Melissa M. v. Superior Court

Filed 10/17/06 Melissa M. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. George Orndoff, Judge.

Judith A. Sanders, for Petitioner.

No appearance for Respondent.

Peter D. Moock, County Counsel, and Laura J. Bakker, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 38-38.1) to vacate the orders of the juvenile court issued at a contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1] as to her three children. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

On November 21, 2005, the Kings County Human Services Agency (agency) removed petitioner’s son, then four-year-old T.M., and her two daughters, three-year-old T. and two-month-old B., after T.M. was found wandering the neighborhood unsupervised. Police officers found petitioner and the two other children asleep at their home, which was filthy and unsafe. Petitioner was under the influence of methamphetamine and was unaware T.M. had been missing for four hours. She was taken into custody and the children were placed together in foster care.

On November 28, the court ordered the children detained pursuant to a dependency petition. The court also ordered the agency to provide appropriate services to facilitate reunification and set a January 2006 jurisdictional/dispositional hearing.

Meanwhile, on December 2, petitioner and her caseworker discussed petitioner’s need to participate in drug recovery and parenting programs. To that end, they discussed inpatient versus outpatient drug treatment and the procedures for drug testing. The caseworker gave petitioner listings of substance abuse programs and Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings in her area.

Over the next several weeks, petitioner’s continued drug use became apparent after she tested positive for methamphetamine on December 14 and failed to drug test a week later. Consequently, on December 28, the caseworker referred her for outpatient drug treatment at the Alcohol Drug Education Counseling Center (ADECC) and for a parenting class through the agency.

On January 3, 2006, the agency filed its jurisdictional/dispositional report recommending the court order petitioner to complete a parenting program and outpatient drug treatment, submit to random drug testing and attend three AA/NA meetings each week. The hearing originally set for January was continued until February 15. At this point, petitioner was not calling in to drug test nor had she entered drug treatment.

On February 2, the caseworker encouraged petitioner to enter inpatient drug treatment and asked her to drug test that day, which she did not do. The caseworker also asked petitioner if she needed any assistance in fulfilling her case plan requirements. She stated she did not.

On March 10, after another continuance, the court conducted the jurisdictional/dispositional hearing and adjudged the children dependents of the court. The court also ordered the proposed reunification plan into effect and set the six-month review hearing for July 27, 2006. Two weeks after the hearing, the caseworker reviewed the case plan components with petitioner. Shortly after that, petitioner was assigned a new caseworker.

On April 13, petitioner’s new caseworker reviewed the case plan requirements with her. Petitioner was still not participating in any of her court-ordered services. The caseworker informed petitioner that the next parenting class did not begin until June and showed her a flyer describing the program. The caseworker also reminded petitioner that she had previously been referred for drug treatment at the ADECC. Petitioner stated she would enroll in the program as soon as possible. The caseworker also gave petitioner a schedule of AA/NA meetings and a verification of attendance card.

On May 18, the caseworker met with petitioner again but this time discussed petitioner’s need for inpatient drug treatment in light of petitioner’s positive drug tests and admitted drug use. Petitioner, who by this time had relocated to Tulare County, requested services closer to her home. The caseworker recommended petitioner admit herself for inpatient drug treatment at a rescue mission in her county where she could participate in all her required services, including parenting. The caseworker encouraged her to enroll in the ADECC program until she could be admitted to the rescue mission. Petitioner stated she would admit herself to the rescue mission but did not follow through.

In June, the caseworker’s efforts to get petitioner into drug treatment intensified. She ascertained the rescue mission could admit petitioner and gave petitioner the telephone number and address. She also referred petitioner to Cornerstone, another inpatient drug treatment program, in which petitioner expressed a preference and to Champions, an outpatient drug treatment program. However, despite petitioner’s seeming interest in drug treatment, she did not enroll in any of the programs, offering such excuses as having to baby sit and vacationing at the coast.

On July 12, the agency filed its six-month status review recommending the court terminate petitioner’s services and pursue a permanent plan of adoption. On July 15, petitioner was admitted to Cornerstone, a four-month inpatient drug treatment program. On July 28, the court set a contested six-month review hearing which was conducted on August 17, 2006.

Petitioner argued at the contested hearing that she needed more help accessing services than the agency provided and therefore she was not provided reasonable services. She called the second caseworker assigned to her case, who testified she knew petitioner was having difficulty getting into a parenting class. When she met with petitioner in April, she knew a parenting class had either just started or was about to begin and she suggested petitioner look into the possibility of participating in that class. However, she also gave petitioner the brochure concerning the class scheduled for June. She also testified she did not explore parenting classes in Tulare County because petitioner told her she was going to admit herself to the rescue mission and the caseworker knew parenting instruction was available through that program.

The caseworker also testified petitioner was receiving all her required services at Cornerstone and making excellent progress. In addition, petitioner and the children shared a strong parent/child bond and their visits were very positive. However, the caseworker did not believe petitioner could complete her services in another six months, given her prior noncompliance.

