E.B. v. Superior Court CA4/2 (2020) · DecisionDepot
E.B. v. Superior Court CA4/2
California Court of Appeal Nov 19, 2020 No. E075715Unpublished
Filed 11/19/20 E.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
E.B., E075715 Petitioner, (Super.Ct.No. J282461) v. OPINION THE SUPERIOR COURT OF SAN BERNARDINO COUNTY,
Respondent;
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Annemarie G.
Pace, Judge. Petition denied.
Friedman and Cazares and Kelsey Yoro-Bacay for Petitioner.
No appearance for Respondent.
1
Michelle D. Blakemore, County Counsel, Dawn M. Martin, Deputy County
Counsel, for Real Party in Interest.
I
INTRODUCTION
This is a petition for extraordinary writ challenging the findings and orders of the
juvenile court in setting a hearing pursuant to Welfare and Institutions Code
custody at birth after Mother tested positive for methamphetamines during delivery.
Mother contends the juvenile court erred in terminating her services and setting a
section 366.26 hearing because the court failed to consider her particular barriers, the
department failed to provide her with reasonable reunification services, and she had
regularly participated and substantially complied with her case plan. We find that the
record supports the court’s findings and orders, and deny the petition.
1All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
2 Mother is also the mother of two older children, 15-year-old E.S. and 12-year- old W.G., Jr. Mother’s two older children are not the subjects of this appeal and have resided with the maternal grandmother for most of their lives. E.G.’s father, R.G. (Father), is not a party to this appeal.
2
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and
Family Services (CFS) in August 2019, after Mother tested positive for
methamphetamines while giving birth to E.G. E.G. had medical issues following her
birth and was being monitored by hospital staff. The social worker met with hospital
staff and was informed that E.G. was on antibiotics and would be on medication for
several days. Hospital staff also stated that Mother was tested twice for
methamphetamines with two positive results and, therefore, the positive result could not
have been a false positive. E.G. had tested negative for drugs. Hospital staff further
noted that Mother had visited E.G., but did not spend much time with her and had not
shown much interest in her.
The social worker made an unannounced visit to Mother’s home, which belonged
to the maternal grandmother. Mother reported she had been residing with the maternal
grandmother since April 2019 after being released from jail for identity theft and was on
probation. She also stated that she had been incarcerated several times in the past but did
not remember the substance of her criminal history. Mother denied using any type of
drugs, did not understand why she had tested positive for methamphetamines, and
claimed she may have been around people using it and ingested it somehow. She also
stated that she had experimented with methamphetamines and marijuana when she was
15 years old, but that she did not like it. Mother further reported that the maternal
3
grandmother had guardianship of her two older children and that she was willing to move
out of the maternal grandmother’s home so the children’s lives would not be disrupted.
She noted that she was willing to test for CFS and cooperate with CFS, because she did
not want E.G. removed from her care over a “misunderstanding.”
The social worker also spoke with the maternal grandmother, who was in the
process of obtaining legal guardianship of the older children but had not yet submitted the
request to the court. The children had been in the maternal grandmother’s care for about
10 years and called her “‘mom.’” Approximately two years prior while Mother was in
prison, Mother had signed a form authorizing the maternal grandmother to make
decisions over the children regarding school and medical decisions. The maternal
grandmother was unaware of the exact reasons as to why Mother was incarcerated, but
she noted that Mother began making poor decisions when she turned 18 years old. The
maternal grandmother indicated that Mother was not known to use drugs and was
surprised she tested positive for methamphetamines.
The social worker also spoke with the older children. E.S. asserted that she
viewed the maternal grandmother as her mother and called Mother by her first name.
E.S. enjoyed living with the maternal grandmother, did not want to be removed from her
care, and denied noticing Mother using any type of substance. W.G. confirmed the
statements made by E.S. and added that he had a “‘great’ life” with the maternal
grandmother. W.G. also stated that he was “scared about being removed” from the
maternal grandmother’s home and did not want to live anywhere else.
4
The paternal aunt called the social worker indicating she wanted to be considered
for placement of E.G. The paternal aunt stated that she had a distant relationship with
Father, after he had his two older children removed from his care by the Los Angeles
County Department of Children and Family Services.3 The paternal aunt also reported
the concerns she had with Mother and Father. She stated that she saw the parents arguing
when she visited E.G. at the hospital and that the parents were known to embrace the
“‘party life’” and not “‘have it together.’”
