Sabrina A. v. Superior Court

Filed 3/6/07 Sabrina A. v. Superior Court CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Petitioner Sabrina A., mother of Sophia A. (now nine years old) and Sonia A. (now seven years old), seeks review by extraordinary writ, pursuant to California Rules of Court, rule 8.452,[1] of the juvenile courts findings and orders, in which the juvenile court set the matter for a permanency planning hearing, pursuant to Welfare and Institutions Code section 366.26.[2] Petitioner contends (1) the juvenile court abused its discretionwhen it found, at the 18-month status review hearing, that reasonable services had been provided; (2) the juvenile court abused its discretion when it found that return of the children to petitioner would create a substantial risk of detriment to the childrens physical or emotional well-being; and (3) special circumstances exist in this case warranting an extension of the 18-month reunification period. We shall deny the petition for extraordinary writ.

FACTUAL AND PROCEDURAL BACKGROUND

On December 21, 2004, Contra Costa County Children and Family Services (CFS) filed an original petition alleging that Sophia A. (then seven years old) and Sonia A. (then five years old) came within the provisions of section 300, subdivision (b). Specifically, the petition alleged that petitioner had a substance abuse problem, including an arrest in April 2004 for being under the influence of methamphetamine, which inhibited her ability to provide adequate care for the children. In addition, the petition alleged that petitioner placed the children at risk of harm in that she fed them fast food, which was not in compliance with the diet regimen set forth by the childrens dietician. The petition also alleged that the childrens father, Juan A. (father),[3] was unwilling to provide care and supervision for the children. Finally, as to Sonia only, the petition alleged that petitioner had left her with inappropriate caregivers in that Sonia was sexually abused by a man petitioner had allowed to live in the home and care for Sonia.

On December 22, 2004, the juvenile court ordered the children detained.

At the February 2, 2005 jurisdictional hearing, on CFSs recommendation, the court dismissed the allegations in the petition against petitioner, changed the allegation against father to state that he was unable (not unwilling) to provide care for the children, and sustained the petition, as amended.

In the disposition report prepared on February 18, 2005, the social worker reported that the parents were divorced and the girls had been placed with their paternal grandparents.[4] Previously, when petitioner had custody of the girls, she had allowed a friend to move into her apartment and later learned that the friends boyfriend had fondled Sonia. Sophia had issues around eating and weight. Petitioner had also been arrested for being under the influence of a controlled substance in April 2004, although she had been in a substance abuse program since August 2004, and had tested negative for drugs.

CFS recommended that the children be declared dependents of the juvenile court and that reunification services be offered to both parents.

At the March 11, 2005 dispositional hearing, the juvenile court adjudged the girls dependent children and ordered that reunification services be provided for both parents, as recommended by CFS.

In the status review report prepared on July 15, 2005 for the six-month review hearing, the social worker reported that petitioner had been making progress on her case plan. She had graduated from her treatment program and was participating in aftercare. She continued to make progress in therapy, but needed additional parenting classes. The social worker had informed petitioner, who was living with her grandmother, that Shared Family Care had an available home in Antioch. Petitioner, who was working part-time for a telemarketing company, declined the offer, stating it would be a hardship for her to commute to Antioch. The relationship between petitioner and the paternal grandmother, which was described as conflictual, needed to be addressed to improve relations between them and thereby minimize the emotional impact on the children.

The six-month status review hearing was continued and, in a second report prepared on January 9, 2006 for that hearing, the social worker reported that petitioner has made minimal progress in seeking/securing employment or suitable housing in spite of the continuous offers of support/assistance from the Wrap [around services (Wrap)] team and this Social Worker. She otherwise continued to make progress on her case plan, including participation in parenting classes. Petitioners visitation had been reduced and was now supervised after the social worker observed an injury to her wrist that reportedly occurred during a physical altercation with her boyfriend, Eddie W. The social worker further discovered that the children had had unauthorized contact with Eddie W. during unsupervised visitations. Petitioner appeared upset when informed that the children could have no more contact with Eddie W. Both children appeared more stable and calm since visitation became supervised.

CFS recommended that reunification services be continued for both parents.

The six-month review hearing finally took place on January 24, 2006. The juvenile court found that reasonable services had been provided or offered and ordered continued reunification services for both parents.

