Tracy J. v. Super. Ct.

Filed 6/15/07 Tracy J. v. Super. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Tracy J., the mother of minor Colton J., seeks extraordinary writ review pursuant to California Rules of Court, rule 8.452 to vacate the order of respondent juvenile court made at the conclusion of the six-month review hearing. Before setting a hearing pursuant to Welfare and Institutions Code section 366.26[1] for adoption of a permanent placement plan, the court ordered termination of reunification services to petitioner from real party in interest San Francisco Human Services Agency (Agency), finding that the reunification services offered to petitioner by the Agency were adequate. Petitioners sole contention for review is whether substantial evidence supports that finding, and the courts related decision to terminate services. We conclude that the record has more than ample evidence to sustain both of those determinations, and we deny the petition on its merits.

BACKGROUND

Colton was less than a week old when the Agency filed a petition seeking to have him declared a dependent child. The Agency alleged in the petition that Colton was at risk of suffering serious harm due to petitioners long history of substance abuse, current mental health concerns, and her failure to benefit from extensive intervention from five other dependencies for other children in various counties ( 300, subds. (b) & (j)).[2]

Six days later, at the Agencys request, the juvenile court ordered Colton detained and placed in foster care.

A combined jurisdictional and dispositional hearing was held in August 2006, at which time the court sustained the allegations of the petition and declared Colton a dependent child. The record before us does not have a reporters transcript of the hearing. It appears from the minutes that all sides submitted the issue on the basis of a disposition report and addendum prepared by case worker Sharon Richardson. That report put the following information before the court:

Petitioners substance abuse problems and mental health difficulties date back to when she was a teenager.[3] Since then she has had numerous arrests for mostly property-related offenses, and numerous police reports concerning domestic violence and failure to provide for her children. Ms. Richardson advised the court that The mother has an extensive history with child welfare services in Solano, Contra Costa, San Francisco, Santa Clara and San Bernardino counties, dating back to 1995. . . . These referrals culminated in the removal, placement and termination of reunification services for all of the mothers first five children.

Ms. Richardson noted that petitioner was currently in a residential substance abuse treatment program, but she was not overly impressed by that fact: She [petitioner] was repeatedly unsuccessful in complying with Court ordered reunification requirements, which included substance abuse treatment and testing, as well as counseling and parenting education. The mothers history includes failing to protect the minors from abuse and abusive male partners, leaving one of her children alone and unsupervised, violating Court orders . . . and violating restraining orders. She lied to previous child welfare workers each time she made safety plans to leave her oldest child with a relative and then picked the child up immediately after CPS closed its file.

Still, petitioners action did have some positive impact: The Departments first recommendation was to bypass services and fast-track this minor for adoption. The Department agreed, however, to provide reunification services because the mother voluntarily engaged in services before the minor was detained. But there was a significant caveat: The mothers history indicates that her capacity to successfully parent the minor lies in her successful completion of inpatient and outpatient treatment services, and engagement in individual counseling to address her own victimization issues. If reunification occurs before she has the opportunity to successfully complete services, her pattern of substance abuse may reoccur, and she may once again repeat the patterns of behavior that resulted in the termination of services [to] five of her children. However, Ms. Richardson projected that, if petitioner complied with her proposed case plan with its extensive inpatient and outpatient services, petitioner could be reunified with Colton.

The addendum was prepared only a few days after the report because Ms. Richardson heard from the treatment program that the mother was not doing well. Details were provided, as was petitioners history in this area: This is not the first time the mother has engaged in substance abuse treatment services. She began treatment services at Jelani House in December of 2003, and terminated her participation in February of 2004. She engaged in services at Iris Center in 2003, 2004 and again in 2005, but failed to complete a program each time. She began a substance abuse assessment with John Meyers in 2004, but failed to complete it. She sought services at Epiphany residential in 2005, but failed to follow through. She failed to keep an appointment with a substance abuse specialist at the Homeless Childrens Network in 2005. She was discharged from Harbor House as a result of positive UAs [urine analyses]. She admitted . . . that she used substances during her entire pregnancy with this minor. She has had an unaddressed substance abuse addiction for more than fourteen years, and has never successfully completed either an inpatient or outpatient program. Ms. Richardson also noted that petitioner was a potential flight risk in light of her being reported to county hop to avoid CPS investigations.