On September 11, 2019, CFS obtained a detention warrant and the children were
placed in protective custody. When the social worker served the detention warrant, the
worker observed Mother to have involuntary body movements. Mother admitted that she
had smoked methamphetamine and that the last time she had used was when she tested
positive at the hospital. Mother’s criminal history included multiple charges for drug
possession between 2012 and 2019. Mother was asked to drug test, but she refused to do
so.
On September 13, 2019, CFS filed petitions on behalf of E.G. and her siblings
pursuant to section 300, subdivision (b) (failure to protect), in relevant part, due to
Mother’s ongoing struggles with substance abuse and a criminal lifestyle.
On September 16, 2019, the juvenile court formally detained the children. The
parents were provided services pending the jurisdictional/dispositional hearing, including
visitation once a week for two hours. The parents were also ordered to drug test. The
3In July 2013, Father’s older children were removed from his care due to substance abuse and domestic violence.
5
older children were maintained in the maternal grandmother’s home, and E.G. was placed
in a foster home. The maternal grandmother was unable to provide the more time-
consuming care necessary for E.G.
CFS recommended reunification services be provided to the parents. Father
admitted to having a history of methamphetamine use but had not used since 2010, and
his recent drug test indicated a negative drug test result. When asked about knowledge of
Mother’s methamphetamine use, he initially denied it. He later stated that he had met
Mother through a mutual friend who was known to use drugs and suspected Mother used
drugs.
When the social worker spoke with the two older children on September 20, 2019,
E.S. reported that Mother had only moved in with them after being pregnant with E.G.
and that Mother did not see them often. E.S. also indicated that Mother was usually half
asleep or in her room so they did not spend much time together. W.G. confirmed Mother
would be gone for days at a time and had only started living with them once she was
pregnant. Both children considered the maternal grandmother their mother and looked to
her to provide their daily needs.
On September 25, 2019, the social worker spoke with Mother again about her
substance abuse. She said she began using marijuana at 15 years old and
methamphetamines when she was 17 years old but only while going out. She had never
sought substance abuse treatment because she did not believe she had a problem and
could stop when she liked. As to her recent positive drug test for methamphetamines, she
6
claimed she was staying with a cousin who used methamphetamines and must have drank
some of her juice or soda that had the drugs in it. Mother failed to drug test on
September 24, 2019. Mother, however, visited the children and the visit appeared
appropriate.
On October 18, 2019, E.G. was placed with her maternal cousins.
After Mother waived her rights, on October 30, 2019, the juvenile court found true
the allegations in the petitions and Mother was provided with reunification services.
Mother’s case plan included participation in general counseling, a parenting class, a
substance abuse outpatient program, random drug testing, and a 12-step program.
By the time of the six-month review hearing on April 30, 2020, CFS
recommended reunification services be terminated and a section 366.26 hearing be set to
establish a permanent plan of adoption for E.G. In December 2019, the social worker
provided Mother with a referral for a family shelter. However, in March 2020, Mother
reported she was homeless and looking for a sober living home, and a couple of weeks
later her status had not changed as she was still homeless and not residing in a sober
living home. She continued to have weekly visits with the children but had not enrolled
in substance abuse counseling. She had attended parenting classes and individual
therapy. Nonetheless, she continued to test positive for methamphetamines and/or failed
to randomly drug test.
In September 2019, Mother was referred for an assessment with a substance abuse
counselor. In January 2020, she was provided information for substance abuse classes.
7
Mother did not complete the assessment until February 4, 2020, and it was noted that she
was informed she did not qualify for outpatient services due to reporting she had not
consumed substances since February 2019. She also cancelled several drug tests between
October 2019 and January 2020, and tested positive for drugs on February 10, 2020, and
in early March 2020. The social worker attempted to obtain a progress report from
Mother’s parenting classes and therapy, but Mother only provided the social worker with
her sign-in sheet from her sessions.
The six-month review hearing set for April 30, 2020, was continued to June 4,
2020, as a result of a general order related to COVID-19. Mother did not attend the
June 4, 2020 hearing, and the matter was set contested and continued.
In a July 9, 2020 addendum report, CFS continued to recommend termination of
services and setting of a section 366.26 hearing. The social worker observed Mother’s
visits and noted that Mother failed to engage with E.G. and was not bonded with her.
