In re M.M.

Filed 2/21/08 In re M.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Dismissed.

Nicole Williams, under appointment by the Court of Appeal, for Minor and Appellant.

Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent, Riverside County Department of Public Social Services.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Respondent, A.M.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Respondent, P.M.

INTRODUCTION

Fourteen-month-old M.M. (M.M. or minor) appeals the order extending by six months the period for reunification available to her mother, A.M., respondent. Mother replies that the appeal is moot because by the time an appellate opinion can be issued, the bulk of the ordered services will have already been provided and there will be no effective remedy available to this court. In any case, mother asserts, the juvenile courts decision to extend additional services was supported by sufficient evidence and is correct. Father, P.M., agrees with mother.^[1]

FACTS AND PROCEDURAL HISTORY

Minor was taken into protective custody by the Riverside County Department of Public Social Services (the department) shortly after she was born in August 2006, when the department received a report that she and mother had tested positive for marijuana. Both parents had a history of drug addiction and had been incarcerated for drug-related crimes. Each parent also had an older child whom was living with relatives because the parent was unable to provide adequate care.

On August 22, 2006, the department filed a Welfare and Institutions Code section 300 petition alleging that M.M. was at risk for serious physical harm because of her parents actions.^[2] The petition alleged that mother abused controlled substances and her actions hindered her ability to care for M.M. (b-1); that mother lived a transient lifestyle and was unable to provide M.M. with a safe and stable living environment (b-2); that mother had a criminal history of arrests for methamphetamine possession and being under the influence of controlled substances (b-3); that father had admitted abusing controlled substances (b-4); that father lived a transient lifestyle and was unable to provide M.M. with a safe and stable living environment (b-5); and that father had a criminal history of arrests for possession of hypodermic needles and possession of methamphetamine (b-6). At a detention hearing on August 23, 2006, the juvenile court (1) found that M.M. was at risk of suffering serious physical harm (2) referred mother to drug court, and (3) ordered the department to begin reunification services pending further proceedings. Jurisdiction/disposition (J/D) was set for September 14, 2006.

Jurisdiction/Disposition:

In preparation for a J/D report, a department social worker interviewed the parents on September 7 and 8, 2006. Mother said she did not currently use drugs, but had smoked marijuana on the advice of a friend to relieve the pain of early contractions associated with her pregnancy. She admitted that she had used drugs when she was younger and that she had suffered domestic violence abuse from her ex-husband. Father said he was a recovering addict who chose to live on his own because of his drug use.

Caseworker notes attached to the report indicated that as of August 24, 2006, mother had completed intake at MFI and was attending classes at Family Preservation. By September 7, 2006, she was in MFIs inpatient program. At the hearing on September 21, 2006, county counsel reported that mother was doing great in her program and suggested that M.M. be placed there with her. The court found that [b]oth parents are making good progress in their court-ordered case plan. It is incomplete at the present time. Addressing mother and father directly, the court warned: You guys know because your child is very young you only have six months to reunify. Its important that you dont relapse, you stay in your programs, you do what youre supposed to do. If you dont, at the end of the six months I can set a hearing to terminate your rights as a parent and release her for adoption. Both parents affirmed their understanding of the courts statement. The court ordered M.M. placed with mother the following week, so long as mother continued to comply with her case plan. The six-month review hearing ( 366.21, subd. (e)) was set for April 3, 2007.

Supplemental Petition:

On October 31, 2006, M.M. was detained again. On November 2, 2006, the department filed a section 387 supplemental petition alleging the child was in danger of suffering serious physical harm because mother had been discharged from the substance abuse inpatient program three days earlier due to noncompliance, minimal progress, and threatening to physically assault others. . . . At a jurisdictional hearing on the supplemental petition, on November 29, 2006, the court admonished mother to get back into her inpatient program right away: You understand your time is ticking? April 3rd will be here in a hurry. Its important you get in an inpatient program and dont relapse. When mothers attorney informed the court that her client had found another treatment program, the court gave mother another warning: You have to give the social worker the name so they can see if its on the certified list. . . . Its important she gets into a program thats certified. I dont want her wasting time getting in the wrong program. You want to go to one thats certified. They will make the referral.

