In re Isabel C.
Filed 6/21/13 In re Isabel C. CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re ISABEL C.,
a Person Coming Under the Juvenile Court Law.
B247936
(Los Angeles County
Super. Ct. No. CK79718)
M.T.,
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES DEPARTMENT OF
CHILDREN AND FAMILY SERVICES,
Real Party in
Interest.
ORIGINAL proceeding for
extraordinary writ. Marilyn Mordetzky,
Referee. Writ denied.
Law Office of Marlene Furth,
Danielle Butler Vappie and Sue Dell for Petitioner.
No appearance for Respondent.
John F. Krattli, County
Assistant County Counsel, and Aileen Wong, Deputy
County Counsel, for Real Party in Interest.
In this
(mother) challenges the juvenile court’s finding and order at a hearing under
Welfare and Institutions Code
name="_ftnref1" title="">[1]
section 366.21, subdivision (f), that the Los Angeles Department of Children
and Family Services (the Department) provided her reasonable family
reunification services and that mother’s reunification services would be
terminated. Mother contends there was
court’s finding, and even if there was sufficient evidence, the court abused
its discretion by failing to consider ordering an additional six months of
services in light of the Department’s failure to provide reasonable services
during previous reporting periods. We
conclude there was sufficient evidence to support the juvenile court’s finding,
and that the court did not abuse its discretion by not ordering additional
services. Accordingly, we deny the writ.
BACKGROUND
This matter is before us for the
second time. In March 2011, mother filed
a petition for extraordinary writ after the juvenile court ordered termination
of reunification services at a section 366.21, subdivision (f) hearing on January
31, 2011. Shortly after the writ petition was filed,
the parties filed a joint application and stipulation for reversal, agreeing
that the order terminating services should be vacated and that mother should
receive six months of reunification services.
On March 30, 2011, we issued an order reversing the January
31, 2011
order and remanding the case to the juvenile court with directions to provide
mother with six months of reunification services and, following those six
months, to hold another hearing under section 366.21, subdivision (f). The instant writ petition involves the
findings and order made at the subsequent hearing. Because of the history of this case and the
issue currently before us in this writ proceeding -- whether the Department
provided reasonable reunification services after the case was remanded -- we
need not discuss in detail the facts of the case prior to our March 30, 2011
order.
Mother’s children, Isabel (born in
October 1997) and Nataly (born in March 1999), came to the attention of the
Department in October 2009, after mother was arrested for neglect under Penal
Code section 273a, subdivision (a).
Peace officers went to the family’s home following a report that mother
had punched a window in her apartment, causing the glass to break. The officers questioned mother, who was
incoherent. They observed that the home
was filthy and bug infested. There was a
strong foul odor, spoiled food everywhere, and trash and clothing strewn
about. The children told one of the
officers that mother was not providing food, shelter, clothing, or supervision,
and was physically abusing them. The
children were taken into protective custody, and the Department filed a
petition under section 300. The children
were ordered detained.
At the Pretrial Resolution Conference
(PRC), the court sustained counts alleging that (1) mother “suffers from
periods of confusion, mental and/or emotional instability, and/or memory lossâ€
and has inflicted physical abuse on the children; (2) mother “has exhibited
bizarre behavior,†has locked the children out of the home on several
occasions, and has failed to provide for the children’s food, clothing, or
medical care while the children resided with unrelated adults; (3) mother
“established a filthy and unsanitary home environment†for the children; and
(4) the children’s father and mother have a history of engaging in violent
altercations.
title="">[2] The court declared the children dependents of
the court under section 300, subdivisions (b), (g), and (j), and ordered
reunification services to be provided to mother, including parenting education
and individual counseling to address anger management, domestic violence, and
case issues. In addition, the court
ordered mother to submit to psychological/psychiatric evaluation and treatment
as recommended.
At the time of the PRC, mother was
still incarcerated, under an immigration hold.
