Opinion
G056014
05-29-2018
ALMA G., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
Sharon Petrosino, Public Defender, Kenneth Norelli, Assistant Public Defender and Brian Okamoto, Deputy Public Defender for Petitioner. No appearance for Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputies County Counsel for Real Party in Interest Orange County Social Services Agency. Law Office of Harold LaFlamme and Camden Polischuk for Real Parties in Interest the Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 16DP0327 & 16DP0328) OPINION Original proceedings; petition for extraordinary writ to challenge an order of the Superior Court of Orange County, Katherine Lewis, Judge. Petition dismissed. Sharon Petrosino, Public Defender, Kenneth Norelli, Assistant Public Defender and Brian Okamoto, Deputy Public Defender for Petitioner. No appearance for Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputies County Counsel for Real Party in Interest Orange County Social Services Agency. Law Office of Harold LaFlamme and Camden Polischuk for Real Parties in Interest the Minors.
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INTRODUCTION
Alma G., the mother of minors Juan Pablo C. and Mariela Ruby C., has petitioned for reversal of an order of the juvenile court terminating her reunification services. Orange County Social Services Agency (SSA) obtained custody of Juan and Ruby after Alma left their younger sister alone in the bathtub. The sister drowned.
Mariela goes by her middle name, Ruby, and will be referred to by this name throughout.
The juvenile court terminated Alma's services at a point just shy of the 24-month maximum allowed by the Welfare and Institutions Code for dependent children. Alma then petitioned this court to challenge the order, but the notice of intent to file a petition was filed late. Since Alma was unable to present facts amounting to an exceptional showing of good cause for this tardiness, we must dismiss the petition. But even if we had reviewed the petition on the merits, Alma would have come up short.
All further statutory references are to the Welfare and Institutions Code.
FACTS
SSA petitioned the family court for a protective custody warrant for Juan (age 11) and Ruby (age 4) after Alma left their 11-month-old sister, Diana, in the bathtub alone. On April 2, 2016, Diana was found floating face down in the tub, and she was unresponsive when rescued. She was hospitalized on life support and subsequently died, on April 7. Alma told inconsistent stories, contradicted by others in the house at the time, regarding the circumstances surrounding the incident and how long she had left Diana by herself in the tub.
The children's father, Marco C., lived in Mexico. He had only telephone contact with the children.
Juan and Ruby remained at home with Alma in Anaheim immediately after Diana's death. When an autopsy revealed that Diana had a skull fracture, however, both children were removed, in June 2016. There were varying opinions about the nature of the fracture (one-sided or bilateral) and whether it occurred in connection with the drowning or prior to it. This question was not resolved for several months; in the meantime, SSA advised against returning Juan and Ruby to Alma.
SSA was also concerned Alma might flee to Mexico to avoid the concurrent criminal investigation into Diana's death and take the two children will her. The children were born in Mexico, and their father resided there.
Alma was pregnant at the time of Diana's death, and the father of this child, Gustavo M., lived in San Bernardino County. In May 2016, Alma moved to San Bernardino County to live with Gustavo. SSA searched for services for her in this area, a task complicated by the necessity to provide these services in Spanish.
Although reunification services for Alma could have been bypassed, pursuant to section 361.5, subdivision (b)(4) [death of another child], SSA determined that providing them would be in Juan's and Ruby's best interest.
SSA and Alma began discussing safe housing for the children in June 2016. At that time, Alma was told that she could rent a room or an apartment, but the housing had to be safe, and the children had to have their own beds. If she rented a room, SSA would need to run clearances on the other residents.
Alma gave birth to a daughter, Arely, in mid-September 2016. To avoid Arely's detention, Alma relinquished her rights to legal and physical custody to Gustavo. As of October, Alma had not yet begun counseling or parenting classes, and she did not have a job or a place to live where the children could be with her.
Alma began working in November. As of mid-December, she still had not informed SSA of her mailing address.
