Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy B. Williamsen, Commissioner. Stanislaus Super. Ct. No. 515470
Parent Advocates of Stanislaus, and Maria Elena Ramos, for Petitioner.
No appearance for Respondent.
John P. Doering, County Counsel, and Linda S. Macy, Deputy County Counsel, for Real Party in Interest.
Before Vartabedian, Acting P.J., Levy, J. and Dawson, J.
OPINION
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court’s order issued at a contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her son D.M. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner and her husband, D.M., Sr. (father) are the parents of two daughters, G. and D., and a son, D.M., the subject of this writ petition. Petitioner and father each have an extensive history of drug abuse.
D.M., Sr. also filed a writ petition in case No. F058195.
Dependency proceedings were initiated in August 2007 in Santa Clara County where the juvenile court adjudged then 14-year-old G. and 18-month-old D. dependents of the court after sustaining allegations of parental neglect including substance abuse. Petitioner and father were offered reunification services. At the same time, petitioner was participating in court-ordered drug treatment as a condition of Proposition 36 probation as a result of a 2004 conviction for being under the influence of a controlled substance.
Dependency proceedings were ongoing for G. and D. when, in February 2008, the Santa Clara Department of Children and Family Services (department) filed a non-detention dependency petition (§ 300) on behalf of then-newborn D.M., alleging petitioner and father had not made sufficient progress to return G. and D. to their custody thus placing D.M. at risk of harm. The juvenile court adjudged D.M. a dependent of the court, left him in parental custody and ordered family maintenance services. The family maintenance services plan required petitioner to participate in services which included parenting instruction and substance abuse treatment.
Over the next six months, G. and D. were returned home and the court continued family maintenance services. However, petitioner and father were struggling to complete their case plan requirements and petitioner was terminated from drug treatment in May 2008 for lack of participation.
In October 2008, then 15-year-old G. ran away from home, reportedly upset because petitioner and father were using drugs. Petitioner and father admitted relapsing and petitioner tested positive for methamphetamine. They each agreed to complete a drug assessment and drug test weekly but did not follow through.
In December 2008, petitioner and father moved the family to Modesto in Stanislaus County. Santa Clara County social worker, Judith Alvarez, made an unannounced visit to their home. Petitioner and father tested positive for methamphetamine. As a result, G., D. and D.M. were taken into protective custody and a supplemental petition (§ 387) was filed on their behalf alleging, in part, petitioner and father tested positive for methamphetamine.
In February 2009, the Santa Clara juvenile court found the allegations in the supplemental petition true, terminated reunification services for G. and D. and set a section 366.26 hearing to implement a permanent plan as to them. The court ordered reunification services for petitioner and father as to D.M. and set a March hearing to transfer the case to Stanislaus County.
Petitioner’s reunification plan required her to complete a basic parenting class, participate in individual therapy, submit to weekly random drug testing, attend weekly 12-step meetings and complete a drug assessment and inpatient drug treatment. All three children were placed with their maternal grandfather and his wife in Modesto.
During the transition of the case to Stanislaus County, Ms. Alvarez was responsible for arranging court-ordered services in Modesto. Petitioner and father told her there was a parenting class offered at Sierra Vista, which was within walking distance of their home and asked if they could attend. Ms. Alvarez approved the class for them and they began instruction in early February. She also referred petitioner for intensive outpatient drug treatment at Modesto Recovery Services. Petitioner participated in treatment from February 27 until March 19, 2009, when she was discharged for non-compliance.
In April 2009, the Stanislaus County juvenile court accepted D.M. and D.’s cases and the Santa Clara juvenile court retained jurisdiction over G.’s case. The Stanislaus County juvenile court (hereafter juvenile court) set an interim hearing for May 2009 and the Stanislaus County Community Services Agency (agency) referred petitioner to Camera Bonsack, behavioral health specialist, to assist petitioner in meeting both the requirements of probation and reunification.
