Sandra C. v. Super. Ct. CA4/1 ( 2014 )

Filed 6/11/14 Sandra C. v. Super. Ct. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SANDRA C. et al., D065494
Petitioners, (San Diego County
Super. Ct. No. J518551)
v.
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
Real Party in Interest.
PROCEEDINGS for extraordinary relief after reference to a Welfare and
Institutions Code section 366.26 hearing. Laura J. Birkmeyer, Judge. Petition denied;
request for stay denied.
Dependency Legal Group of San Diego and Amanda J. Gonzales for Petitioner
Sandra C.
Dependency Legal Group of San Diego and John P. McCurley for Petitioner
Ignacio C.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Erica R. Cortez, Deputy County Counsel, for Real Party in Interest San
Diego County Health and Human Services Agency.
Dependency Legal Group of San Diego and Lisa Storing for Minor.
Sandra C. seeks writ review of a juvenile court order terminating reunification
services as to her minor son, Logan C., and setting a Welfare and Institutions Code
section 366.261 hearing. Sandra contends (1) the court erred by not continuing her
reunification services to the 18-month date; and (2) the San Diego County Health and
Human Services Agency (the Agency) failed to provide her with reasonable reunification
services.2 We deny the petition and Sandra's request for a stay of the hearing.
FACTUAL AND PROCEDURAL BACKGROUND
Logan was born in December 2011 and was detained on October 27, 2012, when
Border Patrol officers arrested Sandra at the border check point in Pine Valley for
transporting heroin and crystal methamphetamine in her car. Sandra was stopped at the
check point when she was returning from Centinela State Prison in Imperial where her
husband Ignacio was incarcerated. Her sister April and Logan were with her in the car.
1 Statutory references are to the Welfare and Institutions Code.
2 Logan's father, Ignacio C, filed a notice of intent to file a writ petition and a letter
joining in Sandra's brief.
2
Sandra and Ignacio had planned for April to smuggle the drugs into the prison in her
vagina and pass them to Ignacio after taking Logan inside to visit him, but April refused
to go through with the plan. Sandra was not allowed on the prison grounds because she
was on probation for attempting to smuggle heroin into a jail through the mail.
Police later searched Sandra's home and found balloons used to transport heroin
that were accessible to Logan in the room where she and Logan slept. They also found a
plastic bag containing marijuana by Logan's crib. An officer with the San Diego
Sherriff's Department informed the Agency that Ignacio was a gang member from Logan
Heights and a member of the Mexican Mafia with a significant criminal history and a lot
of power in prison and on the streets. He was a "go-to guy" for violence in and out of
prison." He had access to a cell phone in prison and used it to call Sandra and April to
ask them to do things for him, including asking Sandra to smuggle drugs.
The Agency filed a petition on behalf of Logan under section 300, subdivision (g),
alleging that Sandra and Ignacio were incarcerated and unable to arrange appropriate and
adequate care for Logan. In December 2012, the Agency amended the petition to add a
count under section 300, subdivision (b), alleging that Sandra left Logan unattended and
inadequately supervised due to her arrest in October for transporting methamphetamine
and heroin with Logan present. The amended petition further alleged that Sandra
admitted she was transporting the drugs at Ignacio's direction and had done so before, and
that she was on probation for trying to smuggle drugs to him through the mail. Logan
was detained in the home of Sandra's cousin Laura M. At the jurisdiction and disposition
3
hearing on December 27, 2012, the court sustained the amended petition, ordered
reunification services for both parents, and continued Logan's relative placement.
The service objectives of Sandra's case plan included complying with court orders,
maintaining her relationship with Logan by following the conditions of the visitation
plan, staying sober and showing the ability to live free from alcohol dependency, staying
free from illegal drugs and showing the ability to live free from drug dependency,
complying with required drug tests, not breaking the law and avoiding arrests and
convictions, and showing knowledge of age appropriate behavior for Logan. The case
plan required Sandra to participate in weekly therapy "to address her self[-]esteem and
poor decision making that placed her child at risk." The plan also required Sandra's
participation in a substance abuse treatment program. The goal of that program and her
services in general was to become educated on the dangers of drug use and trafficking
and the risks they posed to her child, and how they affected her and her family.
Sandra was incarcerated at the time of her arrest in October 2012 and was released
from work furlough on April 27, 2013.3 During her incarceration she attended a
parenting class, Narcotics Anonymous (NA) meetings, and an anger management class.
