Opinion
A161424
02-26-2021
L.D., Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. JD193332)
This is a petition for writ of mandate and request for stay (petition) filed by L.D. (mother) in dependency proceedings involving M.S. (minor), born in July 2019. Mother seeks an immediate stay of the permanency planning hearing under Welfare and Institutions Code section 366.26 set for March 3, 2021, and issuance of a peremptory writ of mandate directing the juvenile court to: (1) vacate its November 10, 2020 orders, which removed minor from mother's care and bypassed her for reunification services; (2) vacate the section 366.26 hearing date; (3) issue a new order for reunification or family maintenance services and for identification, notification and assessment of potential relatives for placement. Mother makes these requests on the grounds that the juvenile court's findings and orders entered on November 10, 2020, lack the support of substantial evidence and are erroneous. We deny both her petition and her stay request for reasons set forth below.
A.S., minor's biological father (father), is not involved in this petition and is mentioned only where relevant to the issues raised.
Unless otherwise stated, all statutory citations herein are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Much of the relevant factual background is set out in the discussion section, in which we address mother's challenges to the sufficiency of the evidence supporting the juvenile court's jurisdictional and dispositional findings and orders of November 10, 2020.
On December 27, 2019, a petition was filed in the City and County of San Francisco pursuant to section 300, subdivisions (b), (c), (g) and (j), alleging that minor had suffered or faced substantial risk of suffering serious physical or emotional harm as a result of: (1) parents' noncompliance with an active criminal protective order prohibiting father from making contact with mother; (2) domestic violence between mother and father; (3) parents' substance abuse issues; (4) parents' extensive criminal histories; and (5) mother's child welfare history involving minor's older half sibling, J.D.
The agency's concurrently filed detention report contained the following information. The agency received a referral alleging neglect shortly after minor's birth in July 2019. This referral was found inconclusive but prompted a noncourt family maintenance plan for several reasons, including that mother had an ongoing relationship with father despite a history of his domestic abuse. About two weeks before minor's birth, father was arrested for a probation violation after he was found in possession of a loaded gun and drugs at mother's home. Mother, in turn, had a long history of substance abuse issues and had her parental rights to J.D. terminated after failing to reunify with him. During J.D.'s dependency, mother was involved in a domestic violence incident with father in February 2018, wherein father punched her in the face multiple times at a laundromat during a visit between mother and J.D. This report also noted that multiple 911 calls were made between November and December 2019 regarding violence at mother's residence. One such call related to an incident in which mother, father and minor were in the home and father was breaking things. This incident occurred notwithstanding a three-year criminal protective order issued in July 2018 that prohibited contact between mother and father.
Although father was personally served with a copy of this order when it issued, neither parent told the agency about it and mother told social worker Laird on December 26, 2019, that she was unaware of it.
On December 30, 2019, a detention hearing was held, with mother appearing but not father. The court ordered minor detained from father and approved minor's placement with mother.
The agency's disposition report of February 11, 2020, recommended that minor be declared a dependent and mother receive family maintenance services. This report noted, among other things, that mother had ongoing, untreated substance abuse issues and had tested positive for methamphetamine on January 23, 2020. Mother had expressed an interest in receiving treatment to social worker Myeshia Grice and was in the process of enrolling in Women's HOPE, a residential treatment program. Mother also told Grice that she wanted help to address her mental health issues but was reluctant to reach out because she "mistrust[ed] . . . the system." Mother continued to insist the only time father had hit her was at the laundromat in February 2018 during J.D.'s visit.
On February 13, 2020, mother appeared at a settlement conference on jurisdiction and disposition, wherein the juvenile court sustained three counts as to mother pursuant to section 300, subdivisions (b), (g) and (j). Specifically, the court found as to mother that: (1) minor was at risk of physical or emotional harm based on parents' ongoing violation of the active criminal protective order, the multiple 911 calls regarding violence in mother's home in November and December 2019, and the February 2018 incident wherein father punched mother multiple times at the laundromat in the presence of J.D.; (2) mother had a history of mental health and substance abuse issues and had recently relapsed on alcohol and tested positive for methamphetamine; and (3) mother previously failed to reunify with and had her parental rights terminated as to J.D. The court thus declared minor a dependent and ordered reunification services for mother.
On March 12, 2020, the agency filed a section 387 petition asserting that minor's placement with mother had not been effective in protecting him and requesting a change in his placement to a foster caretaker. The agency's concurrently filed report noted that an incident of domestic abuse between mother and father occurred at a Travelodge Hotel on March 4, 2020. According to a police report, mother escaped from a hotel room and asked someone to call 911 after father hit her in the face as she was either handing minor to father or immediately afterward. An officer observed a small laceration on mother's nose. During the three-plus hours that the police remained at the scene, mother was observed drinking from a half-pint of alcohol. The officer observed that mother had red, watery eyes and difficulty answering his questions.