On April 27, 2009, petitioner spoke to Ms. Bonsack by telephone and reported a long history of methamphetamine use but stated she had not used drugs since October 2008. When told she would have to drug test at her appointment, which was scheduled for the next day, petitioner admitted using drugs the day before. The following day, petitioner contacted Ms. Bonsack and said she could not make the appointment because she had a parenting class she could not miss. Her appointment was rescheduled for the first of May but she did not attend. On May 4, during a telephone contact, petitioner was again referred to Ms. Bonsack and advised to contact her as soon as possible.
On May 5, after two missed appointments, petitioner met with Ms. Bonsack for an assessment but refused to drug test. The next day, petitioner called Ms. Bonsack and stated she wanted to meet with her but had to go to court on her probation case. She told Ms. Bonsack that if tested, she would be “a little dirty.”
In its report for the interim hearing, the agency reported that the Sierra Vista parenting program was a community six-week program and was not designed for family reunification. Consequently, the agency sent Sierra Vista a referral for parenting instruction and individual counseling that would satisfy the case plan requirements.
In addition, the agency recommended the court adjudge D. and D.M. dependents and approve an updated reunification plan for D.M., which required petitioner and father to participate in individual counseling and a parenting program at Sierra Vista, complete a drug and alcohol assessment and follow all recommendations for treatment which may include residential treatment and submit to random substance abuse testing. The agency also recommended the court set a section 366.26 hearing as to D. for June 2009 and a six-month review hearing as to D.M.
In May 2009, at the interim review hearing, the juvenile court adjudged D.M. a dependent of the court, adopted the revised reunification plan and set the six-month review hearing for July 2009.
In June 2009, petitioner attended an intake assessment with Ms. Bonsack who concluded she needed residential treatment. Petitioner angrily refused residential treatment and blamed Ms. Bonsack for keeping her from her children. Later that month, petitioner was arrested in Santa Clara County for violating her probation. She was released in early July and ordered to complete outpatient treatment in Santa Clara County. Her probation officer explained that the court would have ordered her into residential treatment but that outpatient treatment was the most expeditious way of getting her into treatment without keeping her incarcerated.
By the time set for the six-month review hearing, petitioner and father had not started drug treatment and only attended a few parenting classes. In its six-month status review, the agency recommended the court terminate reunification for both parents as to D.M. and set a section 366.26 hearing to implement a permanent plan of adoption.
Petitioner and father challenged the agency’s recommendation to terminate reunification services at a contested six-month review hearing which was conducted in July 2009. At the hearing, they argued Ms. Alvarez did not provide them reasonable services after they moved to Modesto in December 2008. Testimony focused on Ms. Alvarez’s provision of parenting instruction and drug treatment since Ms. Alvarez admitted not referring them for individual therapy.
With respect to parenting instruction, Ms. Alvarez testified she told petitioner and father they could attend the parenting class at Sierra Vista after inquiring about their program. However, she was unable to describe the content of the program and was not aware it was only a six-week course. She was only aware that Sierra Vista offered classes that met reunification requirements. Sometime in March or April, she contacted Sierra Vista to check on the parents’ progress and was told they were no longer enrolled. She was then told it was a class for people who had their children in their care. She called various agencies to locate another parenting program without success.
With respect to drug testing, Ms. Alvarez testified she met with petitioner and father in December 2008 and gave them drug testing identification cards and the address of a facility in Modesto where they could be drug tested. Between December 17, 2008 and February 5, 2009, petitioner was required to call in to drug test 36 times but only called six times. She was required to drug test six times but tested only twice. Both tests were negative.
With respect to drug treatment, petitioner contacted Ms. Alvarez sometime between January and February 2009, and told her she had an appointment on February 27 for a substance abuse assessment through probation. Ms. Alvarez let her know that that would be sufficient for the department and did not investigate other substance abuse options in Stanislaus County. Petitioner began treatment through North Modesto Recovery Services. Ms. Alvarez requested an update of petitioner’s progress and faxed a release of information on March 30. She was informed petitioner and father were no longer participating in services.
