T.C. v. Superior Court

Filed 12/4/08 T.C. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy B. Williamsen, Commissioner.

Dependency Associates of Stanislaus and Nadine Salim, for Petitioner.

No appearance for Respondent.

No appearance for County Counsel, Real Party in Interest.

Perry & Associates and Catherine A. Ries, for M.O., Minor and Real Party in Interest.

-ooOoo-

Petitioner (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent courts order issued at a contested 12-month review hearing terminating her reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to her daughter, M. We will grant the petition.

STATEMENT OF THE CASE AND FACTS

M. came to the attention of the Stanislaus County Community Services Agency (agency) when, in November 2006 at the age of two years, she was admitted to Childrens Hospital of Central California in Madera (childrens hospital) with an initial diagnosis of aplastic anemia. M.s treating physician contacted the agency for assistance after unsuccessful attempts to get in touch with petitioner and M.s father, T.,^[2]who were then living in Modesto. M.s physician told the emergency response social worker M.s condition was life-threatening and she needed a bone marrow transplant to save her life. He also stated a parent needed to be with M. at all times and be able to respond to a medical emergency. Since petitioner and T. had only seen M. once and called twice to inquire about her subsequent to her admission 10 days before, the physician demanded M. be placed in a medical foster home close to childrens hospital.

At the time of M.s admission, petitioner and T. were separated but co-parenting M., M.s twin sister, and her three other siblings, ranging in age from 15 months to 8 years. Neither had been employed in some time and had been supporting their family with government assistance. Petitioner and T. admitted they used methamphetamine and agreed to participate in substance abuse programs. In addition, petitioner was in therapy for drug-induced psychosis. Petitioners psychotic symptoms involved hearing voices and being plagued by fear that she was going to hell because she had the numbers 666 on her drivers license.

Petitioner and T. agreed to place M. in voluntary foster care for as long as she needed specialized medical care and to participate in substance abuse programs. In December 2006, M. was placed in a medically approved foster home located within a 20-minute drive from childrens hospital where she would remain during the proceedings under review.

In January 2007, petitioner entered outpatient treatment for drug and alcohol addiction in Modesto. Upon entry, she tested negative for all substances. However, in May 2007, just days before she was to graduate from the program, petitioner discharged herself after having established a relationship with a man. During her treatment, she repeatedly identified men as her other drug of choice. However, she claimed she was just dating this particular man. Her counselor recommended a minimum of an additional 30 days of treatment. At that point, petitioner was testing negative for drugs, regularly attending Alcoholics Anonymous/Narcotics Anonymous meetings, and had a sponsor. In addition, her psychotic symptoms had decreased. During this time, T. also participated in drug treatment.

In June 2007, the agency reviewed petitioner and T.s progress and decided they needed further services. In addition, they were no closer to being able to manage M.s increasingly fragile medical condition, which by this time, was definitively diagnosed as leukemia. The medical plan for M. was chemotherapy until May 2009. During that time, the physicians wanted her to reside within a 20-minute drive of childrens hospital.

Since voluntary services could not exceed six months, the agency filed a dependency petition under section 300, seeking to detain M. The petition also named M.s four siblings but, instead of being detained, they were allowed to remain in the custody of their parents.

In August 2007, the juvenile court ordered M. removed from parental custody pursuant to the petition and ordered petitioner and T. to participate in a plan of reunification. Petitioners case plan required her to complete a medication assessment and participate in counseling for her psychosis and depression, complete a parenting class and outpatient substance abuse treatment, submit to random drug testing, and attend 12-step meetings. Both parents expressed a need for transportation to visit M. In addition, T. asked for help getting section 8 housing. The court set the six-month review hearing for January 2008.

During the first six months of services, the agency focused on helping petitioner and T. complete their court-ordered services. During that time, petitioner and T. lived together in a clean and sober facility with M.s siblings. Although they were living together, petitioner and T. denied being in a romantic relationship and intended to live separately, each taking two of the children, when they completed their programs.

