T.C. v. Superior Court CA4/2 (2024) · DecisionDepot
T.C. v. Superior Court CA4/2
California Court of Appeal Nov 7, 2024 No. E084296Unpublished
Filed 11/7/24 T.C. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
T.C.,
Petitioner, E084296
v. (Super.Ct.Nos. J298748 & J298749) THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, OPINION
Respondent;
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Cara D. Hutson,
Judge. Petition granted.
Friedland & Associates, and Kathy L. Garcia for Petitioner.
No appearance for Respondent.
Tom Bunton, County Counsel, and David Guardado, Deputy County Counsel, for
Real Party in Interest.
1
T.C. (mother) petitions for extraordinary relief pursuant to rule 8.452 of the
California Rules of Court seeking to set aside the orders of the San Bernardino juvenile
court made at a Welfare and Institutions Code section 366.21, subdivision (e) six-month
review hearing.1 Those orders terminated family reunification services as to mother’s
two children, and set a section 366.26 permanent plan selection hearing as to them.
Mother and S.S. (father) are the parents of P.S. and D.S. The family came to the
attention of real party in interest, San Bernardino County Department of Children and
Family Services (the Department) in October 2023, when P.S. was born with a positive
toxicology for amphetamines and opiates, and suffered withdrawal symptoms. Mother
also tested positive for those substances as well as for Fentanyl.
Mother claimed she tested positive for amphetamines and opiates because she was
taking Tramadol and Adderall prescribed for her, and did not know why she tested
positive for Fentanyl. She admitted abusing substances (heroin) over 20 years ago and
“went to rehab” when she was 19 years old. The maternal aunt reported mother had
battled with opiate use since she was young and expressed concern that mother was
actively using “substances.”
The Department took P.S. and two-year-old D.S. into protective custody and filed
section 300 juvenile dependency petitions on their behalf.
1 All statutory references herein are to the Welfare and Institutions Code unless otherwise noted. All references to rules are to California’s Rules of Court.
2
I. The Detention Hearing
At the October 19, 2023, detention hearing the juvenile court ordered the children
detained and placed with maternal relatives. It ordered predispositional services to be
provided to the parents. The court also ordered both parents to drug test that day and
thereafter to test at the Department's direction, and cautioned them that failure to comply
would be deemed a positive test.
Neither parent tested on the day of the detention hearing, claiming they were not
on the list when they arrived at the testing site.
II. The Hearings on Jurisdiction and Disposition
When interviewed by the Department's social worker in anticipation of the
hearings on jurisdiction and disposition, mother continued to assert she tested positive for
amphetamines and opiates because she was using Tramadol and Adderall prescribed for
her use, and she believed the positive result for Fentanyl was an error because P.S. did
not test positive for that drug.
At the November 9, 2023, hearing on jurisdiction and disposition, the matter was
set for a January 17, 2024, contested hearing on jurisdiction and disposition. Mother’s
counsel reported her client’s objection to the Department’s statement in its report that it
made reasonable efforts to maintain the children at home and also reported her client’s
intention to retain private counsel. A substitution of counsel for mother was filed on
December 1, 2023.
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In the course of the November 9, 2023 proceedings, the court ordered the parents
to drug test that day. There is no record that mother complied with the order; father’s test
was positive for amphetamines, acetylmorphine, and opiates.
While the contested hearing was pending, the Department's drug and alcohol
counselor made seven efforts to contact mother (on December 5, 11, 15, 18, and
19, 2023, and on January 4 and 8, 2024). She failed to respond. Meanwhile, she tested
positive for amphetamine, methamphetamine, acetylmorphine, and a mix of opiates
(codeine, hydromorphine, and morphine) on December 4, 7, and 19, 2023, and again on
January 10, 2024. On November 21, 2023, she submitted a diluted sample positive for
amphetamines and opiates.
Father also failed to respond to the counselor’s several efforts to reach him (five
attempts in December 2023, and two in January 2024). Father tested negative twice
(once in December 2023 and again in January 2024), but tested positive for
amphetamines, acetylmorphine, and opiates on November 9 and December 4, 2023, and
positive for those substances and marijuana on December 11, 2023; he tested positive for
amphetamines and opiates on November 13 and 29, 2023.
On January 17, 2024, the date set for the contested hearing on jurisdiction and
disposition, father’s counsel made a special appearance for mother’s counsel.
Apparently, her counsel had been present earlier in the day, and submitted an executed
waiver of rights form on mother’s behalf. At the hearing and in response to the court’s
inquiries, mother confirmed her intention to plead no contest to the petitions’ allegation
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that she has a substance abuse problem, which impairs her ability to adequately and
appropriately parent her children, placing them at risk of abuse or neglect.
