In re Bailey C.

Filed 9/28/07 In re Bailey C. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Petitioner Angel C. seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) from the juvenile courts orders issued at a contested 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26[1] hearing as to her son, Bailey C. Petitioner also requests that we stay the permanent plan hearing, which the juvenile court set for November 26, 2007. We deny both the petition and the request for a stay.

Facts & Procedural Background

On May 31, 2006, the Humboldt County Department of Health & Human Services (Department) filed a juvenile dependency petition, pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support), on behalf of Bailey C., born in 1999. With regard to the failure to protect, the petition stated that in December 2005 the mother, petitioner Angel C., left her two young children with separate care providers. Bailey was left in the care of his maternal grandmother, who had significant personal medical problems and limited financial resources. Due to petitioners extended absence and failure to provide any financial assistance, the grandmother contacted the Department requesting Bailey be placed in protective custody. With regard to the lack of provision for support, the petition stated petitioner left Bailey without any provision for support, that reasonable efforts to locate the mother had been unsuccessful, and that the fathers whereabouts were unknown.

The Detention Report noted that the Department has received 31 referrals regarding petitioner and her children, 12 of which had been assigned for investigation. It also noted petitioner was involved with the juvenile court in family reunification programs from May 1, 2002 until June 9, 2004. The Detention Report stated that petitioner became homeless after being evicted from her previous residence, after which she placed her two children with different caregivers. It stated an absent parent search had been initiated on petitioner, and that her whereabouts would probably be determined through an ongoing reunification program involving Baileys sister Hailey. On June 1, 2006, the juvenile court entered detention findings and orders and set a jurisdictional hearing for June 19, 2006.

Petitioner appeared at the jurisdictional hearing, the court appointed counsel at her request and she denied the allegations. At petitioners request, the contested jurisdictional hearing was continued until July 10, 2006. An amended petition was filed on June 30, 2006. The jurisdiction report stated Bailey was in the care of the maternal grandmother from December 2005 until May 2006. At that point the grandmother decided she could no longer meet the childs needs, either financially or the necessary behavior management required to deal with his psychological and school problems. The jurisdiction report also stated that in the last weeks before Bailey was removed from the grandmothers care, petitioner had failed to visit the child and her whereabouts were unknown. It further stated that Baileys behavior and reports by school personnel and the grandmother indicate he had been exposed to ongoing traumatic events (at the very least physical abuse by the mothers various partners) and a very unstable lifestyle.

Petitioner failed to appear at the contested jurisdictional hearing on July 10, 2006. Petitioners counsel acknowledged petitioner had received notice of the hearing, and stated that she had a message phone number for petitioner, which was no longer valid. Counsel reported she has had no contact with petitioner and made no objection to the court entering jurisdictional findings and orders. The court found the amended petition sustained and set disposition for August 8, 2006. Petitioner did not appear at the August 8 hearing and her counsel requested a continuance. Petitioner did not appear at the next hearing on August 22, her counsel requested a further continuance and the court set a contested disposition hearing for September 25, 2006.

Petitioner did not appear at the contested disposition hearing on September 25. The disposition report made the following observations: Petitioner is currently homeless. Petitioner lacks parenting skills, had not bonded or been involved with the child, and has mental health problems that affect her ability to parent. Her parenting ability is also negatively affected by alcohol and drug abuse, immaturity and poor impulse control. The report notes petitioner had applied for housing at the Multiple Assistance Center (MAC) program, attended the initial intake on July 21, 2006, but failed to appear at the second appointment on July 28. It states Bailey has been in current foster placement since May 2006 with his half-sibling. Also, it notes Bailey appears to be comfortable in the presence of his mother.

However, the report filed by Baileys CASA advocate on September 25, 2006, states Bailey is thriving in this current foster environment. The CASA advocate states that according to Baileys therapist his mental and emotional problems had improved since his foster placement. The CASA advocate reported that according to the social worker and foster mother Bailey was very upset when petitioner repeatedly failed to show up for visitation. Bailey started to dirty his pants when he realized petitioner was not going to show up.