In its six-month status review, the agency reported petitioners progress as slow but good. She completed outpatient substance abuse treatment and was testing negative for drugs. She completed an evaluation for her psychotic symptoms and it was determined that her symptoms were brought on by drug use and required monitoring only. She also completed a medical evaluation and medication was not indicated. The agency further reported petitioner was participating in parenting classes and individual therapy and visiting M. twice a month, once as part of M.s monthly doctors appointment and once with other members of the family at the agency office. The agency also reported T.s progress as slow but, like petitioner, he completed outpatient substance abuse treatment and was testing negative on drug screening.

The agency reported no concerns about petitioners participation in her case plan or about her care of the other children and both petitioner and T. expressed their desire to reunify with M. However, their failure to establish housing within a 20-minute drive of childrens hospital was still a barrier to reunifying with M. Consequently, the agency began to focus on helping petitioner and T. find housing because they had nearly completed their services and recommended the court continue services for another six months.

In January 2008, the juvenile court conducted the six-month review hearing and continued reunification services until the 12-month review hearing, which the court set for June 2008.

In February 2008, petitioner left the clean and sober facility with the children and a boyfriend with a criminal history of substance abuse and domestic violence. They were located four days later, petitioner was arrested, and the children were returned to T. at the clean and sober facility. After petitioner was released from jail, she joined her boyfriend and became homeless.

In May 2008, M.s oncologist informed the agency M. was basically healthy but continued to be treated for her leukemia. The doctor explained M. was at greater risk for infection, requiring her care provider to be very alert to any changes in her health and to be able to quickly take her in for treatment. In addition, M. was receiving chemotherapy monthly at childrens hospital, which was expected to continue until March 2009. She was also receiving medication at home on a specific schedule. The doctor stated Modesto did not offer pediatric oncology and, at best, if M. were living in Modesto, she could be stabilized at the Modesto hospital in an emergency and transferred to childrens hospital. M.s doctor emphasized the need for M. to reside within a 30 to 60 minute range of childrens hospital.

In June 2008, petitioner and her boyfriend moved into a small trailer in Madera even though she knew his criminal background would prevent her from resuming custody of her children. Petitioner told the social worker her situation was temporary until she could find a job and move out on her own.

By August 2008, petitioner was living temporarily with her father in Modesto after her boyfriend kicked her out. She planned to stay with her father until the 12-month review hearing, by this time continued until September, at which point she planned to move into a mission in Madera.

In its 12-month status review, the agency reported petitioner and T. made good progress in their court-ordered services. However, the agency was concerned about petitioners poor judgment and petitioner and T.s inability to find employment and stable housing in Madera. The agency had discovered in May 2008 that petitioner and T. did not qualify for section 8 housing in Madera until the case was transferred to Madera and under Maderas jurisdiction for some time. Further complicating matters, neither petitioner nor T. were employed or otherwise able to afford housing in Madera. They developed a plan which the agency considered the best plan under the circumstances. Their plan was to have the children remain with T. at the clean and sober facility while petitioner found a job and housing in Madera and reunified with M. T. and the other children would eventually join them in Madera.

However, the case worker had doubts about petitioner and T.s ability to carry out their plan because they frequently changed their minds about whether they wanted to live together or separately. Also, they claimed to be actively looking for work but had not been able to find a job and claimed they did not need the help of Aspira Pro-Family (Aspira), an organization working through the agency to help them locate housing. The agency recommended the court offer petitioner and T. another six months of services and transfer the case to Madera County.

M.s attorney opposed the agencys recommendation to continue services and the juvenile court conducted a two-day contested hearing in early September 2008. Several days before the hearing, M. was admitted to the hospital with a low white blood count.

At the contested hearing, T. testified he was employed in Modesto and earned enough to finance housing in Madera where he intended to move within the next three months or help petitioner rent a studio apartment, whichever occurred first. Petitioner testified she was employed part-time as a caretaker and planned to live in a mission in Madera until she received her first paycheck. After that, she planned to work with Aspira to secure section 8 housing. However, on cross-examination, she testified she had not been approved for the job.

