Filed 6/12/13 In re Joey H. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JOEY H. et al, Persons Coming Under
the Juvenile Court Law.
D063258
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. EJ3123A-B)
Plaintiff and Respondent,
v.
MICHELLE R.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Carol Isackson,
Judge. Affirmed.
William Hook, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
Michelle R. appeals juvenile court orders made at a six-month review hearing and
Welfare and Institutions Code,1 section 388 hearing concerning her children, Joey H. and
Kylie H. She contends insufficient evidence supports the court's finding that she was
provided reasonable reunification services; the court abused its discretion by granting a
388, subdivision (c) petition by the San Diego County Health and Human Services
Agency (the Agency) to terminate her reunification services; and the court abused its
discretion and violated her due process rights by denying her request for a continuance of
the hearing. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Joey and Kylie first became dependent children of the juvenile court in July 2009
based on their father, E.H.'s, and Michelle's use of methamphetamine and histories of
substance abuse. The children were placed together in a foster home. Michelle and E.H.
participated in the services offered to them, including substance abuse treatment,
parenting education and therapy. After Michelle completed residential treatment, the
children were returned to her care. In March 2011, the court awarded custody to her and
terminated jurisdiction.
1 Statutory references are to the Welfare and Institutions Code.
2
In March 2012, the Agency petitioned again under section 300, subdivision (b) on
behalf of Joey and Kylie. The petitions alleged the family home contained a small baggy
of amphetamine and drug paraphernalia within reach of the children, and Michelle
admitted she was again using methamphetamine, alcohol and marijuana. The court found
the allegations to be true, declared the children dependents of the court, ordered Michelle
and E.H. to comply with the provisions of their case plans, and ordered the children
placed with a nonrelative extended family member. The children were placed with the
family who had cared for them during their first dependencies. In August 2012, the court
granted the caregivers' request to be named the children's de facto parents.
Michelle had first used methamphetamine in 1995. She had lost custody of her
first child to that child's father after she refused the services that were offered to help her
deal with her substance abuse issues. When she met with the social worker in March
2012, she said she had resumed using methamphetamine again only 10 days earlier. She
admitted drinking and using marijuana occasionally and said she had had domestic
violence incidents with E.H. She wavered between saying she needed reunification
services and saying she had already done services and they were not effective.
Michelle did not participate in her services plan and was terminated from Drug
Court. In September, a felony burglary warrant was issued for her arrest. E.H. also was
not participating in services.
On October 30, 2012, the Agency petitioned under section 388, subdivision (c),
requesting that the court terminate reunification services and set a section 366.26 hearing.
It later withdrew its petition with regard to E.H. because he appeared willing to engage in
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services and was having unsupervised visits with the children. In December, Michelle's
therapist reported Michelle had called him saying she wanted to stop therapy. He said
she was either high on methamphetamine or having a psychotic episode. Michelle then
missed an appointment to enter drug treatment.
At the six-month review hearing and hearing on the Agency's section 388,
subdivision (c) petition on December 20, 2012, the court denied Michelle's counsel's
requests to continue the hearing to allow Michelle to present information on her recent
participation in Alcoholics Anonymous and Narcotics Anonymous (AA/NA) meetings.
The court stated it would make provision for the information to be presented to the court
if it were established that the information was reliable and shown to exist. During
testimony, the social worker reported she had met with Michelle about four times and
they had had numerous telephone conversations about Michelle's case plan. She said
Michelle called her many times, sometimes as much as three times a day. She said
Michelle was very argumentative, had trouble staying focused and had left yelling,
threatening voice mail messages for the social worker. When Michelle was asked to
stipulate to her claim that she had participated in substance abuse treatment in
Los Angeles, she declined to do so.
After considering the evidence and argument by counsel, the court found Michelle
and E.H. had been provided reasonable services. It granted the Agency's petition under
section 388, subdivision (c) to terminate Michelle's services, continued services for E.H.,
and continued the children's placement.
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DISCUSSION
I
Michelle contends there was not substantial evidence presented to support the
finding she was provided reasonable reunification services. She argues the Agency did
not correctly implement her reunification plan in that it did not provide adequate
assistance with transportation, require enough drug testing, or properly address her
mental health issues, and the social worker did not maintain sufficient communication
with her.
In determining the sufficiency of reunification services the role of the appellate
court is to decide "whether the record discloses substantial evidence which supports the
juvenile court's finding that reasonable services were provided or offered." (Angela S. v.
Superior Court (1995) 36 Cal.App.4th 758, 762.) The standard is not that the best
possible services were provided, but that reasonable services were provided under the
circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) "Reunification services
are voluntary, and cannot be forced on an unwilling or indifferent parent." (In re
Jonathan R. (1989) 211 Cal.App.3d. 1214, 1220.) A parent's problems do not excuse
him or her from participation in a reunification plan. (Angela S. v. Superior Court, supra,
36 Cal.App.4th at p. 762.)
Substantial evidence supports the finding Michelle was offered or provided
reasonable reunification services. During the children's previous dependency period, she
was able to retain custody through her commitment and participation in residential drug
treatment, Drug Court, parenting classes and therapy. She, thus, knew what she needed
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to do in order to reunify. After the children were removed this time, she was offered
services with the primary objective of helping her stay free from substance abuse and
provide adequate care for her children. She was expected to complete a psychological
evaluation, enroll in parenting education, meet with a substance abuse specialist and
abide by all recommendations, have residential drug treatment, drug test, participate in
therapy, and have regular visits with the children. Michelle, however, did not work on
the provisions of her reunification services, but continued to use drugs.