In March 2010, the Department learned that mother was being held at the
United States Customs and Immigration Detention Center in Eloy, Arizona.
She was ordered deported to Mexico on April 29,
2010, but
she filed an appeal and remained in custody until July 15,
2010, when
she was deported. In the meantime, in
January 2010, the children were placed with a non-related extended family
member, Tanisha H., a former neighbor who took care of the children on those
occasions when mother locked them out of their home or failed to care for them.
By the time of the original 12-month
review hearing in January 2011, mother had had very little contact with the
Department and had been provided virtually no reunification services, due
primarily to her incarceration and deportation.
Mother was living in a small town in Mexico, and her only access to a
telephone was a local town telephone; if she received a call on that telephone,
someone from the town would contact her.
Despite the very limited contact the Department had with mother up to
that point, the juvenile court found that the Department had provided
reasonable services. The court also
found that mother was not in compliance with her case plan, and terminated her
reunification services. As noted above,
mother filed a petition for extraordinary writ and, based upon the parties’
joint application, this Court issued an order on March 30, 2011, reversing the
juvenile court’s order with directions to provide an additional six months of
services, followed by a new 12-month review hearing.
The day after we issued our order, the
social worker assigned to the case spoke to mother by telephone. Mother told the social worker that she had an
appointment with a psychologist, scheduled through DIF
in the City of Zihuatanejo, and she would see what services they could provide
at that time. The social worker reminded
mother that the juvenile court had ordered her to attend a parenting program
and individual counseling to address various issues, and also ordered her to
submit to a psychological/psychiatric evaluation with treatment as
recommended. The social worker also
noted that the court ordered weekly monitored telephone contact with the
children, and told her that the children’s caregiver would contact her on a
weekly basis so she could talk with her children.
Following issuance of the remittitur,
on April 14, 2011, the juvenile court ordered the Department to provide six
months of reunification services and set a 12-month review hearing under
section 366.21, subdivision (f) in October 2011. The court ordered the Department to establish
contact with DIF and ensure that referrals and services were being provided to
mother.
Despite the court’s orders, more than
two months elapsed before the Department made any effort to provide
services. Finally, on June 24, 2011, the
social worker assigned to the case attempted to call mother in Mexico. He spoke with mother’s sister, who told him
mother was living in another town; she gave him a telephone number to contact
her. The social worker attempted to call
that number two weeks later, but the call did not go through. Seven weeks later, he attempted to call
again, but did not reach her. He called
again three weeks after the previous attempt.
On that day, September 12, 2011, he spoke to another of mother’s
sisters, who told him mother was in another village and could be contacted on a
public telephone there. He attempted to
contact her at that number that same day, but the call would not go
through. Three weeks later, on October
4, the social worker called the number for mother and got her voicemail. He left a message asking mother to call
him. He then attempted to call the
psychologist mother had told a different social worker on March 31, 2011 she
was going to see, but the number was incessantly busy. He tried to call the psychologist again on
October 11 (the week before the scheduled 12-month review hearing), but again,
the call would not go through. In short,
between the time the juvenile court ordered the Department to provide
reunification services to mother and the date of the review hearing, the
Department made limited efforts to speak to mother or the psychologist she
purportedly saw, all of which were unsuccessful. During this same period, the children
attempted to call mother eight times, and were able to speak to her once;
mother and the children also exchanged letters once.
In its report for the scheduled
hearing, the Department reported that the children had adjusted well to their
foster home and they each emphatically stated that they wanted to live with
their foster mother (who said she was willing to adopt them) and did not want
to live with mother. The Department
recommended termination of reunification services.
The 12-month review hearing was
continued to December 7, 2011 for a contested hearing, and the Department was
ordered to file a supplemental report by November 22 to address all of its
efforts to involve and contact DIF and to provide reunification services for
mother in Mexico. In its November 22 supplemental report, the
Department listed all of its attempts to contact mother and/or DIF in Mexico
since the matter was remanded. In
addition to the contacts or attempted contacts discussed above, the Department
reported the following.
