Filed 4/23/18 E.R. v. Superior Court CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

E.R.,
Petitioner,
v.
THE SUPERIOR COURT OF FRESNO COUNTY,
Respondent;
FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,
Real Party in Interest.
F076978

(Super. Ct. No. 17CEJ300086-1)


OPINION

THE COURT*
ORIGINAL PROCEEDING; petition for extraordinary writ review. Leanne Le Mon, Temporary Judge.†
Fresno Dependency Office and Heather A. Von Hagen for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
INTRODUCTION
At the conclusion of a review hearing held on January 31, 2018, pursuant to Welfare and Institutions Code section 366.21, subdivision (e), the juvenile court found E.R. (mother) made minimal progress toward alleviating and mitigating the causes necessitating the detention of her child, E.E., pursuant to section 300. The court terminated further reunification services to mother and set the case for a permanency planning hearing pursuant to section 366.26.
Mother filed an extraordinary writ seeking an immediate stay of the permanency planning hearing and the reinstatement of reunification services. Mother contends there was insufficient evidence the Fresno County Department of Social Services (department) provided her with adequate reunification services. Mother contends that contrary to the juvenile court’s findings, she made substantial progress on her case plan in court-ordered services, and there is a substantial probability the minor would be returned to her by the next review hearing. According to mother, the juvenile court should not have terminated her reunification services. Mother also argues the juvenile court erred in failing to consider whether E.E. could live with mother at a substance abuse inpatient facility. We find the juvenile court’s orders supported by substantial evidence and deny mother’s requests for a stay of the permanency planning hearing and extraordinary writ relief.
FACTS AND PROCEEDINGS
Dependency Petition
On March 24, 2017, a petition was filed pursuant to section 300 alleging the minor, then 21 months old and currently just under three years old, was present when mother and father were engaged in mutual acts of domestic violence against one another. Mother had visible injuries to her torso, arms, and eyes. There was a criminal protection order protecting the child and father from mother. Father was arrested. The petition alleged the child was at substantial risk for abuse and/or neglect if she were to remain in mother’s and father’s care and custody.
The domestic violence incident between mother and father occurred on March 23, 2017. When the social worker arrived at the scene, police officers had already arrested father for domestic violence. Because of a prior incident of domestic violence, father and the minor had a criminal protective order to keep mother away. This event also led to mother being placed on a mental health hold in the hospital pursuant to section 5150. Although mother had visible injuries from the altercation, neither parent could tell officers how it began. Father and the child had been homeless, sleeping on couches with friends. Mother admitted to the social worker that she smoked marijuana.
Reunification Services
Prior to the jurisdiction hearing, the department recommended the following services for the parents: parenting classes, substance abuse assessment with recommended treatment, random drug testing, mental health evaluation with any recommended treatment, and domestic violence assessment with recommended treatment. The department recommended supervised visitations between the child and the parents twice a week.
At the jurisdiction hearing on April 24, 2017, the parents waived their rights to a contested hearing, admitted the allegations in the petition, and the juvenile court found the allegations true. Shortly after E.E.’s detention in March 2017, mother was given appointments with the department’s visitation coordinator, a substance abuse specialist, a registry for random drug testing, the Marjaree Mason Center for a domestic violence index assessment, and for a mental health assessment. Mother was on a waiting list for a parenting class and had not yet had her mental health assessment. Mother had not completed the substance abuse evaluation and had not been drug testing even though she had been granted a 60-day fee waiver for the tests. Mother did participate in a domestic violence assessment in April 2017.
At the disposition hearing on June 14, 2017, the juvenile court ordered reunification services for mother, including reasonable visitation, parenting classes, domestic violence assessment with recommended treatment, substance abuse evaluation with recommended treatment, mental health evaluation with recommended treatment, and random drug testing. The department did not recommend reunification services for father. The case was set for a six-month review hearing.
Status Review Report
A report prepared for the status review hearing by the department stated that because mother was incarcerated between July 31, 2017, and August 16, 2017, all of her services were delayed. Upon her release from jail, mother contacted the department for referrals. Mother received therapeutic supervised visits with her daughter at a visitation center. During the visits, mother was loving and appropriate with her daughter. However, there were behavioral issues by mother prior to the visits. Mother was referred to the nurturing parenting class on June 5, 2017, but last attended the class on July 24, 2017. Although mother was referred to the Exception Parenting Unlimited (EPU) class for one-on-one sessions and positive mentor behavior, she was dropped in mid-August 2017 because she had missed three class sessions; mother was incarcerated during two of those sessions. Although mother was placed back on the waiting list for the nurturing parenting class beginning on October 11, 2017, mother stopped attending those sessions. A more appropriate class was warranted because of the child’s young age.
