In re Matthew P.
Filed 9/20/07 In re Matthew P. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re MATTHEW P. et al., Persons Coming Under the Juvenile Court Law. MIRACLE G., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest. | No. B199943 (Super. Ct. No. CK48706) |
ORIGINAL PROCEEDING. Petition for Extraordinary Writ. Petition denied.
Law Offices of Alex Iglesias, Steven D. Shenfeld, and Deborah Robinson for Petitioner.
No appearance on behalf of Respondent.
Raymond G. Fortner, Jr., Los Angeles County Counsel, James M. Owens, Assistant County Counsel, Owen L. Gallagher, Principal Deputy County Counsel for Real Party in Interest.
I. INTRODUCTION
Miracle G. (the mother) seeks writ review of a juvenile court order terminating family reunification services with the child, Matthew P., and setting a selection and implementation hearing pursuant to Welfare and Institutions Code[1]section 366.26. The mother contends there is no substantial evidence that the Los Angeles County Department of Children and Family Services (the department) provided reasonable reunification services. The mother further contends there was no clear and convincing evidence that she failed to make substantive progress or participate regularly in her court-ordered treatment plan. Because substantial evidence supports the juvenile courts order, the petition is denied.
II. BACKGROUND
The child was born in October 2006. The child was detained and placed with his paternal grandparents on October 25, 2006. On October 30, 2006, the department filed a section 300 petition. The sustained petition alleged that the childs physical and emotional health, safety, and well-being were at risk of harm and damage due to the parents conduct. The petition alleged, in this regard, that the mother and the childs father, Oscar P., have a history of engaging in physical altercations. The physical altercations included occasions in 2006, where Oscar struck the mother in her face and pushed her. The petition further alleged that the childs older siblings, Monique G. (who was born in July 1996) and Melissa G. (who was born in January 2000), were current juvenile court dependents due to the physical altercations between the mother and Oscar. In addition to the physical altercations, the petition alleged that the mother has a history of substance abuse, including methamphetamine use, which renders her incapable of providing regular care for the child.
The detention report stated that the family initially came to the departments attention on April 12, 2002, when the older siblings were detained and subsequently declared dependents of the juvenile court pursuant to section 300, subdivisions (a) and (b). The 2002 case was based on the mothers methamphetamine use, the physical abuse of Monique, and a filthy home environment for the children. The juvenile court terminated jurisdiction of the 2002 case on June 3, 2003.
On June 7, 2006, the department received a referral alleging general neglect of the two older siblings. Investigation of the home revealed filthy and unsanitary conditions, including cockroach infestation, dirty clothes strewn about the home, and spoiled food in the refrigerator. There was no food in the home for Monique and Melissa. The mother did not ensure that the siblings regularly attended school and left them home alone without adult supervision. The mother admitted she used drugs and there was domestic violence in the home. The mother stated she had been under a lot of strain and began to use drugs. The mother expressed a willingness to enter a drug program and agreed to random on-demand testing in order to regain custody of the two older siblings. The mother admitted that Oscar struck her and did so in the presence of the siblings on one occasion.
On June 7, 2006, the department detained Monique and Melissa. The older siblings remained in foster care at the time of the childs birth. As part of the older sibling dependency proceeding, the juvenile court ordered the mother to complete: a drug treatment program with weekly random testing; individual counseling to address case issues; and domestic violence and parenting education classes. On September 26, 2006, the department provided the mother with referrals for counseling, drug treatment with random drug testing, and parenting education. The mother was also given a bus pass.
The childs detention hearing was held on October 30, 2006, the same date the section 300 petition was filed. The juvenile court ordered the department to provide family reunification services. The juvenile court set the matter for a pretrial resolution conference on December 11, 2006.
For the December 11, 2006 hearing, the department reported that, in June 2006, the mother admitted using methamphetamines five times in the previous month, the last time on June 4, 2006. The department further reported that the mother did not comply with the juvenile court orders in the older siblings case. The mother had participated in a drug treatment program at Mid Valley Recovery Services, Inc. since October 25, 2006. However, the mother had a positive drug test on November 16, 2006. The mother had not completed parent education nor had she completed a domestic violence program. The mother, who was supported by the father, was unable to obtain adequate housing. The mother and father shared a room with friends. The father had a history of substance abuse and numerous arrests for driving under the influence. The pretrial resolution conference was continued on December 11, 2006, and January 12, 2007, to insure proper notice to the father was provided.