Although clearly troubled, Ms. Richardson gave petitioner the benefit of the doubt: The Agency continues to have concerns regarding the mothers capacity to complete treatment services successfully, given her long history of substance abuse that has lasted for more than fourteen years. Although she is close to successfully completing an in-patient program, something she has not previously succeeded at, concerns remain that ninety days of being clean and sober in a residential environment may not be enough to ensure this mothers recovery is more permanent. The Agency recommends that the mother be Court ordered to successfully complete six months of inpatient residential treatment services, as all . . . Court approved residential treatment programs are for six months. But, she reiterated, If reunification occurs before she [petitioner] has the opportunity to successfully complete services, her pattern of substance abuse may reoccur, and she may once again repeat the patterns of behavior that resulted in the termination of services [to] five of her children.

At the combined jurisdictional and dispositional hearing, the juvenile court adopted the Agencys recommendation and its proposed case plan. The court also set a six-month review hearing for February 2007. The review was continued to April 6, 2007.

At the start of the review hearing, the court received in evidence Ms. Richardsons status review report. That report included the following:

The mother benefited from her engagement in services at Marin Services for Women (MSW) from May to November 7, 2006. Her inpatient work there exceeds any previous effort she made toward her own recovery. She demonstrated new and positive behaviors as a result of her participation in the program. MSW graduated her on 11/07/06, and stated that she successfully completed their inpatient program. [] However, as of 01/12/07, the mother remains non-compliant with reunification services, because she has not complied with the MSW discharge recommendations for outpatient services. Further, she has not had contact with the minor, and has been minimally responsive to the Agency since her discharge from MSW on 11/07/06.

Ms. Richardson proceeded to supply details for these negative conclusions. Notwithstanding an MSW recommendation that petitioner immediately engage in outpatient services upon discharge, and advice from Ms. Richardson that unless she did so she would be out of compliance with Court ordered services, petitioner was out of contact for a week after discharge, telling MSW her boyfriend was taking her on . . . a cruise. Thereafter, petitioner failed to appear to sign paperwork, and she repeatedly failed to respond to calls from MSW and Ms. Richardson. MSW staff reported that petitioner was making minimal progress, and had been out of contact. A letter from Ms. Richardson admonishing petitioner to immediately engage in outpatient services went unanswered.

Ms. Richardson further reported that on January 12, 2007, MSW advised that petitioner has not engaged in outpatient services, and had been non-responsive to numerous attempts to contact her. Petitioner was delinquent in paying MSW, a problem that could be avoided if she straightened out her MediCal coverage.

Ms. Richardson concluded that petitioner was not in compliance with crucial parts of her case plan. Petitioner had completed a residential treatment program, but she failed to follow through with the post-graduation requirements of that program. Petitioner had undergone the substance abuse assessment, but the obligation to refrain from further substance abuse could not be verified because she had not been tested since discharge from the MSW program. Petitioner was not compliant with the requirements of individual therapy and parenting education because of her failure to follow through with MSWs post-graduation outpatient services.

In addition, petitioner has not visited with Colton since graduation from the MSW program. She has not started involving herself with medical planning for Colton. She has not remain[ed] under the care of a qualified mental health professional after completing the MSW program. Ms. Richardson was unable to determine if petitioner was able to provide a legal source of income for support of the child. And there was one time she used cocaine during the MSW program.