The court began the jurisdictional hearing on December 6, 2016. On December 16, Alma and Marco submitted, by stipulation, on an amended petition - one that struck all allegations of harm, abuse, or failure to protect except for those under section 300, subdivision (f), cause of another child's death. The amended petition incorporated allegations that Diana's death had been ruled accidental and that her skull fracture was consistent with a fall in the bathtub. The court assumed jurisdiction and approved placement and visitation, with Alma to receive liberal unmonitored visits. The court warned Alma that she had one year to regain custody of Juan and Ruby, to avoid possible termination of her parental rights.
As of December 2016, Alma had no mailing address of her own and was using Gustavo's address for communications from SSA. Alma was never able to find suitable housing in the San Bernardino area. She rejected the idea of returning to Orange County to live. Toward the end of the reunification period, she told the social worker she would find suitable housing after the children were returned to her. SSA declined to negotiate the point.
When Alma finally began services, they did not go well. She insisted on doing things "her way," demanding a completion certificate even though she had not completed a course, and telling different stories to different service providers. She was "all about the numbers," "cut[ting] corners," and "going through the motions" in an effort to simply finish her programs. She was also not cooperating with her counselor. As of early February 2017, Alma was insisting that she had completed her programs.
The six-month review hearing took place on June 13, 2017. The juvenile court found that Alma had made moderate progress on her case plan and extended reunification services for another six months. The 12-month permanency review hearing was set for November 30, 2017 (although the hearing did not start until the following January).
At the end of June 2017, Ruby and Juan were moved to a new foster home after allegations were made of sexual abuse of Ruby by another foster child. The children were ultimately placed in a foster home in Riverside.
Alma's counseling service provider continued to make negative reports about her participation in services. During an August 2017 telephone call with the social worker, the head of the services explained that Alma would ordinarily have been terminated from the program were it not for the social worker's diligence because Alma was not invested in learning and simply wanted to get her classes done. Alma "does not like any type of structure and that is part of the problem." The counselors nevertheless agreed to soldier on with her.
In October, Alma's counselor sent a report to SSA regarding Alma's parenting classes and counseling sessions in November and December 2016 and January 2017. She had completed three parenting classes and eight individual therapy sessions focusing on grief and loss. None of these was productive. Alma spent the therapy sessions refusing to talk and the parenting classes criticizing the other participants and checking her phone. Alma began attending therapy sessions again in October 2017. The service provider agreed to conduct individual parenting sessions after counseling, because Alma could not attend the group parenting classes.
The sessions were so unproductive the service provider refused to bill SSA for them because Alma got so little out of them.
Although SSA had recommended an additional 6 months of services for Alma in the November 2017 addendum report, by the time the 12-month review hearing actually got underway in January 2018, the recommendation had changed. SSA now recommended termination of services and the setting of a selection and implementation hearing.
At the end of January, Alma had a three-way conversation among herself, her therapist (who was in the room with her), and the social worker (on the telephone). The social worker discussed Ruby's fears of living with Gustavo (which had been floated as a possible solution to the housing problem) and of being spanked for talking to SSA. The social worker and the therapist both explained to Alma again that the case could not proceed to overnight visits because she had never told SSA where she lived. Without overnight visits, she would not regain custody of Juan and Ruby.
Ruby reportedly had nightmares after being told that she was going to live with Gustavo. --------
Ruby's court-appointed special advocate (CASA) confirmed that Ruby was becoming more and more unhappy about spending time with her mother and Gustavo. The CASA concluded, "Life for Ruby at her foster placement has been really good. She feels safe and happy. In contrast, her time spent with her mother is deteriorating."
At the end of January 2018, extremely disturbing reports surfaced about Alma and the children. The 12-month hearing was only a week away when the children's attorney learned for the first time that Alma had been pressuring Juan and Ruby not to speak truthfully to the social workers. She punished them when they told SSA anything negative about her. Both children said they were scared of Alma. Juan also revealed the stress he was feeling because he felt it was his responsibility to take care of Ruby and to act as a buffer between her and Alma.
