Filed 2/25/22 In re S.S. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County, Lisa A. Brackelmanns, Juvenile Court Referee. Reversed and remanded.

Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.

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Mother L.P. appeals the juvenile court’s reasonable services finding made at the six-month review hearing concerning her child S.S. Finding the order is appealable, and that the finding is not supported by substantial evidence, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

This is mother’s second appeal. We affirmed the jurisdictional orders and orders terminating jurisdiction with a custody order for S.S.’s two older half siblings, who are not at issue in this appeal. (In re So.H. (Feb. 5, 2021, B306822) [nonpub. opn.].) This appeal concerns only the child S.S.

This family came to the attention of the Los Angeles County Department of Children and Family Services (Department) in April 2020, following a domestic violence incident between mother and S.S.’s father. At the detention hearing, S.S. was detained and placed with maternal grandmother.

Mother denied using drugs. After the social worker confronted mother with a picture of her smoking marijuana posted on her social media account, mother became upset, insisting marijuana is legal and that she should not be required to test. When the social worker cautioned about the importance of having proper supervision for the children while using, mother reported she is “not with her children every day and that they are in the care of maternal grandparents and great-grandmother.” She then implied that it was okay to smoke in front of the children but then said she only smokes outside.

Mother tested positive for marijuana on April 22, 2020. According to the father of mother’s older children, mother smoked marijuana in front of the children, and in the car with them. Mother was an “avid user” of marijuana while they were in a relationship. One of mother’s older children told the Department that mother “does not smoke that much” and that mother would tell her to leave the room when she was smoking. Mother drinks alcohol, and once got angry and hit the television with a bottle.

At the July 8, 2020 jurisdictional hearing, mother testified she smoked marijuana twice a day for pain and for her appetite. She does not have a medical recommendation for marijuana, because it is “legal.” Before it was legal, she had a doctor’s recommendation for medical marijuana. Mother usually smokes outside on the patio or in the yard. The children are supervised by other family members when mother smokes. Mother said she does not get impaired to the point of being unable to care for the children. (In re So.H., supra, B306822.)

The juvenile court sustained allegations under Welfare and Institutions Code section 300, subdivision (a), based on domestic violence between mother and father. (All further statutory references are to this code.) The court also sustained allegations under section 300, subdivision (b), that mother “has a history of substance abuse and is a current abuser of marijuana, which renders the mother incapable of providing regular care for the children.” The court removed S.S. and her two older half siblings from mother and terminated jurisdiction over the half siblings with a custody order granting custody of those children to their father.

The court ordered mother was to receive reunification services for S.S., including domestic violence classes, random and on demand drug testing, a full drug program if she missed a test or tested positive, parenting classes, individual counseling, and monitored visitation. The juvenile court ordered that the section 366.21, subdivision (e) six-month review hearing would be held on February 26, 2021.

According to the Department’s February 2021 status review report, S.S. was still living with maternal grandparents and thriving in their care. Mother was employed full time with the U.S. Postal Service. Mother and the Department social worker maintained monthly phone contact, although the report does not discuss what was discussed during those contacts. Mother met face-to-face with the social worker on August 17, 2020, but it does not appear that the case plan was discussed at this meeting. However, according to the report, the social worker explained the case plan to mother on September 28, 2020 and October 23, 2020. Mother told the social worker she could receive services through her employer as part of her benefits package.

In November 2020, December 2020, and January 2021, mother told the social worker she was receiving individual counseling to address case issues through her employee assistance program at work. The social worker believed mother was benefiting from therapy, and was gaining insight and growing.

The Department’s report admitted that “due to an oversight” by the social worker “mother was unable to participate in on demand drug testing.” However, the Department provided mother with a referral for drug testing on February 3, 2021.

In February 2021, mother informed the Department that her employer had not provided her with parenting or domestic violence classes because of the pandemic. Therefore, the Department provided referrals to mother on February 3, 2021.

The February 2021 review hearing was continued to April 15, 2021, after mother requested a contested hearing to challenge whether the Department had provided reasonable services.

The Department’s April 2021 report noted that mother started therapy in December 2020 through her employer. According to mother’s therapist, mother had sessions once a week, and she had “grown and is very strong.” She was learning to be accountable for her behavior. Her progress was “astounding.”

Mother enrolled in parenting classes on March 19, 2021. However, mother had not enrolled in domestic violence classes, claiming she had not received the resources the Department had mailed to her. The Department provided those resources again, but this time by e-mail. Mother confirmed receipt of the resources on April 2, 2021. On April 5, 2021, mother confirmed she had completed her intake appointment for domestic violence classes.

On April 5, 2021, mother reported she had not received the testing instructions to submit to drug testing. Mother had missed tests on February 8, 22, March 1 and 15. The social worker e-mailed the instructions to her.

The Department’s delivered service log reflects that mother was provided with referrals for free domestic violence, individual counseling, and parenting classes on August 26, 2020. It also reflects that on September 28, 2020, mother told the Department she could access services through her employer’s employee assistance program. The social worker called mother on October 26, 2020, and left her a message. The next contact with mother was on February 2, 2021. Mother was receiving individual counseling, but the other services were not available through her employer because of the pandemic. These are the only contacts memorialized in the delivered service log.

At the April 15, 2021 review hearing, mother argued the Department had not provided reasonable services. The delivered service log did not reflect regular contact with mother, and the social worker did not confirm mother’s enrollment in services until February 2021, right before the scheduled review hearing. Moreover, the Department failed to provide mother with a drug testing referral. The Department conceded that mother was not referred to testing, but argued the services provided were otherwise reasonable.

