Filed 6/11/14 Sandra C. v. Super. Ct. CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



SANDRA C. et al.,                                                D065494

         Petitioners,                                            (San Diego County
                                                                 Super. Ct. No. J518551)
         v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

         Respondent;


SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,

         Real Party in Interest.


         PROCEEDINGS for extraordinary relief after reference to a Welfare and

Institutions Code section 366.26 hearing. Laura J. Birkmeyer, Judge. Petition denied;

request for stay denied.

         Dependency Legal Group of San Diego and Amanda J. Gonzales for Petitioner

Sandra C.
       Dependency Legal Group of San Diego and John P. McCurley for Petitioner

Ignacio C.

       Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Erica R. Cortez, Deputy County Counsel, for Real Party in Interest San

Diego County Health and Human Services Agency.

       Dependency Legal Group of San Diego and Lisa Storing for Minor.



       Sandra C. seeks writ review of a juvenile court order terminating reunification

services as to her minor son, Logan C., and setting a Welfare and Institutions Code

section 366.261 hearing. Sandra contends (1) the court erred by not continuing her

reunification services to the 18-month date; and (2) the San Diego County Health and

Human Services Agency (the Agency) failed to provide her with reasonable reunification

services.2 We deny the petition and Sandra's request for a stay of the hearing.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Logan was born in December 2011 and was detained on October 27, 2012, when

Border Patrol officers arrested Sandra at the border check point in Pine Valley for

transporting heroin and crystal methamphetamine in her car. Sandra was stopped at the

check point when she was returning from Centinela State Prison in Imperial where her

husband Ignacio was incarcerated. Her sister April and Logan were with her in the car.

1      Statutory references are to the Welfare and Institutions Code.

2      Logan's father, Ignacio C, filed a notice of intent to file a writ petition and a letter
joining in Sandra's brief.
                                               2
Sandra and Ignacio had planned for April to smuggle the drugs into the prison in her

vagina and pass them to Ignacio after taking Logan inside to visit him, but April refused

to go through with the plan. Sandra was not allowed on the prison grounds because she

was on probation for attempting to smuggle heroin into a jail through the mail.

       Police later searched Sandra's home and found balloons used to transport heroin

that were accessible to Logan in the room where she and Logan slept. They also found a

plastic bag containing marijuana by Logan's crib. An officer with the San Diego

Sherriff's Department informed the Agency that Ignacio was a gang member from Logan

Heights and a member of the Mexican Mafia with a significant criminal history and a lot

of power in prison and on the streets. He was a "go-to guy" for violence in and out of

prison." He had access to a cell phone in prison and used it to call Sandra and April to

ask them to do things for him, including asking Sandra to smuggle drugs.

       The Agency filed a petition on behalf of Logan under section 300, subdivision (g),

alleging that Sandra and Ignacio were incarcerated and unable to arrange appropriate and

adequate care for Logan. In December 2012, the Agency amended the petition to add a

count under section 300, subdivision (b), alleging that Sandra left Logan unattended and

inadequately supervised due to her arrest in October for transporting methamphetamine

and heroin with Logan present. The amended petition further alleged that Sandra

admitted she was transporting the drugs at Ignacio's direction and had done so before, and

that she was on probation for trying to smuggle drugs to him through the mail. Logan

was detained in the home of Sandra's cousin Laura M. At the jurisdiction and disposition



                                             3
hearing on December 27, 2012, the court sustained the amended petition, ordered

reunification services for both parents, and continued Logan's relative placement.

       The service objectives of Sandra's case plan included complying with court orders,

maintaining her relationship with Logan by following the conditions of the visitation

plan, staying sober and showing the ability to live free from alcohol dependency, staying

free from illegal drugs and showing the ability to live free from drug dependency,

complying with required drug tests, not breaking the law and avoiding arrests and

convictions, and showing knowledge of age appropriate behavior for Logan. The case

plan required Sandra to participate in weekly therapy "to address her self[-]esteem and

poor decision making that placed her child at risk." The plan also required Sandra's

participation in a substance abuse treatment program. The goal of that program and her

services in general was to become educated on the dangers of drug use and trafficking

and the risks they posed to her child, and how they affected her and her family.

       Sandra was incarcerated at the time of her arrest in October 2012 and was released

from work furlough on April 27, 2013.3 During her incarceration she attended a

parenting class, Narcotics Anonymous (NA) meetings, and an anger management class.

