In re Joshua A.

Filed 5/19/08 In re Joshua A. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Julian W. Bailey, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Alexandra G. Morgan, Deputy County Counsels, for Plaintiff and Respondent.

* * *

Robyn A. (mother) appeals from an order terminating her parental rights to her son, Joshua. She contends the court failed to offer reasonable reunification services to treat the mental health and substance abuse problems that led to Joshuas removal. We reach the merits of this claim because the court did not adequately notify mother that she could challenge its order terminating reunification services only by writ petition. On the merits, mother received reasonable reunification services. We affirm.

FACTS

Joshua was taken into protective custody after mother reported hearing voices in the walls of her apartment in August 2005. Mother tested positive for methamphetamine and was diagnosed with amphetamine dependence and substance induced psychotic disorder. The Orange County Social Services Agency (SSA) filed a juvenile dependency petition alleging mother had failed to adequately protect Joshua due to a long history of substance abuse and mental health issues. (Welf. & Inst. Code,  300, subd. (b).)[1] After a detention hearing, the court vested custody of Joshua with SSA, who placed him with a maternal cousin and her family.[2]

Mother pleaded no contest to an amended juvenile dependency petition at a jurisdictional hearing. The court accepted into evidence a jurisdictional/disposition report. The report noted mother had been seeing a doctor and had several prescriptions for antidepressants. Mother acknowledged she was depressed and lethargic it was hard for her to get out of bed some days. She denied any history of substance abuse, but relatives conceded mother had a longstanding drug and alcohol problem. Mother started hearing voices and unexplained noises when she moved into her apartment five months earlier.

The court also accepted into evidence at the jurisdictional hearing an SSA report recounting mothers eventual discovery of hidden audio equipment in her apartment. The equipment included a walkie talkie, an intercom/monitor, and two microphones. A social worker visited mothers apartment and found an intercom had been wired into a heating vent. He doubted mother was sophisticated or cunning enough to have planted the monitors. Thus, he explained, mother may have actually been hearing real voices in the walls of her apartment, and that [i]t must have been very frightening for the mother to hear these noises and voices and not to have anyone believe her. The social worker surmised that unnecessary psychotropic medication, prescribed to treat mothers purported hallucinations, may have caused the August 2005 breakdown that resulted in Joshuas detention. At any rate, he concluded, mother may not be as mentally ill as previously believed.

Nonetheless, the court found the petitions allegations true and mother submitted to a psychological evaluation. (Evid. Code,  730.) The psychologist found mother was extremely anxious, agitated, and stressed. She met the minimal requirements for anxiety disorder, although her emotional state was also consistent with methamphetamine abuse. The psychologist stated it was important for mother to continue drug testing, and be referred to a drug abuse treatment program if she tested positive. He also noted mother might benefit from a psychiatric evaluation or supportive counseling they would be helpful. In the meantime, mother occasionally took medication for bipolar disorder. She slept for days on end and missed a visitation with Joshua.

The court held a dispositional hearing in February 2006, at which it declared Joshua a dependent child of the court. It approved a case plan for mother. The case plan, which had been prepared before mothers psychological evaluation, required mother to attend counseling [i]f deemed necessary, a Psychiatric/Psychological Evaluation, and a psychotropic medication evaluation; attend an outpatient substance abuse treatment program; and drug test twice weekly. Mothers counsel submitted on the matter without objecting to the case plan or requesting any additional services.

At the six-month review hearing, mother stipulated she had received reasonable reunification services. She reported stable employment, regular visitation with Joshua, and clean drug tests. Joshua continued to live with the maternal cousin and her family. He demonstrated normal physical and developmental growth. He did well in school, enjoyed playing sports, and regularly attended counseling. The court approved a case plan, to which mother stipulated, which required her to continue drug testing and report any address or telephone number changes.

At the twelve-month review hearing, mother again stipulated she had received reasonable reunification services. Mother had been receiving counseling from her pastor, but her attendance was sporadic. She agreed to see a therapist referred by the social worker. Joshua continued doing well, and concluded his counseling program. The court approved a stipulated case plan that again required mother to continue drug testing and report any changes in her address or telephone number.

Mothers situation unraveled over the next few months. She went weeks at a time without drug testing. She lost her job, got and lost another job, and became unemployed. She was in danger of losing her apartment. Mother attended only one session with the referred therapist. She missed three sessions, was terminated and reinstated into the counseling program, missed the next three sessions, and was finally terminated from the program. Mother told the social worker that she would enroll in a six- to twelve-month inpatient drug rehabilitation program at Taller San Jose in Santa Ana. She later told a visitation monitor that she had moved into a Christian sober living facility, but did not confirm this with the social worker or provide SSA with any contact information.

Mother was not present for the 18-month review hearing, at which the court terminated reunification services and set a hearing to select and implement an alternative permanent plan for Joshua. ( 366.26.) Her counsel had been unable to locate mother at any sober living house. She was not living at Taller San Jose, and it did not have any contact information for her. The court directed the clerk to mail notice to mother at [her] last known address that she would have to petition for writ relief if she desired appellate review of its order.

