Filed 11/8/18 In re L.P. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In this juvenile dependency proceeding, J.B., mother of L.P.,[1] appeals from a December 11, 2017 order following the dispositional hearing and a January 22, 2018 order following an interim review. J.B. also petitions for extraordinary review of a June 6, 2018 order following the six-month review in which the court terminated mother’s reunification services and scheduled a Welfare and Institutions Code[2] section 366.26 hearing to determine the child’s permanent placement. Pending our resolution of the petition, we granted mother’s request to temporarily stay the section 366.26 hearing. Lake County Department of Social Services (agency) opposes both the appeals and the petition. On our own motion, we have consolidated the appeals and writ proceeding.

In her appeals from the December 11, 2017 and January 22, 2018 orders, mother contends the juvenile court erred in requiring her to comply with the agency’s recommendation that mother test free of drugs before each visit with the child. She contends that because she could not comply with the drug testing requirement, the agency effectively terminated her right to visit during the entire reunification period. In her petition, mother contends the agency failed to arrange for reasonable visitation and appropriate supportive services to address her mental health. Mother seeks reinstatement of reunification services and visits with the child. We conclude mother’s contentions have no merit. Accordingly, we affirm the orders entered on December 11, 2017, and January 22, 2018, and deny the petition for an extraordinary writ on the merits.

FACTS

I. Background

On September 5, 2017, the agency filed a petition under section 300, subdivision (b) (failure to protect), alleging, among other things, that the 11-day-old child was at substantial risk of harm because 28-year-old mother had substance abuse issues for which she failed or refused to seek rehabilitation,[3] mother had used methamphetamines throughout her pregnancy, at the time of the child’s birth both mother and the child tested positive for methamphetamine and cannabinoids/THC, and mother had mental health issues. At the jurisdictional hearing, the court found the child was a person described in section 300 and placed the child in the agency’s custody. Mother was granted supervised visits for “at least 1 time [sic] per week for a total of at least 2 hours per week,” with the proviso that “[a]nyone who appears to be under the influence of alcohol or any controlled substance will not be allowed to participate in a scheduled visitation with the child. The visitation supervisor may terminate the visit if this order is violated.”

II. December 11, 2017 Order Following Dispositional Hearing

Before the disposition hearing, the agency filed a report regarding the family’s circumstances. The social worker informed the court that mother had been referred for drug treatment based on her admission that she was using methamphetamine once or twice a day. Mother refused to enter an inpatient program but accepted a referral for an outpatient program. Mother had not complied with the requirements of outpatient treatment: She attended only 13 of 24 sessions, did not attend any Narcotics Anonymous meetings, and did not comply with the daily urinalysis drug testing protocol. Although mother was complying with the agency’s weekly saliva drug testing protocol, her eight tests were positive for methamphetamine and amphetamine, and three tests were also positive for THC. Mother had participated in one-on-one counseling sessions to address her mental health issues of anxiety and depression symptoms. Mother was working on strategies to cope and was scheduled for an evaluation of her depression medication. Since the child’s detention at the end of September 2017, and through the beginning of November 2017, mother had twice weekly one-hour visits. The 17 visits had been successful, with mother holding the newborn child while the child slept through most of each visit, and mother telling the child that she loved and missed the child. Mother had not fed the child or changed the child’s diaper during the visits. The social worker further reported: “Initially, [mother] was to have her visits at the [drug treatment] program so she did not have to leave and miss groups. Since [mother] has not been attending her scheduled groups, she is no longer having visits at the [drug treatment] program. The [agency] is worried that [mother] may be under the influence of methamphetamine during her visits and must be closely supervised by the Social Worker. The [agency] is unable to verify if [mother] is under the influence of methamphetamine because she is not able to submit an instant urinalysis test, therefore the [agency] cannot cancel a visit if she is under the influence. Due to [mother’s] continued substance abuse and lack of compliance with the [drug treatment] program, the [agency] recommends [continuing] twice a week visits for an hour each. However, based on her continued drug use the [agency] will be asking that [mother] submit to an instant urine test to verify if she is testing positive for methamphetamines. If she tests positive, or refuses to urine test, the visit will be cancelled.”