A week after the October 18, 2011
hearing, mother’s counsel left a message for the social worker, stating that
she had spoken to mother; counsel provided the telephone number where mother
could be reached. The social worker
called mother the same day. Mother told
the social worker that she enrolled in a domestic violence class and a
parenting class. When the social worker
asked if she had been receiving psychiatric evaluation or counseling, mother
initially said she did not need a psychiatric evaluation, but when reminded
that the court had ordered it, she said she was receiving ongoing services from
a psychologist. The social worker asked
her to give him the name, address, and telephone number for the service
providers so he could confirm her participation, but she told him she did not
have that information at that time, and asked him to call her back in a half
hour. When he tried to call her back,
there was a busy signal both times the number was called.
The social worker attempted to call
mother the next day, twice in the morning and twice in the afternoon, but the
number was busy each time. He tried
several times again over the next two days, but none of the calls went
through. Four days later, on October 31,
the social worker conducted an internet search to try to find an address or
telephone number for the DIF office in Zihuatanejo, Mexico; it appears he was
not successful.
The social worker was able to reach
mother again on November 7, 2011. He
told her he had been trying to reach her to get the contact information for the
therapist she had been seeing, which she had promised to provide. Mother told him she had the information at
her house, and went to retrieve it. She
returned to the telephone 15 minutes later, and told the social worker she did
not have a key to the house and therefore could not give him the
information. He asked her to give her
the name of the therapist in the meantime, but mother did not respond. He could hear the sounds of children in the
background as he called out “Hello, hello,†but mother did not say
anything. Eventually he heard the sound
of the telephone disconnecting. An hour
later, he called back, and mother answered.
She told him the earlier call had been cut off. Mother offered to go and get the telephone
number of the therapist, but the social worker insisted that mother first
provide him with the therapist’s name and the number of sessions she
attended. Mother then gave him the
therapist’s name (Arturo Sanchez) and telephone number, as well as the name of
the clinic and the town in which it is located.
She told him she attends two sessions per week, and that she also takes
parenting classes and domestic violence classes. When asked if she had submitted to a
psychological/psychiatric evaluation, she told the social worker that her
therapist told her she did not need to do so.
In response to the social worker’s statement that she was required by a
court order to submit to such an evaluation, mother said that she had never
been informed of that order.
The following day, the social worker
called the number mother had provided for the therapist. A recording stated that the number could not
be reached at that time, and instructed the caller to call back later. That same day, the social worker conducted an
internet search to find the telephone number for the director of municipal
health services for the city of Zihuatanejo, Mexico, in order to verify the
whereabouts of mother’s therapist, Arturo Sanchez. He called the number listed on the city’s
website, but the number was not functioning.
He then sent an email to the address listed on the website for the
director of municipal services.
The following day, the social worker again
called the number mother had given to him for her therapist. Once again, there was a voice recording
instructing the caller to call back at another time. He tried that number once more a week later,
with the same result.
The 12-month review hearing was
continued once again, to January 26, 2012.
In its report for that hearing, the Department provided updates on its
continuing attempts to provide services and/or verify mother’s participation in
services since the previous hearing on December 7, 2011. On December 8, the social worker attempted to
call mother, but the telephone lines to Mexico were overloaded, and the call
could not be completed. He tried to call
a week later, but the call did not go through after several attempts. He tried again on December 27, but got a
recording stating that the number could not be reached at that time, and
instructing the caller to call back later.