Following the jurisdictional hearing on September 25, 2006, the juvenile court found that return of the child to the mother would create a substantial risk of harm to Bailey and that his current placement was necessary and appropriate. The court declared Bailey a dependent of the court. The court ordered that petitioner be offered family reunification services and comply with the terms of the case plan. Petitioners case plan objectives were to develop a lifestyle free from alcohol and drugs, meet her childs emotional, physical and educational needs, and acquire suitable housing for herself and Bailey. The case plan called for petitioner to complete a mental health assessment, attend and complete a parenting program and complete an Alcohol and Drug Assessment (AOD). As regards Bailey, the case plan called for him to participate in services focused on resolving childhood abuse and anger management issues. It noted Bailey was addressing these issues with his therapist and foster parent and is doing much better according to the foster parent. The case plan offered a minimum of 5 hours of supervised visits per week between petitioner and her child. The court scheduled a six-month review for March 26, 2007, with the status report due March 12, 2007.

The status report states: Petitioner had minimal contact with the social worker since the dispositional hearing. She had requested assistance to enter a treatment program, but has been unable or unwilling to follow through with the plan. She remains homeless. Petitioner had not made progress towards fulfilling the tasks and responsibilities outlined in her case plan and her attendance at supervised visitations with Bailey had been sporadic and inconsistent. The Department recommended the court terminate family reunification services to petitioner and set a section 366.26 hearing.

Petitioner did not appear at the six-month review on March 26, 2007. Her counsel asserted the recommendation to terminate reunification services was incorrect because Bailey was over three years old and the Department must give an additional six months of services. The matter was continued to April 16, 2007.

The Departments addendum report filed on April 16, 2007, states petitioner continues to remain homeless and has been inconsistent with her visitation attendance. However, it modified the recommendation in the status report to extend reunification services for a further six months. The CASA advocates report of the same date recommended reunification services to petitioner be terminated immediately and a section 366.26 hearing be set. The CASA report notes Bailey has been in his foster placement since May 2006, and now calls his foster mother mom. The CASA advocate states petitioner visited only eight out of forty-six times, and opined that Bailey is thrown off by the totally inconsistent visits with petitioner and does better when not reminded of his past. In the CASA advocates opinion, petitioners random and unpredictable visits only served to cause turmoil in Baileys life.

Petitioner was present at the April 16 hearing, after which the juvenile court ordered the parties to comply with the case plan and set a 12-month status review hearing for July 10, 2007. At the hearing on July 10, with petitioner present, the court set pretrial for July 16 and a contested 12-month review for July 30, 2007. Petitioner was not present at the contested 12-month review hearing on July 30, and the court ordered the status review to proceed on August 1, 2007.

The 12-month status report relates as follows: Petitioner is currently residing in a clean and sober house in Eureka. The social worker has little contact with petitioner, who has tried on numerous occasions to address her substance abuse issues and has been unsuccessful in following through with appointments. Petitioner has gone to Detox on several occasions but after a few days of being clean she starts her viscious [sic] cycle over again. Due to petitioners inconsistency with visitation, she has to check in by noon on the day of the visit otherwise the visit is cancelled. This protects Bailey from being transported to a visit then being disappointed if petitioner fails to appear. Also, petitioner is reported as being heavy into her addiction and having been unsuccessful in entering and completing a substance abuse program. The Department recommended terminating reunification services and setting a section 366.26 hearing.

An Adoptions Specialist with the State of California Department of Social Services submitted a letter dated June 25, 2007, which the Department included in the 12-month status report as Attachment #7. The letter relates: Bailey was placed in a concurrent foster home with his sibling in May 2007, where the family is seriously considering adoption. The family and the children are becoming acquainted and appear to be establishing a close relationship. Bailey is calling his foster parents mom and dad. Also he showed great improvement academically over the past year but has struggled emotionally when his birth mother is a no-show on visitations, resulting in episodes of encopresis.NC On a recent home visit, Bailey stated he wants to be adopted by his foster parents, and understood the concept of adoption. Asked about contact with petitioner, Bailey responded, Why, she never shows up for visits anyway? Bailey was angry about petitioners lack of regular visitation.

The CASA advocate also prepared a report for the 12-month review. The CASA advocate agreed with the Departments recommendation to terminate reunification services and set a section 366.26 hearing. CASA reports Bailey has settled in well since he and his sister were placed in the new foster home. Also, CASA reports Bailey has expressed an interest in staying with this family, whom the CASA advocate described as a loving family that is structured to teach kindness and tolerance. In addition, the CASA report states that the Family Connection Centers visitation schedule shows that between September 2006 and June 2007 petitioner had 71 opportunities to visit Bailey but attended only 14 times.

