In re Destiny L.

Filed 8/30/07 In re Destiny L. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

ORIGINAL PROCEEDINGS in mandate. Zeke Zeidler, Judge. Petition denied.

Law Offices of Alex Iglesias, Steven D. Shenfeld and Donna Bernstein for Petitioner T.U.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Associate County Counsel for Real Party in Interest.

___________________________________________

In this juvenile court dependency case (Welf. & Inst. Code 300 et seq.),^[1]T.U., the mother of the minor children Destiny L., Christopher J., and Christina J. (Mother, Destiny, Christopher, and Christina, respectively), has petitioned the court for extraordinary writ, seeking relief from the setting of a section 366.26 hearing to determine a permanent plan for the minors and perhaps terminate Mothers parental rights. Mother contends there is insufficient evidence to support the trial courts finding that reasonable reunification services were provided to her after the court made her disposition case plan. We find sufficient evidence does exist to support the trial courts finding. Therefore Mothers petition will be denied.

BACKGROUND OF THE CASE

1. The Original Section 300 Petition

The section 300 petition in this case was filed on August 31, 2006. At that time Destiny (October 31, 2001) was four years old, Christopher (March 10, 2005) was one year old, and Christina (August 25, 2006) was just six days old.

The petition alleges that when Christina was born she had TCA (Tri-cyclic Antidepressant) in her system and Mother tested positive for the same drug and for marijuana. The petition further alleges that Mother has a nine-year history of substance abuse. Additionally, the petition alleges that the children have five siblings who are already dependents of the dependency court, and because Mother and the siblings father, Jerry L., failed to reunify with the five siblings, the siblings are receiving permanent placement services.^[2]

The local child protection agency, the Los Angeles County Department of Children and Family Services (the Department), initially placed the three minors with their maternal grandmother (MGM), Juanita U. As noted below, they were later replaced with other relatives.

2. The First Month of the Case

A detention hearing was held on August 31, 2006. Mother and Christopher J., who is the father of the minors Christopher and baby Christina (Father), did not appear for the hearing. The court found a prima facie case that Destiny, Christopher and Christina come within the provisions of section 300 and should be detained by the court. The Department was ordered to provide Mother and Father with family reunification services and provide the minors with concurrent permanency planning services. The court ordered that the minors not be placed in a home that was not a prospective adoptive home. The parents were given monitored visitation, with the monitor to be approved by the Department.

The Department was ordered to prepare a pre-release investigation report as to the MGM. The court set a pre-release investigation and arraignment hearing for September 7, 2006, and a pretrial resolution conference for September 25, 2006.

The prerelease investigation report states the MGM appeared to be an appropriate care giver in that the minors appeared to be well cared for and comfortable in the MGMs presence and the MGM stated she had been the primary caregiver for them. She stated she understood that the minors needed to be placed in a permanent adoptive home and she was willing to provide such a home for them.

Mother and Father did not appear at the September 7, 2006 prerelease investigation and arraignment hearing. The hearing was continued to September 25, 2006.

Ultimately, the investigation of the MGM showed she has convictions for theft, assault with a deadly weapon, petty theft, and burglary. She was verbally abusive to the Department investigator when the investigator went to her home on September 13, 2006, and she insisted the Department should not be involved in the familys lives. She had been permitting Mother and Father to visit the minors at her home despite the requirement that a Department-approved monitor be present at visits. Additionally, although the social worker had asked the MGM several times to have Mother and Father contact her, the MGM refused to give the parents such messages.

Baby Christina was re-placed to the home of paternal cousin Tonja H. Destiny and Christopher were re-placed to the home of paternal cousin Felicia G. Prior to the re‑placements, Father took Christopher and Christina to their paternal grandmother (PGM) and left the minors with her. She took them to Las Vegas where she lives because Father did not tell her that there was an open dependency case for the two children.

Because the exact whereabouts of Mother and Father were unknown, the Department submitted due diligence reports for them for the September 25, 2006 hearing. However, Mother and father Christopher J. did appear at that hearing and attorneys were appointed to represent them. Mother denied the allegations in the petition. Father was not named in the counts in the petition. The court found that he is the presumed father of the minors Christina and Christopher. The Department was ordered to provide Mother with transportation funds for visits and counseling and to create a written visitation schedule for her for monitored visits twice weekly. Visitation for Father was ordered to be unmonitored when the visits were at the minors placement and monitored outside of placement. The parents were ordered to contact the social worker to be interviewed. The case was continued to October 25, 2006 for mediation and the parents were ordered to return on that date.

