Filed 3/28/22 K.P. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Michele Mathis, Judge. Petition denied.

Anastasia M. Georggin for Petitioner.

No appearance for Respondent.

Gregory P. Priamos, County Counsel, and Teresa K.B. Beecham and Prabhath D. Shettigar, Deputy County Counsel, for Real Party in Interest

K.P. (mother) filed this petition for extraordinary writ after Riverside County Superior Court Judge Michele Mathis of the juvenile court terminated family reunification services and set a Welfare and Institutions Code section 366.26 hearing. Mother argues there was insufficient evidence to support the judge’s conclusion that returning the children would be to their detriment and that the department provided reasonable services. We deny the petition.

I

FACTS

1. Referral and Dependency Petition

The subject of this dependency proceeding is mother’s and father’s two children, J.P. and A.P. Mother struggles with ongoing mental health issues, including depression. There is some dispute whether mother takes any medication—father at one point claimed she took Xanax, but mother denied taking any medication or otherwise treating her depression. Mother also admitted to infrequently using methamphetamine, with her first use on New Year’s 2020.

For a period of three years leading up to spring 2020, mother and father argued a lot. According to the children, ages 10 and 13, the arguments “involved plates being smashed and threats being made.” The children would generally go to their rooms to avoid the fighting. They never saw mother use drugs or saw her under the influence, but knew father believed she used drugs as he would argue about it with her.

In April 2020, mother and father had multiple fights regarding both of their substance use and mother’s mental health. On April 24, according to father, mother tried to visit him at his work. When she wasn’t able to see him, she told his manager she was going home to commit suicide. On April 25, the two were arguing when mother grabbed a knife and told father to kill her. Father held the knife to mother’s neck and pretended to slit her throat. The maternal grandfather and mother’s adult son intervened to stop the argument, and mother left the home with the children.

The same day Riverside County Department of Public Social Services (department) received a referral regarding the incident with the knife and the prior arguments between the parents. A social worker responded to the parents’ home with law enforcement. Father tried to leave, but the police handcuffed him and placed him in their car. Father told the police mother’s mental health was not good, they were arguing over her mental health, she said she was considering harming herself or asking others to harm her, and she was using methamphetamine. He gave the police a bag of what he said was mother’s drug paraphernalia, which included pipes, lighters, and plastic bags with white residue in them.

Father then spoke to the social worker, telling the worker he argued with mother about “ ‘her not being a good mom and her ongoing drug use.’ ” He said he has known of mother’s drug use for five years but didn’t know when or where she uses.

The social worker eventually found mother at a hotel, where she was staying with A.P. and J.P. She admitted to the domestic violence incident with the knife, admitted to expressing thoughts of self-harm, but denied substance use. The police placed mother on an involuntary psychiatric hold. The maternal grandfather also confirmed the incident happened as reported and confirmed the parents used drugs, though he didn’t know what drugs or how often.

The next day the social worker spoke to the children. They said the domestic violence incident “ ‘scared them.’ ” They also said their parents “ ‘argue all the time,’ ” and the fights became physical three times in the last 13 years, with the most recent occurring two weeks prior. According to the children, the parents get angry at each other and then take their frustrations out on the children, though only by yelling more and never through physical harm.

On April 28, 2020, the department filed a petition under Welfare and Institutions Code section 300, subdivision (b) (unlabeled statutory citations refer to this code), alleging the parents engaged in domestic violence in the children’s presence, that mother and father both abuse substances, that mother has unresolved mental health issues, and that father failed to intervene to protect the children from mother given her mental health and substance abuse issues.

The following day after a detention hearing, the juvenile judge found the department made a prima facia case the children fell within section 300 and detained them from the parents.

2. Jurisdiction/Disposition

On May 7, 2020, the department interviewed the family—mother, father, and both minor children. Both mother and father denied a knife was involved in the April 25 domestic violence incident, insisting it was a marker pen. Mother denied using any substances, denied having any mental health issues, and denied expressing thoughts of self-harm. Mother said she was seeking a divorce from father because they don’t communicate well. She also said she would drug test “as many times as she needed for the Department to show that she does not regularly use methamphetamine.” She submitted to an oral drug test and tested negative.

