IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
December 28, 2010
THE SUPERIOR COURT OF SOLANO COUNTY, RESPONDENT; SOLANO COUNTY DEPARTMENT OF CHILD WELFARE SERVICES, REAL PARTY IN INTEREST.
(Solano County Super. Ct. No. J39570, J39571)
The opinion of the court was delivered by: Richman, J.
I.F. v. Superior Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
With this petition for an extraordinary writ pursuant to California Rules of Court, rule 8.452, petitioner I.C., the mother of minors E.D. and D.C., seeks to vacate the order of respondent Superior Court of Solano County terminating reunification services and setting a hearing to terminate her parental rights in accordance with Welfare and Institutions Code section 366.26. Petitioner contends substantial evidence does not support the court's findings that (1) reasonable reunification services were provided by real party in interest Solano County Department of Child Welfare Services (Department), and (2) there was not a substantial probability that the minors could be safely returned to her custody if additional reunification services were provided. We conclude both contentions are without merit, and deny the petition on its merits.
In September 2009, petitioner's children already having been detained and removed from her custody, the juvenile court sustained the allegation of a petition filed by the Department to the effect that "for approximately the past five years" petitioner had "criminal and substance abuse issues that have rendered her incapable of caring for and making decisions" for the minors.
The social worker's report for the dispositional hearing advised the court that the whereabouts of E.D.'s father was unknown, while that of D.C.'s father was known. Petitioner was on parole. Concerning the source of her difficulties, petitioner, who was 42 years of age at the time, told the social worker that "she has been clean from illegal drugs since June 27, 2009, and prior to that she had used crack for approximately eighteen years, alcohol for sixteen years and methamphetamines for thirty-three years and reports that methamphetamines are her drug of choice." Petitioner was further reported as desiring "to reconnect with her children and obtain substance abuse treatment and being able to locate stable housing and employment." Petitioner was advised that "if she does not successfully reunify with her children, that the children could be placed for adoption due to the fact that there is a concurrent plan for adoption. The [social worker] also went over the time line for services in regards to children of their age."
The Department concluded that it was "not recommending that the children be returned to their mother's care. She has just been released from incarceration and reports not yet having adequate housing. She also reports a recent history of drug usage and has yet to seek treatment, however it is acknowledged that she was just recently released from incarceration. Also the children have resided with numerous relatives for at least the last seven years and have never resided with their mother for a significant period of time. . . . [A]t this time the risk for further abuse and neglect remains high."
In November 2009, the juvenile court accepted the Department's recommendations that the minors be declared dependent children, and that petitioner be provided with reunification services. A six-month review hearing was scheduled for May 2010.
In its Status Review Report for that hearing, the Department informed the court that petitioner was "currently living in Vacaville at a family member's home. . . . She has not attended the weekly substance abuse groups for clients waiting to be placed into a treatment program. She was referred back to the wait/list group on 4/7/10 and advised that if she attends group on 4/9/10, there is a spot for her in a treatment program."
Concerning petitioner's progress with her case plan, the social worker reported that petitioner was not in compliance in a number of respects. First, she had not secured adequate housing for herself and the children. Second, she was "in progress" with the objective of learning better parenting skills and staying drug free. As to this last point, the social worker stated: "[Petitioner] has complied with most required drug testing. [Petitioner] tested negative on 1/14/10, 2/3/10, 2/19/10, and 3/19/10. [Petitioner] failed to test as required on 1/13/10, 1/22/10, and 1/29/10. [Petitioner] was directed to attend the County Wait-List Substance Abuse groups weekly in order to maintain her spot on the wait list for substance abuse treatment. [Petitioner] has not consistently attended the groups, and therefore, she continues to lose her spot on the wait list. She has not attended NA/AA [Narcotics Anonymous/Alcoholics Anonymous] meetings during this reporting period."