Mother had not held E.G. for longer than 30 seconds during any visit over the past nine
months. In addition, Mother had been provided with over six months of services and had
failed to obtain sobriety within that timeframe. She tested positive for amphetamines
upon intake to Gibson House for Women (Gibson House) on May 26, 2020. Meanwhile,
E.G. had been thriving in her placement and was bonded to her caregivers. E.G.’s
caregivers had met E.G.’s emotional, medical, developmental, and educational needs and
had taken E.G. to her therapy sessions for the tremors she experienced due to withdrawals
from Mother’s substance abuse.
8
At the July 9, 2020 contested six-month review hearing, Mother’s counsel advised
the court that Mother had tested positive for COVID-19 and could not attend court.
Therefore, the matter was reset for August 5, 2020. Mother could not attend the
August 5, 2020 hearing since she again tested positive for COVID-19, so the matter was
continued to September 15, 2020.
Mother cancelled an August 28, 2020 visit because she had no transportation.
Mother later had two in-person visits, and it was reported that she engaged with E.G.
Mother also provided documentation that she had completed the inpatient substance
abuse program at Gibson House that she began on May 26, 2020, was attending
Alcoholics Anonymous and Narcotics Anonymous meetings, completed a parenting
program, and tested negative for drugs.
The contested six-month review hearing was held on September 15, 2020. Mother
testified that she had completed an inpatient substance abuse program at Gibson House
and was isolated during the time due to COVID-19 with cameras watching her at all
times and that she was unable to go outside. She had also enrolled in a six-month
outpatient substance abuse program. She stated that she did not enroll in the inpatient
program until May 2020 because initially she was unable to admit she had a drug
problem. As to housing, she explained that she could live in a sober living facility and
have the children with her as well.
While she was living in the inpatient program and after testing positive for
COVID-19, Mother explained that daily video visits were arranged so she could visit
9
every day with E.G. for approximately 15 minutes. For the last two visits in
September 2020, Mother was able to have in-person visits. Mother admitted that she had
used methamphetamines in August 2019 and was untruthful when she had earlier
reported that she stopped using in February 2019. She was also using methamphetamines
right before she entered the inpatient substance abuse program at Gibson House in
May 2020 and her “clean date was May 24th or 25th.” Mother admitted that the reason
she was unable to enroll in a prior referred program was because she had lied to the
program provider about when she tested positive. As to visits, she acknowledged that she
had no visits, including video, from March to May 2020, and that she began having video
visits with E.G. in June 2020.
The social worker testified that Mother was difficult to deal with prior to Mother
enrolling in the inpatient drug program. Since Mother completed the program, the social
worker explained that she noticed a change in Mother’s attitude, and Mother was more
compliant. However, the social worker was not sure how motivated Mother was since
her sobriety was very recent. The social worker also noted that the quality of Mother’s
visits with E.G. were better since Mother had completed the inpatient program and that
Mother was more engaged with E.G. The social worker stated that her concern with
offering Mother more services was the lack of bonding between Mother and E.G. She
explained that Mother did not engage with E.G. from September 2019 until March 2020,
that Mother had only video visits for some time afterwards between the end of May
through August 2020, and that Mother had just resumed in-person visits. The social
10
worker further noted that Mother had never lived on her own without support since
maintaining sobriety.
Mother’s counsel objected to terminating Mother’s services, arguing Mother had
completed her case plan and demonstrated her ability to benefit. Mother’s counsel noted
that the 12-month review hearing would be in six weeks, and if bonding was an issue,
then the court could increase visitation between Mother and E.G. E.G.’s counsel argued
that although Mother had made significant progress, Mother delayed initiating the
inpatient program and did not believe reunification or continuing services was in E.G.’s
best interest. E.G.’s counsel explained that E.G. was removed as an infant, Mother had
never developed a bond with E.G., and six or seven weeks of additional services would
not change that relationship. E.G.’s counsel also noted that Mother had not demonstrated
she could continue a sober lifestyle without significant assistance. CFS’s counsel also
argued that Mother had almost a year to reunify and has had a short length of sobriety
and that Mother had an opportunity to engage with E.G. for six months and had only
recently begun engaging with her.
Following argument, the juvenile court found CFS had provided reasonable
services, terminated reunification services, and set a section 366.26 hearing. The court
noted that the six-month hearing would have been held in April 2020 if not for the
COVID-19 shutdown in March 2020 and that in April 2020, the record was clear that
visits were not going well and Mother was not in compliance with her case plan. The
court also stated that Mother essentially received more services because of the COVID-
11
19 shutdown, and to her credit, engaged in services. The court further explained that
E.G. was removed at birth and Mother had no significant bond with her and that E.G.’s
only parent had been her current caretakers. The court noted that Mother was not raising
her other children but rather, the maternal grandmother was raising the children.