Petitioner testified she understood as early as December 2005 what services she needed to complete to reunify with her children. With respect to parenting classes, she testified that she was unaware of any referrals made for a parenting class and that the caseworker’s first mention of parenting classes occurred at their meeting in April 2006 when the caseworker provided her the brochure. At that time, she remembered the caseworker telling her she could complete all her case plan requirements through inpatient drug treatment but did not remember any specific mention of parenting classes. At that meeting, petitioner told the caseworker she wanted to admit herself to Cornerstone. Petitioner made an appointment for an assessment but did not keep the appointment.

Despite her earlier testimony, petitioner stated the caseworker did not discuss drug treatment with her until June. She denied receiving a referral for ADECC and claimed she had never heard of the program. She also denied ever being referred to the rescue mission. She could not give a reason for not drug testing and testified that she did not attend meetings because she did not know where to go. In later testimony, she admitted having a list of meetings at locations close to her residence. However, she did not attend and could provide no reason for that either.

Following argument, the court found it would be detrimental to return the children to petitioner’s custody. The court also found petitioner was provided reasonable services, but she failed to regularly participate in and make substantive progress in her case plan. In addition, the court found the children were a sibling group, terminated reunification services and set a section 366.26 hearing for December 14, 2006. This petition ensued.

DISCUSSION

Petitioner claims, as she did at trial, the agency’s efforts to facilitate reunification were insufficient. Therefore, she was deprived reasonable services and the juvenile court erred in terminating them. We disagree.

The juvenile court may limit reunification services to six months from the date the children entered foster care where, as here, the children constitute a sibling group. (§ 361.5, subd. (a)(3).) A sibling group is one in which the children were removed from parental custody at the same time and in which one of the children was under the age of three years on the date of initial removal from parental custody. (Ibid.) The purpose of limiting reunification to six months in the case of a sibling group is to place and maintain the children together in a permanent home. (Ibid.) Consequently, the juvenile court may schedule a selection and implementation hearing under section 366.26 on the six-month review date if it finds by clear and convincing evidence the parent was provided reasonable services but failed to participate regularly and make substantive progress in those services.^[2] (§ 366.21, subd. (e).)

In determining whether services were reasonable, the juvenile court considers not only the appropriateness of the services offered but also the extent to which the agency facilitated utilization of the services and the extent to which the offending parent availed him or herself of the services provided. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) To be reasonable, the services provided need not be perfect. The “standard is not whether [they] were the best that might have been provided, but whether they were reasonable under the circumstances.” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) On review, we determine whether substantial evidence supports the juvenile court’s reasonable services finding, viewing the evidence in a light most favorable to the juvenile court and indulging in all legitimate and reasonable inferences to uphold the court’s finding. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

Applying the principles set forth above to this case, we affirm the juvenile court’s reasonable services finding. Both caseworkers’ efforts to facilitate parenting education and drug rehabilitation for petitioner are well documented in their reports. Further, despite petitioner’s claims of ignorance, she knew all along what she needed to do to resume custody of her children. She simply chose drug use until permanent loss of her children became an imminent reality.

Further, we reject petitioner’s claim she had special needs that required heightened efforts on the part of the agency. There is no evidence petitioner had any special needs. In fact, the caseworker asked her if she needed help accessing services and she stated she did not. Moreover, in the absence of evidence to the contrary, some capacity on the part of the parent to comply with an appropriate reunification plan is presumed. (In re Christina L. (1992) 3 Cal.App.4th 404, 414-415.) Operating on the presumption petitioner was capable of complying with her reunification plan and given substantial evidence the agency made reasonable efforts to facilitate her compliance, we conclude petitioner was provided reasonable services.

We also reject petitioner’s claim she was shorted two months of services because the case plan was not ordered into effect until the March hearing. Under the law, petitioner was entitled to six months of services from the date the children entered foster care. (§ 361.5, subd. (a)(3).) A child is deemed to have entered foster care either at the jurisdictional hearing or 60 days after the date on which the child was initially removed from the physical custody of his or her parent, whichever is earlier. (§ 361.5, subd. (a)(3).)

In this case, the children are deemed to have entered foster care on the date of their removal on November 21, 2005. At the detention hearing, a week later, the court ordered the agency to provide petitioner services to facilitate reunification. Therefore, petitioner’s six months of services extended from November 21, 2005, through the end of May 2006. By receiving services until July 2006, petitioner received in excess of the six months of services mandated by statute.

In light of our conclusion petitioner received six months of reasonable services, we also affirm the juvenile court’s orders terminating reunification services and setting the section 366.26 hearing. Accordingly, we will deny the petition.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Harris, Acting P.J., Cornell, J., and Kane, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Though not at issue in this writ petition, the juvenile court must continue reunification services to the 12-month review hearing if it finds there is a substantial probability that the children may be returned to parental custody within six months. (§ 366.21, subd. (e).)