court

Filed 3/2/07 Connie B. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after reference to a Welfare and Institution Code section 366.26 hearing. Julia Craig Kelety, Judge. Petition granted.

Connie B., the mother of Katherine Y., seeks extraordinary writ relief (Welf. & Inst. Code,  366.26, subd. (l),^[1]Cal. Rules of Court, rule 8.452),^[2]challenging the juvenile court's order terminating her reunification services after six months and setting the section 366.26 permanency planning hearing for Katherine. Connie contends that the court erred by finding that she had not regularly participated in, nor made substantive progress with, her case plan.

We issued an order to show cause, and Katherine's counsel, who opposes Connie's petition, responded. The San Diego County Health and Human Services Agency (Agency), which supports Connie's petition, also responded. The parties waived oral argument. We review the petition on the merits and grant it.

FACTS

In January 2006, authorities took Katherine, then 23 months old, into protective custody after Connie was arrested on an outstanding bench warrant. When interviewed by a social worker at Las Colinas Detention Facility (Las Colinas), Connie could provide only limited information. Two individuals who had provided care for Katherine in the past stated that Connie's stability had been going "downhill" for the past year and that she had been using drugs, including crystal methamphetamine and prescription medications she obtained from her boyfriend. Connie authorized placement of Katherine with one of these individuals, and Agency released Katherine to this individual.

After Connie was released from Las Colinas, she did not contact Agency for more than a week. On February 6, 2006, Connie took Katherine from the caregiver's home to a friend's house to get the child's hair braided. Connie and Katherine did not return to the caregiver's home that day. After a day or so, the caregiver saw Connie and Kathryn walking along a major street. Connie was under the influence of drugs. Katherine did not have a jacket, and was unkempt and hungry. The caregiver took Katherine to her home.

In the meantime, Agency located Katherine's father, Corey Y.^[3] On February 9, 2006, Corey reported that Katherine was with him. The social worker tried to explain to Corey that Katherine had to be returned to the caregiver's home until the court determined where Katherine should live. Corey became agitated and frustrated and said that he could not deal with the situation, which was extremely stressful for him. Corey explained that he was on medication because he "hears voices." The social worker took Katherine from Corey and returned the child to the caregiver's home.

On February 10, 2006, Agency filed a dependency petition on behalf of Katherine, alleging that she was at substantial risk of harm because Corey's mental illness and Connie's substance abuse rendered them unable to provide regular care for the child. ( 300, subd. (b).)

On February 23, 2006, the court sustained the petition. Corey was present, but Connie was not. Connie also did not attend the March 14 dispositional hearing, at which the court declared Katherine a dependent child, removed her from her parents' custody, placed her in the home of a non-relative extended family member, and ordered the parents to comply with their case plans. Connie's case plan required her to undergo a psychological evaluation, participate in individual therapy, complete a parenting class, participate in a 12-step program, undergo substance abuse testing, and participate in substance abuse counseling.

Connie's whereabouts remained unknown to Agency until July 28, 2006 when she appeared, unannounced, at the social worker's office. Connie said that she had been staying at the St. Vincent de Paul shelter and, up to this time, she had not known where to go or who to contact to obtain information about Katherine's status. Connie did not know that there was a reunification plan and that she had to complete services. The social worker provided Connie with referrals for parenting classes, therapists, and Narcotics Anonymous programs. Connie told the social worker that she had not used drugs for about four months.^[4]

In August 2006, Connie spent 12 days in jail after she was arrested on an outstanding warrant. The criminal court referred her to drug court and she enrolled on August 22. Connie told the social worker that because she had been arrested, she had not yet been able to enroll in parenting classes or therapy.

By the end of August 2006, Katherine had been placed in the home of her paternal grandmother.

Agency recommended that services be terminated and that the court set a section 366.26 hearing for Katherine.

Connie made her first appearance in the case at the six-month review hearing on September 12, 2006. The court appointed counsel for her.

