M.R. v. Superior Court










Filed 4/27/17 M.R. v. Superior Court CA1/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

M.R. et al.,
Petitioners,
v.
THE SUPERIOR COURT OF CONTRA COSTA COUNTY,
Respondent;

CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU,

Real Party in Interest.




A150393

(Contra Costa County
Super. Ct. No. J15-01061)


M.R. (Mother), mother of 17-month-old S.H., and S.H.’s father, L.H. (Father), separately petition for extraordinary writ review of the juvenile court’s orders terminating their reunification services and scheduling a permanency planning hearing for S.H. under Welfare and Institutions Code, section 366.26 (366.26 hearing). Both parents request a temporary stay of the 366.26 hearing, scheduled for May 10, 2017, pending a ruling on their petitions. Mother contends the court erred in scheduling a 366.26 hearing because there was a substantial probability that S.H. could be returned to her care within the next six months. Father contends the court erred in declining to award him additional reunification services. Both parents contend they did not receive reasonable services. We reject the parents’ challenges, and thereforedeny their petitions and stay requests.
FACTUAL AND PROCEDURAL BACKGROUND
On December 7, 2015, the Contra Costa County Children and Family Services Bureau (Bureau) received a report alleging Mother generally neglected her then-newborn daughter, S.H. Before giving birth,Mother was homeless, living in her car. By history, she carried three different psychiatric diagnoses—bipolar disease, schizophrenia, and schizoaffective disorder—and was not taking medications to treat her condition. Despite knowing that her sexual partner had a potentially life-threatening disease, Mother did not obtain regular medical care, and both she and S.H. had been diagnosed with the life-threatening illness. In August 2015, Mother tested positive for amphetamines and ecstasy. When the hospital staff began to ask her questions, she left the hospital against medical advice.
Father was reportedly in prison, serving a two-year sentence for burglary. Father’s sister anticipated that Father would be released from prison in eight or nine months. According to Father’s mother, Father was a methamphetamine addict. The aunt and paternal grandmother wanted S.H. to live with them, but Mother was concerned that because she had been sexually active with someone else, they would not support her if they learned they were not biologically related to S.H.
During an interview with the Bureau, Mother reported she had been diagnosed with bipolar, schizophrenic, and schizoaffective disorders when she was 25 years old. She was prescribed medications but took them, at most, for two months. She conceded she tested positive for amphetamines in the summer of 2015. She had used methamphetamines since she was 16 years old but was sober by 2004 and attended an outpatient program for two years to “understand her recovery.” She also attended Narcotics and Alcoholics Anonymous (NA/AA) programs, which she was willing to do again.She admitted she was arrested for assaulting an officer and was placed on two years’ probation and ordered to do 100 hours of community service.
Mother also reported that her older son, born in 2011, was removed from her when he was born. She completed all classes, drugs testing, and mental health assessments in order to reunite with her son, but the boy’s father was unable to complete all of his classes. Their request for an extension of time to meet the requirements was denied, and Mother lost contact with the boy.
Dr. Petru, an infectious disease specialist, reported that S.H.’s illness would have been preventable if Mother had taken medication. Instead, the child contracted the illness at delivery, and now requires three medications, twice per day. The doctor anticipated that a fourth medication would be added in the future and that over time, the medications would be changed. She underscored the importance of giving the medications regularly “because the virus is unforgiving if the medications are skipped.”
The Bureau also interviewed S.H.’s paternal grandmother, who reported that Mother stopped using drugs when she found out she was pregnant. The paternal grandmother also indicated that she herself has a substance abuse history, especially methamphetamine abuse. She had been in recovery for the past five years and described her criminal history as “old.”
In a follow-up interview, Mother reported she had applied for Medi-Cal for S.H., found a pediatrician, and applied for the Women, Infants, and Children nutrition program. She had contacted various drug programs and intended to start attending one as soon as possible. She had an appointment to apply for food stamps and a cash aid program for S.H. She had learned how and when to give her daughter her medicine and had been doing so for the last few days. She was also in the process of arranging an appointment for a psychiatric evaluation for herself.
On December 17, 2015, the Bureau filed a petition alleging S.H. had suffered or was at substantial risk of suffering serious physical harm or illness in thatMother: (1) failed to provide S.H. with adequate food, clothing, shelter, or medical treatment; and (2) was unable to provide regular care for S.H. due to Mother’s mental illness, developmental disability, or substance abuse. The juvenile court detained S.H. and ordered the Bureau to provide Mother with alcohol and drug testing, substance abuse treatment, parenting education, mental health services, and domestic violence services. It also ordered that Mother could have unlimited, supervised visits while S.H. was in the hospital, or one-hour, supervised weekly visits when S.H. was not in the hospital. Thereafter, the court ordered paternity testing for Father and referred Mother to mediation. Father waived his right to appear at the hearing but indicated that his mother was attempting to be S.H.’s foster mother and that he wanted to raise S.H. when he was released from prison.
