Filed 11/9/18 Vanessa R. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q. Ameral, Judge.

Robert D. Chase for Petitioner.

No appearance for Respondent.

John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioner Vanessa R. (mother) seeks an extraordinary writ from the juvenile court’s orders terminating reunification services at a 12-month review hearing and setting a Welfare and Institutions Code section 366.26 hearing[1] as to her three youngest children, now ranging in age from three to five years (the children). Mother contends the juvenile court erred in finding the Stanislaus County Community Services Agency (agency) provided her reasonable services. We deny the petition.

PROCEDURAL AND FACTUAL SUMMARY

Mother and Thomas G.[2] (father) have seven children, including the subjects of this petition and three teenagers, Trinity F., Thomas F., and Timothy F.[3] They also have extensive child welfare and criminal histories.

In January 2017, Thomas and Timothy contacted the agency, reporting their grandfather had been threatening to beat them up since the night before when father was arrested for domestic violence. Although the grandfather had threatened them before and never followed through, they were scared. They had a bat and knives they planned to use if their grandfather attempted to harm them. They believed mother was trying to get rid of them because she told law enforcement to take them to juvenile hall. They also said she hit herself and blamed it on father and provoked him to hit her.

The following month, the agency was informed that, according to Thomas, mother physically abused and neglected them. A year before she beat him up for misplacing something of hers, causing him to bleed from his ear and mouth. She used marijuana and heroin in the basement and left him and Trinity to care for the other children. They knew this because she announced, “I am going downstairs to do my drugs, don’t you f****** bother me” and they found marijuana lying around. Mother also drank “at least 10 beers a day” and she and father physically fought.

Mother admitted consuming alcohol but denied drug use other than THC and Oxycodone for which she had a prescription. She refused, however, to drug test. Father admitted engaging in domestic violence. The investigating social worker found empty alcohol containers scattered around the home when she went to assess the family for family maintenance services.

The agency offered the parents family maintenance services and helped them devise a safety plan. However, in March 2017, after they failed to cooperate, the agency obtained a protective warrant, removed the children and placed them in foster care.

The juvenile court exercised its dependency jurisdiction over the children, removed them from parental custody and ordered the parents to participate in mental health, domestic violence and parenting services through Sierra Vista Child Family Services (Sierra Vista) in Stanislaus County and substance abuse services through one of three Stanislaus County programs, including Stanislaus Recovery Center, or other programs approved by the agency.

By the six-month review hearing in March 2018, Trinity and Thomas had run away and their whereabouts were unknown, Timothy was in foster care in Merced County and the children were in a Stanislaus County foster home. The parents were living with the maternal grandmother in Santa Clara County. They were employed and father was participating in outpatient services at Stanislaus Recovery Center. However, he tested positive for alcohol and he was referred for inpatient treatment. Mother was not participating in substance abuse services. She spent less than two hours in a sober living program but chose to leave. The parents asked to have their case transferred to Santa Clara County to facilitate visitation.

The parents appeared at the six-month review hearing in March 2018 and informed the juvenile court they were residing in Santa Clara County. The court explained it could not transfer the case at that time but said the agency had located services for them there and was in the process of locating additional services. County counsel stated the parents completed the first phase of parenting in Stanislaus County and the agency was arranging substance abuse treatment in Santa Clara County. The court found the agency provided the parents reasonable reunification services and their progress was limited. The court continued services to the 12-month review hearing and ordered the agency to file an updated services plan. The court granted the agency’s request to supervise and monitor visits because the court was concerned about writing on the wall in the visitation room, which the agency attributed to the family.

The agency filed an updated services plan on April 2, 2018, with only one substantive change—that visitation was to be supervised. Otherwise, the plan contained the same service components, which were required to be completed through the Stanislaus County programs previously identified or other programs approved by the agency. The parents did not challenge the content of the updated services plan by raising it in the juvenile court or on appeal.

By the 12-month review hearing scheduled for May 2018, the parents were participating in services in Stanislaus and Santa Clara Counties. Trinity and Thomas were in juvenile hall in Santa Clara and the other children remained in their foster home placements. The agency stated it was having difficulty obtaining appropriate services for the parents in Santa Clara County and recommended the juvenile court continue reunification services and transfer the case there.