After detailing these deficiencies, Ms. Richardsons conclusion was no surprise: The Agency now seeks to terminate the mothers reunification services, because a significant change in circumstances exists. The mother has failed to successfully complete services by not engaging in outpatient services, by not maintaining contact with the minor since before her discharge, and by testing positive, again, for drugs. [] . . . [] Additionally, the mother . . . has contacted the Agency only once since before her discharge, even after the undersigned reminded the mother that her services were not [terminated]. She twice did not inform the Agency of her change of address, of the termination of her telephone services, and of her new telephone service on three separate cell phones.

The mother reported that she could not begin outpatient services because her medical coverage was discontinued. However, the undersigned reminded the mother on more than one occasion that she could engage in no or low cost treatment in San Francisco. She chose to stay at MSW in Marin County, and incur that programs costs, and now uses that cost and her MediCal status as an excuse to not comply with reunification services. [] The mother has had six months of reunification services for this minor. She has had six months to ensure her MediCal coverage would be in order, or make other arrangements. She has had six months to plan for participation in outpatient services. She has had eleven years to get clean and sober and overcome relapse behaviors. However, she has now failed to reunify with six minors.

Ms. Richardson wanted to be absolutely unmistakable with her conclusion: The mother has not demonstrated, after more than eleven years, that she has or can develop the capacity to keep the minors best interests above her own. Continuing reunification services at this time maintains the same level [of] risk, or higher, than the risk that caused this dependency case. (Original was in bold face and underscored.)

Ms. Richardson testified at the six-month review hearing. Most of her testimony retraced points made in her written report, and thus need not repeated here. In terms of new information, she testified that petitioner had no visits with Colton following her MSW discharge in November 2006 until the report was made in January 2007. In January, petitioner requested visitation; thereafter, she appeared at three of the nine scheduled visitation dates through March. Lastly, petitioner had resumed drug testing in January, and she tested negative in the January, February, and March tests.

On cross-examination, Ms. Richardson testified that petitioner is now in suitable housing. Petitioner appears to have been willing to get individual therapy following her MSW discharge, but this was not communicated to Ms. Richardson; nor was Ms. Richardson aware that there was [a] medical issue that prevented her [petitioner] from being able to go to the outpatient services at MSW.

Petitioner was not present at the hearing, but she did call a witness on her behalf. Shaundi Goins testified that he is employed at the West Oakland Health Council as a substance abuse counselor. Petitioner has been one of his clients since January 30, 2007. They meet four days a week in group counseling, and one day a week for an individual session. Petitioner has attended all her sessions and her drug education classes. Mr. Goins believes petitioner is making progress.

Mr. Goins testified on cross-examination that what she has not learned is relapse prevention training, which will take about 90 days. His program normally conducts multiple random drug tests every week, but petitioner does not test for us because she cant pay for testing in our facility. Mr. Goins is aware that petitioners situation has a mental health component, and he is attempting to be the service provider for her. However, she has not received a referral, and is not receiving therapy. His program lasts a minimum of five months, but My recommendation would be for [petitioner] to . . . be in treatment at least 12 months.

Mr. Goins further testified that parental education is available but petitioner has chosen not to do it because she had already taken such a course. Petitioner could have drug testing, which costs $12 per test; petitioner is at present not paying anything.

The court then heard argument on the Agencys recommendation that reunification services should be terminated. Counsel for Colton supported that recommendation primarily because I am led by the fact that she [petitioner] was very close to going to Colton with her more and more and more right when she was in her program and then she dropped out of sight and did not participate for two and a half months, did not avail herself of services that she knew she needed to avail herself of and did not follow recommendation[s] of [the] program she was in, and . . . that is telling. . . . Her provider [Mr. Goins] who had testified today said that he thought she would need [a] good 12 months to really be in position in terms of her recovery. Colton does not have that 12 months.

Petitioners counsel conceded that Yes, there was a two and a half month gap between completing . . . in-patient and getting into outpatient services. But she argued that petitioner had not received reasonable services because she was hindered by the financial issues, and by the Agencys refusal to make referrals and pay for services in the county where petitioner lived. Because petitioner was making substantial progress, counsel asked for six additional months of services.

