M.M. v. Superior Court CA1/1 ( 2022 )

Filed 12/8/22 M.M. v. Superior Court CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
M.M.,
Petitioner,
v. A166241
THE SUPERIOR COURT OF
CONTRA COSTA COUNTY, (Contra Costa County
Super. Ct. No.
Respondent;
J2100271)
CONTRA COSTA COUNTY
CHILDREN AND FAMILY
SERVICES BUREAU et al.,
Real Parties in Interest.
M.M. (father) seeks extraordinary writ relief from orders terminating
reunification services and setting a permanency planning hearing pursuant
to Welfare and Institutions Code section 366.26 for his son A-M.T. (minor).
Father contends the court erred in not extending services to the 18-month
statutory period and in reducing his visitation with minor.
We conclude the juvenile court did not err and deny the writ petition on
the merits.
1
BACKGROUND
In June 2021, the Contra Costa County Children and Family Services
Bureau (Bureau) filed a Welfare and Institutions Code section 300 petition,1
alleging failure to protect (§ 300, subd. (b)) and abuse of a sibling (§ 300,
subd. (j)). The petition alleged minor tested positive for opiates and
amphetamines at birth, mother and father had substance abuse problems
that impaired their ability to parent, and mother had failed to reunify with
minor’s half-sibling.2
In its detention report, the Bureau recommended minor be detained.
Both mother and father were unhoused, though they did not live together.
Father expressed a desire to have minor with him and “be in his child’s life.”
He reported a “criminal history of mostly repetitive drug charges.” Although
he admitted to past methamphetamine use, he maintained he currently only
smoked marijuana and consumed “no other substances.” Father stated he
and mother were no longer together and he had stopped seeing her “due to
concern for mother’s drug use.” He stated he had a “bassinet, car seat and
ability to stay” with his brother but was not currently staying with him as he
did not want “to be a burden on his brother and sister-in-law.”
The court ordered minor detained, ordered reunification services for
mother and supervised visitation for both parents, and set the matter for a
jurisdiction and disposition hearing.3
1All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
2 Mother is not a party to this proceeding.
3 At that point in the proceedings, father was still an “alleged father”
and not eligible for services.
2
The jurisdiction and disposition hearing was continued once to allow for
DNA testing for father and another time because father was in custody.
In its October disposition report, the Bureau explained paternal uncle
had reported father “was currently incarcerated . . . due to [a] probation
violation and [he] has an unknown release date.” The social worker
confirmed father had been booked in August but was released the following
month.
After father was released, the social worker was able to get in contact
with him for the report. Father was “currently on probation for the next
eight months due to his 2017 possession case.” Father maintained he had
“last used marijuana ‘a couple [of] weeks ago’ and would stop using if it was a
‘problem’ for his dependency case.” He reported he had been attending
Narcotics Anonymous for “the past thirteen years.” Father had only done one
drug test out of 11 ordered, but even as to that test, there were no results
because the sample “[l]eaked in transit.” Father did not provide any
information that he had enrolled in the services to which he had been
referred, including drug testing, substance abuse treatment, parenting
education, and counseling services. He had some job training but was
currently unemployed and receiving general assistance. Father had attended
“eight out of twelve scheduled visits” with minor since the infant had been
detained. Father was “appropriate” during the visits, attending to minor’s
“basic needs[,] such as feeding him a bottle, burping him, checking/changing
his diaper, and talking to the child.”
In an August 2021 memorandum, the Bureau noted father had
continued to visit minor. He still had not drug tested nor had he provided
any information regarding enrollment in any services.
3
Minor had been placed in a foster home and was “on target
developmentally.” The Bureau recommended against providing reunification
services for mother or father and that the matter be set for a section 366.26
hearing.
At the contested jurisdiction hearing, father submitted on the factual
basis for the petition. The court accepted an offer of proof that father had
had two positive drug tests in September for marijuana and
methamphetamine, sustained the amended petition,4 raised father’s status to
“biological,” and set the matter for a contested disposition hearing.
In two subsequent memoranda, the Bureau changed its
recommendation and now recommended father be offered reunification
services. The Bureau explained father had attended all of his visits for
October and November, and at the visits he continued to be “attentive to
[minor’s] basic needs.” Father had completed a substance use assessment
and had an intake appointment with an outpatient treatment program.
