Opinion
A153702
05-30-2018
DENISE M. et al., Petitioners, v. THE SUPERIOR COURT OF HUMBOLDT COUNTY, Respondent; HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. Nos. JV150244-1; JV150244-2, JV160230)
Petitioners Denise M., David M., and Roger M. have filed three separate petitions for an extraordinary writ pursuant to California Rules of Court, rule 8.452. David and Denise seek to vacate the order of respondent Superior Court of Humboldt County terminating David's reunification services and setting a Welfare and Institutions Code section 366.26 permanency hearing as to two of the three children involved in this dependency proceeding. They contend the court improperly terminated David's services before the 12-month mark. We agree, grant their petitions, and direct the juvenile court to order reunification services for David to the 12-month date.
All statutory references are to the Welfare and Institutions Code.
Roger seeks to vacate the court's order terminating his reunification services and setting a section 366.26 permanency hearing as to the third child involved in this proceeding. He contends the court's findings of detriment to the child if she were returned to his care, reasonable services, and no substantial likelihood of the child's return are unsupported by substantial evidence. We disagree and deny his petition on the merits.
THE PARTIES
Denise is the mother of the three dependent children involved here. Two of the children (D.M. and U.M., both boys) were fathered by David. The third child (L.M., a girl) was fathered by Roger. At the time this case began in December 2015, Denise and David shared joint physical and legal custody of U.M. and D.M., who were six and eight years old, respectively, although the boys lived with David. L.M., then 18 months old, lived with Denise and Roger, who were married at the time.
Denise and Roger were also the parents of another child. Their parental rights to that child were terminated in July 2013, 10 months before L.M. was born.
DAVID'S AND DENISE'S PETITIONS
Background
Section 300 Petition , Detention , Jurisdiction , and Disposition
In August 2015, deputies from the Humboldt County Sheriff's Office responded to David's house after a witness reported having seen him shoot a dog. A subsequent search of the house, which was in deplorable condition, recovered drugs and drug paraphernalia. The situation was brought to the attention of the Humboldt County Department of Health and Human Services, Child Welfare Division (Department), which began communicating with Denise and David about D.M.'s and U.M.'s circumstances.
On October 30, David was arrested. D.M. and U.M. were taken into protective custody and released to Denise.
On December 8, the Department filed a section 300 petition, alleging David failed to protect the boys in light of the conditions of the house and David's substance abuse.
At a December 9 detention hearing, D.M. and U.M. were detained from David and placed with Denise. On December 29, the court sustained amended jurisdictional allegations, and on March 2, 2016 it declared D.M. and U.M. dependents of the juvenile court and ordered family maintenance services for Denise and family reunification services for David.
Section 387 Petition for a More Restrictive Placement
On July 28, 2016, the Department received a referral alleging the general neglect of D.M., U.M, and L.M. by Denise and Roger. Denise and Roger had allegedly engaged in domestic violence, both were reportedly using drugs, and Roger had threatened to harm the children. All three children were taken into protective custody.
Although the children were initially split up, with D.M. and U.M. together in one foster home and L.M. in another, they were all placed together within three weeks.
On September 22, the Department filed a section 387 petition seeking a more restrictive placement for D.M and U.M. and a section 300 petition concerning L.M., the latter of which we will discuss in greater detail in connection with Roger's petition.
On September 23, the court ordered all three children detained from Denise, and on October 19, it sustained the allegations in the section 387 petition.
The section 387 petition came on for a disposition hearing on January 9, 2017, at which the court declared the boys dependents, ordered reunification services for Denise and David, and set a six-month review hearing for July 6.
Six-month Review
By the time of the July 6 six-month review hearing, Denise was incarcerated, having been arrested in connection with an armed home invasion. The Department was recommending termination of reunification services for her but continuation of services for David, and the matter was continued for a contested hearing.
A contested six-month review hearing was held on August 14 and 15. As pertinent here, on August 15, the court requested briefing on two issues: (1) whether the three children should be treated as a sibling group, and (2) the proper timeline for David's services given that the boys were detained from him before they were detained from Denise and he had received in excess of 12 months of reunification services. The court set a hearing date of August 30 for the pronouncement of its decision on the six-month review.
On August 30, Denise's counsel informed the court that Denise was withdrawing her contest, as she had been sentenced to four years in state prison, which exceeded the timeline for reunification. Additionally, county counsel had not yet filed the briefing requested by the court, so the court ordered counsel to file it by the following day and continued the six-month contested hearing to September 5 for further argument and the court's ruling.
The Department filed its brief as ordered. Significantly, it argued that the time limits for David's services did not begin to run until D.M. and U.M. were removed from the custody of both parents, that David was in substantial compliance with his case plan, and that it was in the children's best interest to extend David's reunification services to the 12-month date.
At the September 5 hearing, the court began by tentatively finding that D.M. and U.M. had entered foster care on December 29, 2015, which created a 12-month date of December 29, 2016; that David had been provided reasonable services for more than 12 months; and that the children were a sibling group. It then heard argument, which included argument by county counsel that the timeline for David's services did not in fact begin to run until the children had been removed from both parents, which occurred on September 23, 2016 with their removal from Denise, creating a 12-month date of October 11, 2017. Counsel for David agreed, further arguing that according to the Department, David was in substantial compliance with his case plan, and all that remained for him to work on was continuing with alcohol and drug treatment, counseling, and housing, which he could achieve in two to three weeks, well within the 12-month time limit.
At the conclusion of the hearing, the court terminated Denise's services and stated it would issue written findings and orders concerning David.