In the status review report prepared on June 6, 2006 for the 12-monthreview hearing, the social worker reported that petitioner had obtained employment with Safeway Stores. However, she had made minimal efforts to prepare for reunification with the children, despite offers of support from CFS and the Wrap team, such as offers of transportation assistance for purposes of obtaining housing and employment. Petitioner also demonstrated an unwillingness to protect her children in that she had continued in a relationship with Eddie W., a known felon. Moreover, during her supervised visits, petitioner was frequently inattentive to the children due to her being distracted by the ringing of her cell phone. It also had been reported by Sophias therapist that Sophia had previously suffered sexual abuse, which had not been disclosed earlier.

The paternal grandmother, with whom the children were living, had expressed a desire and willingness to raise her grandchildren. Her home had been assessed by adoptions and deemed appropriate for the children, who had flourished under her loving care.[5] CFS recommended termination of reunification services to petitioner and father, and the setting of a section 366.26 hearing.

After several continuances, the 12-month review hearing took place on August 28 and 29, 2006. The social worker, Ronda Hayes; the Wrap team worker, Eva Crose; petitioners therapist, Mary Holbrook;[6] and petitioner testified at the hearing.

At the conclusion of the hearing, the juvenile court stated: This is a hard case for me. I dont think its true, as the department says, that mother has failed to demonstrate the capacity or ability to reunify with her kids. She has been complying generally with her plan and has made significant progress with her plan. [] There are a lot of inconsistencies, and Im really not sure who to believe. . . . [] And I, too, am concerned about Eddie. . . .

But what troubles me most is a general sort of lack of commitment on mothers part to dive in and call the wrap around team and take advantage of everything that was offered. ThewhetherIm still not sure if there were, in fact, phone calls this year at 7:30 in the morning or not, but that mother ever missed them because she slept in is pathetic. You know, you dont sleep in when you only get one phone call a week. You dont miss meetings. You dont miss seeing your kids. You dont talk on the cell phone when you only see your kids an hour a week. So, frankly, Im not sure what to do . . . .

The court ultimately ordered the parties to submit briefs on the possible outcomes. In the meantime, the court stated that petitioner should not be around Eddie W. The court further stated that well look into housing for mother. And shes to consider pursuing joint therapy with the kids. Finally, the court said it wanted to see petitioner more motivated about getting those girls back, doing everything she can.

In a memorandum prepared on October 30, 2006, the social worker provided an update to the court, reporting that, pursuant to the courts order, she had referred petitioner to a housing liaison. At an initial appointment on September 13, 2006, petitioner received a list of available rentals, as well as advice regarding apartment searching and obtaining a free credit report. The housing liaison determined that petitioners income was sufficient for her to obtain a two-bedroom apartment. Additional appointments were scheduled for petitioner and the housing liaison to meet, with the expectation that petitioner would begin a housing search and report any difficulties or concerns. Petitioners efforts in searching for housing had been minimal, according to the housing liaison. The social worker also learned from Families First that a mentorship home for a family of three was no longer available because the host family that was previously a part of the program had withdrawn.

After several more continuances, the 18-month review hearing was held on November 30, 2006. In a memorandum prepared on that date, the social worker updated the court regarding the case, reporting that she had met with petitioner on November 2, 2006; petitioner said she was homeless and living with friends. She seemed preoccupied with issues unrelated to the children or her efforts toward reunification, a lack of focus that had been consistent throughout the case. Her failure to make her children a priority was demonstrated by her continued relationship with Eddie W. after numerous requests from CFS that she terminate the relationship so she could have unsupervised visits with the children. Petitioner also repeatedly lied to the social worker by falsely stating that she had discontinued the relationship with Eddie W.

The social worker further stated that the children had special needs in that Sophia had been struggling with severe obesity and emotional eating and both girls had mental health issues related to their prior sexual abuse. The social worker believed that petitioners lack of focus on these issues would pose a detriment to both children. The social worker noted that petitioner had had almost two years to demonstrate her commitment to her children and to prepare a secure life for them, but had failed to do so.

CFS recommended termination of petitioners reunification services and the setting of a section 366.26 hearing.

Attached to the memorandum was a November 28, 2006 letter from family therapist, Wynne Osborne, who had met with petitioner and the two girls on three occasions. Osborne noted that there was affection between the mother and children, but mother has lost some of her authority with the children. Currently, she has more of the role of a loved older sister. If the children are to return to mothers full time care, the family will need continued therapy in order to establish mothers authority and her position as a reliable, protective caregiver. . . . There is love in this family, but trust must be reestablished.

At the November 30, 2006 hearing, following argument of counsel and submission of the matter, the juvenile court stated that petitioners progress on her case plan was moderate because I think mother has done, based on the case plan, most of what was expected. Unfortunately, she still doesnt have housing.