Six-Month Review:

The departments six-month status review report, filed April 27, 2007, showed that over the next five months mothers record of participation in services was uneven. She had enrolled in the Riverside County Department of Mental Health outpatient substance abuse program in November, but never returned for any sessions. Later, she was on a waiting list to reenter an MFI inpatient program, but was ultimately refused entrance because of the threat of violence incident for which she had been discharged in October 2006. However, she did enroll in MFIs intensive outpatient classes in March 2007, and in domestic violence and parenting classes at Alternatives to Domestic Violence (ADV) in mid-April. Although it is not entirely clear from the record, she appeared to have entered an inpatient facility about the same time.^[3]

Mothers visitation with M.M. was not consistent. She visited on December 26, 2006, but did not contact the social worker or visit the child at any time after that until March 15, 2007, when she called the social worker to arrange a resumption of visits. Father had not contacted the department and had not visited M.M. at any time after the initial detention in August 2006. Meanwhile, the foster mother expressed an interest in adopting M.M., and the homes of a maternal grandmother and maternal great-aunt, both of whom had consistently visited M.M., were also being evaluated for placement.

Both parents had been arrested on March 11, 2007mother for being under the influence of a controlled substance and for assault with a deadly weapon. She was released three days later, but father remained incarcerated. On March 15, 2007, the day after her release, mother called the social worker to request resumed visits; on March 21, the social worker met with mother to arrange visitation. The social worker noted that mother seemed most concerned about getting back together with father, but was enrolled in MFI outpatient classes three days a week. She was apparently also on a waiting list for an inpatient program with that agency. Mother resumed twice-weekly visits with M.M. on March 21, 2007.

On April 10, 2007, the foster mother reported that mothers behavior during her visit with M.M. had been weird. Mother sang loudly, displayed overly religious behavior, insisted that she was going to take the baby to church, and talked about getting back together with father. During a visit on April 11, the social worker observed that M.M. became very distressed while interacting with mother and cried for 30 minutes.

The report recommended that reunification services to both parents be terminated and that a section 366.26 hearing be set to determine the most appropriate permanent plan for the child. Due to lack of bonding, said the report, it would be detrimental to [M.M] to return her to mothers care. Attached to the report were letters from drug and domestic violence treatment programs. A letter from MFI confirmed that mother had enrolled in their outpatient program on March 13, but was refused admission to their inpatient program because of the threat of violence incident that led to her discharge in October 2006. MFI had referred her to Victory Outreach. An April 25 letter from ADV confirmed that she had been enrolled and participating in their program since April 12.

The social worker did not file a supplemental report and apparently did not attend the six-month review hearing on May 31, 2007. The matter was set for contest on July 5, 2007. At the contested hearing, mothers attorney requested an additional six months of reunification services. Counsel asked to file, and the court accepted, a June 27 letter from ADV confirming mothers continued participation in their program, and a June 20 letter from Victory Outreach verifying her residence and progress there. The Victory Outreach letter said mother was participating fully in the program, was acting as a peer helper, and had tested negative on all of an unspecified number of random drug tests.

Minors counsel objected strongly to the request for an additional six months of services, asserting that M.M. was afraid of mother and that Victory Outreach was not a court-sanctioned program. They dont test. . . . We dont know if mom benefited from services much or has clean tests. [] Theres no substantial probability here. Counsel for mother stated that according to the facilitys letter, his client had in fact been drug tested by Victory Outreach and had been negative. Mother testified that she loved the Victory Outreach program because it was based on faith, and she insisted that her life had been changed by God. Mother believed she had benefited from the programs and offered to take a hair follicle test to prove that she was not using drugs.

Over the objections of minors counsel, the court found that mothers progress had been adequate but incomplete and extended reunification services an additional six months: [I]f you continue on your present course . . . there is a substantial likelihood that the minor will be able to return to your care and custody. But the court also warned mother that the reunification period would be coming to an end soon. The law allows up to a year, and that year is coming up pretty fast. Thats three months from now. In addition to the extended services, the court ordered random drug testing and a hair follicle test, and, at county counsels request, a psychological evaluation. The section 366.21, subdivision (f), 12-month review hearing was set for October 18, 2007. This appeal followed.

DISCUSSION

Minor argues that the court did not make the required statutory findings and that there was insufficient evidence to support its decision to extend services. Mother replies that the court did makethe required findings, that there was sufficient evidence to support the order extending services, and, that in any case, the appeal is moot. Mothers mootness argument is correct and dispositive.

Mootness:

An appellate courts jurisdiction extends only to actual controversies for which the court can grant effective relief. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.) If subsequent acts or events have rendered the questions raised in the appeal moot, then the action no longer presents a justifiable controversy. (In re Christina A., supra, at p. 1158.)