The social worker called again on
January 10, 2012, and was able to talk to mother. He confirmed that mother had received the
notice of the last hearing, and told her she would soon receive a notice of the
next hearing (which had been mailed the day before the conversation). He asked
mother whether she was taking any classes on domestic violence or parenting,
and whether she had been evaluated by a psychiatrist. She told him she was receiving the classes
with psychologist Arturo Sanchez and that he told her she did not need to see a
psychiatrist. The social worker again
reminded mother that the court had ordered her to be evaluated by a
psychiatrist. When the social worker
asked for Sanchez’s telephone number, mother said she had to go get it. She returned to the phone a few minutes later
with the number. The social worker then
called that number, but the person who answered said there was no one there by
the name of Arturo Sanchez; the person said the number reached was a telephone
booth. We note that the number indicated
by the social worker in the report is the same number he had called to reach
mother.
The 12-month review hearing was
continued several more times. Shortly
before one of the continued hearings, the Department filed a last minute
information with the court, discussing the Department’s efforts to contact DIF
in Mexico. The Department explained that
the social worker went to the office of the Consulate General of Mexico in Los
Angeles on March 6, 2012, to obtain an official explanation of the function of
DIF. He met with the consul of legal
affairs on March 14, who told him about the procedure used to forward
information to DIF regarding a Mexican citizen, and gave him the name and
telephone number of the person in Los Angeles who is familiar with the
procedure and acts as the liaison. The
social worker called that number several times and left voicemail messages, but
at the time of the report he had not received a response from the liaison.
The court held the contested hearing
on April 4, 2012, and found that the Department had not made reasonable efforts
to comply with the case plan. It ordered
the Department to provide a progress report on its efforts to contact DIF in
Mexico, and to facilitate telephone contact for the children with mother with a
written telephone schedule to allow for contact once a week. The court set a date for another hearing in
October 2012, and stated that the hearing would still be a section 366.21,
subdivision (f) hearing in light of its finding of no reasonable services.
In the progress report filed in
compliance with the court’s order, the Department reported that the social
worker obtained from the Los Angeles liaison, Nilda Roos, the telephone number
of the DIF in the state of Guerrero, Mexico.
He called that number on April 13, 2012 and spoke to Gretel Davila from
the office of the coordinator general of human rights for the city of Costa
Chica; the office is part of DIF. Davila
agreed to obtain information about mother’s participation in therapy with
psychologist Sanchez, and asked for a copy of the court order documenting the
programs that mother was required to complete.
The social worker sent Davila an email a few days later with the
requested information. On April 18, the
social worker received an email from Davila stating that she had confirmed with
the head of the psychology department that mother was receiving therapy, and
she would send him an official document to that effect.
The Department’s progress report also
detailed mother’s telephone and written contacts with the children from April
2011 to April 2012. The report shows
that, from April 22, 2011 through March 2012, the children called mother eight
times, but were able to reach her only one of the times, mother called and
spoke to the children twice, the children sent three letters to mother, and
mother sent one letter to the children and a birthday card to Nataly.
The Department filed another report in
advance of the scheduled section 366.21, subdivision (f) hearing on October 3,
2012. It reported that the social worker
tried to call the telephone number for Gretel Davila on May 14, June 21, June
27, July 23, and July 31, but could not get through because either the number
could not be connected or there was a continuous busy signal. He called the liaison, Nelda Roos, twice to
see if there was another number, but he was told that he just had to keep
calling over and over until he got through.
He sent letters on July 23, August 8, August 14, August 28, and
September 24 to the coordinator for the Office of Defense of the Minor to
solicit their assistance in obtaining information on the status of mother’s
participation in the court-ordered services.
Finally, he sent another email to Gretel Davila on September 6, asking
for assistance. Apparently, he did not
receive any responses to his written inquiries.
The status review report for the October
3 hearing also included a list of telephone and attempted telephone contacts
between the children and mother. It
showed that the children or their foster mother attempted to call mother 19
times between April 9, 2012 and September 15, 2012, and spoke to mother only
one of those times; the other times, there was no answer, the telephone was
busy, or someone answered but said that mother was not there. The list also showed that mother called the
children three times, although she did not talk to the children one of those
times because they were at school.