I was initially concerned that maybe there hadnt been sufficient services, but there can be no doubt that theres been sufficient services at this point in time because weve gone on, and yet mother still doesnt have housing. So it would create a substantial risk of detriment to the safety of the girls to return them to mother at this point in time.

I am happy that the family is in therapy, and it does look like its progressing well. So hopefully that can continue. The court then terminated reunification services and set the matter for a section 366.26 hearing.

This petition followed. Pursuant to rule 8.452, we issued an order to show cause and put the case on calendar for oral argument.[7]

DISCUSSION

Pursuant to section 366.22, subdivision (a), the juvenile court must terminate reunification services and hold a section 366.26 hearing within 18 months after the date the child was removed from the parents physical custody, upon a finding that reasonable services were offered or provided and that return of the child to the parent would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.

I. Finding that Reasonable Services were Offered

Petitioner first contends there was insufficient evidence to support the juvenile courts finding, at the 18-month review hearing, that reasonable services had been provided.[8] (See  366.22, subd. (a).) Specifically, she argues that she was not timely offered family therapy with the children or assistance in locating housing.

[W]ith regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile courts finding that reasonable services were provided or offered. (Angela S. v. Superior Court, supra, 36 Cal.App.4th at p. 762.)

Pursuant to section 361.5, CFS is required to make a good faith effort to develop and implement a family reunification plan with the objective of providing such services or counseling  as will lead to the resumption of a normal family relationship. [Citations.] (In re Christina L. (1992) 3 Cal.App.4th 404, 414.) Nevertheless, as explained in In re Misako R. (1991) 2 Cal.App.4th 538, 547: In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. 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.

The record in this case shows that CFS attempted to assist petitioner in a variety of ways to overcome the issues leading to dependency and that the case plan was tailored to her specific needs. (See In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) The case plan included various objectives for petitioner, including staying free from illegal drugs, cooperating with the social worker, showing her ability and willingness to have custody of her children, obtaining resources to meet the needs of her children and to provide a safe home, maintaining a relationship with the children by following the conditions of the visitation plan, and showing that she knew age appropriate behavior for the children. The case plan also included the following responsibilities for petitioner: participation in individual counseling, parenting classes, substance abuse treatment and testing, and AA/NA meetings. CFSs responsibilities included: performing case management activities, arranging and maintaining the childrens placement, and making referrals to community services.

Petitioner nonetheless argues that reunification services were unreasonable because CFS failed to offer her family therapy and assistance in obtaining housing. She notes that, at the 12-month review hearing on August 28-29, 2006, the juvenile court said: And well look into housing for mother. And shes to consider pursuing joint therapy with the kids.

A. Family Therapy

Petitioners case plan included a provision for participation in each childs therapy as requested by the childs therapist. There is no indication in the record that the childrens therapists ever requested joint therapy with petitioner. However, following the courts suggestion of joint therapy at the August 2006 hearing, CFS arranged for family therapy with Wynne Osborne, an independent therapist. Petitioner and the children participated in three sessions prior to the November 30, 2006 hearing.

Petitioner seems to be arguing that family therapy should have been provided earlier because CFS should have seen the need for it. However, the case plan required it only upon the request of the childrens therapists. Moreover, if petitioner, who was represented by counsel, was dissatisfied with the case plan in this regard, she could have requested family therapy at an earlier date. She did not do so and, consequently, she may not now claim CFS was unreasonable in failing to provide family therapy for her and the children earlier in the case.

As the appellate court explained in In re Christina L., supra, 3 Cal.App.4th at page 416, a case in which the mother complained after-the-fact about the adequacy of services offered to her: No reason is apparent here why the general principle that a party should not sleep on her rights does not apply. (Civ. Code,  3527.) If Mother felt during the reunification period that the services offered her were inadequate, she had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan:  The law casts upon the party the duty of looking after his legal rights and of calling the judges attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal. [Citation.] [Citation.]