The Court's Ruling Terminating David's Reunification Services
On November 17, the juvenile court issued its written ruling in which it made the following findings: D.M. and U.M. were detained from David on December 4, 2015; he had been receiving services since that time; the 12-month review should have been held no later than December 29, 2016, which was 12 months from the date the boys entered foster care; there was clear and convincing evidence David failed to participate regularly and make substantive progress on his case plan; he had failed to reunify after a period that amounted to nearly 24 months of reunification services, which the court calculated beginning on the date the boys were detained from David; there was no substantial probability the boys would be returned to him by either October 11 or December 4, 2017; continued reunification services for David were not in the children's best interests; and the boys were part of a sibling group in which one child (L.M.) was under the age of three at the time the sibling group was taken into protective custody, which would support termination of David's services at the six-month review. Based on the foregoing, the court terminated David's reunification services.
The Department's Request for Reconsideration
On December 4, 2017, the Department filed a request for consideration, urging the court to reconsider its termination of David's services "to avoid potential appellate issues." It argued, as it had in its brief, that the timeline for David's services began to run when the children were detained from both parents. According to the Department, that date was September 20, 2016, when the children were removed from Denise's care.
Following a hearing on the Department's request, the court declined to reconsider its November 17 ruling. The matter was subsequently continued multiple times for entry of order to coincide with L.M.'s case.
As will be detailed below, on February 9, 2018, the court terminated Roger's services as to L.M. That same day, it also entered the findings and orders terminating Denise's and David's services as to D.M. and U.M. It set a May 30 section 366.26 permanency hearing for all three children.
All three parents filed timely notices of intent to file a writ petition, followed by timely petitions. We stayed the May 30 hearing pending resolution of their petitions.
The Juvenile Court Erred in Calculating the 12-month Date for David's Services
The fundamental argument asserted by David and Denise is that the juvenile court incorrectly calculated the 12-month date for David's reunification services and terminated them prematurely as a result. They are correct.
Denise submits she has standing to challenge the order setting the section 366.26 hearing because it potentially impacts her parental rights.
Section 361.5, subdivision (a) provides that, subject to certain exceptions not applicable here, "whenever a child is removed from a parent's or guardian's custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother and statutorily presumed father or guardians." For a child over the age of three years at the time he or she was initially removed from the parent's physical custody, child welfare services are presumptively provided for 12 months from the date the child entered foster care. (§ 361.5, subd. (a)(1)(A).) The presumptive rule for children under the age of three on the date of initial removal is that child welfare services shall not exceed a period of six months from the date the child entered foster care. (§ 361.5, subd. (a)(1)(B); see In re Christina A. (2001) 91 Cal.App.4th 1153, 1160-1161.) Where a sibling group is removed from parental custody at the same time and the group includes a child under three years of age at the time of initial removal, the court may apply the "six-month 'child welfare services' presumption to all members of the 'sibling group.' " (In re A.C. (2008) 169 Cal.App.4th 636, 642 (A.C.); § 361.5, subd. (a)(1)(C).)
While the section 361.5, subdivision (a) timeframes apply when a child is removed from the custody of both parents, different rules apply when the child is removed from a custodial parent and placed with a noncustodial parent under section 361.2, as occurred with D.M. and U.M. In such a case, the section 361.5 timeframes do not apply unless and until the child is removed from the custody of both parents, as the court held in A.C., supra, 169 Cal.App.4th 636.
In A.C., two children were removed from their mother's home and placed with their previously noncustodial father. At disposition, the court ordered family maintenance services for the father and enhancement services for the mother. (A.C., supra, 169 Cal.App.4th at pp. 639-642 & fn. 5.) Sixteen months later, the children were removed from their father's custody pursuant to a section 387 petition. (A.C., at p. 640.) At the dispositional hearing on the supplemental petition, the court ordered reunification services for both parents. After the court continued reunification services at the six-month review, the children appealed, arguing the parents had already received more than the 18 months of child welfare services authorized by section 361.5. (A.C., at pp. 639-640.)
The Court of Appeal affirmed, holding that the continuation of reunification services at the six-month review was appropriate. (A.C., supra, 169 Cal.App.4th at p. 639.) The court reasoned that the "[s]ection 361.5 time limits for reunification services start to run when a child is removed from all parental custody at the disposition hearing. The clock does not start running when the child is placed with a noncustodial parent pursuant to section 361.2." (Ibid.) Thus, the parents were entitled to a full complement of reunification services calculated from when the children were removed from the custody of both parents, despite the previous provision of services. (Id. at p. 649; accord, In re Jaden E. (2014) 229 Cal.App.4th 1277, 1284-1285; In re T.W. (2013) 214 Cal.App.4th 1154, 1167-1169.)
Application of these rules here leads us to the conclusion that the juvenile court erroneously terminated David's reunification services prior to the 12-month mark. D.M. and U.M. were detained from David in December 2015. Because they were placed with Denise, the section 361.5 time limits did not start to run even though David was provided services at that point. Instead, they began to run on September 23, 2016, when the boys were detained from Denise following the Department's filing of the section 387 petition. This created a 12-month review date of October 19, 2017. (See § 366.21, subd. (f)(1) [12 months from date child entered foster care].)
The Department does not dispute that the trial court improperly calculated the timeline for David's services. Indeed, it concedes that "the statutory time limits for reunification services are not triggered by removal from a custodial parent, but by an order placing child[ren] in foster care." It nevertheless contends the court's early termination of David's services was not erroneous because there was "abundant evidence" to support the juvenile court's finding of "clear and convincing evidence that David failed to participate regularly and make substantive progress with the case plan." The Department's position is astonishing. In its six-month status review report (prepared June 22, 2017), it recommended additional services for David. In its August 31, 2017 supplemental brief, it represented that "[David] is in Substantial Compliance with his Case Plan, and is Entitled to Twelve Months of Services," going on to say, "In this case the Department submits that it would be in the best interest of the children to extend Family Reunification services to [David] to the twelve month date. [David] has substantially complied with every component of his case plan and increased visitation with his children. Most importantly, the report submitted by the Department highlights the children's close attachment to their father. The Department respectfully requests the Court find it is in the children's best interest to support Father in his efforts to reunify." And in its December 4, 2017 request for reconsideration, the Department urged the court to reconsider its calculation of the timeline for David's services. The Department offers no explanation for its abrupt reversal of position, and we find it disturbing, to say the least.