Although the court recognized that Mother had made significant progress in her case plan
since May 2020, it found there was no substantial probability E.G. could be returned to
her care in six weeks given the lack of bonding and short time of sobriety.
On September 15, 2020, Mother filed a timely notice of intent to file a writ
petition.
III
DISCUSSION
Mother argues that the juvenile court erred in terminating her services and setting
a section 366.26 hearing because the court failed to consider her barriers or unusual
circumstances, namely her positive COVID-19 test results, that prevented her access and
ability to maintain contact with E.G. She also contends CFS failed to provide her with
reasonable reunification services because it failed to give her the opportunity to visit E.G.
in person and that the juvenile court erred in terminating her services because she had
regularly participated and substantially complied with her case plan.
A. Unusual or Extenuating Circumstances
Section 366.21, subdivision (e)(l), provides in pertinent part: “The failure of the
parent or legal guardian to participate regularly and make substantive progress in court-
12
ordered treatment programs shall be prima facie evidence that return would be
detrimental. In making its determination, the court shall review and consider the social
worker’s report and recommendations and the report and recommendations of any child
advocate appointed pursuant to Section 356.5; and shall consider the efforts or progress,
or both, demonstrated by the parent or legal guardian and the extent to which he or she
availed himself or herself of services provided, taking into account the particular barriers
to a minor parent or a nonminor dependent parent, or an incarcerated, institutionalized,
detained, or deported parent’s or legal guardian’s access to those court-mandated services
and ability to maintain contact with his or her child.”
Citing to In re Elizabeth R. (1995) 35 Cal.App.4th 1774 (Elizabeth R.), Mother
contends the juvenile court should have considered her barriers or unusual circumstances
before terminating her services. Essentially, she argues that because she was unable to
visit E.G. in person in the months of June, July, and August 2020 due to her positive
COVID-19 test results and limitations through video visits to bond with E.G., the juvenile
court should have found extenuating circumstances and extended services, comparing her
situation “of a parent who is unable to leave a facility or is otherwise barred from
physically seeing her child.”
In Elizabeth R., the juvenile court was working under the “erroneous belief” that it
could not extend the reunification period beyond the 18-month period and thus was
“compelled to either terminate reunification services or return the minor to the [parent].”
(Elizabeth R., supra, 35 Cal.App.4th at pp. 1777-1778.) The mother in Elizabeth R. had
13
substantially complied with her reunification plan, but reunification was compromised by
the “unusual circumstance[ ]” of her hospitalization for mental illness. (Id. at pp. 1777,
1787.) The juvenile court, though “impressed with [the mother’s] progress and optimistic
about her ability to sustain her mental health,” was “frustrated by the department’s
insistence” that the court only had two options, to terminate services and schedule a
selection and implementation hearing or to return the children. (Id. at pp. 1782-1783.)
Accordingly, the court terminated services. (Id. at p. 1783.) The Court of Appeal
reversed, explaining that the juvenile court had been “unaware it retained some discretion
to continue services beyond the 18-month period,” and that section 352 “provides an
emergency escape valve in those rare instances in which the juvenile court determines the
best interests of the child would be served by a continuance of the 18-month review
hearing.” (Id. at pp. 1794, 1798-1799.)
The circumstances of the instant case are markedly different. To begin with, it
involves an assessment made at a six-month review hearing, not an 18-month review
hearing. More significantly, Mother did not substantially comply with her case plan until
well after the initial six-month review hearing, nor were the circumstances of her case
“unusual” or “extenuating.” As we have recounted, Mother came to the attention of CFS
in August 2019, was offered numerous services which she failed to participate in and
waited until May 26, 2020, to begin any treatment. In short, Mother continually refused
to avail herself of an array of services, and the fact that she finally did so at the eleventh
hour does not constitute “extenuating circumstances.”
14
Likewise, Mother’s positive COVID-19 test results also do not constitute a barrier
or unusual circumstances. Mother omits the fact that she was able to visit E.G. in person
during the initial six months of services from September 2019 through March 2020.