The agency's March 12, 2020 report further noted that father left the Travelodge with minor on March 4 before the police arrived and minor's whereabouts remained unknown. Mother was not cooperating in the police's search effort but insisted minor was safe. Minor's relatives were not cooperative with the agency regarding minor's location. Mother submitted the names of several relatives and friends for minor's emergency placement, but none passed an initial assessment that would have allowed him or her to be considered.
A detention hearing was held on March 13, 2020, with parents appearing by phone. The court continued the hearing to March 16, 2020, and ordered mother to bring minor to the agency by 5:00 p.m. Parents willfully failed to appear at the continued hearing. The court held mother in contempt of court for willfully failing to appear and failing to bring minor to the agency. The court issued an arrest warrant for mother and a warrant for minor.
On April 9, 2020, the agency filed a status report in connection with its section 387 petition requesting that the court vacate the prior placement of minor with mother and deny mother reunification services. Minor's whereabouts remained unknown. Social worker Danyelle Marshall was recently assigned to the case. Marshall requested child wellness checks at mother's residence but was unsuccessful in reaching either mother or father.
On May 22, 2020, the agency filed a section 342 petition setting forth new allegations under section 300, subdivisions (b), (c), and (j). In its concurrently filed addendum report, the agency reported that minor had been located on April 28, 2020, and that mother and minor's warrants had been recalled. The report also noted an incident on April 16, 2020, wherein an anonymous person called the agency to report concerns about domestic violence and drug use at mother's residence. Among other things, the reporter heard verbal threats, a baby crying and items being broken. When police arrived for a child wellness check, " 'a friend' " was the only person home.
This addendum report also noted another incident on April 28, 2020, when the police conducted a child wellness check and found mother's residence in a condition hazardous to a small child. After ringing the doorbell and knocking multiple times to no avail, the officers heard a baby crying and observed mother's sister, P.J., open the blinds to reveal a child matching minor's description. Although P.J. was not cooperative, the police were eventually able to confirm minor's identity and return him to protective custody.
The agency recommended that the court bypass mother for services pursuant to section 361.5, subdivision (b)(10), (11) and (15), stating that mother failed to appropriately address the issues that led to this case, as well as to the previous termination of her parental rights to J.D., minor's half sibling. Specifically, in J.D.'s dependency, the child was initially left in mother's care on the condition that she remain in a residential treatment program. Mother left this program, relapsed into substance abuse, and then fled with J.D. Five months passed before J.D. was located after mother was arrested for theft in another county. Mother was not with J.D. at the time and refused to disclose his whereabouts. Eventually, J.D. was located showing signs of neglect and malnourishment in the care of an uncooperative and inappropriate caretaker. Mother subsequently progressed in attempting to reunify with J.D. However, she later relapsed and, in February 2018, was involved in the domestic abuse incident at the laundromat wherein father repeatedly punched her in the face during her visit with J.D.
On May 26, 2020, minor's counsel requested and the court granted temporary restraining orders to protect minor from mother and father. These orders were made permanent after a contested hearing on August 3, 2020, with a carve-out provision permitting closely supervised virtual or in-person visitation for mother and minor.
A combined jurisdictional/dispositional hearing on the section 387/342 petitions began on September 25, 2020. Mother appeared by phone, but father, who was incarcerated with multiple charges pending, did not appear. Social workers Mo and Marshall testified on behalf of the agency.
The agency filed a second addendum report on September 21, 2020, which, among other things, described the efforts taken by social worker Marshall to assist mother in receiving reunification services for her substance abuse, mental health, parenting and domestic violence issues. These efforts are discussed post at part IV, pp. 19-24.
On November 10, 2020, at the conclusion of the contested hearing, the juvenile court sustained the allegations in the agency's petitions with minor modifications and ordered minor's removal from mother's care. The court bypassed mother for reunification services based on her prior failure to reunify with J.D., the termination of her parental rights as to J.D., and her abduction of minor (§ 361.5, subd. (b)(10), (11), (15)). Lastly, the court scheduled a section 366.26 permanency planning hearing for March 3, 2021. This petition followed on December 24, 2020, and, on December 30, 2020, we issued an order to show cause to the agency.
DISCUSSION
Mother challenges the sufficiency of the evidence supporting the juvenile court's findings in its November 10, 2020 orders that: (1) the allegations in the agency's section 387 and section 342 petitions are true; (2) minor should be removed from mother's care; (3) the agency provided reasonable reunification services; and (4) mother should be bypassed for further reunification services.
We address her contentions in turn below. I. Section 387 Findings.