Ms. Alvarez also testified the last documented date she had evidencing petitioner’s attendance at 12-step meetings was February 25, 2009. On the motion of petitioner’s attorney and without objection, the juvenile court entered an attendance sheet reflecting petitioner attended an additional 17 meetings from the beginning of March to April 13 and an additional 10 meetings from July 6 through July 26.
Petitioner testified she attended four parenting classes and two parent support group sessions at Sierra Vista. Shortly after the fourth class, she discovered the class did not satisfy her case plan so she called and informed Ms. Alvarez. She also testified she called in every day to the drug testing hotline and went in when she was supposed to test. She claimed she was dropped from outpatient drug treatment at Modesto Recovery Services after she missed three sessions to appear for probation and dependency hearings in Santa Clara County. She testified the transfer process of her case from Santa Clara to Stanislaus County was very confusing. She did not understand what services she needed to complete and did not believe Ms. Alvarez gave her adequate information.
Petitioner further testified she last used drugs in October 2008 and denied telling Ms. Bonsack she used drugs in April 2009. She did not recall refusing to drug test for Ms. Bonsack in May and stated Ms. Bonsack never asked her to drug test. She said she was willing to enter residential treatment and had had a sponsor in Stanislaus County since February.
On cross-examination, petitioner testified the positive drug test in December 2008 was a false positive as the result of over-the-counter medication and a steroid pill. She testified she had not started working the 12 steps yet because she did not have a sponsor. When it was pointed out she previously testified she had a sponsor, petitioner responded “I do. I would like to.…” She gave the name of a sponsor assigned to her and said she felt she was someone she could call.
Ms. Shahbazian, the social worker assigned to D.M., testified petitioner and father told her about the six-week parenting program and expressed concern that they did not receive credit for attending. She said she would have considered crediting them for their progress in the six-week program had they completed it.
Ms. Shahbazian identified a referral issued by a Stanislaus County social worker and dated May 4 referring petitioner and father to Sierra Vista for both parenting and individual counseling. The parents attended an intake session at the end of May.
At the conclusion of testimony, county counsel argued the parents were provided reasonable services but did not make any progress until the end of the six-month reunification period. Consequently, county counsel argued the court should find petitioner and father did not regularly participate or make substantive progress in them. County counsel further urged the court to find there was not a substantial probability they would reunify with D.M. following additional services given their lengthy history of drug use.
Petitioner’s attorney argued Ms. Alvarez failed to provide petitioner reasonable services during the transfer to Stanislaus County by not referring her for individual counseling, not making sure she was referred to an approved parenting program and not keeping in contact with petitioner’s probation officer. Father’s counsel joined in petitioner’s arguments.
Following argument, the juvenile court found petitioner and father were provided reasonable services but did not regularly participate in them or make substantive progress. Consequently, the court terminated reunification services and set a section 366.26 hearing. The court set a contested 366.26 hearing in August 2009 as to D. This petition ensued.
On August 3, 2009, the juvenile court terminated petitioner and father’s parental rights as to D. They both appealed and their cases are pending before this court (F058206 & F058276).
DISCUSSION
A. Reasonableness of services
Petitioner contends the juvenile court erred in finding she was provided reasonable services because Ms. Alvarez did not refer her for individual counseling and failed to arrange for parenting instruction and substance abuse treatment that would satisfy her reunification plan. Petitioner bears the burden of demonstrating error on appeal. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) On a challenge to the juvenile court's reasonable services finding, we view the evidence in a light most favorable to the respondent, indulging in all legitimate and reasonable inferences to uphold the verdict. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If substantial evidence supports the juvenile court's finding, we will not disturb it. (Ibid.) Moreover, under our review, services need not be perfect to be reasonable. Rather, the “standard is … whether they were reasonable under the circumstances.” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
In this case, the major components of petitioner’s case plan were drug treatment and parenting instruction. Therefore the fact that petitioner was not referred for individual counseling until May 2009 did not thwart her efforts at reunification and she provides no proof that it did. Of more importance are the efforts Ms. Alvarez made to assist petitioner in completing parenting instruction and drug treatment. As to both, the claim is that Ms. Alvarez did not refer petitioner for the level of services required by her case plan.
