Opinion
D077004
06-09-2020
In re Paige L. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JENNIFER C., Defendant and Appellant.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. EJ4376A, B) APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer C. (Mother) appeals from juvenile court orders regarding her minor daughters, Paige L. and P.L., that the court made at the six-month review hearing. Mother contends the court erred by finding she received reasonable reunification services. The San Diego County Health and Human Services Agency (the Agency) argues Mother does not establish a lack of substantial evidence for the court's finding. We agree, and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
In late March 2019, the Agency filed dependency petitions under Welfare and Institutions Code section 300, subdivision (b), for Paige and P.L., based on the presence of drugs and paraphernalia in the home; Mother's arrest for possession of drugs and paraphernalia; and drug use by her and the girls' father, Dustin F. (Father). Paige was eight years old at the time, and P.L. was two years old.
Undesignated statutory references are to the Welfare and Institutions Code. There was also an allegation under section 300, subdivision (g), for failure to provide support, which was subsequently dismissed. Father has not appealed.
According to the detention report, Mother and the girls were living in the home of maternal grandmother Angie B. (Grandmother), along with other family members. The police conducted a fourth waiver search of the home in connection with the maternal uncle, found drugs and paraphernalia in Mother's room, and arrested her. The police also found drugs in other rooms, and neighbors suspected drugs were being sold there. Mother told the social worker she began using drugs at 15, and was "clean for 15 years until she lost everything . . . ." She explained that a year ago, Father was using drugs, he spent or gambled all their money, and she "lost their home and her job." She denied being a drug addict, and said Father was her "trigger." She also indicated she was diagnosed with post-partum depression. Family members reported Mother experienced depression, and Grandmother said Mother had seen a doctor and received medicine, but stopped taking it.
The girls were detained with Father's brother, Tanner H., and his fiancée, Courtney G. The juvenile court ordered liberal, supervised visitation.
The jurisdiction/disposition report, filed in April 2019, reflected little engagement by Mother and problems with visits. A social worker met with her in early April, and she still denied substance abuse. Before they were finished speaking, Mother said she wanted to talk later, and the social worker was unable to finish interviewing her. Mother also met with a substance abuse specialist and attended a Parent Care screening, but did not show up for orientation.
At the end of an early April visit, Mother said she felt the caregivers should allow more visits, was asked to lower her voice "several times," and P.L. began to cry. When the social worker asked her to follow the schedule, Mother handed P.L. to Grandmother and walked out. After a visit in mid-April, Courtney reported that when it was time to leave, Mother "began to cry and scream"; questioned why she could not drive the girls to Courtney's house, saying she "won't kidnap them"; and was dismissive when Courtney explained the rules. Courtney described Mother's behavior as unpredictable. Tanner felt Mother could not respect their boundaries, and was concerned the conflict would continue. The Agency planned to supervise visits at CWS (Child Welfare Services) until Mother could demonstrate appropriate behavior.
The April addendum report attached Mother's case plan. The plan required her to stop using drugs, and to participate in substance abuse treatment, a parenting program, and "individual counseling with a TERM/Agency approved therapist."
The Agency represents TERM stands for "Treatment and Evaluation Resources Management"; the program's purpose is to "improve the quality and effectiveness of mental health services"; and the Agency works with a company called Optum to contract with providers.
Mother did not maintain contact with the Agency. The addendum report prepared for the jurisdiction/disposition hearing noted a parent search was initiated on May 1, and social workers were able to meet with her two days later. When asked about her whereabouts for the past month, Mother said "she did not want to be found by anyone." She said her treatment efforts were not acknowledged and she "gave up," stating she had "self-drug tested" and attended Narcotics Anonymous (NA). A social worker reminded Mother of the need to communicate with the Agency. Mother also stated she was upset about not having visits, and a social worker again explained she had to communicate with them.
At the jurisdiction/disposition hearing in May, Mother asked the juvenile court to strike the therapy component of the case plan, arguing the case "revolv[ed] around drugs" and there was "no evidence of a mental health issue." The court denied the request, explaining long-term drug use needed to be addressed in therapy. The court found the petition allegations true, declared the minors dependents, and removed them from Mother's custody. Mother appealed on Indian Child Welfare Act (ICWA) grounds.
By summer, Mother was not in contact with the caregivers or the Agency. In late June, Courtney reported Mother did "not visit or call," and there was no current visitation schedule. She and Tanner also reported being overwhelmed and wanted paternal aunt Catrina G. assessed for placement of P.L.