At the conclusion of the 12-month review hearing on February 14, 2018, the court terminated Alma's services. The court noted that the statutory18 months of services had elapsed sometime during the previous November and that the case, at this point was only 3 months away from the 24-month maximum time for services. An 11th-hour suggestion of conjoint therapy for Alma and the children by Alma's therapist did not constitute a good reason to drag out the reunification period. The court found that Alma had been "subverting the case plan" and "requiring [the children] to hold everything inside and not tell anybody how they're actually feeling." Accordingly the court found it was not substantially probable that Juan and Ruby would be returned to Alma within six months, services had been reasonable, and the children were at risk of detriment if they were returned to Alma. The court terminated Alma's services and advised her that she had to file a notice of a writ petition to challenge the termination order within seven days. Alma's notice of intent to file writ petition was filed nine days later.
DISCUSSION
Alma's notice of intent to file a writ petition was untimely. Under California Rules of Court, rule 8.450(e)(4)(A), a parent who is present in court, as Alma was, when the court orders a hearing under section 366.26 has seven days from the date of the hearing to file a notice of intent. The superior court cannot extend this time, and the appellate court can extend it only for "an exceptional showing of good cause." (Cal. Rules of Court, rule 8.450(d).) Alma was present at the hearing on February 14, but her notice of intent to file a writ petition was not filed until February 23.
After SSA pointed out the missed deadline in the respondent's brief, Alma's counsel acknowledged that the notice had been filed too late. He then proceeded to blame this mistake on his secretary, stating that it was her first time filing a notice of intent by herself.
As any lawyer who has practiced for any length of time will tell you, blaming a secretary for a procedural foul-up is not only futile, it is also likely to provoke some stern remarks from the trial court about who is supposed to be in charge. There is no reason to suppose a reviewing court will be more impressed with this excuse. An attorney who knows his secretary is unaccustomed to handling these critical notices has all the more reason to closely supervise her activities. Such an abdication of responsibility on the lawyer's part certainly does not qualify as "an exceptional showing of good cause" for allowing an untimely filing. (See Jonathan M. v. Superior Court (1995) 39 Cal.App.4th 1826, 1830.)
But even if we were to review the petition on the merits, the outcome would be no different. We review the juvenile court's decision to terminate reunification services for substantial evidence (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020), and we resolve all conflicts in favor of the court's determinations. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.)
The court concluded that, at 21 months after the children had been physically removed from Alma's custody, it was not substantially probable that Juan and Ruby would be returned to Alma in three months. (See § 361.5, subd. (a)(4)(A)). The court can extend the time for reunification services to a maximum of 24 months only if (1) the extension of time is in the child's best interest and (2) there is a substantial probability that the child will be returned to the parent within the extended time. In light of Juan's and Ruby's fear of Alma and the disquieting facts about her interactions with them that surfaced just before the termination of services hearing, neither condition was met in this case.
Likewise, under section 366.21, subdivision (f)(1), at the 12-month mark, the court must return the child to the parent's custody "unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." Clearly that standard was met here. SSA presented substantial evidence of risk of detriment to Juan's and Ruby's emotional well-being, which, under pressure from Alma, had been hidden from SSA until just before the hearing.
Under both section 361.5 and section 366.21, the provision of reasonable services is an issue. (§§ 361.5, subs. (a)(4)(A); 366.21, subd. (f)(1)(A).) We would review the juvenile court's finding that SSA had provided reasonable services for substantial evidence. (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1158.) Substantial evidence supported the juvenile court's conclusions that SSA had provided reasonable services to Alma. Alma was offered parenting classes, individual counseling, and therapy. Despite being warned in November 2016 that the clock was ticking, she does not appear to have taken these services seriously until nearly a year later. As to the services she had attended in early 2017, the provider did not feel ethically justified in billing SSA for them because Alma had gotten so little out of them - a serious reflection upon her actual efforts. And the picture painted after Juan and Ruby broke down in early 2018 and confessed what was really happening in their lives indicated that Alma had a long way to go before they could safely be released to her. By that time, the clock had run out.
"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.) Furthermore, "'Reunification services are voluntary . . . and an unwilling or indifferent parent cannot be forced to comply with them. [Citations.]' [Citations.]" (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365.) In light of the way Alma balked at taking advantage of the services offered to her, she would be hard-pressed now to argue that they were unreasonable.
DISPOSITION
The petition is dismissed for the untimeliness of the notice of intent to file a writ petition.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.