Filed 9/19/17 C.H. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Jacqueline C. Jackson, Judge. Denied.

Phillip Malisos for Petitioner.

No appearance for Respondent.

Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole Nunes Fong, Deputy County Counsel, for Real Party in Interest.

Petitioner C.H. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court rule 8.452 challenging the juvenile court’s order terminating reunification services as to her child, J.P. (the child), and setting a Welfare and Institutions Code[1] section 366.26 hearing. Mother argues that: (1) she was not provided with reasonable reunification services; and (2) the court erred in finding there was no substantial probability the child would be returned to her care within the statutory timeframe. We deny the writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

On April 5, 2016, the Riverside County Department of Social Services (DPSS) filed an amended section 300 petition on behalf of the child, who was 11 months old at the time. The petition alleged that the child came within the provisions of section 300, subdivision (b) (failure to protect). Specifically, the petition alleged that mother and the child’s father (father)[2] had substance abuse histories and criminal histories with arrests and/or convictions on drug-related charges. They both were currently using controlled substances. The petition also alleged that mother had a previous dependency case with regard to one of her other children, due to substance abuse and general neglect. She failed to reunify, and that child was placed in a legal guardianship.

The social worker filed a detention report stating that DPSS received a referral for general neglect. It was reported that mother and father (the parents) relapsed and started using methamphetamine again. They were both unemployed and had recently applied for welfare assistance. When the social worker interviewed them, they initially denied relapsing, but then admitted they had recently relapsed. They were living with the paternal grandmother, but she told them they could not live there anymore since she wanted to be assessed for relative placement. They were currently living on the streets.

The court held a hearing on April 6, 2016, and detained the child in foster care. The court ordered services to be provided pending further proceedings, including alcohol and drug testing, parenting education, substance abuse treatment, and counseling.

Jurisdiction/Disposition

The social worker filed a jurisdiction/disposition report on April 22, 2016, and recommended that the court sustain the petition, declare the child a dependent, and order reunification services for the parents. The social worker reported that mother had mental health issues, including bipolar disorder and manic depression, and that she had a transient and unstable life. Mother told the social worker she had completed a substance abuse program the prior year, but recently relapsed. The social worker discovered that another one of mother’s children had previously been removed from her care due to similar issues of general neglect related to substance abuse. Mother was found to be an unfit parent in that case, was homeless, and the court granted legal guardianship on June 25, 2013.

The social worker further reported that mother had enrolled in the MFI Recovery Center residential program (MFI) on May 5, 2016, but had walked out of the program on May 9. Mother reported that she had a verbal altercation with another client, became irate, and left the program. She said she had been trying to enroll in another substance abuse program. The social worker also reported that mother was having weekly visits with the child, and that DPSS had provided her with a bus pass.

The court held a contested jurisdictional hearing on May 31, 2016, and sustained the petition. It declared the child a dependent and ordered the parents to participate in reunification services. The case plan included the requirements that mother participate in counseling, an inpatient substance abuse program, and substance abuse testing. The court authorized the “MOMS program”[3] in lieu of an inpatient program. It also ordered DPSS to provide bus passes for visits and housing assistance referrals.

Six-month Status Review

The social worker filed a six-month status review report on November 15, 2016, and recommended that the court continue reunification services and liberalize visitation to include unsupervised, overnight, and weekend visits. The social worker reported that mother was working at a warehouse earning $12 per hour; however, she had been fired. Mother said she was fired because she did not “want to be putting stickers on bags all day long.” Mother was currently residing with the paternal grandmother and was receiving food stamps. She said she expected to get money back from her income tax return, and then she would get her own place. Mother was taking medication for her bipolar disorder and depression. Furthermore, the social worker was informed by the sheriff’s department that mother had an active misdemeanor warrant with a drug charge. (Health & Saf. Code, § 11550, subd. (a).) Mother said she had already addressed the warrant in court and was sentenced to community service.

