Evelyn D. v. Superior Court CA5 ( 2022 )

Filed 4/27/22 Evelyn D. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
EVELYN D.,
F083934
Petitioner,
(Super. Ct. No. 20CEJ300308-1)
v.
THE SUPERIOR COURT OF FRESNO OPINION
COUNTY,
Respondent;
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Elizabeth
Egan, Judge.
Olga B. Saito for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County
Counsel, for Real Party in Interest.
-ooOoo-
* Before Levy, Acting P. J., Detjen, J. and DeSantos, J.
Petitioner Evelyn D. (mother) seeks an extraordinary writ from the juvenile court’s
orders issued at a 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)(1))1
terminating her reunification services and setting a section 366.26 hearing on May 25,
2022, as to her now two-year-old son, D.S. She contends the juvenile court violated
section § 16002.5 when it determined that real party in interest, the Fresno County
Department of Social Services (department), provided her reasonable reunification
services. She further contends the juvenile court erred by failing to continue reunification
services to the next review hearing.
We affirm the juvenile court’s orders and deny the petition. On this record, the
juvenile court’s finding the department provided mother reasonable reunification services
and its order terminating them are supported by substantial evidence.
PROCEDURAL AND FACTUAL SUMMARY
Detention and Removal
Eight-month-old D.S. was taken into protective custody on October 6, 2020, by
the department after mother, then 17 and a juvenile dependent, left the group home where
she and D.S. lived without telling anyone where she was going. She also left with D.S.
on September 11, 2020, and returned the following day. She did not take any baby
supplies, food, or diapers for D.S. When she returned, D.S. was dirty, very fussy and
constipated. A social worker warned mother that D.S. may be removed from her custody
if she left with him again. D.S. was placed in a foster home.
The department filed a dependency petition on D.S.’s behalf under section 300,
subdivision (b)(1), alleging mother placed D.S. at risk of suffering serious physical harm
or illness by leaving the group home for days at a time without adequate supplies and
1 Statutory references are to the Welfare and Institutions Code.
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refusing to tell anyone where she was staying. The identity of D.S.’s father was
unknown.2
The juvenile court ordered D.S. detained pursuant to the petition and offered
mother parenting classes, substance abuse and mental health evaluations and any
recommended treatment. The court granted the department discretion to spot test mother
for drugs. The court also ordered the department to provide D.S. a mental health
evaluation and any recommended treatment. The court set the jurisdictional/dispositional
hearing (combined hearing) for November 18, 2020.
Prior to the combined hearing, D.S. participated in a mental health assessment and
was referred for attachment-based individual therapy to address secure and positive
attachment.
At the combined hearing, the juvenile court adjudged D.S. a dependent child as
alleged, ordered mother to participate in the services previously offered and set the
six-month review hearing for May 5, 2021. Mother did not appeal.
Mother’s Reunification Efforts
Mother’s progress by the six-month review hearing was moderate. She was
placed in a short-term residential treatment program and attended a parenting class.
However, she left her placement six times from late November 2020 to early
January 2021, causing her to miss multiple parenting sessions. She also struggled during
her sessions because of her attitude. Mother completed a substance abuse assessment in
late October 2020. She tested negative at that time and was not recommended for
treatment. However, by early December 2020, she was enrolled at Averhealth for spot
drug testing. She missed two drug tests, one in late February 2021 and the other in early
March 2021 and then tested positive for marijuana twice in March 2021. As a result, she
2 Mother identified an alleged father who was excluded as the biological father by
paternity testing.
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had to complete a second substance abuse assessment. She participated in mental health
therapy but was discharged for frequently missing her sessions. She progressed to
unsupervised visitation but continued to run away. Consequently, the department
resumed supervised visits. In its report for the six-month review hearing, the department
recommended the juvenile court continue mother’s reunification to the 12-month review
hearing.
On May 5, 2021, at the six-month review hearing, the juvenile court found mother
was provided reasonable reunification services, and continued them to the 12-month
review hearing which it set for November 10, 2021. The court encouraged mother to
accept the help that was being offered to her and advised her that if she did not make
significant progress by the 12-month review hearing, her services could be terminated.
Mother did not challenge the juvenile court’s reasonable services finding on appeal.
Mother’s progress did not improve in the months preceding the 12-month review
hearing. She completed her parenting classes and was not recommended for mental
health services. Her drug test results through August 16, 2021, were mostly negative.