Mother was referred to and began attending the EPU Incredible Years Parenting Program on October 16, 2017. Mother was scheduled to complete that program in February 2018. Mother missed two early classes due to late enrollment and missed two classes with no explanation in mid-November and mid-December 2017. Mother was engaged in the class. Mother was not allowed to participate in the class on January 3, 2018, because she smelled strongly of marijuana.
Mother was referred to Uplift Family Services for a mental health assessment in mid-September 2017. Mother was also referred to participate in weekly individual therapy to treat depression and anxiety. Mother failed to contact Uplift to schedule therapy sessions and had not had therapy from Uplift Family Services.
Mother participated in a domestic violence assessment at the Marjaree Mason Center on April 10, 2017. After the assessment, it was recommended mother participate in a batterer’s intervention program and a child abuse batterer’s program. Although mother completed an intake for both classes on June 7, 2017, she was dropped from the programs after about six weeks due to six missed classes between the two programs. Mother completed reenrollment in both programs on December 8, 2017. In late December 2017, mother missed two classes in each program.
After a staff meeting on September 6, 2017, mother was placed in an inpatient treatment program at MHS Fresno First but she was discharged for outbursts causing staff to believe mother was a safety risk to other patients and staff. On December 1, 2017, mother was referred to the Pathways outpatient treatment program. Mother failed to complete the orientation process and stopped attending the program because she said it conflicted with her classes. On December 28, 2017, MHS Fresno First allowed mother to return to its program.
On January 2, 2018, mother was informed department staff would determine whether the treatment program would be approved. A counselor informed the department mother attended an orientation meeting in early December 2017, but an intake date was not set because mother failed to attend a support group as she had previously agreed. Mother missed 10 drug testing dates without an explanation between early September 2017 and late December 2017. Mother tested positive for marijuana on September 7, 2017, and refused a test on December 7, 2017.
Mother participated in supervised visits at the visitation center. Between September 2017 and December 2017, mother missed nine visits. Two of these were because mother arrived for the visits smelling of marijuana. One visit was cancelled because mother arrived after the 15-minute grace period. Mother denied smoking marijuana and attributed the odor to the people who brought her to the visits. Mother’s visits with her daughter were loving, affectionate, and appropriate. Mother engaged her daughter in play that extended the child’s cognitive growth.
The social worker observed mother has an extensive history of domestic violence. Although there was a criminal protective order in place, mother and father ignored it and engaged in domestic violence with one another in their daughter’s presence. Mother has a substance abuse issue with marijuana and a mental health issue. Mother failed to manage her mental health issue with a previously prescribed medication. Mother was twice dropped from two batterers classes and also dropped twice from substance abuse treatment programs. At the time the report was prepared for the review hearing, mother was not submitting to random drug testing and had five missed tests since December 1, 2017. Mother was also continuing to violate the active criminal restraining order.
The social worker noted mother continued to show aggressive and unstable behavior, including toward staff in the residential drug treatment program. Mother was terminated from domestic violence treatment twice due to poor attendance. The social worker concluded mother had not demonstrated the ability to complete the objectives of her treatment program and provide for her daughter’s safety. Mother had not consistently participated in her court-ordered services and did not participate in therapy. Mother was refusing to take random drug tests and was dropped from substance abuse treatment programs for poor attendance. The department recommended mother’s reunification services be terminated and the case set for a section 366.26 hearing.
Review Hearing
The six-month review hearing was conducted on January 31, 2018. Mother testified she participated regularly in the parenting class and learned how to play with her child in parent-directed activities. Mother said she attended two different parenting classes. The nurturing class was directed toward children older than her daughter, and she was referred by the class teacher to an EPU parenting program. Mother regularly attended this second program. Although E.E. could attend this class with mother, she was not allowed to do so. Mother believed she would have gotten more from the class if E.E. had attended the class with her. At the time of the hearing, mother was three weeks from graduating from the program.
Mother believed she would have benefitted from having a cultural broker assigned to help her with her services but she never received a referral to a cultural broker. Mother attended an intake on July 5, 2017, for the Pathways program but learned during orientation that the schedule for the program conflicted with her visitation schedule. Mother’s attempts to contact her social worker failed because the social worker’s voicemail was full. After mother was incarcerated in jail for three weeks during the summer of 2017, she immediately tried to contact her social worker to reconnect with services but could not reach the social worker by phone and could not leave any messages.
