Louise B. v. Superior Court

Filed 9/25/07 Louise B. v. Superior Court CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Louise B. has three minor children, a son and two daughters. They were removed from their parent's custody due the parents' failure to protect, inability to provide support and exposure to domestic violence. Mother seeks extraordinary writ review of an order of the juvenile court setting the matter for a hearing terminating parental rights and establishing adoption as a permanent plan. (Welf. & Inst. Code,  366.26.)^[1]Reunification services were denied to father, who is not a party to the writ proceeding. We deny the petition.

FACTS

On October 19, 2005, DSS of Social Services (DSS) filed a juvenile dependency petition on behalf of minors Donavon, D. and Aaliyah. It alleged the parents' failure to protect, inability to provide support and that the minors were at substantial risk of severe emotional damage due to their parents' domestic violence. ( 300, subd. (b), (c) & (g.).)

The original and amended petitions alleged that on October 17, 2005, father was arrested for being under the influence of methamphetamine. He has a lengthy criminal history of drug-related and assault charges and was on probation at the time of his arrest. Father stated that he and mother used methamphetamine, which contributed to their violent relationship. They had often engaged in physical altercations in the minors' presence and father alleged that mother had prostituted herself to obtain money to purchase drugs. Mother and father had lived a transient lifestyle for the past three years and were unable to provide the minors with regular medical care. Their six-year-old son, Donavon, was not enrolled in school.

Donavon reports having witnessed father pull mothers hair and call her a bitch and prostitute. As a result, Donavon exhibits behavioral problems, such as biting or choking himself. At the time the petition was filed, father was incarcerated in the San Luis Obispo County Jail. The minors were placed together in a confidential foster home.

Contested Jurisdiction/Disposition Hearing

In a jurisdiction/disposition report filed on December 22, 2005, DSS recommended that reunification services be provided to mother and denied to father. The report indicated that, after fathers release from jail following his October arrest, he was again arrested for vandalizing mothers car. In an addendum report, DSS stated that mother had weekly unsupervised visits with the children, and it was anticipated that they would stay overnight with her at the shelter over the Christmas holiday. Mother was participating in individual counseling at a battered womans shelter and making progress.

Six-Month Review

In a status review report filed on June 13, 2006, DSS recommended that the minors remain in their current placement under court-ordered family reunification. DSS suggested that a 12-month permanency planning hearing be calendared for December 12, 2006. Mother was employed as an in-home care provider. However, she frequently missed work, putting both her income and housing at risk. She was looking for more affordable housing and awaiting the release of money from a legal settlement in order to secure housing.^[2] She had separated from father making domestic violence "no longer a factor."

As of the writing of the report, Donavon was in first grade. Although he had behavioral problems, he was improving. He was doing well academically and seeing a therapist. D. and Aaliyah were in pre-school and doing well. Aaliyah was in therapy for her behavioral issues and had completed physical therapy for the treatment of her burn injuries. Visitation between mother and children was unsupervised and coordinated between mother and foster parents.

12-Month Permanency Planning Review

In a status review report filed on December 12, 2006, DSS recommended that the minors remain in a foster home placement until mother obtained permanent housing. It was suggested that reunification services be continued for the full 18 months and that an 18-month permanency planning hearing be calendared for April 24, 2007. The report indicated that the minors would soon be moved to a different foster home because the one in which they currently reside will no longer be available.

Mother worked two jobs. DSS had referred her to the Housing Authority for a Section 8 certificate. She reported having found appropriate housing that accepted Section 8 and needed only to obtain her certificate and then pursue custody of her children. Father was in prison.

Donavon had progressed to second grade and was doing well. He was seeing a therapist regarding his sexualized behavior and conflict with adult female authority figures. Donavan was healthy other than being medicated for asthma. D. attended kindergarten and "always appears to be happy and healthy." She was assessed for counseling. Aaliyah was in pre-school and seeing a therapist due to her sexualized behavior. She seemed happy and healthy.

Mother had unsupervised visits with the children, arranged between herself and the foster mother. Due to mother's heavy work schedule, she sometimes went for long periods of time without seeing her children, then had several visits in rapid succession. It was noted that the children were to be removed from their current foster home on November 27, 2006, creating a risk that they would be placed apart, or out of the area.

After the report was issued, DSS was unable to find a placement in South County that would enable the children to stay together. It ultimately found two neighboring homes in Fort Hunter Liggett in Monterey County, where the children were placed on December 28, 2006. The girls lived in one house and the Donavon in the other. Donavon was later moved into the house with his sisters, so now all siblings are in the same dwelling.

Contested 18-Month Permanency Planning Review

At the 18-month permanency planning hearing on June 12, 2007, DSS recommended that family reunification services be terminated. It indicated that the 18-month reunification period had been reached, and mother had just been released from jail. She has been unable to meet the needs of her children (now ages 8, 6 and 4) or to provide them with a stable home. DSS recommended that a section 366.26 hearing be set.

