Cassandra W. v. Super. Ct. CA1/5 filed
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Filed 4/6/11 Cassandra W. v. Super. Ct. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE CASSANDRA W., Petitioner, v. A131290 THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, County of San Francisco Super. Ct. No. JD10-3065 Respondent; SAN FRANCISCO COUNTY HUMAN SERVICES AGENCY et al., Real Parties in Interest. Cassandra W. (mother) has filed a petition for extraordinary writ seeking review of the juvenile court s January 24, 2011 order terminating reunification services as to her son, Gary C., and setting a Welfare and Institutions Code section 366.26 hearing.1 Mother argues that the juvenile court erred by terminating reunification services at the six-month review hearing. She also requests a stay. We deny the petition and the request for a stay. 1 Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code. 1 I. FACTUAL AND PROCEDURAL BACKGROUND Section 300 Petition On March 11, 2010, the San Francisco County Human Services Agency (department) filed a section 300 petition on behalf of Gary C., who was six years old at the time. The petition alleged failure to protect Gary C. (§ 300, subd. (b)), asserting that mother had failed to provide adequate food, clothing, shelter, and medical/dental care. The petition alleged that Gary C. was diagnosed with ring worm and that his teeth were rotting. The petition further alleged that mother s mental health and substance abuse issues, for which she was not receiving treatment, affected her ability to care for the child. According to the petition, mother also failed to assure Gary C. s regular attendance at school or that his mental health needs were met.2 Detention Report & Hearing At the time of the detention hearing, mother was incarcerated.3 The detention report indicated that, on February 24, 2010, Gary C. had told a social worker that he was hungry. When the social worker offered him food, he ate as if he had not eaten in a long time. The social worker called Gary C. s teacher, who reported that he was always hungry and that he eats like a feral child. When interviewed, Gary C. reported that he had not eaten breakfast that day or dinner the night before. Mother reported that she was homeless and stayed with various people. Gary C. s teacher reported that he seemed to have only three pairs of clothes, is not bathed, and sometimes smells. Despite the child being in special education because of an emotional disability, mother failed to ensure Gary C. s attendance. The report also indicates that mother admitted to smoking 2 Specifically, the petition alleged that mother failed to follow through with therapy for the child, who [h]as exhibited sexualized behavior and who has been diagnosed with PTSD. 3 Mother was arrested on March 9, 2010, for stealing a teacher s wallet when she brought Gary C. to school. She also had an outstanding felony warrant for transporting narcotics. 2 marijuana for depression, but failed to follow through with a referral for possible drug treatment. On March 12, 2010, the court ordered Gary C. removed from mother s custody and detained in foster care. Thereafter, the court ordered supervised visitation with mother. Jurisdiction Report and Determination The jurisdiction/disposition report, dated April 29, 2010, noted: [Gary C.] likes his foster mother but misses his mother. He is currently thriving as a result of attending school regularly. However, he has serious behavioral issues and lacks appropriate boundaries. His dental issues are being attended to and he is no longer in pain from his rotted teeth. A jurisdiction and disposition hearing was held on June 30, 2010. The court adjudged Gary C. to be a dependent of the juvenile court and ordered visitation and reunification services for mother, as recommended by the department. The reunification plan provided: In order to be considered for reunification, the mother must complete the following service requirements. [¶] 1. That the mother receive a mental health assessment, which may include a meds assessment. [¶] 2. That the mother participate in individual therapy. [¶] 3. That the mother participate in therapeutic visitation/family therapy. [¶] 4. That the mother complete a parenting class. [¶] 5. That the mother complete a substance abuse assessment and follow recommended testing and/or treatment. [¶] 6. That the mother maintain regular contact/visitation/involvement with the child as arranged by the supervising worker. [¶] 7. That the mother obtain and maintain stable and appropriate housing. [¶] 8. That the mother maintain contact with the supervising worker. (Bolding omitted.) The court set a six-month review hearing for December 16, 2010. Six-Month Review The six-month review report, filed by the department on December 3, 2010, recommended that reunification services for mother be terminated. The report provided: The mother has failed to maintain contact with the [d]epartment. The undersigned last 3 met with the mother on 08/27/10. The mother does not have a working telephone number but confirmed a mailing address. Letters were sent to her mailing address, but the mother has failed to respond. On 09/20/10, the mother stopped visiting her son. The report also stated: Gary [C.] attends therapy twice a week . . . at A Better Way. Gary [C.] has struggled with the loss of his mother and exhibits high levels of anxiety when his mother misses visits. . . . The foster parent reports he has enuresis and encopresis following missed visits with his mother. The same interim report also indicated: The mother was provided with supervised therapeutic visitation twice a week with A Better Way. However, the mother was often inconsistent in her attendance