With respect to parenting education, Ms. Alvarez approved petitioner’s attendance at a six-week parenting class without ascertaining its duration, apparently under the general assumption that all of Sierra Vista’s parenting courses were agency-approved. With little effort, Ms. Alvarez could have better informed herself and referred petitioner to an approved parenting class sooner. However, the fact that Ms. Alvarez could have been more diligent does not mean the overall effort to provide petitioner parenting instruction was unreasonable. The agency discovered the discrepancy and, in May, referred petitioner to an agency-approved 10-week parenting class. Had petitioner completed the six-week class, the agency was willing to credit it toward completion of the parenting requirement. Consequently, petitioner’s failure to satisfy the parenting objective of her case plan is more attributable to her own failure to participate in the parenting instruction offered than the social workers’ failure to make reasonable efforts to provide the service.
Further, even if petitioner was not provided reasonable parenting services, we would not conclude, on this evidence, the juvenile court erred in finding reunification services were reasonable. The most critical component of petitioner’s reunification plan was drug treatment. Ironically, petitioner argues Ms. Alvarez was unreasonable in not referring her for residential treatment when, according to the record, petitioner vehemently refused that level of care. More importantly, the case plan ordered by the juvenile court in May 2009 did not specify residential drug treatment. Rather, the court ordered an alcohol and drug assessment and recommended treatment which may include residential treatment. If petitioner believed, as she now argues, that she required residential drug treatment, she could have challenged the content of the reunification plan by direct appeal or petitioned the juvenile court to modify its order to include it.
However, even assuming petitioner’s reunification plan required residential drug treatment, she refused it. Again, it boils down to compliance rather than reasonableness of services provided. Reunification services are voluntary and the agency is not required to force them on unwilling parents. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365.) We conclude, based on the foregoing, the juvenile court properly found petitioner was provided reasonable services.
B. Substantial probability of return
Petitioner argues there was a substantial probability D.M. would be returned to her custody. Therefore, the juvenile court erred in not continuing reunification services to the 12-month review hearing.
Section 366.21, subdivision (e) governs the proceedings at the six-month review hearing and provides as relevant to this case:
“If the child was under three years of age on the date of the initial removal … and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child … may be returned to his or her parent … within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.”
Having properly found petitioner was provided reasonable services, the juvenile court had no choice but to terminate reunification services unless there was a substantial probability of return. In order to find a substantial probability of return, the court must find the parent regularly visited the child, made significant progress in resolving the problem prompting removal of the child and demonstrated the capacity and ability to complete the objectives of the case plan and provide for the child’s safety, protection and well-being. (§ 366.21, subd. (g)(1).)
Substantial evidence does not support a finding, in this case, that D.M. could be safely returned to petitioner’s care by the 12-month review hearing. Between Santa Clara and Stanislaus Counties, petitioner was provided services from August 2007 through July 2009, including drug treatment and parenting classes. During that same time frame, she was provided drug treatment through probation. Despite these extensive services, petitioner continued to use drugs, while denying such use. There is no reason to believe, given her lengthy history of drug use, denial and resistance to treatment, that petitioner would make sufficient progress to safely resume custody of D.M. in the short time remaining before the 12-month review hearing.
Accordingly, we also conclude the juvenile court properly found there was not a substantial probability D.M. would be returned to petitioner’s custody and affirm its orders terminating her reunification services and setting a section 366.26 hearing.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.