"A section 387 supplemental petition is used to change the placement of a dependent child from the physical custody of a parent to a more restrictive level of court-ordered care. (§ 387; Cal. Rules of Court, rule 5.560(c).) In the jurisdictional phase of a section 387 proceeding, the court determines whether the factual allegations of the supplemental petition are true and whether the previous disposition has been ineffective in protecting the child. (§ 387, subd. (b); [Cal. Rules of Court,] rule 5.565(e)(1).) If the court finds the allegations are true, it conducts a dispositional hearing to determine whether removing custody is appropriate. ([Cal. Rules of Court, rule] 5.565(e)(2); [citation].) A section 387 petition need not allege any new jurisdictional facts, [sic] or urge different or additional grounds for dependency because a basis for juvenile court jurisdiction already exists. [Citations.] The only fact necessary to modify a previous placement is that the previous disposition has not been effective in protecting the child. (§ 387, subd. (b); [citation].)" (In re T.W. (2013) 214 Cal.App.4th 1154, 1161, fn. omitted; see In re John V. (1992) 5 Cal.App.4th 1201, 1211.)
On appeal, we review an order sustaining a section 387 petition for substantial evidence. (In re D.D. (2019) 32 Cal.App.5th 985, 990.) "Mother, as the appellant, bears the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order." (Ibid.) Moreover, as mother acknowledges, there is also a presumption on appeal that the court's order is correct. (Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1025.) "We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record in favor of the juvenile court's order and affirm the order even if other evidence supports a contrary finding." (In re T.W., supra, 214 Cal.App.4th at pp. 1161-1162.)
Here, in sustaining the agency's section 387 petition, the juvenile court found that maintaining minor in mother's care was ineffective to protect him because: (S1) mother remained in a relationship with father characterized by violence; (S2) in March 2020, father took minor from mother and left with minor and continued to violate the criminal protective order against him; (S3) mother was not in compliance with her case plan, particularly with respect to the court-ordered substance abuse services; and (S4) mother was not cooperative or forthcoming with the agency regarding minor's whereabouts and failed to provide the name of any relative or friend who could pass the agency's initial assessment for minor's placement.
Mother challenges findings S1, S3, and S4 as lacking the support of substantial evidence—meaning " 'evidence that is reasonable, credible and of solid value.' " (In re D.P. (2014) 225 Cal.App.4th 898, 902.) We disagree.
First, with respect to ongoing domestic violence, the March 4, 2020 incident at the Travelodge is demonstrative. Specifically, the police were summoned to the hotel based on a report that father hit mother during an argument while or immediately after mother was handing minor to father. After being hit, mother left minor with father, and she escaped out a window and across the roof to the lobby, where she had someone call 911. While mother later reported that she and minor separately arrived at the hotel by Uber and father followed them to their room, an unidentified individual saw mother and father together, carrying a car seat upstairs to a room. This was despite the three-year criminal protective order that barred father from contacting mother.
The record of this incident alone constitutes substantial evidence in support of the juvenile court's S1 finding. Yet, there is more. Despite a criminal protective order prohibiting father from contacting mother, the agency reported on May 26, 2020, that during a virtual visit with minor, "[t]here was a male in the residence with [mother]. She did not call his name, but this [social worker] later presumed it was [father] because when [mother] told him to come and look at the screen, he sat down and when he saw [minor], he began crying immediately. The unknown man would leave and come back to the screen several times during the visit. The court did not order visits for [father]. The parents have a Criminal Protective Order which protects the mother but they have a history of violating the Order."
Mother counters that there is no risk of future domestic violence because father was incarcerated as of the disposition hearing and there was no evidence that he would soon be released or that she intended to reunite with him. We disagree. Mother offers no evidence that father was convicted or sentenced, much less that any appeal he may have has become final. Accordingly, the possibility exists that father could be released from custody, at which point "there is every reason to believe that," without state intervention, father would resume committing acts of violence against mother in the presence of minor. (See In re Carlos T. (2009) 174 Cal.App.4th 795, 806.) Father's incarceration thus provides no basis to disturb the court's S1 finding.
With respect to the S3 finding, mother contends the evidence is insufficient to prove "[she] had current substance abuse issues." We disagree. During the March 4, 2020 Travelodge incident, the police responding to the 911 call noted that mother smelled of alcohol; had red, watery eyes; was drinking out of a half-pint of alcohol throughout their investigation; and had difficulty answering questions. Moreover, the record reflects that, earlier that day, mother entered and left a residential treatment program.
Social worker Danyelle Marshall also testified about several incidents that caused her to doubt mother's sobriety. During a virtual visit with minor, mother admitted to Marshall that "she had the shakes" and "had to go get her bottle . . . ." Marshall further testified about meetings that she had with mother, during which mother had "crying spells" and acknowledged needing treatment. Yet, despite the agency's numerous referrals and Marshall's constant encouragement, mother never followed through on her agreement to enter a treatment program.
