Filed 7/12/22 J.M. v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| J.M.,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE COUNTY,
Respondent;
ORANGE COUNTY SOCIAL SERVICES AGENCY et al.
Real Parties in Interest.
|
G061228
(Super. Ct. No. 20DP0236)
O P I N I O N |
Original proceedings; petition for writ of mandate to challenge an order of the Superior Court of Orange County, Robert Gerard, Judge. Petition denied.
Juvenile Defenders, Vincent Uberti and Tamara Ishrak for Petitioner.
No appearance for Respondent.
Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.
Law Office of Harold LaFlamme and Ian Araki for Minor.
* * *
J.M. is the mother of E.M., who was taken into protective custody following her birth in February 2020. Twenty‑five months later, in March 2022, the court terminated reunification services and scheduled the case for a permanency planning hearing pursuant to Welfare and Institutions Code[1] section 366.26.
J.M. petitions for relief from the order, arguing the evidence was insufficient to sustain the court’s determination that E.M. could not be safely returned to her care. She also argues the court erred by concluding it lacked authority to extend her reunification services past the 24-month limitation provided for by statute. We find no error and therefore deny the petition.
The evidence demonstrated that, while J.M. had addressed her substance abuse issues, she still had significant deficiencies in her parenting abilities; she also had unresolved cognitive and mental health issues, and she could not provide either safe and stable housing or provide for E.M.’s other needs. J.M. had recently been terminated from her residential shelter because she had not obtained employment, so she was living in various hotel rooms and stretching her food stamps to provide nourishment for E.M. Those circumstances supported the court’s finding that E.M. could not be safely returned to J.M.’s custody.
J.M.’s request for another continuance of an 18-month hearing that had already been continued for seven months was properly rejected. By the time of the hearing in March 2022, J.M. had received services for 24 months, the maximum period allowed by law. While there is authority which allows services to be ordered past the 24‑month point, that exception applies in cases where reasonable services were not provided earlier. In any event, if such authority existed, we would conclude, as a matter of law, that J.M. failed to demonstrate the extraordinary circumstances necessary to justify an additional continuance in this case.
FACTS
E.M. was taken into protective custody shortly after her birth in February 2020, based on J.M.’s history of substance abuse and extensive criminal history related to substance abuse, her prior dependency experience in which she did not reunify with E.M.’s half‑siblings, and concerns about her mental health and ability to provide E.M. with a safe and stable home. When the Orange County Social Services Agency (SSA) first contacted J.M. at the hospital following E.M.’s birth, J.M. claimed to be residing temporarily at Grandma’s House of Hope Transitional Housing Program (Grandma’s House), and acknowledged she had a history of homelessness.
J.M. also acknowledged her history of substance abuse, stating her “substance of choice is methamphetamine.” She claimed she had last used methamphetamine in September 2019, before knowing she was pregnant. She stated that prior to her relapse in September 2019, she had been sober for approximately seven years.[2]
The dependency petition, filed on February 24, 2020, alleged failure to protect under section 300, subdivision (b)(1)‑(7), based on allegations J.M. had used methamphetamine during her pregnancy, she had an unresolved substance abuse problem, unresolved mental health issues, an extensive criminal history, and a history of domestic violence.
The petition also alleged jurisdiction was appropriate based on J.M.’s abuse of E.M.’s maternal half-siblings. The sustained petition relating to those half‑siblings alleged J.M. “has demonstrated a serious lack of parenting skills due to her own borderline functioning [and] has unresolved mental health problems to include, but not limited to, significant erratic, impulsive, and aggressive behaviors, borderline intelligence and functioning, [and a] history of at least one prior psychiatric hospitalization at Capistrano by the Sea Hospital when [J.M.] was 14 years old.” It also alleged J.M. “failed to participate in ongoing mental health treatment which impairs her ability to effectively care for and protect the children.” J.M. failed to reunify with those half‑siblings.
E.M. was ordered detained. In its April 1, 2020 jurisdiction/disposition report, SSA reported that E.M. had been placed in a foster home. SSA did not recommend reunification services and stated its initial case plan goal was adoption. However, J.M. was provided with referrals for services and was granted visitation with E.M.
On June 11, 2020, the parties agreed to proposed orders and findings, including that the allegations of the petition be found true, that vesting custody of E.M. with J.M. would be detrimental, and that reunification services would be provided to J.M. J.M. submitted to the petition, and the court made orders in accordance with the parties’ stipulation.
J.M.’s new case plan, reflecting the stipulated goal of reunification, focused primarily on therapy, substance abuse treatment, and parenting classes. Supervised visitation was to be for a minimum of eight hours per week.
J.M. attended therapy beginning in April 2020; she informed SSA she had completed therapy in August 2020. SSA responded that she could not unilaterally declare her course of therapy complete and advised the decision was to be made jointly with the therapist. J.M. agreed to return to therapy.
J.M. enrolled in a recovery maintenance program in May 2020; her program contact reported J.M. appeared to be sober and working on her recovery, although she also “noticed the mother’s rapid speech, disorganized speech and need for frequent redirection.”