Additionally, father had done six out of seven drug tests, testing positive for
marijuana each time.
Father’s case plan objectives included: obtaining and maintaining a
“stable and suitable residence” for himself and minor, staying free from
“illegal drugs and show[ing an] ability to live free from drug dependency”
which included substance abuse testing, visiting minor regularly, and
attending individual counseling and parenting education classes. (Boldface
omitted.)
4 The amended petition stated father “has a substance abuse problem
that impairs his ability to parent,” that father had tested positive for
methamphetamines and marijuana, that father uses marijuana, and that he
has “been convicted of multiple substance abuse criminal charges.”
4
At the disposition hearing, the court adjudged minor a dependent of the
juvenile court, found by clear and convincing evidence that there was
substantial danger and detriment to minor’s well-being if returned, continued
supervised visitation, ordered reunification services for father and mother,
and set the matter for a six-month review hearing.
In its six-month report, the Bureau recommended terminating services
for mother and continuing services for father. Father’s “living situation”
remained “unconfirmed.” He was in “the process of trying to obtain housing”
and had been working with a “parent support person.” The support person
explained the “struggles in securing housing” that would allow fathers and
their children because many housing options “do not allow children due to
potential sex offenders that may be at these facilities.” And although father
reported he was living in paternal uncle’s home, paternal uncle “definitively
stated [father] has never lived with him, but merely spends a few nights a
month in his home.”
He had not obtained employment but was still receiving disability pay
and benefits through the CalFresh program. Father reported he had been
attending weekly therapy and weekly parenting classes, and the Bureau was
attempting to contact his instructor to confirm. He had also attended an
outpatient substance abuse program, completed an outpatient relapse
prevention program, and had tested 14 out of 24 times since the disposition
hearing. Father “consistently” tested positive for marijuana and had once
tested positive for methamphetamine. However, father denied using
methamphetamine. The social worker consulted an addiction specialist who
opined the level of marijuana present in father’s test results were “not
necessarily cause for concern” but that the test result levels for
methamphetamine was “ ‘pretty high.’ ” (Italics omitted.) Finally, father had
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been in weekly contact with the Bureau and had attended “17 of 19 possible
visits” with minor.
Minor, who was then 11 months old, was continuing to do well in his
foster care placement.
The court adopted the Bureau’s recommendations and set the matter
for a 12-month review hearing.
In its 12-month report, the Bureau recommended termination of
services for father and that the court set a section 366.26 hearing. Father
had still not obtained stable housing. He explained he stayed with his
girlfriend one night a week and that he stayed with his brother four nights a
week. However, after the social worker informed father paternal uncle stated
he was not living with him, father admitted he had since “had a falling out
with his brother.” Although father had qualified and submitted an
application for a housing voucher, he had not pursued it and a counselor
informed the Bureau they had not heard from father “in several months.”
The Bureau had finally been able to reach father’s parenting class
instructor, who reported although he had enrolled in parenting classes he
had “only attended the first two sessions and ‘never came back.’ ” (Italics
omitted.) Father had drug tested 13 out of 14 times and had tested positive
for marijuana nine of those times. Father had “not had any contact” with his
substance abuse counselor since May 2022. Father’s visitation had been
increased from one hour to two hours a week, and father had attended “nine
of 11 possible visits.” The visits were “characterized [as] affectionate and
loving gestures by [father] toward his son,” and he continued to demonstrate
the proper “ability to feed [minor] and change his diaper.”
Minor was now 14 months old and continued to do well in his
placement. The Bureau was recommending termination of services because
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father had not fulfilled several case plan objectives: obtaining stable and
suitable housing, and obtaining resources to meet his and minor’s needs.
Although the Bureau was “aware that there is extremely limited housing
resources for single fathers,” it noted father had not “committed himself to
the fullest extent possible” in obtaining suitable housing. Additionally, father
had “not followed through on pursuing means to supplement his income in
order to be able to provide for himself and [minor].” The Bureau concluded
that “[d]espite 12 months of services, [father] has not been able to ensure a
sense of stability in his life, or demonstrate that he can effectively fulfill a
parental role.”