On October 19, 2006, Agency changed its recommendation. It now proposed that the court order six more months of services for Connie. Agency reported that since the time Connie was released from jail in August, she had participated in the criminal court drug program five days a week, including attending Narcotics Anonymous meetings three days a week, and that she had undergone random drug tests, all with negative results. Connie had enrolled in a parenting class on August 28. Her attendance was consistent, and the class facilitator reported that she was an active participant and that she seemed to be willing to make changes in her life. Connie started weekly therapy on September 9, and was consistently attending her therapy sessions. On October 13, Connie underwent a psychological evaluation.^[5]

Katherine's counsel requested a trial. The court held a contested six-month review hearing on November 15, 2006. The court found that reasonable services had been offered to Connie and that returning Katherine to Connie would create a substantial risk of detriment to Katherine's physical and emotional well-being. The court found, by clear and convincing evidence, that Connie had not regularly participated in, nor made substantive progress with, her case plan. In this regard, the court observed:

"[I]t is nice to see the efforts being made at this time. And that kind of initiative is commendable. However, I cannot get around the fact that this is a two-year-old child. The law gives six months to do services. Mother waited until the eve of that date to even begin. And this is not a simple matter, something easy to resolve.

"A number of issues are presented in mother's case including substance abuse, inadequate parenting and neglect. Matters that are not easily resolved in a month or two.

"So I cannot find that mother has made substantial progress. I think she's only, only beginning even looking at it today much less looking at it back to the time of the six-month review or even back at the time this [matter] was originally set for trial on October 20."

The court further found that there was not a substantial probability that Katherine could be returned to Connie within the next six months. The court terminated services and set a section 366.26 hearing for Katherine.

The court referred Connie to dependency drug court after Connie indicated, through counsel that she wanted to participate in that court program. Connie enrolled in dependency drug court the following day.

DISCUSSION

Connie contends that the juvenile court erred by terminating her reunification services because there was not clear and convincing evidence that she had failed to regularly participate in and make substantive progress with her case plan. We agree.

At the six-month review hearing, the juvenile court may terminate reunification services and schedule a permanency planning hearing where the child, on the date of removal, is under the age of three years, or is a member of a sibling group whose youngest member was under the age of three on the date of the initial removal, if the court finds, by clear and convincing evidence, that the parent failed to participate regularly and make substantive progress in the court-ordered plan. ( 366.21, subd. (e).) If, however, the court finds there is a substantial probability that the child may be returned to the parent within six months or that reasonable services were not provided, the court must continue the case to the 12-month review hearing. (Ibid.)^[6]

A parent is not required to demonstrate perfect compliance with the reunification plan. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343.) The purpose of reunification services is to overcome the problem that led to the child's removal. (Ibid.) Thus, both "general compliance" with the reunification plan and "substantive progress" toward alleviating or mitigating the causes necessitating placement are indicia of ". . . 'progress toward family preservation'. . . ." (Id. at pp. 1344-1345.)

At issue is the juvenile court's finding, by clear and convincing evidence, that Connie did not regularly participate in and make substantive progress with her case plan. We review the juvenile court's finding to determine whether there is substantial evidence to support it. (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at p. 1341.) Specifically, we review the record to determine whether the record contains substantial evidence from which a reasonable trier of fact could find, by clear and convincing evidence, that Connie did not regularly participate in and make substantive progress with her case plan. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) " 'Clear and convincing' evidence requires a finding of high probability. . . . It must be sufficiently strong to command the unhesitating assent of every reasonable mind." (In re David C. (1984) 152 Cal.App.3d 1189, 1208.)

It is undisputed that during the first four and one-half months following the dispositional hearing, Connie, whose whereabouts were unknown to Agency, did nothing to reunify with her daughter.

However, it also was undisputed that on July 28, 2006, Connie met with the social worker, and that she started to enroll in services by August 9. Connie's participation in services was temporarily interrupted for 12 days while she was in jail after police arrested her on an outstanding warrant. Upon her release, however, Connie participated in the criminal drug court on a consistent basis. She went to drug court five days a week and attended Narcotics Anonymous meetings three days a week. Connie was randomly tested for drug use and had clean results each time. Connie started individual counseling and consistently attended her sessions. Connie enrolled in a parenting class and attended regularly. The parenting class facilitator reported that Connie "seems to be willing to make changes in her life" and noted that Connie frequently asked questions and took notes during the classes, which indicated to the facilitator Connie's genuine desire to improve her parenting skills. On October 13, Connie underwent a psychological evaluation.

