Filed 4/4/18 Kimberly S. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

KIMBERLY S.,

Petitioner,

v.

THE SUPERIOR COURT OF FRESNO COUNTY,

Respondent;

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,

Real Party in Interest.

F076738

(Super. Ct. Nos. 16CEJ300214-1, 16CEJ300214-2)


OPINION
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Leanne L. LeMon, Commissioner.
Chineme C. Anyadiegwu, for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
Kimberly S. (mother), seeks an extraordinary writ from the juvenile court’s orders issued at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)(1)) terminating reunification services as to her now 15-year-old son, Evan, and six-year-old daughter, Emily, and setting a section 366.26 hearing. Mother contends the juvenile court erred in finding she was provided reasonable reunification services and there was not a substantial probability the children could be returned to her custody. She asks this court to vacate the section 366.26 hearing and direct the juvenile court to continue reunification services and grant her unsupervised visitation. We deny the petition.
PROCEDURAL AND FACTUAL BACKGROUND
In July 2016, an officer from the Fresno Police Department placed a protective hold, on then 13-year-old Evan, after Evan reported that mother threw an orange and a knife at him and made him leave home at 3:00 a.m. Evan went to stay with his maternal uncle, Juan C., a sheriff at the county jail. Juan stated mother was addicted to methamphetamine and prescription drugs and had a history of abusive behavior toward Evan. Officers found mother under the influence of Xanax and visibly intoxicated when they went to her home. They also located several oranges and a hack saw knife in the living room. Mother was uncooperative and unable to articulate what occurred with Evan and was unaware that he left.
Evan told a social worker he was afraid of mother and did not feel safe returning to her. He explained they argued because her boyfriend was incarcerated and he asked why she was speaking to someone who was an inmate in county jail. He also mentioned that he heard her boyfriend was a child molester. Mother got angry and threw oranges at him. She also threatened him with a pair of pruning shears and threw a knife at him, which missed him and fell on the floor.
Mother denied throwing anything at Evan but said she objected to the way he spoke to her about her boyfriend. She admitted taking Xanax and pain medication for neck problems she suffered while serving in the Navy.
The following day, social workers from the Fresno County Department of Social Services (department) met with mother to discuss Evan and Emily, then four, who was staying with her maternal grandmother. The department decided to detain Evan and leave Emily with her grandmother on the condition the grandmother disallow contact with mother. That arrangement was short-lived. In September, a social worker took Emily into protective custody after the grandmother left her in mother’s care for a week while she went long haul trucking with her boyfriend. When she returned, she found mother, Emily and her car missing. Sheriff’s deputies found mother and Emily in the company of a convicted felon. Mother was under the influence and there were alcohol bottles and a large pill bottle in the car accessible to Emily. Mother was arrested and charged with child endangerment. She was also pending charges for harboring a fugitive and entering the jail with a weapon.
In October 2016, mother was referred to the Veterans Justice Outreach program and began receiving services through the Veterans Administration (VA). In March 2017, she successfully completed residential substance abuse treatment through the “PAAR” program and transitioned to aftercare.
On April 6, 2017, the juvenile court conducted the dispositional hearing, removed the children from parental custody and ordered mother to participate in parenting classes, complete substance abuse, mental health and domestic violence assessments and participate in any recommended treatment and submit to random drug testing. The court also ordered reasonable supervised visitation for mother. The court denied services to the fathers of the children and set a combined six- and 12-month review hearing (combined hearing) for September 2017. The department placed the children with Jennifer A., their maternal aunt.
Mother began therapeutic supervised visits in early April 2017. Her initial visits were unproductive because she was reportedly under the influence of her prescription medication and the children withdrew. She also appeared tired and distracted. On April 25, she was admitted by the VA to an inpatient psychiatric unit for anxiety and disturbed thought processing. Approximately a week later, she was discharged and moved in with her mother. In May, she was more energetic and actively engaged; however, the children were wary of her.
On May 19, 2017, the Veterans Treatment Court ordered mother to comply with the parenting, drug testing and visitation components of her reunification plan, attend her psychiatry appointments at the VA and attend self-help meetings in the community. She was ordered, in her criminal matter, to three years of formal probation for possession of a weapon.
In June 2017, mother completed a substance abuse assessment for the department. She disclosed alcohol use only and told the substance abuse specialist (SAS) she could not remember the last time she drank. She denied any drug use. The SAS contacted Debra Young, mother’s social worker, because mother appeared to be under the influence of something. She was confused and “out of it” during the assessment and was slurring her words. Young told the SAS mother was not being truthful, as she had used a number of street drugs. The SAS could not refer mother for treatment because she had no drug history. That same day, mother registered for random drug testing through the department’s contract laboratory.
In early July 2017, mother asked Young to advance visitation from therapeutic supervised visits to third-party visits supervised by Jennifer. However, mother’s aggressive behavior prevented Young from accommodating her request. If Jennifer did not answer mother’s phone calls, she called incessantly and left inappropriate text messages. She also accused Jennifer and her wife of being alcoholics and engaging in domestic violence. When confronted at a meeting, mother denied the accusations, accused Young of lying and cried. Jennifer refused to supervise visits and said the children were better off with therapeutic supervised visitation.