On this record, we reject mother's evidentiary challenge to the juvenile court's S3 finding. Clearly, mother continues to struggle with substance abuse and, thereby, continues to create a substantial risk of harm to minor. (Cf. In re B.T. (2011) 193 Cal.App.4th 685, 693-694 [while "the evidence showed that [mother] regularly drank beer, and various people opined that she drank more beer than they believed she should have," there was no evidence that mother neglected or endangered her children as a result].)
Finally, with respect to the juvenile court's S4 finding that mother refused to cooperate with the agency regarding minor's whereabouts, the following record is relevant. According to the agency's March 13, 2020 report, the agency tried for two days after the Travelodge incident to reach mother. Mother finally contacted emergency response social worker Eileen Mo on March 6, 2020, and said she did not know where minor was but that he was safe. Since mother refused to meet with Mo, the social worker requested a child welfare check the next day at mother's residence. (CT 167-168; 4RT 210, 211, 219-220; CT 163)~ During the check, mother refused to tell the police minor's location. On March 10, 2020, mother's great-aunt, A.L., told Mo that minor was with her in Sacramento, but when Mo and another social worker arrived at the Sacramento home, A.L. did not answer her phone. Mother then told Mo that she was picking minor up from South Sacramento and wanted more time with him before bringing him to the agency. Instead of doing so, mother told Mo that minor was with a cousin named Ashley in San Francisco, but the agency could not locate him.
On March 13, 2020, mother appeared at the detention hearing by phone and was ordered to bring minor to the agency by 5:00 p.m. that day. Mother did not comply, and after she failed to appear at the continued hearing on March 16, 2020, the court found her in contempt.
The agency's April 9, 2020 addendum report stated that social worker Marshall, who had just been assigned to the case, had been unable to reach mother or father since the beginning of March and their whereabouts remained unknown. Marshall requested a child wellness check at mother's address on April 2, 2020, but there was no answer.
The agency's addendum report stated that it had contacted the child abduction unit of the district attorney's office, but minor's relatives were not cooperating with the unit's efforts to locate him. Despite weekly wellness checks at mother's address, minor's whereabouts remained unknown. On April 16, 2020, the agency received a referral from an anonymous reporter regarding domestic violence at mother's address. The reporter, who was certain there was drug abuse in the home, heard verbal threats, glass being broken, and a small child in the home in the past. When the police conducted a wellness check at mother's address, minor was not there. Finally, however, minor was located during another wellness check conducted on April 28, 2020, and returned to protective custody.
According to the report, after ringing the doorbell and knocking multiple times, the officers heard a baby crying. Eventually, mother's sister, P.J., opened the blinds and the police observed an infant matching minor's description. P.J. was uncooperative and told the police the infant was her son. The police were nonetheless able to confirm minor's identity after receiving his photograph from the agency.
This evidence amply supports the juvenile court's finding that mother was uncooperative and concealed minor from the agency. Mother counters that her reluctance to cooperate was understandable because she feared the social worker would take minor away. However, even accepting for the sake of argument that mother's reluctance was understandable, her argument misses the mark. "The focus of [section 387] is on averting harm to the child," not on averting a parent's emotional distress from possibly losing custody of his or her child. (In re T.W., supra, 214 Cal.App.4th at p. 1163.)
Accordingly, no basis exists on this record to disturb any of the juvenile court's section 387 jurisdictional findings. II. Section 342 Findings.
Because we uphold the juvenile court's S4 finding based on mother's uncooperativeness and concealment of minor, we need not address her alternative argument that jurisdiction under section 387 cannot be based on evidence that the child's relatives were not approved for placement.
Mother also challenges the sufficiency of the evidence supporting the juvenile court's findings in sustaining the agency's section 342 petition. "A subsequent petition is filed when new, independent allegations of dependency can be made after the court has initially declared a minor to be a dependent child." (In re Barbara P. (1994) 30 Cal.App.4th 926, 933.) "In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition." (§ 342, subd. (a).) "[A]ll procedures and hearings required for an original petition are applicable to a subsequent petition filed under this section." (§ 342, subd. (b).)
As before, we review the court's findings and order sustaining a section 342 petition for substantial evidence, resolving all conflicts in favor of the agency, as respondent, and indulging all legitimate inferences to uphold the verdict. (In re Carlos T., supra, 174 Cal.App.4th at pp. 804-805.)