Social worker Ahlam Mohammed was assigned to the case in June, and tried calling Mother on June 27. She visited Grandmother's home unannounced on July 8, but Mother was not home. She tried again on August 5, and was told Mother did not live there and was hanging out on the streets with Father. She tried calling Mother on August 8, and again could not reach her. In mid-August, P.L. was placed with Catrina G. and Raymond C., and Paige remained with Tanner and Courtney. The caregivers were committed to supporting sibling interaction.
Mohammed met with Mother on August 13. Mother told her, "I know you have been trying to look for me"; revealed she had been homeless with Father for the prior three months; and stated she thought she could "save [him]," but had since broken up with him.
In late August, our court reversed the jurisdiction/disposition findings and remanded for ICWA compliance. At the hearing to address our opinion, the court issued a minute order that stated "[t]he Agency is ordered to comply with the liberal supervised visitation order" and "[l]iberal visitation is more than one visit per week." The court later found ICWA did not apply.
On or around September 4, Mother and Father were arrested for stealing luggage at the airport. After Mother's release from custody on or around September 20, she started to engage in visitation, was attending NA, and began substance abuse treatment in October at Parent Care. In mid-October, she requested a special hearing, contending she had not been receiving two visits per week since her release.
The Agency report for that hearing noted Mother's prior failures to maintain contact and issues with visits, and included a timeline of efforts to contact her and initiate visitation. The Agency stated that during the summer, Mohammed mailed an "Out of Compliance" letter to Mother; conducted a background check on a maternal aunt so she could supervise visits, which the aunt did not pass; and made a referral to Family Visitation Center (FVC) to initiate services. In late September, Mohammed made another referral, as the prior one was dropped when Mother was incarcerated. On October 4, Mother had a visit with Paige. On October 10, the Agency conducted a "Child, Family, Team" (CFT) meeting. At that meeting, a visitation schedule was set to accommodate visits at Parent Care, with Paige on Tuesday and P.L. on Friday. She had a supervised visit that day with P.L. On October 15, Mother had a supervised visit with Paige.
At the special hearing on October 16, Mother's counsel argued the court's order requiring visitation two times per week had not been met. County counsel explained the problem was due in part to the girls living in different parts of the county. She said the social worker submitted a referral for a joint weekend visit at FVC, and was working on another weekly visit with Paige. The juvenile court reiterated its order that there be a minimum of two visits per week.
The CASA (court appointed special advocate) filed a report in late October. It indicated Paige was sad when P.L. was removed from their placement, but the caregivers were extended family members and had a "good rapport," so the "girls visit each other consistently."
In early November, the Agency prepared a report for the six-month review hearing, and recommended services be terminated. The Agency maintained Mother had not made substantial progress, minimized the impact of her drug use, and had only stopped doing drugs (i.e., been "clean") since September 4. As discussed post, Mother had to be clean for 90 days to receive the TERM therapy referral, although Mohammed did suggest she seek an individual therapist at Parent Care. Mother was also living at the home where the children were removed, and the Agency was concerned she was around people who regularly abused substances. The report separately noted Mother now had supervised visits with both girls on Saturdays at FVC, in addition to the individual visits.
At the initial six-month review hearing in November, Mother requested a contested trial on reasonable services, and stated the only issue was visitation. County counsel advised the court the Agency was changing its recommendation to permit additional services. In a December addendum report, the Agency confirmed its recommendation was to continue services, and also for unsupervised visitation. It explained Mother was actively involved with her plan, including seeking treatment at Parent Care, staying sober since September 4, and taking steps to stay in contact with the Agency. The record reflects she was also attending parenting classes at Parent Care and having consistent visitation with no concerns.
At the contested six-month review hearing on December 16, Mother's counsel argued the Agency did not provide reasonable services, because it delayed in setting up visits with both girls and failed to provide referrals for TERM therapy and housing.
In her testimony, Mohammed acknowledged Mother did not receive two visits a week with each girl between her release in late September and early November. She said Mother did get two visits per week after that, and sees the girls together on Saturdays. She also said the person Mother identified to supervise visits did not pass the background check (presumably referencing the maternal aunt), and the caregivers were unwilling to do so. As for therapy, Mohammed testified she referred Mother to TERM therapy during the week of Thanksgiving. The counseling was to help Mother process "the areas around . . . substance abuse," among other purposes. She explained that Optum, the company that handled TERM referrals, had a policy that one must be "clean and sober for . . . 90 days" to see a TERM therapist. The earliest she could have referred Mother was around the time she did. Finally, Mohammed testified Mother was living in Grandmother's home and the Agency was not comfortable with this, but Mohammed had not yet initiated housing referrals.