In an interim review report dated January 30, 2007, the department stated the mother had been living with friends since January 2, 2007. She did not have a permanent address. The father was incarcerated. On January 18, 2007, Renee A. Cerrillo, Program Director at Mid Valley Recovery Services, Inc., informed the department that the mother was terminated from the drug treatment program on December 26, 2006. The mother was discharged for non-compliance with treatment policies and guidelines and not returning for services. The mother and father both admitted on January 24, 2007, that they had not participated in a drug treatment program. The department recommended family reunification services be provided for the parents. On January 30, 2007, the juvenile court continued the pretrial resolution conference to February 5, 2007, due to the fathers failure to appear.
On February 5, 2007 the juvenile court held the pretrial resolution conference and the disposition hearing. The juvenile court declared Oscar to be the father. The parents waived their right to trial and pled no contest to the petition. The juvenile court declared the child to be a dependent child as described by section 300, subdivisions (a) and (b). The juvenile court found before there could be reunification, the parents would have to demonstrate the ability to meet the childs physical and emotional needs and to provide stable and appropriate housing. The juvenile court also found the parents had only made partial progress in alleviating or mitigating the causes necessitating the childs placement in foster care. The juvenile court ordered the mother to: attend a drug rehabilitation program with random testing; participate in parent education classes; and undergo individual counseling to address domestic violence and other case issues. The father was ordered to attend a batterers intervention program, parent education classes, and individual counseling to address anger management and case issues. The juvenile court set the matter for a six-month review on May 30, 2007.
For the May 30, 2007 six-month review, the department reported that: the child was living with his paternal grandparents, who wanted to adopt him; the grandparents had provided him with supervision and adequate medical care; and he was healthy and happy. The mother had made an effort to comply with the juvenile court orders and had visited the child. The mother, however, was discharged from the drug treatment program and had not participated in individual counseling for anger management and domestic violence. The mother had enrolled in drug treatment programs at Mid Valley Recovery Services, Inc. in El Monte and Health Care Agency in Santa Ana but quit shortly after her enrollment. The mother enrolled at Mid Valley Recovery Services, Inc. on October 25, 2006, attended the drug program, and had counseling for narcotics awareness, anger management, and domestic violence. The mother tested for drugs on November 2, and 29, 2006. However, the mother did not attend the Mid Valley Recovery Services, Inc. after December 26, 2006. The mother enrolled in the Health Care Agency, which is a drug and alcohol treatment program, on March 7, 2007. The mother attended the program for about one week and did not return. She was discharged from the program effective May 15, 2007.
The department provided the parents with family reunification services. The department worked with the family to arrange visitation between the child and the parents. The department provided the mother and the father with referrals to complete court ordered programs during the reviewed period. The department provided referrals for the mother on February 7, 2007 for: parenting classes; individual counseling; substance abuse counseling; and random alcohol and drug testing. The mother signed a document acknowledging receipt of the referrals. The mother stated with regard to the referrals, I dont want it[.] I already have these papers and Shields for Family helped me as well. The mother was referred to random drug testing at no cost. The mother had negative tests on November 1 and December 18, 2006, and January 4, 2007. The mother had a positive test for opiates and morphine on November 16, 2006. The mother had failed to appear for testing on March 15 and 26, April 11 and 27, and May 9, 2007. The department provided the parents with bus passes to attend a drug program, undergo testing, and visit the child. The paternal grandparents stated that the mother visited weekly with the child.
The department also made efforts to locate the childs parents. In March 2007, the mother stated that she had moved to Orange County and was living with her cousins and participated in a drug treatment program in Santa Ana. The cousin stated that the mother lived there only about a week and did not return. The cousin did not know the mothers whereabouts. The mother had not contacted the department since April 2007.
