COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 28, 2010
IN RE M.D., A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
BONNIE O., DEFENDANT AND APPELLANT.
APPEAL from an order of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Reversed and remanded with directions. (Super. Ct. No. SJ12068)
The opinion of the court was delivered by: Huffman, J.
In re M.D. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Mother Bonnie O. appeals following a combined 12- and 18-month review hearing in the dependency case of her daughter, M.D. Bonnie contends the juvenile court erred by finding that she was provided reasonable reunification services. We agree.
Bonnie has an extensive history of drug use, punctuated by periods of treatment, sobriety and relapse. She began using marijuana, methamphetamines and alcohol when she was 15 years old. She began using heroin when she was about 24 years old. In 2003, when she was 30 years old, she was arrested for possessing and selling a controlled substance. She spent two months in jail, attended an outpatient drug treatment program and received methadone treatment for eight months. The methadone treatment ended when she relapsed and was arrested for possessing and being under the influence of a controlled substance. In 2004 Bonnie successfully completed eight months of court-mandated residential drug treatment. She relapsed about nine months later and continued using drugs for a couple of years. While pregnant with M.D., Bonnie used heroin and cocaine intravenously three times a day.
When M.D. was born in September 2008, she tested presumptively positive for cocaine and heroin and suffered withdrawal symptoms. Bonnie also tested presumptively positive for cocaine and heroin. She admitted using drugs while pregnant and had little prenatal care. Based on those facts, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition. M.D. was detained in the hospital. She was later moved to a foster home, and then to the home of a maternal aunt.
At the September 2008 detention hearing, the court referred Bonnie to the Substance Abuse Recovery Management System (SARMS) program for an evaluation. Within a week Bonnie began participating in SARMS and began methadone treatment.
In October 2008 the court made a true finding on the petition and ordered M.D. placed in foster care. The court ordered Bonnie to comply with a case plan comprising of parenting education and substance abuse treatment. Concerning the latter, the plan stated: "[Bonnie] will continue with her methadone treatment until the methadone clinic and [Bonnie] determine that it is safe to refrain from methadone treatment. While [Bonnie] is participating in methadone treatment, [Bonnie] shall continue to attend outpatient drug treatment as outlined in the SARMS referral from the Detention Hearing. [¶] Once [Bonnie] has completed her methadone treatment, the Agency will refer her back to SARMS for further substance abuse recommendations. [Bonnie] will successfully complete the recommendations outlined by SARMS which can include outpatient treatment, random drug testing, and attendance at [Narcotics Anonymous] meetings." The court warned Bonnie that if she did not make substantive progress in her case plan in six months, her parental rights might be terminated.
On November 12, 2008, Bonnie tested positive for methadone at SARMS. As a result, Bonnie's SARMS counselor deemed her noncompliant. The methadone clinic then advised SARMS that Bonnie "will need approximately four months at a stable dose before slowly detoxing in order to avoid relapse. Please remember . . . that methadone is a treatment, not a substitute for heroin." On November 18 Bonnie again tested positive for methadone. This time, the SARMS counselor deemed Bonnie compliant. Nevertheless, the counselor still filled out a form "Declaration Re: Contempt" stating Bonnie "was able to comply with this order (by not possessing, using or consuming alcohol or illegal substances) each time [she] disobeyed it."
Bonnie's social worker, Emma Soto, had no experience with methadone treatment. On February 18, 2009 Soto told Bonnie "she needed to be off methadone prior to [M.D.] being returned to her." In order to obtain M.D.'s return, Bonnie immediately began reducing her methadone dosage at a rapid rate.*fn1 In March Soto sought information about methadone from the Agency's psychiatrist and from Bonnie's drug counselor, Patricia Consoli. They told Soto that a person with a long history of drug abuse might need to continue methadone treatment for a long time, possibly a lifetime. Soto's reports discussed Bonnie's methadone treatment and the tapering of her dose, but did not mention Soto's conversations with the Agency's psychiatrist and Consoli, or Soto's February conversation with Bonnie. By March 4 Soto realized that her February statement to Bonnie was erroneous.
On April 9, 2009, the court ordered Bonnie to participate in SARMS. The court warned her that noncompliance with SARMS might result in a finding of contempt, and a finding of contempt might result in a jail sentence of up to five days and a fine of up to $1000. On April 22 Soto told Bonnie that due to her long history of drug abuse, she "might need to stay on her methadone treatment for a long time or the rest of her life." Bonnie responded that "she knew that." On May 6 the court told Bonnie its SARMS "reprimand . . . regarding jail and fines was inadvertently given and is now deleted."
The six-month review hearing took place on May 21, 2009. The court found Bonnie had been provided or offered reasonable services, had complied with SARMS during the latest reporting period (April 16 to April 30) and had made substantive progress on her case plan. (Welf. & Inst. Code,*fn2 § 366.21, subds. (f), (g)(1).)
By June 2009, Bonnie was experiencing symptoms of methadone withdrawal, including insomnia, lack of appetite, lack of motivation, sweating, shaking, anxiety, depression, headaches and body aches. Consoli told Bonnie that she had the option to remain on methadone. Bonnie responded that she was more than halfway through the tapering process and was determined to continue.
