M.T. v. Super. Ct.

Filed 11/14/08 M.T. v. Super. Ct. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

On August 5, 2008, the Del Norte County Superior Court, Juvenile Division, entered an order in this proceeding that terminated reunification services for M.T. (Mother) and set a hearing under Welfare and Institutions Code section 366.26[1] to select a permanent plan for R.S. (born June 2006). Mother challenges the order by petition for extraordinary writ, contending the Del Norte County Department of Health and Human Services (Department) failed to offer or provide her reasonable reunification services. As discussed below, we conclude there is substantial evidence to support the courts finding to the contrary, and accordingly deny Mothers petition on the merits.[2]

Background

The Department initiated this proceeding on November 5, 2007, with a petition under section 300. Later that month, it removed the minor from his parents physical custody.

On January 9, 2008, the juvenile court sustained the amended petitions jurisdictional allegations under subdivision (b) of section 300, which included the following: R.S. (Father) was found to be in unlawful possession of a controlled substance and hypodermic syringes on October 29, 2007; at that time he admitted having used methamphetamine intravenously a few days earlier; Father and Mother were currently homeless and living a transient lifestyle rendering them unable to provide the minor with a stable home environment; both parents had a history of substance abuse; Mother had a history of relationships distinguished by domestic violence and substance abuse and had permitted persons using drugs to have control and access to the minor; and the minor had tested positive for morphinea circumstance the parents had been unable to explain. The court also sustained an allegation under subdivision (g) of section 300, to the effect that the parents had lost their only legal means of support by failing to submit the documentation necessary for them to continue receiving welfare payments and Medi-Cal benefits for the minor. Finally, the court sustained allegations under subdivision (j) of section 300 as follows: Mother had inflicted bruises and welts on the minors older half siblings; her parental rights had been terminated as to three older half siblings; and a fourth older half sibling had died as a result of physical abuse suffered at the hands of members of the household.

At a hearing on January 25, 2008, the juvenile court adopted the Departments dispositional recommendations. That is, it continued the minor in out-of-home custody, ordered reunification services for both parents, adopted the proposed case plans, and directed the parents to comply with those plans.

Mothers case plan had these components: to stay free from illegal drugs and comply with all drug tests [a]s measured by staying clean and sober and following all treatment recommendations, and more particularly to participate in counseling services and group meetings through the countys Alcohol and Other Drugs (AOD) Program; to maintain a legal source of income by fulfilling all necessary requirements for continuing her eligibility for food stamps and Medi-Cal; to obtain and maintain a stable and suitable place to live, by applying for housing assistance and searching for a suitable residence; to contact two specified agencies for a mental health assessment and an anger management assessment, respectively, and to participate in any recommended counseling services; and to demonstrate good parenting skills, including registration with, participation in, and graduation from a specified parenting class.

About one month after the dispositional hearing, the Department brought to the juvenile courts attention a letter from an AOD program coordinator, who noted Mother was presently engaged in an intensive 90-day outpatient substance abuse treatment program for women and recommended for Mother the added structure of participation in the juvenile courts Dependency Drug Court (DDC). The requirements for participation in DDC included, initially, weekly random testing, as well as weekly court appearances, to monitor compliance and impose sanctions for violations. The range of DDC sanctions included contempt proceedings that could result in a contempt judgment directing confinement in the county jail for up to five days. On March 7, 2008, the court ordered Mother to participate in DDC as part of her case plan, and Mother signed an agreement to participate in DDC as a component of her plan.

The Department thereafter initiated a number of contempt proceedings against Mother, alleging DDC violations. Three of these proceedings were the result of positive test results on urinalysis specimens Mother provided respectively on March 21, 2008, April 14, and June 10. The first of these specimens tested positive for methamphetamine, while the other two tested positive for marijuana. The juvenile court, sitting as the DDC, ultimately entered contempt judgments in all three proceedings, which respectively directed Mother to serve a five-day jail confinement beginning March 28, 2008, a five-day jail confinement beginning April 18, and a shorter period of jail confinement beginning on June 20 and ending the morning of June 23.

The minute order for the DDC hearing on June 20, 2008, which resulted in the third contempt judgment, also recorded a statement by Mother that she d[id]nt have a place to live. The Departments assigned social worker responded that she ha[d] given [Mother] all resources available. A minute order dated one week later, on June 27, recorded the Departments notification that it had arranged for Mother to enter a local safe and sober living home for women, with costs to be covered by the Department. Mother entered the home that same day. At a DDC hearing held about two weeks later, the social worker advised the court that Mother was still testing positive for marijuana and the levels [were] not going down.

In its report prepared for the six-month status review hearing (the six-month hearing), signed July 25, 2008, the Department stated Mother had continued to abuse illegal substances in the period following the dispositional hearing. The Department noted Mothers DDC violations, and reported she had again tested positive for marijuana in a specimen provided on July 8. Mother had been unable to complete her outpatient substance abuse treatment program for medical reasons, but was currently doing well after re-start[ing] that program. Among other things, Mother had additionally failed to complete the parenting class component of her plan. The Department concluded that, during the six-month period following the adoption of their court-ordered plans, both parents had failed to participate and make progress so as to show the Department and the court that they were serious about having their child returned to them. Accordingly, the Department recommended that the court exercise its discretion to terminate reunification services and set the matter for a section 366.26 hearing.[3]

At the conclusion of the six-month hearing, the juvenile court terminated both parents reunification services and set the matter for selection of a permanent plan pursuant to section 366.26. Its order, entered August 5, 2008, included a finding to the effect that the Department had offered or provided [r]easonable services designed to aid [the] parents in overcoming the problems which led to the [minors] initial removal and continued custody. (See  366.21, subd. (e), par. 8.) Mothers petition followed. ( 366.26, subd. (l).)