The court sustained the petitions’ allegations as to the parents’ substance abuse
problems and the additional allegation that father knew of mother’s substance abuse issue
and failed to protect P.S. It adjudged the children dependents of the court, removed them
from their parents, and ordered family reunification services, with twice-weekly, two-
hour supervised visits between the parents and children.
The family reunification plan for mother consisted of five components: (i) general
counseling; (ii) an age appropriate parenting class; (iii) successful completion of a drug
treatment program approved by the Department, with regular attendance and active
participation in all sessions, and compliance with any recommendations and referrals; (iv)
random, observed drug testing conducted by the Department or a substance abuse
program approved by the Department (with all drug tests results to be negative for drugs
and alcohol, and missed tests considered a positive result); (v) attendance and
participation in an NA/AA program a minimum of once a week, with documentation of
dates and signatures evidencing attending to be provided to the Department's social
worker assigned to mother.
III. Family Reunification Efforts
In June 2024, the Department prepared a report prepared in anticipation of the
July 17 six-month status review hearing, which provided an update of efforts to reunify
the family in the period following the hearing on jurisdiction and disposition.
5
In keeping with family reunification plan, the Department had referred mother to
counseling in December 2023. The goals set forth in the referral included addressing
several subjects: the Department's involvement with the family, the children’s removal,
child endangerment, failure to protect, focus on insight and self-awareness into drug use,
and take accountability for placing the children at risk. The counselor reported that
mother’s attendance was sporadic, which mother attributed to her need to make efforts
“to complete required detox program." By April 9, 2024, mother had completed the eight
sessions authorized by the referral. The therapist recommended six additional sessions to
increase the chances of mother accomplishing the therapeutic objectives.
Although mother admitted to the therapist that she had a history of drug abuse, the
mother had not been honest with the therapist about the reasons for the children’s
removal. According to the therapist, mother had attributed her current situation to her
doctor’s advice to continue taking Adderall while pregnant and, after the baby’s birth, the
Department “showed up that [she] tested positive for fentanyl.”
The Department reported that it had reminded mother of the allegations found true
by the court, and had explained to her “many times” that the confirmation tests
established that nonprescription drugs were in her system. It gave mother an additional
referral for further therapy and advised her she would need to be honest about the reasons
for the children’s removal and her drug use in order to benefit from therapeutic services.
The Department also reported mother’s progress with the reunification
requirements designed to address mother’s substance abuse problem. After the
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Department's drug counselor’s initial efforts to reach mother were unsuccessful, an
arrangement was made for her to enter a program on January 31, 2024. She did not
attend the intake appointment because she felt like she should attend a detox program
first, and said she would enter Cedar House for that purpose on February 23, but by
March 1, she had left that program, stating she felt like she needed a higher level of care
with medical staff on site. Mother did not provide any documentation to evidence her
self-admission into the program or her attendance there.
The counselor told the social worker that mother had been advised many times
that she needed to be in an inpatient program because she was continuing to test positive
for opioids, methamphetamine and acetylmorphine, and the confirmation tests verified
she was in fact taking drugs. The counselor informed mother that referrals to just a detox
program are not available; that they are only offered as a component of a program. She
assured mother that the inpatient program now being recommended would send her to
detox first before beginning the program.
On April 23, 2024, mother again failed to enter an inpatient facility as scheduled,
saying she was sick. A week later, she returned to Cedar House, completed nine days of
detox, and was moved to Maple House on May 8. While there, mother began insisting
she should be released from the program in 30 days, rather than stay for at least 60 days
as recommended by her case manager.
In a grievance form dated May 30, 2024, mother complained that her case
manager was not being receptive and was not assisting her in her efforts to leave the
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inpatient program in 30 days. She said she needed an early release to permit her time to
complete an outpatient program “per [her] case plan” before her July court date (that is,
by the six-month review hearing) so she would not lose her children.
Mother specifically stated that she wanted the recipient of her grievance to be
aware that, “[her] baby did not test positive for anything,” [emphasis in original] and
declared she had the meconium results to establish that fact, and “[t]hey” said she tested
positive for Fentanyl, which was “impossible" because she was taking only prescription
medications. Mother went on to say her social worker is “corrupt,” that the worker is not
there to help her but is instead “just trying to sell [mother’s] kids." She suggested the
person reading her complaint should, “Please Google San Bernardino CFS lawsuit if you
don’t believe me."
On June 27, 2024, after completing 51 days of the inpatient program, mother was
discharged. The plan was for her to begin an outpatient program on July 11, 2024 but, by
July 16, the social worker had not been able to confirm whether mother had shown up for
the intake appointment. According to a note from inpatient case manager, the five drug
tests given mother during her stay were negative. The social worker also asked the
parents to test the day after mother left the inpatient program because the Department’s
office reported the parents had been going back and forth to their car multiple times
during the visit and appeared jittery. The tests were negative.