On March 3, 2016, Mother admitted the allegations of an amended petition allegingthat her substance abuse and mental health issues hinder her ability to provide adequate care for S.H., that she tested positive for amphetamines during her pregnancy, and that S.H. acquired an infectious disease due in part to Mother’s lack of prenatal care. The juvenile court appointed counsel for Father.
According to a disposition report, Mother was in an inpatient drug treatment program. The paternity test confirmed Father was S.H.’s father. Father’s criminal history spanned 1977 through 2015 and included 11 felony convictions for crimes such as grand theft, vehicle theft, and first degree burglary, and five misdemeanors for offenses such as reckless driving, vandalism, and possession of controlled substance paraphernalia. He was serving a 32-month prison sentence, and his exact release date was unknown.
S.H. was residing in a licensed foster home. Dr. Petru warned that she “is very vulnerable and may not be able to cope with even the most minor. . . respiratory or gastrointestinal illness.” She opined it would be “unnecessarily risky and even dangerous” for S.H. to spend extended periods of time in Mother’s drug rehabilitation facility. If S.H. did not religiously adhere to her treatment regimen,the virus would become resistant to the regimen, likely requiring the use of other regimens that have not been well studied in young children, are not well tolerated, and/or have unacceptable side effects. Her disease would progress, making her subject to many infections and the possible loss of use of her legs and progressive brain damage.
Both the paternal aunt and paternal grandmother applied for relative placement, but failed to pass the criminal background checks. Both had substance abuse histories, and the aunt was described by both hospital staff and the caseworker as “aggressive.”
The Bureau recommended that both parents be given family reunification services. Mother was to engage in individual counseling, complete a mental health assessment, inpatient substance abuse treatment, and a parenting class, be educated and trained regarding S.H.’s life-threatening illness, comply with all after-care treatment recommendations, participate in and test negative in a random drug/alcohol testing program, participate in one to three meetings per week in an NA/AA 12-step program, and obtain a program sponsor. Father was to complete individual counseling, outpatient substance abuse treatment, and a parenting class, be educated and trained regarding S.H.’s life-threatening illness, participate in random drug/alcohol testing for six months, with the proviso that if he tested positive he would enter a residential treatment program, and participate in one to three meetings per week in an NA/AA 12-step program, and obtain a program sponsor.
On April 28, 2016, the juvenile court declined to elevate Father to presumed father status but adopted, as modified, the Bureau’s recommendations, which included reunification services for both parents.
The Bureau’s six-month status review report recommended that reunification services be continued for Mother, but be terminated for Father. Father remained incarcerated and Mother was on court probation for a misdemeanor offense of fighting/disturbing the peace. The juvenile court continued the matter for a contested hearing regarding Father’s reunification services.
In advance of the contested hearing, the Bureau filed a status update reporting that Father’s release date was expected to be December 28, 2016. The Bureau continued to recommend that his services be terminated, as he did not have a relationship with S.H. and had not participated in reunification services. Mother was in the process of completing a psychological evaluation and the Bureaumaintained its recommendation that services be provided to her. It did so despite having previously filed a petition on December 8, 2016 to reduce or terminate Mother’s visitation because she had become belligerent during a therapeutic visit and had missed two drug tests. While holding S.H. in her arms, Mother repeatedly cursed at the social worker and mocked and mimicked her. The police were called. Mother said she was not going to be carried out of the visit and left the room, only to return and continue her vulgar tirade. Later, when the therapeutic supervisor asked what effect Mother thought her conduct would have on S.H., Mother responded that S.H. “won’t remember.” As a result of this incident, the juvenile court reduced visitation to a minimum of two one-hour, supervised and therapeutic visits per month, or a minimum of one-hour, weekly supervised and therapeutic visits if she submits to drug testing.
The Bureau again updated its six-month status report in advance of the contested hearing. This time, the Bureau recommended that reunification services for both parents be terminated and that the juvenile court set a 366.26 hearing. The Bureau emphasized that S.H. has a life-threatening illness, requiring a “high level” of “regimented” care. Deviating from her medication schedule could have “catastrophic consequences” for her. Mother had graduated from an alcohol and drug treatment inpatient program and completed a parenting class, but had not provided verification of participation in a 12-step program or individual counseling. She had missed numerous drug tests and had missed S.H.’s medical appointments.During Father’s incarceration, many of the services identified in his case plan had been unavailable, but a 12-step program was; nonetheless, he had not participated in 12-step meetings.[1] After being released from prison, Father was living with his mother, which was of concern “due to the criminal history of the persons living in his home.” Father did not communicate with the Bureau at all during his six-month review period and had never inquired about S.H.’s medical treatment.
At the hearing, Mother’s counsel argued that Mother had completed her case plan requirements, with the exception of individual counseling. She had been waitlisted since the previous November to start individual therapy and anticipated she would be assigned a therapist within one week. S.H.’s medical appointments which Mother had missed had occurred early in the case. Father claimed he was able to be released early, before the end of the reunification period, by working in a fire camp while in custody. In the relatively short time since his release, he met with the social worker, received copies of his case plan, arranged to visit S.H., enrolled in a substance abuse program, started attendingNA/AA meetings, and secured employment.