She also received a food handler's certificate and a certificate of completion for attending

seven classes of drug education. After her incarceration, Sandra attended a substance

abuse program called ParentCare in addition to NA meetings and other services. She had

fair attendance at ParentCare in May 2013 and poor attendance in June, and had not


3      Ignacio was released from prison around the same time that Sandra was released
from jail.
                                             4
completed any of the program's required assignments. She underwent a number of

random drug tests with negative results, and tested positive for tetrahydrocannabinol

(THC) on one test in June 2013. A counselor from ParentCare reported that Sandra

listened to her and was aware of what she (Sandra) was doing, but still had not realized

the danger she put Logan in when she transported drugs with him in the car.

       Sandra had six visits with Logan while she was incarcerated and in the work

furlough program and continued having supervised visits with him after her release.

Sandra was affectionate with Logan and happy to see him and he enjoyed visiting her. At

the contested six-month review hearing, the court found Sandra had made some progress

with her case plan, and Ignacio had not made substantive progress with his case plan.

The court continued reunification services for both parents.

       Sandra's updated case plan required her to address in group therapy her

understanding of what brought this case to the court's attention and to describe in detail

the risk of harm from trafficking drugs in the presence of Logan. She was directed to

write a letter explaining how selling drugs from her home could harm Logan "and exactly

how things would be different in the future so this does not happen again." Both parents

were ordered to participate in the dependency drug court.

       In its report for the 12-month review hearing, the Agency recommended that the

court terminate reunification services for both parents and set a section 366.26 hearing.

Ignacio had been incarcerated from August 19 to August 27, 2013, because his parole

officer found illegal drugs in his home. The parole officer also reported that Ignacio was

not participating in reunification services and had tested positive for drugs three times.

                                              5
On October 24, 2013, Ignacio was arrested for flash incarceration, possession of a

controlled substance for sale, possession of a narcotic controlled substance, possession of

burglary tools, possession of unlawful paraphernalia, first degree attempted murder, two

counts of evading police/disregard of safety, felon in possession of a firearm, possession

of ammunition by a person prohibited from owning a firearm, and receiving stolen

property. The attempted murder charge was based on Ignacio's allegedly shooting and

seriously wounding a San Diego police officer while trying to evade arrest on two felony

warrants.

       In August 2013, Sandra separated from Ignacio after she found out she was

pregnant with his second child. She told the Agency social worker she was thinking of

making it a permanent separation but changed her mind after Ignacio's arrest in October.

She said she "would not let him rot in prison" and that she visited him in jail as much as

she could. She appeared depressed and expressed doubt that she would be able to handle

Logan and a new baby or succeed in reunifying with Logan. She started individual

therapy and her therapist reported that Sandra was hearing voices and might have

depression with psychotic features. The therapist thought Sandra needed medication for

depression, but Sandra refused to take medication because of her pregnancy. The

therapist was concerned that Sandra's depression would prevent her from completing her

reunification services and recommended she undergo a psychiatric and psychological

evaluation.

       Sandra underwent a court-ordered psychological evaluation in November 2013.

When asked why she trafficked narcotics, Sandra told the evaluator, "I had a new baby,

                                             6
my husband was in prison, I couldn't make the bills, it was a quick way to make a lot of

money." She told the evaluator she had used cannabis daily between the ages of 12 and

19, but had been abstinent since her arrest in October 2012. The evaluator reported that

Sandra met the criteria for major depressive disorder and was debilitated by emotional

and cognitive symptoms. The evaluator concluded that Sandra did not appear to have

any cognitive or intellectual impairment that would prevent her from benefitting from

services, but it was unlikely she would meet expected goals by the "legal deadline of

December 18, 2013" because her emotional and psychological functioning had been

impeded by symptoms of severe depression and exacerbated by symptoms of pregnancy.

        An addendum report filed in February 2014 noted that Sandra's therapist stated

Sandra would not have any involvement with Ignacio if the Agency would tell her she

could not be with him. The social worker stated "the Agency could not tell [Sandra] who

[she could] be in a relationship with, but that is something she would have to decide

herself with the help of her services, including individual therapy." When the social

worker asked Sandra about her relationship with Ignacio, she said "he is still a person and

he just made a bad mistake." She continued to visit him and said he was supportive of

her and that they were in the process of agreeing on a name for their unborn daughter.

        Because she had poor attendance and was not making progress at ParentCare,

Sandra was referred to a different outpatient program at Family Harmony West Women's

Recovery Center (Harmony West). Sandra's case manager at Harmony West told the

social worker that Sandra was sometimes engaged in sessions and sometimes "just sits

there . . . and has a flat affect . . . ."