The social worker testified she referred petitioner and T. to Aspira in February 2008 and contacted Child Protective Services in Madera to determine if section 8 housing were available. Through her testimony, M.s attorney introduced a letter from Aspira, chronicling its services to petitioner and T. from February to July 2008. According to the letter, T. cancelled four trips with Aspira scheduled in March through May 2008 to look for housing in Madera. The Aspira representative made two of the trips herself on T.s behalf to look for housing in Madera. In June 2008, petitioner and T. told the social worker they would search for housing by themselves.

The social worker further testified that she no longer recommended the court transfer the case to Madera, explaining that the case could not be transferred to Madera until petitioner had a residence there. When asked whether money or finances and housing were the primary difficulties in the case, she responded housing.

Following testimony, the court directed counsel to focus their arguments on whether M. could be safely returned to either parent by mid-to-late December 2008, which marked 18 months from the date of her removal from parental custody. County counsel asked the court to continue services for another three months, arguing petitioner and T.s primary difficulties, i.e., stability and housing, could conceivably be resolved by December 2008. County counsel pointed out that petitioner and T. did not present with unresolved substance abuse or domestic violence issues. Instead, they engaged in services, made progress and had contact with M. The problem, according to county counsel, was M.s significant medical needs, which cast petitioner and T.s situation in a different light. County counsel could not, however, argue there was a substantial probability M. would be returned to petitioner and T. following continued services.

T.s attorney argued T. demonstrated his ability to resume custody of M. after continued services by complying with his court-ordered services, visiting M. regularly, finding employment and caring for the couples other four children. T.s attorney also pointed out that it was in M.s best interest to preserve the family unit because she is a twin. In addition, T.s attorney argued the agency could have done more to help the family locate housing in Madera. Petitioners attorney joined in the remarks of T.s attorney and argued the court could not penalize petitioner because of poverty.

M.s attorney argued petitioner had not demonstrated the capacity and ability to provide for M.s special medical needs, citing petitioners failure to visit M. during her hospitalizations, her back and forth relationship with her boyfriend, and her refusal to accept help finding a house within a short transportable distance of childrens hospital.

The juvenile court concluded petitioner and T. were provided reasonable services but returning M. to either of their custody would create a substantial risk to her because of her medically fragile condition and the requirement she live in a clean and stable environment near childrens hospital. In addition, the court found petitioner and T. made significant progress in resolving the problems necessitating M.s removal with the exception of housing in Madera, which the court did not attribute to their financial situation but to their failure to appreciate M.s need to have them reside close to the hospital and to avail themselves of services to accomplish that. The court concluded petitioner was more concerned about maintaining her relationship with her boyfriend than relocating to Madera. The court also stated that, though employed, T. had yet to demonstrate his ability to stabilize the family. Finally, the court found there was not a substantial probability M. could be safely returned to either parent by December 2008. Consequently, the court terminated petitioner and T.s reunification services and set a section 366.26 hearing. This petition ensued.

DISCUSSION

Petitioner claims her inability to afford appropriate housing was the only impediment to reunifying with M. Therefore, the juvenile court erred in terminating her reunification services. We agree the juvenile court erred, concluding petitioner was not provided reasonable services.

The objective of Californias dependency system is to protect children from abuse or neglect and to provide permanent, stable homes if those children cannot be safely returned home within a prescribed period of time. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) At the same time, it recognizes a parents fundamental interest in the care, companionship and custody of his or her child and the childs fundamental independent interest in belonging to a family unit. (Id. at p. 306.) Consequently, safeguards were built into the system to provide the parent due process and fundamental fairness while also accommodating the childs right to stability and permanency. (Id. at p. 307.) One of those safeguards is six-month review hearings at which the juvenile court determines whether the state provided reasonable services. (Id. at p. 308.) The state bears the burden of proving that reasonable services were offered or provided. (Ibid.) Services are reasonable when the supervising agency identifies the familys problems, offers services targeting those problems, maintains reasonable contact with the offending parent(s), and makes reasonable efforts to assist in areas where compliance is difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)

On review, we examine the appellate record to determine if substantial evidence supports the juvenile courts reasonable services finding. (In reMisako R. (1991) 2 Cal.App.4th 538, 545.) Given the evidence, as summarized above, we conclude, in this case, it does not.