Like Coltons counsel, counsel for the Agency treated the 2 month period as crucial: The real problem was that . . . as soon as she [petitioner] was discharged from the program, [she] missed at least three appointments with Marin Services in order to work out Medi-cal and aftercare. She virtually disappeared. Child welfare worker was calling, writing letters. The report indicated that at least four phone numbers [the] child welfare worker was trying to get hold of [petitioner] for months and during those same months, the worst part of all this is I think from November to January, she never visited Colton. We see a lot [of parents] who have hard time with services and struggled, but they visit their children. For some reason, [petitioner] was not able to do that. . . . I dont know what happened, but it certainly was not [petitioner] floundering alone because everybody was looking for her.

The court then ruled as follows: I am rooting so hard for you, [petitioner], on this case. I can remember coming to work this morning and saying to myself, boy, I cannot wait to see how the evidence comes up on this one . . . . I am really rooting for her. And when I see a woman who got herself through her in-patient program and then for some reason that I dont understand was unable to take advantage of services after that, was unable to accept help thats available for you, and I just see someone who is determined to do it on her own and the problem with that you dont get where you need to be. I am also sad . . . that you have not visited with your son the way I think you could have and should have in order in order to impress me with the fact that you may be able to reunify with him. That looms very large for me. I have not really heard anything to explain why not, but its . . . really not where I wanted to come out . . . . So I am going to follow the recommendation of the agency . . . .

The courts precise findings were that there is substantial danger to the physical health of Colton, or there would be if he were returned home at this time, and there are no reasonable means by which his health may be protected without removing him from the parents physical custody. By clear and convincing evidence, reasonable efforts have been provided or offered to the parent which are designed to aid her to overcome the problems which led to initial removal and continued custody of this child. This childs present placement in confidential foster care is necessary and appropriate. The agency has complied with its case plan by making reasonable efforts to return him to [a] safe home and to complete whatever steps are necessary to finalize his permanent placement. Dependency status is renewed on behalf of Colton. Reunification services to the mother are terminated.

DISCUSSION

Petitioners only claims of error relate to the subject of reunification services. Before proceeding to examine those claims, it is appropriate to keep in mind the nature and extent of those services.

[W]henever a child is removed from a parents . . . custody, the juvenile court shall order the social worker to provide child welfare services to the child and the childs mother . . . . ( 361.5, subd. (a).) It is difficult, if not impossible, to exaggerate the importance of reunification in the dependency system. With but few exceptions, whenever a minor is removed from parental custody, the juvenile court is required to provide services to the parent for the purpose of facilitating reunification of the family. [Citation.] Each reunification plan must be appropriate to the parents circumstances. [Citations.] The plan should be specific and internally consistent, with the overall goal of resumption of a family relationship. [Citations.] The agency must make reasonable efforts to provide suitable services, in spite of the difficulties of doing so or the prospects of success. [Citation.] (In re Luke L. (1996) 44 Cal.App.4th 670, 678; accord, In reMichael G. (1998) 63 Cal.App.4th 700, 714.)

The adequacy of the reunification plan and of the departments efforts to provide suitable services is judged according to the circumstances of the particular case. [Citations.] . . .  [T]he record should show that the supervising agency identified the problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . . [Citations.] (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011.) But the reunification services offered have only to be reasonable; perfection is not expected or required. (In re Jasmon O. (1994) 8 Cal.4th 398, 425; Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)

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. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) The reasonableness of reunification services is to be determined light of all relevant circumstances, which include the mental condition of the parent, her insight into the familys problems, and her willingness to accept and participate in appropriate services. (In re Christina L. (1992) 3 Cal.App.4th 404, 416.)