B. Housing Assistance

Petitioners case plan included a provision requiring her to [o]btain resources to meet the needs of your children and to provide a safe home. Petitioner claims the social worker failed to assist her in meeting this requirement. However, the record reflects that, early in the case, petitioner was offered mentor housing in Antioch, which she refused. In addition, CFS brought in the Wrap team to assist petitioner in fulfilling this objective. Eva Crose, the Wrap team worker, testified at the 12-month review hearing that her team does not make referrals to any particular housing, but we will facilitate their finding housing by helping them search forthrough newspapers, ads[,] calling the housing department, stuff like that. According to Crose, at the initial assessment, it was determined that petitioners needs for assistance included traffic issues, employment issues, and housing issues. Crose was available to help petitioner look for housing and checked with her periodically to see what her needs were, but petitioner did not avail herself of these services.[9]

Petitioner received additional assistance with obtaining housing after the 12-month hearing from a housing liaison. However, according to the housing liaison and the social worker, petitioner made only minimal efforts to search for housing at that time. While it is true that the social worker could have been more proactive in seeking additional housing referrals for petitioner, assistance in obtaining housing was made available to petitioner through the Wrap team and the housing liaison, but petitioner chose not to utilize those services.[10]

In sum, the evidence shows that the case plan was tailored to fit petitioners circumstances and that CFS made reasonable efforts to assist her to comply with the case plan. Hence, the services provided, while not perfect in every regard, were reasonable in the circumstances (In re Misako R., supra, 2 Cal.App.4th at p. 547), and the juvenile courts finding that reasonable reunification services were provided is supported by substantial evidence. (See Angela S. v. Superior Court, supra, 36 Cal.App.4th at p. 762.)

II. Finding of Substantial Detriment

Petitioner also contends the juvenile court abused its discretion when it refused to return the children to her following the 18-month review hearing.[11]

Pursuant to section 366.22, subdivision (a), if the juvenile court finds that return of the children to their parent would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child, the court must terminate reunification services and hold a section 366.26 hearing within 18 months after the date the children were removed from the parents physical custody, upon a finding that reasonable services were offered or provided.

In this case, petitioner received more than 19 months of reunification services. While the court found, at the November 30, 2006 hearing, that petitioner had fulfilled most of the requirements of her case plan, it ultimately concluded that there would be a substantial risk of detriment to the childrens safety to return them to her. The court cited not only petitioners failure to secure housing, but also alluded to what it had explicitly stated at the August 29, 2006 hearing, that petitioner really need[ed] to step up and show more motivation, I mentioned a while ago, because it hasnt shown through yet.[12]

The record supports the juvenile courts findings of detriment. Petitioner plainly loves her children, as they love her. Her achievements, particularly with respect to becoming sober and addressing her own psychological issues, are admirable. She also has completed most of the requirements of the case plan. However, the evidence shows that, regardless of her technical compliance with many of her case plan requirements, she has not shown that the children could be safely returned to her care at this time.[13] (See In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143 [parental compliance with technical requirements of reunification plan will not automatically result in childs return to parental custody].)

Areas of ongoing concern include petitioners failure to take advantage of services provided, including the Wrap team and housing liaisons offers of assistance in obtaining housing; her continued relationship with Eddie W. even though she knew it would impact her ability to be with her children; and the fact that she missed visits and phone calls with the children and talked on her cell phone during visits. These examples reflect petitioners apparent unwillingness or inability to put her children first and do everything possible to meet their needs and keep them safe. The juvenile court properly found that return of the children to petitioners custody would create a substantial risk of detriment. ( 366.22, subd. (a).)

III. Alleged Need to Extend Reunification Services Past the 18-Month Deadline

Finally, petitioner contends special circumstances existed warranting an extension of reunification services past the 18-month statutory deadline. (See  366.22, subd. (a).) According to petitioner, the social worker gave the court false information (presumably regarding housing assistance offered to petitioner), on which the court relied, which warrants extending reunification beyond the 18-month deadline, pursuant to section 352.[14]

A court may extend the 18-month maximum for reunification efforts only under very limited circumstances, that is, when: no reunification plan was ever developed for the parent [citation]; the court finds reasonable services were not offered [citation]; or the best interests of the child would be served by a continuance (see  352) of an 18-month review hearing [citation]. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.)

Here, petitioners allegation that the social worker gave the court false information regarding CFSs assistance to petitioner in obtaining housing seems to us to exaggerate the import of any contradictions between the social workers reports and her testimony. More importantly, regardless of the accuracy of this allegation, the juvenile court had access to all of the evidence in this case, including the purportedly conflicting evidence in the social workers reports and testimony and the Wrap team workers testimony from the August 28-29, 2006 hearing, when it found that reasonable reunification services had been offered and set the matter for a section 366.26 hearing. Petitioner received more than 18 months of services in this case, services that we have already found were reasonable. This is not the kind of unusual case warranting an extension of the reunification period beyond the statutory limit. (See Carolyn R. v. Superior Court, supra, 41 Cal.App.4th at p. 167.)