Father claimed mother never threatened self-harm. He also backtracked on the accusations of her substance use, saying he was only assuming she was using because he noted a change in her behavior. He said he still believed mother had unresolved mental health issues but denied she was suicidal and said her previous suicidal comments were things she didn’t mean and only said because she was upset. He also claimed he lied to the initial social worker about his use of methamphetamine because he wanted to get mother in trouble, and he only used marijuana.

The same day the department gave the parents referrals to domestic violence groups, substance abuse services, parenting education, and individual counseling. This included a hair follicle test for both parents.

The department spoke with the children’s caregiver on May 21, 2020. The caregiver said the children were sad because they miss being home with their parents. Visitation with both parents was going well and the children were happy to see their parents. The department spoke with the children on May 27, 2020, and the children repeated what the caregiver said. They also asked whether their parents could get weekend and overnight visits. Also on May 27, 2020, the department received mother’s negative hair follicle test results.

On June 11, 2020, the department gave mother additional referrals to services for counseling, substance abuse, and domestic violence. Mother asked whether the services were voluntary, and if so, said she would prefer not to participate. The department told her it strongly recommended she participate given her disclosed mental health issues and substance use.

Riverside County Superior Court Judge Matthew C. Perantoni held a contested jurisdiction and disposition hearing on June 25, 2020. The parents filed waivers of rights and submitted on the amended petition, which struck the allegation that father knew of and failed to protect the children from mother’s drug use. The judge found the remaining allegations true and that the children fell under his jurisdiction. He removed physical custody from the parents and ordered reunification services. He ordered the department refer mother to appropriate substance abuse assessment and authorized her to have unsupervised day visits.

3. Six-Month Review Period

The department’s six-month status report noted mother had participated in every domestic violence class and was on track to complete the program by January 2021. She also participated in group counseling, again never missing a meeting. She missed one drug test but tested negative on another. Mother and father were still living together. There were no issues with mother’s unsupervised visits.

The department recommended both parents receive six more months of reunification services, and that the judge authorize the department to place the children back with the parents and transition to family maintenance services when appropriate.

In December 2020, mother received a certificate of achievement from a mental health recovery seminar and received approval for a two-week unsupervised visit so long as father wasn’t present but missed a drug test.

Riverside County Superior Court Judge Michele Mathis held a contested six-month status review hearing on January 11, 2021. The department noted the extended visit went well but was concerned about mother’s failure to drug test. The judge continued reunification services for both parents. She also authorized the department to place the children back with the parents and transition to family maintenance services. In the meantime, she authorized the department to liberalize visitation, including permitting an extended visit upon mother’s completion of three negative drug tests.

4. Twelve-Month Review Period

During the 12-month review period, mother took a turn for the worse. She missed drug testing on January 19, 2021, and tested positive for amphetamine/methamphetamine on February 15, 2021. She missed another drug test on February 26. On March 10, the department told mother that because of the positive drug test visits would have to be supervised. They also referred mother to outpatient substance abuse services. Mother missed another drug test on March 23 but tested negative on April 5 and April 23.

Despite being referred for an outpatient drug treatment assessment after her positive test on February 15, 2021, mother didn’t get assessed until May 21, 2021. That service provider reported mother’s drug screen “was negative for all substances,” and her breathalyzer was clean. Therefore, the service provider concluded she didn’t qualify for outpatient services.

Mother also struggled with completing her domestic violence services. Her attendance at domestic violence classes was inconsistent, and she seemed to be angry and in denial about the domestic violence in her home. She didn’t seem to be benefiting from the courses.

At the 12-month status review hearing on June 10, 2021, the department requested a judge order both parents to submit to hair follicle testing and mother to enroll in a substance abuse program. Once those conditions were met, they would “begin extended visits with the family in hopes of converting that to family maintenance services.” Mother’s counsel reported mother had completed her domestic violence program. The judge ordered the parents to undergo hair follicle tests, set a special hearing to review the results of those tests, and set an 18-month permanency review hearing date.