The disposition hearing was held on two days, November 13, 2017 and December 11, 2017. The court adjudged the child a dependent of the court, removed the child from mother’s physical custody, and placed the child in the agency’s custody for out-of-home foster care placement. The court directed the agency to provide reunification services, and mother was ordered to “participate in the reunification services stated in the case plan[.]” In her case plan, mother was required “to participate in Behavioral Health counseling sessions . . . with 90% attendance and no unexcused absences” and “to be an active participant in the classroom and receive positive progress reports from the service provider.” Mother was also required “to attend an inpatient or outpatient [substance abuse] program recommended by Lake County AODS [Alcohol and Other Drug Services],” “to come to the [agency] office before or after each supervised visit to submit drug tests,” and to “submit clean, unadulterated drug/alcohol tests a minimum of twice a week through the [agency], AODS, or another program approved by the [agency] and/or the Juvenile Court.” Mother was “to remain clean and sober in order to provide adequate care and supervision to her [child,] . . . to demonstrate that she underst[ood] the negative effects that substance use has on her child[,] . . . to recognize triggers to using substances and . . . identify coping strategies to avoid certain triggers[, and] . . . to develop a support network to support her in sobriety and that can intervene in the event that [she] relapses.” The court granted mother two one-hour weekly visits, to be supervised by an agency worker. The court’s order again included the directive that “[a]nyone who appears to be under the influence of alcohol or any controlled substance will not be allowed to participate in a scheduled visitation with the child. The visitation supervisor may terminate the visit if this order is violated.” And the court additionally ordered that “[t]he [agency] will be asking that [mother] submit to an instant urine drug test before each visit to verify if she is testing positive for methamphetamines or other illegal drug[s] or substances. If she tests positive, or refuses to urine test, the visit will be cancelled.”

III. January 22, 2018 Order Following Interim Review

An interim review hearing was held on January 22, 2018, to further consider the drug testing requirement before visits. At that time, mother’s counsel informed the court that before the drug testing requirement had been imposed, mother’s visits had been going “well.” Counsel argued that the drug testing requirement should be vacated because the court had no authority to suspend mother’s visits if she tested positive for drugs because the test result would not necessarily establish mother was under the influence at the time of the visits. The agency’s counsel argued that mother’s positive test results before visits put the child in danger, and drug testing before visits was necessary because the visit supervisor could not determine whether mother was under the influence of drugs during a visit. The court amended its order by increasing mother’s visits to two 2-hour visits for a total of four hours per week, with the proviso that mother was “ ‘to be drug and alcohol free before she can visit’ ” with the child. The court found that given mother’s use of methamphetamine, the agency had good cause to believe mother was under the influence every time she visited the child, and the agency could require mother to submit to a drug test before visits and to cancel any visit if mother did not test clean for drugs. The court commented that nothing would be gained by removal of the drug testing requirement because if mother did not successfully address her substance abuse problem she would not be able to reunify with the child. The court opined that the drug test requirement would provide mother with an added incentive to address her substance abuse problem.

IV. Six-Month Review

Before the six-month review in early June 2018, the agency filed a report with the court, recommending termination of mother’s reunification services and the scheduling of a section 366.26 hearing to determine the child’s permanent placement. The recommendation was based on the circumstance that for the last six months (November 2017 to the beginning of May 2018) mother had failed to participate and/or complete the components of her case plan: contact with the social worker, maintenance of suitable housing, completion of parent education classes, participation in individual mental health counseling, participation in substance abuse rehabilitation program, participation in substance abuse testing, and visiting the child. The social worker specifically reported that after mother had been discharged from an intensive outpatient drug program, the social worker made several attempts to refer her to “a higher level of care[.]” However, mother refused to accept services, stating, at various times, that she would participate “when she was ready,” she was using methamphetamine and THC, and she did not want to participate in residential drug treatment. Mother was offered the opportunity to visit with the child on 40 occasions between the filing of the disposition report on November 9, 2017, and May 1, 2018. Mother submitted five drug tests in November 2017, and each result was positive for methamphetamine and THC. Her scheduled visits with the child for November 17, 2017, and November 28, 2017, were canceled because mother tested positive for methamphetamine and THC. She had not submitted to a drug test or scheduled a visit since November 28, 2017. Nor had mother responded to the agency’s monthly letters (December 2017 to April 2018) requesting that she participate in substance abuse and counseling services.

On June 6, 2018, the juvenile court held a contested six-month review hearing, at which time the court heard testimony from mother and the social worker. The court also considered the agency’s reports.