DISPOSITION

The petition for extraordinary writ is denied on the merits. Our decision is final as to this court immediately. (Rule 8.264(b)(3).)

_________________________

Kline, P.J.

We concur:

_________________________

Haerle, J.

_________________________

Lambden, J.

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[1] All further rule references are to the California Rules of Court.

[2] All further statutory references are to the Welfare and Institutions Code.

[3] Father is not involved in the present writ petition; these facts will therefore focus primarily on petitioners circumstances.

[4] The most recent child custody order had given temporary custody of the children to father. He had left them with his mother and moved in with his girlfriend, saying he was not in a position to care for the girls at that time.

[5] Father approved the plan for adoption by the paternal grandmother.

[6] Petitioners therapist had recently written two letters to CFS, one in June 2006 and one in July 2006. In the first letter, Holbrook wrote that she and petitioner had talked about petitioner  fighting against losing her children by changing her circumstances and what that would mean. Hopefully, Sabrina will be able to let go of her disappointment and sense of hopelessness enough to move in this direction over the next two months. She loves her children deeply, and I believe she is trying as hard as she can to develop the emotional maturity she needs so that her love will be sufficient. Holbrook wrote the second letter approximately one month later, after learning that CFS was recommending adoption, rather than guardianship, as the permanent plan. Holbrook wrote that, in her opinion, petitioner would be psychologically able to have her children returned to her at that time without endangering their well-being.

[7] The parties have waived oral argument in this matter.

[8] Petitioner actually argues that the juvenile court abused its discretion in finding that reasonable services were offered. The correct standard of review, however, is substantial evidence. (See Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)

[9] Petitioner points out supposed contradictions between the social workers statements in the status review reports and her testimony at the 12-month review hearing. The inconsistencies are related to the housing assistance offered to petitioner at various times, in particular the social workers statement that she and petitioner had discussed shared mentor housing again. First, petitioner acknowledged at the hearing that, in the previous six months, when she wanted another housing referral, the social worker had told her to call Families First again. Second, even assuming the statement in the report was incorrect, the basic fact remains that housing and other assistance was made available to petitioner, but she did not make use of that assistance.

[10] This case is distinguishable from David B. v. Superior Court (2004) 123 Cal.App.4th 768, 798 (David B.), relied on by petitioner, in which the appellate court granted a writ petition after concluding that the juvenile courts reasonable services finding was not supported by substantial evidence. In David B., the father had done virtually everything SSA requested of him, and then some, including responding to the social workers concerns about the safety of the home he shared with relatives by making extensive efforts to make the home safe for his young daughter. (Id. at pp. 772, 793.) The social services agency never informed him that living with these relatives was not an option. (Id. at p. 773.) The juvenile court found it could not safely release the child to the fathers custody due to his lack of any other home to offer her. (Ibid.)

In granting the writ petition, the appellate court explained that, however well meaning, the social worker ended up focusing on the wrong thing. The problem in this case was housing, and it was made short shrift of. [The father] did everything else asked of him to obtain custody of [his daughter], and there is frankly no reason to presume that if he had been told living with his sister was not an option, he would not have done something about that too. (David B., supra, 123 Cal.App.4th at p. 795.) In this case, unlike in David B., petitioner knew that she needed to obtain housing for the children, but did not utilize services offered to assist her with this task. She also had other unresolved issues that prevented her from safely reunifying with the children.

[11] CFS states that the substantial evidence standard of review applies in this context. (See Angela S. v. Superior Court, supra, 36 Cal.App.4th at p. 762.) With respect to the issue raised here, we find that petitioners argument cannot succeed under either standard.

[12] At the August 29, 2006 hearing, the court had said: But what troubles me most is a general sort of lack of commitment on mothers part to dive in and call the wrap around team and take advantage of everything that was offered. The court also expressed concern about petitioners sleeping in when she was supposed to call the children, missing visits with the children, and talking on her cell phone during visits, and said it wanted to see her be more motivated about getting those girls back, doing everything she can.

[13] We observe that the permanent plan possibilities in this case include guardianship, not just adoption. Thus, it is quite possible that petitioner will be able to maintain and strengthen the relationship with her daughters even as they benefit from the stability of their grandmothers care. Indeed, at the conclusion of the 18-month hearing, the juvenile court stated that it hoped that family therapy, which was progressing well, could continue.

[14] Petitioner cited to Evidence Code section 352 in this argument in her brief. We presume that was a mistake and that she is referring to section 352 of the Welfare and Institutions Code, which concerns continuances of hearings.