Here, the juvenile court found true new facts in the section 342 petition that minor had suffered or was at substantial risk of suffering serious physical and emotional harm or illness as a result of mother's failure or inability to adequately supervise or protect him within the meaning of section 300, subdivision (b) based on: (B1) father's continued perpetration of domestic violence on March 4, 2020, at the Travelodge and the anonymous call to the agency's hotline on April 16, 2020, reporting loud noises, a baby crying, and screaming at mother's residence; (B2) mother's inappropriate conduct in absconding with minor, failing to comply with court orders to return him, and maintaining her house in a hazardous condition at the time of a child welfare check on April 28, 2020; and (B3) father's extensive criminal history. The juvenile court also found pursuant to section 300, subdivision (j) that minor was at substantial risk of harm or neglect because his older half sibling, J.D., had been removed from mother's custody and her parental rights to him terminated based on similar issues relating to domestic violence, substance abuse and mother and father's absconding with the child and failing to comply with directives to return him.
The court struck a similar allegation as to mother's criminal history for lack of evidence.
Mother does not challenge the court's B3 or J1 finding.
Mother challenges the sufficiency of the evidence supporting the court's B1 and B2 findings. We, however, find substantial evidence to support them.
The first B1 finding regarding father's continued perpetration of domestic violence is amply supported by the same evidence that supported the juvenile court's S1 finding in sustaining the section 387 petition—mainly, the March 4, 2020 incident wherein the police were summoned to the Travelodge based on mother's report that father hit her during an argument while or immediately after she handed minor to father. Mother responds that the evidence was insufficient to prove she planned to meet father at the Travelodge on March 4. We disagree. There is evidence that an unidentified person saw father and mother carry a car seat up the stairs together.
Mother later told the police that she did not know where she was before she arrived at the hotel.
Mother also argues that she was the victim, not the perpetrator, of domestic violence and that she took proper steps to report her abuse on March 4. We agree with mother in these regards and sympathize with her domestic situation. However, in these dependency proceedings, the juvenile court was appropriately focused on minor's exposure to domestic violence and the resulting detriment to his safety and well-being. Viewed in this lens, the evidence supports the court's B1 finding that domestic violence was a risk factor for minor.
As for the juvenile court's second B1 finding relating to the April 16, 2020 child wellness check, mother does not dispute the anonymous caller's report of screaming, a crying baby, and items being destroyed at her house. Rather, she argues there is no evidence that any of the noises were attributable to her, father or minor, pointing out that when the police were able to enter her home, "neither parents nor Minor were present in the home . . . ."
Mother's argument misconstrues our role in conducting a substantial evidence review. Where conflicting evidence exists, we resolve all conflicts in favor of the respondent (here, the agency), and indulge all legitimate inferences in order to uphold the juvenile court's order. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; see In re D.D., supra, 32 Cal.App.5th at p. 990.) Applying these rules here, the evidence of someone screaming, a baby crying and items being destroyed supports the court's finding that domestic violence continued to place minor at risk. And while the police ultimately did not find minor or mother in the home, given mother's history of concealing minor from the agency and law enforcement, the court had reason to remain concerned about minor's well-being on the day in question. (See In re A.S. (2011) 202 Cal.App.4th 237, 247 [when deciding whether to remove a child, the juvenile court " 'may consider a parent's past conduct as well as present circumstances' "].)
The record also supports the court's B2 finding that mother engaged in conduct that placed minor at substantial risk of physical or emotional harm by absconding with him, refusing to comply with court orders for his return, and maintaining her residence in a dangerous condition. (See § 300, subd. (b).) Mother counters that there is no evidence that she (as opposed to someone else) absconded with minor; that "many unknown adults" cared for him; or that he was "harmed, mistreated, or need[ed] any medical treatment" at the time of the April 28, 2020 child wellness check.
Again, mother's burden on appeal is not simply to point to conflicting evidence. Rather, it is to prove "there is no evidence of a sufficiently substantial nature to support the findings or order." (In re D.D., supra, 32 Cal.App.5th at p. 990.) Here, there is ample evidence, already described, that mother absconded with minor, as she had done with minor's half sibling, J.D., and flouted court orders to return him to protective custody, where guidelines and a case plan were in place to ensure his safety and well-being and facilitate the family's reunification. (Ante, pp. 2-3.) As for the April 28, 2020 wellness check, the police found multiple items hazardous to a child of minor's age after forcing entry, including "haircare products laid out on the bed and on the floor, . . . a heater near the play pen, wires on the floor, and dirty dishes on the floor . . . ." This evidence supports the juvenile court's finding that mother engaged in conduct detrimental to minor's physical and emotional well-being. (See In re D.D., supra, 32 Cal.App.5th at p. 990.)
The juvenile court's B1 and B2 findings thus stand. III. Removal Order.
We next turn to mother's challenge to the evidence supporting the order to remove minor from her care.
" 'Before removing a minor from his or her parent's custody, the court must find, by clear and convincing evidence, that '[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody.' (§ 361, subd. (c)(1); [citations].) [¶] 'A removal order is [thus] proper if it is based on proof of (1) parental inability to provide proper care for the minor and (2) potential detriment to the minor if he or she remains with the parent.' [Citations.]" (In re D.D., supra, 32 Cal.App.5th at p. 996.)