Petitioner was erratic in keeping her weekly visits with the children. Under the heading "Progress Made Toward Alleviating or Mitigating the Causes Necessitating Out of Home Placement," the social worker described petitioner's progress as "minimal." "[Petitioner] is partially participating in pursuing her case plan . . . . She occasionally demonstrated desired behaviors. [Petitioner] has made minimal progress towards engaging in substance abuse services. She has not demonstrated an ability to safely parent her children and has made little progress towards mitigating the factors that brought her children into care."
The social worker also tried to be delicate in describing petitioner's difficulty in coming to grips with the situation: "[Petitioner] . . . feels she is doing everything she needs to do to have her children returned to her care. She is frustrated that she is being asked to do these things when her children do not want to come live with her. She is hurt that they want to live with the relatives who were caring for them when they came into foster care." "[B]efore the Court is a mother who has 14 living children and she has not fully parented any of her children. Her children were either raised in foster care or by relatives. She is having a hard time establishing herself as a parental figure in their lives. She has not followed through in completing her case plan objectives." This was why the Department recommended that petitioner receive additional reunification services.
In May 2010, at the six-month review hearing, the juvenile court found that petitioner had made minimal progress toward fulfilling her case plan, but it accepted the Department's recommendation and ordered she be provided six additional months of reunification services. A 12-month review was set for September.
The social worker's report for the 12-month review noted that the Department had initially had the two minors placed together, but intense sibling rivalry made that unfeasible. The boy E.D. was then placed with petitioner's half-brother and was doing well. Once the girl D.C. was in a separate placement, her situation improved and continues to improve. Once the situation between the minors stabilizes, petitioner's half-brother hopes to have D.C. join her brother.
Concerning the case plan objective of petitioner securing a stable home, the social worker informed the court: "[Petitioner] is not in compliance with this aspect of the case plan. She is staying in a room at a relative's home, however, she has not secured adequate housing for herself and her children. . . . The undersigned referred [petitioner] to Vacaville Family Resource Center on 4/16/10. She was scheduled for an appointment on 5/10/10 and 6/3/10, however, she did not show to either appointment. She did not respond to attempts to engage in services available through the Vacaville Family Resource Center. Her referral was closed and a letter was mailed to her on 6/4/10 advising her to contact them should she wish to engage in services in the future. [Petitioner] was referred to Heather House and Opportunity House on 6/23/10, however, to date, she has not maintained contact with either shelter and therefore has not secured a bed in their programs"
As for staying free of drugs, the social worker reported that petitioner "is not in compliance with this case plan objective. [Petitioner] has not complied with most required drug testing. . . . [Petitioner] failed to test as requested on 5/11/10, 5/20/10, and 6/30/10. [Petitioner] was directed to attend the County Wait List Substance Abuse groups weekly in order to maintain her spot on the wait list for substance abuse treatment. [Petitioner] attended all the groups in May 2010. [Petitioner] left early on 6/4/10 and 6/11/10. She did not attend on 6/18/10, 6/25/10, and 7/2/10. The undersigned consulted with Clinical Services Associate Mary Wilson, who suggested [petitioner] may benefit from a Psychological Evaluation to determine if she may be appropriate for dual diagnosis treatment. An appointment is scheduled for [petitioner] on 9/10/10. [Petitioner] has not consistently attended the groups, and therefore, she was dropped from any groups effective 7/9/10. She was advised by [Clinical Services Associate] Mary Wilson that she may return to groups at any time while she waits to complete her psychological evaluation. Ms. Wilson also offered to provide individual sessions with [petitioner] and indicated [petitioner] would have to attend AA/NA meetings and test randomly. [Petitioner] has not followed through with engaging in the services Ms. Wilson offered. She has not attended NA/AA meetings during this reporting period."
With respect to the goal of consistently, appropriately, and adequately parenting her children, the social worker again reported that petitioner "is not in compliance with this case plan objective." Petitioner completed a parenting class but "has not integrated any of the parenting techniques taught . . . . [Petitioner] has not consistently attended visits and struggled to interact with her children."