SSA eventually located mother living with a boyfriend in Corona, where she continued her downward spiral. She had started seeing a psychiatrist and taking psychotropic medication, but stopped doing either. She did not drug test for nearly two months, she had no job, housing, or medical insurance and she was pregnant. Eventually, she moved into a shelter for homeless pregnant women. According to the social worker, mother presently appears to be in a survival mode and is barely able to take care of herself.

In stark contrast, Joshua thrived. He earned straight As in school, where his teacher considered him a joy to have in class. The social worker reported Joshua ha[d] continued to present as a happy and content young man, with no apparent psychological or emotional problems and was an adorable, personable, smart, and compassionate young man, with athletic abilities, and a good sense of humor. He was willing to be adopted by his caretakers, who were eager to adopt him. They had already been granted de facto parent status.

At the selection and implementation hearing, Joshua testified he wanted to be adopted by his caretakers. He stated it would be fine if mother did not visit him anymore. The court terminated mothers parental rights and ordered Joshua placed for adoption.

DISCUSSION

Mother filed a notice of appeal seeking review of the order terminating her parental rights. She contends she did not receive reasonable services for the drug abuse and mental health problems that led to Joshuas removal. This contention is properly directed at the order issued at the 18-month review hearing, which terminated reunification services and set the selection and implementation hearing. To challenge that order on appeal, a parent must have timely filed a writ petition raising the same issue. ( 366.26, subd. (l)(1), (2).) Mother filed no such writ petition. SSA suggests mother thereby forfeited her claim.

But mother could not forfeit this claim unless she received adequate notice of the writ requirement. [P]arents are entitled to due process notice of juvenile proceedings affecting their interest in custody of their children. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418 (Melinda J.).) The juvenile court is required to advise parties who are present at the hearing in which the section 366.26 . . . is set of the requirement to file a writ petition to challenge any orders made at the hearing. [Citations.] If the parties are not present at the hearing, the court is required to mail notice of the writ petition requirement to the parties within 24 hours. (In re Merrick V. (2004) 122 Cal.App.4th 235, 248 (Merrick V.); accord 366.26, subd. (l)(3)(A); Cal. Rules of Court, rule 5.600(b) [writ advisement must be mailed to partys last known address].) Failure to give notice of the writ petition requirement relieves a party of the requirement. (Merrick V., supra, 122 Cal.App.4th at p. 248; accord In re Rashad B. (1999) 76 Cal.App.4th 442, 448 (Rashad B.) [Where the court fails to give a party notice of writ review, the partys claims on appeal are not limited by the provisions of section 366.26, subdivision (l)(1) and (l)(2)].)

Mother was not present when the court terminated reunification services and set the selection and implementation hearing. Accordingly, it directed the clerk to mail notice of the writ requirement to mother at [her] last known address. Mother claims she never received the writ advisement.

The record supports mothers denial. No contemporary evidence shows the clerk actually mailed the writ advisement to mother within 24 hours of the courts order. The record contains only a proof of service from the clerk dated January 16, 2008, prepared after mothers appellate counsel noted the absence of any contemporary proof of service in the record. The after-the-fact proof of service states the writ advisement was mailed to mother on April 5, 2007, more than nine months earlier. We hesitate to find the clerk discharged the trial courts order based upon untested, postjudgment evidence, especially when it is dubious on its face. (In re Zeth S. (2003) 31 Cal.4th 396, 408, fn. 5.)

At any rate, the post -hoc proof of service does not show the writ advisement was sent to mothers last known address. ( 366.26, subd. (l)(3)(A); Cal. Rules of Court, rule 5.600(b); Rashad B., supra, 76 Cal.App.4th at pp. 448-449.) The proof of service states the clerk mailed the writ advisement to mother at Taller San Jose. This was never a known address for mother. Mother told the social worker on March 13, 2007, that she intended to live at Taller San Jose, but did not confirm she ever in fact moved there. To the contrary, mother soon told a visitation monitor she had moved to a sober living facility. The visitation monitor reported this to the social worker on March 19, 2007. Nonetheless, an SSA report filed that same day erroneously listed mothers address as Taller San Jose, based only on mothers statement that she was going to enroll in the centers program. An SSA addendum report filed March 26, 2007, clarified that mother stated she now lived at a sober living center, not Taller San Jose. Thus, Taller San Jose was an unlikely place to find mother on April 5, 2007, when the writ advisement was purportedly mailed.