On June 29, 2009, Soto visited Bonnie and saw that she was experiencing severe withdrawal symptoms. For the first time, Soto told Bonnie that she could stay on methadone without jeopardizing M.D.'s return.*fn3 Soto did not mention the June 29 conversation in any report,*fn4 but more than nine months later testified that Bonnie responded, "that she knew that, but methadone made her sweat and gain weight."*fn5 At the beginning of July Soto went on medical leave. On July 30 social worker Lizeth Alvarez assumed Soto's duties. It is unclear who, if anyone, was assigned to the case in the middle part of July.*fn6
On August 25, 2009, Bonnie's methadone treatment program ended, and she took her last dose. In September, she took a dose of methadone that she had received during the program and had saved. Because Bonnie was no longer receiving methadone under the care of a physician, SARMS deemed her noncompliant. In September or October, unable to bear her withdrawal symptoms, Bonnie used cocaine and heroin to alleviate those symptoms. When she relapsed, Bonnie was concerned about the dependency case and worried because her father was ill and M.D.'s father, D.A., was gone. D.A. had been deported in June or July 2009 and returned to San Diego County in October or November.
By the time Soto returned to work in late October 2009, Bonnie had resumed participating in the methadone program.*fn7 Her last positive test for illicit drugs was on October 21, and she was compliant with SARMS for the remainder of the case.
The combined 12- and 18-month review hearing took place in March 2010. The court found, by clear and convincing evidence, that Bonnie had been provided reasonable services but she had not made substantive progress. The court terminated her services, including SARMS. The court found that D.A. had not been provided reasonable services, continued his services and set a 24-month review hearing for September.*fn8 (§§ 366.22, subd. (b), 366.25.)
" '[T]he focus of reunification services is to remedy those problems which led to the removal of the children.' [Citation.] A reunification plan must be tailored to the particular individual and family, addressing the unique facts of that family. [Citation.] A social services agency is required to make a good faith effort to address the parent's problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult. [Citation.] However, in most cases more services might have been provided and the services provided are often imperfect. [Citation.] '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.' [Citation.])" (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598-599.) At the 12- and 18-month review hearings, the court shall determine whether reasonable services have been offered or provided to the parent.*fn9 (§§ 366.21, subd. (f), 366.22, subd. (a).) In this case, we conclude that substantial evidence does not support the finding that reasonable services were offered or provided to Bonnie. (In re Misako R. (1991) 2 Cal.App.4th 538, 544-545.)
Bonnie received conflicting and erroneous information about substance abuse services almost from the inception of this case. At the September 2008 detention hearing, the court referred Bonnie to SARMS, and in October the court ordered her to "continue with her methadone treatment until the methadone clinic and [Bonnie] determine that it is safe to refrain from methadone treatment." In November Bonnie's SARMS counselor deemed her noncompliant when she tested positive for methadone. Even after the methadone clinic advised SARMS that Bonnie could not stop taking methadone abruptly, the SARMS counselor completed a form Declaration Re: Contempt when Bonnie tested positive for methadone.*fn10 In February 2009 Soto erroneously told Bonnie that she could not obtain M.D.'s return until she quit taking methadone, leading Bonnie to embark on an immediate and rapid reduction of her dose. Soto omitted this erroneous advice from her reports, and within a couple of weeks realized that her statement to Bonnie was wrong. In April the court warned Bonnie that if she did not comply with SARMS, she might be held in contempt and be subject to a jail sentence and a fine. This warning was erroneous (In re Nolan W. (2009) 45 Cal.4th 1217, 1224, 1226, 1238), and the court did not retract it until nearly one month later.
All of the above events occurred before the finding at the May 21, 2009, six-month review hearing that Bonnie had been provided or offered reasonable services. The Agency argues because Bonnie did not appeal that finding, she may not challenge it now, and the scope of her appeal should be limited to matters postdating the six-month review order.
As a general proposition, a parent who appeals following the 12- or 18-month review hearing cannot challenge a reasonable services finding made at the six-month review. (See In re Cicely L. (1994) 28 Cal.App.4th 1697, 1705.) This proposition is inapplicable in the instant case, where one of the most glaring errors continued after the six-month review hearing. (Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340, 1347, fn. 5, 1348.) Before that hearing, Soto wrongly advised Bonnie that methadone use would prevent M.D.'s return. Before that hearing, Soto realized her advice was wrong. More than four months after Soto's erroneous advice, nearly four months after her realization, and more than one month after the six-month review hearing, Soto finally told Bonnie that methadone use would not prevent M.D.'s return. Soon after Soto issued this correction, she went on leave. The case was seemingly uncovered by a social worker for the better part of a month. Because Soto's reports did not mention her erroneous advice or her correction, Alvarez, the social worker who substituted for Soto, was presumably unaware of those matters.*fn11 Meanwhile, Bonnie had been reducing her methadone dosage for more than four months and had reached a level that was less than half of her original dose and less than half the average effective dose. Bonnie's relapse a few months later should have been no surprise to the Agency or to the court. Encouraging this methadone-dependent, long time substance abuser to stop methadone treatment abruptly had far-reaching consequences.
Bonnie contends that if the Agency had provided D.A. reasonable services, he might have gained custody at the March 2010 hearing, and, as a result, Bonnie might have effectively gained custody in that she and D.A. were a couple. While we decline to speculate on this issue, the failure to provide D.A. reasonable services is another example of the Agency's deficient performance in this case. It would not have been futile for the court to provide Bonnie another six months more of services while doing the same for D.A. (Cf. In re Alanna A. (2005) 135 Cal.App.4th 555, 566.)
The finding that Bonnie was provided or offered reasonable reunification services is unsupported by substantial evidence.*fn12 Accordingly, she is entitled to six more months of reunification services. (In re Alvin R. (2003) 108 Cal.App.4th 962, 975.)
The order terminating Bonnie's reunification services is reversed. The case is remanded to the juvenile court with directions to order six months of reunification services for Bonnie.
WE CONCUR: BENKE, Acting P. J. McINTYRE, J.