Here, by the time our opinion can be issued, subsequent events will have rendered the questions raised by minors appeal moot. The disputed reunification services will have been rendered and we will not be able to rescind them. We share the opinion of Division Three of this court in an almost identical case cited by mother: We bewail the waste of time this appeal has caused, for this court, the parents, and, most importantly, [the child]. If counsel had sought traditional writ relief immediately following the . . . review hearing, any error could have been dealt with in a timely and effective manner. (In re Pablo D. (1998) 67 Cal.App.4th 759, 761.)

Even if the appeal were not moot, however, we could not find that there was insufficient evidence to support the courts order extending services. Nor would we find minors arguments regarding the precise content of the required statutory findings persuasive.

Substantial Evidence:

In reviewing a decision of the juvenile court and the evidence supporting that decision, an appellate court does not substitute its judgment for that of the trial court, but views all evidence in the light most favorable to the ruling, indulging in all reasonable inferences to support the decision, keeping in mind the principle that matters of fact and credibility are the province of the hearing court. (In re Misako R. (1991) 2 Cal.App.4th 538, 545; In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) [F]act-specific arguments which ignore the substantial evidence standard of review are not appropriate. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)

Considering the evidence in the light most favorable to the ruling, and keeping in mind the principle that matters of fact and credibility are within the province of the hearing court, we cannot say that the court here erred in finding a substantial probability that M.M. could be returned to mothers care within six months. At the time of the decision, mother had been in an inpatient program, Victory Outreach, to which she had been referred by MFI because they were unable to admit her to their own residential program, for well over two months. According to the report from the facility, she was doing well: she was participating fully in their program; she was functioning as a peer helper; she was being randomly drug tested and all her tests had been negative. In addition, she had been attending domestic violence classes and parenting classes at ADV for three months. Finally, mother testified, apparently credibly, that she was benefiting from the Victory Outreach program. She offered to submit to a hair follicle test to show that she was not using drugs, and the court took her up on the offer.

Minor makes a number of fact-specific arguments that, despite their apparent validity, amount to urging us to ignore the standard of review. (Angela S. v. Superior Court, supra, 36 Cal.App.4th at p. 762.) It is true that mothers initial record was poor. She had failed the first inpatient program she entered, had not maintained uninterrupted visitation, and had not completed her case plan by the end of the first six months of reunification. Nevertheless, as we have discussed, by the time of the review hearing she appears to have been visiting M.M. for three months, had been taking outpatient classes for more than three months, and had been in an inpatient program for over two months. The court was entitled to consider these recent facts as supporting its finding of a substantial probability that M.M. would be returned to mothers physical custody by October 18, 2007.

Statutory Findings:

Minor also faults the trial court for failing to support its more general finding of substantial probability of return with the specific findings required by subdivision (g)(1)(A) and (g)(1)(B) of section 366.21: that the parent has consistently and regularly contacted and visited the child and has made significant progress in resolving the problems that led to removal.

Minor argues that because mother failed to visit M.M. for three months, there was insufficient evidence to support the visitation and contact requirement. On the record here, we cannot say that the court could not have reasonably reached a different conclusion. It is true that mother did not visit M.M. between December 26, 2006, and March 2007, but on March 15, the day after she was released from jail, mother contacted the department to arrange resumption of visits. She then met with the social worker on March 21 as instructed and resumed visitation. As far as we can tell from this record, she continued visiting regularly thereafter until the July 5, 2007, hearing.^[4]

Minor further claims that the courts finding that mothers progress had been adequate but incomplete does not equate to significant progress in resolving problems that led to the removal. Again, we disagree. Adequate but incomplete may well equate to significant.

DISPOSITION

The appeal is dismissed as moot.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

KING

J.

MILLER

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] Father has not appealed the courts order terminating his services, and references to his circumstances will be made only as necessary to clarify facts regarding mother.

^[2] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[3] The letter from MFI indicates that they referred mother to Victory Outreach on March 13, 2007, but it is unclear exactly what date she entered the inpatient program there. The case workers note of April 25, 2007, indicates that mother attended a meeting with the social worker on that date in the company of an accountability staff member from Victory Outreach. The program apparently requires that residents be accompanied by a staff member any time they leave the facility, so presumably mother was a resident on April 25.

^[4] Because the departments last case note in its last report (filed April 27) concerns the April 25 visit, we have no documented record regarding visitation for the six weeks preceding the July 5 hearing.