Applying this two-prong standard, we conclude substantial evidence supports the court's removal order. (See Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881 [" ' "The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal" ' "].) To briefly rehash the relevant evidence, on March 4, 2020, at the Travelodge, father hit mother as or immediately after she was handing minor to him. Then, mother escaped through a window to the lobby and father left with minor. Mother was later seen drinking heavily and appeared intoxicated. Following this incident, minor was not returned to protective custody until April 28, 2020, despite the involvement of the district attorney's office, intense efforts by the agency's emergency response team and court orders for his return.
This absconding incident is eerily similar to an earlier incident involving minor's older half sibling, J.D. In J.D.'s case, mother absconded with him for five months after relapsing on drugs or alcohol and leaving a residential treatment program. Mother was uncooperative and refused to disclose J.D.'s whereabouts. The child was found only after mother was arrested for theft and was in "a bad condition indicative of neglect." Ultimately, mother failed to reunify with J.D. and her parental rights were terminated. (See In re A.S., supra, 202 Cal.App.4th at p. 247 [when deciding whether to remove a child, the juvenile court " 'may consider a parent's past conduct as well as present circumstances' "].)
More recently, in late September 2020, after months of assistance from the agency, social worker Marshall reported growing concerns about mother's lack of sobriety and irregular visitation with minor. During one visit, mother admitted to Marshall that "she had the shakes" and "had to go get her bottle . . . ." Other times, during meetings with Marshall, mother had "crying spells" or made acknowledgments that she needed treatment. Despite Marshall's encouragement, mother would not enter a residential treatment program.
These incidents between March and September 2020 support a finding that mother was not just unable to provide proper care for minor but that if minor were to remain in her custody, he would face a significant risk of physical or emotional harm. (§ 361, subd. (c)(1).) Fortunately, as mother notes, the evidence shows that minor is a healthy and happy child who has not yet been physically harmed under her care. However, the focus of section 387 is on averting harm to the child. "The parent need not be dangerous and the minor need not have been harmed before removal is appropriate." (In re T.W., supra, 214 Cal.App.4th at p. 1163.) In this case, removing minor from mother's custody to ensure his health, safety and well-being in the future was appropriate. IV. Provision of Reasonable Reunification Services.
Where the juvenile court orders the child's removal from parental custody at the dispositional hearing, it must determine "whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . ." (§ 361, subd. (e).) Mother contends that, contrary to the court's finding, the agency failed to provide her reasonable reunification services to address the issues that led to minor's removal.
Mother faults the agency's provision of services on three fronts: (1) the agency should have offered her in-person meetings with a social worker and in-person visits with minor, rather than virtual visits; (2) the agency failed to refer her to individual therapy or programs for substance abuse and domestic violence; and (3) the agency failed to take steps after making a referral to connect her to a case manager or to otherwise ensure that someone at a particular program reached out to mother to assist in getting her into the program. None of these arguments is persuasive.
First, given the significant public health and safety implications of the Covid-19 pandemic, we cannot fault the agency for relying on video meetings and phone calls rather than in-person meetings during this time frame. Social worker Marshall, assigned to mother's case in March 2020, testified that she had a preexisting condition that prevented her from meeting with mother in person. Nonetheless, Marshall spoke to mother "about once a week about her services that she needed to do," either by telephone or video. "[R]easonable efforts, like reasonable services, need only be reasonable under the circumstances, not perfect [citation]." (In re H.E. (2008) 169 Cal.App.4th 710, 725.)
Second, as to mother's argument that the agency failed to make referrals for services for individual therapy, substance abuse and domestic violence, the record reflects otherwise. Soon after the court family maintenance case was initiated, the agency referred mother to: (1) Foster Care Mental Health (FCMH) for individual therapy; (2) two San Francisco residential treatment programs for substance abuse, Women's HOPE and Epiphany House, the latter of which offered in-house domestic violence services; and (3) the Homeless Prenatal Program (HPP) for parenting education. Mother went to Epiphany House on March 4, 2020, but left the same day. Mother also went to Women's HOPE and left.
March 4, 2020, is the same date that mother went to the Travelodge, where, as discussed above, father hit her, prompting the 911 call to police.
Once Marshall was assigned to mother's case in March 2020, Marshall followed up on the agency's referral to FCMH for individual therapy. While Marshall could not enroll mother in therapy herself, Marshall contacted FCMH to confirm and update mother's contact information. There is no evidence that anyone at FCMH contacted mother. However, Marshall testified that mother could obtain individual therapy at a residential treatment program. Marshall counseled mother that "going into the residential treatment program was going to be the best for her and [father] because they would get the wraparound services that they would need to help them with their drug and alcohol problems." According to Marshall, the agency prioritized a residential treatment program in mother's case because, once admitted, mother would be able to address all or nearly all components of her case plan, including individual therapy, parenting education and substance abuse.