Although J.M. was initially anxious during visitation, SSA reported “[o]ver time [she] has shown more confidence.” While the foster parents reported concerns about whether J.M. was feeding E.M. appropriate amounts during visitation, and whether she was handling diaper changes correctly, her interaction with E.M. was good. J.M. sang to E.M., read books to her, and held her as she slept.
In October 2020, J.M. successfully petitioned for an increase in visitation to 13 hours per week, relying on evidence that she had been evaluated as not “meet[ing] the medical necessity criteria to be eligible for specialty mental health services”; she had maintained her residency at Grandma’s House, was participating in 12-step programs and substance abuse treatment, and was attending therapy on a regular basis.
In connection with the six-month review hearing in December 2020, SSA reported that J.M. had made moderate progress and recommended reunification services should be continued. SSA noted that J.M.’s visitation had recently been liberalized to include two hours of unsupervised visitation per week, and stated J.M. had demonstrated an “ability to consistently, appropriately and adequately parent [E.M.] by feeding [her], changing [her], nurturing and loving [her] during the visitations.”
SSA nonetheless reported that J.M. “continues to struggle with permanent housing, employment and financial stability, and at times, motivation.” J.M.’s shelter case worker reported she was “very concerned regarding [J.M.’s] lack of employment and seemingly lack of interest in finding employment.” She stated J.M. would have to find employment within two to three weeks or exit the shelter. J.M. reported that if she reunified with E.M., she hoped to ‘“go on welfare,”’ both the social worker and the shelter case manager informed her that government assistance is not a long-term solution. The social worker encouraged J.M. to search for employment outside her field of interest while she was waiting to get a new dental assistant certificate, such as dental reception, billing, or filing.
The social worker also reported a conversation with J.M. in which she “kept speaking in circles,” and complained her social worker ‘“is always negative”’ and ‘“has pre-judgment.”’ In a subsequent meeting with the social worker, J.M. had “difficulty staying on the topic.” The social worker noted “t is possible that when the mother is nervous, anxious, she may ramble on without realizing it and it seems as if she often does not realize she is doing it.” The social worker asked J.M. repeatedly what her concerns and worries were; J.M. finally responded that “she still needs to find permanent housing.” J.M. wanted the social worker to put her on a list for “free housing”; the social worker told her there were no programs offering long-term free housing.
At the six-month review hearing, the court found that J.M. had received reasonable reunification services, and that returning E.M. to her custody would create a substantial risk of harm. The court continued reunification services for an additional six months and set a progress review hearing for February 2021 to address visitation issues and to get an update on J.M.’s mental health.
SSA reported at the hearing that as of December 31, J.M. had two more sessions scheduled with her therapist at Grandma’s House, but she indicated the therapist moved to another program. J.M.’s case worker at Grandma’s House agreed to refer her to a new therapist unless she was required to leave the shelter. As of February 10, 2021, J.M. had not been assigned a new therapist.
Visitation continued to go well, but on one occasion, E.M. sustained a scratch on her face during visitation and J.M. did not know how it happened. She believed the foster parents were accusing her in connection with the scratch, and she did not want them involved in dropping off E.M. for visitation due to their “conflict of interest.” The location of visitation was changed to accommodate J.M.’s request.
SSA reported at the 12‑month review hearing that J.M. continued to participate in a substance abuse program and to regularly test with negative results. Still without a permanent therapist, J.M. continued to speak with her perinatal counselor weekly via videoconference. However, on April 5, 2021, J.M. was “exited” from Grandma’s House due to an incident where she was observed kissing an unknown man who dropped her off. That violated the shelter’s policy prohibiting disclosure of its location to an unknown male which put all residents at risk.
When the social worker spoke to J.M. about the incident, her speech was “rapid, disorganized and difficult to understand.” The social worker was concerned J.M. still had significant mental health issues that were exacerbated by her lack of permanent housing, or that J.M.’s lack of suitable housing was the cause of her mental health challenges. J.M. later informed the social worker she had enrolled herself into a residential recovery program intended to help people who suffer from issues that prevent them from living Christ-centered, productive lives. She stated the new shelter allows children to be sheltered with parents and would support reunification.
J.M.’s visitation was expanded to 15 hours of unsupervised time and three hours of supervised time per week. Although the foster parents reported continuing concerns that J.M. was underfeeding E.M. during visits (which they inferred because E.M. sometimes ate too fast following a visit, to the point of vomiting), the visits otherwise seemed to be going well.
As of March 2021, J.M. was still without a permanent therapist. The social worker inquired if she had signed the counseling referral form. J.M. responded she was ‘“still filling it out.”’ When the social worker pointed out there was nothing to fill out and that the form only needed a signature, J.M. stated she wanted to just continue therapy with her perinatal counselor. The social worker replied the perinatal counselor was not appropriate as she specialized in substance abuse, rather than mental health issues.
J.M. remained at her recovery shelter. She stated she had her own room and E.M. could visit overnight. She had baby-proofed the room and gotten a crib. She reported she was still applying for jobs and going to interviews. J.M. was also participating in a parent wellness program that provided ‘“parenting support”’ and ‘“brief therapy.”’ She continued to test negative for drugs.