The juvenile court terminated reunification services to the parents and scheduled a 366.26 hearing after finding that reasonable services had been provided or offered to the parents and that returning S.H. to her parents would create a substantial risk to her well-being. As to Father, the court questioned why it had even ordered services in the first place, given that he had never even met his daughter. While incarcerated, he never asked the social worker how S.H. was doing. The court recognized that Father had a difficult choice to make—serve in the fire camp, which had very limited services available to him, but get out of custody sooner, versus serving his time in a place where more services would have been available, but would have required him to be in custody longer. The court also considered that he could have attended 12-step meetings at least once a month in the fire camp, but that he usually chose not to.
As to Mother, the juvenile court found that Mother had regressed. She had recently failed to drug test, and attend 12-step meetings, and failed to address her substance abuse issues, which led to a reasonable inference that she had resumed using drugs.The court questioned whether Mother understood S.H.’s medical needs, as evidenced, in part, by her thought that the medications might be unnecessary and could be replaced by a homeopathic alternative. The court also noted Mother’s violent outburst while visiting S.H.
Mother and Father each filed a timely notice of intent to file a writ petition on January 18 and 19, 2017. They each filed a timely petition in this court,and we issued an order to show cause on February 16, 2017. After the filing of the return, the parties waived oral argument. For the reasons given below, we deny the petitions and the related stay requests.
DISCUSSION
Sufficiency of the Evidence
Mother contends the juvenile court erred in scheduling a 366.26 hearing because there was a substantial probability that S.H. could be returned to her care within the next six months. Father contends the court erred in declining to award him additional reunification services.We reject their contentions.
Our review of the above claims is pursuant to the substantial evidence test. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Mother points out that she had positive interactions with S.H., successfully completed a parent education course and an inpatient substance abuse program, and found employment and obtained suitable housing. While Mother’s efforts are commendable, she omits key, adverse evidence that support the juvenile court’s order. As noted, Mother missed multiple drugs tests and failed to participate in a 12-step program, leading the court to reasonably infer that she had resumed using drugs. She did not demonstrate an understanding of the depths of S.H.’s medical needs, which were serious and potentially life-threatening. She had a recent violent outburst while visiting S.H., and minimized the effect it could have on S.H. Her visits with S.H. had been reduced. In light of these factors, the court could reasonably determine there was no substantial probability that S.H. could be returned to Mother’s care within the next six months.
Father argues the juvenile court should have awarded him additional reunification services because the evidence demonstrates that he made “as much progress as he possibly could have in his court ordered treatment plan, given his limited access to services.” As noted, however, Father decided to work in fire camp while incarcerated, thereby severely limiting the services that could be provided to him. Further, although 12-step meetings were available to him in fire camp, he usually chose not to attend them. While incarcerated, he never asked the social worker how S.H. was doing. He did not communicate with the Bureau at all during the six-month review period, and had never even inquired about S.H.’s medical treatment. Substantial evidence supported the court’s termination of services.
Reasonable Services
Both parents contend the Bureau failed to provide them with reasonable services. There is nothing in the record indicating that either parent complained about the services offered or objected below to the juvenile court’s finding that reasonable services had been provided. A parent who fails to raise critical issues below cannot raise them for the first time in the appellate court. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338–1339 [a contrary rule would allow a party to trifle with the court, permitting him to deliberately stand by silently, permit the proceedings to reach a conclusion, and then acquiesce if favorable or object if not].) “[A] parent [may not] wait silently by until the final reunification review hearing to seek an extended reunification period based on a perceived inadequacy in the reunification services occurring long before that hearing.” (Los Angeles County Dept. of Children Etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093.)
Here, the January 11-12, 2017 hearing was a “combined 6- and 12-month review.” However, there had been a November 16, 2016 hearing where both parents were represented and where the services and case plans for each parent were discussed. The juvenile court specifically gave counsel an opportunity to raise any issues they wished. But nowhere during any hearing did the parents challenge the adequacy of the services. They are precluded from raising the issue for the first time in this court.
DISPOSITION
The petitions for extraordinary writs are denied. The requests for temporary stays are denied as moot. Our decision is final immediately. (Cal. Rules of Court, rules 8.452(i) & 8.490(b).)




_________________________
McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.







A150393




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[1] At the contested hearing, Father testified that he attended two Narcotics Anonymous meetings during the 10 months he was at fire camp.