She also received a food handler's certificate and a certificate of completion for attending
seven classes of drug education. After her incarceration, Sandra attended a substance
abuse program called ParentCare in addition to NA meetings and other services. She had
fair attendance at ParentCare in May 2013 and poor attendance in June, and had not
3 Ignacio was released from prison around the same time that Sandra was released
from jail.
4
completed any of the program's required assignments. She underwent a number of
random drug tests with negative results, and tested positive for tetrahydrocannabinol
(THC) on one test in June 2013. A counselor from ParentCare reported that Sandra
listened to her and was aware of what she (Sandra) was doing, but still had not realized
the danger she put Logan in when she transported drugs with him in the car.
Sandra had six visits with Logan while she was incarcerated and in the work
furlough program and continued having supervised visits with him after her release.
Sandra was affectionate with Logan and happy to see him and he enjoyed visiting her. At
the contested six-month review hearing, the court found Sandra had made some progress
with her case plan, and Ignacio had not made substantive progress with his case plan.
The court continued reunification services for both parents.
Sandra's updated case plan required her to address in group therapy her
understanding of what brought this case to the court's attention and to describe in detail
the risk of harm from trafficking drugs in the presence of Logan. She was directed to
write a letter explaining how selling drugs from her home could harm Logan "and exactly
how things would be different in the future so this does not happen again." Both parents
were ordered to participate in the dependency drug court.
In its report for the 12-month review hearing, the Agency recommended that the
court terminate reunification services for both parents and set a section 366.26 hearing.
Ignacio had been incarcerated from August 19 to August 27, 2013, because his parole
officer found illegal drugs in his home. The parole officer also reported that Ignacio was
not participating in reunification services and had tested positive for drugs three times.
5
On October 24, 2013, Ignacio was arrested for flash incarceration, possession of a
controlled substance for sale, possession of a narcotic controlled substance, possession of
burglary tools, possession of unlawful paraphernalia, first degree attempted murder, two
counts of evading police/disregard of safety, felon in possession of a firearm, possession
of ammunition by a person prohibited from owning a firearm, and receiving stolen
property. The attempted murder charge was based on Ignacio's allegedly shooting and
seriously wounding a San Diego police officer while trying to evade arrest on two felony
warrants.
In August 2013, Sandra separated from Ignacio after she found out she was
pregnant with his second child. She told the Agency social worker she was thinking of
making it a permanent separation but changed her mind after Ignacio's arrest in October.
She said she "would not let him rot in prison" and that she visited him in jail as much as
she could. She appeared depressed and expressed doubt that she would be able to handle
Logan and a new baby or succeed in reunifying with Logan. She started individual
therapy and her therapist reported that Sandra was hearing voices and might have
depression with psychotic features. The therapist thought Sandra needed medication for
depression, but Sandra refused to take medication because of her pregnancy. The
therapist was concerned that Sandra's depression would prevent her from completing her
reunification services and recommended she undergo a psychiatric and psychological
evaluation.
Sandra underwent a court-ordered psychological evaluation in November 2013.
When asked why she trafficked narcotics, Sandra told the evaluator, "I had a new baby,
6
my husband was in prison, I couldn't make the bills, it was a quick way to make a lot of
money." She told the evaluator she had used cannabis daily between the ages of 12 and
19, but had been abstinent since her arrest in October 2012. The evaluator reported that
Sandra met the criteria for major depressive disorder and was debilitated by emotional
and cognitive symptoms. The evaluator concluded that Sandra did not appear to have
any cognitive or intellectual impairment that would prevent her from benefitting from
services, but it was unlikely she would meet expected goals by the "legal deadline of
December 18, 2013" because her emotional and psychological functioning had been
impeded by symptoms of severe depression and exacerbated by symptoms of pregnancy.
An addendum report filed in February 2014 noted that Sandra's therapist stated
Sandra would not have any involvement with Ignacio if the Agency would tell her she
could not be with him. The social worker stated "the Agency could not tell [Sandra] who
[she could] be in a relationship with, but that is something she would have to decide
herself with the help of her services, including individual therapy." When the social
worker asked Sandra about her relationship with Ignacio, she said "he is still a person and
he just made a bad mistake." She continued to visit him and said he was supportive of
her and that they were in the process of agreeing on a name for their unborn daughter.
Because she had poor attendance and was not making progress at ParentCare,
Sandra was referred to a different outpatient program at Family Harmony West Women's
Recovery Center (Harmony West). Sandra's case manager at Harmony West told the
social worker that Sandra was sometimes engaged in sessions and sometimes "just sits
there . . . and has a flat affect . . . ."
