Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review Super. Ct. No. 509786. Nancy B. Williamsen, Commissioner.
Tim Bazar, Public Defender, and Sophia Ahmad, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
John P. Doering, County Counsel, and Linda S. Macy, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Dawson, J.
Petitioner (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court’s order issued at a contested dispositional hearing on a supplemental petition (Welf. & Inst. Code, § 387) discontinuing reunification services and setting a section 366.26 hearing as to her daughter, M.T. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Dependency proceedings were initiated in January 2007 when the Stanislaus County Community Services Agency (agency) took petitioner’s then four-year-old son, J.D., three-year-old daughter, S.D., and two-month-old daughter, M.T., into protective custody after receiving a report petitioner chased J.D. around the house with a knife, threatening to kill him. J.D. and S.D. were placed with their father and M.T. was placed in a receiving home. Petitioner was arrested. She told the arresting officer she suffers from bipolar disorder but quit taking her medication approximately a year prior. She also said she tends to lose control easily.
The agency filed a dependency petition, which the juvenile court sustained. In February 2007, the court ordered petitioner to complete programs in parenting and domestic violence, participate in mental health counseling and take her psychotropic medication as prescribed.
In June 2007, petitioner was released from jail and placed on four years of felony probation. Over the course of the ensuing eight months, she complied with her medication treatment and participated in her services. At that time, the plan was to return the children to her custody by the end of March 2008. Consequently, at the 12-month review hearing in February 2008, the juvenile court granted the social worker discretion to arrange overnight visitation and set the 18-month review hearing for July 2008. In June, M.T. began a trial visit in petitioner’s home.
In its report for the 18-month review hearing, the agency recommended the juvenile court continue the hearing 60 days because of petitioner’s angry outbursts. In April 2008, she made a death threat to the father of J.D. and S.D., which was recorded on his telephone answering machine. Law enforcement was notified and petitioner’s probation was extended. In addition, the social worker noticed that petitioner became “very agitated” when she did not agree with visitation arrangements. She also acted agitated with other social workers when her caseworker was not available. Consequently, the caseworker suggested the court extend services another 60 days before returning M.T. to her custody to allow the caseworker to monitor the situation. Instead, the court returned M.T. to petitioner’s custody at the 18-month review hearing in July and set the family maintenance review for January 2009.
Over the next six months, M.T. remained in petitioner’s care and appeared bonded and content. Petitioner continued to participate in services and had nearly completed them with the exception of anger management, which she had to restart in December 2008 because of her nonattendance. In January 2009, petitioner’s counselor advised the agency petitioner was at risk of being placed “on hold” from the anger management program a second time for not attending sessions. In addition, the counselor was concerned about petitioner’s insight into her behavior and ability to modify not only because she had missed so many sessions, but also because she denied any nexus between her conduct and the agency’s involvement with her children, claiming she was wrongly accused. In addition, she had difficulty recalling concepts related to anger management that had been covered.
In January 2009, the juvenile court authorized another three months of services for petitioner and set the next review hearing for April. Meanwhile, in March, petitioner was arrested for stealing the debit card of M.T.’s former foster parents and purchasing over $4,000 worth of goods. She admitted to the emergency response social worker she had not taken her psychotropic medication for two weeks.
The agency filed a supplemental petition (§ 387) alleging M.T.’s return to petitioner’s care had not been effective in protecting her. M.T. was returned to the care of her former foster parents.
The juvenile court sustained the supplemental petition and set a hearing in May to determine the disposition of the case. In its report for the dispositional hearing, the agency recommended the court discontinue reunification efforts given the extensive services provided and M.T.’s need for permanent placement.
In May 2009, at a contested dispositional hearing on the supplemental petition, petitioner’s anger management counselor testified on cross-examination that petitioner had limited insight into what triggered her anger and minimal skills to control it. Petitioner testified she was sentenced to 150 days for her theft offense and was supposed to surrender herself to authorities at the end of the month. However, as an alternative, she planned to sign up for a work program or home detention before that time. If that failed, she arranged for her mother to take care of M.T. On cross-examination, petitioner acknowledged telling the social worker her mother was very abusive to her as a child, even hitting her on the head with a frying pan. However, petitioner stated her mother was no longer like that and was raising petitioner’s sister’s children. Petitioner stated she trusted her mother to take care of M.T.
