Opinion
E041376
12-1-2006
C.M., Petitioner, v. THE COUNTY OF RIVERSIDE, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.
David Goldstein for Petitioner. No appearance for Respondent. No appearance for Real Party in Interest.
Petitioner C.M. (Mother) is the mother of four-year-old Alexis D. Mother filed this writ petition pursuant to California Rules of Court, rule 38.1(a) challenging an order setting a Welfare and Institutions Code section 366.26 permanency planning hearing as to the child. Mother contends that the juvenile court erred in finding that returning the child to her would create a substantial risk of detriment to the childs safety, protection, physical or emotional well-being. For the reasons provided below, we reject Mothers challenge and deny her petition.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
The father (Father) also filed a writ petition. However, he withdrew his petition on October 31, 2006, and we dismissed it on November 8, 2006.
I
FACTUAL AND PROCEDURAL BACKGROUND
On August 30, 2004, Riverside County Department of Public Social Services (DPSS) received a referral alleging Mother was neglecting then two-year-old Alexis. Mother was living in her car outside her boyfriends apartment and was observed speaking with Alexis very harshly. The social worker attempted to contact Mother and her child several times to no avail.
Mother had a long history of domestic violence with Father; Father had a long criminal history, with two strikes against him. On September 15, 2004, a second referral was received alleging that Father had threatened Mother. The social worker again made several attempts to contact Mother with no success.
On October 12, 2004, the social worker learned that Mother and Alexis had been staying with a family friend (Mrs. W.). The following day the social worker made contact with Mother and Alexis at Mrs. W.s home. Mother confirmed that there were prior incidents of domestic violence with Father and that Father had wanted custody of Alexis. The social worker gave Mother a referral for Coalition for Family Preservation (CFP) and asked her to obtain a restraining order against Father. Mother denied that she used drugs and agreed to drug test that day. Mothers drug test result was positive for marijuana. Mother was on probation for 36 months for check fraud and was unemployed. Mrs. W. confirmed that she would allow Mother and Alexis to reside in her home until Mother was able to provide adequate care for Alexis as long as Mother followed the rules; Mrs. W.s main concern was Alexis.
On October 29, 2004, Mrs. W. telephoned the social worker and left a message. On November 1, 2004, the social worker discovered that Mrs. W. had charged Mother with theft and had refused to allow Mother to reside with her. Mrs. W. reported that $140 was missing from her wallet, and $100 was missing from her husbands wallet. Mother had no employment, no money, and no residence; it was suspected Mother was abusing methamphetamine. In addition, against the social workers advice, Mother, who had no valid drivers license, drove Alexis around in a borrowed vehicle. Mother had prior DPSS referrals for allegations of general neglect and physical abuse in October 2003. Mother inquired about placing Alexis in foster care due to her inability to care for her. Alexis was taken into protective custody;\ and eventually placed with Mrs. W.
On November 3, 2004, DPSS filed a petition on behalf of Alexis pursuant to section 300, subdivisions (b) and (g). Allegations against Mother related to Mothers inability to provide adequate food, clothing, and shelter for Alexis; substance abuse; and being a victim of domestic violence. Allegations against Father pertained to his extensive criminal history, his failure to provide necessities for his child, and his whereabouts being unknown.
At the detention hearing, the court detained Alexis in a confidential foster home and provided the parents with supervised visits. The court ordered Father to remain 100 yards from Mother and Alexis except during his scheduled visits. The court further authorized DPSS to place Alexis with Mother on a suitable home evaluation and three consecutive drug test results by Mother. Mother was also ordered to participate in her case plan and abide by all the reasonable directives of the social worker. DPSS was ordered to assist Mother in finding a stable home.
The social worker recommended that the allegations in the petition be found true, that Mother be offered reunification services, and that services be denied to Father. Mother stated that she had never abused drugs, and her positive drug result for marijuana was due to others smoking the substance around her. She adamantly denied using methamphetamine. She explained that she had an apartment and employment but had lost those due to Father harassing her employer and her landlord. She admitted that Father had hit her and slapped her and that she had received a "busted lip" from him on one occasion. She did not know Fathers whereabouts and had no contact with him. She was about three months pregnant by another man who was currently incarcerated on charges of having sex with a minor. She also admitted she was a transient, living with whomever she could.