The status review report indicated that mother was arrested in January 2007 for driving without a license and for possession of drug paraphernalia. In March, she was arrested for being in possession of methamphetamine and spent one month in jail. Although the record is unclear as to the nature of her offense, mother testified she was incarcerated a third time in San Luis Obispo County Jail. She spent approximately 30 days in jail and was released on May 12, 2007.

Since mother's most recent release from jail in May, she has been living at a homeless shelter in Santa Maria. She testified that she is required to be in drug court for 17 more months. Mother stated that she was not using drugs at the time the children were detained and did not use them until the children were moved out of the county. She last saw her children on April 4, when she visited with them at a mall in Santa Maria. Mother asked DSS to arrange another visit, but they did not do so.

DSS reported that all three children made the transition well to their new foster home and schools following their move to Monterey County. Donavon is in the second grade and "on track" academically. However, he has begun displaying behavioral problems at school and has been separated from the rest of the class. An individualized education plan is pending. All three children are in therapy.

Social worker Marc Hanson testified that, following mother's last visit, Donavon returned to the foster home where he began hitting other children, damaging property and developed problems with bed-wetting. Donavon told Hanson that he did not want to have any more visits with his mother. It was Hanson's opinion that it would be detrimental to return the children to their mother's care because she has been unable to maintain a stable home for them. They crave stability and cling to anyone who appears to be there "for the long haul."

Hanson testified that, although DSS had referred mother to the Housing Authority in San Luis Obispo County, she instead attempted to obtain housing in Santa Barbara County. She had been unable to obtain stable housing, despite the fact that she used $7,000 of her settlement funds to pay first and last month's rent and a security deposit. Given mother's lack of employment and income, Hanson believed there was little chance she will have independent housing any time in the near future, and it is unlikely she will be able to provide her children with a stable and appropriate household environment. Hanson testified that mother is "no further along now than she was 18 months ago." He noted that she is no longer working, was charged for drug possession and is now on probation.

At the hearing, mother testified that she was currently attending drug court and living in a homeless shelter. She is in individual and group counseling and sees a psychiatrist. She spent her $7,000 award on $4,000 in back rent, motels and bought a new car.

Mother stated that she did not receive written notice that her children would be moved to Monterey. She received a call from her stepfather, telling her of the move. Later that day Hanson called her with the same information. Mother told her children that she would try to visit them. She testified that DSS made no arrangements for visitation. She repeatedly called Hanson but he did not return her calls. Mother did not know they were in separate foster homes until Donavon told her.

Mother believed she could provide her children with stability. She noted that in 2006, she had stable housing and employment for seven months and stated, "[t]his [possession of methamphetamine] is like the first time I've ever had this on my record. I'm very ashamed of it. I'm trying to take care of it. I'm doing it now."

County Counsel argued that, at the 18-month hearing, reunification services must be terminated unless the children can be returned to a parent. Counsel contended that mother had 18 months, but has not addressed the primary issue of a transient lifestyle and homelessness. She has not been able to comply with the case plan requirement of obeying all laws. The children would suffer detriment if returned to her care and there are no extraordinary circumstances that would justify extending services beyond 18 months.

Mother's counsel argued that DSS did not make a good-faith effort to place the children in the same county. She alleged that, although mother was living in Santa Barbara, DSS only checked the availability of foster housing in Santa Maria. Moreover, mother was entitled to 14 days' notice that the children would be moved outside the county. DSS did not facilitate visitation after the children were moved. Counsel argued that DSS was aware that mother lacked stable housing, a driver's license, or money and the move interfered with her ability to reunify with the children.

DSS acknowledged that it had failed to provide mother with written notice of the move, but claimed she had "actual notice." Hanson was aware that mother's legally designated address was the home of her parents. However, he could not remember if he gave written notice that DSS was moving the children to Monterey County. DSS claimed that mother had an opportunity between January 2007 and the date of the instant hearing, to bring the issue before the court. She did not. It contended that reasonable services had been provided to mother for 18 months, and the children should now be placed in a stable home.

The juvenile court acknowledged the advances mother had made since her incarcerations and her participation in drug court. It found that DSS had provided her with reasonable services to help her meet her case plan goals. In selecting a foster care placement, DSS had looked in Santa Maria and the data base of prior placements in Santa Barbara. It was not obligated to have exhausted all foster home possibilities in Santa Barbara County.

The juvenile court found by clear and convincing evidence that mother had not complied with her case plan. The court found that it would be a detriment to return the children to her and set a section 366.26 hearing for October 3, 2007. Mother filed a petition for an extraordinary writ requesting the court to vacate its order setting a section 366.26 hearing and to order that reunification services be continued.

DISCUSSION

Mother argues that DSS placed the children out-of-county without giving her proper notice and failed to provide reasonable services toward reunification.