Although Connie was late in starting services, by the time of the contested section 366.26 hearing, she was complying with each of the requirements of her case plan - a psychological evaluation, individual therapy, parenting classes, a 12-step program, substance abuse testing, and a substance abuse program (criminal drug court). Moreover, Connie had demonstrated marked improvement with her substance abuse problem, which had led to Katherine's dependency.

After verifying that Connie was participating in her case plan and making progress, Agency, which was well aware of Connie's dismal start, rescinded its earlier recommendation to terminate services and advised the court that Connie should be granted an additional six months of services. The social worker opined that Connie had shown the ability to work on her case plan and that Connie was serious about doing so.

At trial, the court paid little heed to Connie's efforts during the preceding three and one-half months. The record reflects that, in effect, the court considered only the four and one-half months during which Connie did nothing. However, there is no rule of law that requires that the juvenile court find that the parent did not participate regularly in and make substantive progress with his or her case plan if the parent was late in commencing particular services. Here, due to circumstances such as Agency changing its recommendation, and Katherine's counsel's trial request, the six-month review hearing was repeatedly continued and was not held until November 15, 2006 - well after the six-month date. Connie was thus in effect, given three and one-half extra months to establish a good track record, and she took advantage of the extra time. Agency - the entity that filed the dependency petition and that originally favored termination of services at the six-month review hearing - was sufficiently impressed with Connie's belated efforts that it recommended that she be given six more months of services.

We are not minimizing the fact that Connie squandered the first four months following the dispositional hearing. But, contrary to the juvenile court's reasoning, this does not negate the fact that she regularly and willingly participated in services during the next three and one-half months and made substantive progress with her substance abuse problem during this period, as well as with the other components of her case plan. To be sure, Connie must to continue to make progress if she is going to be reunified with Katherine. The record indicates that Connie recognizes this.^[7]

Under the circumstances presented here, there was not substantial evidence to support the court's finding by clear and convincing evidence that Connie failed to participate regularly in and make substantive progress with her case plan. Accordingly, the court abused its discretion by terminating Connie's reunification services and setting the section 366.26 hearing. ( 366.21, subd. (e).)

In reaching our conclusion, we are mindful of the Legislature's directive that "[t]he focus shall be on the preservation of the family as well as the safety, protection, and physical and emotional well-being of the child." ( 300.2; see In re Kieshia E. (1993) 6 Cal.4th 68, 79 ["the law's strong support for preservation of the parent-child relationship, even in the face of dangerous parental misconduct"].) The goal of "preserving the family whenever possible" remains the focus of dependency law through the pre-permanent planning stages. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704.) This legislative mandate supports our granting the petition and issuing the requested writ.^[8]

DISPOSITION

Let a writ issue directing the respondent juvenile court to (1) vacate its November 15, 2006 order terminating reunification services for Connie and setting the matter for section 366.26 permanency planning hearing; (2) reverse its finding that Connie did not regularly participate in and make substantive progress with her case plan; and (3) issue a new order directing Agency to provide six more months of services to Connie. This opinion is final immediately as to this court. (Rule 8.264(b)(3).)

The request for a stay is denied as moot.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

McDONALD, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1] All statutory references are to the Welfare and Institutions Code.

^[2] All rule references are to the California Rules of Court.

^[3] Corey is not a party to this writ proceeding.

^[4] Katherine's caregiver stated that Connie appeared to be under the influence of drugs when she showed up for visits twice during June.

^[5] The record on appeal does not contain a psychological evaluation of Connie.

^[6] Section 366.21, subdivision (e), reads in pertinent part: "If the child was under the age of three years on the date of the initial removal . . . and the court finds by clear and convincing evidence [at the six-month review hearing] 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 within 120 days. If, however, the court finds there is a substantial probability that the child, who was under the age of three years on the date of initial removal . . . 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."

^[7] We are unpersuaded by the argument of Katherine's counsel that Connie started participating in services only because the superior court judge in her criminal case referred her to criminal drug court as a condition of her being released from custody. Connie's motivation to begin services is not material under the circumstances of this case, where she has continued participating for three and one-half months.

^[8] It is only after services are terminated that family preservation ceases to be of overriding concern and the focus shifts from the parent's interest in reunification to the child's interest in permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)