She missed three tests and tested positive once for marijuana in June. However, the
department was concerned about D.S.’s safety while in mother’s care. During a visit in
early August, while at a shopping mall, mother walked away from D.S. while he was
playing. He hit and bumped his face and the left side of his cheek was swollen. She
walked away from him again while they were walking around the mall. He fell and hit
himself on an ice cream machine and sustained a bump on his forehead.
The social workers met with mother on August 17, 2021, to discuss her
progression in family reunification services and the possibility of progressing to
unsupervised visits. Mother reported she was actively engaging with D.S. but did not
participate in his attachment therapy sessions because she did not believe it was
necessary. The social workers decided it was premature to advance to unsupervised
visitation and encouraged mother to participate in D.S.’s attachment therapy.
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The social workers met with mother on August 26, 2021, after she missed several
appointments for a substance abuse assessment. She explained she missed the
appointments because she was sick and did not have transportation. She ultimately
completed an assessment and was referred for outpatient substance abuse treatment. On
August 30, 2021, mother tested positive for marijuana and missed four consecutive drug
tests in September.
On September 22, 2021, the social workers met with mother to discuss her
progress in services and the possibility of advancing to unsupervised visits. Mother
stated she did not attend the attachment therapy sessions because she did not have
transportation or had something else to do. Mother’s clinician stated that she would close
out mother’s case if she missed one more attachment therapy session because D.S. was
ready to graduate. Mother was offered intensive supervised visits but declined. The
social workers decided against unsupervised visits because of mother’s positive drug test
results and missed tests. They also told mother they would recommend termination of
her reunification services if she did not make significant progress by the next court
hearing.
The social workers met with mother again on September 27, 2021, to discuss her
drug test results and missed tests. Mother could not explain why she tested positive for
marijuana on August 30, stating she last smoked marijuana in June 2021. She did not
show for tests because she did not know how to get to the testing laboratory and did not
have transportation.
On October 22, 2021, mother reported she began outpatient substance abuse
treatment the month before. She was attending D.S.’s attachment therapy sessions and
learning to cope with him. She was beginning to participate in spot testing and in
additional services to assist with D.S.’s attachment issues. She missed two drug tests in
early October and subsequently tested negative twice in mid to late October.
5.
In its report for the 12-month review hearing, the department recommended the
juvenile court terminate mother’s reunification services and set a section 366.26 hearing.
Although she more consistently visited D.S., she had not made significant progress in
resolving her substance abuse. Nor had she demonstrated the ability to safely parent D.S.
On November 10, 2021, mother’s attorney requested a contested 12-month review
hearing, which the juvenile court set for February 2, 2022.
At the settlement conference on January 26, 2022, mother’s attorney informed the
juvenile court that mother was living with her father and stepmother and proposed that
the department consider giving her more time to reunify. The court confirmed the matter
for trial on February 2.
Contested 12-month Review Hearing
By the 12-month review hearing, mother was a nonminor dependent, having
turned 18 in July 2021.
Mother’s attorney attempted to elicit her testimony about what services were
available to her while she was pregnant. The juvenile court sustained county counsel’s
relevancy objection to that question as well as to others concerning whether she was
provided assistance with caring for D.S. in the group home and why he was removed.
Mother learned about child development in her parenting class and how to redirect D.S.
Through attachment therapy, she was learning to soothe D.S. and he was more responsive
to her. She and D.S. continued to participate in one attachment therapy session each
week.
Mother’s biggest obstacle to participating in reunification services was lack of
transportation. Services were not provided through videoconference and required that
she attend in person. She was also attending school in the morning. The department did
not provide her a bus pass. While she was in the group home, the staff provided her
transportation. There was never a time conflict between her schooling and her services.
Her father, stepmother or the court-appointed special advocate provided her
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transportation currently. She believed she could complete her services if given more time
because she had a better support system and was more serious about reunifying.
On cross-examination, mother testified she was not given a bus pass while she was
in the group home. She left the group home in December 2020. The department
provided her a bus pass once she became a nonminor dependent. She began living with
her father in June 2021. She did not believe she needed any additional services to
reunify. She just needed an additional six months.
On redirect, mother speculated that she tested positive for marijuana because she
was in a car for a couple of hours with five people who were smoking marijuana. She
was also in a small apartment with people who were smoking marijuana. She claimed
she last smoked marijuana in November 2021.
Social worker Natalie Soto testified she was never able to develop a rapport with
mother. However, the lack of rapport did not equate to lack of engagement on mother’s
part. Mother was more communicative about her parenting classes than her mental health
and substance abuse classes. Soto received information that mother might have been
sexually exploited. The department did not address it but invited her “CSEC”3 liaison to
all of her meetings. Mother’s attorney asked what additional measures the department
took to address the traumatic experience she may have endured. The juvenile court
sustained county counsel’s relevancy objection.
