Opinion
D072512
10-02-2017
Elizabeth Thornton, Berta Atkinson and Adam Reed for Petitioner. Thomas E. Montgomery, County Counsel, John E. Philips and Lisa Maldonado, Deputies County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Diego County Super. Ct. No. J517698) PROCEEDING for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Marion F. Gaston, Judge. Petition denied. Elizabeth Thornton, Berta Atkinson and Adam Reed for Petitioner. Thomas E. Montgomery, County Counsel, John E. Philips and Lisa Maldonado, Deputies County Counsel, for Real Party in Interest.
B. M., the mother of G.M., seeks writ review of a juvenile court order terminating reunification services in the dependency case of her son and setting a Welfare and Institutions Code section 366.26 hearing. Brenda contends the evidence was insufficient to support the court's finding that placing G.M. with her would create a substantial risk of detriment to G.M.'s safety, protection, or physical or emotional well-being, and therefore that the court erred when it failed to return G.M. to her custody and instead set a section 366.26 hearing. We deny the petition.
Subsequent statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2015, the San Diego County Health and Human Services Agency (the Agency) filed a petition on behalf of G.M. (who was then six years old) alleging (under section 300, subdivisions (b)) that there was a substantial probability he would suffer serious physical harm or illness because B.M. failed to provide a suitable home because (1) a drug pipe and THC oil were accessible to G.M. in the home, (2) B.M. had an extensive substance abuse history which had resulted in G.M.'s removal from B.M.'s custody in 2009 and again in 2014, and (3) B.M. exhibited erratic behavior on December 8, 2015. The court sustained the petition on the section 300, subdivision (b), count.
The detention report indicated that on December 8, 2015, a probation officer conducting a search of B.M.'s home found her and G.M. in a back bedroom of her home. B.M. had a meth pipe, meth, and "honey oil" in her possession or vicinity. She admitted to being under the influence, but refused a sample for blood testing. She was arrested for a probation violation and behaved erratically at the detention facility.
The petition also alleged, under section 300, subdivision (g), G.M. had been left without any provision for support because B.M. had been incarcerated and was unable to arrange for G.M.'s care and the whereabouts of his father was unknown. At the hearing on the petition, after the court sustained the petition on the section 300, subdivision (b), count, the court granted Agency's motion to strike the section 300, subdivision (g), count.
This proceeding was the third dependency case triggered by B.M.'s involvement with drugs. In the first matter in late 2009, G.M. was just nine months old when he was removed from B.M.'s custody after she was arrested while driving under the influence of methamphetamine while G.M. was riding in the back seat of her car. In the 2009 case, B.M.'s reunification services were terminated but G.M. was ultimately reunified with his father at the eighteen-month review date in 2011. In the second matter, occurring in the summer of 2014 when G.M. was again in B.M.'s care after his father was arrested, B.M. was arrested for drug use and possession in violation of her probation and G.M. was ultimately placed in foster care. However, after B.M. successfully completed services (including in-patient drug treatment and parenting classes) in 2014, she was able to reunify with G.M. A year later, the present proceeding was commenced.
The First 12-Month Period
In the present proceeding, the court ordered a court-appointed special advocate (CASA) for G.M. and later sustained the petition at the jurisdictional hearing. The court considered the evidence submitted in connection with the dispositional hearing and ultimately ordered reunification services be provided. G.M. was placed in licensed foster care and reunification services were ordered for B.M., which included parenting education and in-patient substance abuse treatment. The court set a six-month review hearing for October 18, 2016.
The various addenda reports indicated B.M. remained incarcerated until February 9, 2016, but when she was released B.M. contacted the social worker to begin "whatever services I need to do" to reunify with G.M. However, it appears B.M.'s next contact with the Agency was in mid-April, 2016, when the social worker learned B.M. was in a detention facility because B.M. had rearrested after again using drugs. As the social worker noted in her April 21, 2016 addendum report: "[B.M.] was released from police custody on February 9, 2016[,] and has since not been able to connect with the social worker to receive information regarding the services she needs to enroll in. Since [B.M.] release she has not made consistent contact with the Agency and has therefore not been enrolled or participating in any services. [B.M.] has also disclosed to PSW Cormier that she had been using crystal meth consistently since her release from police and custody and is back in jail . . . . [B.M.] continues to demonstrate poor judgment, decision making, and an inability to stay clean and sober on her own. Additionally, [B.M.] has not been keeping consistent contact with [ G.M.] since her release in February."