Marshall testified that "the way the process works, we refer clients to—I'm sorry. We make a referral to [FCMH]. [FCHM] then follows up with clients."
Marshall acknowledged several domestic violence programs that she contacted were either closed due to Covid-19 or not accepting new clients. However, since father was incarcerated, Marshall believed mother could spend this time focusing on her own substance abuse and mental health issues.
Marshall also encouraged mother to contact HealthRIGHT 360, a program that assisted individuals in accessing treatment through residential programs such as Epiphany House, Women's HOPE and Walden House. Mother went twice to HealthRIGHT 360. The first time, mother was told no space was available. Marshall instructed mother to call HealthRIGHT 360 every day to find out if a bed had become available, which another of Marshall's clients had successfully done. Mother responded that she needed " 'to get myself in order' " and would call in a few days. She did not.
The second time, mother called Marshall, stating that she had just left HealthRIGHT 360 because she could not go through the intake process, apparently due to anxiety. Marshall explained to mother that she had to go through the intake process herself; Marshall could not do it for her. However, despite Marshall's promise to stay on the phone with mother throughout the intake process, mother left.
After mother rejected Epiphany House and Women's HOPE, Marshall investigated residential treatment programs outside of San Francisco. Marshall sent mother links to programs in Sacramento and San Rafael after contacting each to obtain information about its services. Marshall followed up with mother for several weeks to encourage her to contact these programs. Mother visited the Sacramento program and learned it was not accepting new residents. Marshall therefore encouraged her to call the San Rafael program, which was closer to her home. There is no evidence that mother did so.
After weeks of mother's refusing to enter a residential treatment program, Marshall pushed mother to go to the HPP, a nonresidential program. Marshall advised mother that " '[HPP] is the best that we can do for a one-stop shop' " because it offered services for substance abuse, parenting, domestic violence, and individual therapy. Marshall contacted Ms. Hernandez, HPP's case manager or intake coordinator, about mother's case in May or June 2020. Marshall also gave mother contact information for Ms. Hernandez and information about HPP's services. There is no evidence, however, that mother contacted HPP.
Many of HPP's programs were being held virtually rather than in person during this time frame. Further, HPP does not have its own substance abuse program but works with a separate entity called "Family Treatment Court" (FTC). Although FTC was temporarily suspended, HPP was still providing other services and its case managers were "still checking in with the clients and giving the referrals as they called in . . . ."
Viewing this evidence in a light favorable to the juvenile court's order, we disagree with mother that the agency failed to make referrals on her behalf to services for individual therapy, substance abuse and domestic violence. Rather, mother failed to take serious action to follow up on the agency's referrals to the very programs that would have enabled her to reunify with minor. As Marshall summarized, "Mother has not told me that she has engaged in any service outside of trying HealthRIGHT 360 twice, and she said she drove to Sacramento to try [the residential treatment program], and they said they weren't accepting anybody. Those are the only things that I know she did." " 'It is . . . well established that "[r]eunification services are voluntary, and cannot be forced on an unwilling or indifferent parent." ' " (In re Nolan W. (2009) 45 Cal.4th 1217, 1233.)
This leads to mother's final argument—that the agency failed to ensure that she received services. However, as Marshall testified, "how these programs work is that the clients have to call and make the connections themselves. I have done it a number of times for different clients where I have called [on the clients' behalf] . . . and they say, 'Thank you very much, but the client needs to call.' And part of the reason the client needs to call is because they want to know the level of seriousness for entering their program."
Marshall's testimony is consistent with our dependency law, which does not require the agency to "take the parent by the hand" to force him or her to accept services he or she does not want. (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.) "A parent whose children have been adjudged dependents of the juvenile court is on notice of the conduct requiring such state intervention. If such a parent in no way seeks to correct his or her own behavior or waits until the impetus of an impending court hearing to attempt to do so, the legislative purpose of providing safe and stable environments for children is not served by forcing the juvenile court to go 'on hold' while the parent makes another stab at compliance." (Ibid.) Here, while we commend mother's efforts to stay in contact with Marshall and to, for the most part, participate in virtual visitations with minor, the fact remains that she was never willing to make the call or take the step to actually enter into a treatment program. Under these circumstances and given the totality of efforts made by the agency to prevent minor's removal, mother has provided no basis for disturbing the juvenile court's finding of reasonable services. (See In re H.E., supra, 169 Cal.App.4th at p. 726.) V. Bypass Order.
