In re Joey H.
Filed 6/12/13 In re Joey H. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re JOEY H. et al, Persons
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
MICHELLE R.,
Defendant and Appellant.
D063258
(Super. Ct.
No. EJ3123A-B)
APPEAL from
orders of the Superior Court
of
County, Carol Isackson, Judge.
Affirmed.
William
Hook, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and
Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
Michelle R.
appeals juvenile court orders made at a six-month review hearing and Welfare
and Institutions Code,
name="_ftnref1" title="">[1]
section 388 hearing concerning her children, Joey H. and Kylie H. She contends insufficient evidence supports
the court's finding that she was provided reasonable
its discretion by granting a 388, subdivision (c) petition by the San Diego
County Health and Human Services Agency (the Agency) to terminate her
reunification services; and the court abused its discretion and violated her
for a continuance of the hearing. We
affirm the orders.
FACTUAL AND
PROCEDURAL BACKGROUND
Joey and
Kylie first became dependent children of the juvenile court in July 2009 based
on their father, E.H.'s, and Michelle's use of methamphetamine and histories of
substance abuse. The children were
placed together in a foster home.
Michelle and E.H. participated in the services offered to them,
including substance abuse
treatment, parenting education and therapy.
After Michelle completed residential treatment, the children were
returned to her care. In March 2011, the
court awarded custody to her and terminated jurisdiction.
In March
2012, the Agency petitioned again under section 300, subdivision (b) on behalf
of Joey and Kylie. The petitions alleged
the family home contained a small baggy of amphetamine and drug paraphernalia
within reach of the children, and Michelle admitted she was again using
methamphetamine, alcohol and marijuana.
The court found the allegations to be true, declared the children
dependents of the court, ordered Michelle and E.H. to comply with the
provisions of their case plans, and ordered the children placed with a
nonrelative extended family member. The
children were placed with the family who had cared for them during their first
dependencies. In August 2012, the court
granted the caregivers' request to be named the children's de facto
parents.
Michelle
had first used methamphetamine in 1995.
She had lost custody of her first child to that child's father after she
refused the services that were offered to help her deal with her substance
abuse issues. When she met with the
social worker in March 2012, she said she had resumed using methamphetamine
again only 10 days earlier. She admitted
drinking and using marijuana occasionally and said she had had domestic
violence incidents with E.H. She wavered
between saying she needed reunification services and saying she had already
done services and they were not effective.
Michelle
did not participate in her services plan and was terminated from Drug
Court. In
September, a felony burglary warrant was issued for her arrest. E.H. also was not participating in services.
On October 30, 2012, the Agency
petitioned under section 388, subdivision (c), requesting that the court
terminate reunification services and set a section 366.26 hearing. It later withdrew its petition with regard to
E.H. because he appeared willing to engage in services and was having
unsupervised visits with the children.
In December, Michelle's therapist reported Michelle had called him
saying she wanted to stop therapy. He
said she was either high on methamphetamine or having a psychotic episode. Michelle then missed an appointment to enter
drug treatment.
At the
six-month review hearing and hearing on the Agency's section 388, subdivision
(c) petition on December 20, 2012, the court denied Michelle's counsel's
requests to continue the hearing to allow Michelle to present information on
her recent participation in Alcoholics Anonymous and Narcotics Anonymous
(AA/NA) meetings. The court stated it
would make provision for the information to be presented to the court if it
were established that the information was reliable and shown to exist. During testimony, the social worker reported
she had met with Michelle about four times and they had had numerous telephone
conversations about Michelle's case plan.
She said Michelle called her many times, sometimes as much as three
times a day. She said Michelle was very
argumentative, had trouble staying focused and had left yelling, threatening
voice mail messages for the social worker.
When Michelle was asked to stipulate to her claim that she had
participated in substance abuse treatment
in Los Angeles, she declined
to do so.
After
considering the evidence and argument by counsel, the court found Michelle and
E.H. had been provided reasonable services.
It granted the Agency's petition under section 388, subdivision (c) to
terminate Michelle's services, continued services for E.H., and continued the
children's placement.
DISCUSSION
I
Michelle
contends there was not substantial evidence presented to support the finding
she was provided reasonable reunification services. She argues the Agency did not correctly
implement her reunification plan in that it did not provide adequate assistance
with transportation, require enough drug testing, or properly address her
mental health issues, and the social worker did not maintain sufficient
communication with her.
In
determining the sufficiency of reunification
services the role of the appellate court is to decide "whether the
record discloses substantial evidence which supports the juvenile court's
finding that reasonable services
were provided or offered." (Angela S.
v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The standard is not that the best possible services were provided, but that reasonable services were provided
under the circumstances. (In re
Misako R. (1991) 2 Cal.App.4th 538, 547.) "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.) A parent's problems do not excuse him or her
from participation in a reunification
plan. (Angela S. v. Superior
Court, supra, 36 Cal.App.4th at p. 762.)
Substantial
evidence supports the finding Michelle was offered or provided reasonable
reunification services. During the
children's previous dependency period, she was able to retain custody through
her commitment and participation in residential drug treatment, Drug
Court, parenting classes and therapy. She, thus, knew what she needed to do in
order to reunify. After the children
were removed this time, she was offered services with the primary objective of
helping her stay free from substance abuse and provide adequate care for her
children. She was expected to complete a
psychological evaluation, enroll in parenting education, meet with a substance
abuse specialist and abide by all recommendations, have residential drug
treatment, drug test, participate in therapy, and have regular visits with the
children. Michelle, however, did not
work on the provisions of her reunification services, but continued to use
drugs.