The circumstance necessitating M.s initial and continuing removal from petitioners custody was M.s need for a quick medical response, part of which required petitioner to establish a home near the childrens hospital. Both petitioner and the agency knew that petitioners failure to accomplish that would prevent petitioner from reunifying with her child. Complicating matters were petitioners homelessness, unemployment, instability, and drug use. Despite that, prior to M.s removal, she somehow managed to care for her five children with the help of their father, who was essentially in the same predicament. Though the reunification plan offered by the agency addressed all of these issues, the agency conceded that housing took a back seat during the first six months of reunification efforts by the end of which petitioner had successfully completed her court-ordered services and allayed any concerns with respect to her drug use or psychotic symptoms. Why the agency did not make more effort to help petitioner locate housing in Madera during the first six months is unclear, especially since her drug treatment was outpatient rather than residential. Nevertheless, concerted efforts did not begin until sometime in February 2008 when petitioner was referred to Aspira.

Starting in February 2008, according to the case workers testimony, Aspira took the lead in helping petitioner and T. locate low-income housing. However, in May, the agency learned that at least one low-income option, section 8 housing, was unavailable in Madera unless petitioner resided in Madera for some time. At some point, petitioner and T. devised their own plan to establish a residence in Madera and stated they no longer needed any assistance. The problem was petitioner was still homeless and her best employment prospect did not pay enough to pay rent. T. was employed but had not earned enough to make a first rental payment. This was their situation at the 12-month review hearing.

At the review hearing, the focus was on what petitioner and T. had done to obtain employment and housing rather than on the agencys efforts to assist them. Consequently, it is not clear why the agency did not request to transfer the case to Madera County sooner so that petitioner could apply for section 8 housing since, at times, she was living in Madera and the case worker verified her address there. Further, there is no mention as to what other housing arrangements were explored and eliminated as possibilities. Nor is there evidence as to what assistance petitioner received in searching for employment or other financial assistance. According to petitioners testimony, the job she applied for was one she found on her own. Clearly, petitioner was going to need an income to obtain housing.

Petitioner argued at the hearing and again on this writ that her inability to reunify was not based on an unwillingness to comply. Rather, it flowed from the circumstances of her poverty. That may very well be true and the law is clear that poverty is not a basis for keeping a child from a parent. (In re Cheryl E. (1984) 161 Cal.App.3d 587, 607.) The problem is that, because the agency did not make reasonable efforts to help this family, it is difficult to determine whether poverty alone was the impediment to reunification.

In sum, the agency failed to make reasonable efforts to assist petitioner in reunifying with M. Specifically, the agency failed to place petitioner in the best position to obtain housing by not transferring the case to Madera County. In addition, the agency failed to demonstrate it made reasonable efforts to assist petitioner with obtaining employment and housing.

On a final note, this case highlights the importance of reasonable departmental efforts to assist, especially when compliance is difficult. Once services are terminated, the juvenile courts focus shifts away from reunification to termination of parental rights. In a case such as this where the parents allowed their child to be placed in another home for medical reasons, voluntarily entered treatment programs while successfully co-parenting four other children, and fully complied with court-ordered services in hopes of regaining custody of their child with whom they maintained a loving bond, it would be a travesty to fast forward them to a termination hearing just because they could not independently locate affordable housing.

DISPOSITION

Let an extraordinary writ issue directing respondent court to vacate its order of September 4, 2008, terminating reunification services and setting the section 366.26 hearing and reverse its finding that petitioner was provided reasonable services. Respondent court is further directed to conduct a hearing and enter a new order reinstating reunification services for an additional six months. At that hearing, the court is directed to consider transferring the case to Madera County. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

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

^[2] T. did not file a writ petition from the juvenile courts setting order.