Failure to Give Notice of Out-of-County Placement

Section 361.2, subdivision (f)(1) contemplates placement in the parent's county of residence to facilitate reunification. "If the child is taken from the physical custody of the child's parent or guardian and unless the child is placed with relatives, the child shall be placed in foster care in the county of residence of the child's parent or guardian in order to facilitate reunification of the family." If no placements are available in the parent's county of residence, it is preferred that the child be placed in a county adjacent to the parent's county of residence. ( 361.2, subd. (f)(2).) If out-of-county placement is necessary, the specific reason for the placement "shall be documented in the child's case plan." ( 361.2, subd. (f)(4).)

Prior to making an out-of-county placement, the social worker must give the parents 14 days' written notice of the move. The notice shall state the reasons which require out-of-county placement. (361.2, subd. (g).) "The parent or guardian may object to the placement not later than seven days after receipt of the notice and, upon objection, the court shall hold a hearing not later than five days after the objection and prior to the placement. The court shall order out-of-county placement if it finds that the child's particular needs require placement outside the county." (Ibid.)

DSS concedes that it did not give mother written notice, but claims that its error should be "deemed harmless." It contends mother had actual notice in December, yet failed to bring the matter before the court until the 18-month review hearing the following June. DSS also contends that we lack jurisdiction to consider this issue because the writ is limited to the findings and order made on June 12, 2007, terminating reunification and setting a section 366.26 hearing.

Section 361.2 requires that DSS give mother 14 days' written notice of the move. It cannot diminish its error by claiming mother failed to comply with the statute or by arguing that we lack jurisdiction to consider the matter. Mother was entitled to raise any issues regarding visitation at the hearing on termination of reunification. This most certainly included the move to Monterey County. DSS's argument that mother had actual notice is disingenuous. Mother received a telephone call from her stepfather informing her of the move, the day prior. Hanson notified mother, by telephone shortly afterward.

Mother was entitled to written notice of the reasons for out-of-county placement, and an opportunity to object. ( 361.2, subd. (g).) Granted, visitation had become more difficult for her. However, DSS had achieved the critical objective of placing the children together. Lack of written notice to mother would not have changed the circumstances under which reunification could be made. It was dependent upon mother's ability to obtain permanent housing, stable employment and comply with any case plan goals, such staying remaining drug-free. Mother has not satisfied these requirements. DSS's lack of written notice, while erroneous, is not a basis for the juvenile court to extend reunification services.

Reasonable Services Towards Reunification

At an 18-month permanency planning hearing, the children must be returned to their parents unless the juvenile court finds, by a preponderance of the evidence, that return would "create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." ( 366.22, subd. (a).) The court must determine whether reasonable services have been offered to the parent and whether the parent has "'cooperated and availed himself . . . of services provided.'" (Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554;  366.21, subd. (f).)

On appeal, review of a reasonable services finding is subject to the substantial evidence test. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Mother argues that DSS failed to provide reasonable services toward reunification. She contends that, once the children were placed out of county, DSS not only failed to offer reunification services, it effectively prevented reunification. Mother asserts that, after her incarceration she lacked a job, housing, and a driver's license, yet DSS would only transport the children to Paso Robles. Nor did it offer services to address her drug use. Mother contends there is no substantial evidence to support the reasonable services finding.

"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., supra, 2 Cal.App.4th at p. 547.)

When the minors were first detained, mother was homeless. By the 12-month review hearing, she had obtained employment, qualified for Section 8 housing, and appeared to be progressing towards obtaining permanent housing and creating a stable home environment. Over the next five months, mother lost her job, her housing, began living in motels and was incarcerated three times.

Mother's contact with DSS became increasingly irregular, making it more difficult for them to arrange visitation. Due to her deterioration and incarcerations, she became unavailable to fully participate in her case plan. As DSS noted, mother was less stable in the last six months of reunification than when the children were first detained in 2005.

Mother's argument that she was denied services to treat her drug abuse is without merit. When the children were first detained, she denied drug use and tested "clean." There was no indication of drug use until she was arrested in January 2007. The juvenile court's findings were supported by substantial evidence.

The petition is denied.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Roger Picquet, Judge

Superior Court County of San Luis Obispo

______________________________

Mary Anne Foster, under appointment by the Court of Appeal, for Petitioner.

No appearance for Respondent.

James B. Lindholm, Jr., County Counsel, Leslie H. Kraut, Deputy County Counsel, for Real Party in Interest.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

^[1]All further statutory references are to the Welfare and Institutions Code.

^[2]When Aaliyah was two months old, she was severely burned when hot food spilled on her. Mother and father filed an action against the fast food restaurant that sold them the food, and obtained a settlement. The funds were placed in trust to provide for Aaliya's future plastic surgery. It appears that mother received a separate award which was not part of Aaliyah's settlement.