On May 30, 2007, the juvenile court set the matter for a contested six-month review on June 18, 2007. On June 18, 2007, the department reported that the mother visited with the children every Friday for two hours. The visits went well. The mother was not in full compliance with court orders. On May 24, 2007, the mother was admitted to a 45-day emergency shelter for women. The mother was participating: in drug/alcohol education; domestic violence education; peer group counseling; individual counseling; parenting skills; independent living skills; and 12-step meetings. The mother was expected to graduate from the program on July 7, 2007. The mother failed to appear for drug testing on May 9 and 21, 2007. The mother returned a negative drug test on June 11, 2007. The department social worker noted that the mother had a history of drug use and quitting her treatment programs. The social worker stated that the mother was unable to make substantive progress in the court-ordered treatment programs. It was further noted that the mothers unstable and drug abuse lifestyle had caused the detention of the childs two older siblings. The father, who was incarcerated, was unable to provide care for the child. The department recommended termination of reunification services.
At the contested hearing, Duc Pham testified that he was the childrens social worker assigned to the current case. Mr. Pham had seen and spoken to the mother at least once a month since September 2006 when he was assigned to the case. Sometimes he saw her twice a month. Mr. Pham testified that the mother did not keep in contact with him during the months of April and May 2007. He thought she was in a drug program in Santa Ana. Mr. Pham attempted to visit her at the drug program on March 17, 2007. However, the mother was not there. Mr. Pham also thought the mother was staying with a cousin. Mr. Pham went to the cousins address on April 17 and was told that the mother stayed there only one week and left. The cousin did not know the mothers whereabouts. Mr. Pham attempted to contact the mother in May through relatives. However, they did not know where the mother was. Mr. Pham testified the mother may have enrolled in some court-ordered classes or programs but had not completed any. Mr. Pham did not know how many classes she went to but he testified that the mother quit programs before completing them so he did not count them in reaching his assessment that reunification services should be terminated. He did not consider the mother as progressing in the programs because she had been in the dependency system since June of 2006 but had not completed anything and quit the programs.
The mother testified that she was residing at the Angel Step Inn, which is a shelter. She called Mr. Pham and advised him of where she was residing. The mother described the programs available at Angel Step Inn: They offer domestic violence, one-on-one counseling, parenting. They offer the anger management; they offer the DV prevention. She would call Mr. Pham but many times he would not return her telephone calls. Prior to attending Angel Step Inn, the mother attended about 10 domestic violence classes and had attended 20 since being there. The mother was homeless in April and May 2007. She did not communicate with the department while she was homeless. Although she was homeless, the mother attended domestic violence counseling at Wings, a shelter program twice in May. She had to move because the program was located too close to the residence of the father who was the batterer. She enrolled in a parenting class at the Salvation Army in November. She also took one parenting class at Wings on May 17. The mother had attended 24 parenting classes at Angel Step Inn. The parenting classes taught her to be a better parent. This included how to: provide for the child; talk to him; love him; and stay calm when he is upset. She did not see the child between April 5 and the end of May.
The mother testified that she took 12 of 16 classes for substance abuse counseling. The mother had been to narcotics and alcoholics anonymous. The mother had been to 20 of 36 classes needed to complete the program.
The mothers attendance and participation in the programs since May 2007 was reiterated by Eva Felix, a case coordinator with Angel Step Inn. Angel Step Inn is an emergency shelter. Ms. Felix provided one-on-one counseling for the mother. Ms. Felix recommended after-care for patients who have relapsed from programs. Ms. Felix testified: We have a second step program which is a sister program to our program, which is six months. And they also teach substance abuse classes, domestic violence classes, parenting. They encourage housing and employment. There is also a third-step program which has transitional housing and is about two or three years depending on needs.