From the beginning of the dependency case until July 2021 buses were free. In
September 2021, the department issued mother a bus pass as part of her nonminor
dependent case. Bus passes are valid for 31 days from the date they are first used.
Mother’s last positive test result for marijuana was December 16, 2021. Her last positive
drug test was January 12, 2022, for creatinine. Soto consulted with a substance abuse
3 “CSEC” is not defined in the record. Given the context, we believe the acronym
stands for commercially sexually exploited child.
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specialist (SAS) to determine whether mother’s positive result for marijuana could be
attributed to being around other people using marijuana. The SAS informed her mother’s
explanation was not plausible.
Soto did not believe there were any additional services that could or should have
been provided to mother. She did not believe mother was likely to reunify if provided
another two months of services until the 18-month review hearing in April. Mother had
not progressed beyond supervised visits, did not like riding the bus, and refused to drug
test on January 3, 2022. Following Soto’s testimony, the juvenile court continued the
hearing to February 9, 2022, for argument and its ruling.
Mother’s attorney argued mother attempted to comply with her services plan but
needed additional support, which was not provided by the department, such as a
mentorship program or family support. She pointed out that mother was a minor parent
when D.S. was removed from her and she had a traumatic childhood. She was removed
from her family when she was eight years old and did not have a mother as a role model.
Consequently, it took her longer to develop parenting skills and she was hindered by
having to attend high school classes as well as work on her case plan requirements.
Nevertheless, she completed a parenting class, recognized the importance of attaching
with D.S. and became more responsive to him. She was no longer leaving her placement
and had support from her family. Given the barriers she had to overcome and the change
in her circumstances, her attorney argued there was a substantial probability D.S. could
be returned to her custody within a reasonable period of time.
The juvenile court terminated mother’s reunification services, finding by clear and
convincing evidence the services provided by the department were reasonable but her
progress was moderate. The court believed the department considered mother’s age and
status and conducted numerous meetings to encourage her and direct her growth and
D.S.’s safety. However, mother spurned the department’s efforts. She declined the offer
of intensive supervised visits, stating she did not need them while D.S.’s behavior toward
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her indicated that she did. Despite being enrolled in outpatient substance abuse treatment
and pregnant, she continued to either test positive for marijuana or not show up to test.
Mother was aware that missed tests jeopardized reunification yet continued to miss them.
She claimed she lacked transportation but testified the group home and her father and
stepmother provided transportation and she was given bus passes. The court found
mother did not demonstrate the ability to complete the objectives of her case plan and
there was not a substantial likelihood D.S. could be returned to her after an additional
period of reunification services.
DISCUSSION
Mother contends the juvenile court and the department ignored special
considerations accorded minor and nonminor dependent parents under the dependency
statutes. Specifically, she asserts the department failed to comply with section 16002.5
because it did not provide her preventive services prior to removing D.S. from her
custody. Therefore, she was not provided reasonable reunification services. Further, she
asserts, the juvenile court failed to recognize that her status as a minor parent and
nonminor dependent qualified her for continued services under the exceptional
circumstances enumerated in section 366.22
We conclude any argument regarding D.S.’s removal was forfeited for failure to
raise it on appeal from the dispositional hearing. We further conclude the juvenile court
properly considered mother’s nonminor dependent status in finding she was provided
reasonable reunification services and in deciding to terminate them.
Reunification Services Generally
Dependency proceedings have the dual purpose of protecting the welfare of the
dependent child and safeguarding the parents’ right to properly raise their own child. (In
re La Shonda B. (1979) 95 Cal.App.3d 593, 599.) If the child is removed from parental
custody, the primary objective is to reunify the child with his or her family. (§ 202,
subd. (a).) “The foundation and central, unifying tool in child welfare service is the
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[reunification] plan. The [reunification] plan must provide for the child’s care and case
management and must provide services that facilitate both return and, concurrently,
permanency.” (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2020 ed.)
Disposition Hearing, § 2.129[4].)
