G.F. v. Super.
Filed
1/10/13 G.F. v. Super. Ct. CA1/1
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
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IN THE COURT OF APPEAL OF
THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
G. F.,
Petitioner,
v.
SUPERIOR COURT OF ALAMEDA
COUNTY,
Respondent,
ALAMEDA COUNTY DEPARTMENT OF SOCIAL SERVICES et al.
Real Parties in
Interest.
A136673
(Alameda County Nos. OJ-11-018011
& OJ-11-018012)
G.F. (Mother) seeks extraordinary relief from orders of
the Alameda
County Superior Court, Juvenile Division, entered September 18, 2012,
terminating Mother’s reunification services after the six-month status review
hearing, and setting a hearing under Welfare and Institutions Code section
366.26
to select a permanent plan for her twin daughters, K.F.-1 and K.F.-2 (born
November 2011). Mother contends
essentially that the juvenile court erred in finding that the Alameda County
Department of Social Services (Department) offered or provided her with
reasonable reunification services,
and in finding Mother had failed to make substantial progress in her court-ordered
treatment plan during the period under review.
We conclude substantial evidence
supports the challenged findings, and deny on the merits Mother’s petitions for
extraordinary writ.
title="">[2]
Background
At the time of the infant girls’ birth in November 2011,
Mother was 15 years of age, and herself a dependent of the
in Stanislaus County. The Stanislaus
County social services agency took the minors
into protective custody a few days later, due to Mother’s history of running
from her foster placement and engaging in prostitution, and a concern that
Mother intended to run away with the minors.
Mother did in fact run away from her placement five days after the
minors were removed from her custody.
The Department filed a
November 28, 2011. The petitions sought
dependency jurisdiction under section 300, subdivisions (b) and (g), alleging,
as ultimately amended, that: (b-1)
Mother was a dependent of the juvenile court, had an ongoing pattern of running
away, and a history of sexual exploitation; (b-1) Mother had refused provide
any information to hospital staff regarding the identity of the father; and,
(g-1) the father’s whereabouts and ability to provide care were unknown.
The juvenile court ordered formal detention of the minors
on November 29, following a hearing at which Mother appeared through counsel.
The Department’s jurisdictional/dispositional report,
completed on December 9, 2011, indicated Mother’s whereabouts were unknown
since her going AWOL from her foster placement on November 27. Mother had been a “chronic runaway,â€
according to the social worker (SW) who was currently assigned to Mother’s (not
the minors’) dependency proceeding. This
SW had attempted to locate Mother through various telephone numbers, including
that of Mother’s “pimp.†The report
recommended Mother be offered reunification services should she “resurfaceâ€
from being AWOL.
An addendum report, completed on January 5, 2012,
reported Mother was no longer AWOL, having returned to her foster care
placement on December 6. The minors were
placed “relatively close†to Mother’s own foster placement, and it appears
Mother had at least one visit with them on December 16, and possibly more
afterwards, before she cancelled a visit scheduled for December 28.
At the conclusion of a contested
held January 9, 2011, the juvenile court sustained the amended
jurisdictional allegations summarized above, adjudged the minors dependents of
the court, and adopted the Department’s dispositional recommendations. The reunification case plan adopted by the
court required Mother to complete a psychological evaluation, and follow any
recommended treatment, including individual therapy, and to participate in a
parenting class to learn the developmental stages of her daughters.
Mother have visitation with the minors “as frequently as possible consistent
with [their] . . . well-being.â€
From a subsequent ex
parte application filed by Mother’s counsel on May 15, 2012, it appears
Mother had again run away from her foster placement in late December 2011,
until January 25, 2012, when she was detained in Los Angeles on a misdemeanor
charge of soliciting an act of prostitution.
(Pen. Code, § 647, subd. (b).)
Mother was afterwards transported to the Alameda County Juvenile Justice
Center (JJC), and after a delinquency dispositional hearing on March 8, was
adjudged a ward of the juvenile court under section 602, and placed in the
custody of the county’s Juvenile Probation Office (JPO).
detained at the JJC as of May 15, and had neither visited with her children nor
received the psychological evaluation required by her case plan. Her counsel thus sought, and the juvenile
court granted on May 15, an order directing the Department and the JPO to
cooperate and provide Mother with appropriate space for supervised visitation—as
frequently as possible consistent with the minors’ best interests—and directing
both agencies to take the steps necessary to complete Mother’s psychological
evaluation.
Four days later, Mother’s counsel filed section 388
petitions seeking a modification of orders directing the Department to offer
reunification services better suited to Mother’s current placement in the JJC,
and her anticipated transfer and placement in an out-of-state facility.