Michelle
was offered opportunities to participate in all of the components of her
services plan. She was scheduled to have
a psychological evaluation, but missed the appointments that were made and an
evaluation was never completed. She
agreed to have in-home parenting instruction, but did not respond to voice mail
messages left for her by the parenting instructor. She did not meet with a substance abuse
specialist as required, did not enroll in substance abuse treatment and did not
complete clean drug tests. As for her
claims she needed more help with transportation, Michelle did not pick up bus
tokens the social worker left for her.
The social worker explained Michelle was not eligible for a replacement
compass card to assist with transportation because she was not participating in
her services.
Although we
agree it is best for a social worker to have regular, recurring communication
with a parent, here there were significant impediments to the social worker
keeping in more continuous contact with Michelle.
would be able to communicate effectively with Michelle only after Michelle
became clean and sober and had assistance with her mental health issue. She said when she called Michelle it was
usually to address a narrow issue because during telephone calls Michelle
easily got off track and repeated the same conversation over and over. Such conversations were not helpful in
assisting Michelle to begin to participate in and progress with the components
of her reunification plan. The social
worker said she had not gone to Michelle's home because Michelle said she did
not have a home, and she had not met in person with Michelle during two months
of the case because Michelle did not have a reliable telephone number where she
could be reached. However, the social
worker said that she tried to respond to Michelle's telephone calls promptly if
Michelle had a specific request, and she had left many voice mail messages for
Michelle. Although the social worker did not always have monthly meetings with
Michelle, when we consider all of the evidence together, we conclude she kept
adequate contact with Michelle and provided sufficient assistance. Here, there was substantial evidence to support
the finding Michelle was provided reasonable reunification services.
II
Michelle
asserts the court abused its discretion by granting the Agency's motion to
terminate her services. She argues she
showed she was likely to reunify because she had been visiting the children and
was starting to participate in services.
When a
juvenile court removes a child who is three years old or older from parental
custody, the parents are generally entitled to 12 months of reunification
services. (§§ 361.5, subd. (a)(1)(A), 366.21, subd. (f).) However, a party may petition under section 388, subdivision (c) for the court to terminate services
before the 12-month date. Section 388, subdivisions (c)(1)(B) and (c)(3)
provide the court shall terminate reunification services if it finds the action
or inaction of the parent has created a substantial likelihood that
reunification will not occur and that reasonable services were offered or
provided. In making its determination, the court considers factors such
as the parent's failure to visit the child or participate regularly and make
substantive progress in a court-ordered treatment plan. (§ 388, subd. (c)(1)(B).) A court has discretion to terminate services
for one parent even when ordering services for the other parent. (In re Jesse W. (2007) 157 Cal.App.4th 49, 58; In re
Alanna A. (2005) 135 Cal.App.4th 555, 565; In re Katelynn Y. (2012) 209 Cal.App.4th 871, 880.)
The court
did not abuse its discretion by terminating Michelle's reunification
services. Reasonable services were
offered and provided to Michelle, but she did not participate regularly in the
court-ordered services offered to her.
She had struggled with drug addiction for about 17 years and she drank
alcohol and used marijuana. She did not
meet with a substance abuse specialist or enroll in a treatment program as
required by her case plan. She requested
a referral to Drug Court, but did not appear for the Drug Court hearings and
was terminated from the program. Also,
she did not successfully drug test.
Michelle
agreed to have a psychological evaluation, contact her former therapist so that
she could restart therapy and have in-home parenting training, but she did not
follow up on these resources and did not return messages left for her. She did not show that she was starting to
participate in her services plan.
Michelle has not shown the court abused its discretion in terminating
her reunification services.
III
Michelle
also maintains the court abused its discretion and violated her rights to due process
by denying her request for a continuance.
She argues she showed good cause to continue the hearing because she
needed time to produce proof she had participated and progressed in services,
and the court denied her the right to present her case.
The
juvenile court may grant a continuance
only on a showing of good cause. "[T]he court shall give substantial
weight to a minor's need for prompt resolution of his or her custody
status . . . ."
(§ 352, subd. (a).)
"Continuances are discouraged [citation] and we reverse an order
denying a continuance only on a
showing of an abuse of
discretion [citation]." (In re
Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
"[D]ue process
requires 'notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity
to present their objections.'
[Citation.]" (In re
Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) "The essence of due process is fairness
in the procedure employed . . . ." (Ingrid E. v. Superior Court
(1999) 75 Cal.App.4th 751, 757.)
Michelle
has not shown the court abused its discretion by denying her request for a
continuance. Michelle's counsel made an
oral motion to continue the hearing 15 minutes after the time set for the
hearing to begin when Michelle had not yet arrived. After Michelle arrived, counsel again renewed
the motion and explained Michelle said she had several months of NA/AA meeting
slips that she wanted to submit, but she had not brought them to court. The court denied the request, but indicated
the information could be presented if it were shown to be reliable and to
exist. Michelle, however, did not
testify and she declined to stipulate to her claim she had participated in
substance abuse treatment in a Los Angeles program. She had notice and an opportunity to be
heard. She has not shown the court
abused its discretion by denying her request for a continuance of the hearing
and she has not shown a denial of due process.
DISPOSITION
The orders are affirmed.
HALLER, J.
WE CONCUR:
McCONNELL, P.J.
AARON, J.
name="_ftn1" title="">[1] Statutory references are to the Welfare and Institutions
Code.
name="_ftn2" title="">[2] We note the court explored the issue of the social worker's
and Michelle's communications by asking the social worker about her contacts
with Michelle and questioning why she had not set up additional meetings.