Mother was also “passive aggressive” toward Evan, which caused him to shut down. On one occasion, he said to her, “I thought you were going to stop taking those drugs.” When mother pointed out they were prescribed for her, he responded, “[T]hey have always been prescribed for you.” On July 28, 2017, Young asked Evan how he felt about going home to mother. He said, “I don’t think about it.” Asked how he would feel if that happened, he said, “I don’t want that to happen[.] I try not to think about it[.] Can I just stay here[?] I’m fine here. [S]he’s still on drugs[.] I don’t see why I would have to go back and live there.”
The juvenile court continued the combined hearing to October 2017. By that time, mother had completed a parenting program and a domestic violence assessment with no recommendations for treatment. She tested positive for alcohol in the month of August but tested clean thereafter. Though she was participating in all her court-ordered services, the department recommended the juvenile court terminate her reunification services at the combined hearing because she remained emotionally unstable, which she did not acknowledge. During a mental health assessment in September, she continually broke down and could not explain why the children were removed and did not seem to know much about her case. The therapist believed a psychological evaluation was indicated because she was too emotionally unstable and confused to participate in a treatment plan.
On October 5, 2017, the date set for the combined hearing, mother’s attorney objected to the department’s recommendation, arguing mother was compliant with her services plan. She was participating in substance abuse treatment and mental health counseling through the VA and completed parenting instruction and a domestic violence assessment, which did not result in a referral for services. Her attorney acknowledged an issue with random drug testing but argued that was not a sufficient basis for terminating her services. Her attorney requested, and the court granted, a contested hearing. County counsel stated for the record that the department was recommending termination of services because mother would not authorize the release of medical information from the VA so the department could assess her compliance with services. Additionally, the department believed she was not being truthful about her substance use given her positive test results for alcohol.
The juvenile court conducted the contested, combined hearing over two sessions beginning on December 14, 2017. Mother took the position she fully complied with her services plan and the department failed to provide her reasonable services, including visitation. Minors’ counsel concurred with the department’s recommendation to terminate services.
Mother testified she provided Young a release of information to obtain her VA records but rescinded it after discovering the department was attempting to access all of her records and some of the VA court documents contained incorrect diagnostic information. The issue for the VA court was whether she was abusing prescription medication. She explained she had a problem with opiate addiction, stemming from fentanyl, hydromorphine and a strong prescription for Xanax. She was prescribed pain medication after undergoing neck and back surgeries. She testified Evan did not want to attend supervised visits with her because he could not openly express himself but she knew he would love for her to attend his games or practice. She did not believe he knew when she was under the influence of her medication because he never claimed to when he lived with her and she was going through her surgeries. She denied taking Xanax while visiting the children. She said visits with Emily were “great.” Emily was very happy to see her and missed her. She denied calling Jennifer incessantly and leaving threatening messages.
On cross-examination, mother denied throwing oranges and a knife at Evan. She admitted drinking alcohol while taking her medication but then contradicted herself and denied it. She did not remember what kind of alcohol she was drinking when she tested positive for alcohol in August 2017. Nor did she have a sobriety date for alcohol or prescription medication.
Young testified mother tested positive a couple of times for alcohol and recently tested positive for creatine, which indicated she was “flushing.” Overall, she tested negative more often than she tested positive. Young told the SAS mother used “street drugs,” referring to methamphetamine, because mother told Young she used methamphetamine the first time she was arrested. Mother did not test positive for the drug during the nine months she tested for the department.
Young did not advance mother to unsupervised visitation because she was taking her medication prior to visits and then asking the therapist if she could sleep on the couch. She was also incoherent at times. Young counseled mother in April or May 2017 about sleeping during visitation. Mother agreed not to take her medication that close to visits in the future and there were no further reports of her asking to sleep. Young did not advance mother to third party supervised visits with Jennifer because of mother’s incessant calling and texting.
Young further testified mother rescinded the consent for medical information because she believed the department was trying to use the information against her. Young believed Evan could tell when mother was “not right,” as he put it. However, she did not rely on his opinion in deciding that mother was under the influence. She also testified Evan told the court early in the proceedings that he did not want to visit mother and the court told him he did not have to visit her. Young could not remember when the court gave Evan that option but he only attended one hearing, which was conducted in November 2016. Evan told Young he did not want to return to mother’s custody. Jennifer testified mother was a stable parent before she retired from the Navy. However, after her departure, she declined mentally and physically. When she visited mother in jail, mother seemed very different; she was repeating herself and not making sense. Jennifer believed mother had a psychological problem and sought assistance from the VA. She could not recall mother calling her incessantly. She believed Evan wanted to visit mother but his basketball practice conflicted with visitation. Emily wanted to see mother but Jennifer believed mother was emotionally damaging Emily by telling her she was coming home. Emily went to visits expecting each time to go home with mother. She returned from the last six visits sick, went to bed, and cried.
The juvenile court found the department provided mother reasonable reunification services and she made moderate progress. However, the court did not believe she truly understood why the children were removed and did not find her credible based on her conflicting statements about her use and abuse of alcohol and prescription drugs. The court acknowledged some progress between mother and Emily but was concerned that she upset Emily by telling her she was going to go home. It demonstrated mother did not understand Emily’s emotional needs and was causing Emily more harm. The court also stated there was a criminal protective order regarding mother and Emily that came to its attention the previous court day and it appeared mother knew about it. The court did not believe mother took responsibility for her actions and that it was an issue.