Even if we were to admit and credit the clerks declaration, a single mailing to an address where mother did not live at the time, but had once thought about living, is inadequate notice. (See Rashad B., supra, 76 Cal.App.4th at pp. 449-450 [court wrongly failed to notify transient mother of writ advisement; court should have had mother designate a relatives house as a permanent mailing address]; cf. Melinda J., supra, 234 Cal.App.3d at pp. 1416-1417, 1419 [SSA adequately tried to notify transient mother by asking mothers parents for help and repeatedly mailing certified letters to multiple addresses obtained from an extensive search of several government agency databases].) Thus, we will consider the merits of mothers claim on appeal. (Merrick V., supra, 122 Cal.App.4th at p. 248; Rashad B., supra, 76 Cal.App.4th at p. 448.)

Mothers contention fails for two reasons. First, the court could not offer her any additional reunification services. Mother stipulated she received reasonable services at the six-month and twelve-month review hearings. She thus waived any right to challenge the [reunification ] plans themselves. (In re Cody W. (1994) 31 Cal.App.4th 221, 231.) All that is at issue, then, is the reasonableness of the reunification services between the 12-month and 18-month review hearings. (Ibid.) But the court could not continue the case for further reunification services more than 18 months after Joshuas removal. (Los AngelesCounty Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1091-1093 [court exceeded jurisdiction by continuing reunification services for 21 months after removal date]; 361.5, subd. (a)(3) [court-ordered [reunification] services may be extended up to a maximum time period not to exceed 18 months after the [removal] date], 366.21, subd. (g)(1) [court may [c]ontinue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date].) The courts only options at an 18-month review hearing [are] to either return the minor to the physical custody of the parents or commence proceedings to terminate parental rights and adopt a permanent placement plan. (Los Angeles County, supra, 60 Cal.App.4th at p. 1092.)

Second, mother received reasonable reunification services. We review the reasonableness of reunification services for substantial evidence, resolv[ing] all conflicts in support of the determination, and indulg[ing] in all legitimate inferences to uphold the courts order. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969 (Elijah R.).) SSA need not exhaust all possible options. [I]n 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. (Ibid.)

Here, SSA offered reasonable treatment for the substance abuse and mental health issues that led to Joshuas removal. By the time of the jurisdictional hearing, it was clear mother may not have been hallucinating every time she heard voices. Her apartment was wired for sound, suggesting mother may not be as mentally ill as previously believed. And mother confirmed she had been seeing a doctor and was taking prescribed antidepressants. SSA acted reasonably, then, when it asked mother to submit to a psychological evaluation to determine what other treatment she needed, if any. The psychologist found mother may suffer from anxiety disorder, but her agitation was also consistent with methamphetamine abuse. Thus, the psychologists only important recommendation was for drug testing. All other treatment options mentioned in his report substance abuse treatment, further psychiatric evaluation, supportive counseling were either predicated on positive drug tests or offered up as helpful. Mother produced clean drug tests at the six-month review hearing, obviating the need for SSA to offer additional services. When mothers pastor later reported she had been missing counseling sessions, SSA referred mother to a different therapist. Mother was terminated from the counseling program because she attended only one session, but SSA reenrolled her in the program. Mother did not see the therapist again, but SSA need not take [mother] by the hand and escort . . . her to and through classes or counseling sessions. (In re Christina L. (1992) 3 Cal.App.4th 404, 414.) And before the 18-month review hearing, mother told SSA she would enroll in the Taller San Jose drug treatment program, though she apparently moved instead into a sober living facility. Barring escorting mother by the hand through her treatment programs, SSA was not reasonably obligated to do more.

Mother thus misplaces her heavy reliance on David B. v. Superior Court (2004) 123 Cal.App.4th 768, 793. She contends that the services SSA offered were not tailored to treat her problems. That was certainly the case in David B, where SSAs only real problem with placing a child with her father was that he lived with his brother-in-law, who had a recent arrest history. (Id. at pp. 777, 793.) But there [was] no evidence that [the father] was ever informed of that specific concern, other than by being given some generic advice concerning the need for housing, along with a list of referrals . . . and then never discuss[ing] the issue with him again. (Id. at p. 793.) Indeed, SSA counterproductively misled the father by telling him what he needs to do with his existing [housing] resource is obtain a high chair, child bed, and baby-proof the cabinets  which he dutifully did  when all the while [it] consider[ed] the resource unacceptable . . . . (Id. at p. 796.)

In stark contrast, SSA never played hide the ball with mother. It informed mother of the reasons for Joshuas removal, gave her a psychological evaluation and the recommended drug testing, and referred her to a therapist when her own counseling efforts became sporadic. It reenrolled her in that counseling program when mother was terminated for missing sessions. This is not a David B. scenario.

Nor is it a model of perfection. But those looking for perfection in a juvenile dependency case will find it only in hindsight, which is always 20-20. Reasonableness is all we require. (Elijah R., supra,66 Cal.App.4th at p. 969.) The reunification services here met that standard.

DISPOSITION

The postjudgment order is affirmed.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] It is not clear whether Joshua was placed with one of his mothers cousins or one of his own cousins on his mothers side. Joshuas older sister, Adriana, was also taken into custody and placed with another relative. She has since turned 18 and is not involved in this appeal. Nor is Joshuas father.