                                             7
       At the contested 12-month review hearing on February 14 and 18, 2014, the court

admitted all of the Agency's reports and an update letter from Harmony West into

evidence and heard testimony from the social worker, Sandra's therapist, and Sandra.

After considering the evidence and arguments of counsel, the court found the Agency had

provided the parents with reasonable services. The court further found return of Logan to

parental custody would create a substantial risk of detriment to Logan and there was no

substantial probability of his return to parental custody by the 18-month date.4

Accordingly, the court terminated reunification services and set a section 366.26

selection and implementation hearing.

       Sandra filed a petition for review of the court's orders and requested a stay of the

section 366.26 hearing. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court

issued an order to show cause, the Agency responded, and the parties waived oral

argument.

                                      DISCUSSION

                         I. Termination of Reunification Services

       Sandra contends the court erred by not continuing her reunification services to the

18-month date. We construe her argument as a challenge to the sufficiency of the




4      The court calculated the 18-month date to be "on or about the weekend of April
26, 2014."

                                             8
evidence to support the court's finding that there was no substantial probability that

Logan would be returned to her by the 18-month date.5

        Under section 366.21, subdivision (g)(1), the court may continue a case to the 18-

month date only if there is a substantial probability the child will be returned to the

parent's physical custody and safely maintained in the home by that time. In considering

whether to extend the case to the 18-month date, the court must find: (1) the parent has

consistently and regularly contacted and visited the child; (2) the parent has made

significant progress in resolving problems that led to the child's removal from parental

custody; and (3) the parent has shown "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), (B) &

(C).)

        Where, as here, the court is required to make factual findings, we review its

decision for substantial evidence. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th

676, 689-690; In re B.D. (2008) 159 Cal.App.4th 1218, 1232.) We do not consider the

credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the

evidence. Instead, we draw all reasonable inferences in support of the findings, view the

record favorably to the juvenile court's order and affirm the order even if there is

substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994) 24


5      Sandra does not address the applicable standard of review. She argues there is
sufficient evidence to support a finding of a substantial probability that Logan would be
returned to her custody by the 18-month date, but does not contend there is no substantial
evidence to support the court's finding to the contrary.
                                              9
Cal.App.4th 596, 610; Amanda H. v. Superior Court (2008) 166 Cal.App.4th 1340,

1346.) On appeal, the parent has the burden of showing there is no evidence of a

sufficiently substantial nature to support the court's finding or order. (In re L.Y.L. (2002)

101 Cal.App.4th 942, 947.)

       Although the court at the 12-month review hearing found that Sandra had made

some progress with parts of her case plan, it found, under section 366.21, subdivision (g),

that she had not shown the capacity and ability to complete the objectives of her

treatment plan and to provide for Logan's safety, protection, physical and emotional well-

being and special needs before the 18-month date, which the court noted was

approximately nine weeks away. Accordingly, the court found that return of Logan to

Sandra's custody would create a substantial risk of detriment to his physical and

emotional well-being. We conclude substantial evidence supports the court's findings.

       The objectives of Sandra's initial case plan included her staying free from illegal

drugs, not breaking the law and avoiding arrests and convictions, and showing knowledge

of age appropriate behavior for Logan. The case plan required her to address in therapy

"her self[-]esteem and poor decision making that placed her child at risk." The plan also

required her to educate herself on the dangers of drug use and trafficking and the risks

they posed to her child, and how they affected her and her family. Her updated case plan

required her to address in therapy her understanding of what brought this case to the

court's attention and to describe in detail the risk of harm from trafficking drugs in the

presence of Logan.



                                             10
       Thus, Sandra's relationship with Ignacio was central to her case plan, the main

goal of which was for her to understand how the drug trafficking and smuggling she had

engaged in at Ignacio's request put Logan at risk and prevented her from being able to

properly care for him. Substantial evidence supports the court's finding that Sandra had

not sufficiently met that goal. It is clear from the record that Sandra's criminal record

was solely the result of her relationship with Ignacio. As the court noted in its oral ruling

at the 12-month hearing, "from the very beginning and from the very language of the

amended petition in this case, it is quite clear that [Sandra] did not traffic alone in terms

of drugs, that she was persuaded—even while being on probation and even after

having . . . recently given birth to a child, she was persuaded to once again engage in drug

trafficking [by] her husband. And so there was a significant amount of risk-taking that

[Sandra] has engaged in after her first involvement in being arrested that [Sandra] is not

addressing and that she has not articulated and has not been addressed." The court

viewed Sandra as being susceptible to and at great risk of engaging in further criminal

activity with Ignacio, noting she had "already done it twice" and continued to "go back to

the person with whom she was criminally involved."