3. The Amended Petition and Mediation Hearing

The Department filed a first amended petition on October 16, 2006, and the court dismissed the original petition. The amended petition realleged the allegations in the original petition and added two allegations regarding Father: he failed to protect Destiny, Christopher and Christina from Mother and her current use of TCA and marijuana, which he was aware of, and his whereabouts, interest, fitness and ability to care and provide for the children is unknown [and he] has failed to provide the children with the basic necessities of life. A detention hearing on the amended petition was held on October 16, 2006. Neither of the parents appeared for the hearing. The children were ordered to remain detained.

By the time of the October 25, 2006 mediation hearing, Mother and Father had yet to contact the social worker even though the court had ordered them on September 25, 2006 to make such contact, and even though the social worker and the investigator had repeatedly asked the relative caregivers of the three minors to relay the message to the parents that they need to contact the Department. Further, caregiver Felicia G. reported that Father stated he would not speak with anyone but the judge and his attorney, and caregiver Tonja H. reported that Father stated if anything happened to his baby, someone would come up dead. Felicia G. reported that Father and Mother were staying with relatives in Lancaster and the parents intended to come to court and represent this Lancaster home as their residence, even though it was only a temporary residence, so that they could have the children released to their care. Felicia G. also reported that Father carries a gun.

Although Father and Mother had been ordered to appear for the mediation hearing, they were not there, and as noted, they had not obeyed the order to make contact with the Department. Mothers attorney reported that Mother was not at the hearing because she had transportation problems. The case was continued to November 13 and again to November 21, 2006 for adjudication and contested disposition.

4. The Adjudication of the Amended Petition and the Disposition Order

When Mother and Father did not appear for the November 21, 2006 adjudication/disposition hearing the case was continued to November 22, 2006 on the courts own motion. However the parents did not appear on that day either. The court adjudicated the amended petition, sustaining its allegations, and continued the case to November 27, 2006 for disposition. Mother and Father again failed to appear. The three minors were declared dependents of the juvenile court and custody was taken from their parents.

The Department was ordered to provide the minors, Mother, and Father with family reunifications services. Mother was ordered to drug rehabilitation with weekly random testing, participation in parent education, and individual counseling to address case issues, including her failure to reunify with the minors five siblings. Father was ordered to participate in parent education, to participate in individual counseling to address case issues, including anger management, and to complete 12 consecutive clean random drug tests, with the provision that any missed or dirty tests would require that he complete a drug rehabilitation program with random testing.

Monitored visitation with a Department approved monitor was ordered for the parents, with the Department to facilitate visits at least twice a week and to prepare a written visitation schedule. The parents were ordered to confirm visits 24 hours in advance.

The Department was ordered to initiate an adoptive home study for the caretakers, and the case was continued to April 30, 2007 for a six-month section 366.21, subdivision (e) review hearing.

5. The Six-Month Review Hearing

a. The Departments Report

The Departments report for the section 366.21, subdivision (e) six-month review hearing shows that the minors Destiny and Christopher continued to reside with Felicia G. and were receiving excellent care. They were receiving counseling to address behavior concerns and were making progress. Christina continued to reside with Tonja H., was meeting her developmental milestones, and was also receiving excellent care.

Mother and Father were not in compliance with court orders and their case plans. They failed to enroll in any of the ordered programs. They also failed to make themselves available to the social worker to discuss the case even though the social worker mailed written correspondence, left numerous telephone messages asking the parents to contact her, and also sent messages to the parents through Felicia G. They told Felicia G. that they receive all of the Departments paperwork, they are aware of the court date, and they have no need to contact the social worker. Ms. G. told them that because they had not been in contact with the Department the children would likely be put up for adoption.

The parents had no contact with the minors until January 2007, when caretaker Felicia G. learned that Mother and father Christopher J. were staying with a relative in Bakersfield and she commenced taking Destiny and Christopher there to visit with the parents on the weekends. Towards the end of January 2007 father Christopher J. found out where Felicia G. lives by following another relative to her home. Thereafter he began popping up at her home during the week for 15-20 minute visits, during which he would bring candy and play with Christopher for a few minutes. Mother came with him on one of the visits. At that visit, all three of the minors were at Ms. G.s home, but the parents spent most of their time playing with Christopher and ignoring Destiny and Christina, and when the parents left they had to be reminded to say goodbye to Destiny. The parents had not called either of the caretakers to inquire about their children.