Not long afterward, on May 24, 2012, the Department
completed its report for the six-month status review hearing, in which it
recommended the termination of Mother’s services and the setting of a section
366.26 hearing to select permanent plans for the minors. The assigned SW reported Mother remained in custody
at the JJC and was expecting to be transferred to an out-of-state
placement. The SW further stated she had
been assigned to Mother’s case on January 12, shortly after the
jurisdictional/dispositional hearing, and, as Mother was AWOL from her foster
placement at that time, the SW had been unable to contact her. The SW first learned on February 10 that
Mother had been arrested in Los Angeles two weeks earlier, and first learned on
March 1 that Mother was in custody at the JJC.
On March 9, the SW learned Mother had been adjudged a ward of the
delinquency court, and on March 15 she contacted Mother’s JPO officer, at which
time she requested approval to visit Mother at the JJC, and also inquired about
possible visitation. The probation
officer told the SW “visitation was not an option†as it “was not safe for the
infants at [the JJC].†The next day,
March 16, the SW contacted a new JPO officer regarding visitation, and the
officer said she would “follow up†on the inquiry, noting that any such
visitation at the JJC would be regarded as a “special visit.†The SW’s initial visit with Mother took place
at the JJC on March 19. The SW contacted
the JPO officer again on March 27 and March 30, asking again about available
services and visitation, and provided the JPO officer with information about
Mother’s reunification case plan. On May
16, the SW provided the JPO officer with a copy of the ex parte order that
Mother’s dependency counsel had obtained on May 15, which directed the JPO to
cooperate with the SW in arranging visitation.
Concerning Mother’s case plan requirements to complete a
psychological evaluation and parenting education, the SW reported she had
learned, on March 27, 2012, that there was a waiting list of several months to
obtain a psychological evaluation through the West Coast Children’s Clinic—the
provider to which the Department had initially intended to make its referral at
the time of the jurisdictional/dispositional hearing. On that date the SW requested that the JPO
officer set up the evaluation through the JJC’s Guidance Clinic. After learning, on April 3, that parenting
classes were not available at the JJC, the SW, two days later, contacted
Mother’s individual therapist and requested that she include parenting
education in her therapy sessions, at least during the time Mother was at the
JJC and unable to access classes. At
this time, the therapist reported she was having difficulty obtaining the
necessary approval from the JPO to visit Mother at the JJC in order to provide
weekly therapy. On that same day the SW
contacted the JPO officer to address the issue of the therapist’s regular
visits, and to request again that Mother be placed on the list for a
psychological evaluation through the Guidance Clinic. The SW repeated the latter request on April
18, and on April 27 the JPO officer said she would make the request on May 4,
at Mother’s next delinquency hearing. On
May 16, the SW provided the JPO officer with a copy of the ex parte order,
which, as noted above, had been obtained by Mother’s dependency counsel one day
earlier, and which ordered the JPO to cooperate with the SW in arranging a
Mother.
An addendum report, completed July 18, stated the SW had
continued efforts to arrange with the JPO for Mother to have visitation with
the children at the JJC. After
attempting to schedule visits on May 22 and May 29, the SW was able to confirm
a scheduled visit for June 6. On May 31
the SW learned that the juvenile court—at a hearing held in Mother’s
delinquency case—had ordered a visit to occur at the JJC no later than June
5. The SW facilitated and supervised a
visit on that date. While waiting for
this visit to begin, the SW learned from the JPO officer that Mother was
scheduled to be placed out-of-state on June 12.
The SW was able, with the assistance of Mother’s appointed counsel in
both her delinquency proceeding and the minors’ dependency proceedings, to
arrange a second visit on June 11.
The
following day Mother was transferred to the Mingus Mountain Academy (the
Academy) in Arizona—a facility designed for emotionally and behaviorally
at-risk teen-age girls.
name="_ftnref7" title="">[7] In the addendum report, the SW noted a later
conversation she had with Mother’s case manager at the Academy, from whom she
learned Mother was taking school classes, and was also engaged in individual
therapy, group therapy, and anger management, and was soon to begin a parenting
class. The SW asked the case manager to
arrange a psychological evaluation for Mother as well. The case manager reported that the average
stay for girls placed at the Academy was nine to 12 months.
A
combined hearing on Mother’s section 388 petitions and the six-month status
review commenced July 27, 2012, at which time the juvenile court admitted the
above-mentioned reports and heard testimony from the SW. The court continued the hearing after
directing the SW to coordinate with the case manager at the Academy, to
determine if safe arrangements for Mother’s visitation with the minors could be
arranged at that facility, with instructions to report back to the court.