The 12-month hearing was continued from April 2021 to June 2021; in the interim, the foster parents raised more concerns about whether J.M. was feeding E.M. properly during visitation and at the proper times. They highlighted that during supervised visitation, the monitor’s notes were not always consistent with J.M.’s own notes about E.M.’s food intake. Based on that information, the social worker requested to change the court order to require that all of J.M.’s visitation be supervised. The court set a hearing on the motion to coincide with the scheduled 12‑month hearing.
SSA recommended termination of reunification services at the 12‑month hearing. SSA’s report noted continuing concerns about whether J.M. was feeding E.M. appropriately during visitation, and that she had yet to secure employment. It also noted J.M. would be required to pay her current shelter “back pay” for living there when she found employment.
J.M. began sessions with the in-home parenting coach in July 2021. The coach reported the first session went well. Nonetheless, the coach reported J.M. “required a lot of redirecting during the session and [she] talks over the coach a lot.” J.M. suggested to the social worker that E.M. should be taken to a nutritionist to get a second opinion about her eating issues. J.M. continued to exhibit some rapid and disorganized speech.
After the 12-month hearing, SSA withdrew its request to modify visitation. The parties stipulated to requested findings, including that continued supervision was necessary, reasonable services had been provided, and services should be extended to an 18-month review hearing, which was set for August 2021. The court made the requested findings and ordered an Evidence Code section 730 psychological evaluation of J.M. to be completed before the 18‑month hearing.
In its August 2021 report, SSA requested the 18-month hearing be continued to allow completion of the 730 evaluation. SSA also reported about two visits to E.M.’s pediatrician attended by both the social worker and J.M. The pediatrician determined E.M. continued to be underweight and diagnosed her with ‘“slow weight gain.”’ The pediatrician suggested the types of food she should be eating. Based on her interaction with J.M. during the visit, the pediatrician expressed privately to the social worker that she had concerns about J.M.’s “inability to complete a thought,” and she was worried J.M.’s scattered thinking might affect her ability to care for E.M. The pediatrician suggested J.M. might be forgetting to feed E.M. during visits because she was scattered and manic. The pediatrician also questioned how J.M. kept food cold for E.M. during a lengthy visit, and when told J.M. freezes yogurt the night before, the doctor stated that was insufficient to ensure the food she is providing E.M. remains safe to eat for an extended period. J.M. responded to the concern by stating she would get a cooler.
A week later, the social worker made an unannounced visit during one of J.M.’s unsupervised visitations. J.M. reported she had thrown away some string cheese earlier because it felt warm. She fed E.M. portions of a ‘“lunchable”’ and after E.M. was finished, the social worker determined the ‘“lunchable’ was not cold to the touch and felt warm.” During the visit, J.M. consistently exhibited rapid speech.
The court continued the 18-month hearing to September 2021.
On September 11, 2021, the psychologist completed her section 730 evaluation. Based on J.M.’s performance on various tests, the psychologist evaluated her as being in an impaired neuropsychological range, with a low average or borderline verbal comprehension. The psychologist noted J.M. had “difficulty staying on track and giving a relevant response” and that her comprehension deficits suggested “an underlying cognitive disorder which is exacerbated by hypomanic activation.”
The psychologist did not believe J.M. showed any propensity for intentional abuse of E.M., noting J.M. “really loves her little girl.” But she believed the risk was “higher for inadvertent neglect, due to inattention, distraction, [and] disorganization based on cognitive factors and/or hypomania.” She noted that J.M. had been accused of misrepresenting things, but suggested as an alternative that “at times [J.M.] does not remember what has transpired.”
The psychologist opined that J.M. “needs an ongoing combination of psychiatric care/monitoring and determining whether she is a candidate for psychotropic intervention of her hypomania. She needs ongoing therapy that will focus on practical steps needed to live on her own and to meet the needs of the child. She needs help in organizing and planning ahead.” The psychologist believed the “main issue here is that [J.M.] adamantly denies that she has any kind of mental disorder.” Thus, “[t]he biggest problem . . . will be to get [J.M.] to accept psychiatric services and for a trial of medication to be administered.” If those goals were achieved, the psychologist encouraged J.M.’s return to the psychologist for retesting to see if there had been any cognitive improvement.
The foster parents continued to complain about feeding and diaper changing issues during visitation. The foster agency worker informed SSA that J.M. had disclosed she had a boyfriend, and an unidentified male was observed with J.M. and E.M. during an unsupervised visit. There was concern that J.M. was not paying enough attention to E.M. during visitation, once not noticing that E.M. had fallen down.
In September 2021, the court and counsel received the section 730 evaluation. The court authorized SSA to allow one overnight visit per week, “if SSA sees that mother is addressing her mental health and safety issues.” The 18-month review hearing was continued to November 2021 and J.M. was referred to a psychiatrist for medication evaluation.
In October 2021, the social worker had several conversations with J.M. about making an appointment to see a psychiatrist. J.M. gave various reasons for her inability to schedule the appointment. The social worker reached out to several providers to try to facilitate the process. The social worker texted J.M. that she could call OC Links (providing the phone number) and ask to be referred to a psychiatrist. J.M. responded, “Ok thanku so much.” The next day, the social worker was scheduled to meet with J.M. in person so she could further assist J.M. with making an appointment to see a psychologist; however, J.M. did not show up for the meeting and the social worker’s calls to her went straight to voicemail.