The social worker also reported that mother was referred to the New Hope Christian Counseling Centers (New Hope); however, the referral was terminated when they were unable to contact mother. The social worker then referred her again to MFI for rehabilitation services and counseling, and to “ACT” (Riverside County Department of Mental Health: Assessment and Consultation Team) for counseling. Mother enrolled in the “Riverside County Substance Use Program” on June 23, 2016, but continued to struggle with her addiction and was dropped from the program. Mother randomly drug tested and self-reported that she used methamphetamine on July 25, 2016, and tested positive for methamphetamine and amphetamines on July 27, 2016. Subsequently, she enrolled at “Gibson House,” an inpatient drug and alcohol treatment program for women, and successfully completed a 45-day residential treatment program on September 14, 2016. While at Gibson House, mother tested positive for marijuana on August 2, 2016. The social worker further reported that mother was residing at “Sylvia’s Serenity,” a sober living home; however, she left the facility on November 14, 2016. The director told the social worker that mother was not following the house rules and refused to do chores. She then opted to leave the facility and went to live with the paternal grandmother.

The social worker opined that the prospect of returning the child to mother’s care was fair. Mother was working full time, but was fired the week of November 7, 2016, when she refused to follow her supervisor’s directives.

In an addendum report filed on January 3, 2017, the social worker reported that she spoke with mother on December 29, 2016, and mother said she was living at “Serenity Sober Living Home.”[4] She participated in Narcotics Anonymous meetings three times a week. Mother received a referral to C.H.A.R.L.E.E. Family Care, Inc.,[5] for individual counseling and had an initial appointment scheduled for January 3, 2017. She was looking for employment.

The court held a contested six-month review hearing on January 10, 2017, and the matter was trailed for two days. At the outset of the hearing on January 12, 2017, county counsel stated mother continued to reside at “Serenity Sober Living Home,” and she had tested negative for drug use on January 9, 2017. Mother was working at a Walmart warehouse, and the social worker was currently looking for referrals to aftercare programs that would accommodate her work schedule. Mother was also participating in individual counseling at C.H.A.R.L.E.E. Family Care. The court continued the child as a dependent. It noted that the parents had made adequate but incomplete progress, and there was a substantial probability that the child may be returned to them within six months. The court continued services.

Twelve-month Status Review

The social worker filed a 12-month status review report on May 22, 2017, and recommended that the court terminate reunification services, set adoption as the permanent plan, and schedule a section 366.26 hearing. The social worker reported that mother had been attending individual counseling at C.H.A.R.L.E.E. Family Care; however, she stopped attending and was discharged. The social worker stated that C.H.A.R.L.E.E. Family Care was mother’s fourth counseling referral. On May 1, 2017, mother said she wanted to attend counseling at New Hope, where she was originally referred. She had not completed this component of her case plan and would require additional time to do so. The social worker also reported that mother was referred to an aftercare program at MFI, but mother said she could not be admitted since she was supposed to enroll within two weeks of her graduating from her treatment program. The social worker further reported that visits were going well, and mother had requested overnight weekend visits. However, the social worker said that was not possible because mother did not have a place of her own; she “rents a couch” at her friend’s house. Mother had a full-time job, but was fired the week of November 7, 2016, for refusing to follow directives from her supervisor. She was currently working part time, but her income varied, as she helped unload for a furniture store and was paid $10 for every trip. The social worker opined that there was no substantial probability of returning the child to mother’s care in light of her housing and employment situation.

The court held a 12-month status review hearing on June 1, 2017. Mother’s counsel asked to set the matter contested. He stated that mother was participating in counseling, but needed suitable housing and was “working on that.” Mother’s counsel asked the court to order DPSS to assist her with housing. The court set the matter for contested review, authorized DPSS to assist mother “with any financial and nonfinancial housing resources,” and ordered weekly drug testing.

In an addendum report, the social worker reported that mother drug tested negative on June 1, 2017. On that day, the social worker met with the parents. Mother reported that she was currently enrolled with the “Family Unification Program”[6] for housing. She said that she and father were considering finding an apartment together. The social worker observed that during the span of their meeting, the parents argued, kissed and made up, then argued again. She opined that their relationship was volatile and fragile. The social worker reported that mother did not maintain contact with DPSS after June 1, 2017. The social worker attempted to contact her at the number she had provided, but mother’s friend informed the social worker on June 15, 2017, that mother was no longer residing at that last known address. The social worker further reported that, on June 19, 2017, the Riverside County Sheriff’s “Warrant’s Desk” informed her that mother still had two active warrants—one for fraud while obtaining welfare benefits (Welf. & Inst. Code, § 10980, subd. (c)(2)) and one for being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). Mother was aware of the warrants and said she suspected she would have to go to jail, as she was given the chance to correct the offenses, but had not completed her community services hours or paid her fines.