Petitioner also testified she becomes angry when overwhelmed. When asked what overwhelms her, she identified anger management classes and weekly group sessions.
At the conclusion of the hearing, the juvenile court found there would be a substantial risk of danger to M.T. if placed in petitioner’s custody. Specifically, the court expressed concern about petitioner’s lack of judgment, particularly when not taking her medication, and her lack of anger management skills. The court was also concerned petitioner could be incarcerated and unavailable to care for M.T. and that petitioner’s mother may not be a suitable caregiver. The court denied petitioner further services and set a section 366.26 hearing to implement a permanent plan. This petition ensued.
DISCUSSION
Petitioner argues there was insufficient evidence to support the juvenile court’s removal order. She compares the riskiness of her behavior while not taking medication in January 2007 and March 2009 and contends, that while her assaultive behavior in January posed a substantial risk to the children, her thievery in March did not. She further contends the court’s concern she could not control her anger is not supported by the evidence and its concern she would not be available to care for M.T. was speculative. We disagree.
In order to remove a child from parental custody under a supplemental petition filed under section 387, the juvenile court must make the same findings as those necessary to remove a child from parental custody at the initial disposition hearing under section 361. (In re Javier G. (2006) 137 Cal.App.4th 453, 462.) Section 361, subdivision (c) provides in relevant part:
“A dependent child may not be taken from the physical custody of his or her parents... with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances...:[¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's... physical custody.”
In this case, the juvenile court found M.T.’s physical safety would be in jeopardy if she were in petitioner’s custody. We review this finding for substantial evidence, bearing in mind the heightened “clear and convincing” standard of proof required in the juvenile court. (In re Henry V. (2004) 119 Cal.App.4th 522, 528-529.) With due regard for the higher standard of proof, we nevertheless view the record in the light most favorable to the challenged order, drawing all reasonable inferences in support of that order. (In re Javier G., supra, 137 Cal.App.4th at pp. 462-463.) In light of the evidence, as summarized above, we conclude substantial evidence supports the juvenile court’s removal order.
As the juvenile court noted, the standard under section 361, subdivision (c) is whether parental custody poses a substantial risk and the evidence reflects that when petitioner is not medication compliant, she poses a serious risk of harm to her children. According to the record, the only reason petitioner stopped chasing J.D. with the knife was because she was exhausted. It was not because she came to her senses and decided not to harm him. Therefore, her potential for violence is great and there is no reason to believe that, under the right circumstances, petitioner would not inflict serious harm to M.T. Further, the fact petitioner committed a nonviolent crime while off of her medication in March 2009 does not speak to the potential for violence she already demonstrated.
Further, contrary to petitioner’s assertion, the evidence supported her lack of anger control. She admitted becoming angry and overwhelmed with life’s daily demands and demonstrated that in her interactions with the social workers. More compellingly, her counselor, who had the opportunity to directly observe her, testified she had limited insight into her anger and few skills to control it.
Finally, there was not an alternative means to removal given the uncertainty of petitioner’s custody status. At the time of the hearing, petitioner was 12 days shy of having to surrender to authorities. Therefore, it was a certainty, not speculation, that she would not be available to care for M.T. unless she was accepted into an alternative program. Further, if incarcerated, petitioner’s plan was to place M.T. in the care of her maternal grandmother who also had a history of child abuse. Under the circumstances, the only way of ensuring M.T.’s safety was to remove her from petitioner’s custody.
Having properly ordered M.T.’s removal, the juvenile court had no choice but to set a section 366.26 hearing. The juvenile court is limited by statute to provide no more than 24 months of reunification services measured from the date the child was originally removed from the parent’s physical custody. (§ 361.5, subd. (a)(3).) Further, the 24-month maximum allowable period is not tolled by the child’s return to parental custody during the reunification period. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 164-166.) Since M.T. was removed from petitioner’s physical custody in January 2007, petitioner had received in excess of 24 months of services by the contested dispositional hearing in May 2009. Having already received more than 24 months of services, petitioner was not entitled to more time to attempt reunification yet again. Under the circumstances of this case, the juvenile court had no option but to set the matter for a permanency planning hearing under section 366.26. (§ 366.22, subd. (a); Cal. Rules of Court, rule 5.565(f).) We find no error on this record.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.