Reunification, however, is not an open-ended process. Consequently, the
dependency statutes place a limit on its duration and require the juvenile court to monitor
its progress by conducting periodic review hearings at six-month intervals. (§§ 361.5,
subd. (a), 366, subd. (a)(1).) For a child who on the date of initial removal from parental
custody was under three years of age, as occurred here, court-ordered services are
provided for six months from the dispositional hearing but no longer than 12 months
from the date the child entered foster care. (§ 361.5, subd. (a)(1)(B).) A child is deemed
to have entered foster care on the earlier of the date of the jurisdictional hearing or the
date that is 60 days after the date on which the child was initially removed from parental
custody. (§ 361.49.) D.S. was initially removed on October 6, 2020. The
jurisdiction/disposition hearing was conducted on November 18, 2020. Sixty days from
D.S.’s initial removal was December 6, 2020. The juvenile court was therefore
authorized to provide mother reunification services up to May 18, 2021 (six months from
the dispositional hearing), but no longer than November 18, 2021 (a year from
November 18, 2020, the earlier date).
The purpose of reunification services is to place the parent in a position to gain
custody of the child. (In re Karla C. (2010) 186 Cal.App.4th 1236, 1244.) To that end,
the department must devise a reunification plan tailored to the unique needs of the family
and make a good faith effort to help the parent access the services the plan provides. (In
re Riva M. (1991) 235 Ca.App.3d 403, 414.) “The adequacy of reunification plans and
the reasonableness of the [department’s] efforts are judged according to the
circumstances of each case.” (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158,
1164.) “To support a finding reasonable services were offered or provided, ‘the record
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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 .…’ [Citation.]
‘The standard is not whether the services provided were the best that might be provided
in an ideal world, but whether the services were reasonable under the circumstances.’ ”
(Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426.)
In reviewing the reasonableness of reunification services, the juvenile court
considers only those services provided since the dispositional hearing if it is conducting a
six-month review hearing or since the last review hearing. That is because the court was
required at that prior hearing to find whether services were reasonable. That finding, if
unchallenged on appeal, is final and binding. Since the juvenile court found mother was
provided reasonable reunification services at the six-month review hearing on May 5,
2021, the relevant period for purposes of the 12-month review hearing was any time after
that until the hearing in February 2022.
The 12-Month Review Hearing
The first determination the juvenile court must make at each review hearing is
whether returning the child to parental custody would create a substantial risk of
detriment to the child’s safety, protection or physical or emotional well-being. Unless the
court finds by a preponderance of the evidence the child’s return would create a
substantial risk of detriment, the court must return the child to the parent. (§§ 366.21,
subds. (e)(1) & (f)(1), 366.22, subd. (a)(1).) In determining whether to return the child to
parental custody, the court must consider the efforts or progress of the parent and the
extent to which he or she availed him or herself of services provided, taking into account
the particular barriers to a minor parent or a nonminor dependent parent. For each youth
16 years of age and older, the court shall also determine whether services were made
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available to assist him or her in the transition from foster care to successful adulthood.
(§ 366.21, subd. (f)(1)(D).)
If the time period in which the court-ordered services were provided has met or
exceeded the time period set forth by statute and the child is not returned to parental
custody, the juvenile court must either set a section 366.26 hearing or continue the case
up to 18 months from the date the child was originally taken from parental custody. The
court may only continue the case if it finds there is a substantial probability the child will
be returned to parental custody within the extended period of time or it finds that
reasonable services were not provided to the parent. (§ 366.21, subd. (g)(1), (4).) Since
D.S. was originally removed from mother’s custody in October 2020, the court could
only extend the case until April 2022.
If the juvenile court continues reunification services to the 18-month review
hearing, it may extend services up to 24 months from the date the child was initially
removed for certain parents, including a parent who was a minor or nonminor dependent
at the time of the detention hearing. However, the court must also find the parent is
making significant and consistent progress, there is a substantial probability the child will
be returned to parental custody, and it is in the child’s best interest to continue
reunification efforts. (§ 366.22, subd. (b).) The court may also continue reunification
services beyond the 18-month review hearing if it finds the parent was never provided
reasonable reunification services. (In re M.F. (2019) 32 Cal.App.5th 1, 21.)
Standard of Review
We review the juvenile court’s findings for substantial evidence. (In re Amy A.
(2005) 132 Cal.App.4th 63, 67.) In so doing, “we draw all reasonable inferences from
the evidence to support the findings and orders of the dependency court; we review the
record in the light most favorable to the court’s determinations; and we note that issues of
fact and credibility are the province of the trial court.” (In re Heather A. (1996) 52
Cal.App.4th 183, 193.) When the juvenile court is required to apply the clear and
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convincing standard of proof, “the question before the appellate court is whether the
record as a whole contains substantial evidence from which a reasonable fact finder could
have found it highly probable that the fact was true.” (Conservatorship of O.B. (2020) 9
Cal.5th 989, 1011.)