That aside, the statutory provisions on which the Department relies in claimed support of early termination are inapplicable.
The Department contends that section 388 grants the court discretion to terminate services before the 12-month time limit. While that may be (see § 388, subd. (c)(1)), the Department did not file the requisite section 388 petition, a mandatory step in seeking early termination under that section. (Ibid.)
The Department also argues that termination at the six-month review was appropriate because D.M. and U.M. were members of a sibling group with a child who was under three years of age at the time of initial removal such that David's services as to D.M. and U.M. could properly be terminated after six months. Section 361.5, subdivision (a)(1)(C) does indeed allow for termination of services after six months for a child over three years old when that child is part of a sibling group with a child who was under three years old at the time of initial removal. The purpose of the statute is to permit the placement of a sibling group together in a permanent home. (§ 361.5, subd. (a)(1)(C) ["For the purpose of placing and maintaining a sibling group together in a permanent home should reunification efforts fail . . . court-ordered services for some or all of the sibling group may be limited . . . ."].) Even if the court had conducted the proper sibling-group analysis, this provision could not justify the juvenile court's early termination of David's services because Roger was still receiving services as to L.M. at the time the court terminated David's services as to D.M. and U.M. Clearly, then, David's services were not terminated early to allow the three children to be placed together in a permanent home. (W.P. v. Superior Court (2018) 20 Cal.App.5th 1196, 1202 [section 361.5, subdivision (a)(1)(C) did not justify early termination of services where siblings were not placed together].)
The Department contends "there is no policy justification for a rigid rule that could provide a formerly custodial (but recalcitrant) parent an extended period of reunification services simply because the other parent subsequently lost custody of the children during a family maintenance case." In fact, the A.C. court provided such a policy justification: "Children who are placed with at least one of their parents from the beginning of the dependency are differently situated than those who immediately enter foster care. Such a child, in most cases, is not suffering from the same level of disruption and need for prompt permanency adjudication as he or she might otherwise experience in a foster care placement. Moreover, a custodial parent who has lost custody to a (previously) noncustodial parent following a dependency petition is not similarly situated to one who loses custody of the child to an alternative placement. This parent does not have the same section 361.5 right to attempt reunification during the dependency proceeding if the court decides to maintain custody with the previously noncustodial parent." (A.C., supra, 169 Cal.App.4th at p. 652.) The Department quoted this very language in its request for reconsideration. For it to now argue that there is no policy justification is disingenuous.
ROGER'S PETITION
Background
Section 300 Petition , Detention , Jurisdiction , and Disposition
As noted, on September 22, 2016, the Department filed a section 300 petition alleging that two-year-old L.M. was at a substantial risk of serious physical harm or illness due to Denise's and Roger's substance abuse and domestic violence. After the court took jurisdiction over L.M., it ordered the Department to provide reunification services to Roger. His case plan identified the following service objectives: stay free from illegal drugs, demonstrate an ability to live free from drug dependency, and comply with all required drug tests; attend and demonstrate progress in a county-certified domestic violence prevention plan; stay sober and demonstrate an ability to live free from alcohol; and comply with medical or psychological treatment. His responsibilities included the following: attend a domestic violence assessment and follow the recommendations; participate in a psychological evaluation and follow the recommendations; participate in a parenting class; participate in a substance abuse assessment and engage in recommended services; and submit to substance abuse testing.
Six-month Review
In a July 13, 2017 six-month status report, the Department reported that Roger had failed two drug tests during the review period. On March 22, he tested positive for methamphetamine, although he adamantly denied any drug use. On April 26, he arrived at the Progress House to enter its drug treatment program but tested positive for benzodiazepine and was not admitted into treatment. On June 14, he entered an inpatient program at the Humboldt Recovery Center (HRC) and was in treatment at the time of the report.
Roger had completed the "Men Seeking Safety" group on June 13. He had engaged in mental health services at Humboldt County Mental Health and reported he was compliant with his medications. He enrolled in MEND/WEND (a batterer's intervention program) and was intending to continue that program after he completed the HRC program.
Roger had attended 27 out of 44 visits with L.M., with the missed visits canceled due to illness or Roger's work schedule. During visits, he was attentive to L.M.'s cues and responsive to her needs. He had also completed a parenting course.
On March 10, Roger had undergone a mental health assessment by psychologist Andrew Renouf, Ph.D. In a report attached to the status report, Dr. Renouf opined that Roger suffered from "a Bipolar Disorder, which includes psychotic symptoms of hallucinations and delusional beliefs, primarily of a religious nature. His anger outburst and aggressive behaviors have been a component of his manic symptoms, and his mood disorder also likely motivated, at least in part, [by] his substance use. He currently appears to be stabilizing on medication and exhibits good insight into his mental health problems, which suggests a positive prognosis for treatment. He is still in the early stages of treatment, however, and will benefit from ongoing services and support to insure medication compliance and follow-through with other services." According to Dr. Renouf, Roger had been taking Risperdal (an antipsychotic/mood stabilizer) and Sinequan (an antidepressant/pain medication) for a month and appeared to be receiving adequate medication support, although he suggested Roger further consult with the prescribing doctor to see if he "might benefit from an increase in his medications due to continue[d] sleep and anxiety problems." He also suggested Roger consult with the doctor "about his use of cannabis, for potential interactions with his medications."
Dr. Renouf recommended Roger engage in regular psychotherapy and receive support in finding housing, maintaining his job, and finding employment in his chosen field. Because Roger was also vulnerable to relapsing into substance abuse, Dr. Renouf believed "attending AA 12-step-groups and getting a sponsor, addressing the issue in therapy, or random drug screens" "may be beneficial." Lastly, Dr. Renouf recommended that Roger not obtain custody of L.M. until he had been stable on medication for a minimum of six months.