Mother stated she wanted Alexis back in her care, and she was not comfortable having Alexis residing with Mrs. W., as Alexis referred to Mrs. W. as "mommy." Mothers visits with Alexis went well; she appeared to interact appropriately with Alexis by holding her and reading her books. Mother was provided with referrals on several occasions for parenting classes, counseling, and child support services. She was also provided with a substance abuse program and had been submitting to random drug tests with negative results. The social worker opined Mother was unable to care for herself, let alone her two-year old daughter. She failed to accept responsibility for her actions, blamed others for her predicament, and had a history of making bad judgments.
At the pretrial jurisdictional/dispositional hearing on November 29, 2004, Mother reported that she had found employment and a stable residence. She was working a temporary job at an engineering company in Riverside in the overnight shift; she explained that her friend and roommate would watch Alexis while she was at work. She was sharing an apartment with a friend, Celia W. Celia reported that Mother and Alexis were welcome to live with her as long as they needed to. Celia also stated that she was very attached to Alexis and that Alexis would always be welcomed at her home. A home evaluation of Celias home revealed that the two-bedroom apartment was adequately furnished and clean. No hazards were found in the home, and the home appeared to be safe.
By December 2, 2004, Mother had been assessed at the Riverside County Substance abuse program and was determined to be an appropriate candidate for outpatient treatment. She had been placed on a waiting list. She had also enrolled in a parenting class and continued to test clean for drugs. As of December 14, 2004, the social worker opined that Mother had accepted some responsibility for her actions and was attempting to better herself. However, it was later determined that Celia had pleaded guilty to a misdemeanor charge of burglary and possession of a controlled substance in July 2004 and that Mother had not been completely honest with DPSS. While Mother stated that she no longer drove and had given the borrowed car back to her boyfriends grandmother, it was discovered that Mother had gotten into a car accident, for which she was hospitalized, and the car had been impounded.
Mother was granted an extended visit for the Christmas holidays and had Alexis in her care from December 24, 2004, through December 31, 2004, as Mrs. W. and her family were going on vacation out of town. Mrs. W. reported that when she picked Alexis up from Mothers care on December 31, 2004, she had to pick Alexis up from the hospital because Mother stated Alexis was sick. She indicated that Alexis always became sick in Mothers care. Mrs. W. had concerns about Mothers parenting skills, specifically in the nutrition department.
By January 2005, Mothers circumstances had changed. On January 16, 2005, the social worker was informed that Mother had failed to pick Alexis up for a visit. Mrs. W. believed Mother had been kicked out of Celias apartment. The following day, Celia confirmed that Mother no longer resided with her. Mother expected Celia to be her "taxi" and "drive her all over the place." Mother had failed to pay Celia rent, and Celia gave Mother three days to pay her rent or move out. Mother acted as though Celia was "joking" with her. After three days, Mother failed to pay Celia rent, and Celia asked her to move out of her apartment. Celia believed Mother was no longer employed. As of January 2005, Mother had failed to contact DPSS to update them on her current living situation as requested by the court. It appeared as though Mother had reverted back to her old ways.
The jurisdictional/dispositional hearing was eventually held on January 24, 2005. At that time, Alexis was declared a dependent child of the court and maintained in Mrs. W.s home. The juvenile court found the allegations in the petition true. Mother was granted reunification services and ordered to participate. Mothers reunification plan required her to attend general counseling, to participate in and complete a parenting education program an outpatient substance abuse program, to and randomly drug test.
By July 2005, Mother had still not maintained steady employment, and lived off her monthly disability benefits. In addition, Mother had been homeless from February 2005 until June 2005, and had a baby girl in June 2005. A referral was initiated regarding the baby. DPSS suspected Mother was living with the babys father (Joe M.), who had been incarcerated in jail for a sexual offense with a minor. On July 13, 2005, the social worker conducted a home evaluation of Mothers new residence. The apartment appeared appropriate, and it was recommended that Mother insert safety outlet covers and fix the strings on the mini-blinds. The social worker, however, was concerned about the male roommate living in the apartment. When Mother asked for overnight visits, the social worker informed Mother that they could not happen until a criminal background check was completed on her roommate.
Mother had been provided with monthly bus passes, and the social worker personally met Mother to provide Mother with referrals and discuss her case plan. Mothers substance abuse program determined that Mother did not meet the criteria for outpatient or residential treatment. She had continued to deny any drug use and had four clean drug tests. Mother had enrolled in a parenting class and had completed seven of the 10 classes. Mother had begun her individual counseling; however, the therapist was concerned, as Mother had missed several appointments and was hostile and resistant to therapy. When the social worker stressed the importance of completing individual counseling, Mother complained the counseling was "too far." The social worker informed Mother that a new counselor would be found in her area so as to avoid any transportation problems. Mother then complained about not having the 25 cents for the baby to also use the bus with her. The social worker noted that though Mothers funds were limited, Mother nonetheless had enough money to buy cigarettes and maintain acrylic nails. Mother was upset at this observation.