Substantial Evidence Supports the Juvenile Court’s Finding Mother Was Provided
Reasonable Reunification Services
D.S. was removed from mother’s care because she repeatedly left her group home
with him and there were concerns that she was neglecting and not properly caring for
him. The juvenile court ordered reunification services to teach her safe parenting
practices and identify and treat any mental health or substance abuse issues. The
department also offered her attachment therapy to work on her bond with D.S. and met
with her regularly to discuss any issues she was having with completing her services and
to advance her to unsupervised visitation. However, mother was uncooperative. She
refused attachment therapy and intensive supervised visitation and continued to run away
and use marijuana.
Mother does not argue the services provided since the six-month review hearing
were not appropriate to her situation or that the department’s efforts to assist her were
inadequate. Rather, she contends that because she was a minor and then a nonminor
dependent parent, the department was required to do more; it was required under
section 16002.5 to provide her services to prevent D.S.’s removal. Its failure to do so,
she argues, rendered the services it did provide deficient and the juvenile court’s failure
to see the connection between services to her and services to D.S. was error. We
disagree.
Section 16002.5, known as the Teen Parents in Foster Care Act,4 was added to
support and preserve families headed by minor parents who are themselves dependents of
4 Section 16004.5 was also added as part of the Teen Parents in Foster Care Act.
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the juvenile court to ensure that the minor parents and their children are placed together
in a family-like setting, unless doing so places the child at risk. (§ 16002.5, added by
Stats. 2004, ch. 841, § 3.) As it relates to services, the statute requires the department to
provide the minor parent, nonminor parent and their children “access to existing services
for which they may be eligible, that are specifically targeted at supporting, maintaining,
and developing both the parent-child bond and the dependent parent’s ability to provide a
permanent and safe home for the child. Examples of these services may include, but are
not limited to, child care, parenting classes, child development classes, and frequent
visitation.” (§ 16002.5, subd. (a).) To support the preservation of the family unit, the
statute also requires the department to refer the minor parent or nonminor dependent
parent to “preventive services to address any concerns regarding the safety, health, or
well-being of the child, and to help prevent, whenever possible, the filing of a petition to
declare the child a dependent of the juvenile court pursuant to Section 300.” (Id. at
subd. (e).)
Mother’s attorney attempted unsuccessfully to raise the issue of preventive
services at the contested hearing. She asked mother whether there were any services in
place for her at the group home when she was pregnant with D.S. and/or after he was
born. Mother testified she lived with her brothers when she was pregnant with D.S.
When she returned to the group home, no one helped her take care of him. Mother’s
attorney explained to the juvenile court her questioning was relevant to the reason D.S.
was removed and whether he could remain with mother under family maintenance
services. The court deemed counsel’s line of questioning irrelevant because the issue
whether the department made sufficient efforts to prevent D.S.’s removal was adjudicated
at the dispositional hearing. Mother’s failure to challenge the department’s removal of
D.S. at the dispositional hearing or on appeal from the dispositional order forfeited her
right to raise it at any point thereafter, including on this writ petition. (Steve J. v.
Superior Court (1995) 35 Cal.App.4th 798, 812.)
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We conclude mother’s failure to timely challenge D.S.’s removal was a forfeiture
and substantial evidence supports the juvenile court’s finding she was provided
reasonable reunification services.
The Juvenile Court Did Not Abuse its Discretion in Not Continuing Reunification
Services
Mother contends the juvenile court had discretion to continue reunification
services beyond 18 months under section 366.22, which governs the 18-month review
hearing, because she falls within the minor dependent/nonminor dependent parent
exception. It’s failure to exercise its discretion, she argues, was error.
Mother ignores the fact the juvenile court was conducting a 12-month not an
18-month review hearing. As such, the court properly found it could not safely return
D.S. to mother’s custody, she was provided reasonable reunification services but made
only moderate progress and there was not a substantial probability D.S. could be returned
to her custody by the 18-month demarcation, which fell in April 2022. There is no
authority for the court to continue services to 24 months from a 12-month review hearing
in the case of a minor dependent or nonminor dependent parent.
Further, even assuming the exceptional circumstances applied to mother, the
evidence still supported the juvenile court’s decision to terminate her services. Given her
lack of progress to that point, there was no evidence she could successfully reunify with
continued services. Nor was there any evidence it would serve D.S.’s best interest to
continue reunification efforts.
We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This court’s opinion is final
forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.
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