The juvenile court stated: The court is looking at the totality of the circumstances. [] Monique was five years old when the mother first entered the system based on drug use, and methamphetamine use and a filthy home. Monique is now 11, thats six years. [] Melissa was 2 when mother first came into the system. Melissa is now 7 about to 8, again, six years. [] And the first time this matter came in, mother completed a drug rehabilitation program; got the children back; she relapsed again; those two children have been in foster care since June of 2006. [] So the court is looking at what mothers done over the last year, 12 months. What mothers done over the last 12 months is, in the last three weeks shes gotten herself in a program. Shes done a bunch of classes in three weeks and said, Thats enough. Its not enough. Its not enough. [] Mothers had a year since Melissa and Monique came back into the system to participate and make real progress with the court-ordered treatment case plan. [] And the court is looking at all of this. Im looking at the first time around, this is mothers third time around through this system and shes done virtually nothing in the last year. [] Given the history; given the last six years in this matter I think theres virtually no possibility that mother would be ready to reunify. [] The court gave mother another opportunity, but more importantly the children gave mother another opportunity to get in a program; and drop out; visit and then she wouldnt visit. And at this point the court has to look at whats in the best interest of the children. [] And clearly if mother were able to get and stay clean, which is a question here, then it would be in the best interest of the children to reunify, but mothers shown no desire to do that. Three weeks of attempting to do that, it doesnt do it. Given the history here it doesnt do it.
The juvenile court found that the department had complied with the case plan by making reasonable efforts to enable the childs safe return home and to complete whatever steps were necessary to finalize permanent placement services for him. The juvenile court ruled that the extent of progress the mother made in the last period of review toward alleviating or mitigating the causes necessitating placement was minimal. The juvenile court concluded that the father had made no progress. The juvenile court found: the parents had not consistently and regularly contacted and visited the child; the parents had not made significant progress in resolving the problems leading to the childs detention; the parents had not demonstrated the capacity and ability to complete the objectives of the treatment plan and to provide for the childs safety, protection, physical and emotional well-being; and there was not a substantial probability that the child will be returned to the custody of his parents within the next period of review. The juvenile court terminated reunification services and set the matter for selection and implementation of a permanent plan pursuant to section 366.26.
III. DISCUSSION
The mother argues there is no substantial evidence to support the finding that the department provided reasonable family reunification services as required by sections 361.5, subdivision (a) and 366.21, subdivision (e). Also, the mother contends the findings she failed to participate regularly and failed to make substantive progress in court-ordered treatment programs are not supported by clear and convincing evidence. We disagree.
Section 361.5, subdivision (a), sets forth the departments duty to provide child welfare services, i.e., reunification services. Section 361.5, subdivision (a)(2) provides: For a child who, on the date of initial removal from the physical custody of his or her parent . . . , was under the age of three years, court-ordered [reunification] services shall not exceed a period of six months from the date the child entered foster care. [] . . . [] Regardless of the age of the child, a child shall be deemed to have entered foster care on the earlier of the date of the jurisdictional hearing held pursuant to Section 356 or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent . . . . Here, the child was detained on October 25, 2006, when he was less than three-years old. Therefore, the mother was entitled to and received reunification services for six months.
However, section 361.5, subdivision (a) further provides: Notwithstanding paragraphs (1), (2), and (3), court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent . . . if it can be shown, at the [12-month review] hearing held pursuant to subdivision (f) of Section 366.21, that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period. The court shall extend the time period only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . within the extended time period or that reasonable services have not been provided to the parent . . . . If the court extends the time period, the court shall specify the factual basis for its conclusion that there is a substantial probability that the child will be returned to the physical custody of his or her parent . . . within the extended time period. The court also shall make findings pursuant to subdivision (a) of Section 366 and subdivision (e) of Section 358.1. [] . . . [] In cases where the child was under the age of three years on the date of the initial removal from the physical custody of his or her parent . . . , the court shall inform the parent . . . that the failure of the parent . . . to participate regularly in any court-ordered treatment programs or to cooperate or avail himself or herself of services provided as part of the child welfare services case plan may result in a termination of efforts to reunify the family after six months.
Section 366.21, subdivision (e) states: At the review hearing held six months after the initial dispositional hearing, the court shall order the 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 detrimentto 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 workers report and recommendation and the report and recommendations of any child advocate appointed pursuant to Section 356.5; and shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself of services provided. . . . [] . . . [] If the child was under the age of three years on the date of the initial removal . . . and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child, who was under the age of three years on the date of initial removal . . . , may be returned to his or her parent . . . within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.