7
At the contested 12-month review hearing on February 14 and 18, 2014, the court
admitted all of the Agency's reports and an update letter from Harmony West into
evidence and heard testimony from the social worker, Sandra's therapist, and Sandra.
After considering the evidence and arguments of counsel, the court found the Agency had
provided the parents with reasonable services. The court further found return of Logan to
parental custody would create a substantial risk of detriment to Logan and there was no
substantial probability of his return to parental custody by the 18-month date.4
Accordingly, the court terminated reunification services and set a section 366.26
selection and implementation hearing.
Sandra filed a petition for review of the court's orders and requested a stay of the
section 366.26 hearing. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court
issued an order to show cause, the Agency responded, and the parties waived oral
argument.
DISCUSSION
I. Termination of Reunification Services
Sandra contends the court erred by not continuing her reunification services to the
18-month date. We construe her argument as a challenge to the sufficiency of the
4 The court calculated the 18-month date to be "on or about the weekend of April
26, 2014."
8
evidence to support the court's finding that there was no substantial probability that
Logan would be returned to her by the 18-month date.5
Under section 366.21, subdivision (g)(1), the court may continue a case to the 18-
month date only if there is a substantial probability the child will be returned to the
parent's physical custody and safely maintained in the home by that time. In considering
whether to extend the case to the 18-month date, the court must find: (1) the parent has
consistently and regularly contacted and visited the child; (2) the parent has made
significant progress in resolving problems that led to the child's removal from parental
custody; and (3) the parent has shown "the capacity and ability both to complete the
objectives of his or her treatment plan and to provide for the child's safety, protection,
physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1)(A), (B) &
(C).)
Where, as here, the court is required to make factual findings, we review its
decision for substantial evidence. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th
676, 689-690; In re B.D. (2008) 159 Cal.App.4th 1218, 1232.) We do not consider the
credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the
evidence. Instead, we draw all reasonable inferences in support of the findings, view the
record favorably to the juvenile court's order and affirm the order even if there is
substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994) 24
5 Sandra does not address the applicable standard of review. She argues there is
sufficient evidence to support a finding of a substantial probability that Logan would be
returned to her custody by the 18-month date, but does not contend there is no substantial
evidence to support the court's finding to the contrary.
9
Cal.App.4th 596, 610; Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340,
1346.) On appeal, the parent has the burden of showing there is no evidence of a
sufficiently substantial nature to support the court's finding or order. (In re L.Y.L. (2002)
101 Cal.App.4th 942, 947.)
Although the court at the 12-month review hearing found that Sandra had made
some progress with parts of her case plan, it found, under section 366.21, subdivision (g),
that she had not shown the capacity and ability to complete the objectives of her
treatment plan and to provide for Logan's safety, protection, physical and emotional well-
being and special needs before the 18-month date, which the court noted was
approximately nine weeks away. Accordingly, the court found that return of Logan to
Sandra's custody would create a substantial risk of detriment to his physical and
emotional well-being. We conclude substantial evidence supports the court's findings.
The objectives of Sandra's initial case plan included her staying free from illegal
drugs, not breaking the law and avoiding arrests and convictions, and showing knowledge
of age appropriate behavior for Logan. The case plan required her to address in therapy
"her self[-]esteem and poor decision making that placed her child at risk." The plan also
required her to educate herself on the dangers of drug use and trafficking and the risks
they posed to her child, and how they affected her and her family. Her updated case plan
required her to address in therapy her understanding of what brought this case to the
court's attention and to describe in detail the risk of harm from trafficking drugs in the
presence of Logan.
10
Thus, Sandra's relationship with Ignacio was central to her case plan, the main
goal of which was for her to understand how the drug trafficking and smuggling she had
engaged in at Ignacio's request put Logan at risk and prevented her from being able to
properly care for him. Substantial evidence supports the court's finding that Sandra had
not sufficiently met that goal. It is clear from the record that Sandra's criminal record
was solely the result of her relationship with Ignacio. As the court noted in its oral ruling
at the 12-month hearing, "from the very beginning and from the very language of the
amended petition in this case, it is quite clear that [Sandra] did not traffic alone in terms
of drugs, that she was persuaded—even while being on probation and even after
having . . . recently given birth to a child, she was persuaded to once again engage in drug
trafficking [by] her husband. And so there was a significant amount of risk-taking that
[Sandra] has engaged in after her first involvement in being arrested that [Sandra] is not
addressing and that she has not articulated and has not been addressed." The court
viewed Sandra as being susceptible to and at great risk of engaging in further criminal
activity with Ignacio, noting she had "already done it twice" and continued to "go back to
the person with whom she was criminally involved."