The reunification process is a collaborative effort. Reunification services are voluntary, and cannot be forced on an unwilling or indifferent parent. (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.) Once a parent has been located, it becomes the obligation of the parent to communicate with the [the social services agency] and participate in the reunification process. (In re Raymond R. (1994) 26 Cal.App.4th 436, 441.) If the parent believes that the reunification services are inadequate or misdirected, the parent cannot remain silent about such deficiencies during the reunification period, and then complain as the period is about to end, or raise the perceived deficiencies on appeal. (Los AngelesCounty Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1092-1093; In re Christina L., supra, 3 Cal.App.4th 404, 416.)

The requirement that reunification services be made available to help a parent overcome those problems which led to the dependency . . . is not a requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions. A parent whose children have been adjudged dependents of the juvenile court is on notice of the conduct requiring such state intervention. If such a parent in no way seeks to correct his or her own behavior or waits until the impetus of an impending court hearing to attempt to do so, the legislative purpose of providing safe and stable environments for children is not served by forcing the juvenile court to go on hold while the parent makes another stab at compliance. (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.)

The juvenile court is required to have clear and convincing evidence when it finds that the reunification services offered were adequate, but that finding is reviewed on appeal for substantial evidence. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971; In re Maria S. (2000) 82 Cal.App.4th 1032, 1039.) An appellate court conducting an examination for substantial evidence has a very constrained scope of operation:

The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile courts order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.] (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)

The trial court made two findings concerning reunification services, and petitioner attacks them both on the same ground. She contends that the finding the Agency offered reasonable services is not supported by substantial evidence. Petitioner directs the same argument against the finding that additional services would not be ordered. Petitioners arguments are without merit.

Colton was under the age of six months when he was removed from petitioners custody. Petitioner was therefore statutorily entitled to only six months of reunification services. ( 361.5, subd. (a)(2).)

It is true that the jurisdictional findings showed that petitioner had mental health concerns as well as an entrenched substance abuse problem. It is also true that when the court at the same time adopted the proposed case plan, the particulars of the plan were largely devoted to addressing petitioners substance abuse difficulty. The plan did require petitioner to undergo a psychological evaluation and follow any recommended treatment, and to remain under the care of a qualified mental health professional and comply with the mental health professionals recommendations for psychotherapy and/or prescribed medication.

Petitioner does not argue that these parts of the plan were inadequate to address her mental health concerns, only that the Agencys failed to follow through by not referring petitioner to any therapeutic, psychological or psychiatric services. This brings us to the decisive matterthe two-month period immediately after petitioner graduated from the MSW residential program on November 7, 2006.

That period figured prominently in the parties arguments to the court, and it is easy to see why. According to counsel for the Agency, following petitioners completion of the MSW program, She virtually disappeared. This is not an inaccurate characterization. Whether petitioner actually went on a cruise with her boyfriend, as she told MSW personnel, is not really the point. What is the point is that petitioner voluntarily created a situation where she could not be regularly contacted by either the Agency or staff from MSW. She did periodically communicate with MSW, and some information was passed on by her attorney, but for all practical purposes, petitioner became invisible to the Agency until she reappeared on January 12, 2007.

Petitioner cannot spin her silence, and her absence, as somehow the fault of the Agency for losing touch with her. It was her responsibility to stay in touch with the Agency, not vice versa. (In re Raymond R., supra, 26 Cal.App.4th 436, 441.) Indeed, the case plan expressly required petitioner to make . . . her whereabouts known to the Child Welfare Worker atall times. (Italics added.) This, she clearly failed to do.

It was during the periods before and after her completion of the MSW residential program that petitioner (or her counsel) could have alerted Ms. Richardson and the Agency about any defects in the case plan failing to address petitioners mental health concerns. She did not do so, thus depriving the juvenile court of the best opportunity to correct any present or potential deficiency. Her failure to mention the issue until the April 2007 review hearing precludes the possible existence of any defects being recognized as error at this late date. (Los AngelesCounty Dept. of Children etc. Services v. Superior Court, supra, 60 Cal.App.4th 1088, 1093; In re Christina L., supra, 3 Cal.App.4th 404, 416.)