The proposed permanent plan for all three children was to be adopted by their caregivers. Home studies had begun. The Department recommended that family reunification services for Mother and father Christopher J. be terminated and a section 366.26 hearing be set for the minors.

b. The Hearing

The parents did not appear for the April 30, 2007 six-month review hearing. The hearing was continued to June 6, 2007, and the attorneys for the parents were ordered to notify the parents to appear in court on that date. On June 6, 2007, the parents failed to appear in a timely manner and the court held the six-month review hearing without them, finding that there was a continuing need for the current placement of the children, that reasonable reunification services had been provided to the parents but they had failed to participate in their case plan, and that there was no likelihood of returning the minors to the parents care within the next six months. Reunification services were terminated. At that point, the parents appeared and the six-month hearing was reopened.

Mother testified on her own behalf. She gave an address on Crenshaw Boulevard in Los Angeles as her current address and stated she has lived there since she was eight years old. She gave a telephone number for that address (323 778-XXXX), and said it has been her telephone number for years and it has an answering machine. She said that the social worker has that telephone number. She added that someone is always home at that address.

Mother stated she has never received any phone messages from the social worker at that number and no one has ever told her that the social worker called. However, she added that her brother lives at that address and he dont give nobody their messages and [i]f he do not know a number, he dont answer it. He got caller I. D. so thats for everybody. Mother stated that the telephone number for her that is listed on the Departments April 30, 2007 report is not her telephone. (The telephone number listed for Father on that report is the same telephone number Mother testified was her own phone number.)

Mother stated that since the November 27, 2006 disposition hearing she had not received a written visitation schedule from the social worker, nor had she received any lists of referrals for programs she was ordered to complete. She stated she was told the last time she was in court that someone would send everything to me about what Im to do and stuff like that [and] I have not received anything. Asked if she ever asked the social worker what she needed to do, Mother stated she did not know who the social worker was, but then Mother added that the auntie told her the phone number a couple of weeks ago^[3]and in the two weeks prior to the June 6, 2007 hearing, Mother called the social worker about five times and left a number at the house where Mother was staying for a weekend but the social worker never called her back.^[4] Asked if she ever called the social worker and left the phone number she gave in court as her phone number, Mother stated the social worker has had that number all of the time. Asked if either of the childrens caretakers had told her that the social worker was trying to make contact with her, Mother answered: Yes.

Mother was questioned about her visitation with the two children who live with Felicia G., Destiny and Christopher, Mother stated she never had any problems visiting the children there and since November she had visited them almost every day except that she was currently not able to do that because she had no transportation. Later Mother amended her answer, saying she only visited Christopher and Destiny every day in April and she never visited them any other time because she did not know where the children were located. Mother stated Tonja H.s schedule was too busy to permit Mother to visit Christina, and when questioned as to what she did to try and schedule visits that would be good for both her and Tonja H., Mother answered that she dont have transportation. Transportation thing is messed up. She stayed away from somewhere else, we stay at here in L.A. Asked if she called the social worker to ask for help with transportation, Mother stated she just found out that the Department would help with transportation.

The court asked Mother how, in the prior eight months, she thought she was going to be reunited with her children. Mother answered she was first trying to get a place and everything. Then, again, I have no money for these classes, they cost money, and everything I didnt have no birth certificate, no I. D. Im just getting birth certificate and I. D. It was hard for me to get everything. I never had no birth certificate or I. D., only thing I had was the social security, they wont get me no jobs with just a social security card.^[5]

The trial court found that Mothers testimony was entirely lacking in credibility. It found the social worker sent at least one contact letter to the parents and left numerous telephone messages for them, and she worked to make sure that all of the children were placed with relatives who could be conduits for messages from the social worker to the parents and vice versa, and the totality of the social workers efforts constitute reasonable services to the parents.

DISCUSSION

1. Standard of Review

Mother contends there is no substantial evidence to support the trial courts finding that the Department provided reasonable family reunification services to her during the judicial review period from November 27, 2006 to the time of the contested review hearing in June 2007.

We apply a sufficiency of the evidence standard of review to Mothers contention. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) Moreover, in applying that standard, we do so mindful of the rule that we must consider whether the services were reasonable under the circumstances of the case. (Ibid.) We view the evidence in a light most favorable to the respondent, and indulge in reasonable and legitimate inferences taken from the evidence. (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1361.)

