Erin R. v. Superior Court
Filed 2/15/13 Erin R. v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
ERIN R.,
Petitioner,
v.
THE SUPERIOR COURT
OF ORANGE COUNTY,
Respondent;
ORANGE COUNTY SOCIAL SERVICES AGENCY et al.,
Real Parties
in Interest.
G047669
(Super. Ct. Nos. DP020545 &
DP020546)
O P I N I O
N
Original proceedings;
petition for a writ of mandate to challenge an order of the Superior Court of
County, Deborah J. Servino, Judge.
Petition denied.
Frank Ospino, Public
Defender, Michael Hill, Assistant Public Defender, Nithin B. Reddy and Dennis
M. Nolan, Deputy Public Defenders, for Petitioner.
No appearance for
Respondent.
Nicholas S. Chrisos,
County Counsel and Karen L. Christensen, Deputy County Counsel, for Real Party
in Interest Orange County Social Services.
Law Office of Harold
LaFlamme and Linda M. O’Neil for Real Parties in Interest S.R. and J.R.
*
* *
Mother
Erin R. petitions for an extraordinary
writ (Cal. Rules of Court, rule 8.452) in the dependency case of her
children, S.R. and J.R. At a contested
24-month permanency review hearing (Welf. & Inst. Code, § 366.25,
subd. (a)(1); Cal. Rules of Court, rule 5.722)
conducted in November 2012, the juvenile court refused to return the children
to mother’s care, terminated mother’s reunification services, and scheduled a
section 366.26 hearing for March 7, 2013.
Because the court’s orders are supported by substantial evidence, we
deny mother’s petition.
FACTS
On
November 10, 2010, the Orange County
Social Services Agency (SSA) filed a juvenile dependency petition alleging
that four-year-old S.R. and eight-month-old J.R. came within the jurisdiction
of the juvenile court (§ 300, subd. (b)).
Pursuant to a stipulated factual basis for the allegations, the court
found the allegations of the petition to be true as to counts one and two: (1) “On or about November 7, 2010, the
children’s mother was arrested and incarcerated . . . and the mother is
unavailable to provide ongoing parental care and support for the children or
make alternate arrangements for the children’s care, thus placing the children
at risk of harm and neglectâ€; and (2) “the mother left the children in the care
of their maternal uncle and aunt, who are no longer able to provide ongoing
care and support for the children, thus leaving the children without a
caretaker and placing the children at risk of harm and neglect.â€
Mother’s
legal and personal problems were rooted in her use of controlled
substances. Mother started smoking
marijuana when she was 13 years old, and has used cocaine and ecstasy on few
occasions. Mother started using heroin
at age 19. She used heroin on and off
for approximately 10 years prior to this dependency
action. At her period of heaviest
use, prior to the birth of S.R., mother used heroin daily. Mother used methadone for approximately four
years, between the time she found out she was pregnant with S.R. and after the
birth of J.R. Mother claims she never
used heroin during this four-year period (approximately 2006 to 2010). Mother stopped using methadone in July 2010
and relapsed (i.e., began using heroin again) in September 2010. Mother attributes her relapse to her mental
state at the time: “I got complacent and
kind of just gave up on everything.â€
Mother
was arrested on November 7, 2010, for stealing $10,000 of personal property
from her aunt. Mother remained in county
jail until March 2011. Mother was
sentenced to prison on March 1, 2011, and was released from the Central
California Women’s Prison in Chowchilla, California, on March 27, 2012. Thus, mother was incarcerated for the
majority of the dependency action.
On
March 2, 2011, the court declared the children to be dependents under section
360, subdivision (d). The court vested
custody with SSA and ordered reunification services for mother. The court approved a visitation plan and a
case plan for mother. Mother’s case plan
included substance abuse treatment, parenting education, counseling, vocational
training, and substance abuse testing.
At the six-month (§ 366.21, subd. (e)) and 12-month (§ 366.21,
subd. (f)) review hearings, the parties stipulated to, and the court found, a
substantial probability of the return of the children to mother, which resulted
in a continuation of her reunification services.
At
a contested 18-month review hearing (§ 366.22) held in May 2012, the court
found the best interests of the children would be served by providing
additional reunification services and continuing the dependency action to a
24-month review hearing. SSA recommended
this outcome “as the mother was recently discharged from incarceration . . .
and is making significant and consistent progress in establishing a safe home
for the children.†The court approved of
SSA’s case plan for mother and incorporated the case plan (which was not
appealed at the time by mother) into its order.
The ultimate goal of the case plan was for the children to return home
by November 2012. The case plan tasked
mother with meeting five general objectives:
(1) obtain resources to meet the children’s needs and provide a safe
home; (2) demonstrate an ability and willingness to take custody of the
children; (3) stay free from drugs and show an ability to continue doing so;
(4) meet the children’s physical, emotional, medical, and educational needs;
and (5) stay sober and demonstrate an ability to continue doing so.