Mother disagreed with the department’s depiction of her as creating a hostile environment when she was in the substance abuse treatment program and denied slamming doors or using profanity. Mother said she slammed a door once because she could not be with her daughter during Halloween. Mother admitted using profanity in the program on one occasion and being told she would be placed on a behavioral contract. According to mother, the terms of the contract were that she not have visits with her family, she had to perform 20 hours of community services, and she was to write three essays. Mother thought the conditions of the contract were extreme because other people in the program used profanity.
Mother entered herself into a substance abuse treatment program on January 10, 2018, through Fresno First. The program offered programs in anger management, parenting, and domestic violence. Mother believed she was learning more self-control. Mother was participating in the program’s random drug testing. Mother explained she had difficulty with random drug testing for the department previously because of the cost and her lack of funds. Mother believed she was prepared to be a single parent for her daughter. Mother expressed her love for her daughter.
Mother conceded she had not participated in individual therapy through the Uplift program for months, although she was currently receiving such therapy. Mother believed it would be in her daughter’s best interests for mother to continue to receive reunification services. Mother acknowledged she still needed to finish all of her reunification services.
The juvenile court noted mother had attended six mental health sessions with Uplift in the month after the status review report was prepared. The court found that although the services provided by the department to mother were not perfect, they were reasonable. Concerning mother’s contention she was originally referred to the wrong parenting class, the court noted mother was dropped from parenting classes for missing three classes and was then incarcerated. After mother’s release, she started the nurturing parenting class, which she later learned was for older children. Mother was then referred to the EPU class for the Incredible Years Parenting Program. The court found mother made the most progress in this component of her services.
The court found that after mother’s release from custody, she had a mental health assessment recommending participation weekly in victim treatment sessions, but she did not start those therapy sessions until recently. The court noted services were offered to mother in March 2017 and again at the disposition hearing in June. The court found mother failed to take her need for services seriously until January 2018, when mother finally made some effort. The court stated mother had continuous outbursts in her substance abuse programs as well as at visitations with her daughter. The court believed this showed mother had not made much progress. Mother also missed nine visits with her daughter, though one of those was due to the care provider. The court was concerned that some of mother’s missed visits were because she smelled of marijuana. The court observed it was reviewing the September through December 2017 time frame.
The court noted domestic violence was the issue causing the child’s dependency. There were restraining orders on both parents. The court found mother’s progress in dealing with the domestic violence issue was “minimal at best.” Mother failed to attend domestic violence classes between April and July 2017 and had to be reenrolled in both the batterers intervention program and the child abuse batterers program. Even after mother’s release from jail, she was rereferred to the domestic violence program, completed enrollment in December 2017, and again missed two classes for each program.
The court held that return of the child to mother would create a substantial risk of detriment to the minor’s safety, physical, and/or emotion well-being. The court found by clear and convincing evidence that reasonable services were offered to mother and they were designed to aid mother in overcoming the problems leading to the detention and removal of the child. The court found the department complied with the case plan by making reasonable efforts to return the child to a safe home. The court found mother’s progress toward alleviating or mitigating the causes necessitating her child’s placement in foster care were “minimal.” The court continued the child as a dependent of the court and terminated further family reunification services to mother.
DISCUSSION
Dependency Review Hearings
When a child is removed from parental custody, the juvenile court must, except in certain circumstances, order the social worker to provide reunification services to the parent. (§ 361.5, subd. (a); In re Jesse W. (2007) 157 Cal.App.4th 49, 59.) For a child who is under three years of age at the time of removal from custody, court-ordered services must be provided for a period of six months from the disposition hearing, but no longer than 12 months from the date of the jurisdiction hearing. (§§ 361.5, subd. (a)(1)(B), 361.49.)
A review hearing is held six months after the initial disposition hearing. (§ 366.21, subd. (e).) If a child is under three years on the date of initial removal, “and the court finds by clear and convincing evidence 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 three years of age 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.” (§ 366.21, subd. (e)(3).)
Even though the juvenile court is required to make its finding by clear and convincing evidence, we review the record in the light most favorable to the respondent to determine whether it discloses substantial evidence to support the juvenile court’s finding, bearing in mind the heightened standard employed by the juvenile court. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) We indulge all legitimate and reasonable inferences to uphold the juvenile court’s orders. When two or more inferences can be reasonably deduced from the facts, either deduction is supported by substantial evidence and a reviewing court is without power to substitute its deductions for those of the trial court. If substantial evidence supports the juvenile court’s finding, we will not disturb it. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
Reasonableness of Reunification Services
Mother argues there is insufficient evidence in the record to establish she was offered reasonable reunification services. We disagree.