2. There Is Sufficient Evidence to Support the Trial Courts
Finding of Reasonable Reunification Services

To review the issue of reasonable reunification services, we must begin at the beginning of this case and look at Mothers relationship with, and attitude towards, the Department and its social workers and investigators. As an overlay, we observe that Mother was no stranger to the dependency process. Five of her other children had already been removed by the court from her care and she had failed to reunify with them. Thus prior to the filing of the instant case, she already had experience with how the reunification process works, including (1) case plans and referrals to providers for the services ordered in case plans, and (2) the limited amount of time a parent has to achieve reunification.

Despite (1) Mothers testimony that she lives at the Crenshaw Boulevard address and has lived there since she was a young child, (2) her testimony that her telephone number is 323 778-XXXX and it has been her telephone number for years, (3) her representation that said phone number has an answering machine and someone is always at home to answer the phone, (4) Fathers testimony that he too lives at the Crenshaw Boulevard address and has lived there two or three years and his telephone number at that house is also 323 778-XXXX, and (5) the caregivers willingness to relay messages from the social workers to Mother and Father, the record shows that the Department has had a losing battle trying to keeping in touch with both Mother and Father.^[6][7]

Mother was notified by telegram of the August 31, 2006 detention hearing. The telegram informed her that her attendance at the hearing was required. The social worker also tried to reach Mother by telephone and left a message for her. Mother, however, did not appear for the hearing. Mother was sent notice of the September 7, 2006 arraignment hearing by certified mail. She did not appear for that hearing either.

The jurisdiction/disposition report for a September 25, 2006 hearing states Mother had not made herself available to the Department. Besides leaving messages for Mother at the MGMs house, the social worker enlisted the help of Destinys and Christophers caregiver, Felicia G., who told the social worker that she would call Mother and let Mother know that the social worker wished to speak with her as soon as possible. That was on September 19, 2006. The Department was having such a difficult time contacting Mother that one of its investigators made a due diligence report on Mother because of her failure to keep in touch with the Department. Notice of the September 25, 2006 hearing was sent to Mother and she finally appeared in court on that date. She was ordered to contact the social worker so that she could be interviewed and she was ordered to return to court on October 25, 2006 for mediation. She did not obey either order.

Mothers appearance in court on September 25, 2006 was her last appearance for several months. She failed to appear for mediation on October 25, 2006. A last minute information sheet filed by the social worker/investigator for the mediation hearing states Mother had yet to contact the Department so that she could be interviewed regarding the allegations against her. Messages for her had been repeatedly given by two social workers to the two caregivers but had not produced results. Both caregivers also reported that Mother had not made any visits to the minors and had only occasionally spoken with the minor Christopher on the telephone.

Nor did Mother appear for the adjudication hearing for the amended petition that was held on November 22, 2006. She also was not present for the November 27, 2006 disposition hearing when the court made its case plan for her, ordered the Department to prepare a written visitation schedule for the parents, and continued the case to April 30, 2007 for a six-month review hearing.

Thus, by the time Mothers case plan was made, she had missed five of the six hearings and had steadfastly refused to be in contact with the Department. It is against that background, coupled with her prior knowledge of how case plans are supposed to be followed, and her prior failure to reunify with her other five children, that we analyze Mothers claim that the record does not support the trial courts finding that the Department provided her with reasonable reunification services during the six months between when the court made her case plan and the six-month review hearing.

The record shows that after the case plan was made, Mother continued to be unavailable to the Department. The Departments status review report for the six-month review hearing states the Department left numerous telephone messages for Mother but Mother did not return the calls, nor did she respond to the messages relayed to her through the caretakers and the Departments written communication.^[8]

Although the Department was ordered to provide a written visitation schedule for the parents, obviously the Department was not going to devise a visitation schedule for them without having input from them and from the caretakers as to what days of the week and times of the day would be appropriate for all concerned for visitation. It is not reasonable to believe that the court directed the Department to impose its own visitation schedule on the parents and caretakers. Because the social workers could not make contact with Mother, no written visitation schedule ever materialized. Moreover, Mother knew how to contact the caregivers but showed little interest in telephoning the children much less visiting them, and thus the absence of a set visitation schedule was not harmful to Mother in any event.

Nor is it reasonable to find that Mother never began her case plan because the Department failed to provide her with referrals. The Departments six-month report states that the social workers repeated attempts to contact Mother both directly and through the caretakers were for the purpose of discussing the case and providing referrals to her. Given Mothers clear refusal to make contact with the social workers, the Department should not be expected to go beyond its attempts to speak with her. There would be no purpose in mailing referrals to Mother absent some communication from her as to what she was looking for in terms of location of service providers (drug rehabilitation, parent education, counseling), price of services, in-patient or out-patient drug rehabilitation program, etc.