To
meet these objectives, SSA identified specific actions to be taken by
mother. First, mother would provide all
requested information to her social worker, keep all appointments with her
social worker, and immediately inform her social worker of any difficulties in
fulfilling her case plan. Second, mother
would participate in general counseling and/or therapy to address the reason
for the dependency case. Third, mother
would successfully complete a SSA-approved parenting class. Fourth, mother would successfully complete a
SSA-approved drug treatment program with “random, observed drug testing. All drug tests are to be negative for
drugs. A missed test is to be considered
a positive test.â€
The
court conducted its section 366.25 “subsequent permanency review hearing†over
the course of several days in November 2012.
Evidence presented at the hearing included the SSA report, the social
worker’s testimony, and mother’s testimony.
The basic facts (as opposed to conclusions and recommendations) set
forth in the SSA report were, for the most part, undisputed.
The
children lived with their maternal uncle and his fiancée in a “well furnishedâ€
two-bedroom apartment in San Clemente.
“The children have adjusted to their placement. The children appear to be happy living with
the caretakers. The apartment has been
clean when the [social worker] has visited.
The children respond to the caretakers appropriately. [¶]
The caretakers continue to provide for the needs of the children. The children attend school and have day care
after school.†The children are in good
mental and physical health. The uncle
“is unable or unwilling to adopt the children because of exceptional
circumstances that do not include an unwillingness to accept legal or financial
responsibility for the children, but is willing and capable of providing the
children with a stable and permanent environment through legal guardianship . .
. .†The SSA report suggests it “would
be detrimental to the emotional well being of the children†to remove them from
the physical custody of their uncle.
Mother
consistently participated in visitation, about 10 to 12 hours per week
immediately after being released from prison and up to 48 hours per week by the
time of the hearing. “The mother’s
visits went unmonitored on August 28, 2012.
The mother’s visits are reportedly going well. The visits occur on the weekends as the
caretaker works. The visits are two
times a week for 8 hours each visit. The
mother went to overnight visits on October 20, 2012 and they take place at the
caretaker’s home. The mother lives close
to the caretakers. The children enjoy
being with the mother. The caretakers
informed the [social worker] that they have no concerns regarding the mother’s
visits or the mother’s ability to care for the children.†Behavioral problems exhibited by S.R.
improved after mother was able to increase her visits.
Mother’s
cooperation with the case plan and progress addressing the cause of the
dependency was classified as “moderate†by the SSA report. Mother participated in random drug testing,
but she missed nine scheduled tests. All
of the tests actually taken by mother were negative. Mother attributed most of the missed tests to
work conflicts and transportation issues.
Mother also missed at least one test because she went to Yosemite for a
vacation, which she did not inform her social worker about ahead of time. Mother received permission to go on her
vacation from her probation officer and her sober living facility at the last
minute, which prevented her from informing the social worker about the vacation
in advance. Mother offered “no excuse
for missing†tests in September and October; she thinks she “just got
complacent†about calling in to check if she needed to test. The social worker had no indication mother
was using drugs based on her interactions with mother and her communications
with mother’s probation officer. The
missed tests did not cause the social worker to restrict visitation (as noted
above, visitation became unmonitored and more extensive).
Mother
completed some parenting coursework sent to her by the social worker while
mother was incarcerated. According to
her testimony, mother also (while in prison) completed a six-month drug
program, participated in counseling, and completed a substance abuse
program. After being released from
prison, the SSA report indicates mother failed to show up for therapy services,
with Ms. Yvette Kettering, set up by her social worker in May 2012. Mother testified that her work schedule did
not mesh with Kettering’s available hours.
Mother was on two waiting lists for the “Perinatal Program†but had not
actually started this program as of the time the SSA report was prepared. Mother started a parenting/counseling program
(F.A.C.E.S.) in October 2012 after being referred by her social worker in
September. The social worker felt like
she has had to nag mother to work on her case plan. “The mother attends AA meetings two times a
week. The mother has a sponsor,
Denise.†“The mother will be receiving
her 24 month chip soon.†Mother
testified that she has completed her 12 steps.