       The court based its determination that Sandra had not addressed how her decision-

making was influenced by Ignacio "in large measure on [its] observing her on the stand

and listening carefully to her testimony." The court noted Sandra "was very careful and

guarded in answering some questions particularly with respect to visitation and the child

with [Ignacio] while he's incarcerated and as well with respect to the underlying facts that

brought this case before the court. And so although she may have been hampered in the

                                              11
past by depression, I do find that [she] . . . [has] the intellectual capacity to appreciate the

significance and the connection between her relationship with [Ignacio] and continuing

ongoing criminal activity." The court later added: "[Sandra] has still not figured out her

role with respect to [Ignacio], and in large measure, I base this on my personal

observations of [Sandra's] testimony. There was a clear change in her demeanor. She

was far more guarded and far more[,] I think[,] protective of [Ignacio] and less willing to

disclose when it came to issues involving [Ignacio] and her relationship with him. And I

do not find that nine weeks based on this record is sufficient time even if [Sandra] were

to focus exclusively on that and no other issue in her life . . . ." It is well settled that we

must defer to the trial court's factual findings that are based on its assessment of live

testimony because " '[w]e review a cold record and, unlike a trial court, have no

opportunity to observe the appearance and demeanor of the witnesses.' " (In re Luke M.

(2003) 107 Cal.App.4th 1412, 1427; In re S.A. (2010) 182 Cal.App.4th 1128, 1140

[issues of fact and credibility are questions for the trial court].)

       Other evidence in the record apart from Sandra's live testimony supports the

court's finding of a great risk that Sandra would engage in future criminal activity with

Ignacio. Sandra admitted to an Agency social worker and her psychological evaluator

that she trafficked illegal drugs because she had a new baby, her husband was in prison,

she was having trouble paying bills, and trafficking drugs "was a quick way to make a lot

of money." As the Agency points out, the same circumstances existed at the time of the

12-month hearing—i.e., Sandra had a new baby on the way, she was unemployed, and

Ignacio was incarcerated and likely to remain so for many years.

                                               12
       Further, Sandra's therapist, Estela Bobadilla, testified that she had no knowledge

of Ignacio's criminal history. Noting that Sandra had been in treatment with Bobadilla

for seven months, the court reasonably inferred that "during that time, [Sandra had] not

disclosed some significant issues with respect to herself, and it appears actually that

[Sandra] steers the issues away from [Ignacio] . . . ." In August 2013 when Ignacio was

incarcerated for parole violations, Sandra told the social worker he was unavailable for a

scheduled visit with Logan because he was in the hospital with internal bleeding and

needed to undergo a procedure. Ignacio's parole officer informed the social worker that

Ignacio was actually in jail. The evidence that Sandra was not forthcoming with her

personal therapist about Ignacio's criminal history and lied to the Agency about his

whereabouts to avoid disclosing his incarceration further supports the court's finding that

returning Logan to her custody would create a risk of detriment to him—specifically, a

risk that she would engage in further criminal activity as a result of her relationship with

Ignacio. Substantial evidence supports the court's finding that there was no substantial

probability Logan would be returned to her by the 18-month date.

                             II. Sufficiency of Reunification Services

       Sandra contends the court should have continued reunification services to the 18-

month date because, in her words, "[a]ny finding that [she] failed to make progress in

resolving the reasons for removal is due to the Agency failing to provide reasonable

services[.]" She argues that her services were deficient because her case plan did not put

her on notice that she needed to address codependency, healthy relationships, or risk-

taking behavior, or that she should have no contact with Ignacio.

                                             13
       "The adequacy of reunification plans and the reasonableness of [the Agency's]

efforts are judged according to the circumstances of each case." (Amanda H. v. Superior

Court, supra, 166 Cal.App.4th at p. 1345.) The Agency "must make a good faith effort

to develop and implement a family reunification plan. [Citation.] ' "[T]he record should

show that the supervising agency 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 . . . .' " (Ibid.) The court's finding that

reasonable reunification services were offered or provided to a parent is reviewed for

substantial evidence. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.)