The October 3, 2012 hearing was
continued to November 19, 2012, due to improper notice to mother. The hearing was continued two more times,
again due to improper notice to mother, and once more due to the illness of
mother’s counsel. It finally was held on
February 13, 2013. At that hearing,
counsel for mother conceded that the allegations against mother were fairly
severe, that mother was “not a meritorious client for reunification,†and that
the Department had attempted to do everything it was required to do during the
six-month period from April 2012 to October 2012. But she argued that it could have done
more. She criticized the Department for
not following up more often when calls to DIF did not go through, and not
sending a letter directly to the therapist mother was seeing, after the social
worker’s correspondence to the Mexican agency asking for updates on mother’s
participation in programs produced no response.
Finally, she noted that the Department had made no further attempts to
contact DIF (or to ensure telephone contact between mother and the children)
since the Department filed its report in advance of the October 3, 2012
hearing.
The juvenile court found the
Department had made reasonable efforts to provide services, and mother was not
in compliance with her case plan. In
doing so, the court noted that mother had made no effort to provide information
to the Department or to assist the Department in verifying her participation in
the court-ordered programs. The court
also found there was not a substantial probability that the children could be
returned to mother before the 18-month review hearing, ordered termination of
reunification services, and set a date for the selection and implementation
hearing under section 366.26. Mother
challenges that order in this writ proceeding.
DISCUSSION
A.
Provided Under the Circumstances
Mother contends there was insufficient
evidence to support the trial court’s finding that reasonable reunification
services were provided to mother. We
disagree.
When a child is removed from a
parent’s custody, the responsible agency must make a good-faith effort to
develop and implement reasonable family reunification services responsive to
the needs of that family. (
234, 254.) “The adequacy of a
reunification plan and of the department’s efforts are judged according to the
circumstances of each case. . . .
‘The effort must be made to provide suitable services, in spite of the
difficulties of doing so or the prospects of success. [Citation.]’
. . . ‘[T]he record should show
that the [department] identified the problems leading to the loss of custody,
offered services designed to remedy those problems, maintained reasonable
contact with the [mother] during the course of the service plan, and made
reasonable efforts to assist the [mother when] compliance proved difficult.
. . .’ [Citation.]†(In re
Ronell A. (1996) 44 Cal.App.4th 1352, 1362.)
“When a finding that reunification
services were adequate is challenged on appeal, we review it for substantial
evidence.†(In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) “[T]his court must view the evidence in a
light most favorable to the respondent.
We must indulge in all reasonable and legitimate inferences to uphold
the judgment. [Citation.] ‘If there is any substantial evidence to
support the findings of a juvenile court, a reviewing court is without power to
weigh or evaluate the findings.’†(
At the outset, we must acknowledge
that, although this case presented some unusual challenges due to mother’s
incarceration, deportation, and ultimate residence in a small town in Mexico,
the Department’s efforts to provide services to mother during the first two and
a half years fell far short of what was required of it. But those two and a half years -- from
October 2009 to April 2012 -- are not at issue in this writ proceeding. Rather, the relevant period is the period for
which the juvenile court found the Department had provided reasonable services,
i.e., April 2012 to October 2012. And
the record shows that the Department made significant, although ultimately
unsuccessful, efforts to provide services to mother under challenging
circumstances.
For example, the social worker
assigned to the case spoke with a coordinator at a DIF office in April 2012 to
confirm that mother was receiving therapy.
The social worker attempted to obtain additional information about
mother’s progress and her participation in other court-ordered programs by
calling the coordinator once in May, twice in June, and twice in July, but the
calls would not go through; he contacted the Los Angeles liaison to see if
there was a different number he could call, but was told there was not. He then sent five letters and an email over
the course of the next two months, seeking that information, but received no
response.
The social worker was unable to
confirm mother’s participation in therapy and programs directly with the
provider because mother apparently did not give the provider’s correct contact
information to the social worker.