After the review hearing was continued, the Bureau provided an
updated memorandum. Father stated he was on the waitlist for two housing
programs. However, the social worker was informed by one program that
they had “no record of contact” with father, and the second program informed
the Bureau that “attaining waitlist updates is exceedingly difficult as the
facility is overburdened.” Father was no longer “engaged in therapy,” stating
he had “discontinued therapy in order to focus on his housing concerns.”
Father had missed his last 10 drug tests, and while he had previously been
“proactive in communicating and utilizing the assistance of his parent
support person,” he had not contacted her since “shortly after the August 4th
hearing.” However, father continued to attend visits, making “six of seven
possible visits.”
The Bureau remained concerned about father’s lack of stable housing,
his failure to report an update regarding pursuit of additional income and
found it “extremely” concerning that father had since missed “10 consecutive”
drug tests. The Bureau continued to recommend termination of services,
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setting of a section 366.26 hearing, and a move toward adoption for minor by
his foster mother.
At the review hearing, the court heard from the social worker, father,
and counsel.
The social worker explained father had stopped drug testing after the
August hearing, and although she had reached out to father about this he
had not responded. There had been a “couple of things” which had held up
father “on getting adequate housing.” “[M]any of the housing options out
there, whether they be shelters or . . . sober living environments, do not allow
for fathers with their children.” However, beyond this issue, father “didn’t
follow through on some of the guidance he was given . . . with regard to
making phone calls and following up on certain housing options.” And, even
though the Bureau had also suggested father find “stable housing for himself
first and then worry about housing where he could have the child,” he had
not done so. For example, paternal uncle, who was employed as a “reentry
specialist” and worked in conjunction with a “correctional facility,” had
reported early in the proceedings that he had “ ‘a bed available for the father
if he’s open and willing,’ ” at a Marin County shelter, through a Catholic
Charities nonprofit. The housing would have been for a year and included
“ ‘laundry and paid housing services.’ ” However, father had not followed up
on this referral. Finally, father had not completed parenting classes and had
stopped counseling.
Father stated he applied for four housing options. He was still on the
waitlist for two, one did not take fathers with children, and he had just
gotten a “new referral” with the fourth. Father stated it was his
“understanding” that he had to look for a housing option “that would accept
me and my child,” so that is what he pursued. He did look into other
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resources for housing, for example the one in Marin, but stated “the Marin
thing and Motel 6 out there was kind of hard and stressful to me running
from Marin and back out here.” Additionally, father thought “everything had
to be in this county.”
He acknowledged he had not “really been in touch with the social
worker” since the August hearing because he thought his services “were
being discontinued.” This is also why he stopped drug testing. He asserted
that although he had not drug tested, he had now stopped using marijuana.
He stopped counseling because his previous social worker told him “that I
had eight weeks of therapy to do,” and he stopped because he had done eight
weeks. He had stopped drug counseling because he had not “been able to
reach out because . . . I didn’t have transportation.”
He stated if services were continued, he would restart drug testing,
counseling, and “look into other resources for housing.” He also maintained
he was currently subletting a room and his landlord would allow overnight
visits with minor.
Counsel for father objected to termination of services, contending father
had a “positive relationship with the child” and that if services were extended
“[f]ather would be able to successfully reunify.” Counsel maintained “there
was a big misunderstanding by [father] that when that report stated that the
Bureau was recommending the Court terminate family reunification services,
he thought things were over . . . and that the only thing he needed to do at
this hearing was to show . . . if he had housing.” Additionally, counsel noted
visitation with minor was “positive.” Father had drug tested “on a fairly
regular basis” and the “last positive test for methamphetamine was quite a
long time before that.” Finally, father had been “working diligently on trying
to find housing.”
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Counsel for the Bureau found it “difficult . . . to believe [father] thought
the case was over after the August hearing.” Because despite the fact father
knew “we were coming back for the stated purpose of him demonstrating that
he had successfully obtained housing so that he could reunify with his son,”
he did not “tell anybody that he . . . was successfully housed in a place where
he believes he could safely have . . . overnight visits.” Counsel also found it
“difficult to understand” why father failed to respond to texts and outreach.