Moreover, the reasonableness of the reunification services offered petitioner by the Agency is to be judged in part on petitioners own willingness to accept and participate in appropriate services. (In re Christina L., supra, 3 Cal.App.4th 404, 416.) Petitioners voluntary departure from the scene hardly enhances her argument that the services extended to her were inadequate in design or execution. Equally unhelpful was petitioners unilateral decision to complicate matters by insisting on living in Alameda County. Petitioner told Ms. Richardson that payment for services was a big issue. Despite being told that she could obtain services in San Francisco County at no or low cost, petitioner appears to have created precisely the sort of multi‑county snarl that would needlessly complicate reunification.[4]

Most importantly, another provision of the case plan was that petitioner visit the child on a regular basis prior to reunification . . . as arranged by the Child Welfare Worker. (Italics added.) By dropping out of touch with Ms. Richardson, petitioner pretty much ensured that she could not maintain regular visitation with Colton. This circumstance is aggravated in its impact because it coincided with the gap in petitioners drug-testing regime. Even taking into account Ms. Richardsons testimony about petitioner resuming drug testing, the fact that she lapsed in her testing hardly inspires confidence in her dedication to proving that she was staying drug-free to facilitate reunification with Colton. It strains credulity to assume that reuniting with the child petitioner had stopped visiting would be the motivation for her completing the nine remaining months of Mr. Goinss outpatient program. There was thus considerable force to the point made by the childs counsel, that Colton does not have [those] months to wait for petitioners achieving a drug-free life.

It was not Ms. Richardsons responsibility to monitor petitioners movements, extract her from bureaucratic snarls of her own making, or march her through the case plan. (In re Raymond R., supra, 26 Cal.App.4th 436, 441; In re Jonathan R., supra, 211 Cal.App.3d 1214, 1220.) Petitioner had extensive experience with the dependency system, particularly what it required of a parent with a substance abuse problem. The juvenile court believed it was observing the sixth time petitioner either would not, or could not, conquer that problem. The prospect of petitioners failure does not establish that the Agencys reunification services were inadequate as a matter of law, or that six additional months of services would materially improve the odds of her succeeding. Having examined the record before us, we conclude that there is more than sufficient evidence to support the challenged findings. (In re Alvin R., supra, 108 Cal.App.4th 962, 971; In re L. Y. L., supra, 101 Cal.App.4th 942, 947.)

DISPOSITION

The petition is denied on the merits. (Cal. Rules of Court, rule 8.452(i)(1).) Our decision is final as to this court immediately. (Id., rule 8.264(b)(3).)

_________________________

Richman, J.

We concur:

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Kline, P.J.

_________________________

Haerle, J.

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[1] Statutory references are to the Welfare and Institutions Code.

[2] The petition also included allegations against the alleged father, who is not a party to the instant writ proceeding. This individual was subsequently determined not to be Coltons father.

[3] Petitioner had just turned 31 when this dependency was initiated.

[4] According to the dependency petition, Colton was born in Marin, the county where petitioner was living at the time (at MSW). Why San Francisco took jurisdiction is not clear, although possible explanations are that the San Francisco juvenile court had jurisdiction over the other five children, or that petitioner had recently resided in San Francisco. As already mentioned, the Agency preferred that reunification take place within San Francisco, but it was willing to accept services in Marin. Petitioner apparently relocated to Oakland when she resurfaced in January 2007. In November 2006, shortly before graduating the MSW program, petitioner told Ms. Richardson that she was moving to Richmond. The next month, December, petitioner told Richardson she was living in Mill Valley.

Ms. Richardson had already expressed her fears that petitioner was capable of intentional deception, and had a history of county hopping to frustrate child service investigations. Petitioners conduct was almost guaranteed to activate Ms. Richardsons fears that petitioner was working the system.

Ms. Richardson might also have entertained the suspicion that petitioners inability to [straighten] out her MediCal coverage was another instance of what Ms. Richardson termed petitioners self-sabotaging behaviors.