and was arriving over 30 minutes to an hour late or failed to attend visits. On 10/22/10, visitation was suspended by A Better Way due to several consecutive missed visits. . . . At this point, the mother must meet with the undersigned to resume visits through A Better Way. The mother has failed to be in contact with A Better Way or with the [d]epartment. The report continued: The mother has been referred to dual diagnosis residential programs, shelter programs, psychological evaluation . . . , individual therapy . . . , homeless prenatal, drug testing, and Bayview Family Resource Center. The mother was also given a Peer Parent for additional support. . . . [¶] . . . [¶] The mother met with her Peer Parent a few times but has failed to maintain contact with the Peer Parent, the undersigned, or any other [reunification] service providers. At the contested review hearing, on January 24, 2011, both mother and the social worker testified. The social worker testified that mother had not completed a mental health assessment, enrolled in individual therapy, enrolled in parenting classes, or submitted to a substance abuse treatment program, as required by the reunification plan. The social worker also testified that mother had not visited with Gary C. since 4 September 20, 2010. Mother had made a telephone call to Gary C. on December 1, 2010.4 Mother insisted that, after her visits with her son were suspended in October, [she] contacted [her] son every day. Specifically, mother testified: When I didn t have a regular phone, I was calling [Gary C.] like every other day, cuz I had to get to a phone. But I talked to my son every dang day. However, she conceded that her last visit with Gary C. was in September. After argument, the court indicated on the record: I ll tell you my problem right now is that . . . it is clear to me that either the phone calls from the mother did not occur, or they certainly were not reported to the [social] worker. . . . I think factually, it makes a substantial difference, in my opinion. . . . [¶] . . . [¶] . . . My real issue is did she really make all those phone calls? And if she did, that s different than if she didn t. Now we can call the foster mother . . . if she s available, have her come in. That . . . would take very few minutes . . . which I m also willing to do, because it is, in my mind, the main point. . . . Later, counsel for the department indicated: During the break in court proceedings, all counsel had a conference call with [Gary C. s] foster mother . . . , [and asked her] as to whether [mother] calls Gary [C.] on a regular basis and she said no. That the last phone call that mom and Gary [C.] have had was right after Christmas, and that before that, it has been at least two to three months. [Mother s counsel] confirmed that all phone calls with mother and Gary [C.] must go through [the foster mother], and that there wasn t any way that the mom could just call Gary [C.], have him pick up the phone without the foster mother s knowledge. Thereafter, the court stated: Fine. My 4 On cross-examination, the social worker testified that [the December phone call] was not the only telephone call in the previous six month period. It was just the first phone call in a . . . while, from what it sounded like from the foster parent. [¶] . . . [¶] . . . I don t have exact dates of when she called. It sounds like there was a phone call made in November requesting that the foster parent bring Gary [C.] to . . . the grandmother s house, I guess, for a Thanksgiving visit . . . . But I don t have a documented contact indicating the phone call previously to request that Thanksgiving visit. 5 question is answered then. And in my mind, it s resolved, meaning the issue of whether there was that level of contact. The juvenile court found that return of Gary C. to mother would create a substantial risk of detriment. The court concluded that the department had provided reasonable services to mother and that her progress was minimal to none. Mother s reunification services were terminated and a section 366.26 hearing was scheduled. This writ proceeding followed. II. DISCUSSION Mother contends that the juvenile court was obligated to continue family reunification services until the 12-month review hearing. Her argument actually has two parts. First, she argues that the juvenile court lacked the authority to terminate family reunification services after six months. Next, she argues that, even if the juvenile court had the authority to terminate her services, the court s implicit findings are not supported by substantial evidence. Mother s position that she was entitled to at least 12 months of family reunification services because Gary C. was over the age of three years when detained rests on a misunderstanding of the governing law. Section 361.5, subdivision (a)(1)(A), provides: Family reunification services, when provided, shall be provided as follows: [¶] (A) Except as otherwise provided in subparagraph (C), for a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was three years of age or older, court-ordered services shall be provided beginning with the dispositional hearing and ending 12 months after the date the child entered foster care as defined in Section 361.49, unless the child is returned to the home of the parent or guardian. Before its amendment in 2008, former section 361.5, subdivision (a)(1), had stated that services, when provided for a child over the age of three, shall not exceed a period of 12 months. (See Stats. 2007, ch. 583, § 25.5; Stats. 