Mohammed testified the following visits occurred: no visits the week of September 22 (noting P.L. was on vacation); one with Paige the week of September 29; one with Paige and one with P.L. after the CFT meeting the week of October 6; one with each girl the week of October 13; two with Paige and one with P.L. the weeks of October 20 and October 27; and one with Paige the week of November 3. It does not appear Mohammed was asked about a visit with P.L. that last week, but there is a visit evaluation form in the record for a November 8 visit with her.
The juvenile court found by clear and convincing evidence that reasonable services were provided or offered to Mother. The court explained:
"With regard to the mother's visitation, she's about to get unsupervised visitation. It doesn't appear that some of the lack of visitation had any [effect] [on] her relationship with the child[ren] or affected reunification, so I believe under the circumstances, it was reasonable, as were all the other services in light of the entire picture."The court continued the case to the 12-month date, and ordered unsupervised visitation. Mother timely appealed.
DISCUSSION
Mother contends she was not provided reasonable services, because the Agency did not comply with visitation orders; sibling visitation was not considered; the TERM referral was delayed; and there was no housing assistance. We reject these contentions.
A. Applicable Law
Services are considered reasonable if the child welfare agency has " 'identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents . . . .' " (In re Alvin R. (2003) 108 Cal.App.4th 962, 972 (Alvin R.).) "In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547 (Misako R.).) "Reunification services are voluntary, and cannot be forced on an unwilling or indifferent parent." (In re Jonathan R. (1989) 211 Cal.App.3d. 1214, 1220 (Jonathan R.).)
We review the juvenile court's reasonable services finding for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762; Misako R., supra, 2 Cal.App.4th at p. 545 ["[T]his court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed."].)
B. Analysis
Substantial evidence supports the juvenile court's finding that Mother was provided or offered reasonable services.
The girls were removed due to Mother's substance abuse. Her case plan included substance abuse treatment, as well as therapy and parenting education. However, between March and May, she denied substance abuse, did not maintain contact with the Agency, and had inappropriate visits. She disappeared with Father between June and August, later conceding she knew the social worker was looking for her. She was then arrested in early September. It was only after Mother's release in late September that she began to meaningfully pursue substance abuse treatment and regular visitation. Although it is not ideal that visits were sporadic during that period, services "need not be perfect." (Alvin R., supra, 108 Cal.App.4th at p. 972.)
Further, it was Mother's conduct that led to the caregivers being unwilling to supervise, and her arrest that required a renewed visitation referral to FVC. Additionally, as the juvenile court recognized, the missed visits did not harm her ability to start making progress on reunification during this period. By mid-November, she was seeing each girl twice a week, including at a joint visit on weekends. And by late November, she was clean for 90 days and received her referral to TERM therapy. She was also in substance abuse treatment and parenting classes. This initial progress was reflected in the Agency's changed recommendation for continued services and unsupervised visitation, which the juvenile court accepted.
Mother's arguments are unavailing.
First, Mother contends the juvenile court erred by finding the lack of visits did not affect her relationship with the girls or reunification, explaining the "issue was whether the Agency complied with the order" (i.e., for two visits per week) and the Agency conceded it did not do so. Not so. The issue was whether the Agency provided reasonable services under the circumstances. (Misako R., supra, 2 Cal.App.4th at p. 547.) As discussed ante, services need not be perfect, Mother contributed to the delays and issues with visitation, and she still ended up receiving consistent visits by mid-November. The court could properly consider the limited impact of the missed visits in concluding she received reasonable services, and we do not reweigh the evidence. (See A.A. v. Superior Court (2012) 209 Cal.App.4th 237, 242.)
Second, Mother contends the Agency and juvenile court failed to consider sibling visitation. The Agency argues Mother forfeited the issue by not raising it below, and she lacks standing regardless. (See In re Anthony P. (1995) 39 Cal.App.4th 635, 641 [forfeiture of error as to sibling visitation]; In re Asia L. (2003) 107 Cal.App.4th 498, 514 [addressing parent's standing to raise sibling visitation].) Assuming Mother preserved the argument and had standing to make it, we would reject it. The girls had consistent contact, notwithstanding any lack of formal sibling visitation. They were both placed with Tanner and Courtney from March through mid-August. P.L. was then placed with other paternal relatives, Catrina G. and Raymond C. After that, the caregivers indicated they would facilitate sibling contact, and the CASA report reflected they did so. And by mid-November, the girls had a joint weekly visit with Mother.