Petitioner did not appear at the 12-month review on August 1, 2007. Her counsel stated, I have been attempting to contact my client, who did have a phone number as recently as last week that was working. Counsel requested that matter be continued. The District Attorney stated petitioner had notice of the hearing and objected to any continuance. Counsel for Bailey and Hailey objected to a continuance. The court denied the request for a continuance, stating that if petitioner was focusing on the needs of her children, [she] would have made every effort to be in contact with the public defenders office.

The court marked the 12-month status review report and the CASA report and recommendation as Exhibits 1 and 2 for identification and received them into evidence. Upon examination by petitioners counsel, the social worker stated she was aware petitioner had been for an interview for a room at the MAC program on July 20, and after the interview had been placed on the waiting list. The social worker stated it can take from three to six months to get into the MAC program once a person is placed on the waiting list, but expedited placement is possible if someone leaves suddenly. Once in a single room, it could take another three to six months for petitioner to obtain a family room where Bailey could be with her. The social worker stated she knew petitioner had been living in a clean and sober home about a month, but petitioner had not yet been drug tested. The social worker explained that she talked to petitioner about going for a drug screen, but no date was arranged because the social worker had trouble getting in contact with petitioner.

Petitioners counsel asked if there would be any substantial detriment to returning Bailey to petitioners care if petitioner was not using drugs. The social worker stated: There would be a high detriment. . . . [] Besides her substance abuse, use, shes not consistent with following through with different tasks. She hasnt had stable housing. Shes inconsistent with visits with the children. Shes inconsistent with promising the children that shes gonna be available. And its detrimental to the children because they become very upset when visits are scheduled to happen and they dont happen. The social worker reported petitioner had made no visits in the last two months.

The court found petitioner was clean for the last two months. Nonetheless, the court found petitioner did not comply with the case plan and made only minimal progress in alleviating the causes necessitating placement. The court also found by clear and convincing evidence that reasonable services had been provided and by a preponderance of the evidence that return of the child to the mother would create a substantial risk of detriment to the childs physical or emotional well being. The court ordered termination of reunification services to petitioner and set a section 366.26 hearing for November 26, 2007. On August 2, 2007, petitioner filed a notice of intent to file writ petition.

Discussion

(i)

Petitioner contends the juvenile court erred in finding that she had been provided reasonable reunification services. In particular, petitioner states the social worker did not provide her with drug testing, despite information before the court that she had been clean for the last two months and the social workers testimony that her testing clean would be an important consideration in assessing any substantial risk of return. Also, petitioner complains the court did not address how the mothers inability to get into meaningful treatment was an indication of meaningful services having been provided.

First, we note that with 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 (1995) 36 Cal.App.4th 758, 762.) We construe all reasonable inferences in favor of the juvenile courts findings regarding the adequacy of reunification plans and the reasonableness of the [Departments] efforts. (In re Julie M. (1999) 69 Cal.App.4th 41, 46.) We likewise resolve conflicts in favor of the challenged findings and do not reweigh the evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)

Second, certain dependency principles are particularly noteworthy in this case. The first of these is that the parent of a dependent child is presumed capable of participating in an appropriate case plan and is expected to do so. (In re Raymond R. (1994) 26 Cal.App.4th 436, 441; In re Christina L. (1992) 3 Cal.App.4th 404, 414-415.) Further, while the supervising agency is required to assist in the reunification process, the assigned social worker is not expected to take the parent by the hand and escort him or her through the process. (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.) Finally, 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.)

In this case it is apparent the Department gave petitioner every assistance in obtaining drug treatment but she simply failed to take advantage of it. The record shows services provided at the six-month review stage included: [r]eferral by the social worker to Healthy Moms for [petitioner] to address her substance abuse issues, [r]eferral by the social worker to Humboldt County Alcohol and Other Drug Programs evaluation and treatment for [petitioner] and [r]eferral by the social worker . . . to Crossroads Treatment Program. Despite provision of these services, the six-month review reports that although petitioner requested assistance to enter a treatment program, [she] has been unable or unwilling to follow through with the plan. The 12-month status report showed no progress by petitioner in addressing her drug problem. The services noted above continued to be provided. The report notes petitioner has tried on numerous occasions to address her substance abuse issues and has been unsuccessful in following through with appointments, such as one made with Humboldt AOD for an assessment on June 15, 2007. Finally, at the 12-month review hearing, the social worker testified the main obstacle to obtaining treatment and testing for petitioner was the difficulty in maintaining contact with her. In sum, there is substantial record evidence that reasonable services were provided to petitioner and petitioner simply did not avail herself of them.