In
its report filed August 10, 2012, the SW recommended that court deny Mother’s
request for out-of-state visitation. She
explained Mother’s case manager at the Academy had reported the facility could
supervise visits but could not provide parenting support; the Academy could
also assist in local accommodations and transportation for the foster parents
and the minors. Mother’s therapist at the
Academy stated she could observe such visitation if it were ordered. But the foster parents said they would need
one month’s advance notice of visitation, if ordered, due to the logistical and
work-related difficulties the foster father faced in scheduling such
travel. Also, the JPO had not offered to
support visitation, and its plan was eventually to return Mother to the care of
her father, who had been denied approval for relative placement. The SW additionally noted the extent of
travel would be taxing on the minors due to their young age. Their current developmental stage (almost 10
months of age) made it difficult for them to handle any change in their daily
routine, and visitation would be difficult for the same reason, given their
lack of any significant relationship with Mother since their birth, a lack
attributable to Mother’s AWOLs from the dependency placements that preceded her
delinquency placements. The SW finally
pointed to the fact she was recommending termination of Mother’s services,
because she did not feel she could successfully reunify with the minors if
given additional reunification services.
Mother’s counsel in the minors’ dependency proceeding interposed a
forceful opposition to the SW’s recommendation.
In
a second addendum report, signed September 14, 2012, the SW noted subsequent
reports from the Academy stated Mother’s behaviors “were becoming more
negative,†she had required “redirection for inappropriate conversation
regarding prostitution, not taking responsibility for her behavior, and
minimizing her negative behaviors.â€
Also, given the JPO plan to return Mother to her father’s care after her
discharge from the Academy, family therapy between the two was an important
component, yet her father had not participated in such therapy nor responded to
the contacts Mother had attempted by telephone.
At
the conclusion of the combined hearing, on September 18, 2012, the juvenile
court terminated Mother’s reunification services and set the matter for a
hearing under section 366.26. The court
also granted a motion by Mother’s counsel to withdraw her section 388
petitions.
Mother’s
petition followed. (§ 366.26, subd. (
Discussion
I. Reasonable
Services
The
juvenile court found, among other things, that the Department had offered or
provided Mother with reasonable reunification services. Mother challenges this finding, contending
specifically that the Department failed to provide her with reasonable
visitation during her custody at the JJC.
Although the SW reported the JPO officer had informed her visitation
with her infant daughters was not an option at the JJC, Mother points out a
visit did occur once it was ordered by the juvenile court in Mother’s
delinquency proceeding. She questions
the Department’s good faith efforts to provide reasonable services, arguing the
SW “passively accepted†the JPO’s refusal to accommodate visitation and
suggesting the SW unreasonably failed to exert more active efforts to obtain a
court order compelling the JPO’s compliance with the visitation order made at
the time of the jurisdictional/dispositional hearing.
In reviewing the
challenged finding, we examine the record in the light most favorable to the
juvenile court’s order, to determine whether there is substantial evidence from
which a reasonable trier of fact could have made the finding under the clear
and convincing evidence standard. (In
re Isayah C. (2004) 118 Cal.App.4th 684, 694 (Isayah C.).) We construe all reasonable inferences in
favor of a finding regarding the adequacy of an agency’s reunification plan and
the reasonableness of its efforts. (In
re Julie M. (1999) 69 Cal.App.4th 41, 46 (Julie M.).) We likewise resolve conflicts in favor of
such a finding and do not reweigh the evidence.
(In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
As detailed above, the
reports admitted at the six-month hearing stated Mother was AWOL at the
beginning of the review period, was arrested in Los Angeles, and, it appears,
was later transported to the JJC around March 1. The SW, on March 15, promptly sought approval
from the JPO to visit with Mother, and inquired about visitation for her. The SW continued her efforts to arrange
visitation, after the JPO officer informed her on that date that such
visitation was “not safe†and therefore “not an option.†The SW appraised the JPO officer of Mother’s
case plan requirements. Thus it appears
the officer was on notice as early as March regarding the visitation order
issued on January 9 as part of Mother’s court-ordered case plan. The SW also promptly apprised the JPO officer
of the ex parte order obtained by Mother’s dependency counsel on May 15,
directing the JPO to cooperate in providing visitation. After this, the SW was successful in
scheduling a visit for June 6, facilitated and supervised the June 5 visit that
superseded the June 6 visit, and, with the help of Mother’s attorneys,
successfully arranged and supervised a second visit on June 11, the day before
Mother’s transfer from the JJC to the Academy in Arizona.
An agency is not obligated to provide the best services possible
in an ideal world, but only those that are reasonable under all the
circumstances. (In re Misako R. (1991) 2 Cal.App.4th
538, 547; Julie M., supra, 69 Cal.App.4th at p.
48.) In our view, the foregoing evidence
provides substantial support for the juvenile’s court conclusion—implied in its
finding of reasonable services—that the SW made reasonable efforts to provide
visitation for Mother during the time she was confined at the JJC. The SW by no means “passively accepted†the
JPO’s initial refusal of visitation, but made repeated efforts to arrange
visits afterwards. After apprising the
JPO of the preexisting visitation order and the later ex parte visitation
order, we do not consider it unreasonable that the SW did not seek an
additional order from the juvenile court.