Mother's arguments lack merit. She argues sibling visitation was needed so the juvenile court could address the sibling-relationship exception to termination of parental rights, and the court had a duty under section 16002 to order sibling visitation as part of the permanent plan. Section 16002 does address sibling placement and visitation, and we agree with the Agency that these concerns are speculative. The case has not progressed to potential termination of parental rights or permanency planning. Also, the girls initially were placed together and later remained in contact. In re Cliffton B. (2000) 81 Cal.App.4th 415, cited by Mother here, is distinguishable for similar reasons. (Id. at p. 427 [juvenile court "fulfilled any implied duty" it might have to consider sibling visitation in permanency planning].) Mother also argues the Agency had a duty to consider sibling visitation. It had no need to do so when the girls lived together, and the reports showed the caregivers were committed to maintaining sibling contact and Mother had Saturday visits with both girls that commenced by November.
Third, Mother claims the Agency did not give her a timely referral to TERM therapy. We disagree. Therapy was in Mother's case plan to help her address substance abuse, and the Agency's contractor, Optum, required 90 days of being clean and sober before TERM therapy. It was reasonable for the juvenile court to impliedly find this policy made good sense, and that the Agency could properly defer the TERM referral consistent with it. Further, Mother's case plan required her to stop using drugs and pursue substance abuse treatment; had she promptly done so, she could have received her TERM therapy referral months earlier. In addition, social worker Mohammed did try to aid Mother before the TERM referral was possible, by suggesting she see a therapist at Parent Care.
Mother makes two additional arguments here, neither persuasive. She contends the 90-day sobriety policy for TERM therapy was not in her case plan. But, again, the plan already required her to stay clean. She also claims her "depression and her other potential mental health issues were one of the main reasons her family was in the dependency system." The girls were removed due to Mother's substance abuse issues. At the jurisdiction/disposition hearing, Mother argued the case was about drugs, stated there was no mental health issue, and requested that the therapy requirement be stricken. The juvenile court maintained that requirement, indicating therapy was to address her long-term drug use—not depression.
The cases cited by Mother involve failure to address the issues that actually led to removal, or are otherwise distinguishable. (In re Kristin W. (1990) 222 Cal.App.3d 234, 254-256 [children were removed due to poor hygiene and school attendance, but case plan did not address these problems]; Patricia W. v. Sup. Ct. (2016) 244 Cal.App.4th 397, 403, 423-425 [mother's mental illness led to removal, and agency did not sufficiently assist with services in this regard]; T.J. v. Sup. Ct. (2018) 21 Cal.App.5th 1229, 1232-1233, 1244 (T.J.) [intellectually disabled mother who was responsible for only 10 weeks of delay was waitlisted for therapy, in-home counseling, and parenting education and received no help with in-home support services, anger management, or housing].)
Finally, Mother contends the Agency expressed concerns about her living at Grandmother's home, but did not provide her with housing assistance. The lack of housing referrals does not undermine the reasonable services finding.
Mother does not establish she requested housing assistance before raising the issue at the six-month review hearing. Indeed, when she asked for the contested trial on services the previous month, she stated visitation was the only issue. Further, although safe, stable housing would be necessary at some point, Mother does not establish housing referrals would have been productive yet. She left Grandmother's home to be homeless with Father for three months over the summer, was still using drugs until early September, and just started substance abuse treatment in early October. (See Jonathan R., supra, 211 Cal.App.3d at p. 1220 [services "cannot be forced on an unwilling . . . parent"].) Once Mother made more progress, the record reflects she could be capable of securing other housing on her own, or at least asking the Agency for help in doing so; before moving in with Grandmother, she had both a job and a home.
Mother's authorities involve situations where housing was at issue, and are again distinguishable. (See T.J., supra, 21 Cal.App.5th at p. 1247-1248 [failure to provide safe, clean home was "a primary reason" for removal, but agency provided only a referral to a regional center that placed mother on waiting list for housing assistance]; In re T.W.-1 (2017) 9 Cal.App.5th 339, 346-347 [case plan did not include housing services, despite juvenile court direction that they be included]; In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212-1213 [social worker erred by viewing inability to afford housing as evidence father was uninterested in custody, instead of crafting plan to find affordable housing]; David B. v. Sup. Ct. (2004) 123 Cal.App.4th 768, 774 [granting petition for writ of mandate from setting of § 366.26 hearing; agency should have warned father that custody might turn on finding another place to live and done so when he could still act].)
On reply, Mother contends "housing was part of the initial problem that led to the loss of custody," citing a case plan goal that she would provide a "safe and drug free home environment." We need not address arguments raised on reply (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453), but reiterate the girls were removed because of Mother's substance abuse. The focus of the cited goal is eliminating drug use, which would render any home unsafe.
In sum, substantial evidence supports the juvenile court's finding that the Agency provided or offered reasonable services to Mother.
DISPOSITION
The orders are affirmed.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.