In conclusion the social worker advised the court that petitioner "feels she has done everything she has been asked to do and feels her children should be returned to her care." But the social worker's outlook was, from petitioner's perspective, bleak:
"A reunification risk assessment was completed and the recommendation was to terminate reunification services. During the previous reporting period the risk level was high. During this reporting period the risk level has increased to very high . . . [Petitioner] has exhibited minimal participation in case plan objectives and rarely demonstrates desired behaviors. . . . [Petitioner] has made minimal progress towards engaging in substance abuse services. She has not demonstrated an ability to safely parent her children and had made little progress towards mitigating the factors that brought her children into care. There is no substantial probability of her children's return to her care should services be continued."
"Before the Court is a mother who has the best intentions, desire, and hopes as it relates to her children. She has been open about her love and care for her children. She has failed to translate her desire into action. She has been given many opportunities to fully engage and complete her case plan objectives yet she was not able to do so. [Petitioner] has not parented her children for the majority of their lives and has struggled to regain the parental role in their lives.
"Also before the Court are two children whose main desire is to grow up with family. They do not understand why they were placed in foster care and are searching for stability within their family. [E.D.] is on the road to being maintained in a home with his brother who has made a commitment to raising [E.D.]. [D.C.] would love nothing more than to be placed with her maternal second cousin and return to the life she knew prior to being placed in foster care. The Department feels the time has come to focus on providing a safe, secure, and stable living environment for these children. The mother has not made significant progress towards having these children returned to her care despite several efforts and services aimed at helping her do just that. This does not mean she does not love her children; she simply is not in a position to care for them. The Department would like the Court to take the steps to move forward with developing a permanent plan for these children." Those steps were terminating reunification services to petitioner, and setting a hearing pursuant to Welfare and Institutions Code section 366.26.
The 12-month review was conducted on September 30, 2010. Tonette Minnis, the children's social worker since November 2009, testified concerning the basis for her conclusions in her 12-month review report. She testified that since the reunification risk assessment team met, petitioner had stopped her visits with the children, discontinued contact with the social worker who supervised those visits, and ceased providing documentation about attendance at AA/NA and substance abuse treatment meetings, even though petitioner told the team that "she would continue to participate, continue to visit" despite its negative recommendation. She testified on cross-examination by petitioner that in Solano County "people are often required to attend the wait list group" for treatment, "for weeks, even months until they can actually get into a substance abuse program." Ms. Minnis testified on cross-examination by the minors' attorney that petitioner had not attended the "wait list" group--which is designed to assist persons in the group to maintain sobriety until they are admitted to a treatment program--since before Ms. Minnis prepared the six-month report.
Concerning the planned September 10 psychological evaluation of petitioner mentioned in her report--which Ms. Minnis arranged and which petitioner had to undergo to get back into the "wait list" group--Ms. Minnis testified that she went to petitioner's residence, having offered to drive her to the evaluation, but petitioner was not there. Petitioner also told her that "she does not see any deficiencies in her ability to parent her children" and "there is absolutely no reason why the children should not be returned to her immediately." Although petitioner told Ms. Minnis that the minors could live with her, petitioner and other relatives also told Ms. Minnis "there is some instability in terms of the aunt threatening to kick her [petitioner] out on different occasions because of arguments or conflict." It was this possibility that led Ms. Minnis to find the shelters in which petitioner might live and which could assist petitioner to "establish independent housing."
Ms. Minnis further testified that if petitioner "continues at her current pace of involvement with her case plan," even if granted additional reunification services that would expire in January 2011, Ms. Minnis believed there was no probability petitioner could reunify with her children by that time. Moreover, the children have been out of petitioner's care for such an extended period that it would be difficult for petitioner to re-establish a relationship with them.
Petitioner testified that the reason she missed so many meetings with the "wait list" group check-ins was a combination of having to make a three-hour bus trips--on three different buses--plus recently assuming care of three of her grandchildren since June. Ms. Minnis testified that she provided the bus passes, and never received a complaint from petitioner about these transportation arrangements.