The agency was reconsidering its recommendation to continue reunification services when the juvenile court convened the 12-month review hearing on May 11, 2018, because the parents were refusing to drug test. County counsel told the court the agency had arranged for the parents to drug test by hair follicle analysis and asked the court to direct them to test. County counsel also explained the parents asked to participate in Family and Children Services, a substance abuse program in San Jose. The program would not contract with the agency but was willing to accept Medi-Cal from the parents and the agency was willing to approve the program on those terms. County counsel noted that the parents would have to sign releases for medical information. The court directed the parents to complete hair follicle testing. Mother’s attorney advised the court that hair follicle testing required identification and mother did not have identification with her. County counsel stated the agency would call the testing facility and provide a description of mother so that she could drug test. After the hearing, the parents went to the testing facility but left before submitting a hair sample. The agency asked them to submit to hair follicle analysis on May 21 but they did not go to the testing facility.

In an addendum report, the agency recommended the juvenile court terminate reunification services and set a section 366.26 hearing for the three youngest children and select a permanent plan of long-term foster care for the older children because the parents had not meaningfully engaged in services. Mother completed an intake with Family and Children Services on March 20, 2018, and had an appointment for April 20 but did not attend. She was discharged from the program on May 23 for poor attendance and participation. She attended an appointment with her therapist at Sierra Vista on April 19 but cancelled her appointment the following week, citing car problems. On May 3, she cancelled her appointment, stating she did not have gas to travel to the appointment. She did not reschedule her appointments. Father attended one individual counseling session at Sierra Vista on March 15 and was referred for domestic violence offender classes but did not attend. He also failed to complete the individual and homework components of the parenting class at Sierra Vista and was discharged from Family and Children Services for excessive absences and failure to engage in services. The parents also refused to provide a hair follicle sample for analysis and mother tested positive for amphetamine and methamphetamine on April 19 during a visit. Father did not attend the visit because he knew he was going to be tested.

The agency offered to give the parents bus passes and arrange train/bus transportation from San Jose to Stanislaus County. The parents declined, citing the travel time, inability to arrive timely for appointments and the lack of a hotel room for overnight lodging. The agency also contacted numerous agencies to arrange services in Santa Clara County but none of them would contract with the agency.

The juvenile court conducted a contested 12-month review hearing in July 2018 after several continuances. County counsel made an offer of proof that the social worker if called would testify that the parents were “on hold” at Sierra Vista. Further, she contacted Family and Children Services in San Jose and was told the staff could not provide information regarding the parents, leading the social worker to believe the release of medical information had been revoked. Minors’ counsel made an offer of proof on behalf of Trinity, who was present in court, that she loved her parents and wanted to return to them. She needed her family and believed her troubled behavior was the result of being out of her parents’ care and custody.

Mother testified she was unable to be tested on May 11 because she did not have identification. The staff at the testing center said it was impossible to test without it and it was not their practice to call the social worker to obtain permission. On further examination, she admitted the staff were willing to call the social worker or allow her to call. She also testified that she had transportation issues and that it took her two hours to drive from her home in San Jose to Stanislaus County. She was participating in individual counseling, substance abuse and parenting services through Family and Children Services, and intended to complete domestic violence and anger management assessments very soon. She completed the first part of the parenting class in Stanislaus County. She left drug treatment at Family and Children Services on April 23, 2018 and reenrolled three weeks before the hearing. She denied that the test results from April 19 could be positive for methamphetamine, claiming she was “clean” on that day.

Social worker Heather Hosmer testified she asked the parents to submit a hair follicle for drug testing six times since the six-month review hearing in March 2018 but they did not. She did not call the drug testing facility on May 11 to clear the parents for testing but never encountered any difficulty verifying a parent’s identification over the phone. She did not receive a call from either parent stating they were having difficulty obtaining a drug test. Asked whether mother ever told her she could not go to Sierra Vista to participate in services but needed to have services available in San Jose, Hosmer stated, “Yes and no.” The parents planned to complete parenting instruction at Sierra Vista and substance abuse treatment at Family and Children Services. She did not recall them telling her they wanted to participate in domestic violence and individual counseling at Family and Children Services. Hosmer would not have agreed to transporting the children to San Jose for visits but made arrangements to have the parents transported by bus and a train and a driver to take them to the bus or train station. The parents could visit and participate in services at Sierra Vista on the same day. She did not provide any referrals for services in Santa Clara County, but all of the services required by the parents’ reunification plans were in place either through programs in Stanislaus County or Santa Clara County.

Father’s attorney made an offer of proof, which was accepted by the juvenile court, that if called father would testify that he could complete his services plan if given another six months, that he loves his children very much and wanted the agency to pursue placement with the maternal grandmother in Washington State.