The court based its determination that Sandra had not addressed how her decision-
making was influenced by Ignacio "in large measure on [its] observing her on the stand
and listening carefully to her testimony." The court noted Sandra "was very careful and
guarded in answering some questions particularly with respect to visitation and the child
with [Ignacio] while he's incarcerated and as well with respect to the underlying facts that
brought this case before the court. And so although she may have been hampered in the
11
past by depression, I do find that [she] . . . [has] the intellectual capacity to appreciate the
significance and the connection between her relationship with [Ignacio] and continuing
ongoing criminal activity." The court later added: "[Sandra] has still not figured out her
role with respect to [Ignacio], and in large measure, I base this on my personal
observations of [Sandra's] testimony. There was a clear change in her demeanor. She
was far more guarded and far more[,] I think[,] protective of [Ignacio] and less willing to
disclose when it came to issues involving [Ignacio] and her relationship with him. And I
do not find that nine weeks based on this record is sufficient time even if [Sandra] were
to focus exclusively on that and no other issue in her life . . . ." It is well settled that we
must defer to the trial court's factual findings that are based on its assessment of live
testimony because " '[w]e review a cold record and, unlike a trial court, have no
opportunity to observe the appearance and demeanor of the witnesses.' " (In re Luke M.
(2003) 107 Cal.App.4th 1412, 1427; In re S.A. (2010) 182 Cal.App.4th 1128, 1140
[issues of fact and credibility are questions for the trial court].)
Other evidence in the record apart from Sandra's live testimony supports the
court's finding of a great risk that Sandra would engage in future criminal activity with
Ignacio. Sandra admitted to an Agency social worker and her psychological evaluator
that she trafficked illegal drugs because she had a new baby, her husband was in prison,
she was having trouble paying bills, and trafficking drugs "was a quick way to make a lot
of money." As the Agency points out, the same circumstances existed at the time of the
12-month hearing—i.e., Sandra had a new baby on the way, she was unemployed, and
Ignacio was incarcerated and likely to remain so for many years.
12
Further, Sandra's therapist, Estela Bobadilla, testified that she had no knowledge
of Ignacio's criminal history. Noting that Sandra had been in treatment with Bobadilla
for seven months, the court reasonably inferred that "during that time, [Sandra had] not
disclosed some significant issues with respect to herself, and it appears actually that
[Sandra] steers the issues away from [Ignacio] . . . ." In August 2013 when Ignacio was
incarcerated for parole violations, Sandra told the social worker he was unavailable for a
scheduled visit with Logan because he was in the hospital with internal bleeding and
needed to undergo a procedure. Ignacio's parole officer informed the social worker that
Ignacio was actually in jail. The evidence that Sandra was not forthcoming with her
personal therapist about Ignacio's criminal history and lied to the Agency about his
whereabouts to avoid disclosing his incarceration further supports the court's finding that
returning Logan to her custody would create a risk of detriment to him—specifically, a
risk that she would engage in further criminal activity as a result of her relationship with
Ignacio. Substantial evidence supports the court's finding that there was no substantial
probability Logan would be returned to her by the 18-month date.
II. Sufficiency of Reunification Services
Sandra contends the court should have continued reunification services to the 18-
month date because, in her words, "[a]ny finding that [she] failed to make progress in
resolving the reasons for removal is due to the Agency failing to provide reasonable
services[.]" She argues that her services were deficient because her case plan did not put
her on notice that she needed to address codependency, healthy relationships, or risk-
taking behavior, or that she should have no contact with Ignacio.
13
"The adequacy of reunification plans and the reasonableness of [the Agency's]
efforts are judged according to the circumstances of each case." (Amanda H. v. Superior
Court, supra, 166 Cal.App.4th at p. 1345.) The Agency "must make a good faith effort
to develop and implement a family reunification plan. [Citation.] ' "[T]he record should
show that the supervising agency identified the problems leading to the loss of custody,
offered services designed to remedy those problems, maintained reasonable contact with
the parents during the course of the service plan, and made reasonable efforts to assist the
parents in areas where compliance proved difficult . . . .' " (Ibid.) The court's finding that
reasonable reunification services were offered or provided to a parent is reviewed for
substantial evidence. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.)