The juvenile court found there was not a substantial probability the children could be returned to mother’s custody by the 18-month review hearing, terminated reunification services and set a section 366.26 hearing. The court made no changes to visitation but ordered the department to comply with the criminal protective order.
DISCUSSION
As a preliminary matter, we note that although the review hearing at issue was designated a combined six- and 12-month review hearing, it is actually a 12-month review hearing given its timing. (Cf. In re Brian R. (1991) 2 Cal.App.4th 904, 913-914.) At the 12-month review hearing, “the court shall order the return of the child to the physical custody of his or her parent … unless the court finds, by a preponderance of the evidence, that the return of the child … would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.21, subd. (f)(1).) If the court decides that it would be detrimental to return the child to parental custody, it may continue services up to 18 months from the date the child was taken into protective custody if it finds either (1) the parent was not provided reasonable reunification services, or (2) there is a substantial probability the child will be returned to the parent’s physical custody by the 18-month review hearing. (§ 366.21, subd. (g)(1).)
Mother is not seeking the children’s return but contends the department’s failure to provide her reasonable reunification services and her substantial progress in completing her services plan requirements render the juvenile court’s order terminating her services error.
A. Reunification Services
“To support a finding that reasonable services were offered or provided to the parent, ‘the record should show that the supervising agency 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 ....’ [Citation.] Reunification services should be tailored to the particular needs of the family. [Citation.]
“ ‘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.’ [Citation.] The ‘adequacy of reunification plans and the reasonableness of the [Agency’s] efforts are judged according to the circumstances of each case.’ [Citation.] If reasonable services are not provided or offered to the parent, the court is required to continue the case for the period of time permitted by statute ....
“We review a reasonable services finding to determine if it is supported by substantial evidence. [Citation.] We consider the evidence in the light most favorable to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.] The burden is on the petitioner to show that the evidence is insufficient to support the juvenile court’s findings.” (In re A.G. (2017) 12 Cal.App.5th 994, 1001.)
Substantial evidence supports the juvenile court’s finding the department provided mother reasonable reunification services. The record reflects the department identified the problems leading to the loss of custody—physical abuse of Evan and mother’s substance abuse and mental health issues—and offered mother services designed to remedy those problems.
Mother contends the department “gave up on her” instead of investigating other causes of her problems, such as mental illness, after Young and the SAS discussed her street drug use. As a result, she claims the department never addressed her mental health issues. The record, however, does not support mother’s claim. The department recommended mental health services for mother as part of her services plan. However, when she placed herself in the care of the VA, the VA became her primary service provider. In the course of providing mother substance abuse treatment, the VA identified her mental health issues and treated her psychiatrically. The fact that the VA, and not the department, addressed her mental health concerns does not render the department’s failure to do so unreasonable.
Mother further contends essentially the juvenile court improperly abdicated to Evan its discretion to determine whether visitation occurred by allowing him to choose whether to participate. She also argues the department was unreasonable for not referring her and Evan for conjoint counseling. Again, the record does not support her claims. Rather, the record reveals that Evan participated in therapeutic supervised visits with mother at least through July 2017. It is unclear what the frequency of visitation was subsequently. In any event, there is no evidence Evan was allowed to determine whether visitation would occur. Further, there is no evidence conjoint counseling was appropriate or indicated. Evan was mature enough to articulate his concerns about visitation and he did not appreciate visiting mother while she was under the influence of her medication. He also stated he did not want to return to her custody. As long as mother was struggling with her mental health and substance abuse issues and being passive/aggressive with him, there was no reason to engage in conjoint counseling.
As far as unsupervised visitation, mother’s is a request, not a challenge, to an order related to visitation. Such a request must be made in the juvenile court.
B. Substantial Probability of Return
In order to find a substantial probability of return, the juvenile court must find the parent regularly visited the child, made significant progress in resolving the problem prompting removal of the child, and demonstrated the capacity and ability to complete the objectives of the case plan and provide for the child’s safety, protection, and well-being. (§ 366.21, subd. (g)(1).) We will uphold the court’s finding if substantial evidence supports it. (In re E.D. (2013) 217 Cal.App.4th 960, 966.)
In order to find there was a substantial probability of return, the juvenile court had to find that mother satisfied the three elements listed above and that Evan could be safely returned to her custody by January 2018 and Emily by March 2018. (§ 361.5, subd. (a)(3)(A).) Mother contends she completed her case plan requirements and made “substantial” progress. The court, however, found her progress was “moderate,” she was not credible and she still did not understand how her behavior harmed her children. Under the circumstances, there was no reason to believe mother could safely resume custody of them in the short time remaining before the 18-month limitation on services and mother does not persuade us otherwise.
We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This court’s opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.