Michelle was offered opportunities to participate in all of the components of her
services plan. She was scheduled to have a psychological evaluation, but missed the
appointments that were made and an evaluation was never completed. She agreed to
have in-home parenting instruction, but did not respond to voice mail messages left for
her by the parenting instructor. She did not meet with a substance abuse specialist as
required, did not enroll in substance abuse treatment and did not complete clean drug
tests. As for her claims she needed more help with transportation, Michelle did not pick
up bus tokens the social worker left for her. The social worker explained Michelle was
not eligible for a replacement compass card to assist with transportation because she was
not participating in her services.
Although we agree it is best for a social worker to have regular, recurring
communication with a parent, here there were significant impediments to the social
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worker keeping in more continuous contact with Michelle.2 The social worker testified
she believed she would be able to communicate effectively with Michelle only after
Michelle became clean and sober and had assistance with her mental health issue. She
said when she called Michelle it was usually to address a narrow issue because during
telephone calls Michelle easily got off track and repeated the same conversation over and
over. Such conversations were not helpful in assisting Michelle to begin to participate in
and progress with the components of her reunification plan. The social worker said she
had not gone to Michelle's home because Michelle said she did not have a home, and she
had not met in person with Michelle during two months of the case because Michelle did
not have a reliable telephone number where she could be reached. However, the social
worker said that she tried to respond to Michelle's telephone calls promptly if Michelle
had a specific request, and she had left many voice mail messages for Michelle. Although
the social worker did not always have monthly meetings with Michelle, when we
consider all of the evidence together, we conclude she kept adequate contact with
Michelle and provided sufficient assistance. Here, there was substantial evidence to
support the finding Michelle was provided reasonable reunification services.
2 We note the court explored the issue of the social worker's and Michelle's
communications by asking the social worker about her contacts with Michelle and
questioning why she had not set up additional meetings.
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II
Michelle asserts the court abused its discretion by granting the Agency's motion to
terminate her services. She argues she showed she was likely to reunify because she had
been visiting the children and was starting to participate in services.
When a juvenile court removes a child who is three years old or older from
parental custody, the parents are generally entitled to 12 months of reunification services.
(§§ 361.5, subd. (a)(1)(A), 366.21, subd. (f).) However, a party may petition under
section 388, subdivision (c) for the court to terminate services before the 12-month date.
Section 388, subdivisions (c)(1)(B) and (c)(3) provide the court shall terminate
reunification services if it finds the action or inaction of the parent has created a
substantial likelihood that reunification will not occur and that reasonable services were
offered or provided. In making its determination, the court considers factors such as the
parent's failure to visit the child or participate regularly and make substantive progress in
a court-ordered treatment plan. (§ 388, subd. (c)(1)(B).) A court has discretion to
terminate services for one parent even when ordering services for the other parent. (In re
Jesse W. (2007) 157 Cal.App.4th 49, 58; In re Alanna A. (2005) 135 Cal.App.4th 555,
565; In re Katelynn Y. (2012) 209 Cal.App.4th 871, 880.)
The court did not abuse its discretion by terminating Michelle's reunification
services. Reasonable services were offered and provided to Michelle, but she did not
participate regularly in the court-ordered services offered to her. She had struggled with
drug addiction for about 17 years and she drank alcohol and used marijuana. She did not
meet with a substance abuse specialist or enroll in a treatment program as required by her
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case plan. She requested a referral to Drug Court, but did not appear for the Drug Court
hearings and was terminated from the program. Also, she did not successfully drug test.
Michelle agreed to have a psychological evaluation, contact her former therapist
so that she could restart therapy and have in-home parenting training, but she did not
follow up on these resources and did not return messages left for her. She did not show
that she was starting to participate in her services plan. Michelle has not shown the court
abused its discretion in terminating her reunification services.
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III
Michelle also maintains the court abused its discretion and violated her rights to
due process by denying her request for a continuance. She argues she showed good cause
to continue the hearing because she needed time to produce proof she had participated
and progressed in services, and the court denied her the right to present her case.
The juvenile court may grant a continuance only on a showing of good cause.
"[T]he court shall give substantial weight to a minor's need for prompt resolution of his or
her custody status . . . ." (§ 352, subd. (a).) "Continuances are discouraged [citation] and
we reverse an order denying a continuance only on a showing of an abuse of discretion
[citation]." (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
"[D]ue process requires 'notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections.' [Citation.]" (In re Melinda J. (1991) 234 Cal.App.3d 1413,
1418.) "The essence of due process is fairness in the procedure employed . . . ."
(Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.)
Michelle has not shown the court abused its discretion by denying her request for a
continuance. Michelle's counsel made an oral motion to continue the hearing 15 minutes
after the time set for the hearing to begin when Michelle had not yet arrived. After
Michelle arrived, counsel again renewed the motion and explained Michelle said she had
several months of NA/AA meeting slips that she wanted to submit, but she had not
brought them to court. The court denied the request, but indicated the information could
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be presented if it were shown to be reliable and to exist. Michelle, however, did not
testify and she declined to stipulate to her claim she had participated in substance abuse
treatment in a Los Angeles program. She had notice and an opportunity to be heard. She
has not shown the court abused its discretion by denying her request for a continuance of
the hearing and she has not shown a denial of due process.
DISPOSITION
The orders are affirmed.
HALLER, J.
WE CONCUR:
McCONNELL, P.J.
AARON, J.
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