On October 8, J.M. told the social worker she ‘“works at the school’ by the shelter to ‘pay rent.”’ On October 20, J.M. reported that she was no longer “working” for the shelter and was engaged in a job search.
Pursuant to the parties’ agreement, the 18-month hearing was continued to December 2021, and the court ordered J.M.’s visitation liberalized to include one overnight visit per week.
J.M. had her first overnight visit on November 3, 2021. The social worker observed the visit. No concerns were reported. J.M. had her psychiatric intake appointment on November 10, and the psychiatrist asked J.M. to contact a lab to have bloodwork done, which she planned to do before her next scheduled appointment on December 8. She continued to test negative for drugs.
J.M. advised her social worker on November 29 that she had 30 days to find a job, or she would be forced to leave the program.
In December 2021, SSA asked for an additional 30-day continuance “to allow [J.M.] to complete additional overnight visitations with [E.M.].”
The foster parents were upset at the prospect of overnight visits, although they agreed E.M. appeared to be in good spirits after the first overnight. They continued to have minor complaints about E.M.’s condition on her return from visits. They were also concerned about some of her behavior, which they attributed to J.M.’s influence; the social worker indicated some of these behaviors seemed age appropriate but suggested they discuss with E.M.’s pediatrician at her next visit.
The overnight visit on December 8 was problematic. E.M. had a fever earlier in the week, which was just being brought under control, but J.M. wanted to go through with the visit. J.M. was provided with a bottle of liquid Tylenol and instructed to give it to E.M. at specific times and to take her to urgent care if her condition worsened. Rather than following these directions when E.M.’s condition apparently worsened, J.M. cut the overnight visit short, and took E.M. back to the foster agency early with a request that her foster parents take her to an urgent care. The foster parents took E.M. to urgent care immediately. When evaluated at urgent care, E.M. reportedly had a fever of 103 degrees, strep throat, and an ear infection. The foster parents noted that based on the amount of liquid Tylenol remaining in the bottle they provided, J.M. had not administered all of the scheduled doses.
J.M. missed her December 8 visit with the psychiatrist, telling the social worker she had forgotten about it. The social worker encouraged her to reschedule the appointment. J.M. told the social worker she had ‘“lots of job interviews”’ scheduled.
The social worker asked J.M. to purchase a thermometer before her next overnight visit, and J.M. agreed. She stated she did have a thermometer but could not find it because she had ‘“switched rooms”’ at the shelter and her things were not organized. When the social worker suggested delaying the December 14 overnight visit, as E.M. was not yet fully recovered, J.M. refused, stating ‘“that would be unfair to me.”’ J.M. insisted she bore no responsibility for E.M. being sick, and that she “would have taken her to urgent care if she had a temperature but she didn’t.”
The social worker stated she did not believe J.M. had taken E.M.’s temperature properly, or that she may not have known how to read the thermometer. The social worker told J.M. she would probably come by to see her during the next visit to ensure she understands how to take and read E.M.’s temperature. J.M. again insisted that E.M. did not have a temperature during their prior visit; the social worker countered that she must have, since she was ‘“burning up”’ when J.M. brought her to the foster agency.
Ultimately, the December 14 overnight visit was cancelled because E.M. was not yet fully recovered. The social worker suggested that since the visit was cancelled, J.M. should use the time to reschedule her psychiatrist appointment and try to get her blood work done. However, J.M. did not complete her blood work until December 28.
On December 31, 2021, J.M. was required to leave her shelter because she had not found employment. She reported to the social worker that she was staying at an Extended Stay America with the financial help of a “friend from church,” but that she would have to leave on January 7, 2022. J.M. said she knew the social worker would want to see the room, which was on the second floor and advised it had a kitchen.
The social worker suggested J.M. contact the Orange County Rescue Mission to inquire about entering their program; J.M. rejected the suggestion, stating she had “heard bad things about that place.”
J.M. had her follow up appointment with the psychiatrist on January 4, 2022. The psychiatrist concluded J.M. did not meet the criteria for a bipolar diagnosis so she did not prescribe her any medication. The psychiatrist wanted to continue seeing J.M. every four weeks, and said she was willing to reevaluate her if new symptoms or concerns arose. She also told J.M. she wanted her to be in weekly therapy.
At a hearing on January 12, the court admonished J.M. as to the importance of giving immediate attention to E.M.’s medications and temperature. The court ordered J.M. to “seek immediate medical attention upon the child having a slight temperature, even one (1) degree, or signs of sickness and immediately take the child to Urgent Care.” SSA was authorized to terminate overnight visits if another issue arose but, with those stipulations, the court ordered that overnight visits would recommence upon the location being assessed and cleared. The 18-month hearing was continued to February 2022.
J.M. maintained her refusal to consider housing through the Orange County Rescue Mission, claiming it was too restrictive, although she did report contacting other shelter programs. On January 10, she reported to the social worker that she had obtained another week of housing at a Motel 6 near Disneyland. On January 12, the supervising social worker made an unannounced visit to the motel, after SSA made various unsuccessful attempts to contact J.M. by telephone to advise her about the visit.