Mothers visits with Alexis went well; she was attentive and nurturing. Alexis appeared to enjoy the visits with her mother. However, Mother spent a great deal of time complaining about how Alexis was dressed or how her hair was unkempt. Alexis did not demonstrate sadness when the visits ended and was eager to return to her caregiver. Alexis was developing well and bonding with her foster family. She appeared to be comfortable and happy in her placement. In addition, Mother had missed several visits in July 2005 and became irate and cursed at the social worker when the social worker explained to Mother that she could not have overnight visits with her daughter until her therapist recommended so and until her roommate completed a criminal background check. The social worker recommended offering Mother an additional six months of reunification services.
On August 15, 2005, the social worker learned that Mothers boyfriend (Joe) was residing with Mother. The maternal grandmother reported that Mother and Joe had signed a lease to their new apartment, despite their destructive relationship. Mother and Joe had engaged in mutual physical altercations, and Joe had tried to push Mothers head through a glass window. These domestic violence incidents occurred in front of the baby. The social worker noticed a large bruise on the back of Mothers arm. The maternal grandmother further reported that she was concerned about Mothers lies and irresponsible behavior and that Mother was only fighting hard to get Alexis back because she hated Alexiss caretaker. The maternal grandmother also stated that Mother had recently obtained a pit bull who was kept in the apartment with the baby. DPSS was concerned about Mothers lack of honesty.
Following the August 18, 2005, hearing, at which the court authorized overnight visits with the therapists agreement, Mother still did not make significant progress in her case plan. Mother continued to lie to get what she wanted. She adamantly denied that Joe was living with her despite information otherwise. Joes probation officer confirmed that Joe had been residing in Mothers apartment. In addition, Mother had called Joes probation officer and practically told him to lie if the social worker called to ask about Joes residence. When confronted with her lies, Mother explained that she did not want to tell the truth because she did not want it to affect her visits with Alexis. She showed no remorse for lying, instead demanding overnight visits with Alexis. Mother failed to understand that Alexis could not have overnight visits with Mother as long as she was residing with a convicted criminal. She minimized Joes role in his felony conviction, blaming the victim instead. Additionally, the social worker was concerned that Mother had brought Joe on two separate supervised visits with Alexis; when the social worker informed Mother about this, she cursed and ranted at the social worker. Mothers therapist confirmed that Mother had issues with dishonesty and blaming others for her actions and noted that Joes 9-year-old sibling was also residing in the home. Based on Mothers living arrangements, Mothers therapist agreed with the social worker that overnight visits would not be in the childs best interest. When this issue was discussed with Mother, she became belligerent, hostile, and offensive.
On October 8, 2005, Joe was arrested for battery on a former companion and damage to telephone lines, and on October 9, 2005, Mother was arrested on a warrant. Confidential sources reported that there had been ongoing domestic violence between Mother and Joe. The social worker was concerned about who was caring for the baby and Joes 9-year-old brother when both Mother and Joe got arrested. The social worker noted that it was premature to initiate overnight weekend visits between Alexis and her mother.
At an October 17, 2005, hearing, the court continued Mothers reunification services.
By April 2006, Mother had a new job but had failed to visit with Alexis in about two weeks. She cancelled two visits with Alexis in March 2006.
On April 10, 2006, Mr. and Mrs. W. filed a de facto parent request.
In July 2006, the social worker recommended terminating Mothers services and setting a section 366.26 hearing. When the social worker made an unannounced visit to Mothers apartment, she observed the baby sitting on the floor without adult supervision. The social worker called the babys social worker, her supervisor, and the police. Mother eventually showed up and stated she was downstairs borrowing baby formula for the baby. The home was messy with dirty dishes in the sink, clothing on the floor, and minimal food in the home. The baby was detained. The social worker noted that it would not be in Alexiss best interest to be retuned to Mothers care. Mother continued to make poor decisions and had placed the baby at risk by leaving her unsupervised for over 15 minutes. In addition, Alexis had stated that when she has had unsupervised visits with Mother, she had seen Joe in the apartment, despite the fact that Mother claimed he was no longer residing with her and had a restraining order against him. In addition, Mother no longer had a job and was not able to pay her $800 rent and utilities.
At the combined de facto parent hearing and contested review hearing on July 5, 2006, Father appeared for the first time. Father was appointed counsel, and the contested review hearing was continued to August 2, 2006. The court granted the caretakers request for de facto parent status and appointed them to be de facto parents of Alexis. The court also ordered DPSS to give notice to the Osage Indian Tribe.