It is the job of social service agencies to assist parents with inadequate parenting skills in remedying the sources of the issues leading to the dependency, not to eradicate the problems themselves. As part of its reasonable services finding, the juvenile court must find the supervising agency offered services targeting the family’s problems leading to the loss of custody, offered services tailored to remedy those problems, and made reasonable efforts to help the parent comply with court-ordered services, even where compliance has proved difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) Reunification services should be tailored to the particular needs of the family. 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. The burden is on the petitioner to show the evidence was insufficient to support the juvenile court’s findings. (In re A.G. (2017) 12 Cal.App.5th 994, 1001; In re J.E. (2016) 3 Cal.App.5th 557, 566.)
Domestic violence was the most serious factor leading to this dependency action. Mother was referred to two batterer programs. Another cause of the dependency was mother’s acknowledged abuse of marijuana. The department attempted to get mother successfully participating in an inpatient treatment program and to have random drug testing. To facilitate testing, the department obtained a waiver of fees for mother to enroll in testing if she did so within 60 days. Services to address domestic violence and her drug dependency were included in mother’s case plan along with referrals to obtain those services from at least the time of the jurisdiction hearing in April 2017.
Another cause of the dependency was mother’s mental health status. Mother was previously diagnosed with a bipolar disorder. Mother had stopped taking the medication she was prescribed by her doctor to treat this condition. Mother was referred for a mental health assessment and treatment with individual therapy. Mother never had the mental health assessment that was part of her court-ordered case plan. The department also tried to get mother enrolled and participating in parenting classes. Mother complains on appeal she was originally sent to a parenting class for older children; she did, however, begin to participate in classes appropriate for her child’s age in October 2017. Even so, mother had unexplained absences from parenting classes. The department also set up visitation between mother and her daughter, which mother usually attended with some exceptions.
The services offered mother followed those ordered by the juvenile court. The department offered appropriate services tailored to mother’s particular needs to ameliorate the issues leading to this dependency. Mother never sought to add services to her case plan. Mother argues there was no evidence she was involved in the development of her case plan. The department, however, was not obligated to have mother tailor her own case plan. The department had a legal obligation to help mother overcome those problems leading to the dependency with the goal of mother’s reunification with her daughter.
Mother testified at trial and argues in this petition that she needed a cultural broker to assist her with social workers. It was mother’s failure to follow through with referrals and services and not any difficulty in her ability to communicate with social workers that led to the juvenile court order terminating mother’s reunification services. A cultural broker would have made little difference to a parent reluctant or hostile to the reunification process.
Although the services offered mother may not have been perfect in an ideal world, they were reasonably tailored to mother’s needs and designed to effectuate the child’s return to mother’s custody. There is no merit to mother’s assertion that she was not offered adequate reunification services.
Mother’s Lack of Progress in Her Reunification Plan
Mother argues there was not substantial evidence she failed to make progress in her reunification plan. We disagree.
The objective of the dependency statutory scheme is to protect abused or neglected children as well as those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed time. When a child is removed from the home, the court attempts to reunify the family for a specified time. If the specified time has expired and the efforts to reunify the family have failed, the court must terminate reunification efforts and set the cause for a hearing pursuant to section 366.26 for the selection and implementation of a permanent plan. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1008–1009.)
Pursuant to subdivision (e)(1) of section 366.21, “[a]t the review hearing held 6 months after the initial dispositional hearing, but no later than 12 months after the date the child entered foster care as determined in section 361.49, whichever occurs earlier, after considering the admissible and relevant evidence, the court shall order the return of the child to the physical custody of his or her parents or legal guardian unless the court finds, by a preponderance of the evidence, that return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” This subdivision of the statute further provides: “The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court … shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided ….”
Between April 2017 and early January 2018, mother failed to show serious commitment to her reunification plan. More than once, mother was dismissed from domestic violence classes for her failure to attend. Mother was originally dismissed from an inpatient drug treatment program for being disruptive to staff and failing to follow the program’s code of conduct. Mother enrolled in a new program in December 2017, but was soon dismissed for inadequate attendance. Mother reenrolled in the second inpatient program in late December 2017, more than six months after the disposition hearing. Mother consistently failed to random drug test for the department. Mother failed to have a mental health assessment or to attend individual therapy. Mother initially failed to attend parenting classes, and though she began to attend them, she still had unexplained absences. Mother regularly visited her daughter, but missed visitations when she cancelled, did not show up, or came too late. Mother was not allowed to visit on two occasions when she came to the visits smelling of marijuana.