The court then heard brief remarks from counsel. Counsel for the Department argued that "I believe nothing has changed between the April hearing and today's hearing. I believe the mother's been given ample opportunities to engage in services, and based on her testimony here I think there appears to be an expectation that the services should be hand delivered to her. I think it's her responsibility to demonstrate that she's willing to make lifestyle changes so that she can care for these two children who are nine and eight years old, who have not lived with her for a huge part of their lives, and that she can meet their needs. . . . [¶] . . . [¶] So given all of the things that have gone on, I would take the position on behalf of the Department that the mother has not demonstrated a willingness to follow through on services so that she can do what she needs to do in order to care for these children."
Counsel for the minors concurred that the Department had "offered reasonable services to the mother, not only for this past few months but for the entire time of the case. And . . . the mother has simply not stepped up to the plate."
Counsel for petitioner argued that "the Department's lack of a sincere desire" was evidenced by the fact that "providing bus passes" to get to her "wait list" group visits "is not enough." "[S]ignificantly more visitation should have been provided to her in order to allow her to establish a relationship with these children." Petitioner "was only referred to this wait list group, which while perhaps preparing her for treatment is not treatment." "And I would argue that referral to one, perhaps two homeless shelters . . . is not sufficient in terms of helping her to obtain an alternative place to live with her children."
The juvenile court then ruled that it "is persuaded by the position of Department, and that is that [reunification] services should no longer be offered. The court can and does find by clear and convincing evidence that services have been provided or offered . . . to [petitioner]. And the court cannot by any stretch of good conscience make a finding that there is a substantial probability that these two [children] would be placed with their mom within the next four months," i.e., the remaining statutory time that reunification services could be provided.
Petitioner contends the record does not contain substantial evidence to support two of the juvenile court's findings. Because both of these arguments involve the subject of reunification services, we address them together.
Petitioner first attacks the finding that the Department provided reasonable reunification services. She argues: "Although the court in this case found that reasonable services had been provided, that finding is not supported by substantial evidence. The social worker did not provide reasonable services in that, while she knew that mother lived in Vacaville . . . and that public transportation in Solano County was lacking, she scheduled nearly all of mother's services in Fairfield . . . . Further, although substance abuse was identified as an area of concern, mother was never actually provided with actual substance abuse treatment services, but instead was referred to a 'wait list' group while she waited for a space in a treatment program. Finally, while securing stable housing was also an identified area of concern, when mother requested assistance with finding alternative housing, the social worker merely provided referrals to two local homeless shelters, at least one of which was full."
Petitioner correctly recognizes that a juvenile court's finding that a parent was offered adequate reunification services will be upheld if supported by substantial evidence. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) "The issue of the sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]." (In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.)
Only reasonable, not ideal, services are required. (In re Jasmon O. (1994) 8 Cal.4th 398, 425.) The adequacy of services is to be determined in light of the unique circumstances of each case. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011; Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) "[I]n reviewing the reasonableness of the reunification services provided by the Department, we must also recognize that in most cases more services might have been provided, and the services which are provided are often imperfect. The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
"Reunification services are voluntary, and cannot be forced on an unwilling or indifferent parent." (In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.) "The requirement that reunification services be made available to help a parent overcome those problems which led to the dependency . . . is not a requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions. A parent whose children have been adjudged dependents of the juvenile court is on notice of the conduct requiring such state intervention." (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.) The parent must communicate with the agency and participate in that process. (In re Raymond R. (1994) 26 Cal.App.4th 436, 441.)
It is clear from the record that petitioner's challenge cannot succeed. Judging from the tenor of the argument in her petition, we can see why counsel for the Department characterized petitioner's position at the 12-month hearing as "there appears to be an expectation that the services should be hand delivered to her." Ms. Minnis explained the shortage of resources and facilities in Solano County. One does not simply walk up to a shelter or a drug treatment and gain instant admittance. The "wait list" group was an essential precondition to qualifying, but petitioner's impatience seems to have ended whatever utility it might have had for her. Even after she had been dropped from the list for her irregular attendance at the meetings, and been told that a psychological evaluation was needed to get back on the list, petitioner left Ms. Minnis waiting at the curb.
