Kimberly A. v. Superior Court

Filed 11/23/05 Kimberly A. v. Sup. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

KIMBERLY A., Petitioner, v. THE SUPERIOR COURT OF MADERA COUNTY, Respondent, MADERA COUNTY DEPARTMENT OF PUBLIC WELFARE, Real Party In Interest.

F048875 (Super. Ct. Nos. BJP015292, BJP015293, BJP015294, BJP015295, BJP015296) O P I N I O N

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy C. Staggs, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Kimberly C., in pro. per., for Petitioner.

No appearance for Respondent.

Douglas W. Nelson, Acting County Counsel, and William G. Smith, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner seeks extraordinary writ relief (Cal. Rules of Court, rule 38) from the juvenile court’s orders issued at a contested 12-month review hearing terminating her reunification services and setting a section 366.26 hearing^[1] as to her five children. She asks this court to order the children returned to her custody and to order that reunification services continue. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In May 2004, the Madera County Department of Public Welfare (department) took petitioner’s five small children into protective custody after confirming a report of child neglect. Petitioner and the children were living in travel trailer parked in an orchard. According to the responding social worker, the children were presented in various stages of undress (one of the children, a four-year-old, was completely naked) and appeared as if they had not been bathed in many days. They were dirty and had dirt-encrusted hair. The trailer was unsanitary and hazardous. A bucket in the bathroom substituted for the non-flushing toilet. Feces and urine in the bucket had drawn hundreds of flies. There were exposed wires near running water and a broken window with shards of glass accessible to the children. Petitioner explained that the children played in the dirt and that it was hard to keep the children clean. She also said that the owner of the trailer was going to fix the toilet and the broken window. Nevertheless, the children were removed and, on their way to emergency foster care, told the social worker that petitioner’s boyfriend hit and kicked her.

The department filed a dependency petition on the children’s behalf, alleging petitioner failed to provide the children adequate clothing and shelter, subjected them to an unsanitary and unsafe home environment and placed them at risk of abuse by exposing them to domestic violence. (§ 300, subd. (b).) The petition also alleged that the children’s fathers were incarcerated and unable to provide support. (§ 300, subd. (j).)

The juvenile court detained the children and set a contested jurisdictional hearing. In its jurisdictional report, the department recommended the court sustain the petition and offer petitioner a plan of reunification. The department also reported that petitioner was convicted in 1997 for felony possession of a controlled substance and in 2003 for cruelty to a child.

On June 9, 2004, the court conducted a contested jurisdictional hearing. Petitioner testified and denied any incidents of domestic violence. She acknowledged the family’s living situation was not ideal but maintained that she did her best to keep the children and the trailer clean and that she reported the safety hazards to the owner of the trailer. After argument, the court found the allegations true and set the matter for disposition.

The department’s dispositional report provided more detail concerning petitioner’s substance abuse history as well as information about her three older children who were no longer in her custody. According to the report, petitioner bore a son B. in 1987. In 1989, then two-year-old B. was removed from the custody of petitioner and her boyfriend after B. was examined in the emergency room for various injuries indicative of child physical abuse, including a broken leg, multiple bruises caused by a blunt object, bite marks, a contusion and a scar on top of his head. Petitioner was arrested for felony child abuse and B. was permanently removed from her custody. Petitioner also had a son in 1991 and a daughter in 1994. They were both living with their respective fathers.

The department also reported that petitioner admitted a history of marijuana, cocaine and methamphetamine use but stated that she had been drug-free since 1995. She denied any further problems with substance abuse.

On June 25, 2004, the court conducted an uncontested dispositional hearing. Petitioner was present and represented by counsel, who submitted on the department’s report. The court assumed dependency jurisdiction and ordered petitioner a plan of reunification that required her to maintain a clean and hazard-free home, complete a parenting course and attend individual counseling to address her issues of domestic violence, past substance abuse and the impact of her actions on her children. The court set the six-month review hearing for December 17, 2004, and advised petitioner of her right to appeal from the court’s dispositional findings and orders. Petitioner did not appeal.

The six-month review hearing was continued several times and conducted on March 9, 2005. In its status review prepared for the hearing, the department reported that petitioner was employed and completed a domestic violence course in November 2004. She visited the children regularly and the children reacted positively to her. However, on a random drug test conducted in September 2004, petitioner tested positive for methamphetamine. Consequently, the department revised her case plan in January 2005 to include random drug testing.

The six-month review hearing was continued several times and conducted on March 9, 2005. At the hearing, the court adopted the department’s recommendation to continue reunification services and set the 12-month review hearing for June 8, 2005.

Meanwhile, on March 4, 2005, the caseworker met with petitioner to review her progress with her case plan. The caseworker told petitioner she needed to participate in alcohol and drug counseling. The caseworker agreed to research specific agencies that could provide the counseling needed and to set up a follow-up meeting.

A follow-up meeting was scheduled on April 22, 2005. Petitioner was notified of the meeting but did not attend. The caseworker next heard from petitioner on June 13, 2005, when petitioner left her a voice message stating she would resume counseling on June 20, 2005. In the interim (June 8, 2005), petitioner tested positive for methamphetamine.

In its 12-month review filed on June 8, 2005, the department recommended the court terminate petitioner’s reunification services citing her failure to attend substance abuse counseling and to comply with the random drug-testing system. The department reported that the positive drug test in June 2005 was only one out of six drug tests petitioner was required to complete during the review period. She tested negative on March 29, 2005, and then failed to test on four other occasions. Despite the positive drug result, petitioner denied using drugs.