By December 2017, mother began two domestic violence courses at the Marjaree Mason Center but missed two classes that month in each course. Mother finally started receiving individual therapy and attended an inpatient treatment program on the eve of the review hearing. Mother did not begin individual therapy, however, until nearly seven months after the disposition hearing.
There was substantial evidence before the juvenile court that mother was not serious about pursuing or implementing her reunification plan. It is particularly troubling that mother failed to enroll and attend domestic violence classes until long after the disposition hearing. Mother’s stay in jail had some effect on her ability to receive services, but her limited incarceration does not explain why mother waited so long to enroll in and receive most of her reunification services.
Mother’s behavior was belligerent toward staff during initial attempts to get her through inpatient drug treatment. Mother failed to attend classes in which she enrolled and postponed engagement in domestic violence until near the end of the initial six months of services. Although domestic violence was a significant problem and a major contributing cause of the dependency, mother did not treat this issue seriously.
Under section 366.21, subdivision (g)(1), the juvenile court should continue services to the parent “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 or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian.” To extend services under subdivision (g)(1) of section 366.21, the juvenile court must find: “(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child. [¶] (B) That the parent or legal guardian has made significant progress in resolving problems that led to the child’s removal from the home. [¶] (C) The 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.” (Ibid.)
Although mother consistently and regularly visited her child, she failed to make significant progress in her case plan due to her own conduct. Importantly, mother failed to demonstrate the capacity and ability to complete the objectives of her treatment plan and to provide for her child’s safety, protection, and well-being. Given mother’s failure to engage in those reunification services that most directly led to her child’s dependency, the juvenile court did not abuse its discretion in finding mother had not made significant progress in her case plan and in ordering the termination of mother’s reunification services.
Returning Minor to Mother’s Custody During Inpatient Treatment
Mother argues the trial court erred in failing to return E.E. to mother’s custody while mother was undergoing inpatient drug treatment. There is no evidence in the record to support mother’s argument. At the time of the review hearing, mother had only begun a drug treatment program she should have started some eight months earlier. Mother was far from being stable enough to regain custody of E.E. Mother had only recently started trying to fulfill the services in her reunification plan and had only started the domestic violence program and individual therapy.
The presumptive rule for children under the age of three on the date of removal is court-ordered services shall not exceed the period of six months from the date the child entered foster care. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 174–175.) The unique developmental needs of infants and toddlers justifies a greater emphasis on establishing permanency and stability earlier in the dependency process in cases with a poor chance for family reunification. (Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1027; M.V., supra, at pp. 174–175.) Also, unless there is a likelihood the child will be returned to the parent’s custody within the statutory time frame, the total reunification period of 12 months is not extended even if the six-month review hearing occurs past the initial six months that occurred here. (See Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 846–848.)
Mother’s failure to even attempt to obtain many of her most important reunification services until just before the review hearing dramatically dropped the likelihood she would be able to reunify with her daughter within a year of the child being taken into custody. Mother asserts the court should have changed its custody order to permit E.E. to live with her in an inpatient treatment facility, but her assertion is not based on any evidence or circumstance in the record justifying such an order. The only evidence to support this assertion is mother’s testimony that the inpatient treatment center permits children to stay with their parents during treatment. Given mother’s failure to seriously pursue all of the reunification services offered her since the inception of her child’s dependency, the juvenile court would have been derelict in its duty to the best interests of the child if it restored custody to the mother under mother’s precarious circumstances.
Conclusion
“[T]he Legislature has mandated that the juvenile courts consider ‘the best interests of the minors in all deliberations.’” (In re J.C. (2002) 104 Cal.App.4th 984, 992–993, quoting § 202, subd. (d), and In re Sade C. (1996) 13 Cal.4th 952, 993, fn. 20.) Mother failed to substantially comply with her case plan. Continuing further reunification services to mother or allowing mother to have custody of her daughter during inpatient treatment would not have been in the child’s best interests. The juvenile court did not err in failing to grant mother custody of her child while she was beginning her inpatient drug rehabilitation and did not abuse its discretion in terminating mother’s reunification services.
DISPOSITION
Mother’s request for a stay of dependency proceedings before the juvenile court is denied. The orders of the juvenile court, including termination of reunification services to mother, are affirmed. Our decision is final in this court.