During that time, although Mother visited E.G., she was not engaged with E.G. and did
not hold E.G. longer than 30 seconds at any visit. Furthermore, Mother had those initial
six-to-seven months to enroll in an inpatient substance abuse program, but she failed to
do so and continued to test positive for methamphetamines. Assuming that the April 30,
2020 six-month hearing had gone forward as originally scheduled, CFS was
recommending that Mother’s reunification services be terminated and a section 366.26
hearing be set. The fact that Mother’s six-month review hearing was postponed due to
COVID-19 benefited Mother as it provided her with additional time to enroll and
complete an inpatient substance abuse program and show her ability to engage with E.G.
It is well-established that “‘[r]eunification services are voluntary, and cannot be
forced on an unwilling or indifferent parent. [Citation.]’ [Citation.] . . . ‘The requirement
that reunification services be made available to help a parent overcome those problems
which led to the dependency of his or her minor children is not a requirement that a social
worker take the parent by the hand and escort him or her to and through classes or
counseling sessions. A parent whose children have been adjudged dependents of the
juvenile court is on notice of the conduct requiring such state intervention. If such a
parent in no way seeks to correct his or her own behavior or waits until the impetus of an
impending court hearing to attempt to do so, the legislative purpose of providing safe and
15
stable environments for children is not served by forcing the juvenile court to go “on
hold” while the parent makes another stab at compliance.’” (In re Christina L. (1992) 3
Cal.App.4th 404, 414-415 (Christina L.); In re Nolan W. (2009) 45 Cal.4th 1217, 1233.)
B. Reasonableness of Services Provided
Citing to Serena M. v. Superior Court (Serena M.) (2020) 52 Cal.App.5th 659,
Mother also contends the juvenile court erred in finding CFS offered reasonable services
because CFS failed to give her an opportunity to visit E.G. in person. She thus believes
the court erred by not ordering additional visits.
Except under circumstances not applicable here, reasonable reunification services
must be offered when a child is removed. (§ 361.5, subd. (a); Earl L. v. Superior Court
(2011) 199 Cal.App.4th 1490, 1501.) Whether the reunification services offered were
reasonable and suitable is judged according to the circumstances of the particular case.
(Earl L. v. Superior Court, at p. 1501.) “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.” (In re Misako R. (1991) 2 Cal.App.4th 538,
547.)
We review under the substantial evidence standard the juvenile court’s finding that
reasonable services had been provided or offered. (Katie V. v. Superior Court (2005) 130
Cal.App.4th 586, 598.) In reviewing the challenged finding, we examine the record in
the light most favorable to the juvenile court’s order, to determine whether there is
substantial evidence from which a reasonable trier of fact could have made the finding
16
under the clear and convincing evidence standard. (In re Mary B. (2013) 218
Cal.App.4th 1474, 1483; In re Isayah C. (2004) 118 Cal.App.4th 684, 694.) We construe
all reasonable inferences in favor of a finding regarding the adequacy of an agency’s
reunification plan and the reasonableness of its efforts. (Christopher D. v. Superior
Court (2012) 210 Cal.App.4th 60, 70; In re Julie M. (1999) 69 Cal.App.4th 41, 46.) We
likewise resolve conflicts in favor of such a finding and do not reweigh the evidence. (In
re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)
Mother’s reliance on Serena M., supra, 52 Cal.App.5th 659 is misplaced because
that case is distinguishable from the present matter. In Serena M., the mother was denied
visits throughout the entire 18 months of services because visits were initially found to be
detrimental to her 13-year-old daughter. The mother’s visits were later approved under
therapeutic supervision, however, the social worker did not pursue therapeutic supervised
visitation because of the court’s detriment finding and the child’s unwillingness to visit
her mother. (Id. at pp. 663, 676-677.) The mother appealed, and the appellate court
found the juvenile court erred in finding the mother was offered reasonable services. (Id.
at pp. 677-678.) The court explained, “In this case, mother’s only hope for repairing her
damaged relationship with [her teenage daughter] and reunifying with her was to work
through their issues in a therapeutic setting. However, the juvenile court made that
impossible by forbidding in-person contact. While the evidence supports its decision for
an initial period, it does not support depriving her of that for an entire 18-month period.
17
We conclude based on the evidence the court’s no-contact visitation order was not
reasonable sometime around February 2019 and afterward.” (Ibid.)