2008, ch. 457, § 1.) The amendment was a response to In re Derrick S. (2007) 156 Cal.App.4th 436 (Derrick S.), in which Division Two of this court held that a juvenile court conducting a dependency 6 for a child above the age of three retains the discretion to terminate the provision of reunification services before expiration of the 12-month period. (Id. at p. 449.) We need not decide whether the 2008 legislative amendment abrogated Derrick S. As mother herself concedes, section 361.5, subdivision (a)(2), provides, in relevant part: A motion to terminate court-ordered reunification services shall not be required at the hearing set pursuant to subdivision (e) of Section 366.21[5] if the court finds by clear and convincing evidence one of the following: [¶] (A) That the child was removed initially under subdivision (g) of Section 300 and the whereabouts of the parent are still unknown. [¶] (B) That the parent has failed to contact and visit the child. [¶] (C) That the parent has been convicted of a felony indicating parental unfitness. (Italics added.) Section 366.21, subdivision (e), itself provides a similar exception to the default 12-month rule: If the child was removed initially under subdivision (g) of Section 300 and the court finds by clear and convincing evidence that the whereabouts of the parent are still unknown, or the parent has failed to contact and visit the child, the court may schedule a hearing pursuant to Section 366.26 within 120 days. (Italics added.) It makes sense for the Legislature to permit the court to set the permanency planning hearing if the parent has not contacted or visited the child for six months. Childhood does not wait for the parent to become adequate. [Citation.] (Sara M., supra, 36 Cal.4th at p. 1016.) Thus, despite recent legislative amendments to the statutory scheme, it is clear that the juvenile court has the authority to terminate reunification services at the six-month review when the parent has failed to contact and visit the child. (§§ 361.5, subd. (a)(2), 366.21, subd. (e).) At the six-month review hearing, the court must continue to offer reunification services pending a further review hearing unless it finds by clear and convincing evidence that an exception applies. (S.W. v. Superior Court (2009) 174 Cal.App.4th 5 Section 366.21, subdivision (e), governs the initial six-month review hearing. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009 (Sara M.).) 7 277, 281, citing Sara M., supra, 36 Cal.4th at pp. 1008 1009 & § 366.21, subd. (e).) Here, the juvenile court terminated reunification services for mother, implicitly finding that she had failed to contact and visit Gary C. during the six-month review period. Mother argues that this finding is not supported by substantial evidence, pointing out that it is undisputed that [she] visited with the minor up until September 27, 2010 and had telephone contact with the minor at least once in the month of December. When we review the juvenile court s findings for substantial evidence,6 [w]e do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) We uphold the court s findings if [they are] supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. [Citation.] (Ibid.) The record, viewed in the light most favorable to the judgment, shows that mother last visited Gary C. on September 20, 2010, and that she called him once in December. However, nominal or casual contact does not preclude the application of section 366.21, subdivision (e). (In re Tameka M. (1995) 33 Cal.App.4th 1747, 1754 [ whatever nominal contact [mother] may have had with [her child] at the paternity testing site was insufficient to contradict the court s finding of no contact or visitation ].) In Sara M., the mother had one short visit with her child during the six-month review period, but our Supreme Court nonetheless affirmed the juvenile court s order finding a failure to contact and visit, under section 361.21, subdivision (e). (Sara M., supra, 36 Cal.4th at pp. 1017 1018.) We decline to distinguish Sara M. because mother also 6 None of the authority relied on by mother supports her argument that abuse of discretion is the applicable standard of review. (See In re Stephanie M. (1994) 7 Cal.4th 295, 316 319 [applying abuse of discretion standard to juvenile court s denial of placement change motion]; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300 [ [w]e normally review the juvenile court s decision to terminate dependency jurisdiction and to issue a custody . . . order pursuant to section 362.4 for abuse of discretion ]; Cal. Rules of Court, rule 8.452.) 8 called her child once or twice during a six-month period.7 (See S.W. v. Superior Court, supra, 174 Cal.App.4th at p. 283 [ [o]ne telephone conversation in six months is not substantial contact ].) Substantial evidence supports the juvenile court s implicit finding that mother did not contact and visit Gary C. during the six-month review period. The juvenile court did not err by terminating reunification services and setting a permanency planning hearing. III. DISPOSITION The writ petition is denied on the merits. The request for a stay is also denied. _________________________ Bruiniers, J. We concur: _________________________ Simons, Acting P. J. _________________________ Needham, J. 7 Even if the trial court had believed mother s assertion that she called Gary C. every day, we would not necessarily reach a different conclusion. The parent must both contact and visit the child to receive additional reunification services and a further review hearing. Rephrased in logically equivalent terms, the failure either to contact or visit the child allows the court to terminate services. (S.W. v. Superior Court, supra, 174 Cal.App.4th at p. 282.) We need not decide the issue because the record suggests that the trial court did not find mother s testimony credible. 9
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