According
to the SSA report, “[t]he mother is doing well since being released from
prison. The mother has had challenges
working her case plan. There have been
delays in completing the case plan as the mother was working a job that had different
shifts. The mother’s shift would change
constantly. This made it difficult to
set up counseling and parenting classes.â€
Mother testified that it was difficult for her to obtain a job because
of her criminal history, which explained her willingness to work under these
conditions. In September 2012, “mother
moved from Anaheim to Mission Viejo and is living with the caretaker’s
sister. The mother turned in her
application for the Tustin Family Campus Prototypes housing for women and
children. The mother has an interview
October 23, 2012 at 12:00 [p.m.] The
mother was working at a hospital and her shift was never consistent. The mother had difficulty in attending
services due to her work schedule. The
mother has stopped working so she can concentrate on her case plan
requirements. . . . [¶] The mother’s significant relationships are
with her children, brother and extended family members. The mother denies having a boyfriend. [¶]
The mother has not had any known law enforcement involvement during the
reporting period.â€
Although
the social worker (who met with mother at least once per month) believed mother
was working on her case plan, she was “unable to recommend continued
reunification services†and therefore recommended “terminating services and
scheduling a Permanency Hearing.†The
social worker would have liked to have started a 60-day trial return of the
children to mother in about two months, but did not think mother had made
sufficient progress on her case plan to move forward with a trial return
yet. The social worker lamented the fact
that the process did not allow for additional time to provide reunification
services. Counsel for SSA, on the other
hand, was more emphatic in pointing to mother’s alleged shortcomings in
demonstrating her recovery from heroin addiction over the eight months since
her release from prison. Counsel for the
children agreed with SSA’s position.
Mother testified that she loves her children and is willing to do
whatever the court wants to reunify with them.
Counsel for mother asked the court to consider mother’s progress since
November 2010 and her challenges after being released from custody.
The
court found, pursuant to section 366.25, subdivision (a)(1), that the return of
the children to mother would “create a substantial risk of detriment to the
safety, protection, or physical or emotional well being of the
[children].†The court also found
reasonable services were provided to mother.
Pursuant
to section 366.25, subdivision (a)(2), the court specified the factual basis
for its decision orally: “The court has
considered among other things [mother’s] failure to participate regularly and
make substantive progress in the court-ordered treatment program, as well as
the efforts and progress as demonstrated;
[¶] and to the extent to which
the mother availed herself of the services, the social worker testified†“that
she had to nag mother. She’s been
released for roughly seven months. She
made moderate progress, but she hasn’t completed the Perinatal, her parenting
class. She missed tests and some of those
testings [mother] admitted that it was due to her complacency. [¶]
The court recognizes that [mother] did complete a program while she was
at [the women’s prison] and, according to [mother], she’s been two years sober,
but the problem is there isn’t anything for the court to rely on as far as
completing those court-ordered treatment programs.â€
“She
turned down Prototypes. She was
terminated from counseling with Miss Kettering, and [mother] has a substantial
history of substance abuse. And the
problem is we don’t have a proved successful completion of the substance abuse
treatment program. That was the original
problem, and that she left her kids with her brother without support while
incarcerated. That’s what the court has
to look at in considering whether there is a substantial risk of detriment to
the safety and protection and the physical and emotional well-being of the
children if they were returned.†“The
court finds that the extent of progress which has been made toward alleviating
or mitigating the causes necessitating placement by the mother has been
moderate.â€
Pursuant
to section 366.25, subdivision (a)(3), the court terminated reunification
services and set a section 366.26 hearing on March 7, 2013 to determine whether
adoption or long-term foster care was the most appropriate plan for the
children.
DISCUSSION
Mother
raises two arguments in her petition.
First, she claims the court erred by determining that returning children
to mother posed a substantial risk of detriment to the children. (§ 366.25, subd. (a)(1).) Second, mother asserts the case plan ordered
by the court and implemented by the social worker was inappropriate.
The
petition challenges orders issued by the court at the 24-month “subsequent permanency
review hearing.†(§ 366.25, subd.
(a)(1).)
return of the child to the physical custody of his or her
parent . . . unless the court finds, by a preponderance of
the evidence, that the return of the child to his or her parent . . . would
create a substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child.
The social worker shall have the burden of establishing that detriment.
. . . The failure of the parent . . . to
participate regularly and make substantive progress in court-ordered treatment
programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall
review and consider the social worker’s report and recommendations and the
report and recommendations of any child advocate appointed pursuant to Section
356.5; shall consider the efforts or progress, or both, demonstrated by the
parent . . . and the extent to which . . . she availed . . . herself of services
provided; and shall make appropriate findings pursuant to subdivision (a) of
Section 366.†(§ 366.25, subd.
(a)(1).) One factor listed in section
366, subdivision (a), is “[t]he extent of progress that has been made toward
alleviating or mitigating the causes necessitating placement in foster
care.†(§ 366, subd. (a)(1)(E).)
A
juvenile court’s findings are reviewed under the deferential substantial
evidence standard. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) “Under the substantial evidence rule, we must
accept the evidence most favorable to the order as true and discard the
unfavorable evidence as not having sufficient verity to be accepted by the
trier of fact.†(In re Casey D. (1999) 70 Cal.App.4th 38, 53.) As the petitioner, mother has the burden of
showing there is no evidence of a sufficiently substantial nature to support
the court’s finding. (
947.)