Dr. Renouf closed his report with this observation: "[Roger] has a serious and chronic mental health condition that can result in impaired judgment, aggression, psychosis, suicidality, and potentially homicidal behavior. He appears to be stabilizing and getting his life together but these are [the] early days, and he will need ongoing support and compliance with his medications to succeed."
Based on all of the foregoing, the Department recommended continuing Roger's services, providing this general summary of his progress: "The father continues to struggle with his mental health and [alcohol and other drug (AOD)] issues. He made adequate progress to his case plan and has been somewhat honest about his struggles. The Department is encouraged by his level of participation and providing him with an additional 6 months will allow him to address his mental health and AOD issues. The father denied his mental health and AOD issues early on i[n] the case, however he has now addressed them and is successfully seeking support in these areas."
At a September 5, 2017 six-month review hearing, the court found Roger had made adequate progress on his case plan and there was a substantial probability L.M. would be returned to his custody by the 12-month review. It thus ordered continuation of his reunification services and set a 12-month status review hearing for October 17.
The Department's 12-month Status Report
The Department's October 4 12-month status report provided this update:
At the subsequent contested 12-month review hearing, the court struck all portions of the report that pertained to anything that occurred prior to September 5, 2017 on the ground that it was outside the current review period and thus irrelevant. We question the propriety of this, as it eliminated all information regarding Roger's progress as of the six-month review and what still needed to be addressed in his case plan. That issue, however, is not before us.
Roger completed the HRC inpatient program on September 13. His case plan also required him to complete a domestic violence program and he had attended the MEND/WEND program until he entered HRC on June 13. Although he was no longer at HRC, he had not resumed attending the MEND/WEND program.
Roger was living in a clean and sober house in Eureka while seeking permanent housing. He was unable to obtain "Parent and Children in Transition" (PACT) housing because it was not expected that he would have L.M. in his care within the next 30 days, which was a PACT requirement. He was doing well during supervised visitation, although he displayed some anger toward the staff supervising the visits.
Roger was engaged in mental health services at Humboldt County Mental Health and reported that he was compliant with his medications, although he had not addressed Dr. Renouf's recommendation for changes in his medications. He told the social worker he had received a referral for a therapist through his insurance and would inform the social worker when he had scheduled the sessions.
The Department concluded that Roger continued to struggle with his mental health. His positive drug test just prior to entering the Progress House treatment program delayed his substance abuse treatment, although he ultimately completed the HRC inpatient program. His continued denial of drug use despite positive tests demonstrated his lack of insight, and he had not yet demonstrated the ability to maintain his sobriety. He wanted to quit the MEND/WEND program and find a different program, but the social worker encouraged him to continue. He required constant encouragement to continue services, and when he felt like he was not making progress he wanted to give up. Accordingly, the Department recommended termination of Roger's services.
L.M.'s court-appointed special advocate (CASA) also submitted a report advising that Roger had not completed a MEND/WEND class, was living in a clean and sober home, had no other housing, and was unemployed. As the CASA understood it, Roger self-reported that he was compliant with his medication regimen, but there had not been enough time to determine the state of his sobriety and mental health.
The Department's Addendum to its 12-month Status Report
On January 11, 2018, the Department submitted an addendum updating the court on Roger's progress since its October 4 report. In late October, Roger got a job stocking shelves at a grocery store but was terminated after two weeks for not being fast enough. In mid-November, he moved in with Denise's mother, Carol, in Orleans because he was unable to afford the rent at the clean and sober housing. Since moving in with Carol, he was employed as her in-home supportive services (IHSS) care provider. He intended to provide assistance for other IHSS recipients once Carol no longer needed assistance and he acquired a car.
As noted in its prior report, Roger had started the MEND/WEND program but stopped in June when he entered HRC. He intended to resume the program but he owed a fee for a missed session and would only be able to return once he paid that fee, which he could not afford.
According to the social worker, Roger did not inform the Department of his move to Orleans. Rather, after he failed to show up on time for a November 16, 2017 visit with L.M., he emailed the visitation center that he would have to cancel the visit and would be unable to attend visits for the time being because of his move. The visitation center then notified the social worker, who emailed Roger the following day and offered to provide him with bus passes to travel to Eureka for his visits. Visits were scheduled to resume on January 9, 2018, but L.M. was sick so the visit was canceled.
Roger told the social worker that he would be ready to have custody of L.M. if he had a job and a place to live. He was depressed, which he largely attributed to not having L.M. in his care. He had experienced mental health issues for years, and approximately one year earlier, he had overdosed on methamphetamine in a suicide attempt, causing him to become psychotic.
In mid-December, Roger began seeing a mental health clinician in Orleans every other week and had attended two sessions as of the date of the report. He had been taking two psychiatric medications, although he stopped taking them in mid-December when his prescriptions ran out. He did not want to renew the Risperidone prescription because of its significant side effects and because he had not experienced any psychotic episodes since he stopped taking it. He had been referred to a psychiatrist at Humboldt County Mental Health to discuss his medications.
Roger had been attending weekly AA/NA meetings in Orleans since mid-December. He had a medical marijuana card, and a January 9, 2018 drug test came back positive for cannabis and negative for all other substances. The closest AOD program was in Hoopa, and Roger was unable to get there due to a lack of transportation. He also lacked access to any anger management programs.
Carol informed the social worker that their living arrangement was temporary and Roger would need to move out if his presence interfered with her ability to gain custody of L.M. The previous month, she had sent the social worker a message stating that Roger " 'doesn't want to terminate but if I can get the children, I plan on adopting them. He just wants to be part of her life but he has a ways to go before he is 100% recovered from all of the trauma. We both feel it would be in his best interest and [L.M.'s] to give him the space he needs.' " She did not believe Roger was ready to take care of L.M.