Mother was present at the July 17, 2024, six-month review hearing and was
represented by counsel appearing for her attorney. Counsel opposed termination of
8
mother’s family reunification services. He noted mother had continuously attended
treatment facilities for 60 days, spending nine days at Cedar House and 51 days at Maple
house, and that she had completed a parenting program and a perinatal residential
program while attending the Maple House. Counsel added that, “We understand the
position and I’ve tried to explain to my client the position that she is in. She can only ask
me to ask the Court to please keep the window open for family reunification."
Minors’ counsel argued the children are very young (ages “zero and two”), they
had been in out-of-home care for nine months, and the parents’ confirmation drug tests
show they are using “extensive” drugs, and there is not enough time for them to get the
treatment necessary for them to reunify. Counsel asserted the parents had not benefitted
from services enough to find a substantial likelihood of return of the children to their care
even if the court was to afford them additional services.
Counsel for the Department joined in the argument of minors’ counsel, and added
the parents had remained in denial. Mother did not participate in treatment for the first
six-and-a-half months of the case, and father did not start his efforts until the eighth
month. Counsel acknowledged the parents’ completion of some services but said they
have not benefitted from them. Counsel remarked that the parents appeared to treat the
case plan as a checklist, that they do not grasp the need to benefit from services, and
noted in particular mother’s failure to be open and honest with service providers.
The juvenile court found the children were under the age of three at the time of
their initial removal. It found by clear and convincing evidence that the Department had
9
provided reasonable services to mother and father, that the parents had failed to
participate regularly and make substantive progress with the court-ordered case plan, and
that they had failed to complete their plan. It further found the Department had complied
with the case plan and that the parents had made minimal progress toward alleviating or
mitigating the causes necessitating the children’s placement out of home, and there was
not a substantial probability that they could be returned home within the statutory time
frames. It ordered termination of family reunification services and set the matter for a
section 366.26 permanent plan selection hearing.
Each of the parents timely filed a notice of intent to file a writ petition, but only
mother filed one.
DISCUSSION
In her petition, mother argues she should be granted a contested status review
hearing because the juvenile court orders were the result of ineffective assistance of her
retained counsel. We requested supplemental briefing from the parties addressing the
issue whether there is sufficient evidence to support the juvenile court’s finding that
mother failed to participate regularly and make substantive progress in her court-ordered
treatment plan.
In a case like the present one in which the children are under the age of three at the
time of initial removal from parent and family reunification services are offered and
provided to the parent, the juvenile court is authorized by section 366.21, subdivision
(e)(3) to terminate those services at the six-month review hearing if it finds by clear and
10
convincing evidence that the parent had not regularly participated and made substantive
progress in a court-ordered treatment plan. We review the court’s ruling for substantial
evidence, accounting for the heightened degree of certainty required by the clear and
convincing evidence. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011 (O.B.); In re
V.L. (2020) 54 Cal.App.5th 147, 155 [O.B., supra, is controlling in dependency cases.]
Here, the record demonstrates mother has had an ongoing struggle with substance
abuse, and that she delayed engaging in the services offered by the Department to address
the problem, continued to test positive for various substances, and denied the child was
born with a positive toxicology. But, between the end of April 2024 and the six-month
review hearing on July 17, 2024, she began to engage in drug rehabilitation services. By
the time of the hearing, she completed a 51-day inpatient program, had been consistently
testing negative during the program, tested negative the day after leaving the program,
and was scheduled to start an outpatient program. In addition, she had completed a
parenting program and a perinatal residential program while attending the inpatient
program.
In view of mother’s concerted and devoted efforts, albeit coming late in the
reunification period, we do not find sufficient evidence to support the juvenile court’s
conclusion that she had not made substantial progress in her court ordered treatment
program.
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Because we will grant mother’s petition for lack of substantial evidence to support
the order terminating family reunification services, there is no call for us to address her
argument that her former counsel provided ineffective assistance.
DISPOSITION
The petition for extraordinary writ is granted. The request for a stay is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
McKINSTER J. MENETREZ J.
12
AI Brief
AI-generated · verify before citing
Holding. The court held that there was insufficient evidence to support the juvenile court's finding that the mother failed to make substantive progress in her court-ordered treatment plan, as she had engaged in and completed significant rehabilitation services by the time of the six-month review hearing.
Issues
Whether there is sufficient evidence to support the juvenile court's finding that the mother failed to participate regularly and make substantive progress in her court-ordered treatment plan.
Disposition. granted
Quotations verified verbatim against the opinion
“In view of mother’s concerted and devoted efforts, albeit coming late in the reunification period, we do not find sufficient evidence to support the juvenile court’s conclusion that she had not made substantial progress in her court ordered treatment program.”
“Because we will grant mother’s petition for lack of substantial evidence to support the order terminating family reunification services, there is no call for us to address her argument that her former counsel provided ineffective assistance.”