Filed 11/21/14 C.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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



C.B.,

         Petitioner,                                                     E061944

v.                                                                       (Super.Ct.No. J251535)

THE SUPERIOR COURT OF                                                    OPINION
SAN BERNARDINO COUNTY,

         Respondent;

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,

         Real Party in Interest.




         ORIGINAL PROCEEDINGS; petition for extraordinary writ. Lily L. Sinfield,

Judge. The petition is denied.

         Friedman, Gebbie, Cazares & Gilleece, Jasmine Pico, for Petitioner.

         No appearance for Respondent.




                                                             1
       Dawn M. Messer, Deputy County Counsel, and Jean-Rene Basle, County Counsel,

for Real Party in Interest.

       A dependency petition was filed with respect to the minor, S.B., on June 28, 2013,

in San Diego County alleging that petitioner C.B. (mother) had failed to protect her due

to mental illness and substance abuse. (Welf. & Inst. Code, § 300, subd. (b).)1 The San

Diego social worker reported that the minor’s maternal grandparents had brought her in

for a four-month checkup in April 2013, at which time she had a severe case of cradle

cap. The grandparents had gone to visit Mother and been concerned at the messy, dirty

state of the house and because Mother was smoking marijuana and behaving erratically.

The grandparents also reported that Mother had a history of prostitution and her landlord

was complaining about frequent and numerous male visitors. Mother was 26 years old at

the time the petition was filed.

       When contacted by the child services agency in April or May 2013, Mother

reported being bipolar and to also have been diagnosed with attention deficit

hyperactivity disorder and posttraumatic stress disorder, among other ailments. She was

not then on medications, but after agreeing to voluntary services and that the minor

would stay with the grandparents for the time being, she was prescribed Abilify and

Seroquel.




       1 All subsequent statutory references are to the Welfare and Institutions Code
unless otherwise specified.


                                            2
       During the period of voluntary services, Mother was allowed to visit with the

minor daily, but on most days did not take advantage of this opportunity. When she took

the minor to her apartment (which the grandparents were paying for), she would often

call her father and say that she “couldn’t handle” the baby because the latter was fussy or

crying. As much as two weeks might go by between visits. Mother declined the offered

in-home services, and, when she lost her housing, she refused to provide her new address

to the agency. On June 11, 2013, she was asked to drug test, and refused, saying she

would give up the minor to the grandparents. The formal petition followed.

       The report prepared for the jurisdictional/dispositional hearing reflected that

Mother admitted multiple arrests, specifying only one for public intoxication and one for

simple assault. She related her criminal troubles to a period during which she was being

“trafficked.”2 Mother reported that her “drug of choice” was marijuana, although she

denied current use. She also reported using cocaine and ecstasy, as well as one use of

methamphetamine.

       Mother further stated that she had been to therapy and that “I like going to

therapy,” but could not provide any examples of coping skills she had learned.

       Mother’s father, the current caregiver, reported that at visits Mother tended to use

the baby to calm herself, like a child with a doll, and frequently ended visits early

because she could not deal with the child’s crying. Mother also reported abusive


       2Although the report indicates that Mother was forthcoming about her
experiences, it contains no details.


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relationships both with a pimp and with the father of the minor.3 The social worker had

also uncovered Mother’s extensive criminal history, with multiple arrests and convictions

involving disorderly conduct, prostitution, and possession of marijuana.

       While awaiting the eventual jurisdictional/dispositional hearing, Mother was given

a random drug test in August 2013, which returned positive for amphetamines and

marijuana. However, Mother had been attending domestic violence support groups and

also “self-esteem/art therapy” and parenting education.

       At the hearing, Mother waived her rights and submitted on both jurisdiction under

section 300, subdivision (b), and disposition (continued placement with the maternal

grandparents). The court made the findings and disposition as requested by the agency.

Finally, as Mother had moved to San Bernardino County, the court granted her request to

transfer the matter to that jurisdiction.

       At Mother’s first contact with San Bernardino social workers in December 2013,

she refused to sign the case plan. In the report prepared for the six-month review hearing,

the social worker recommended extending services. However, it was noted that Mother

“appears to be struggling with remaining sober and maintaining [sic] her anger.” She had

been uncooperative with drug testing but did test positive for marijuana in January 2014.

She told the social worker that she had begun counseling and outpatient services, but had

not completed them. Services were continued.




       3   The minor’s father is not in the picture and is not a party to this petition.


                                                4
       The report prepared for the 12-month review hearing reflected that although

Mother had engaged in some counseling sessions in early 2014, she had also missed

several appointments, and, in the opinion of the therapist, was failing to address her

issues and not making progress. She was then terminated from the program.

       Additional referrals were given, but Mother resisted outpatient drug treatment

because she insisted that she used “medical marijuana” and the social worker did not

“understand.”4 She also claimed that because she was attending school, she could not

meet the requirements of her case plan. Mother missed some drug tests and consistently

tested positive for marijuana when she did test.

       Mother was given an additional set of referrals for outpatient and general

counseling and provided bus passes and transportation.

       In May, the social worker made an unannounced visit to Mother’s apartment but

was refused admission. Mother became upset about “Children and Family Services

jerking her around,” and told the social worker that she “[would] talk to her attorney”

because “she doesn’t believe smoking marijuana is a drug.”5 Also at that time, the social

worker urged Mother to complete her programming because she had been terminated

from her substance abuse counseling.