Contested 12-month Review Hearing
A contested 12-month review hearing was held January 31 through February 2, 2018. It began with Roger's testimony, as follows:
Roger moved in with Carol in Orleans in October 2017 due to being "unemployed and broke." It was a temporary arrangement, and he was looking for his own place. He had started working at a grocery store, but he was unable to perform fast enough and had been terminated.
Roger had previously been taking three medications, including Sinequan for depression and sleep issues and Risperidone for bipolar disorder. His prescriptions had run out and he did not want to refill the Risperidone prescription because the "psychosis has seemed to have passed" and the medication had "some really disturbing" side effects, including causing his tongue to hang out, "strange mental blank spots, difficulty concentrating, and extreme bouts of anxiety . . . ." He had seen a psychiatrist at the local mental health facility that morning for a medication evaluation, and the doctor discontinued the Risperidone and Sinequan and prescribed a different sleep medication and a mood stabilizer, which Roger had not yet picked up. Roger believed he needed medication for his mental stability but he also believed he was mentally stable at that time even though he was not taking any medications. He also believed he could adequately parent L.M. before his medication regimen stabilized. Roger was not aware Dr. Renouf recommended a potential increase in his medication. He was aware Dr. Renouf recommended he demonstrate he could remain stable on medication for at least six months, and he acknowledged he had nevertheless allowed his Risperidone prescription to run out.
Roger had drug tested about 10 times and had two positive tests (other than cannabis), one after taking valium in April 2017 and the other after using amphetamine in approximately January 2016. In the current review period, he had not consumed any alcohol, used drugs other than marijuana two to three times per week, or had a psychotic episode or an anger outburst. He was attending AA/NA meetings twice a week, but he did not have a sponsor because his group was only six people, four of whom were women, and it was recommended that one find a same-gender sponsor. He was not aware Dr. Renouf had recommended he find a sponsor.
Roger most likely misremembered the date, since the section 300 petition was not even filed until September 2016. --------
Roger had begun counseling about a month and a half earlier, which was where he obtained his current mental health provider. He also found the HRC on his own. During the current review period, the Department had not referred him to a mental health provider.
According to Roger, he notified the social worker of his move to Orleans the day he moved. He also contacted the visitation center to advise he would not be able to make his visit and needed to put visits on hold until he could figure out the schedule. Because of scheduling issues with the visitation center, it was about a month before his visits resumed. He had requested that L.M. be brought to Orleans to visit him but was told it was too far, and was instead given bus passes so he could travel to see her. At the time of the hearing, he was visiting her two times per week, even though it took him three hours to travel from Orleans to Eureka. He had asked the social worker if the visits could be liberalized and was told she would look into it but he never heard anything back. As to the Department's statement that he had " 'difficulty with the staff providing the supervised visitation and reserve[d] his anger for staff,' " Roger testified he had had no such problem in the current review period.
In July 2017, while at HRC, he completed a moral recognition therapy program and an anger management program. After he left HRC, he attended their outpatient aftercare meetings for two months, only stopping because he moved.
Roger had not completed a domestic violence program. He did not understand that to be a requirement of his case plan, as it merely required that he " 'attend and demonstrate progress in a county certified domestic violence prevention plan.' " He felt like he learned about anger management when he attended the MEND/WEND program, and he attempted to reenroll in the program but he had missed his initial appointment because he needed to take a drug test as a condition for his job and was assessed a $120 fee for the missed appointment. The fee had to be paid before he could reenroll in the program and while the Department offered to pay half of it, he could not afford the other half.
Concerning employment, Roger would be working for Carol through March. He had just purchased a car that morning, and he anticipated he would be able to register to obtain more IHSS clients. He had not received any assistance from the Department in obtaining employment.
Roger was seeking housing by "looking on-line at different locations, saving money, things like that." He had not completed any housing applications because he did not yet have the funds to afford his own place. He had asked the Department for financial assistance for housing but was told it had no money.
Barbara Wolf was the social worker assigned to the case when it was first opened in 2015 and had prepared the 12-month review report in which the Department recommended termination of Roger's services. She testified that Roger had asked her for money to help him obtain housing, and she told him the Department had previously paid the deposit and rent to keep Roger and Denise in housing in an attempt to prevent the family from breaking up and she believed it was highly unlikely she would be able to get additional funds to help him with housing. She never submitted a request for funding.
Ms. Wolf had referred Roger for the PACT housing program, but the program contacted her and told her he was not eligible for PACT housing unless he was going to have L.M. in his care within 30 days.
According to Ms. Wolf, Roger never requested that his visits be liberalized, although she agreed she "probably" sent him an email saying the Department would consider liberalizing visits after he got out of HRC and had maintained his sobriety for two to three months. He completed the HRC program September 13 and between then and when the case was transferred to the current social worker (Joslyn Flint), Ms. Wolf was not aware of anytime Roger had used illicit drugs or alcohol and had any sort of psychotic episodes. It was also her impression visitation had gone very well. When she transferred the case to Ms. Flint, she briefed her on the case but she did not recall if she mentioned she had been prepared to consider liberalizing visits.
Social worker Flint testified that she met with Roger twice in October and once in December to discuss his progress. When she saw him in October, he had a job at a grocery store that he was hoping would become full-time. He also had a plan for saving money and paying the outstanding MEND/WEND fee, and was living in clean and sober housing. In December, he was employed as Carol's IHSS provider, and they discussed him buying a car and getting on the IHSS registry so he could get more jobs and find his own place to live. Since then, he had purchased a car. She had not provided any support concerning housing because in October and December he had stable housing and in December he had not yet been paid for his IHSS work so he was not financially ready to obtain his own housing. The only concern with Roger's current housing situation that Ms. Flint could identify was that it was "close to the river."