The court found the Department complied with the case plan, and the social worker “made efforts to stay in touch with the mother, and that it’s also important for the mother to follow through” and reach out to the Department if she had difficulties accessing services. The court concluded that “overall, the Department has complied with providing reasonable services.” The court found mother to be in partial compliance with her case plan, continued mother’s reunification services, and set a 12-month review hearing for October 13, 2021. Mother timely appealed.

DISCUSSION

1. Appealability

The Department argues the reasonable services finding at the six-month review hearing is not appealable, reasoning mother was not aggrieved by the order because she was ordered to receive additional reunification services.

Pursuant to section 395, the juvenile court’s dispositional and subsequent orders are directly appealable, with the exception of an order setting a hearing under section 366.26, which must be challenged by extraordinary writ. The Department relies on Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, where the court concluded a reasonable services finding was not appealable because the parent was not “aggrieved” by the finding, since the juvenile court ordered additional reunification services, found the mother was in compliance with her case plan, and took no adverse action against her. (Id. at pp. 1152–1154.) The court treated the appeal as an extraordinary writ and addressed the merits, acknowledging that the reasonable services finding was “against a parent or legal guardian’s interest in reunification” and could impact future appealable orders, and would not be reviewable on appeal from those subsequent orders. (Id. at p. 1156.)

Melinda K. was questioned by the court in In re T.G. (2010) 188 Cal.App.4th 687 (T.G.). In T.G., the court reasoned “a parent or child can [be] aggrieved by a reasonable services finding at the time of the six-month review hearing if it is not supported by substantial evidence. Such a finding can put the interests of parents and children in reunification at a significant procedural disadvantage” because reunification services are generally limited to 12 months (§ 361.5, subd. (a)). (T.G., at p. 695.) A heightened showing is required at the 12-month review hearing to justify additional reunification services; the parent must show she has the ability to complete the case plan, which can be difficult to show if she did not participate in services for the first six months of the reunification period (§ 366.21, subd. (g)). (T.G., at p. 695.) An erroneous reasonable services finding at the six-month review hearing could be insulated from appellate review from a subsequent order. (Id. at p. 696.)

“Under these circumstances, it is obvious it would be significantly more difficult for a parent to either reunify with a child or to satisfy the heightened showing required for a continuation of reunification services if the parent was not provided with reasonable services during the first six months of the reunification period.” (T.G., supra, 188 Cal.App.4th at p. 695.)

We find the reasoning in T.G. persuasive and will reach the merits of mother’s appeal.

2. Merits

The Department must make a good faith effort to provide reasonable reunification services “ ‘ “specifically tailored to fit the circumstances of each family [and] designed to eliminate those conditions which led to the juvenile court’s jurisdictional finding.” ’ ” (In re K.C. (2012) 212 Cal.App.4th 323, 329.) At the six– and 12–month review hearings, the juvenile court must determine whether the Department provided “reasonable services” to the parent during that review period. (§ 366.21, subds. (e)(8), (f)(1)(A).) It is the Department’s burden to establish it has provided reasonable services. (§ 366.21, subds. (e)(1), (f)(1).)

“ ‘To support a finding reasonable services were offered or provided, “the record should show that the [Department] identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult.” ’ ” (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1240, quoting Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426.)

We review the juvenile court’s reasonable services finding for substantial evidence. (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 419–420.) We view the evidence in the light most favorable to the juvenile court’s ruling, resolving conflicts and indulging all reasonable inferences in favor of the finding. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

Mother does not dispute that the services ordered by the court were appropriate. Instead, she argues the Department failed to maintain reasonable contact with her, the Department failed to offer reasonable services because it did not provide the court-ordered drug testing referral until the eve of the review hearing, and the court applied the wrong legal standard when it found the Department “made efforts” to stay in touch with mother.

Here, the Department admitted an “oversight” in failing to provide mother with a drug testing referral until February 2021, the same month the review hearing was originally calendared, and nearly seven months after the court’s dispositional order requiring mother to drug test and participate in various programs. We conclude the reasonable services finding is not supported by substantial evidence. (See In re T.W.-1 (2017) 9 Cal.App.5th 339, 348 [reasonable services finding was not supported by substantial evidence where there was a three-month delay in providing father with contact information for service providers, and the Department failed to provide any services relating to substance abuse and housing].)

The Department contends its “oversight” was harmless because the court ordered six more months of reunification services. We disagree. As discussed ante, the erroneous reasonable services finding placed mother at a significant disadvantage. Because S.S. was under three years old when she was removed from mother, mother had precious little time to reunify with her. Depriving mother of the first six months to address her substance use issues necessarily makes it harder for mother to reunify with S.S. (§ 361.5, subd. (a)(1)(B) [parents of children under the age of three at the time of removal are only entitled to six, and possibly 12 months of reunification services]; § 366.21, subd. (g)(1) [reunification services can be continued beyond the 12–month timeframe only if “there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent . . . .”]); see also T.G., supra, 188 Cal.App.4th at pp. 695–696.)

DISPOSITION

The reasonable services finding is reversed, and the juvenile court is directed to enter an order finding reasonable services were not provided to mother at the time of the six–month review hearing.

GRIMES, Acting P. J.

WE CONCUR:

WILEY, J. Harutunian, J.*

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.