We conclude
substantial evidence supports the juvenile court’s finding that the Department
offered or provided Mother with reasonable visitation services under the
particular circumstances of this case.
II. Failure
to Make Substantive Progress in Court-Ordered Treatment Plan
Another of the juvenile
court’s findings was that Mother had “failed to participate regularly and make
substantial progress in [her] court-ordered treatment plan.†Mother
claims this finding is erroneous. Her
position is that she did make substantive progress in her case plan
“once she was offered . . . services.â€
Mother urges she cannot be faulted for failing to complete the
objectives of her case plan, and any such failure must be attributed to the
SW’s failure to cooperate with the JPO officer, to ensure she was given a fair
opportunity to complete her objectives.
This
challenged finding, made under the clear and convincing evidence standard of
proof, was necessary for juvenile to terminate services at the six-month
hearing and exercise its discretion to set a hearing under section 366.26. (See § 366.21, subd. (e).) We review such a finding
to determine whether it is supported by substantial evidence. (Sheila
S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) Thus we review the record in the light most
favorable to the juvenile court’s ruling, and uphold the finding when there is
substantial evidence permitting a reasonable trier of fact to make the finding under
the clear and convincing standard of proof.
(Isayah C.,
694-695.)
Mother’s argument, in
essence, is that she could have made
substantive progress had she been given reasonable services relating to the
components of her plan other than visitation—that is, a psychological
evaluation and parenting education. We
have summarized above the SW’s effort to address these components beginning in
March 2012, when she first made contact with Mother at the JJC. She repeatedly requested the JPO officer to
set up a psychological evaluation through the JJC’s Guidance Clinic. It appears this evaluation
never occurred, even though the JPO officer promised to raise the issue on May
4, at the next of Mother’s regularly scheduled delinquency status
hearings. The SW apprised the JPO
officer on May 16 of an order issued one day earlier, which specifically
directed the JPO to cooperate with her in arranging a psychological
evaluation. After finding that parenting
education was not offered at the JJC, the SW arranged for Mother’s individual
therapist include at least some parenting education in her weekly
sessions. Once Mother
was transferred from the JJC to the Academy on June 12, the SW learned she
would soon be starting a parenting class; at that time she asked Mother’s case
manager there to arrange a psychological evaluation as well. We note that by June 12, six months had
already elapsed since the jurisdictional/dispositional hearing on January
9. Nevertheless, in the final addendum
report signed September 14, the SW reported that Mother’s progress at the
Academy had recently stalled due to her exhibition of negative behaviors, which
she minimized, and by the need to redirect her inappropriate conversations
regarding prostitution.
We have no difficulty concluding that, here too, the SW
made reasonable efforts to provide Mother with an opportunity to complete her
psychological evaluation and participate in parenting education. She arranged a reasonable accommodation for
the parenting component through Mother’s individual therapist, after learning
the JJC did not offer parenting classes.
If the SW was unsuccessful in arranging the timely completion of a
psychological evaluation, she certainly made reasonable efforts to do so, and
she promptly gave the JPO officer notice of the May 15 ex parte order, which
directed the JPO to cooperate with the SW in completing the evaluation. Neither the SW nor the Department, in our
view, may be faulted for the delay in obtaining a psychological evaluation. We conclude substantial evidence supports the
finding that the Department offered or provided reasonable services as to these
component’s of Mother’s court ordered plan.
Turning to the challenged finding regarding Mother’s
failure to make “substantive progress†during the period under review, we
observe that the normal time limits for services are not extended for
incarcerated parents. (§ 361.5, subd.
(e).) While certain statutory provisions
(see, e.g., § 361.5, subds. (a)(3), (e)) call for special consideration of
incarcerated parents, these parents must still meet their case plan
requirements and are not given a “free pass†with regard to compliance. That there are barriers to compliance unique
to incarcerated parents is but one of many factors the juvenile court must take
into account when deciding how best to proceed in the best interests of the
dependent child. (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1060.) In light of these principles, and viewing the
foregoing evidence in the light most favorable to the juvenile court’s ruling, we
conclude substantial evidence supports the court’s finding, made under the
clear and convincing standard of proof, that Mother failed to participate
regularly and make substantive progress in her court ordered treatment plan. (§ 366.21, subd. (e).)
Disposition
The
petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14;
Cal.4th 888, 894; Bay Development, Ltd.
v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court
immediately. (Cal. Rules of Court, rules
8.452(i), 8.490(b)(3).)
_________________________
Banke,
J.
We concur:
_________________________
Marchiano, P. J.
_________________________
Margulies, J.
and Institutions Code, unless otherwise indicated.
a timely writ challenge to an order setting a hearing under section 366.26,
and encourages the appellate court to determine such writ petitions on their
merits. (§ 366.26, subd. (