According to Ms. Flint, Roger did not notify her when he moved. Rather, she found out when someone from the visitation center emailed to let her know he had canceled a visit and wanted to put visits on hold. Within a week, he sought to have them reinstated, asking to have them moved to Hoopa, which the Department declined to do since it would be less burdensome for Roger to travel to Eureka than to subject L.M. to a three-hour car ride for a two-hour visit. It took about a month for visits to resume because there was a waiting list at the visitation center. During the two to three weeks Roger was on the waitlist, the Department did not supervise any visits between Roger and L.M. Ms. Flint denied Roger ever asked her about liberalizing his visitation, and she did not think it was appropriate to do so. When asked why, she answered, "I don't know. I just have—I wish I could answer that. I just have some concerns about Roger for longer than a couple hours with [L.M.]. Although, he has been really good with her during visits by all reports." Asked to elaborate on those concerns, she answered, "His alertness to a certain extent." She also had concerns about his mental health and his medications.
Ms. Flint and Roger also discussed services closer to Orleans. There were certain services that were not available in Orleans that were available in Eureka or Hoopa. She offered to assist him with accessing services in Hoopa, but he said he did not have a way to get to Hoopa since it was a 15 minute drive to get to the bus and he did not have a car at the time. Upon moving to Orleans, Roger began attending AA/NA meetings, but that did not satisfy the substance abuse component of his case plan, which, according to Ms. Flint, required outpatient treatment, with the closest program being in Hoopa. She did not provide him the contact information for the outpatient program in Hoopa because he said he could not attend it. Ms. Flint agreed that Roger graduated from HRC, which is an AOD program. Asked why she thought he needed to complete an outpatient program, she believed she was briefed on that issue when she inherited the case. She did not know how far along he was in MEND/WEND when he went to HRC.
Ms. Flint also testified that Roger still needed to complete a batterer's intervention program. The closest program was in Eureka, although it was sometimes offered in Hoopa. Roger had also not completed the anger management component of his case plan, as he did not complete the MEND/WEND program.
Ms. Flint acknowledged that Roger was receiving counseling every other week. Ask if this met the psychotherapy requirement in the psychological evaluation, Ms. Flint responded, "I honestly don't know. He's seen a mental health clinician." Asked if psychotherapy was different than regular counseling, she responded, "I think it meets what he's supposed to be doing. He's seeing a counselor from Humboldt County Mental Health." Ms. Flint did not think Roger's mental health was stable based on "talking to him about his meds and him saying that he's pretty depressed. [¶] And I met with him in December and he was concerned that he ran out of his meds then and wanted to talk to a doctor about getting on meds with less side effects, but still had an affect on him. And he just started them yesterday. I mean I'm no expert, I just think that there's going to need some time to see." Asked if she provided him with referrals to have his medication evaluated, Ms. Flint said she met with him on December 10 and he had already scheduled an appointment at a medical office in Orleans "[s]o he was already being proactive about that."
Carol was the final witness to testify. She testified Roger moved in with her the third week of November. He was doing "drastically better" than when he first moved in, and she was really impressed with what he had accomplished, including getting a job, seeking counseling, attending AA/NA meetings, signing up for a parenting class, purchasing a vehicle, helping her around the house, and looking for his own housing. Since he had been living with her, she had seen no signs of mental illness, illegal drug or alcohol use, or violence.
Carol described her home as "extremely clean" and "safe for children." She acknowledged it is near the Klamath River—"about twelve hundred or more feet"—but said that thousands of tall blackberry bushes obstruct access to the river. She was also in the process of putting up a safety fence around the entire property.
Carol had contacted Ms. Flint suggesting that Roger's visits be liberalized. She acknowledged she had also contacted counsel for the children several times to report that the parents were using methamphetamine, but testified these calls were a "[l]ong time" ago.
Carol also acknowledged that within the last month, she had sent Ms. Flint a message conveying her belief that Roger was not ready to be a full-time parent yet. She claimed this was because he did not have his own housing, and not because of concerns about his mental health, substance abuse, or violent behavior. If L.M. was returned to Roger's care, Carol would permit them to stay with her, although she believed the best arrangement would be for the children to be with her because Roger "hasn't had enough time to get his own place and to establish himself yet."
The court then heard closing arguments. County counsel noted that the 18-month mark was March 20, 2018, and in order to continue services, the court had to find a substantial probability that L.M. would be returned to Roger's care by that date, which was not feasible due to ongoing concerns regarding his mental health. Dr. Renouf's report indicated Roger suffered from bipolar disorder and recommended he not regain custody of L.M. until he had been stable on medication for a minimum of six months. Roger had, however, stopped taking his psychiatric medications and had only just obtained new prescriptions that he had not yet started taking. He was also using marijuana two to three times per week but had not discussed this with his psychiatrist, and had not completed MEND/WEND. County counsel also argued the Department had provided reasonable services.
Counsel for L.M. believed Roger had run out of time. While he had positive visitation with L.M., the issues that prompted her removal and that Dr. Renouf identified were "so serious" there needed to be significant progress. At 16 months out for a child who was under the age of three, Roger needed to be able to appropriately parent her as of that time, but that was not the case given his medication situation, unstable mental health, housing situation, and failure to follow through with the batterer's intervention component of his case plan.
Counsel for Denise urged the court to continue services for Roger. Given the significant problems that led to L.M.'s removal, it was unrealistic to expect that Roger could complete his case plan in 12 months, but he had made impressive progress, which was enough to warrant continued services.