The court held a contested 12-month status review hearing on June 22, 2017. Mother’s counsel asked the court to continue the matter so mother could obtain housing. Mother’s counsel stated that DPSS had referred her to housing assistance through “Section 8.”[7] He then asserted that the “main issue is really housing.” The court did not agree that housing was the only issue. It asked about mother’s participation in counseling and was concerned that the parents had a volatile, unstable relationship, but were still determined to be together. The court stated that it wanted to see if mother had benefited from her counseling. Minor’s counsel asked the court to follow the social worker’s recommendations. She noted that mother had not made herself available for random drug testing. She further indicated that mother was on her fourth counseling referral and had not followed through with the referrals. Counsel also noted that mother not only had misdemeanor warrants, but a felony warrant that she needed to clear up.

The court stated it had read and considered the social worker’s report and addendum. It then found that returning the child to the parents would create a substantial risk of detriment to his safety, protection, and well-being. The court found that DPSS had provided reasonable services, but the parents had not made satisfactory progress with their case plans. It then terminated reunification services. It also found that there was no substantial probability of returning the child to the parents with additional services. The court set a section 366.26 hearing for October 23, 2017.

ANALYSIS

I. There Was Substantial Evidence to Support the Court’s Finding That Reasonable Services Were Provided to Mother

Mother complains that DPSS did not provide her with reasonable services. She specifically contends that DPSS identified a lack of stable housing as an issue, and the court authorized housing assistance for her; however, DPSS did not provide any referrals to help her achieve stable housing. She claims that housing was the “last hurdle” for her. Mother’s complaint is meritless.

A. Standard of Review

“[W]ith 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 court’s finding that reasonable services were provided or offered. [Citations.]” (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) “We must view the evidence in the light most favorable to the department and indulge all legitimate and reasonable inferences to uphold the order. [Citation.]” (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010 (Mark N.), superseded by statute on other grounds, as stated in Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1504.) “The adequacy of the reunification plan and of the department’s efforts to provide suitable services is judged according to the circumstances of the particular case. [Citations.]” (Id. at p. 1011.)

B. There Was Substantial Evidence to Support the Court’s Finding

We have reviewed the record and find mother’s argument unavailing. Her case plan included the requirements that she participate in counseling, an inpatient substance abuse program, and substance abuse testing. The court also ordered DPSS to provide bus passes for visits and housing assistance referrals. The record shows that mother was given four counseling referrals; nonetheless, she did not complete this component of her case plan. The social worker also referred her to MFI for rehabilitation services, and she enrolled in the “Riverside County Substance Use Program,” but was dropped from the program. Mother subsequently enrolled in and completed a 45-day residential treatment program at Gibson House. She also had random drug testing and was provided with a bus pass for visits.

Furthermore, contrary to mother’s claim, the record shows that she was provided with housing assistance. Mother was homeless at the time of the detention hearing; however, the social worker stated in the six-month status report that she was in a 45-day residential treatment program at Gibson House, and then resided at “Sylvia’s Serenity” until November 14, 2016. Mother told the social worker that she subsequently went to live with the paternal grandmother and had a plan to get her own place. When the social worker spoke with mother on December 29, 2016, she said she was living at “Serenity Sober Living Home.” The record indicates that, on May 1, 2017, mother told the social worker she was staying at her friend’s house, on the couch. Then, when the social worker met with her on June 1, 2017, mother reported that she and father were enrolled with FUP for housing. At the 12-month status review hearing on June 22, 2017, mother’s counsel informed the court that DPSS had referred mother to housing assistance through “Section 8.” It is not clear from the record if mother’s counsel was referring to FUP; however, counsel clearly stated that mother had received housing assistance from DPSS. Thus, throughout the dependency, mother was either in a residential treatment program, living at a sober living home, or residing with the paternal grandmother. The record indicates that, at the time she ended up staying on her friend’s couch, DPSS provided the housing referral, and she enrolled in FUP. We conclude that the services provided were reasonable under the circumstances of this case. (Mark N., supra, 60 Cal.App.4th at p. 1011.)