Mother admitted she was a drug addict for at least 10 years and she was not physically capable of stopping “cold turkey[.]” She asserted that she used drugs to treat “[d]epression, pain, physical pain.” Mother acknowledged the child had been removed from her care because the child had tested positive for methamphetamine. After the child had been removed from her care, mother had 17 visits before the agency started to ask her to drug test before visits. She did not quite understand the need to test clean of drugs before visits because she had initially been allowed visits even though she had drugs in her system. Mother had managed to stop using drugs for five days, but she still tested positive for drugs. When she was not able to test clean for drugs and her visits were canceled on two or three occasions in November 2017, mother just “lost it” and “went downhill from there”; she “just kind of disappeared.” Once her visits had stopped, mother made no attempt to participate or complete the other components of her case plan. At the time of the hearing, mother had not seen the nine-month-old child for approximately five months, since November or December 2017.

Mother further testified that on May 14, 2018, she spoke with the agency social worker who again offered to refer mother for drug rehabilitation services. At that time, mother submitted to a drug test and tested positive for methamphetamine and marijuana. She refused to attend inpatient drug treatment, asserting she had not succeeded in the past and she was tired of failing. She initially refused to submit to a drug assessment, but she changed her mind and had scheduled an assessment two weeks before the June 6, 2018 hearing. Mother recognized the significance of the court-ordered services to enable her to reunify with the child and that there was an expectation that she would participate and complete services. However, she told the social worker that six months was not enough time to meet the agency’s reunification requirements, that it was “impossible,” that she did not have suitable housing, and that she had “some mental issues on top of that.” Mother felt her child had already been taken from her and she was never going to see the child again. Mother believed that if she were allowed visits she would be motivated to participate in other reunification services. However, she was not willing to participate in residential drug rehabilitation, only outpatient treatment.

Mother also confirmed that the social worker had referred mother to counseling to address mother’s depression. Mother claimed, however, that the counseling was not sufficient because she had counseling when she was a little girl and it never did anything for her. Mother was not aware of any program, except for an inpatient program, that would help her address both her mental health and substance abuse issues. Mother also confirmed that she was told she needed to submit to a mental health assessment to determine appropriate services and medication. However, mother never submitted herself for the assessment, and she had tried medication but it did not work.

The social worker confirmed that after mother tested positive for drugs before her November visits, mother stopped participating in all other reunification services. The social worker made efforts to remind mother of her obligations to complete her case plan through monthly letters and telephone conversations. The social worker was aware that mother had mental health issues relating to depression and that there was a connection between mother’s depression and her substance abuse. Mother attended counseling sessions with a therapist recommended by the social worker. The social worker discussed with mother her counseling services, and mother reported “it was working and was getting there.” In January 2018 mother terminated therapy with her counselor. The social worker did not refer mother to any treatment for “dual” diagnoses (of substance abuse and mental health) because the social worker believed that such treatment was available only as part of inpatient drug rehabilitation.

Following the arguments of counsel, the juvenile court terminated mother’s reunification services and scheduled a section 366.26 hearing to determine the child’s permanent placement. The court found that while the agency had offered mother reasonable services, by clear and convincing evidence, mother had failed to participate regularly and make substantive progress in the court-ordered treatment programs, and it was not in the best interests of the nine-month-old child for reunification services to be continued until the 12-month review. The court commented that while mother wanted to see her child, mother could not “do something [as] important” as addressing her substance abuse problem. The court reduced mother’s visits to one hour once a month and maintained the drug testing requirement before visits.

DISCUSSION

I. Appeals of December 11, 2017 and January 22, 2018 Orders

On her appeals from the December 11, 2017 and January 22, 2018 orders, mother limits her challenge to the juvenile court’s requirements that she test clean for drugs before visits (hereinafter referred to as drug testing requirements). We see no merit to mother’s contention.^[4]

In granting a parent reunification services, the juvenile court is required to provide for visitation “as frequent as possible, consistent with the well-being of the child” (§ 362.1, subd. (a)(1)(A)), and with the proviso that “[n]o visitation order shall jeopardize the safety of the child” (id., subd. (a)(1)(B)). The statutory scheme tasks the court with balancing the parents’ interests in visitation and the child’s well-being, which includes an “ ‘elimination of conditions which led to the . . . finding that the child has suffered, or is at risk of suffering, harm specified in section 300.’ ” (In re Julie M. (1999) 69 Cal.App.4th 41, 50.) Thus, while a juvenile court may grant a parent the right to visit, the court “may, of course, impose any . . . conditions or requirements to further define the right to visitation in light of the particular circumstances of the case before it.” (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)