Roger's counsel argued the Department had not provided reasonable services. It did nothing between January 11 and 31. Dr. Renouf's evaluation was dated six months after detention and there was no evidence the delay was Roger's fault. When a parent has mental health issues, the Department has an obligation to pay special attention to that, but that did not happen here. Other than the referral for the psychiatric evaluation, Roger had accomplished everything else on his own without assistance from the Department. The Department was also inadequate with regards to visitation, as Ms. Wolf was considering liberalizing visitation but there was no follow through when the case was transferred to Ms. Flint. Roger took steps to remedy his housing situation, but the Department would not provide financial assistance despite that the Department is obligated to assist a parent in finding housing if inadequate housing is a barrier to reunification. Additionally, Roger's case plan did not require him to complete a domestic violence program but to merely participate in one, which he did by attending MEND/WEND and addressing anger management at HRC. And in the current review period, there was no evidence of violence, mental health issues, or substance abuse.
At the conclusion of closing arguments, the court took the matter under submission.
The Court's Ruling Terminating Roger's Services
On February 9, the matter came on for the court's ruling. The court began by considering whether returning L.M. to Roger's custody would create a substantial risk of detriment to her, and it found by a preponderance of the evidence that it would. It cited Dr. Renouf's report that Roger needed to be stable on medication for a minimum of six months, which was not the case. The case plan required him to follow the recommendations of the psychological assessment, but when he ran out of his prescribed medications, he did not obtain refills and delayed seeking a medication reassessment.
The court also believed he was susceptible to relapsing as he had not found a sponsor as recommended by Dr. Renouf and was "smoking marijuana, which is contraindicated as it relates to the psychotropic medication." It also pointed to his failure to resume the MEND/WEND program and demonstrate progress in a domestic violence program.
The court next found the Department provided reasonable services. It observed that Roger "was doing really well when it got to the last review. In fact, that's why he was given six more months. He was engaged in services in . . . Eureka and . . . the issue of housing did develop and he did make the change, but . . . instead of exploring in more detail remaining in housing where the services were being provided to him and where he was, frankly, doing very well, he chose to move to a more isolated area. Granted, while he had more personal support there for himself personally . . . it was not more beneficial as it relates to services; and that while the Department . . . would provide for bus tickets, . . . he was 15 minutes away from a bus line, as well." Further, the Department made the referral to Dr. Renouf and was prepared to offer all of the services tailored to Roger's needs as identified by Dr. Renouf. Additionally, it provided visitation services which enabled Roger to continue having positive experiences with L.M.
Finally, the court considered whether there was a substantial probability that L.M. would be returned to Roger's care by the 18-month review, which was March 20—less than 45 days away. According to the court, "There is really no way the father can complete that. Dr. Renouf's recommendation was six months of stabilization on medication, and that just can't happen within that time frame." It noted that Dr. Renouf's assessment identified very significant mental health issues and the specific steps Roger needed to take to address those issues. He had been doing well at taking those steps while he was living in Eureka, but his decision to relocate to Orleans made it more difficult to access the services he needed to complete those steps. The court was also concerned that Roger regularly used marijuana without regard for how it interacted with his psychiatric medications.
Based on the foregoing, the court found Roger had not made significant progress in resolving the problems that led to L.M.'s removal and that he has not demonstrated a capacity to complete the objectives of his case plan by the 18-month date. It therefore terminated his reunification services and set a section 366.26 permanency hearing for May 30.
The Court's Finding That It Would Be Detrimental to Return L.M. to Roger Is Supported by Substantial Evidence
When the juvenile court reviews the status of a minor who has been removed from parental custody, sections 366.21, subdivisions (e) and (f) and 366.22, subdivision (a), require the court to return the minor to the physical custody of the parent unless, by a preponderance of the evidence, the court finds this "would create a substantial risk of detriment to the physical or emotional well-being of the minor." (In re Joseph B. (1996) 42 Cal.App.4th 890, 899.) The court here found there would be a substantial risk of detriment to L.M. if she were returned to Roger's care, a finding Roger contends is unsupported by substantial evidence. (See Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763-764 [we review an order finding detriment for substantial evidence].) We disagree.
The court's finding was primarily grounded in uncertainties about Roger's mental health. As Roger himself acknowledged, Dr. Renouf recommended that he be stable on his medication for a minimum of six months before L.M. be returned to his care. Despite this, in December 2017, Roger allowed his psychiatric prescriptions to run out and delayed in either obtaining refills or seeking a medication reassessment. At the time the contested 12-month hearing commenced on January 31, 2018, Roger had been off his medications for over a month. In the midst of the hearing, he obtained prescriptions for new psychiatric medications but had not started taking them. And he had not consulted with a medical professional concerning the impact of his cannabis consumption on his medications. Considering the grave concerns with Roger's mental state that led to L.M.'s removal and his failure to demonstrate mental stability on his medications for a minimum of six months, it was reasonable for the juvenile court to find that L.M. would be at a substantial risk of detriment if returned to his care.
Roger disagrees, contending the juvenile court should have given Carol's testimony "great weight" and returned L.M. to him on the condition they live with Carol. According to Carol, Roger had indeed made commendable progress since he moved in with her in November 2017. Nevertheless, it was certainly reasonable for the court to credit the opinion of an experienced medical professional who recommended six months of stability on medications over a layperson who admittedly believed L.M. would be better in her care than in Roger's and who told the social worker Roger was not ready to have L.M. in his care.
Roger cites In re James R. (2009) 176 Cal.App.4th 129, in which the court stated, "the Agency had the 'burden of showing specifically how the minors have been or will be harmed and harm may not be presumed from the mere fact of mental illness of a parent.' " (Id. at p. 136.) This case is inapplicable, as the parents there were challenging the sufficiency of the evidence to support the court's jurisdictional findings (id. at p. 134), which was not the situation here. Further, there was no evidence there that the parent's mental instability had ever negatively affected the children (id. at p. 136), whereas there was clear evidence that Roger's psychiatric issues had negatively impacted L.M.
