Jessica S. v. Superior Court

Filed 9/5/06 Jessica S. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after reference to a Welfare and Institutions Code section 366.26 hearing. Gary Bubis, Referee. Petition denied.

Jessica S., the mother of Jonathan S., seeks extraordinary writ relief under Welfare and Institutions Code, section 366.26, subdivision (l). (All statutory references are to the Welfare and Institutions Code unless otherwise specified; see also Cal. Rules of Court, rule 38.1.) Jessica challenges the juvenile court order terminating her reunification services and setting a section 366.26 hearing. Jessica contends reasonable services were not provided to her and she made substantive progress. We issued an order to show cause, the San Diego County Health and Human Services Agency (Agency) responded, and the parties waived oral argument. We have reviewed the petition on its merits and deny it.

FACTUAL AND PROCEDURAL BACKGROUND

On June 7, 2005, Agency filed a dependency petition on behalf of Jonathan, alleging he was at risk of substantial harm because he tested positive for drugs at birth, and Jessica, whose whereabouts were unknown, left him without any provision for support. (§ 300, subds. (b) & (g).)

Jonathan was on a respirator in the hospital's neonatal intensive care unit, suffering from congenital syphilis and liver dysfunction. Hospital staff said Jonathan's medical problems could have been prevented with routine prenatal care.

The maternal grandfather, Vincent S., told the social worker that Jessica was on probation for fraud and abusing drugs. Vincent thought there was an outstanding arrest warrant and said he doubted Jessica would appear in court for fear of being arrested. Jessica did not appear at the detention hearing. Jonathan was taken off the respirator by late June, but remained a high-risk baby in the neonatal intensive care unit.

Jessica did not appear at the jurisdiction/disposition hearing on June 28. The court found Jessica's whereabouts continued to be unknown and reasonable search efforts had been made. The court sustained the dependency petition, declared Jonathan a dependent child, and approved Jessica's case plan, which required her to undergo counseling and a psychological evaluation, and complete parenting classes and inpatient substance abuse treatment. On July 27, Jonathan was placed in a licensed foster home.

Jessica was arrested in August for burglary, theft and using a false identity. In October, the social worker learned of the arrest and spoke to Jessica, who was in custody at the Las Colinas Detention Facility. Jessica said she wanted custody of Jonathan but did not know how she could care for him because of his health problems. Jessica also said she would soon be placed in Family Foundations, a prison program for women who have children or are pregnant. The program allows mothers in recovery to have their children placed with them. Jessica anticipated she would remain at the Family Foundations program for two years. The social worker told Jessica that Jonathan's health problems would preclude placement there because he cannot be exposed to other children and had to be in a sanitary--almost sterile--environment at all times.

During the telephone conversation, Jessica offered to obtain the address for the Family Foundations program, but the social worker was late for an appointment and said she would acquire it herself. Jessica entered the Family Foundations program on October 31; however, the social worker was not able to locate the address and telephone number until December. When the social worker telephoned the program on December 2, a counselor said she could not give any information regarding an inmate in the program until the inmate signed a waiver.

On December 6, the court appointed counsel for Jessica.

In mid-January 2006 Jessica reestablished communications with the social worker by writing a letter explaining how to contact her at the Family Foundations.

Meanwhile, Jonathan was doing better in his foster home. However, he remained on oxygen 24 hours a day and received nebulizer treatments almost daily. Jonathan, who had chronic lung disease, was hospitalized three times. He did not leave the foster home except for doctor visits and relative contacts because exposure to too many germs would compromise his health and possibly his life.

In March, Jessica began having supervised visits with Jonathan once a week at the Family Foundations. The social worker reported Jessica acted appropriately during the visits.

The contested six-month review hearing was held on April 19 and May 16, which was one month shy of the date for the 12-month review hearing. By that time, Jessica was in phase three of the four-phase program at the Family Foundations. According to the program director, Jessica was doing very well in her individual counseling sessions, complied with program rules and staff directives, held a leadership position within the inmate population, and never tested positive for drugs while in the program.

The program director also stated that the counselor had erred when she refused to give the social worker the program's address the previous December.

Jessica said she could not participate in services at the Las Colinas facility because of her high bail. She was not able to contact the social worker when she first entered the Family Foundations program because initially she did not have telephone privileges and did not have the social worker's address.

Jessica said she volunteered to enter the Family Foundations program "because I needed help . . . and I want[ed] my children back, and I wanted to change my old ways so that I don't go back to it." Jessica said had she chosen instead to go to prison; her release date would have been prior to August 5, 2006, rather than October 31, 2006, her Family Foundations release date. After she completed the one-year Family Foundation program, Jessica planned to enter the Providence Placement program--a one-year treatment and employment program for female offenders--to help her transition back into the community. The Providence Placement program allows children to live with their mothers at the facility.

After considering the evidence, the court found returning Jonathan to Jessica's custody would be detrimental to the child's well-being, Agency had provided reasonable services to Jessica, and although Jessica had made some progress with the provisions of her case, there was no substantial probability Jonathan would return to Jessica's custody by the 12-month date. At the same time, the court acknowledged Jessica had "done an amazing job in her recovery program" and congratulated her. The court said it believed Jessica had "a good shot of staying sober." However, the court terminated reunification services and set a section 366.26 hearing because Jessica broke the law and was incarcerated, rendering herself unable to meet Jonathan's physical, emotional and medical needs, as the case plan required.

DISCUSSION

Jessica contends the court erred by terminating services because Agency did not provide reasonable services and she made substantive progress. The contention is without merit.