Trinity made a statement to the court expressing her desire to return to her parents’ custody. She was doing well before she was removed from her parents, participating in college prep academy school and making good grades. She attributed her success to her parents’ encouragement and guidance. After she was removed, she quit attending school, drank alcohol and violated the law. She felt she needed to be with her parents.

Counsel for the parents argued the agency’s failure to provide them services in San Jose was unreasonable because the driving distance required was prohibitive. Father’s attorney argued that the agency admitted having difficulty obtaining services in San Jose, which prompted its request to have the case transferred.

The juvenile court found the agency provided the parents reasonable reunification services. The court acknowledged that it directed the agency to locate services for them in Santa Clara County in March 2018. However, the court understood the parents intended to complete the services they started at Sierra Vista in Stanislaus County. In addition, the court approved an updated plan for them on March 23, 2018, but they did not object to the updated plan or seek to amend it. Further, the court did not believe the parents “made any real attempts to resolve the issues.” The court cited the fact that father completed a domestic violence assessment but could not correctly define domestic violence even though he previously completed a 52-week domestic violence course. Additionally, he did not believe that pushing and shoving constituted domestic violence. The court also noted that the parents initiated substance abuse services at Family and Children Services but failed to engage.

The juvenile court terminated reunification services and set a section 366.26 hearing for November 16, 2018. This petition ensued.

DISCUSSION

Mother contends the agency’s failure to offer or provide her reunification services in Santa Clara County after being ordered to do so by the juvenile court was unreasonable. It was also unreasonable, she argues, not to place the children in Santa Clara County to facilitate visitation and not to call ahead on May 11 to provide the testing facility a physical description so she could undergo hair follicle analysis. We disagree.

Family preservation is the first priority when dependency proceedings are initiated. “ ‘Reunification services implement “the law’s strong preference for maintaining the family relationship if at all possible.” …’ … The [agency] must make a ‘ “ ‘good faith effort’ ” ’ to provide reasonable services responsive to the unique needs of each family.… ‘[T]he plan must be specifically tailored to fit the circumstances of each family …, and must be designed to eliminate those conditions which led to the juvenile court’s jurisdictional finding.…’ … The effort must be made to provide reasonable reunification services in spite of difficulties in doing so or the prospects of success.… The adequacy of the reunification plan and of the [agency’s] efforts to provide suitable services is judged according to the circumstances of the particular case.… ‘[T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those 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.…’ ” (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010-1011.) In other words, a parent’s difficulty meeting the case plan’s requirements does not excuse the agency from continuing its effort to bring that parent into compliance with the court’s orders. It is also true that the reasonableness of services provided may depend to some degree on the parent’s willingness to cooperate.

The court’s finding reasonable reunification services were offered or provided is subject to review for substantial evidence. We review the evidence in the light most favorable to the agency and indulge in all legitimate and reasonable inferences to uphold the juvenile court’s order. (Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1010.)

Mother correctly points out the juvenile court ordered the agency to arrange services for her in Santa Clara County and update the case plan. However, the updated case plan filed by the agency was unchanged with respect to the service providers. Instead of identifying service providers in Santa Clara County, it retained the Stanislaus County providers from the original plan (i.e., Sierra Vista). Mother did not object to the content of the updated plan by bringing it to the juvenile court’s attention by filing a modification petition (§ 388) or challenging it on appeal. Consequently, she forfeited any issue with respect to where the services would be provided by her failure to timely raise it. (In re Julie M. (1999) 69 Cal.App.4th 41, 47.) She may nevertheless challenge the reasonableness of the agency’s efforts to arrange services for her in Santa Clara County, knowing that she was residing there. Indeed, that is the issue in this case.

The juvenile court removed the children from parental custody because of mother and father’s domestic violence and substance abuse. The court approved a reunification plan that addressed their need for substance abuse, domestic violence, mental health and parenting services. They began services at Sierra Vista and continued them even after they moved to San Jose. At no time did they complain the distance prevented them from participating in services. Further, they arranged with the agency’s approval to participate in services at Family and Children Services in Santa Clara County, which, according to mother, provided all the services their case plan required. In addition, to the extent she and father needed to complete any services at Sierra Vista, the agency provided them door-to-door transportation. They simply refused to accept it. As to Hosmer’s failure to call the testing facility on May 11, the juvenile court did not penalize her for not testing on that date. Rather, it was mother’s continuing refusal to drug test that ultimately caused the juvenile court to terminate her reunification services.

Finally, with respect to the children’s placement, we can only presume the agency maintained them in Stanislaus County because it was a stable placement for them. Since mother did not raise the issue in the proceedings below, the record is silent as to the agency’s reasoning.

DISPOSITION

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