J.M. told the supervising social worker she was not prepared for a visit, having just returned from court, but she allowed the social worker to enter after taking a few minutes to get dressed. J.M. had been in the room since January 7, with a check-out date of January 14; she stated she had the money “from church” to pay for an additional week. J.M. did not have any of E.M.’s things in the room because she had not anticipated SSA would visit so soon. However, she told the social worker she had food available on her “EBT card.” The social worker advised her she would need to see E.M.’s actual clothing, formula and food in the hotel room, and that J.M. would have to cover all the outlets in the room to make it safe for E.M.; she also gave her other safety tips. The social worker told J.M. to contact her with proof that she had done those things by January 16, in order to start her overnight visits.
During the visit, an unknown man entered the room, apparently with a key, carrying food for J.M. and himself. J.M. identified the man as her friend from church and explained that all of E.M.’s things were in his car. She said he “has been her support” and provided her with transportation assistance. The social worker warned J.M. that she could not have her male friend in her motel room around E.M., and that if she did, her overnight visits would be cancelled. J.M. said she understood.
On January 13, J.M. contacted the social worker to ask for a new bus pass because she left hers at the prior shelter. She stated she did not have transportation to visit E.M. until her friend got off work at 4:30 p.m.. The social worker told E.M. she needed to demonstrate more independence to show she can travel without SSA’s assistance, since SSA would not be involved in her life forever.
On January 17, J.M. notified the social worker that she had moved to the Rodeway Inn in Buena Park, which was cheaper but still nice. She promised to childproof the room. The social worker asked her if she had any job interviews lined up; J.M. replied she did not. J.M. stated she had contacted a few programs for housing, apparently without success. The social worker reminded her again to reach out to the Orange County Rescue Mission, noting that her church would not pay for her motel rooms indefinitely.
When the social worker assessed the room at the Rodeway Inn, she noted it had no smoke detector. She also reviewed with J.M. the proper use of a thermometer, noting that J.M. had reported E.M.’s temperature as 91 degrees on a visitation note. The social worker also told J.M. that since she was no longer living at a shelter, she would have to start participating in regular 12-step meetings. After offering other safety suggestions, the social worker apparently allowed the overnight visit. On January 19, the social worker informed J.M. that any motel or hotel room would have to include working smoke detectors, or it would not be approved.
On January 21, the social worker learned that J.M. had ceased participating in her perinatal program in August 2021, although she had scheduled and rescheduled appointments for a period thereafter. Her perinatal case was closed on January 18, 2022, due to her not receiving any services for 30 days.
On January 25, J.M. reported she was still at the same Rodeway Inn, but she was in a different room that had a smoke detector. She described the smoke detector as “hanging from the ceiling,” but stated the motel manager tested it and determined it was working. The social worker told J.M. she would come and assess the room at 5:00 p.m. J.M. was “talking in circles about not calling her attorney,” and then started rambling and speaking very fast.
When the social worker assessed the room, she found it clean and there was sufficient food in the refrigerator and small freezer. The smoke detector was working. J.M. informed the social worker she had taken E.M.’s temperature and it was 91.9 degrees. The social worker told J.M. that did not sound like an accurate reading. J.M. responded by saying, ‘“she wasn’t hot.”’
The foster parents continued to have concerns about whether E.M. was getting enough to eat during her visits with J.M., noting she was often hungry after visits. They expressed concern that she was sometimes unkempt and unclean. There was also a report that E.M. referred to an “other daddy,” which caused concern that J.M. was allowing her male friend to spend time with E.M. J.M. denied that.
When the social worker spoke to J.M. on January 31, she stated she would probably stay at the Rodeway Inn again for her overnight, and might get the same room that had been assessed the week before. She explained she stayed in ‘“cheaper”’ places on the nights she did not have overnight visits, which saved money for a ‘“nicer”’ room for overnight visits. She said the area around the Rodeway Inn is not ‘“that bad”’ because ‘“there are just prostitutes not that much drugs.”’ However, J.M. did not provide the social worker with information about her room in time to have it assessed, so she did not have an overnight visit that night.
SSA expressed concern in its report that J.M.’s pattern of moving from one hotel room to another, and waiting until the last minute to secure a room for her visitation night, was making it difficult for SSA to assess those rooms. It was also concerned J.M. was making no effort to find work, and noted she became defensive when the issue was raised, insisting ‘“it’s not a crime to be poor.”’ But as SSA noted, after two years of an open dependency case, J.M. was “still not able to provide for the basic needs for herself, let alone the needs of a child.”
After being continued again in February, the 18-month hearing finally commenced on March 11, 2022. SSA recommended termination of services and requested that the court schedule a permanency hearing pursuant to section 366.26.
The social worker testified J.M. completed her drug treatment program and consistently attended 12-step meetings until August or September 2021. She continued to test negatively, however, and the social worker was not concerned that J.M. had a current substance abuse problem. The social worker nonetheless had significant concerns about J.M.’s mental health, and she believed it affected her ability to care for E.M. because of her mania and disorganized thoughts. She believed J.M.’s mania contributed to her not remembering to feed E.M. regularly and not supervising her closely. The social worker noted the court ordered J.M. to seek psychiatric treatment, but she testified J.M. attended only two sessions which did not result in any diagnosis.