(ii)

Petitioner also contends the court erred in determining there was no substantial probability that Bailey could be returned to her with more services. Petitioner argues the court should have extended reunification services to the due date for the 18-month review on January 10, 2008.

Under the statutory scheme for dependent children, the court has discretion to extend services beyond 12 months only if it finds there is a substantial probability that the minor will be returned to parental custody and safely maintained in the home within the extended period of time, or if it finds that reasonable services have not been provided to the parent. ( 361.5, subd. (a); 366.21, subd. (g)(1).) Having concluded petitioner was provided reasonable services, we are concerned only with the courts decision to terminate services base on its finding there was not a substantial probability of return within the extended time period.

We review an order terminating reunification services for abuse of discretion. (In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068.) For a court to abuse its discretion in this context, its determination must be arbitrary, capricious, or patently absurd. (In re Mark V. (1986) 177 Cal.App.3d 754, 759.) We should reverse the lower courts termination order only if after reviewing all the evidence in the light most favorable to the trial courts decision, we conclude that no judge reasonably could have arrived at that decision. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, superseded by statute on another ground as stated in Cesar v. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.)

In order to find there is a substantial probability of return within any extended period of reunification services, the juvenile court shall be required to find all of the following: (A) That the parent or legal guardian has consistently and regularly contacted and visited with the child[;] (B) That the parent or legal guardian has made significant progress in resolving problems that led to the childs removal from the home[;] (C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs. ( 366.21, subd. (g)(1)(A-C).) Measured against these standards, the juvenile courts decision to terminate services was eminently reasonable. Petitioners record on visitation was abysmal. The CASA report prepared for the 12-month review shows petitioner had 71 opportunities for visitation with Bailey, yet completed only 14 of those. Moreover, petitioners poor visitation record negatively impacted Baileys physical and emotional well-being due to the anxiety and anger it engendered in the child. Further, petitioner had made minimal progress in resolving the drug and alcohol problems that led to the childs removal from the home. Although she is to be credited for entering a clean and sober living environment, she did so very late in the process. Also, she did not avail herself of the opportunities presented to obtain drug treatment and counseling. Overall, petitioner demonstrated neither the capacity to complete the objectives of her treatment plan nor the ability to provide for Baileys safety, protection, physical and emotional well-being. At the time of the 12-month review hearing, petitioner had not visited Bailey within the prior two months, was not undergoing drug treatment and did not have a safe home to provide to her child. Therefore, on this record, the court had ample cause to question petitioners ability to assume custody of Bailey and provide for his safety even if services were provided until January 10, 2008.

(iii)

Petitioner next contends the juvenile court erred in refusing her a continuance at the 12-month review hearing. This contention is without merit.

We review the juvenile courts denial of petitioners request for a continuance for an abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585 [juvenile courts denial of a request for a continuance will not be overturned on appeal absent an abuse of discretion].) In dependency proceedings, a party may obtain a continuance only upon a showing of good cause and only for that period of time shown to be necessary. . . . ( 352, subd. (a); Cal. Rules of Court, rule 5.550(a)(2).) Petitioners failure to appear at the 12-month review hearing was not an isolated incident. She also failed to appear at hearings held on July 10, 2006, August 8, 2006, August 22, 2006, September 25, 2006, March 26, 2007 and July 30, 2007. At the 12-month review hearing on August 1, 2007, petitioners counsel had no explanation for petitioners failure to appear. Petitioner did not contact her counsel or the Public Defenders Office before the hearing to explain why she was unable to attend. Absent any showing of good cause, the juvenile court did not abuse its discretion by denying petitioners request for a continuance of the 12-month review hearing. (In re Elijah V., supra, 127 Cal.App.4th at p. 585 [noting courts have interpreted the statutory policy against continuances that are contrary to the minors need for prompt resolution of his or her custody status to be an express discouragement of continuances].)

DISPOSITION

The request for stay is denied, and the petition for extraordinary writ is denied on the merits. The decision is final in this court immediately. (California Rules of Court, rule 8.264(b)(3).)

_________________________

Horner, J.*

We concur:

_________________________

Pollak, Acting P. J.

_________________________

Siggins, J.

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* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Further statutory references are to the Welfare & Institutions Code.

NC The voluntary or involuntary passage of stools in inappropriate places in a child over 4 years of age. (Online Medical Dictionary 2007.)