Discussion

Mother urges that the Department failed to provide reasonable services in that she remained homeless for the majority of the period under review at the six-month hearing. She points particularly to the colloquy recorded in the courts minute order of June 20, 2008, in which she complained she [had no] place to live and the social worker responded by stating the Department had given Mother all resources available. She interprets the social workers reply to be an admission that there was nothing [the Department] could do to help [Mother] find a safe place to live. Mother also cites to testimony at the six-month hearing which her trial counsel elicited from the assigned social worker during cross-examination. This testimony, in Mothers view, indicates that the social worker had known for several weeks that [Mother] did not have a place to live and that she had failed to respond to that need. Mother suggests that her positive tests for marijuana were the result of her homelessness. That is, Mother found it necessary to crash with acquaintances who used that drug, and as their guest she was obliged to join in such drug use in order to reassure her hosts that she was not a snitch, or otherwise to demonstrate good manners, since such drug use amounted to an act of camaraderie similar to sharing in a meal in earlier generations. Mother asserts that, once the Department was able to place her in a safe and sober living home, on June 27, 2008, she was able to provide consistently clean samples when she was [drug] tested and was otherwise able to comply with her case plan. Had the Department provided reasonable housing assistance sooner, Mother insists she could have demonstrated substantive progress with her court-ordered plan.

Mothers contention, in effect, challenges the juvenile courts finding that the Department offered or provided reasonable services to her during the period preceding the six-month hearing. Reunification services may be deemed reasonable when the evidence shows that the case plan identified the problems leading to the loss of custody, that the services offered or provided were designed to remedy those problems, and that the social services agency maintained reasonable contact with the parents and made reasonable efforts to assist the parents in areas in which compliance proved difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) We review a reasonable services finding to determine whether the record discloses substantial supporting evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) In doing so, we do not reweigh the evidence, but view it in the light most favorable to the courts ruling, drawing all reasonable inferences and resolving all conflicts in its favor. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75; In re Julie M. (1999) 69 Cal.App.4th 41, 46.)

The Department report, admitted into evidence at the six-month hearing, states that both parents were referred to the Linkages Program, a service apparently designed to assist them with housing and other living expenses. The social workers testimony on redirect examination indicates that, before the dispositional hearing, the parents received housing assistance in the form of payment vouchers that could be used at local motels. It is reasonable to infer that the housing assistance provided to the parents through the Linkages Program after the dispositional hearing was of the same nature.[4] Nothing in the record suggests that the parents lost such housing assistance through any act or omission by the Department. Further, we do not accept Mothers interpretation of other testimony elicited from the social worker during her cross-examinationthat the worker knew Mother was homeless for weeks prior to June 20, yet did nothing to help her. We view that testimony in the light most favorable to the courts ruling, and, in our view, it indicates that the worker first learned that Mother needed additional housing assistance at the DDC hearing on June 20, when Mother stated she had no place to stay. Before then, Mother had told the worker she was fine. It appears the social worker acted promptly after June 20, enabling Mother to enter into a local safe and sober living home within one week.

Moreover, as noted above, the report admitted at the six-month hearing indicated that Mother evidently continued her drug use notwithstanding her placement in the safe and sober living home on June 27, 2008. She continued to test positive for marijuana at significant levels as late as July 8. We reject Mothers suggestion that she was compelled by custom to partake of marijuana offered by hosts with whom she had accepted temporary lodging. The need for Mother to comply with her case plan in order to reunite with her child trumps any breach of drug culture etiquette.

The standard is not whether the agency could have provided better services in an ideal world, but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) Here the record, viewed in the light most favorable to the courts ruling, includes substantial evidence to support a finding that the Department acted reasonably to assist Mother in her efforts to obtain and maintain a safe, drug-free place to live. We conclude the juvenile court did not err when it found, more generally, that the Department offered or provided reasonable services to the parents during the period preceding the six-month hearing.

Disposition

The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI,  14; Kowisv. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd.v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).)

______________________

Marchiano, P.J.

We concur:

______________________

Margulies, J.

______________________

Flinn, J.*

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M.T. v. SuperiorCourtofDel NorteCounty;

Del Norte County Dept. of Health & Human Services et al., A122647

[1] Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. ( 366.26, subd. (l)(4)(B).)

[3] When, as here, a minor is under the age of three years old at the time of his or her initial removal, the juvenile court at the six-month hearing has discretion to terminate reunification services and set the matter for selection of a permanent plan under section 366.26, if it finds by clear and convincing evidence that the parents have failed to participate and make substantive progress in their court-ordered treatment plans. ( 366.21, subd. (e), par. 3; see  366.21, subd. (h).)

[4] This inference is supported by the social workers testimony during cross-examination, to the effect that the parents address last known to her prior to the hearing on June 20 was a local motel, where both parents were living at the time of an apparent contact in May 2008.

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