We further note that, contrary to mother’s claim that housing was the “last hurdle” she needed to overcome for the court to return the child to her custody, the court explicitly stated that it did not believe housing was the only issue. The court was also concerned about mother’s volatile relationship with father and whether she had benefitted from her counseling services.

Viewing the evidence in the light most favorable to DPSS, as we must, we conclude that DPSS provided mother with reasonable services.

II. The Court Properly Concluded There Was No Substantial Probability of Return

of the Child to Mother

Mother next argues that the juvenile court erred in terminating reunification services at the 12-month review hearing and contends that it should have instead extended her services to the 18-month hearing. We disagree.

At the 12-month hearing, the court can terminate reunification services and maintain the child in an out-of-home placement when it finds by a preponderance of the evidence returning the child to the offending parent would create a substantial risk of detriment to the child’s safety, protection, or physical or emotional well-being. (§ 366.21, subd. (f).) The parent’s failure to participate regularly and make substantive progress in court ordered treatment programs is prima facie evidence of detriment. (Ibid.) Services may be extended to 18 months only if the court finds that there is a substantial probability the child will be returned to the parent at the end of the extended period. (§ 361.5, subd. (a).) In order to find a substantial probability that the child will be returned to the physical custody of the parent, the court must find that the parent has consistently and regularly visited the child, that the parent has made significant progress in resolving problems that led to the child’s removal from the home, and that the parent has demonstrated the capacity and ability to complete the objectives of their treatment plan and provide for the child’s safety, protection, physical and emotional well-being, and special needs. (§ 366.21, subd. (g)(1).)

Here, the court properly concluded there was no substantial probability the child could be returned to mother by the end of the 18-month period. The only requirement mother met was consistent visitation. She had not made much progress in resolving the problems that led to the child’s removal. Mother asserts that she had completed substance abuse treatment, consistently tested negative for drugs, attended Narcotics Anonymous faithfully, took medication for her bipolar disorder and depression, attended therapy, was looking for stable housing, and had “put herself on calendar to clear her misdemeanor warrants.” While she had completed a residential treatment program at Gibson House on September 14, 2016, the record shows that she tested positive for marijuana on August 2, 2016, while she was there.

Furthermore, mother was required to participate in counseling. She was first referred to New Hope, but was terminated when they could not contact her. The social worker then referred her to MFI for rehabilitation and counseling, but mother said she was not ready to start her individual counseling. She was then referred to C.H.A.R.L.E.E. Family Care because she said she wanted services in Riverside. She started counseling, but stopped attending and was discharged. She then stated she wanted to attend counseling at New Hope, where she was originally referred. Thus, by the time of the 12-month review hearing, mother had not completed her counseling component and needed more time to do so. As minor’s counsel pointed out at the hearing, mother was on her fourth counseling referral, she had not shown any benefits from counseling, and she had a history of not following through.

More significantly, mother has not demonstrated the capacity and ability to provide for the child’s safety, protection, and physical and emotional well-being. She did not have a home or the financial stability to care for the child. The record shows that she first had a job working at a warehouse, earning $12 per hour, but was fired because she did not “want to be putting stickers on bags all day long.” She was also employed full time at a Walmart warehouse, but was fired for refusing to follow her supervisor’s directives. At the time of the 12-month hearing, mother was apparently working a job with a varying income, unloading items for a furniture store and getting paid $10 per trip. Her employment history and current job did not demonstrate an ability to provide for the child.

Furthermore, mother still had two outstanding warrants, which made her future uncertain. She speculated that she would probably have to go to jail, as she was given the chance to correct the offenses, but had not completed her community services hours or paid the fines. Mother had months to resolve the warrants, yet had failed to do so.

Additionally, mother was in a relationship with father, which the social worker described as fragile. The record showed that they argued during a meeting with the social worker. When the social worker stepped out of the meeting, she returned to find them kissing and making up. However, the meeting ended with mother angry with father again. At the 12-month hearing, father’s counsel confirmed that they were still together as a couple and were trying to get a place to live together. The court was appropriately concerned that their relationship was volatile and unstable, and it could put the child’s emotional well-being at risk. (§ 366.21, subd. (f).)

We conclude that the evidence supported the court’s finding that there was no substantial probability that the child would be returned to mother’s custody within the extended timeframe. The court properly terminated reunification services.

DISPOSITION

The writ petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MILLER

J.