Use of reunification services is voluntary on the part of the parent (In re Ronell A., supra, 44 Cal.App.4th at p. 1365) and Mothers refusal to make contact with the Department told the court in no uncertain terms that she had little to no interest in such services. The Department could not force Mother to make use of the reunification services that it could provide to her (ibid), nor was the Department required to take Mother by the hand and escort . . . her to and through classes or counseling sessions (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5). Further, Mother had a duty to be proactive and look after her rights (In re Christina L. (1992) 3 Cal.App.4th 404, 416) and the record contains no evidence that Mother contacted her attorney to inquire about the fact that referrals for services had not been mailed to her.

For Mother to now assert that the Department failed her because it did not undert[ake] a diligent effort to contact [her] is patently absurd and frivolous. She has wasted this courts time just as she wasted the Departments time, the caregivers time, and the trial courts time.

DISPOSITION

The petition for extraordinary writ is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

ALDRICH, J.

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^[1] Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.

^[2] The detention report in the instant case states that the following allegations in the petition in the prior dependency proceedings were sustained: Mother spanked the female siblings with a belt leaving welt marks on their bodies and father Jerry L. failed to protect them; one of the siblings was admitted to the hospital with welts on her back and second and third degree burns on her feet, such injuries were inconsistent with Mothers explanation for how they occurred, and the injuries would not ordinarily occur except as a result of unreasonable acts by Mother; and father Jerry L. and Mother exposed the siblings to violent confrontations, including but not limited to the father punching Mother in the mouth and causing her to go to the hospital.

Jerry L., who is also the father of Destiny, one of the three minors in the instant matter, has not appeared and the Department has been unable to locate him. We therefore say nothing more about him in this opinion.

^[3] Although Mother stated she did not know who the social worker is, there were at least two notices of hearings sent to her at the Crenshaw Boulevard address and the notices each bear the name of a social worker at the Department.

^[4] The parties stipulated that the social worker would testify that the first time she ever spoke with Mother was on June 7, 2007, and she has never received a call from Mother.

^[5] Father also testified at the six-month review hearing. Regarding the issue of contacts with the Department, he stated his address and telephone number are the same as Mothers, he has lived at that address for two or three years, he has continuously resided there since November 2006, and he has had the same telephone number for the last eight months. He stated the social worker has never contacted him at that number in the last eight months and she has never contacted him to give him referrals for any of the programs that the court ordered him to do. He obtained the social workers name two weeks ago from his mother. He called the social worker within the two weeks prior to the six-month review hearing because he wanted to find out what was going on and you know when my own children.

^[6] Although he has not filed his own petition for extraordinary relief, we mention Father because had the Department been able to contact him, he could have relayed messages from the Department to Mother.

^[7] The written correspondence (telegrams, notices, etc.) sent by the Department to Mother and Father were sent to the Crenshaw Boulevard address. The telephone number listed for Mother on some of the Departments reports was 310 673-XXXX and on other reports was 323 778-XXXX.

^[8] The Departments delivered service logs show the social workers and the caregivers attempts to contact Mother during the six-month review period. On December 18, 2006, caregiver Felicia G. told the social worker that she had not been able to contact Mother because one of Mothers telephone numbers was not accepting messages and the other was out of service. On January 13, 2007, Tonja H., Christinas caregiver, reported that Mother had not been in contact with her. In January 2007, the social worker attempted three times to telephone Mother, using two different numbers. One was number disconnected. The social worker left a message at the other number (the one given by Mother at the six-month review hearing), asking for a return call so that they could discuss the case and referrals. The social worker also made two phone calls in February, leaving messages both times. One call informed Mother of a meeting and the other was made to discuss the matter of referrals for the case plan. In March the social worker asked caregiver Felicia G. to ask Mother to contact her. Later, Felicia G. reported to the social worker that the parents told her they receive all of the Departments paperwork, are aware of the six-month review court date, and have no need to contact the social worker. Thus the record shows that Mother refused to contact the Department workers no matter whether the requests for contact came from the social workers or the caregivers. Mothers testimony at the six-month review hearing that she did not receive phone calls from the social workers at her home address is simply not believable, and as noted above, the trial court found that Mothers testimony was entirely lacking in credibility. Mother simply lied to suit herself.