In this case, Mother was granted visitation with E.G. throughout the proceedings
and no finding was ever made that such visits were detrimental. Mother had weekly in-
person visits for the initial six months of services from September 2019 through
March 2020. The initial six-month review hearing set for April 30, 2020, was
subsequently continued due to COVID-19. Thereafter, Mother had video visits with E.G.
between May through August 2020 while Mother was in an inpatient substance abuse
program at Gibson House. She then resumed in-person visits with E.G. in
September 2020. While Mother attempts to blame CFS and the pandemic for her
inability to have in-person visits or bond with E.G. during the proceedings, the record
demonstrates that the impact was short-lived and Mother had the opportunity to bond
with her child. When she did avail herself to in-person visits, the quality of those in-
person visits did not actually improve until she completed her substance abuse program
and achieved sobriety in a secured setting. The fact that Mother did not actively engage
with E.G. and bond with her during those initial seven months of in-person visits, despite
being given the opportunity to do so, does not mean services were unreasonable.
The COVID-19 pandemic has affected nearly everybody, and it is unfortunate the
pandemic has prevented Mother from having personal visits with E.G. during the months
of June, July, and August 2020. The juvenile court found, however, that the six-month
hearing would have been held in April 2020 if not for the COVID-19 shutdown and that
18
in April 2020, the record was clear that visits were not going well and Mother was not in
compliance with her case plan. The court also noted that Mother received more services
due to the shutdown, and to her credit, engaged in services. The court further explained
that E.G. was removed at birth and Mother had no significant bond with her and that
Mother was not raising her other children but rather, the maternal grandmother was
raising the children. Although the court recognized that Mother had made significant
progress in her case plan since May 2020, it found there was no substantial probability
E.G. could be returned to her care in six weeks given the lack of bonding and short time
of sobriety. Contrary to Mother’s claim, we find this is not a COVID-related case or
issue because Mother had plenty of time to engage in services before April 2020.
There is abundant evidence supporting the juvenile court’s finding that Mother
was provided reasonable services. As we have recounted, CFS offered Mother extensive
services, nearly all of which she refused to accept until she enrolled in an inpatient
substance abuse program at Gibson House. (See Christina L., supra, 3 Cal.App.4th at
pp. 414-415.)
C. Substantial Probability of Return
Lastly, Mother argues the juvenile court erred in terminating her services and
setting a section 366.26 hearing because she had, by clear and convincing evidence,
participated regularly and made substantive progress in her case plan.
When a dependent child is removed from parental custody, “the juvenile court
ordinarily must order child welfare services for the minor and the parent for the purpose
19
of facilitating reunification of the family. (§ 361.5, subd. (a).) For a child under three
years of age at the time of removal, as [E.G.] was, reunification services are
presumptively limited to six months.” (Tonya M. v. Superior Court (2007) 42 Cal.4th
836, 843 (Tonya M.).) This is because the “‘“unique developmental needs of infants and
toddlers”’ [citation] justif[y] a greater emphasis on establishing permanency and stability
earlier in the dependency process.” (M.V. v. Superior Court (2008) 167 Cal.App.4th 166,
175 (M.V.).)
Therefore, as our high court has explained, for the parent of a child under three at
the time of removal, the statutory scheme of providing reunification services establishes
“three distinct periods and three corresponding distinct escalating standards.” (Tonya M.,
supra, 42 Cal.4th at p. 845.) In the first period—a phase from the jurisdictional hearing
to the six-month review hearing where services are “presumed”—“services are afforded
essentially as a matter of right.” (Ibid.) In the second period—a phase from the six-
month review hearing to the 12-month review hearing where services are “possible”—“a
heightened showing is required to continue services.” (Ibid.; see § 366.21, subd. (e)(3)
[requiring the court to continue the case to the 12-month hearing where “there is a
substantial probability that the child . . . may be returned to his or her parent . . . within
six months” (italics added)].) And in the third period—a phase from the 12-month
review hearing to the 18-month review hearing where services are “disfavored” (Tonya
M., at p. 845)—services can be continued only if there is a “substantial probability that
the child will be returned” within the extended time period (§ 366.21, subd. (g)(1), italics
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added), and “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.’” (Tonya M., at p. 845, quoting
§ 366.21, subd. (g)(1)(A)-(C); see M.V., supra, 167 Cal.App.4th at p. 178 [“the court can
only continue the case to the 18-month review if it finds a substantial probability the
child will be returned to the parent; moreover, the court must find all three of the listed
factors to justify a finding of a substantial probability the child will be returned to his or
her parent”].)