Roger also argues that the court "failed to consider [his] unique circumstances in regard to his mental health and medication compliance." These circumstances apparently included "Medical insurance changes, the absence of his original treating physician, complicating side effects from his originally prescribed medication Risperidone, and the need for a new medical appointment in order to renew and/or change his medication . . . ." While these circumstances may explain why Roger was not stable on his medications, they do not negate the reasonable conclusion that his failure to demonstrate his mental stability put L.M. as a substantial risk of harm if she were returned to his care.
The Court's Finding That the Department Provided Reasonable Services Is Supported by Substantial Evidence
Roger also contends that the Department failed to meet its burden under section 366.21, subdivision (f) of showing that it provided reasonable services. In evaluating this claim, we review the record to determine whether it "discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court, supra, 36 Cal.App.4th at p. 762.) We conclude there is such substantial evidence.
The court's order continuing services to the 12-month date was entered in September 2017. Ms. Flint met with Roger the following month, at which time he had a job, was living in clean and sober housing, and was planning to use his first paycheck to pay his rent for his clean and sober housing and his second paycheck to pay the fee he owed to MEND/WEND. There was no need at this time for the Department to provide housing or employment support, since Roger had both.
Ms. Flint emailed Roger on November 17, after she learned from the visitation center he was putting his visits on hold and had moved to Orleans. While she determined it was too burdensome to require L.M. to travel to Hoopa for visits, she provided bus passes so Roger could return to Eureka for visits.
In December, Ms. Flint visited Roger in Orleans. At that time, he was employed, so he did not need employment support. He was also housed since he had moved in with Carol, and housing referrals were not appropriate at that time because Roger did not yet have the means to live on his own. He would not qualify for the PACT program since he would not have L.M. in his care within 30 days. And since the Department had previously expended funds to keep Roger and Denise housed, it was unlikely additional funds would be forthcoming. And the Department was providing bus passes for Roger to travel to Eureka to visit with L.M. Roger informed Ms. Flint that he was participating in counseling and had an appointment for a medication evaluation. He had completed the inpatient treatment program at HRC and was attending AA/NA meetings in Orleans, so he did not need substance abuse support. It is unclear, then, what services Roger believes the Department should have provided during the current review period but failed to do so.
While Roger's decision to move in with Carol in Orleans was not necessarily unreasonable in that it enabled him to find housing and employment, it certainly limited the services that were available to him. The social worker nevertheless continued to facilitate Roger's access to services, offering him bus passes to Hoopa, where he would have greater access to services than in Orleans. Roger declined, citing his inability to get to the bus.
Roger contends that Ms. Flint's testimony at the contested 12-month review hearing was "terribly deficient." In support, he quotes various responses she gave at the hearing, such as, "I'm no expert" and "I don't know." These quotes are taken out of context. When read in context and in combination with the Department's 12-month report and addendum, and the testimony of Ms. Wolf and Roger himself, there is substantial evidence supporting the court's reasonable services finding.
At the end of the day, "Reunification services need not be perfect. [Citation.] But they should be tailored to the specific needs of the particular family. [Citation.] Services will be found reasonable if the Department has '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 (such as helping to provide transportation . . .).' " (In re Alvin R. (2003) 108 Cal.App.4th 962, 972-973.) We conclude there is substantial evidence the Department complied with these responsibilities here.
The Court's Finding That Roger Had Not Demonstrated the Capacity and Ability to Complete the Objectives of His Case Plan and Provide for L.M.'s Safety, Protection, Well-being, and Special Needs Is Supported by Substantial Evidence
In Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 845, footnote omitted, the California Supreme Court explained the findings necessary to continue services at each review period, as follows: "The dependency scheme sets up three distinct periods and three corresponding distinct escalating standards for the provision of reunification services to parents of children under the age of three. During the first period, which runs from roughly the jurisdictional hearing (§ 355) to the six-month review hearing (§ 366.21, subd. (e)), services are afforded essentially as a matter of right (§ 361.5, subd. (a)) unless the trial court makes one of a series of statutorily specified findings relating to parental mental disability, abandonment of the child, or other specific malfeasance (§ 361.5, subd. (b)). During the second period, which runs from the six-month review hearing to the 12-month review hearing (§ 366.21, subd. (f)), a heightened showing is required to continue services. So long as reasonable services have in fact been provided, the juvenile court must find 'a substantial probability' that the child may be safely returned to the parent within six months in order to continue services. (§ 366.21, subd. (e).) During the final period, which runs from the 12-month review hearing to the 18-month review hearing (§ 366.22), services are available only if the juvenile court finds specifically that the parent has 'consistently and regularly contacted and visited with the child,' made 'significant progress' on the problems that led to removal, and 'demonstrated 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)-(C).)" (Tonya M. v. Superior Court, supra, 42 Cal.4th at p. 845, footnote omitted.) Thus, in order to continue services beyond the 12-month review, the court here needed to find that Roger had consistently and regularly visited L.M., had made significant progress on the issues that led to her removal, and had demonstrated he could complete his case plan and provide for her safety, protection, well-being, and needs.
There is no dispute as to the first prong, as the court found Roger consistently and regularly contacted and visited L.M. Indeed, he showed commendable dedication to visiting her, and by all accounts the visits were positive for parent and child. The court found, however, the second and third prongs had not been satisfied. Roger disputes the court's finding that he had not made significant progress on his case plan, but we need not address this finding, as there is substantial evidence supporting the court's finding that Roger has not demonstrated the capacity to complete his case plan and provide for L.M. The evidence discussed above—namely, his failure to remain stable on his medications for six months—supports this finding.
DISPOSITION
David's and Denise's writ petitions are granted. Let a peremptory writ of mandate issue directing respondent Superior Court of Humboldt County to vacate its November 17, 2017 order terminating David's reunification services and its February 9, 2018 order terminating David's reunification services and setting a section 366.26 permanency hearing and to enter a new order directing the Department to provide David reunification services to the 12-month date.
Roger's petition is denied on the merits.
The stay of the section 366.26 hearing is dissolved.
Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Miller, J.