Filed 6/2/22 F.B. v. Superior Court CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In this writ proceeding, petitioner F.B. (Mother) requests that this court vacate the juvenile court’s March 10, 2022 order setting a Welfare and Institutions Code section 366.26[1] permanency planning hearing on June 30. (Cal. Rules of Court, rule 8.452.) She contends insufficient evidence supports the court’s findings and the court erred in reducing visitation. We deny Mother’s petition.

BACKGROUND

The underlying juvenile dependency proceeding was initiated by a March 2021 petition (Petition) filed by the Contra Costa Children and Family Services Bureau (Bureau) alleging that Mother’s son F.M. (Minor), born that same month, was within the jurisdiction of the juvenile court under section 300. The Petition alleged Minor was at risk of serious harm due to, among other things, Mother’s substance abuse.[2] On April 2, the juvenile court ordered that Minor be detained.

The Bureau’s detention/jurisdiction report explained, in relevant part, that Mother tested positive for amphetamines and marijuana five times during her pregnancy with Minor, four of the occasions between January 2021 and Minor’s birth in March. Following a June contested jurisdiction hearing, the court sustained the Petition based on the allegations regarding Mother’s substance abuse. At a July disposition hearing, the juvenile court directed the Bureau to provide Mother reunification services and directed Mother to comply with the Bureau’s case plan. The case plan required Mother to engage in visitation, complete a parenting education class, obtain a substance abuse assessment and follow the treatment recommendations, and participate in random drug testing. The case plan warned, “No show for a test will be considered positive.”

In a December 2021 six-month status report, the Bureau recommended termination of reunification services. Mother had been referred to a substance abuse support group, but there was no evidence of Mother’s participation. Between May and November, Mother tested negative ten times but missed thirteen drug tests. Mother was dropped from a parenting program because she missed classes. In November, Mother saw a psychiatrist. She was being treated for adjustment disorder and amphetamine abuse. She was not prescribed medicine but was referred for therapy. Mother generally participated in visitation and it generally went well, although there were some concerns with Mother falling asleep or arguing with Minor’s father during visits.

The juvenile court conducted a contested review hearing in March 2022. The Bureau’s social worker testified Mother had not provided verification of participation in the substance abuse support group to which she had been referred. Mother claimed to be attending Narcotics Anonymous meetings, but she had provided no verification. Mother tested negative twice in January, but she missed three other tests in January and missed all five of her tests in February. Mother had not completed a parenting education program. Mother missed a follow-up appointment with her psychiatrist in December and no further appointments were scheduled. According to the psychiatrist, there was a nine-month wait list for therapy. Mother testified she was enrolled in a parenting class scheduled to start later in the month.

In announcing its ruling, the juvenile court stated, “[W]e are almost a year in, about 10 months in, on a case that was a six-month case due to the baby’s age.” Among other things, the court observed that Mother had failed to appear for 21 drug tests and had failed to complete any component of her case plan other than visitation. Regarding visitation, the court expressed concern about Mother sleeping and arguing with Minor’s father during visits. The juvenile court terminated reunification services to both parents and set the matter for a section 366.26 hearing on June 30, 2022. The court adopted the Bureau’s recommendation to decrease the visitation from a minimum of two times a week to a minimum of once a month.

The present writ petition followed. This court issued an order to show cause, and the Bureau filed a return.

DISCUSSION

I. Applicable Law

“ ‘[F]amily preservation is the first priority when dependency proceedings are commenced.’ [Citation.] To that end, ‘[w]hen a child is removed from a parent’s custody, the juvenile court ordinarily must order child welfare services for the minor and the parent for the purpose of facilitating reunification of the family.’ [Citations.] [¶] . . . Whereas services are presumptively provided for 12 months to children over the age of three and their parents (§ 361.5, subd. (a)(1)), the presumptive rule for children under the age of three on the date of initial removal is that ‘court-ordered services shall not exceed a period of six months from the date the child entered foster care.’ (§ 361.5, subd. (a)(2) [citation].) The ‘ “unique developmental needs of infants and toddlers” ’ [citation] justifies a greater emphasis on establishing permanency and stability earlier in the dependency process ‘ “in cases with a poor prognosis for family reunification.” ’ ” (M.V. v. Superior Ct. (2008) 167 Cal.App.4th 166, 174 (M.V.); accord Fabian L. v. Superior Ct. (2013) 214 Cal.App.4th 1018, 1026–1027 (Fabian L.).)

“The third paragraph of section 366.21, subdivision (e), requires a specialized inquiry at the six-month review for children like [Minor], who are ‘under the age of three years on the date of the initial removal’ and are not being returned to the custody of their parents at that time. For such dependent children, if ‘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 [s]ection 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child ... 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), italics added.)” (M.V., supra, 167 Cal.App.4th at p. 175; accord Fabian L., supra, 214 Cal.App.4th at p. 1027.)

“Thus, there are two distinct determinations to be made by trial courts applying the third paragraph of section 366.21, subdivision (e). First, the statute identifies specific factual findings—failure to participate regularly and make substantive progress in the court-ordered treatment plan—that, if found by clear and convincing evidence, would justify the court in scheduling a .26 hearing to terminate parental rights. But this inquiry does not require the court to schedule a .26 hearing (‘the court may schedule a hearing’). [Citations.] Instead, it authorizes the court to set such a hearing if the required findings have been made.” (M.V., supra, 167 Cal.App.4th at pp. 175–176; accord Fabian L., supra, 214 Cal.App.4th at pp. 1027–1028.)