When the initial six-month review hearing was ultimately conducted in December 2016, G.M. was still in his foster care placement and was enjoying unsupervised visits with B.M. B.M. had been released from custody in May 2016 and entered an in-patient drug treatment program, and was doing well in treatment and was in compliance with the terms of her probation. In an addendum report dated November 29, 2016, the social worker reported B.M. had completed parenting education, and had tested clean while living in the in-patient treatment facility. The addendum also noted B.M. had been released from the in-patient treatment facility on October 17, 2016, had commenced an after-care program, and had not failed any additional drug testing after her release. The reports indicated B.M. was doing well in her recovery, was having positive visits with G.M., and was progressing towards reunifying with him. On December 5, 2016, the court concluded B.M. had made "moderate progress" and extended reunification services to the 12-month permanency date (January 11, 2017), and directed B.M. to continue to comply with her case plan which included maintaining her sobriety and continuing with substance abuse treatment.
At the 12-month permanency hearing the Agency recommended, and the CASA concurred, that reunification services be extended to the 18-month hearing date. The Agency's report ". . . acknowledges and congratulates [B.M.] for her continued success with her reunification services and maintaining her sobriety for over the past 6 months, however; this is a high-risk case as the child . . . has been removed from his mother 3 times, and the Agency would like to see [B.M.] maintain her sobriety and demonstrate that she can parent [G.M.] safely for a longer period of time." The juvenile court concluded that, although B.M. had made significant progress on her case plan, return on G.M. to B.M.'s custody at that time still posed a substantial risk of detriment to G.M. However, because the court concluded B.M. progress indicated there was a substantial probability G.M. could be returned to her custody by the 18-month date, the court extended reunification services to the 18-month date and set a review hearing for June 7, 2017.
The Final 6 Months
The report filed for the 18-month review hearing by the Agency opined that B.M. was "nowhere ready" to provide a stable environment for G.M. The report noted the social worker had been unable to even contact B.M. during April 2017 and that B.M. lacked any stable housing that could be verified as suitable by the social worker. The report also noted B.M. (1) had missed some of G.M.'s therapy appointments and had appeared at other of the appointments "in her PJ's", (2) had been up to an hour late picking him up from school on two occasions and had missed G.M.'s "IEP" meeting at school, (3) was not attending her own therapy and was about to be discharged, and (4) had been discharged from her aftercare program in February and had not followed up to obtain a referral for substance abuse aftercare. B.M. told the social worker she had been "overwhelmed." The social worker also noted that, when B.M. informed her in mid-May that B.M. had still not enrolled in an aftercare program, the social worker asked B.M. to submit to a drug test but B.M. did not show for that test, claiming she had been stuck in traffic. There were concerns reported to the social worker that B.M. had resumed using drugs as her behavior appeared "more erratic, or more hyper." The report concluded B.M.'s lack of compliance with her case plan, and her instability, militated in favor of leaving G.M. in his current placement and terminating services to B.M.
The report filed by the CASA agreed, stating "this is [G.M.'s] third dependency, and after 18 months of services, [B.M.] is still not able to have [G.M.] in her care [because he] needs permanency and stability . . . and I do not believe [B.M.] has shown that she can provide stability at this point." The CASA reported G.M. was having behavioral issues and his therapist expressed concerns B.M. had brought him to therapy while she was under the influence. The CASA echoed the concerns expressed by school officials about B.M. handling of G.M.'s schooling needs, since B.M. was unresponsive when filling out forms, was often very late picking him up from school (requiring him to await her arrival at a nearby gas station), and she skipped his scheduled "IEP" meetings. The CASA noted B.M. was not consistently visiting G.M. (apart from when she transported him home from school) and G.M.'s caretaker "cannot remember the last time [G.M.] spent the night with [B.M.]". The CASA opined that, although it was clear G.M. wanted to be with B.M., "I do not feel [G.M.] can be safely returned to [B.M.'s] care" and therefore recommended, in light of the constraints posed by the 18-month review period, that reunification services be terminated and a hearing on permanent planning be set.