5. 18-Month Review Period

The department referred both parents to hair follicle testing on June 14, 2021. Mother also had an appointment for substance abuse treatment on July 6. 2021. However, as of July 8, she had not provided a hair follicle sample. Nor was the department able to confirm whether mother was enrolled in substance abuse treatment. Mother didn’t respond to the department’s attempts to contact her regarding her substance abuse treatment appointment on July 7 and 8, and the substance abuse treatment service provider couldn’t confirm or deny mother’s participation because there was no release allowing them to provide that information on file.

At a special hearing regarding the parents’ hair follicle tests on July 14, 2021, Judge Mathis continued her order allowing extended visits and the children’s return upon a clean hair follicle test, but clarified the children were not to be returned without a clean hair follicle test from both parents so long as the parents resided together.

On August 13, 2021, police arrested mother for possession of a controlled substance. On August 24, 2021, police responded to the parents’ house regarding allegations of domestic violence perpetrated by father against mother. According to the police report, father grabbed mother’s face, told her “ ‘No one likes you,’ ” and struck her with an open hand. He also kicked her twice in the right shin. Police arrested father, and on August 26 a temporary restraining order issued protecting mother from father. Neither parent showed up at the hearing to make the restraining order permanent, so the court dismissed the restraining order.

As of September 16, 2021, mother still hadn’t submitted a sample for her hair follicle test, nor was there confirmation of her enrollment in substance abuse treatment. Between the referral for treatment and testing on June 24 and September 20, the department attempted to contact mother five times regarding testing and substance abuse treatment.

On September 29, 2021, the department filed an 18-Month Family Reunification Status Review Report in which it recommended reunification services be terminated for both parents. It noted mother was non-compliant, having neither enrolled in substance abuse treatment nor completed hair follicle testing. In addition, she was arrested for possession of a controlled substance. A.P. told the department that “in order for his family to overcome the circumstances that brought them to the Court’s attention that his parents need to get divorced [ ] 110%.” The department concluded given this that services hadn’t benefited either parent.

On October 4, 2021, the department contacted mother to tell her they had to resubmit her hair follicle testing referral because it had expired. They told her she should be ready to test that afternoon. Mother said she was enrolling in a drug treatment program in Riverside with hopes of eventually transferring to Moreno Valley.

In early October, the department met with the children’s caregiver. The caregiver told the department that mother came to the house upset and slapped A.P. and the caregiver across the face. The department also spoke with the children. A.P. said he was fine with the department’s recommendation that he not be returned to his parents, because “he doesn’t want to go back home anyways.” J.P. also said she was ok with the recommendation “because her parents [sic] behavior has not changed.”

Mother submitted a hair follicle sample on November 17, 2021. The test results came back positive for methamphetamine and amphetamine.

Judge Mathis originally set the contested 18-month permanency review hearing for October 25, 2021, but continued it multiple times before it occurred on December 15, 2021. Mother submitted her November hair follicle test results and a letter indicating she was enrolled in substance abuse treatment.

Both parents testified at the hearing. Mother said she was currently participating in drug treatment and started November 3, 2021. She acknowledged her positive test and said she last used drugs on September 27, 2021. She said one of her triggers for using was arguing with father. She claimed father moved out in September 2021 and she doesn’t see, speak, or text him. She said she has a restraining order against him as of November 12, 2021, expiring November 12, 2024. She admitted she didn’t enroll in drug treatment until November 3, 2021, just over a month before the permanency review hearing and 19 months after the beginning of the dependency. She admitted she didn’t benefit from her domestic violence classes, as evidence by the fact she continued living with father. She also admitted to slapping A.P. in October. After another continuance, the social worker testified he hadn’t tried to confirm whether mother was enrolled in substance abuse treatment. He was unaware that mother received a certificate of achievement in mental health recovery.

The children submitted stipulated testimony stating they were open to continued visits with mother, open to being returned to mother, and open to overnights and weekends with mother.

At the conclusion of the hearing, the judge found it was not in the best interest of the children to return them to either parent. She noted mother was late in her progress on her case plan, had a recent positive drug test, and a recent domestic violence incident. The judge found the department provided reasonable reunification services, there was clear and convincing evidence that return would create a substantial risk of harm to the children, and there wasn’t a substantial probability of return if given another six months of services. Accordingly, the judge terminated reunification services and set a section 366.26 hearing.