“The second determination called for by the third paragraph of section 366.21, subdivision (e), protects parents and guardians against premature .26 hearings. Notwithstanding any findings made pursuant to the first determination, the court shall not set a .26 hearing if it finds either[:] (1) ‘there is a substantial probability that the child ... may be returned to his or her parent ... within six months ...’; or (2) ‘reasonable services have not been provided ...’ to the parent. (§ 366.21, subd. (e).) In other words, the court must continue the case to the 12–month review if it makes either of these findings.” (M.V., supra, 167 Cal.App.4th at p. 176; accord Fabian L., supra, 214 Cal.App.4th at p. 1028.)

“We review the juvenile court’s findings for substantial evidence, and the juvenile court’s decision-making process based on those findings for abuse of discretion.” (San Joaquin Hum. Servs. Agency v. Superior Ct. (2014) 227 Cal.App.4th 215, 223 (San Joaquin).) “[W]hen reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996; see also In re V.L. (2020) 54 Cal.App.5th 147, 155.)

II. Analysis

Mother argues insufficient evidence supports the juvenile court’s finding she failed to participate and make progress in her case plan. She also argues the juvenile court erred in finding there was no substantial probability of return and she received reasonable services. Finally, she argues the juvenile court erred in reducing the amount of visitation with Minor. Mother does not argue the juvenile court abused its discretion in setting the section 366.26 hearing, assuming the court’s findings are supported by substantial evidence.

We first reject Mother’s contention that she participated regularly and made substantive progress in her treatment plan. The record shows Mother was dropped from a parenting program because she missed classes, she failed to attend appointments with her psychiatrist after the first appointment, and she failed to present evidence of participation in any substance abuse support services.[3] More fundamentally, Mother missed a large number of drug tests, including all five February 2022 tests, and the case plan warned her missed tests would be treated as positive. Even if there was some hope Mother might start complying with her case plan in some respects by the time of the 12-month hearing, “the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that” Mother had not participated regularly or made substantive progress in her treatment plan. (Conservatorship of O.B., supra, 9 Cal.5th at pp. 995–996.)

We next reject Mother’s contention the juvenile court erred in finding “by clear and convincing evidence that there is not a substantial probability that [Minor] may be returned to the physical custody of [Mother] by May 26, 2022, even if services are extended to that date.” She argues, “considering [Mother’s] background and the efforts she had made there was a substantial probability [Minor] may be returned by the 12-month date which was two months away from the hearing date.” That conclusory assertion has no persuasive force. In light of Mother’s broad lack of progress in her case plan, the juvenile court’s finding was well supported by the record.

Mother also argues the juvenile court erred in finding “by clear and convincing evidence that [the Bureau] has provided or offered reasonable services . . . .” “To provide reasonable services, the Agency must identify the problems which led to the loss of custody, design services to remedy the problems, maintain reasonable contact with the parent, and make reasonable efforts to assist the parent when compliance has proved difficult. [Citation.] The question is not whether more or better services could have been provided, but ‘whether the services were reasonable under the circumstances.’ ” (San Joaquin, supra, 227 Cal.App.4th at p. 224.) Mother argues the services provided by the Bureau were unreasonable because the Bureau failed to do enough to address her mental health.

Mother’s contention fails because assumption of jurisdiction was not based on any mental health issues. The Petition alleged assumption of jurisdiction over Minor was necessary because Mother “has a serious, chronic, and long standing poly substance abuse problem that places the child at substantial risk of physical harm and neglect.” Because mental health issues were not “the problems which led to the loss of custody” (San Joaquin, supra, 227 Cal.App.4th at p. 224), addressing Mother’s mental health did not need to be “the ‘starting point’ for a family reunification plan.” (Patricia W. v. Superior Ct. (2016) 244 Cal.App.4th 397, 420.) The cases Mother cites in which a parent’s mental illness was the basis for assumption of jurisdiction are inapposite. (See T.J. v. Superior Ct. (2018) 21 Cal.App.5th 1229; Patricia W.; In re K.C. (2012) 212 Cal.App.4th 323; In re Elizabeth R. (1995) 35 Cal.App.4th 1774.)

Furthermore, Mother failed to take advantage of the mental health services provided by the Bureau. The Bureau provided Mother counseling referrals in April and June 2021. But Mother did not meet with a mental health professional until November, and she missed the follow-up appointment with that psychiatrist and “there were no appointments scheduled after.” Mother cites to evidence the psychiatrist told the Bureau’s social worker there was a nine-month waiting list for therapy, but Mother cites no evidence she was on the waiting list, or when she was placed there. Again, she was first referred to counseling in April 2021. Nor does Mother cite any evidence she requested assistance from the Bureau in finding a therapist. Mother’s failure to engage in mental health services was not due to the Bureau’s failure to provide services.

Finally, Mother contends the juvenile court erred in decreasing visitation from a minimum of twice per week to a minimum of once per month. But she cites no authority it was improper for the court to reduce visitation after termination of reunification services. (Cf. In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505 [unless visitation is denied altogether, juvenile court must, pending section 366.26 hearing, “ ‘ensure that at least some visitation at a minimum level determined by the court itself, will in fact occur.’ ”].) Neither has Mother shown the juvenile court abused its discretion in reducing the frequency of visitation, given that, “[o]nce the reunification services had been terminated, the focus of the case shifted away from reunification to providing a permanent, stable placement for” Minor. (In re Marilyn H. (1993) 5 Cal.4th 295, 304.)

DISPOSITION

The writ petition is denied.

SIMONS, J.

We concur.

JACKSON, P. J.

BURNS, J.

(A164772)

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

[2] The Petition also contained allegations regarding Minor’s father, but he is not involved in the present writ proceeding.

[3] Mother’s petition asserts she was on a waiting list for therapy, but the provided record citation only reflects the psychiatrist’s assertion that there is such a waiting list, not that Mother was on the waiting list, or when she was placed there.