Indeed, it appears that mother may have sought to avoid giving the
information to the social worker. When
she first told the social worker about her participation in therapy and
programs, she could not provide the name or contact information of the
provider, and asked him to call back; when he did so later that day (twice) and
over the next two days, the line was busy.
When he finally was able to reach her again a few days later, she told
him she could not give him the contact information because it was at her house
and she did not have a key; when he asked for the name of the therapist, she
did not respond. An hour later, in
another telephone call, mother finally provided the therapist’s name and
telephone number (as well as the name of the clinic and the town in which it is
located), but every time the social worker called that number, there was a
recording stating that the number could not be reached at that time. During a telephone call a few months later,
mother gave the social worker another number for the therapist, but when the
social worker called it, he was told that he had reached a public telephone
booth.
In light of mother’s apparent
evasiveness and the Department’s repeated, though largely unsuccessful,
attempts to contact -- by telephone, mail, and email -- the agency in Mexico
charged with assisting and protecting the welfare of families, there was little
more the Department could do to provide services to mother, short of having a
social worker travel to Mexico to meet with mother and her providers
personally. The Department was not
required to do this. “The requirement
that reunification services be made available to help a parent overcome those
problems which led to the dependency of his or her minor children is not a
requirement that a social worker take the parent by the hand and escort him or
her to and through classes or counseling sessions.†(In re
Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.)
We concede that the outcome here is
far from ideal. But as one court has
observed, “we must . . . recognize that in most cases more services might have
been provided, and the services which are provided are often imperfect. The standard is not whether the services
provided were the best that might have been provided, but whether they were
reasonable under the circumstances.†(
Cal.App.4th 965, 969.) Under the
circumstances of this case, we conclude there is
juvenile court’s finding that the Department made reasonable efforts to provide
services to mother between April 2012 and October 2012.
B. The
Court Did Not Abuse its Discretion by Failing to Order Additional
Services
Mother contends the juvenile court did
not believe it had discretion to order an additional six months of reunification
services, and abused its discretion by terminating services and setting a
section 366.26 hearing. We find no abuse
of discretion.
Under section 366.21, subdivision (g),
if a child is not returned to the parent’s custody at the section 366.21,
subdivision (f) hearing, the juvenile court may order an additional six months
of reunification services, but only if the court finds there is a substantial
probability that the child will be returned to the physical custody of his or
her parent within those six months.
(§ 366.21, subds. (g)(1), (2).)
However, in order to make that finding, there must be evidence that,
among other things, the parent consistently and regularly contacted and visited
the child (although the statute directs the court to take into account any
barriers to the parent’s ability to maintain contact or visit with the child
due to the parent’s arrest and/or deportation).
(§ 366.21, subds. (g)(1), (3).)
In this case, the record shows that,
even taking into account the barriers to contact due to mother’s deportation to
Mexico, mother did little to maintain contact with her children. In the nearly two years from the time
mother’s first petition for extraordinary writ was filed to the order at issue
in this proceeding, mother called and spoke with the children a total of four
times (she was unable to speak to them on another occasion because they were at
school when she called). She spoke to
them on two other occasions when the children called her (they placed 25
additional calls, but were unable to reach her). Even if the blame for the lack of telephonic
communication could be placed upon mother’s lack of funds or difficulties with
the Mexican telephone system, mother could have maintained regular contact with
the children by mail, but did not do so.
In fact, the record shows that over the course of those two years,
mother sent a single letter to the children and one birthday card to
Nataly. In light of mother’s failure to
maintain regular contact with the children, we conclude the juvenile court did
not abuse its discretion by terminating mother’s reunification services and
setting a section 366.26 hearing.
DISPOSITION
The petition for
extraordinary writ is denied. Our May 3,
2013 order staying the section 366.26 hearing is hereby vacated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
undesignated statutory references are to the Welfare and Institutions Code.
time of the PRC, the whereabouts of the children’s father were unknown. The Department learned from his mother that he had been deported to Mexico, but she did not have his
address or telephone number.