II

ANALYSIS

Mother argues there is insufficient evidence to support the dispositional order removing the children from her care. Specifically, she argues there was insufficient evidence the children faced a substantial risk of danger in her care or that the department provided reasonable reunification services. We disagree and deny the petition.

1. Risk of Detriment from Return

Mother argues there is insufficient evidence to support the court’s conclusion that returning the children would be detrimental.

At the 18-month permanency review hearing, “the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a)(1).) “The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (Ibid.)

“When the sufficiency of the evidence to support a juvenile court’s finding or order is challenged on appeal, the reviewing court must determine if there is substantial evidence, contradicted or uncontradicted, that supports it.” (In re Albert T. (2006) 144 Cal.App.4th 207, 216.) “Under that standard we inquire whether the evidence, contradicted or uncontradicted, supports the court’s determination. We resolve all conflicts in support of the determination, indulge in all legitimate inferences to uphold the findings and may not substitute our deductions for those of the juvenile court. [Citations.] However, ‘[s]ubstantial evidence is not synonymous with any evidence. [Citation.] To be substantial, the evidence must be of ponderable legal significance and must be reasonable in nature, credible, and of solid value.’ ” (Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856, 865.)

Substantial evidence supported the findings that returning the children would be detrimental. First, mother doesn’t appear to have benefited from or made progress in the services provided. Indeed, she admitted she didn’t benefit from domestic violence services. Even if she hadn’t, there is ample evidence in the record to support such a conclusion. Mother and father continued to engage in domestic violence throughout the dependency, including an incident in August 2021, 14 months after the beginning of the dependency which resulted in father’s arrest. Nevertheless, mother continued to live with father for the majority of the 20 months of the dependency, and only stopped living with him shortly before the permanency review hearing, despite the fact that many people in her life—one of her minor children included—felt that her relationship with father needed to end. Finally, in October 2021—16 months after the start of the dependency and well after receiving her domestic violence services—mother herself slapped one of her children and her children’s caregiver. All of this indicates mother was right to say she didn’t benefit from domestic violence services. The evidence is sufficient to conclude mother struggled to disentangle herself from her toxic relationship with father and continues to struggle with remedying her own issues with violence.

Second, even if she hadn’t failed to benefit from domestic violence services, the record also demonstrates she refused to engage with substance abuse services. The department first referred mother to a substance abuse assessment on May 19, 2020, and referred her to treatment after her positive drug test in February 2021. Nevertheless, she didn’t actually enroll in substance abuse treatment until November 2021. Mother points to the fact that she was assessed as not needing such services twice: once in August 2020, and again in May 2021. In fact, the May 2021 assessment only came after mother sought treatment and was rebuffed.

But even giving mother the benefit of the doubt and starting the clock on June 24, 2021, with the department’s final substance abuse treatment referral, mother still delayed in seeking treatment for nearly five months, almost an entire review period. Mother also delayed submitting a sample for her hair follicle test for the same five months. Given that this hair follicle test was positive for methamphetamine/amphetamine, and that mother was arrested for drug possession during this time, the juvenile judge could reasonably infer mother was avoiding treatment because she was actively using drugs and had no intention or felt incapable of stopping.

Mother’s hair follicle test in November 2021 was positive, she tested positive for methamphetamine/amphetamine in February 2021, was arrested for drug possession in August 2021, and admitted to last using in September 2021. Mother also missed a number of drug tests throughout the dependency. This evidence suggests mother struggled with substance use, and failed to participate in services to help her with these issues. All of this is sufficient evidence for the judge to conclude mother didn’t engage with the services provided to address her substance use.

Substantial evidence supported the judge’s conclusion that mother failed to benefit from domestic violence services, failed to engage with substance abuse services, and returning her children to her care would be detrimental to them.

2. Reasonable Reunification Services

Next, mother argues the department failed to provide reasonable reunification services. Namely, mother points to the fact the department failed to follow up with her and with the service providers regarding her substance abuse treatment and her progress in her other services.