Pursuant to the foregoing statutes, in the case (as here) of a child who was under the age of three years on the date of the initial detention, the juvenile court may terminate reunification services and set a section 366.26 hearing after six months of reunification efforts. The juvenile court may do this upon a finding by clear and convincing evidence that a parent failed to participate regularly in any court-ordered case plan. The juvenile court may also do so when, notwithstanding a parents compliance with the reunification plan, there is no substantial probability the child will be returned to the physical custody of a mother or father within an additional six months. ( 361.5, subd. (a), 366.21, subd. (e); Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1023-1024.) Both findings were made in this case. The juvenile court concluded, by clear and convincing evidence, the mother was not in compliance with her court-ordered case plan and there was no substantial likelihood the child could be returned to her if additional reunification services were ordered.
The mother nevertheless asserts the juvenile court should have continued the case to the 12-month permanency hearing because the finding that the department provided reasonable efforts is not supported by substantial evidence. The adequacy of reunification plans and the reasonableness of the departments efforts are judged according to the circumstances of each case. (In re Elijah R. (1998) 66 Cal.App.4th 965, 969; Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) In addition, the department must make a good faith effort to develop and implement a family reunification plan. (Ibid.; In re Kristin W. (1990) 222 Cal.App.3d 234, 254.) The juvenile courts finding reasonable services were offered to the mother is reviewed for substantial evidence. (In re Mark N. (1998) 60 Cal.App.4th 996, 1010; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We view the evidence in a light most favorable to the department and indulge all legitimate and reasonable inferences to uphold the order. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018; In re Elijah R., supra, 66 Cal.App.4th at p. 969; In re Misako R., supra, 2 Cal.App.4th p. 545.)
There was substantial evidence, viewed in the light most favorable to the department, from which the juvenile court could find reasonable reunification services were offered to the mother. (In re Zacharia D. (1993) 6 Cal.4th 435, 455-456; Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625; Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763; In re Tania S. (1992) 5 Cal.App.4th 728, 733-735.) There was evidence the department: facilitated visits; gave the mother drug testing referrals; provided bus passes to the mother; and referred the mother for counseling. The department gave the mother referrals in September 2006. In February 2007, the department gave her additional referrals. The juvenile court found, and substantial evidence supports the conclusion, that this was a case where the department attempted to reunify the mother and the child. Furthermore, the mother did not have a problem with access to or utilization of services through the referrals because the mother actually enrolled in several programs. Indeed, in acknowledging receipt of the referrals, the mother stated she did not need them because she had already received some services. In any event, the mothers problem was not the lack of resources available to her. The problem was the mothers own failure to complete the programs she obtained from the resources. Thus, the juvenile courts determination was based on the mothers lack of initiative to comply with reunification efforts during the bulk of the time they were offered. (See e.g. Sue E. v. Superior Court (1997) 54 Cal.App.4th 399, 403-404; In re Misako R., supra, 2 Cal.App.4th at pp. 545-547.) Further, the mother did not complete court-ordered counseling and drug testing requirements. She did not maintain a consistent residence since the dependency proceedings began. The mother enrolled in programs but failed to complete them. The mother had also reunified with the childs older siblings only to have them detained in June 2006 prior to the childs birth. Rather than completing court-ordered programs to reunify with the older children, the mother admittedly was using drugs after the children were detained and while she was pregnant with the child. In short, the claim that the department was lawfully obligated to do more has no merit.
For similar reasons, the mother has failed to demonstrate that the juvenile court erred when it found by clear and convincing evidence she failed to participate regularly in her court-ordered treatment plan. The aforementioned evidence shows the mother was provided with referrals and enrolled in programs but then did not participate in them. The juvenile courts findings must be upheld because they are supported by substantial evidence. (Robert L. v. Superior Court, supra, 45 Cal.App.4th at p. 625; Angela S. v. Superior Court, supra, 36 Cal.App.4th at p. 763.)
IV. DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
ARMSTRONG, J.
KRIEGLER, J.
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[1] All further statutory references are to the Welfare and Institutions Code.