The social worker stated there were continuing concerns about J.M.’s ability to feed E.M., which was an issue because E.M. had a tendency to be underweight. She also believed E.M. was at substantial risk if returned to J.M.’s care because of issues pertaining to adequate and proper housing and basic needs like food, clean water, clean clothing, adequate supervision, and adequate hygiene. She did not believe J.M. had the capacity to respond properly if E.M. suffered a significant injury or illness, and did not have the capacity to ensure E.M. received proper nutrition or to ensure the food she ate was clean and safe.
The social worker testified she had no doubt that J.M. loved E.M., and she believed J.M. had tried to the best of her ability to reunify. She did not believe any of J.M.’s parenting failures were intentional. She said if there was anything else she could do to help safely reunify J.M. and E.M. she would do it, but her opinion was that there was nothing more that could be done.
J.M. testified as well. She stated she was living at the Rodeway Inn because “there’s a lot of waiting lists for dual [housing], for the parent and the child”; she explained the things she did to childproof the home to make it safe for E.M. She said she was looking for more stable housing. She also acknowledged she was not working; she described herself as a “retired dental assistant.” She stated she wanted to “go back to school.” J.M. said she was looking for employment and was last employed the prior October as an “entry‑level dental sterilization clerk” because she was “trying to get back into the dental assisting.”
In her closing, J.M.’s counsel argued J.M. had successfully addressed the initial concerns that led to the dependency, i.e., her history of substance abuse and relapse during pregnancy, and her potential mental health issues.
Counsel acknowledged that the section 730 evaluator indicated E.M. was at risk of “inadvertent neglect” due to J.M.’s cognitive issues and hypomania; she dismissed that opinion as “speculative.” She similarly dismissed as “pure speculation” the social worker’s concerns about J.M.’s lack of adequate housing, and her ability to properly manage E.M.’s feeding, hygiene, and need for medical care. She asserted that “mere speculation about possibilities and quibbles over parenting styles are not the types of concerns that may support severance of a family relationship.” She suggested SSA’s concerns amounted to “fussbudgetry, nitpicking over individual diaper changes or some minutiae littered throughout the reports.”
As an alternative to an order returning E.M. to her custody, J.M. asked the court to grant her an extension of reunification services under section 352, pointing out that E.M. was in a safe place and there were services that could be provided to address any lingering concerns if the court believed they were necessary.
SSA argued against any further continuance, pointing out that the case was at “25 months” because the 18-month hearing had already been continued numerous times by agreement. It asserted that E.M.’s need for permanency outweighed the theoretical benefit of extending reunification services yet again. E.M.’s counsel agreed with SSA.
After the parties concluded their arguments, the court explained its thinking. The court first dismissed the concerns about J.M.’s alleged failures with respect to diaper changing and sufficient feeding of E.M. during visitation. The court stated it nonetheless had significant concerns about J.M.’s ability to provide safe shelter for E.M. The court also noted that while J.M. had no mental health diagnosis, she had ignored the recommendation to see a psychiatrist every 30 days.
The court acknowledged the case had some similarities to this court’s opinion in [i]David B. v. Superior Court (2004) 123 Cal.App.4th 768 (David B.), but then distinguished David B. on the basis that (1) the father in that case had stable housing with family assistance and access to a vehicle, and (2) the father also “did everything he was asked to do.”
Based on all of the evidence, the court stated it was finding that return of E.M. to J.M.’s custody would create a substantial risk of detriment to her safety. The court stated it also found by clear and convincing evidence that the services provided to J.M. had been reasonable.
With respect to the section 352 motion, the court expressed its belief there was no reasonable probability that J.M. and E.M. could be reunified by a 24-month review hearing, if one were scheduled. The court stated, “there remains a probability. It’s just not substantial.” The court then said it would be setting the case for a section 366.26 hearing, but stated it would be a “soft .26,” meaning the hearing would be scheduled “as far out as possible,” and that J.M. would continue to receive services in the interim, including “substantial housing assistance” and “counseling sessions or a medical visit with the psychiatrist every 30 days between now and the .26.”
The court also stated it would be “nothing short of thrilled if we could take another swing of the bat at in-home parenting” and suggested the logistics of that possibility, including how it might be funded, could be discussed off the record.
After the court went back on the record, it acknowledged the parties’ suggestion that because the court day was coming to an end and its “indicated ruling” was going to “require some off-the-record dialogue regarding things like funding and so on, is that we sleep on this and call it a day today.” The court suggested that counsel work collaboratively to arrive at an agreement about the terms and conditions of a “soft .26” and present them when court reconvened.
At the next court session, the parties provided the court with a proposed stipulation requesting that the court make several findings, by clear and convincing evidence, including (1) that continued supervision is necessary and that returning the child to the parents would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the child; (2) that J.M. has made “substantial” progress toward alleviating or mitigating the causes necessitating placement; (3) that reunification services for J.M. be terminated; (4) that a section 366.26 hearing be held within 120 days; (5) that the child’s placement is necessary and appropriate; (6) that the court will adopt the recommendation in SSA’s report of March 11, 2022, as modified for a “soft .26”; and (7) that the matter is continued to July 18, 2022 for a section 366.26 hearing.