B.M. set the matter for trial and a contested 18-month review hearing (the section 366.22 hearing) was set for July 13, 2017. A July 5, 2017, addendum report provided the additional information that B.M. had a negative drug test on June 8, 2017. However, that addendum also noted that, while B.M. was given referrals to both Parent Care and drug court, she attended only one drug court meeting (on June 20, 2017) and then failed to report on June 24, 2017. She also failed to contact Parent Care as directed. B.M. also had no contact with G.M. or his caregiver for the two weeks prior to the pre-trial status conference and was not returning their calls.
At the contested section 366.22 hearing, B.M. was not present when the case was called. Her counsel requested a continuance and stated that he did not know why she was not present. The court denied the request, noting it was unfortunate but not surprising (in light of the information in the recent Agency reports) B.M. was not present, but it did agree to hear the other matters on calendar in order to give the mother more time to arrive. B.M. eventually appeared (about 30 minutes late) during the beginning of the social workers' testimony.
Social worker Lidia Briano, who authored the reports, testified she had advised B.M. in March of the need to be enrolled in aftercare for substance abuse and, the day before trial, B.M. left a phone message stating she was at "Parent Care", an aftercare program. Briano had also discussed the importance of securing suitable housing which could be assessed, and of the options available to B.M. and the help the Agency could provide, but B.M. had not provided the social worker with an address for the social worker to check out. In addition to the "big issue" of housing, the social worker expressed concerns that B.M. seemed unable to help insure G.M. obtained the services he needed: B.M. had stopped taking G.M. to therapy (requiring the caretaker to undertake that task) over the prior month, she had not brought G.M. back to the caretaker's home for a meeting of providers scheduled at the caretaker's home, and B.M. had no contact with the four or five people currently providing services to G.M.
B.M.'s testimony confirmed that, the day before trial, she attended the "intake" at Parent Care but had not yet started classes there. She also claimed she'd been attending NA meetings on a regular basis but she had left the records confirming her attendance in her car.
B.M. testified she had been "clean" for over a year, and attended NA meetings and had just enrolled in Parent Care because "I have to prove myself." She was involved with his care and schooling, but was unhappy with G.M.'s therapist. She was working, had a support system, and was living with friends. However, she admitted her roommates were undocumented and was worried they could not be fingerprinted. She admitted she missed some visits between March and July because she felt alone and on "shaky grounds" because her caseworker and G.M.'s foster parents had changed and they had been important to her.
The court acknowledged B.M. and G.M. loved one another but also recognized that, in light of G.M.'s age and his need for permanence and stability which the constraints a section 366.22 hearing embodies, a parent who is unready to parent the child cannot be provided services indefinitely and B.M. was not equipped to provide a stable home for the child because she "doesn't know how to do it yet." The court specifically "want[ed] to make sure that the record is clear that the court does not view this as a housing case. If the only issue were a lack of housing, then there may be an alternative . . . . However, what we have is, unfortunately, a pattern of instability and the pattern of unreliability that's not good for [G.M.] . . . and that is separate from the housing." The court cited B.M.'s unreliability in her contacts with G.M.'s school (attending meetings and filling out school documents), picking up him up after school, and not taking full advantage of overnight or other visitation opportunities. The court also noted that, "even with the knowledge that we were in the final stages of this case" and of the consequences surrounding the critical section 366.22 hearing, B.M. lost contact with the Agency for a month, missed drug tests, and did not pursue aftercare until the day before the section 366.22 hearing. Indeed, "for about two weeks, [B.M.] disappeared from the life of [ G.M.] without explanation." The court further noted its concern that B.M. had stopped taking G.M. to therapy, which evidenced a lack of understanding of the importance and value of his therapy. Finally, the court noted B.M. was late in arriving for the trial, and seemed fidgety and rambling "beyond the usual nervousness that we see here," and such behavior (whether caused by a mental health issue or a substance abuse issue) did "not inspire confidence." These considerations, concluded the court, led it to conclude reasonable services had been provided but B.M. had made minimal progress toward alleviating the causes which led to the dependency proceeding, and that return of G.M. would create a substantial risk of detriment to his physical and emotional well-being. Accordingly, the court terminated reunification services and set a section 366.26 hearing for November 7, 2017.
LEGAL STANDARDS
Section 366.22 provides a permanency review hearing "shall occur within 18 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian" (§ 366.22, subd. (a)) and, absent extraordinary circumstances (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 295), the court "shall order the return of the child to the physical custody of his or her parent...unless the court finds, by a preponderance of the evidence, that the return . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.22, subd. (a).) If the court does not order the return of the child to parental custody, the court "terminates reunification services and sets a hearing for the selection and implementation of a permanent plan pursuant to section 366.26. [Citations.] 'Absent extraordinary circumstances, the 18-month review hearing constitutes a critical juncture at which "the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children." ' " (Bridget A. v. Superior Court, at pp. 306-307.)