In the present case, Mother argues that she participated regularly and made
substantial progress in her case plan to warrant the continuation of services. As an initial
matter, we note that an 18-month review hearing must “occur within 18 months of the
date the child was originally taken from the physical custody of his or her parent.”
(§ 366.21, subd. (g)(1).) Here, E.G. was removed from Mother’s physical custody on
September 11, 2019. Thus, the juvenile court was required to consider whether there was
a substantial probability of return in light of the time remaining, a period of slightly under
two months. (See Tonya M., supra, 42 Cal.4th at p. 846 [“if at most four months remain
until the next review hearing (i.e., the 12-month hearing or 18-month hearing), at most
only four months of services can by law be ordered, and the juvenile court therefore
21
should consider only what the impact of those four months of services would be on the
parent and child”].)
There is no dispute that Mother maintained consistent contact with E.G. and that
she actively engaged in her reunification plan once she entered Gibson House on May 26,
2020. Indeed, the juvenile court commended Mother for her participation in services and
the progress she had made. We too applaud Mother’s efforts, and hope that she will
continue to work toward stabilizing her life circumstances. However, substantial
evidence supports the juvenile court’s finding that E.G. was unlikely to be returned to
Mother within the six weeks remaining before the expiration of the 18-month review
period. Mother had recently obtained sobriety within the confines of a structured setting
and lacked a bond with E.G.
Furthermore, Mother did not enroll in her inpatient substance abuse program until
May 2020, which was after the initial six months had lapsed. The six-month review
hearing was initially set for April 30, 2020, but was continued due to COVID-19. In the
initial six months of being provided services, Mother was referred for an assessment with
a substance abuse counselor. In January 2020, she was provided information for a
substance abuse program. She did not complete the assessment until February 4, 2020,
and sabotaged herself by claiming she had not consumed substances since February 2019.
As a result, she was informed she did not qualify for an outpatient program. At the
September 15, 2020 contested six-month hearing, Mother stated that she was untruthful
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when she told the provider that she had stopped using in February 2019 and admitted to
using methamphetamines right before she entered Gibson House on May 24 or 25, 2020.
Therefore, as the juvenile court noted in its ruling, if the hearing had gone forward
as originally scheduled on April 30, 2020, Mother would not have been compliant with
her case plan. In addition, at that time, the record was clear that visits had not been going
well. The court found that there was no substantial probability E.G. would be returned to
Mother’s care in six weeks given the lack of bonding and short time of sobriety. This
finding is amply supported by the record. (See § 366.21, subd. (g)(1)(B).) We decline to
reweigh the evidence in this case. (See In re Casey D. (1999) 70 Cal.App.4th 38, 52-53
[the juvenile court alone determines where the weight of the evidence lies].)
By failing to address her substance abuse problems until approximately nine
months after E.G. was removed from her care, Mother prevented the court from safely
returning E.G. to her custody. Although some of the delay was caused by the pandemic,
Mother had the opportunity to engage in services about six months before the general
pandemic order went into effect. She had the ability to complete her case plan by the
review hearing but did not do so. Moreover, she had recently obtained sobriety while in a
confined, structured setting and lacked a bond with E.G. On that evidence, the juvenile
court could properly find there was not a substantial probability E.G. could be returned to
her custody in the six weeks remaining before the 18-month review hearing.
Accordingly, we find no error on this record.
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IV
DISPOSITION
The writ petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
MILLER Acting P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The juvenile court did not err in terminating reunification services and setting a section 366.26 hearing because the record supported the findings that the mother failed to make substantive progress until the eleventh hour and that no bond existed between the mother and child. The court correctly determined that the mother's COVID-19-related circumstances did not constitute an extenuating barrier justifying an extension of services.
Issues
Did the juvenile court err in terminating reunification services and setting a section 366.26 hearing?
Did the department fail to provide reasonable reunification services?
Did the mother's COVID-19 diagnosis and subsequent visitation limitations constitute 'unusual or extenuating circumstances' requiring an extension of services?
Disposition. denied
Quotations verified verbatim against the opinion
“The requirement that reunification services be made available to help a parent overcome those problems which led to the dependency of his or her minor children is not a requirement that a social worker take the parent by the hand”
“Mother did not substantially comply with her case plan until well after the initial six-month review hearing, nor were the circumstances of her case “unusual” or “extenuating.””
“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.”