Here,
there is substantial evidence supporting the court’s findings. Mother did not comply with her drug testing
regimen. Mother took a vacation without
consideration of the effect it might have on the dependency case, leading to
one missed test. Mother admittedly grew
complacent about testing in September and October 2012. That same complacency could lead to a
relapse, as it has in mother’s past.
Mother did not complete the therapy and treatment prescribed in her case
plan; indeed, mother did not begin some of her assigned tasks until a month
before the review hearing. We certainly
appreciate the challenges faced by mother, a heroin addict and convicted felon,
and applaud her efforts to turn her life around. We sympathize with the difficulties of
juggling an unpredictable work schedule, overcrowded therapy programs (some of
which had waiting lists), random notices to go to drug testing, AA meetings,
and visiting one’s dependent children.
But with that said, returning children to the custody of mother would
require even more of mother than what she tackled with only “moderate†success
in the reunification period. Ultimately,
the question is not whether mother’s failure to fully comply with her case plan
was understandable or excusable. The
question before the court was whether the return of children to mother “would
create a substantial risk of detriment to the safety, protection, or physical
or emotional well-being of†the children.
(§ 366.25, subd. (a)(1).)
The evidence in the record supports the court’s order.
“If
the child is not returned to a parent . . . at the subsequent permanency review
hearing, the court shall order that a hearing be held pursuant to Section
366.26 in order to determine whether adoption, . . . guardianship, or long-term
foster care is the most appropriate plan for the child. . . . The court shall also order termination of
reunification services to the parent or legal guardian. The court shall continue to permit the parent
or legal guardian to visit the child unless it finds that visitation would be
detrimental to the child.â€
(§ 366.25, subd. (a)(3).) In
accordance with this subdivision, the court terminated reunification services
and set a section 366.26 hearing.
Appended
to the end of section 366.25, subdivision (a)(3), is the following
command: “The court shall determine whether reasonable services have been offered
or provided to the parent or legal guardian.†(§ 366.25, subd. (a)(3), italics
added.) The statute provides no
explanation as to what should occur if the court were to find reasonable
services were not offered or provided, given that the court is required at the
24-month review to either return the child to its parent or set a section
366.26 hearing. (Compare § 366.22,
subd. (b) [providing that, in certain circumstances, “court shall continue the
case [if] reasonable services have not been provided to the parentâ€].) It is unclear what remedy, if any, would be
available to mother were we to find reasonable services were not provided to
mother between the 18-month and 24-month review hearings.
Regardless,
our review of the reasonableness of the services provided is subject to the
substantial evidence standard of review.
(In re Misako R. (1991) 2
Cal.App.4th 538, 545.) “SSA must
make a ‘“‘good faith effort’â€â€™ to provide reasonable services responsive to the
unique needs of each family.
[Citation.] ‘[T]he plan must be
specifically tailored to fit the circumstances of each family [citation], and
must be designed to eliminate those conditions which led to the juvenile
court’s jurisdictional finding.
[Citations.]’ [Citation.] An effort must be made to provide reasonable
reunification services in spite of difficulties in doing so or the prospects of
success.†(Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1501.)
Here,
mother does not so much take issue with SSA’s efforts to provide her with
services, but instead contends that much of the service plan imposed on her at
the 18-month review hearing was unnecessary and/or inappropriate. In essence, mother claims she should not be
held accountable for failing to follow through on her service plan because it
was unreasonable for SSA to impose the regimen prescribed at the 18-month
review. Mother cites her completion of
therapy and educational programs while in prison as obviating the need for some
aspects of the case plan. Mother’s
specific attack is untimely, as she should have appealed the court’s orders at
the 18-month review to make this argument.
(See In re S.B. (2009) 46
Cal.4th 529, 531-532.)
Putting
aside the shortcomings in mother’s argument, there is substantial evidence
supporting the need to impose mother’s case plan and there is substantial
evidence supporting a finding that reasonable services were in fact provided to
mother. It is eminently reasonable to
require a heroin addict, who lost custody of her children because she spent the
preceding year-and-one-half in state prison, to participate in drug therapy,
drug testing, and parenting classes. The
social worker met regularly with mother and assisted in providing mother with
opportunities to satisfy the requirements of the case plan.
DISPOSITION
The
petition for extraordinary relief is denied.
IKOLA,
J.
WE CONCUR:
ARONSON,
ACTING P. J.
THOMPSON, J.
All statutory
references are to the Welfare and Institutions Code.
We ignore factual
and procedural history pertaining to the children’s respective fathers because
such information is irrelevant to the issues before us.