At a hearing under section 366.22, "compliance with the reunification plan need not be the sole concern of the court, but it must be an indicium of progress toward family preservation." (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139-1140.) The decision of ". . . whether to return a dependent child to parental custody is not governed 'solely by whether the parent has corrected the problem that required court intervention.' " (Id. at p. 1140, italics added, quoting In re Joseph B. (1996) 42 Cal.App.4th 890, 901.) As the Joseph B. court observed: "Construed with reference to section 300 and the entire system of dependency statutes [citation], the language of sections 366.21 and 366.22 does not state or imply that, in order to keep a minor out of parental custody, the serious risk of detriment posed by returning the minor to his or her parent must involve the same type of harm which formed the basis for the dependency and the removal of the minor from parental custody. . . . [¶] [¶] . . . To the contrary, the fact these statutes contain a standard—'substantial risk of detriment to the physical or emotional well-being of the minor'—which differs from the standards required by section 300 to establish juvenile court jurisdiction strongly implies the Legislature did not intend to restrict the showing of detriment at a review hearing to the type of harm which necessitated dependency intervention. [Citation.] [¶] By authorizing the continued removal of a child from parental custody based on the risk of either physical detriment or emotional detriment, sections 366.21 and 366.22 focus on the child's well-being at the time of the review hearing rather than on the initial basis for juvenile court intervention. [Citation.] Thus, while the court must consider the extent the parent has cooperated with the services provided and the efforts the parent has made to correct the problems which gave rise to the dependency (§ 366.22, subd. (a)), the decision whether to return the child to parental custody depends on the effect that action would have on the physical or emotional well-being of the child." (In re Joseph B., at pp. 898-899.)
On appeal, we apply the substantial evidence standard of review, and view the record in the light most favorable to the court's order. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) We must uphold an order "supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) We "are without the power to reweigh conflicting evidence and alter a dependency court determination." (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) The parent challenging the order has the burden of showing the order is not supported by substantial evidence. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
ANALYSIS
B.M. challenges the order contending there was no substantial evidence that returning G.M. to her care carried a substantial risk of detriment to his physical or emotional well-being. B.M notes she completed an in-patient treatment program and had provided "clean" drug tests during that in-patient program (and for some period after her October 2016 discharge from that program), and also provided a "clean" test in early June of 2017. She also had unsupervised visitation with G.M., as well as twice-weekly overnight visits. These factors, she asserts, demonstrated there was no substantial risk of detriment to G.M.'s physical or emotional if he were returned to her care.
B.M. also appears to suggest the court had no significant concerns about risks posed to G.M. if he was returned to her custody because the court (1) continued to allow her unsupervised visits and (2) gave the Agency discretion (if concurred in by G.M.'s counsel) to permit a 60-day "trial visit." However, the visits were conditioned on her being sober (and overnight visits were to take place in the home of the caregiver) suggesting the court remained concerned about protecting G.M. Moreover, the court granted the Agency discretion to permit a 60-day "trial visit" (if concurred in by G.M.'s counsel) during the four-month period between the section 366.22 hearing and the scheduled section 366.26 hearing. The grant of flexibility to the Agency to be nimble enough to respond to new information or progress by B.M. during that four-month period that might alleviate concerns over B.M.'s current ability to safely parent is not inconsistent with a determination that, as of the date of the section 366.22 hearing, returning him to B.M.'s care posed a substantial risk of detriment to him.
While B.M. made some progress, the court could weigh the progress she made while living in the structured environment of an in-patient facility against the regression she exhibited in the months following her discharge from that facility: she did not obtain a housing arrangement which the Agency was able to assess; she dropped entirely out of contact with the Agency for the month of April and then missed a requested drug test when she resumed contact in May and (though required to participate in substance abuse services) had not been attending any aftercare program since the end of February, despite the social workers warnings, raising concerns about relapse; and she dropped all contact with G.M. or his caregiver for a two-week period in June 2017. During this same period, B.M. exhibited additional unreliability in attending to G.M.'s educational and therapy needs: his school noted B.M. missed meetings, did not fill out school documents, and was often very late in picking up him up after school; and B.M. was remiss in attending to his therapy needs by not taking G.M. to his therapy sessions (requiring the caretaker to undertake that task), not bringing him to a meeting of providers, and having no contact with the numerous people providing services to him. This constellation of concerns led both the Agency and the CASA to opine G.M. could not safely be returned to B.M. care, and there is substantial evidence to support the court's finding that return of G.M. to her care posed a substantial risk of detriment to his physical or emotional well-being.