       We conclude substantial evidence supports the court's finding that the Agency

provided Sandra reasonable services. This dependency case arose entirely from Sandra's

trafficking illegal drugs at Ignacio's direction in an effort to get the drugs to him in prison

while she was already on probation for attempting to smuggle heroin to him in jail

through the mail. The court observed that the petition itself gave adequate notice that

Sandra's involvement with crime was an issue and Ignacio "was a factor in all of that."

Thus, Sandra's relationship with Ignacio led directly to Logan's removal and is at the core

of her reunification plan.

       As noted, Sandra's case plan included not breaking the law and avoiding arrests

and convictions, and showing knowledge of age appropriate behavior for Logan, and

required her to address in therapy her "poor decision making that placed her child at

risk." A principal goal of her services was for her to become educated on the dangers of

                                              14
drug use and trafficking and the risks they posed to her child, and how they affected her

and her family. Sandra's updated case plan required her to address in group therapy her

understanding of how this case originated and to describe in detail the risk of harm to

Logan from trafficking drugs in his presence. She was directed to explain in writing how

selling drugs from her home could harm Logan "and exactly how things [would] be

different in the future so this does not happen again." Based on these features of her case

plan, the court reasonably found that "at the beginning of this case there was sufficient

notice to [Sandra] that . . . [her] relationship with [Ignacio] . . . was something that would

need to be addressed."

       The court reasonably rejected Sandra's argument that Bobadilla could have

addressed the issue of Ignacio's power and control over Sandra in therapy, but did not do

so because she was not informed it was an issue Sandra needed to address. The court

stated it would "never tolerate a bait and switch with parents[,]" and found that the case

plan and other materials provided to Bobadilla, as well as Bobadilla's access to the social

worker, gave her "some indication that [Sandra's relationship with Ignacio] was

significant." The court stated: "The record clearly indicates that [Ignacio's] connection

to [Sandra's] risk-taking behavior and involvement in drug trafficking was known all

along. And it's clear from reviewing the reports that [Ignacio] is a topic of conversation

[between Sandra and Bobadilla], and, in fact, [Bobadilla's] very last treatment plan

update refers to [Sandra] considering divorcing him, and they must have discussed that he

was in jail and that he will be incarcerated for a long period of time. So the suggestion

that this was somehow a surprise and that [Sandra's] relationship with [Ignacio] had to be

                                              15
evaluated, to me, quite frankly, is stunning and not supported by the evidence." The

court concluded there was "nothing in [the] record that would suggest that [Sandra] was

denied reasonable services through Ms. Bobadilla . . . ."

       The court's essential finding that Bobadilla knew or should have known that

Sandra's relationship with Ignacio was an issue to be addressed in therapy is supported by

the evidence that Bobadilla told the social worker Sandra would not have any

involvement with Ignacio if the Agency would tell her she could not be with him, along

with the fact that Sandra's involvement in drug trafficking was a direct result of her

relationship with Ignacio and central to this case from the beginning. The court

reasonably found that Sandra's case plan provided adequate notice that she needed to

address her relationship with Ignacio to reunify with Logan, and that her relationship with

Ignacio was an issue that either was or should have been addressed in her therapy with

Bobadilla.

       Sandra suggests that she was denied reasonable services because the Agency did

not provide Bobadilla with a copy of her court-ordered psychological evaluation. The

evaluation report is dated December 13, 2013, but Bobadilla did not receive the report

until Sandra's counsel provided her a copy on January 22, 2014. The court found this

delay did not prejudice Sandra, based on Bobadilla's testimony that nothing would have

been different if she had received the report earlier because the evaluation essentially




                                             16
confirmed her impressions of the case and that Sandra's therapy was "on the right path."6

Bobadilla's testimony sufficiently supports the court's finding of no prejudice. Further, as

the Agency points out, the evaluation report was attached to the Agency's December 18,

2013 addendum report, and Sandra and her counsel were in court on that date and had

access to the report. Thus, Sandra could have discussed the report with Bobadilla before

Bobadilla received it in January 2014. The evidence sufficiently supports the court's

finding that the Agency provided Sandra reasonable services.

                                         DISPOSITION

       The petition is denied. The request for stay is denied.



                                                                      BENKE, Acting P. J.

       WE CONCUR:



                   McINTYRE, J.



                         IRION, J.




6      Bobadilla testified that obtaining Sandra's psychological evaluation earlier would
have "verified that [we were] on the right path," and would not have caused her to add
anything to Sandra's treatment plan.
                                            17