We conclude substantial evidence supports the court's finding that the Agency
provided Sandra reasonable services. This dependency case arose entirely from Sandra's
trafficking illegal drugs at Ignacio's direction in an effort to get the drugs to him in prison
while she was already on probation for attempting to smuggle heroin to him in jail
through the mail. The court observed that the petition itself gave adequate notice that
Sandra's involvement with crime was an issue and Ignacio "was a factor in all of that."
Thus, Sandra's relationship with Ignacio led directly to Logan's removal and is at the core
of her reunification plan.
As noted, Sandra's case plan included not breaking the law and avoiding arrests
and convictions, and showing knowledge of age appropriate behavior for Logan, and
required her to address in therapy her "poor decision making that placed her child at
risk." A principal goal of her services was for her to become educated on the dangers of
14
drug use and trafficking and the risks they posed to her child, and how they affected her
and her family. Sandra's updated case plan required her to address in group therapy her
understanding of how this case originated and to describe in detail the risk of harm to
Logan from trafficking drugs in his presence. She was directed to explain in writing how
selling drugs from her home could harm Logan "and exactly how things [would] be
different in the future so this does not happen again." Based on these features of her case
plan, the court reasonably found that "at the beginning of this case there was sufficient
notice to [Sandra] that . . . [her] relationship with [Ignacio] . . . was something that would
need to be addressed."
The court reasonably rejected Sandra's argument that Bobadilla could have
addressed the issue of Ignacio's power and control over Sandra in therapy, but did not do
so because she was not informed it was an issue Sandra needed to address. The court
stated it would "never tolerate a bait and switch with parents[,]" and found that the case
plan and other materials provided to Bobadilla, as well as Bobadilla's access to the social
worker, gave her "some indication that [Sandra's relationship with Ignacio] was
significant." The court stated: "The record clearly indicates that [Ignacio's] connection
to [Sandra's] risk-taking behavior and involvement in drug trafficking was known all
along. And it's clear from reviewing the reports that [Ignacio] is a topic of conversation
[between Sandra and Bobadilla], and, in fact, [Bobadilla's] very last treatment plan
update refers to [Sandra] considering divorcing him, and they must have discussed that he
was in jail and that he will be incarcerated for a long period of time. So the suggestion
that this was somehow a surprise and that [Sandra's] relationship with [Ignacio] had to be
15
evaluated, to me, quite frankly, is stunning and not supported by the evidence." The
court concluded there was "nothing in [the] record that would suggest that [Sandra] was
denied reasonable services through Ms. Bobadilla . . . ."
The court's essential finding that Bobadilla knew or should have known that
Sandra's relationship with Ignacio was an issue to be addressed in therapy is supported by
the evidence that Bobadilla told the social worker Sandra would not have any
involvement with Ignacio if the Agency would tell her she could not be with him, along
with the fact that Sandra's involvement in drug trafficking was a direct result of her
relationship with Ignacio and central to this case from the beginning. The court
reasonably found that Sandra's case plan provided adequate notice that she needed to
address her relationship with Ignacio to reunify with Logan, and that her relationship with
Ignacio was an issue that either was or should have been addressed in her therapy with
Bobadilla.
Sandra suggests that she was denied reasonable services because the Agency did
not provide Bobadilla with a copy of her court-ordered psychological evaluation. The
evaluation report is dated December 13, 2013, but Bobadilla did not receive the report
until Sandra's counsel provided her a copy on January 22, 2014. The court found this
delay did not prejudice Sandra, based on Bobadilla's testimony that nothing would have
been different if she had received the report earlier because the evaluation essentially
16
confirmed her impressions of the case and that Sandra's therapy was "on the right path."6
Bobadilla's testimony sufficiently supports the court's finding of no prejudice. Further, as
the Agency points out, the evaluation report was attached to the Agency's December 18,
2013 addendum report, and Sandra and her counsel were in court on that date and had
access to the report. Thus, Sandra could have discussed the report with Bobadilla before
Bobadilla received it in January 2014. The evidence sufficiently supports the court's
finding that the Agency provided Sandra reasonable services.
DISPOSITION
The petition is denied. The request for stay is denied.
BENKE, Acting P. J.
WE CONCUR:
McINTYRE, J.
IRION, J.
6 Bobadilla testified that obtaining Sandra's psychological evaluation earlier would
have "verified that [we were] on the right path," and would not have caused her to add
anything to Sandra's treatment plan.
17