Reasonable Services

When a child is removed from a parent's custody, the juvenile court must order the child welfare agency to provide the parent with services designed to help the family reunify. (§ 361.5, subd. (a).) "[T]he focus of reunification services is to remedy those problems which led to the removal of the children . . . ." (In re Michael S. (1987) 188 Cal.App.3d 1448, 1464.) A reunification plan must be tailored to the particular individual and family, addressing the unique facts of that family. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) A social services agency is required to make a good faith effort to address the parent's problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult. (Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554-555.) Nonetheless, we recognize that in most cases more services might have been provided and the services provided are often imperfect. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) "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." (In re Misako R., supra, 2 Cal.App.4th at p. 547.) "The adequacy of reunification plans and the reasonableness of [Agency's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.)

Where the court orders services for an incarcerated parent, section 361.5, subdivision (e)(1) provides in part:

"Reunification services are subject to the applicable time limitations imposed in subdivision (a). [Subdivision (a)(2) provides that when the child is under the age of three years, court-ordered services shall not exceed a period of six months from the date the child entered foster care.] Services may include, but shall not be limited to, all of the following: [¶] (A) Maintaining contact between parent and child through collect phone calls. [¶] (B) Transportation services, where appropriate. [¶] (C) Visitation services, where appropriate. [¶] (D) Reasonable services to extended family members or foster parents proving care for the child if the services are not detrimental to the child. [¶] An incarcerated parent may be required to attend counseling, parenting classes or vocational training programs as part of the service plan if these programs are available."

We determine whether substantial evidence supports the reasonable services finding, resolving all conflicts favorably to the prevailing party and drawing all legitimate inferences to uphold the ruling. (In re Misako R., supra, 2 Cal.App.4th at p. 545.)

Our review of the record shows substantial evidence supports the court's finding that reasonable services were offered to Jessica. Jonathan was taken into protective custody because he tested positive for methamphetamine at birth, had congenital syphilis as well as a plethora of other serious medical problems, and Jessica had abandoned him. Jessica's case plan included counseling, a psychological evaluation, parenting classes, and substance abuse treatment. The case plan appropriately focused on Jessica's shortcomings, which "led to the removal" of Jonathan. (In re Michael S., supra, 188 Cal.App.3d at p. 1464.)

The problem was not with the services offered to Jessica; rather, it was with her bad choices in (1) going into hiding after abandoning Jonathan and (2) committing crimes. Agency's parent search was unsuccessful, and the messages for Jessica that the social worker left with Vincent were not returned. By making her whereabouts unknown, Jessica placed herself out of the reach of Agency and rehabilitative services. "It is . . . well established that '[r]eunification services are voluntary, and cannot be forced on an unwilling or indifferent parent.' [Citations.]" (In re Christina L. (1992) 3 Cal.App.4th 404, 414.) Further, Jessica's criminal lifestyle resulted in her confinement for almost three months at the Las Colinas facility, where she was not permitted to participate in services. A fundamental first step in fulfilling a reunification plan is remaining out of prison. (See In re Christopher A. (1991) 226 Cal.App.3d 1154, 1162.)

Jessica criticizes Agency for not contacting her sooner after her August arrest and after her placement in the Family Foundations program in late October. However, the social worker did not learn of Jessica's arrest until October and contacted her that month. Although we agree, in hindsight, that the social worker should have waited on the telephone and accepted Jessica's offer to retrieve the address of the Family Foundations program from her cell, this failing did not make the services unreasonable. The social worker made a good faith, albeit unsuccessful, attempt to obtain the address. Further, it was an unforeseen circumstance that the social worker contacted a Family Foundations counselor, who was ignorant of the program's protocol of giving information to social workers. As we have noted, "[t]he 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." (In re Misako R., supra, 2 Cal.App.4th at p. 547.)

To the extent that Jessica complains that Agency should have arranged visitation between her and Jonathan earlier, she is mistaken. Under section 361.5, subdivision (e)(1), Agency may offer visitation for an incarcerated parent "where appropriate." Visitation was not appropriate earlier because of Jonathan's severe health problems.

Substantive Progress with Case Plan

Ordinarily, when a child under the age of three years is removed from parental custody, reunification services are not to exceed a six-month period. (§§ 361.5, subd. (a)(2), 366.21, subd. (e).) Section 366.21, subdivision (e), provides that if the court finds at the six-month review hearing that the parent has not made substantive progress in his or her court-ordered treatment programs, the parent is not entitled to further services unless the court finds a substantial probability that the child will be returned to parental custody within six months or that reasonable services have not been provided.

In recognizing Jessica's success at the Family Foundations program, the court found she made "some" progress, which fell short of the requisite substantive progress. We apply the substantial evidence test. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)

Substantial evidence supports the court's finding that Jessica had not made substantive progress in her case plan. We recognize Jessica applied herself and was progressing well in the Family Foundations program; we commend her for the improvements she made. Nonetheless, although a parent's progress is an important factor in the court's decision to continue or terminate reunification, it is not determinative. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.) Instead, the court's decision turns on whether the parent's progress has eliminated the conditions leading to the child's removal. (Ibid.) The court observed Jessica did not remain crime free, which was an important service objective of her case plan, and her ensuing incarceration rendered her unable to comply with all components of the case plan. Jessica's decision to enter the aftercare program is an implied concession that she was not ready to parent Jonathan.

Moreover, in order to continue reunification services in this case, the court would have had to find Jessica was denied reasonable services or there was a substantial probability Jonathan would be returned to her custody within another six months. (§ 366.21, subd. (e).) Since we have already rejected Jessica's claim that she was denied reasonable services and Jessica does not argue there was a substantial probability of return, the court acted properly in terminating services. We find no error.

DISPOSITION

The petition is denied.

McINTYRE, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

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