The “proposed soft 26 terms” were attached to the stipulation: (1) SSA would refer and assist J.M. in becoming a Telecare client; (2) SSA would refer and assist J.M. in going to the Prototypes program or assist her with other housing referrals; (3) in‑home coaching would be provided to J.M.; (4) SSA would assist J.M. in seeing her psychiatrist or other provider at Progeny on a weekly basis; (5) SSA would provide J.M. with bus passes; and (6) SSA would have the authority to liberalize visits.
When the hearing reconvened, counsel for J.M. again argued in favor of extending reunification to a 24-month review hearing. The court rejected that request in favor of the “soft .26” option, after confirming that counsel had reached an agreement as to the terms of that option. The court then ordered the “soft .26” in accordance with the parties’ proposed terms as well as a bonding study to be performed at the request of J.M.’s counsel.
DISCUSSION
1. Challenge to Finding that E.M. Could Not Be Safely Returned to J.M.’s Custody
J.M. first argues there is insufficient evidence to support the court’s finding that E.M. could not be safely returned to her custody. She argues that at the conclusion of every six-month review hearing, the court is obligated to return the child to parental custody unless the social services agency proves, by a preponderance of the evidence, that return would place the child at substantial risk of harm. As explained in David B., supra, 123 Cal.App.4th at p. 789, the standard is “a fairly high one. It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.”
J.M. contends that in this case, like David B., the concerns about her parenting skills were relatively minor, and that the court’s concerns about her housing situation—related to the absence of a smoke alarm and the presence of a man in her room—were similarly minor.
We find the argument unpersuasive for two reasons. First, J.M. requested that the court make the very finding she now challenges as part of a stipulation agreeing to the terms and conditions of the so-called “soft .26” order. Since she consented to the ruling she cannot challenge it on appeal. (Diaz v. Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1210; see also Delagrange v. Sacramento Sav. & Loan Assn. (1976) 65 Cal.App.3d 828, 831 [“Having consented to the judgment of dismissal, [plaintiff] may not appeal therefrom”]; Sorensen v. Lascy (1941) 42 Cal.App.2d 606, 608 [“t is an elementary and fundamental rule of appellate procedure that a judgment or order will not be disturbed on an appeal prosecuted by a party who consented to it”]; [i]In re Estate of Gurnsey (1923) 61 Cal.App. 178, 182 [“A party is not aggrieved by a consent judgment, or one which he has requested the court to decree”].)
Second, even if the issue were not waived, we would conclude the evidence supported the court’s ruling. The court’s concern about housing was not limited to the smoke alarm issue, or that a man entered her hotel room at a time when E.M. was not present. The court’s primary concerns, fairly interpreted, were that J.M. had no stable housing and no means of supporting E.M.
According to J.M.’s own description of her housing situation at the end of January 2022, she was living in a series of hotel rooms—cheaper rooms when she was alone and a “nicer” room only on nights when she had overnight visitation with E.M. Her hotel rooms were being paid for by either J.M.’s church or someone she knew from church. She explained she provided food for E.M. by using food stamps, and claimed she used the “majority” of her food stamps for E.M.
On the one hand, that evidence suggests J.M. was prioritizing E.M.’s needs, which is to be commended. On the other hand, it demonstrates J.M. was struggling to provide decent shelter and food for E.M. even during their brief overnight visits.
J.M. had no job and no real plan to get one. Indeed, throughout the entire two years of the dependency, she demonstrated no ability to either obtain or maintain employment. J.M. often stated she was looking for work, or going on interviews, but she offered no specifics. Although J.M. had been told that obtaining employment was a requirement for her continued residence in each of the two shelters she lived in throughout most of the dependency, she did not comply. Instead, she repeatedly expressed her desire to receive “welfare,” get “free housing,” and to receive the same benefits she believed others were getting.
Even at trial, J.M. described herself as “retired,” and stated she wanted to “go back to school.” She did claim she was looking for work, but again offered no specifics. She never explained how she planned to feed and house E.M. on a full‑time basis. Moreover, in addition to its concerns about stable housing and whether J.M. had the means to provide for E.M., the court noted there were other issues that contributed to the conclusion J.M.’s ability to safely parent E.M was “not quite there.”
With respect to the recurring issue of whether J.M. was feeding E.M. a sufficient amount during visitation, we agree that J.M. was likely not the primary cause of E.M. being underweight. But the fact that E.M. has been consistently underweight is not disputed. Her pediatrician is concerned. And in determining whether J.M.’s apparent inability to adequately feed E.M. presents a risk to her safety if she were returned to J.M.’s custody, the court has to consider how that issue would play out if J.M. were feeding E.M. on a full-time basis. That changes the analysis significantly.
J.M.’s repeated inability to correctly use or read a thermometer, despite several tutorials by the social worker, is likewise concerning. A parent needs to be able to read a child’s temperature both accurately and consistently. J.M. seeks to minimize the incident in which E.M. became ill and began running a high fever during an overnight visit and J.M. failed to take her to urgent care despite having been explicitly instructed to do so. She acknowledges it was a mistake to terminate the visit early and take E.M. to the foster care agency so that someone else could care for her, but then argues the issue has been satisfactorily resolved because she testified she would “definitely, definitely, definitely take [E.M.] to the E.R.” if it happened again. The court was not required to accept that testimony.