Petitioner challenged the department’s recommendation to terminate reunification services and the court conducted a contested 12-month review hearing on September 14, 2005. Petitioner presented evidence she completed a parenting program in January 2005. She also presented a letter verifying she enrolled in substance abuse counseling on June 13, 2005, and regularly attended biweekly group sessions and weekly self-help meetings. She testified she last used methamphetamine on June 10, 2005. She did not know how long she would need drug treatment.

Petitioner’s caseworker testified that drug counseling was part of petitioner’s case plan all along. The only change the department made to petitioner’s case plan after the positive drug test in June 2005 was to test her more often.

Following testimony, county counsel argued petitioner failed to comply with her case plan and there was no evidence that petitioner could complete her case plan requirements by the 18-month review, set for on November 11, 2005. Petitioner’s attorney argued petitioner made substantial progress and could complete her case plan if services were continued to the 18-month review hearing.

The juvenile court found it would be detrimental to return the children to petitioner’s custody and that continued out-of-home placement was necessary. The court also found petitioner was provided reasonable services but that she had not made significant progress toward resolving the problems necessitating the children’s removal. In so finding, the court specifically commented on the drug test results and petitioner’s yearlong delay in participating in drug treatment. The court further terminated reunification services and set a section 366.26 hearing for January 13, 2006. Petitioner challenged the court’s findings and orders by extraordinary writ petition and appeared before this court for oral argument on November 21, 2005.

DISCUSSION

Petitioner argues drug use was not the reason the children were removed from her custody and therefore the juvenile court erred in focusing on that one issue. She also argues that she substantially complied with her case plan and that substantial compliance warrants continued services. We disagree.

The role of the juvenile court in dependency proceedings is to protect the safety and welfare of minor children adjudged dependents of the court. The juvenile court’s authority to act is premised on true findings the minor children are described by any of the subparagraphs of section 300. In this case, with respect to petitioner, the court found true allegations that petitioner’s children were at risk of harm because they were living in unsafe and unsanitary conditions and because they were exposed to domestic violence. These factual findings empowered the juvenile court to assume dependency jurisdiction and formed the basis from which the department tailored a plan of reunification specific to the family’s needs.

While petitioner’s drug use was not an immediate cause of the children’s removal, it was known to the department and the court from the inception of these proceedings. On that basis, the court could reasonably conclude that petitioner’s drug use was an obstacle to reunification that had to be addressed in her reunification plan even though drug use did not form the basis for the court’s assumption of jurisdiction. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.)

Further, drug counseling and drug testing were not made part of petitioner’s case plan in June 2005 as she argued at oral argument. Rather, the court ordered her to participate in substance abuse counseling when it approved her reunification plan in June 2004. Her plan was later modified to add random drug testing. Petitioner assented to these services by failing to challenge the reunification plan by direct appeal from the court’s dispositional orders and/or any subsequent orders. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Therefore the juvenile court properly considered petitioner’s compliance with drug counseling and random drug testing in deciding whether it would be detrimental to return the children to her custody and whether to continue reunification services.

Further, while petitioner summarizes the evidence most favorable to her position, we must determine whether substantial evidence supports the juvenile court’s orders and findings based on all of the evidence, favorable and unfavorable. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694.) Section 366.21, subdivision (f), the statute operative at the 12-month review hearing, allows the juvenile court to order continued removal if it finds that return to parental custody would create a substantial risk of detriment to the children’s safety, protection, or physical or emotional well-being. (§ 366.21, subd. (f).) The parent’s failure to participate regularly and make substantive progress in a court-ordered treatment program is prima facie evidence of detriment. (Ibid.)

Though petitioner regularly participated in many aspects of her case plan, she had an underlying drug problem that she left unresolved. She waited a full year after the children were removed to begin drug treatment and there is evidence that she had relapsed. That evidence alone constitutes prima facie evidence that it would be detrimental to return the children to her and supports the court’s decision to retain the children out of the home.

Furthermore, at this stage of the proceedings, the court properly terminated reunification services and set the section 366.26 hearing. In light of the reasonable services offered petitioner, the law required the court to act as it did unless petitioner could show a substantial probability her children could be returned to her custody within another two months. (§ 366.21, subd. (g)(1).) A substantial probability of return exists when the parent regularly visits the child, makes significant progress in resolving the problem requiring removal of the child, and demonstrates the capacity and ability to complete the objectives of the case plan and provide for the child’s safety, protection and well-being. (Ibid.)

This record is devoid of any evidence favoring a substantial probability of return. On the contrary, the evidence suggests petitioner experienced an attenuated relapse to which her response was denial and avoidant behavior. She waited a full year to seek drug treatment undoubtedly prompted by the threat of permanently losing her children. Given petitioner’s extensive drug history and denial, she would be hard pressed to demonstrate significant progress in resolving her drug problem much less the ability to provide for and protect her children.

Nevertheless, nothing precludes petitioner from petitioning the juvenile court pursuant to section 388 to modify its order terminating reunification services based on a showing that circumstances have changed and that a modification based on that change would be in the best interests of the children. (§ 388, subds. (a) & (c).) However, on this record, we find no error.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Dibiaso, Acting P.J., Harris, J., and Cornell, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.