Although father “had some limited engagement in formal therapy . . . and
some counseling sessions,” he had not “demonstrated . . . any insight into why
he was engaged in those services,” and stopped doing so “when he thought
the case was over.” And, “while it [was] unfortunate that there are limited
housing options for fathers with children,” father had failed to accept the
assistance of paternal uncle “at the beginning of this case” in obtaining
housing. Additionally, counsel asserted the case involved more than housing
“because of [f]ather’s long history of chronic [drug] use and trouble with the
law,” which included “multiple convictions” and “as recently as April” a
positive test for methamphetamine. Finally, father had never lived with
minor, and minor did not “have any disruptions at all ending the visits and is
happy to be on his way.”
The court credited the social worker’s testimony and had “some
difficulty crediting” father’s testimony. Father’s “explanation of his reasons
for stopping all services and yet knowing that he was coming back here today
in an effort to prove that he had housing so he could get his son back does
seem to be inconsistent and defy logic.”
The court determined father had a “very extensive criminal history,”
including “12 convictions for drug-related crimes over the last 30 years.” The
court was “concern[ed]” father “has not been truthful . . . about where he was
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staying.” For example, claiming to “be staying with his brother when he was
not.” Father also “was given a number of leads that he failed to follow up on,”
including failing to take “an offer of a free residence for a year . . . in Marin
County,” which would have been “considerably better than no residence and
would have enabled [father] to become more stable and to save up money for
his own place after a year.” The court calculated father had only attended 27
out of 48 drug tests, and had missed the last 10 tests, which meant “the
Court has no assurance that he’s not presently using controlled substances.”
Finally, the court found father did complete an outpatient program and that
visits with minor had gone well, however, father’s attendance at therapy “was
spotty” and he only attended two parenting classes.
The court concluded by stating, “[t]his is, by law, a case that was
supposed to have lasted six months,” but was extended to “12 months in
hopes of enabling [father] to reunify.” But since the last six-month review
father had “stopped engaging in services.” Minor was “bonded strongly to his
foster mother and her children,” had “become part of their family,” and was
“safe at his current residence.”
The court terminated services, reduced visitation to one hour per week,
and set the matter for a section 366.26 hearing.
DISCUSSION
The Court Did Not Err in Terminating Services
Father does not take issue with the adequacy of services, rather he
contends the trial court should have extended services beyond the 12-month
statutory period.
At the 12-month review hearing, section 366.21, subdivision (g)(1)
allows the juvenile court to continue reunification services for up to six
months “only if [the court] finds that there is a substantial probability that
11
the child will be returned to the physical custody” of his parent. “[I]n order to
find a substantial probability that the child will be returned,” the court shall
be required to find: “(A) That the parent . . . has consistently and regularly
visited with the child. [¶] (B) That the parent . . . has made significant
progress in resolving problems that led to the child’s removal from the home.
[¶] (C) The parent . . . has demonstrated the capacity and ability both to
complete the objectives of their treatment plan and to provide for the child’s
safety, protection, physical and emotional well-being, and special needs.”
(Id., subd. (g)(1)(A)-(C).)
“We review an order terminating reunification services to determine if
it is supported by substantial evidence. [Citation.] In making this
determination, we review the record in the light most favorable to the court’s
determinations and draw all reasonable inferences from the evidence to
support the findings and orders. [Citation.] ‘We do not reweigh the evidence
or exercise independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.’ ” (Kevin R. v.
Superior Court (2010) 191 Cal.App.4th 676, 688-689.)
The court here found, and the Bureau does not challenge, that father
consistently visited minor and the visits had “gone well.” The court went on
to state that “visiting alone is not sufficient to continue services.”
It is clear, on this record, that the evidence does not show father
demonstrated an ability to complete his treatment plan and to provide for
minor’s safety and physical and emotional well-being, in the short period of
time that remained before the expiration of the 18-month statutory mark,
which at the time of the 12-month hearing was less than three months away.