Which brings us to the broader issue of J.M.’s mental health. Although she has not been diagnosed with any specific mental illness, the evidence is overwhelming that she has issues with apparent mania, cognitive deficits, memory, and focus. Those issues do not cease to exist because they have not been formally labeled. The amount of focus and attention required to safely parent a two year old child is significant. When there is substantial evidence that J.M. cannot sustain that focus and attention during even limited visitation, cannot follow basic instructions on how to ensure E.M. is eating enough, cannot remember how to take E.M.’s temperature and administer her medication, or otherwise care for E.M. when she is sick, the risk of harm is substantial.
Based on the foregoing information, we conclude the evidence was sufficient to support the trial court’s finding that E.M. could not be safely returned to J.M.’s custody at the 18-month hearing.
2. The Court’s Denial of the Section 352 Continuance
J.M. also urged the juvenile court, in the event it found that E.M. could not be safely returned to her custody, to again continue the 18-month hearing so she would have more time to address any remaining issues.
Section 352, subdivision (a)(1), provides that “Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that a continuance shall not be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.”
However, such continuances are disfavored (In re David H. (2008) 165 Cal.App.4th 1626, 1635, and as explained in In re D.N. (2020) 56 Cal.App.5th 741, 762, extending family reunification services beyond the statutory limits requires a showing of “‘extraordinary circumstances.’” Assuming the moving party has demonstrated the extraordinary circumstances necessary to justify a continuance, it “shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance.” (§ 352, subd. (a)(2).)
J.M. relies on In re M.S. (2019) 41 Cal.App.5th 568, 596, fn. 16, (M.S.) to argue that the court has authority to extend reunification services even beyond the 24‑month limitation provided for in the statutes, and then argues the juvenile court in this case misconstrued its authority by concluding it could not offer any further continuances because the reunification period had already extended past the 24 months. J.M. consequently asks that we remand the case “so that [the] court can make a decision on the topic free from self-imposed mistaken constraints.” We decline to do so.
First, we note that in the case of a child who is under three years of age when removed from parental custody, the basic time limit for reunification services is six months, which can be extended to “no longer than 12 months.” It is not 24 months. (§ 361.5, subd. (a)(1)(B).) While that reunification period can be extended to 18 or 24 months (see § 361.5, subds. (a)(3)(A) & (a)(4)(A)), such extensions must be based on a finding that there is either a substantial probability the child will be returned to parental custody within the extended period, or that reasonable reunification services were not provided. Such extensions are not the default choice.
In M.S., the court concluded the reunification period in a dependency case could be extended past 24 months, but it did so based on a finding that the mother had erroneously been denied reunification services during a substantial portion of the case: “Mother was never afforded her statutory and constitutional rights to reunification services after M.S. was removed from her custody, and therefore the court had no basis on which to terminate her parental rights.” (M.S., supra, 41 Cal.App.5th at pp. 591-592.) The court then reasoned that “[b]ecause the juvenile court erroneously denied Mother her statutory right to reunification services, we conclude that on remand she must be provided with appropriate reasonable reunification services for at least the statutory minimum period.” (Id. at p. 594.)
While the M.S. court acknowledged that “the provision to Mother of six months of reunification services on remand of this case will necessarily exceed section 361.5, subdivision (a)(4)(A)’s 24-month maximum period for extension of reunification services,” it “conclude[d] that Mother and M.S.’s interest in reunification . . . must prevail over that statutory time limit in this case where Mother has been erroneously denied reunification services and the opportunity to reunify with M.S. and through delay, whether reasonable or not, that statutory maximum period for reunification services is exceeded.” (M.S., supra, 41 Cal.App.5th at p. 595.)
M.S. does not stand for the proposition urged by J.M. here, which is that the court can extend the provision of reunification services past the 24-month period specified as the maximum period in section 361.5, subdivision(a)(4)(A). In any event, we conclude that even if the court had such authority, it would have erred by continuing the 18-month hearing yet again as requested by J.M. The reunification period had already been extended a full year past the 12-month limitation applicable to children who are under three years of age. J.M. made no showing of any extraordinary circumstances here that might have warranted another extension.
Here, the evidence demonstrated that J.M.’s ability to safely parent E.M. had devolved, rather than improved, during recent months. She had been terminated from her shelter because she did not find employment and she was relying on the kindness of her church and an unnamed friend to maintain her occasional residence in a hotel that was nice enough to be approved for an overnight visit. She was stretching her food stamps to provide appropriate food for E.M. And she had no plan in place to change either of those circumstances. Moreover, J.M.’s parenting skills were still lacking and while she continued to argue her lapses could be addressed by additional coaching and services, the court had no basis to conclude those issues would soon be resolved.
Under these circumstances, we conclude the court would have abused its discretion by continuing the 18-month hearing yet again.
DISPOSITION
The petition is denied.
GOETHALS, J.
WE CONCUR:
O’LEARY, P. J.
SANCHEZ, J.
[1] All further statutory references are to this code unless otherwise indicated.
[2] J.M. initially declined to identify E.M.’s father, stating he was a “drug addict” who she did not want to be involved in E.M.’s life. The alleged father was subsequently identified, but his whereabouts remained unknown. He is not involved in this writ proceeding.