In this case the juvenile court’s drug testing requirements were an appropriate implementation of the agency’s recommendation that “mother be free of drugs and alcohol before she visited her [child], as the reunification plan required.” (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.) “The record shows, and mother [does not dispute], that she has a substance abuse problem. Accordingly, requiring her to be drug and alcohol free before she could visit her [child] was reasonable to protect [the child’s] well-being.” (Ibid.; see In re Christopher H. (1996) 50 Cal.App.4th 1001, 1007-1008 [appellate court upheld dispositional order directive that father submit to random drug and alcohol testing as part of his reunification plan].) Mother argues, however, that the drug testing requirements were improper in this case because there was no substantial evidence that her supervised visits were detrimental to the child. We disagree. The Legislature has declared, “The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child.” (§ 300.2) In imposing the drug testing requirements, the court properly considered the overall family dynamics that led to the dependency. Mother admitted she had a serious methamphetamine problem for 10 years, which she had failed to adequately address and which had resulted in the child testing positive for drugs at birth. Thus, as the juvenile court found, there could be no question but that mother’s substance abuse posed “a potential risk of interfering with [her] ability to make a home for and care for” her child, and if she “[did] not discontinue [her] drug use . . . , [her] chances of regaining custody of [the child were] poor.” (In re Christopher H., supra, 50 Cal.App.4th at p. 1007.) Additionally, the court reasonably found the drug testing requirements would “facilitate [mother’s] compliance with the remainder of the reunification plan” and “provide an added incentive for [mother] to avoid illicit drugs . . . which [interfered] with [her] ability to provide a suitable home for [the child] and achieve reunification.” (Id. at p. 1008.) Despite mother’s argument to the contrary, the court’s drug testing requirements did not give the agency “absolute discretion” to determine whether mother would have visits with the child. Rather, the court’s imposition of the drug testing requirements appropriately gave the social worker an objective guideline “ ‘as to the prerequisites of visitation . . . .’ ” (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1377.)

Accordingly, we agree with the agency that the juvenile court did not err when it imposed drug testing requirements as predicates to mother’s visits with the child.

II. Writ Petition

In challenging the juvenile court’s order following the six-month review, mother argues that termination of her reunification services was improper because the agency did not provide reasonable visitation and appropriate supportive services to address her mental health needs. We disagree.

We initially reject mother’s contention that she is entitled to additional reunification services because the agency failed to provide reasonable visitation. As we have concluded, the juvenile court appropriately directed mother to drug test before visits, as required in her case plan. (Sara M. v. Superior Court, supra, 36 Cal.4th at p. 1018.) The agency canceled court-ordered visits when mother did not comply with the court’s drug testing requirement. Thus, mother’s failure to visit with the child was due to her decision not to comply with the court’s drug testing requirement.

Nor are we persuaded by mother’s contention that she is entitled to additional reunification services because the agency did not offer her supportive services to address her mental health needs. The jurisdictional findings were based on mother’s serious substance abuse problem and her mental health issues. The agency’s reunification plan appropriately focused on those issues, requiring mother to participate in substance abuse treatment and individual counseling. Mother contends that when her visits were canceled, and she just “lost it” and “went downhill,” the social worker should have done more than just provide minimal support by sending monthly letters encouraging mother to return to her therapist and drug rehabilitation. According to mother, the social worker should have arranged for further evaluations to assess mother’s mental health needs, provided resources to secure mother proper mental health medications, and, “[i]mportantly,” referred mother to a dual diagnosis program to address the connection between her mental health issues and her drug addiction. We cannot agree with mother’s contentions. The record shows that the agency provided services and recommended a therapist to address mother’s substance abuse and mental health issues. But mother chose to stop participating in reunification services that were geared toward addressing those issues. Despite her arguments to the contrary, mother failed to demonstrate she was not provided with reasonable reunification services under the circumstances. “If [she] felt during the reunification period that the services offered 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.) What mother could not do was “wait silently by” until the six-month review “to seek an extended reunification period based on a perceived inadequacy in the reunification services occurring long before that hearing.” (Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093.) “While reunification is the preferred outcome when it serves the interests of both parent and child, no interest is well served by compelling inadequate parents to shoulder responsibilities they are unwilling to accept or unable to discharge.” (In re Nolan W. (2009) 45 Cal.4th 1217, 1234.)

DISPOSITION

In case No. A153290, the order filed on December 11, 2017, is affirmed.

In case No. A153947, the order filed on January 22, 2018, is affirmed.

In case No. A154496, 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(h).) The temporary stay, issued by this court on August 2, 2018, is dissolved. Our decision is final immediately. (Cal. Rules of Court, rules 8.452(i) & 8.490(b).)

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Jenkins, J.

We concur:

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Siggins, P. J.

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Ross, J.*

A153290, A153947, A154496/In re L.P.