Mother argues that her treatment efforts were hindered in large part due to the Covid-19 pandemic. We do not doubt that this event has impacted the efforts of mother and countless others to access services. However, mother presents no evidence of any particular effort she made to obtain substance abuse treatment that was thwarted due to the pandemic.
Finally, mother argues the findings underlying the order to bypass her for further reunification services were erroneous and not supported by substantial evidence. We disagree.
Section 361.5, subdivision (a) sets forth the general rule that a parent whose child has been removed must be afforded reunification services. (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 753.) "While the overarching goal of the dependency law is to safeguard the welfare of dependent children and to promote their best interests [citations], the law's first priority when dependency proceedings are commenced is to preserve family relationships, if possible. [Citation.] To this end, the law requires the juvenile court to provide reunification services unless a statutory exception applies. [Citations.]" (In re K.C. (2011) 52 Cal.4th 231, 236.)
Section 361.5, subdivision (c)(2) provides in relevant part that "[t]he court shall not order reunification for a parent or guardian described in paragraph . . . (10), (11), . . . [or] (15) . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (Italics added.)
" 'A juvenile court has broad discretion when determining whether . . . reunification services would be in the best interests of the child under section 361.5, subdivision (c).' " (In re G.L. (2014) 222 Cal.App.4th 1153, 1164-1165.) We reverse on appeal only if the juvenile court abused that discretion. (Ibid.)
Here, the juvenile court applied the statutory exceptions under section 361.5, subdivision (b)(10), (11), and (15) to bypass mother for further services, finding by clear and convincing evidence that reunification would not be in minor's best interests. Turning to the first two of these statutory exceptions, section 361.5, subdivision (b)(10) provides in relevant part that reunification services need not be provided if the court finds: "That the court ordered termination of reunification services for any . . . half siblings of the child because the parent . . . failed to reunify with the . . . half sibling after the . . . half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent . . . is the same parent . . . described in subdivision (a) and that, according to the findings of the court, this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the . . . half sibling of that child from that parent . . . ." Similarly, subdivision (b)(11) provides in relevant part that such services need not be provided if the court finds: "That the parental rights of a parent over any . . . half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the . . . half sibling of that child from the parent."
Under this statutory language, substantial evidence must demonstrate that (1) the court terminated reunification for J.D. because mother failed to reunify with him, (2) mother's parental rights to J.D. were subsequently terminated and (3) mother had not subsequently made a reasonable effort to treat the problems that led to J.D.'s removal. (§ 361.5, subd. (b)(10), (11).) Mother challenges only the sufficiency of the evidence as to the third prong—that she has not made a reasonable effort to treat the problems that led to J.D.'s removal. Specifically, she denies there is substantial evidence that she had a "current and ongoing substance abuse issue which negatively impacted her parenting" or that she and minor faced a present threat of domestic violence.
We disagree there is no evidence that mother's substance abuse issues negatively impacted her parenting as of the date of the disposition hearing. To the contrary, there is ample support for this finding. As discussed, as recently as late September 2020, Marshall had concerns about mother's alcohol abuse after mother told her she "had the shakes" and needed "her bottle" during a visit with minor, and confessed multiple times to Marshall that, despite having a drinking problem, she could not enter a treatment program.
Further, mother notes—and we agree—that being a victim of domestic violence is not, by itself, sufficient to support a bypass order. However, we disagree with mother that she had taken the appropriate steps to address this issue, such that minor could safely remain in her care. The record reflects the mother continued to have contact with father despite a criminal protective order prohibiting it. And while father was incarcerated at the time of the disposition hearing, there is no evidence that he will stay incarcerated for any particular length of time, or that mother has done anything in the meantime to prevent a continuation of his domestic violence once he is released.
Based on this record, the juvenile court did not abuse its discretion in denying mother additional reunification services pursuant to subdivision (b)(10) and (b)(11) of section 361.5. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 74; see In re Jasmine C. (1999) 70 Cal.App.4th 71, 76 [juvenile court justified in finding that providing the parent "with yet another set of services would have been an exercise in futility"].) We need not consider whether the court's bypass order was also warranted under subdivision (b)(15) of the statute. (Randi R. v. Superior Court, supra, at p. 72; In re Jasmine C., supra, at p. 76.)
Section 361.5, subdivision (b)(15) provides that reunification services need not be provided if the court finds: "That the parent . . . has on one or more occasions willfully abducted the child or child's sibling or half sibling from their placement and refused to disclose the child's or child's sibling's or half sibling's whereabouts, refused to return physical custody of the child or child's sibling or half sibling to their placement, or refused to return physical custody of the child or child's sibling or half sibling to the social worker."
DISPOSITION
The petition for peremptory writ of mandate and request for stay are denied.
/s/_________
Jackson, J. WE CONCUR: /s/_________
Petrou, Acting P. J. /s/_________
Wiseman, J.
Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.