The matter of Vacaville versus Fairchild is a bit of a red herring. There is nothing in the record that petitioner ever complained to the Department or sought an accommodation. Ms. Minnis advised the court in her 12-month status review report that she secured appointments for petitioner at the Vacaville Family Resource Center in May and June: but petitioner failed to appear for either appointment. Even then, the door was not closed; petitioner was advised to contact the Center "should she wish to engage in services in the future." Transportation difficulties cannot explain petitioner's inconsistency in submitting to the periodic drug tests, because the testing facility is in Vacaville, where she lives. And petitioner was provided with AA/NA meetings in Vacaville, but she admitted she did not go to any of them.
Petitioner's argument implicitly accepts the premise that her case plan was sound. It is not the goals, but only the execution of the details that draws her ire. Petitioner identifies faults which might establish that the services offered were not ideal, but that is not the test. (In re Jasmon O., supra, 8 Cal.4th 398, 425; Elijah R. v. Superior Court, supra, 66 Cal.App.4th 965, 969.) We conclude that there is substantial evidence to support the juvenile court's finding that the reunification services offered to petitioner by the Department were reasonable.
Petitioner next contends substantial evidence is lacking to support the juvenile court's finding that there was not a substantial probability that the family could be reunified if additional services were provided.
Because the minors here were over the age of three, reunification services would ordinarily be limited to 12 months, with six additional months in exceptional circumstances "if it can be shown . . . that [the minor(s)] will be returned and safely maintained within the extended time period." (Welf. & Inst. Code, § 361.5, subd. (a)(1)(A), (a)(3); see In re Derrick S. (2007) 156 Cal.App.4th 436, 444-445.) "[I]n order to find a substantial probability that the child will be returned to the physical custody of his or her parent . . . and safely maintained in the home within the extended period of time, the court shall be required to find all of the following: [¶] (A) That the parent . . . has consistently and regularly contacted and visited with the child. [¶] (B) That the parent . . . has made significant progress in resolving problems that led to the child's removal from the home. [¶] (C) The parent . . . has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (Welf. & Inst. Code, § 366.21, subd. (g)(1); accord, Cal. Rules of Court, rule 5.715(b)(i).)
Petitioner asserts she "meets all of these requirements." On the contrary, there is abundant evidence showing that she satisfied none of the criteria. Whatever the extenuating circumstances that might exist regarding petitioner's transportation difficulties, the record supports the juvenile court's concluding that petitioner's attendance was, at best, erratic, and thus not "consistent and regular." There is certainly a sound basis for the court agreeing with Ms. Minnis's repeated characterization of petitioner's progress as "minimal," and thus not "significant." And, in light of the preceding discussion, there was obviously an amplitude of evidence that petitioner had not "demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the . . . safety, protection, physical and emotional well-being, and special needs" of E.D. and D.C.
Ms. Minnis was clear in her last report that petitioner's "risk level" had increased due to her failure to follow through with the services already provided, and that "There is no substantial probability of her children's return to her care should services be continued." Ms. Minnis repeated this conclusion in her testimony. Petitioner's progress with services was described as "minimal" in both the six-month and the 12-month status review reports. Ms. Minnis' opinion and conclusions, when accepted by the court, constitute substantial evidence. (Evid. Code, § 411.) Petitioner's unwillingness to accept her present inability to have custody restored to her would naturally factor into Ms. Minnis's characterization of the risk level increasing.
Petitioner had already had 14 of the statutory maximum 18 months of services. The juvenile court was within its authority as the trier of fact to make a realistic evaluation of the likelihood of petitioner's anticipated success in the light of her extensive history of disappointing such hopes. (See In re William B. (2008) 163 Cal.App.4th 1220, 1228, 1230; In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) It could therefore conclude that petitioner was unlikely to achieve in the next four months what she had failed to achieve in the past 14.
The petition is denied on the merits. (Cal. Rules of Court, rule 8.452(h)(1).) This decision is final as to this court forthwith. (Id., rule 8.490(b)(1).)
We concur: Kline, P.J. Haerle, J.
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