       4 The social worker asked Mother to provide documentation that her marijuana
use was health-related, but she failed to do so.

       5   She also said she had a “business” selling crafts which she made at school.


                                              5
       After a positive drug test in July and after being again reminded about the need for

substance abuse treatment, Mother became “highly upset” and stated that the social

worker “did not understand.” She told the social worker that her current therapist had

been “fired” and was given another referral. The counseling agency told the social

worker that Mother had not been in since March 2014.

       In early August 2014, Mother contacted the social worker and said that she had an

appointment with Lutheran Social Services for August 8 and an appointment with an

outpatient program scheduled for August 13. It was also noted that Mother behaved

appropriately during visits with the minor and that there appeared to be a bond between

the two, although the minor bore the separations with equanimity. Mother also provided

a medical marijuana authorization dated September 22, 2014, and therapist notes for four

visits. In the first note, the therapist noted that Mother blamed her stepmother (her

father’s wife) for her problems and did not take any responsibility for the child’s

removal. The second note reflected that Mother admitted that the minor’s severe case of

“ ‘cradle cap’ ” might have contributed to removal and explained that she cannot perform

a drug-related outpatient program because she takes “certain medications for her bipolar

disorder” that are not on the “ ‘safe’ ” list. The third note describes Mother as “hopeful,”

“happy,” and in “denial” about her situation. The fourth note gave her mood as “labile”

and noted that Mother appeared more willing to accept the seriousness of the

circumstances.




                                             6
       The 12-month review hearing was held September 24, 2014. Mother testified that

she had completed eight counseling sessions and that they were “okay.” She also

claimed that she had not used marijuana for three months, despite having obtained a

doctor’s authorization two days earlier. She testified that she had gone to an outpatient

program intake the Thursday before the hearing, but the program employees refused to

take her because she was still using at least five other medications for her mental health

issues. However, she also testified that she had contacted her physician to see if she

could change medications and qualify for the outpatient program. She had a new

appointment for the latter scheduled for October 28.

       Asked why she had delayed trying to get into an outpatient substance abuse

program, Mother said, “I misunderstood,” and that she had had earlier difficulties

qualifying for her program due to her prescribed medications. Asked if she were willing

to complete her services, she responded, “If that’s what the Court wants me to do, then

that’s what I have to do to get my daughter back.”

       On cross-examination, Mother admitted receiving earlier referrals and not

following up. She admitted that she had not allowed the social worker into her home in

May, but testified that it was because the home was not yet “ready for an inspection.”

She further admitted that the home was still not safety-proofed for a small child.




                                             7
       The trial court followed the recommendation and terminated services.

       On this petition, Mother argues that the trial court applied an incorrect standard

and that she should have been provided additional services up through the 18-month date,

which she calculates as December 28, 2014. We find her premise unpersuasive.

                                       DISCUSSION

       In explaining its decision, the court remarked, “what I’m looking for right now

because I’m required to look for it at the one year review is whether or not your daughter

can go home today.” As Mother points out, this is an incorrect statement of the law. The

standard at the 12-month review hearing is whether there is a “substantial probability that

the child will be returned to the physical custody of his or her parent . . . and safely

maintained in the home” within the outer 18-month period. (§ 366.21, subd. (g)(1).)

       However, within a few moments the court commented that Mother had not even

progressed to unsupervised visits and continued, “I cannot make, based on the level of

progress, the finding that your daughter can go home in an extended time period even

though it’s short. I have to first make a finding before I can get to that.” (Italics added.)

We interpret this as recognizing that a certain time remained in the potentially available

reunification period “even though it’s short.” This is buttressed by the fact that both

county counsel and the minor’s attorney noted in their argument that time remained

available: the county counsel stated that “the Department doesn’t believe that there’s

really any chance of Mother reunifying by the December date”, and minor’s counsel

agreed, commenting that “it does not appear that there’s a substantial likelihood that the



                                               8
mother would be able to complete services and show benefit and ability to take the child

into her home by the time of the 22 which sounds like late December.”

       We therefore conclude without difficulty that the trial court applied the correct

standard.

       We also reject Mother’s argument with respect to the merits of the decision, which

we review for substantial evidence. (Tracy J. v. Superior Court (2012) 202 Cal.App.4th

1415, 1424.) At the time of the hearing, only three months remained even in the

extended reunification period. Although Mother had begun to participate in counseling

and had made efforts to enter an outpatient drug program, she had essentially wasted a

year of the available time. Under section 366.21, subdivision (g)(1), services may only

be extended to the 18-month limit if the parent has already made “significant progress”

and “has demonstrated the capacity and ability . . . 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.” Given her late start at real efforts and her repeated

refusal to cooperate with the social worker, the trial court could not reasonably have

made such a finding. On the other hand, the court’s statement that it did not believe that

Mother would reunify with the minor within the extended period was supported by

substantial evidence.




                                             9
                               DISPOSITION

     The petition is denied.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               HOLLENHORST
                                                         Acting P. J.
We concur:



RICHLI
                        J.



CODRINGTON
                        J.




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