When a court orders reunification services, the department must ensure the services they provide are reasonable. (§ 361.5, subd. (a); Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1501 (Earl L.).) Whether the reunification services offered were reasonable and suitable is judged according to the circumstances of the particular case. (Earl L., at p. 1501.) “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. (1991) 2 Cal.App.4th 538, 547.) Any reunification plan “must be specifically tailored to fit the circumstances of each family [citation], and must be designed to eliminate those conditions which led to the juvenile court’s jurisdictional finding.” (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.)

The court’s reasonable services finding “must be made by clear and convincing evidence in the trial court.” (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1238.) We review the finding that reasonable services had been provided or offered for substantial evidence. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.) “In general, when presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.) In other words, “the question before a court reviewing a finding that a fact has been proved by clear and convincing evidence is not whether the appellate court itself regards the evidence as clear and convincing; it is whether a reasonable trier of fact could have regarded the evidence as satisfying this standard of proof.” (Id. at 1009.)

Mother argues she didn’t receive reasonable reunification services because the department failed to keep up to date on her case plan progress. In particular, mother argues the department failed to confirm she was enrolled in a substance abuse program, and prior to that failed to follow up with the substance abuse treatment programs that found mother didn’t qualify for treatment.

It is no surprise the department wasn’t aware she started treatment when asked about it at the permanency review hearing. This is because mother started treatment only after the originally set date for that hearing in October. Indeed, she started treatment only about a month before the final hearing date. This means she started treatment after the department prepared and submitted its 18-month status report. The department’s lack of knowledge about this fact is entirely explained by mother’s delay, not the department’s lack of communication.

Moreover, the department did try to confirm mother’s enrollment in substance abuse treatment but couldn’t do so because mother didn’t submit a release of information. But even had the department been successful, they would have discovered mother wasn’t enrolled in substance abuse treatment. According to mother’s own admission she didn’t start such treatment until November 3, 2021, just over a month before the rescheduled permanency review hearing and over a week after the original date for the contested permanency review hearing. Therefore, even if the department had failed in its duty to keep apprised of mother’s progress, mother also admittedly failed to make progress. The department’s alleged failure here, had they actually failed, would have been an error in mother’s favor, since it would have kept the department and judge ignorant of the fact mother wasn’t enrolled in case plan services.

The department also met its duty in arranging for mother’s substance use treatment services. The department first referred mother to outpatient drug treatment after her positive drug test in February 2021. Mother wasn’t assessed by the service provider until May 21. The service provider concluded she didn’t qualify for services, and the department contacted the service provider the same day to get more information. About a month later, on June 24, the department re-referred mother to outpatient substance abuse services. After that, mother admits she didn’t enroll until November 2021. Based on this timeline, it’s clear that the department didn’t fail to follow up with those services, fail to provide them, or fail to confirm they were still available. Instead, mother herself failed to engage with the services provided.

Moreover, the department kept in touch with mother regarding her substance abuse treatment. After referring her to substance abuse treatment on June 24, 2021, the department followed up with mother on July 2, July 7, July 8, July 13, August 10, September 1, September 2, September 20, and October 4. The department told mother what she needed to do multiple times, and she simply failed to follow through. Though the department is required to stay in reasonable contact with a parent during reunification services, it doesn’t have “a duty to track [her] continually throughout the dependency process even after [s]he had been identified, contacted by a social worker, apprised of the proceedings, provided with counsel and participated in hearings. . . . Once a parent has been located, it becomes the obligation of the parent to communicate with the [d]epartment and participate in the reunification process.” (In re Raymond R. (1994) 26 Cal.App.4th 436, 441.)

Mother also argues the department failed in communicating with her and providing services regarding her hair follicle test, arguing the fact she had to actively reach out to her social worker to get referred to the hair follicle test again is evidence of the lack of communication and unreasonableness of services. But the only reason mother had to reach out to be re-referred to the hair follicle testing is because the previous referral lapsed after mother failed to provide a sample for over five months. Mother was first referred to hair follicle testing on June 14, 2021, but didn’t submit a sample until November 17, 2021. During that time the department contacted mother at least five times to follow up about her submitting a sample.

Thus, there was sufficient evidence to support the judge’s finding that the department provided reasonable reunification services and the department stayed in reasonable contact with both mother and the case plan service providers.

III

DISPOSITION

We deny the writ petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

Acting P. J.

We concur:

RAPHAEL

J.

MENETREZ

J.