B.M. also complains in this writ proceeding that section 317 requires counsel appointed for minors in dependency proceedings to interview children over four years old "to determine the child's wishes and . . . advise the court of the child's wishes." (§ 317, subd. (e)(2).) B.M. claims the CASA never advised the court of G.M.'s wishes. However, the CASA's report filed in connection with the section 366.22 hearing did state "[ G.M.] loves [B.M.] and wants to be with her," and B.M. cites nothing to suggest this information was inadequate to satisfy the statutory mandate.
B.M. asserts there was no substantial evidence to support the order because she "completed her service plan" and "met many objectives of her case plan" and the only objective she had not met was the housing requirement she the only objective, which is the court in In re David B. (2017) 123 Cal.App.4th 768 (David B.) held was insufficient support an order terminating services and setting a section 366.26 hearing. However, B.M.'s argument is unpersuasive because neither her evidentiary predicate nor her legal authority is persuasive. As to her evidentiary predicate, while B.M. satisfied the "service plan" set out in her first 12-month case plan, there was evidence to support the conclusion that numerous elements of the updated service plan (put in place for the final six-month period) were not accomplished: she was required to "drug test on demand" but missed at least one drug test in May and was out of contact for the entire month of April. She was required to "continue to participate in drug treatment recovery" but had dropped out of aftercare programs for the last five months leading up to the section 366.22 hearing. She was required to "meet [G.M.'s] physical, emotional, medical and educational needs", but she dropped all contact with G.M. or his caregiver for a two-week period in June 2017, missed school meetings, did not fill out school documents, and was late in picking up him up after school, and was inconsistent or uninvolved in attending to G.M.'s therapy needs. Thus, the court's order was not premised solely on inadequate housing, but was instead based on the constellation of concerns raised by B.M.'s noncompliance with the reunification requirements.
Nor does B.M.'s legal argument, which relies principally on David B., supra, 123 Cal.App.4th 768, persuade us the order entered here must be reversed. In David B., the order terminating services at the 18-month hearing was primarily based on the father's lack of adequate housing to allow the return of his daughter to his custody. (Id. at p. 787.) The David B. court reversed the order for two primary reasons. First, that court concluded the reunification services addressing father's alleged housing problems were inadequate because the Agency merely gave the father a list of housing referrals, never followed up to see what father had done with them, and the social worker apparently gave no indication to father that the residence which father had secured in order to complete reunification was considered unsuitable by the social worker. (Id. at pp. 793-795.) In this case, B.M. makes no similar claim of either "lack of adequate reunification services" or that she was lulled into a false sense of security by the Agency. Second, the David B. court concluded "the record reflects, quite clearly, that the court deferred to [the agency's] 'discretion' in determining that [daughter] could not be returned to [father's] custody while he continued to reside in the same household with this brother-in-law" and "[t]hat was improper." (Id. at p. 796.) The David B. court noted it was the agency's burden to show the conclusions it reached were correct, and that "[t]he final, and actual, judgment on the issue belongs to the court, not to [the agency]. And that judgment must be exercised independently, and in accordance with the proper standards of proof trial." (Id. at pp. 796-797.) No similar defect appears here: the court articulated the evidence upon which it based its determination, and did not merely defer to the Agency's determination.
The other cases cited by B.M. are equally inapposite. For example, although the court In re Danielle M. (1989) 215 Cal.App.3d 1267 did reject the notion a finding of detriment can be upheld "simply because the parent is unemployed and shares a home with [another]," that case reversed an order denying the non-offending father custody at the dispositional hearing where that was the only evidence the home was unsuitable and the Agency itself conceded at that hearing there had been " 'no convincing or even a scintilla of evidence that the father is in any possible way a danger to these minors.' " (Id. at pp. 1270-1271.) --------
We conclude substantial evidence supports the order entered at the section 366.22 hearing, and therefore deny B.M.'s petition.
DISPOSITION
B.M.'s petition for extraordinary relief is denied.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.