(§ 366.21, subd. (g)(1)(C).) Among other things, father’s case plan called for
him to (1) stay free from illegal drugs and show his ability to live free from
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drug dependency, including by complying with all drug tests; (2) obtain and
maintain stable and suitable housing for himself and minor; (3) obtain
“resources to meet the needs” of minor and to provide a safe home; (4) attend
individual counseling; and (5) successfully complete a parenting education
class.
As father notes, the court did find he was making “significant progress”
in resolving the issues that led to minor’s removal at the six-month review
hearing. However, by the time of the 12-month review hearing, father had
“essentially . . . stopped” engaging in services.
The court determined father had only “attended 27 of 48” drug tests (a
“56 percent rate”), he had stopped working with his drug counselor, he had
only attended two parenting classes, he had not looked for employment, and
he had stopped going to individual counseling. The court found father’s lack
of participating in any substance abuse services particularly concerning given
father’s “extensive criminal history, including drug trafficking crimes,” which
involved “at least 12 convictions for drug-related crimes over the last 30
years.” The court did not credit father’s testimony of why he stopped
services, and concluded that “discontinuing those services” did not give the
court “confidence that [father] is refraining from drug use.”
Additionally, father had not adequately pursued his case plan objective
to obtain stable housing. The court was concerned that father had “not been
truthful . . . about where he was staying.” Although father repeatedly told
the Bureau he was staying with his brother, that was, in fact, not the case.
Further, father had failed to follow up on several referrals and seek
alternative options. Indeed, he had not pursued an opportunity for “a free
residence for a year with laundry services in Marin County,” which the court
13
noted would have allowed father “to become more stable and to save up
money for his own place after the year.”
At the 12-month review hearing, the question is whether there is a
“substantial likelihood” of reunification by the 18-month mark. The court
found that was not the case, and that finding is supported by substantial
evidence as we have recited above.
The Court Did Not Err in Reducing Visitation
Father contends the juvenile court abused its discretion when, upon
terminating services, it reduced his visitation with minor from two hours per
week of supervised visits to one hour per week.
Where the parent is unsuccessful and the court terminates
reunification services, “the parents’ interest in the care, custody and
companionship of the child are no longer paramount.” (In re Stephanie M.
(1994) 7 Cal.4th 295, 317 (Stephanie M.); accord, In re Marilyn H. (1993)
5 Cal.4th 295, 309.) Instead, “the focus shifts to the needs of the child for
permanency and stability.” (Marilyn H., at p. 309.) Despite this shift, “[i]n
any case in which the court orders that a hearing pursuant to Section 366.26
shall be held, . . . [t]he court shall continue to permit the parent . . . to visit
the child pending the hearing unless it finds that visitation would be
detrimental to the child.” (§ 366.21, subd. (h).) The juvenile court determines
“when, how often, and under what circumstances visitation is to occur.” (In
re Shawna M. (1993) 19 Cal.App.4th 1686, 1690.) We review the court’s
visitation ruling for an abuse of discretion. (In re R.R. (2010)
187 Cal.App.4th 1264, 1279; In re Megan B. (1991) 235 Cal.App.3d 942, 953
[juvenile court vested with broad discretion concerning visitation].)
Here, the court maintained weekly visitation but reduced it from two
hours per week to one hour per week, which complies with section 366.21’s
14
mandate of continued visitation. The court made this decision after hearing
from all counsel, including father’s, who urged the court “at a minimum” to
maintain weekly visits, which the court did. Although father maintains
visitation is “an element critical to promotion of the parents’ interest in the
care and management of their child” and that a reduction in visitation may
harm his ability to establish the parent-child beneficial relationship
exception to termination at the section 366.26 hearing, his “interest in the
care, custody and companionship of [minor is] no longer paramount.”
(Stephanie M., supra, 7 Cal.4th at p. 317.) Father has not shown any abuse
of discretion with respect to the visitation order.
DISPOSITION
The petition for extraordinary writ relief is denied on the merits.
(§ 366.26, subd. (l)(1)(C), (4)(B).) The request for stay is denied, and this
decision is final as to this court immediately. (Cal. Rules of Court, rules
8.452(i) & 8.490(b)(2)(A).)
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_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Devine, J.*
*Judge of the Contra Costa Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
A166241, MM v. superior Court of Contra Costa
16