The August 2, 2006, hearing was continued, and DPSS was ordered to give notice to the relevant Indian tribe.
By September 15, 2006, Mother had failed to complete her individual therapy, despite being referred to several therapists at Mothers request due to "transportation issues." Mother had been provided with monthly bus passes, however, and transportation should not have been an issue. Mother still was not financially stable or capable of raising Alexis and being able to meet her daily needs. In addition, she was not attending therapy, it was unknown whether she was paying rent on her apartment, and her neighbor confirmed that Mother had often left the baby alone.
As to Father, the social worker noted Father had an extensive criminal history and had two jobs which would not allow him to adequately care for Alexis. In addition, Alexis did not have a relationship with her father and did not recognize him as her father. Father did not mind if Alexiss caretakers adopted her; he was only requesting visits with Alexis from time to time. The social worker recommended that Father not be provided with services.
Meanwhile, Alexis had been residing with her current caretakers since November 2004. She had grown attached to them, calling them "mom and dad."
The contested review hearing was held on September 19, 2006. At that hearing the court read and considered the social workers numerous reports, and heard testimony from Mother and Father. Mother testified about her participation her case plan, drug testing with negative results, monthly therapy, completion of multiple parenting classes, participation in alternatives to domestic violence, obtaining employment at a Big 5 store about three weeks earlier, obtaining health insurance, maintaining a residence, and consistent contact with Alexis. She explained that she had benefited from her parenting classes by seeing "red flags that would emotionally, physically or psychologically harm my child or my children."
Following argument by counsel, the court found by clear and convincing evidence that custody by Mother continued to be detrimental to Alexis; that Alexiss best interest required that custody continue to be taken from Mother; and that return of Alexis to Mother would create a substantial risk of detriment to the safety, protection, or emotional and physical well-being of the child. The court also found that DPSS had provided Mother with reasonable reunification services; that Mothers extent of progress toward alleviating or mitigating the causes necessitating placement had been unsatisfactory; and that Mother had not benefited from her case plan. The court terminated Mothers reunification services and set the matter for a section 366.26 selection and implementation hearing. Adoption was ordered as Alexiss permanent plan. The parents were advised of their appellate writ rights.
On September 22, 2006, Mother filed a notice of intent to file a writ petition pursuant to California Rules of Court, rule 38.
II
DISCUSSION
Mother contends the juvenile court erred in finding that returning the child to her would create a substantial risk of detriment to the childs safety, protection, physical or emotional well-being. She asserts that the court should have returned Alexis to her on a family maintenance plan, as she had substantially completed her case plan and had benefited from services. We disagree.
Under section 366.22, subdivision (a), at the permanency review hearing or the 18-month review hearing, the court must order the return of the child to his or her parents unless the court finds, by a preponderance of the evidence, that returning the child into parental custody would create a substantial risk of detriment to the safety, protection, or emotional or physical well being of the child. (§ 366.22, subd. (a).) DPSS bears the burden of establishing detriment. (Ibid.) "The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental." (Ibid.) In determining detriment, the court must consider whether the parent participated regularly, made progress, and cooperated or availed herself of the services provided in the court-ordered treatment plan. (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.)
In reviewing a juvenile courts ruling under section 366.22, we consider the entire record, resolving all conflicts in favor of upholding the ruling, to determine whether it contains substantial evidence — i.e., evidence that is reasonable, credible, and of solid — to support the courts finding. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705; In re John V. (1992) 5 Cal.App.4th 1201, 1212.) If supported by substantial evidence, the courts ruling will not be disturbed on appeal absent a clear showing that the court exercised its wide discretion in an arbitrary, capricious, or patently absurd manner. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; Constance K., at p. 705.)
Substantial evidence supports the courts finding that though Mother had regularly participated in her court-ordered treatment plan, her progress toward alleviating or mitigating the causes necessitating placement (i.e., her transient lifestyle, her domestic violence issues, and her inability to provide adequate care for her child) had been unsatisfactory. In addition, there was no evidence, besides Mothers self-serving statement, that she had benefited from her court-ordered treatment plan. Although Mother was successful in certain areas, including drug use, Mother made little or no progress in other areas. She missed visits with Alexis, lived an intermittently transient lifestyle, continued to lie about her relationship with a convicted sex offender, and generally made poor life decisions, placing Alexis at risk.
Even after receiving services for approximately 22 months, Mother was unable to maintain a stable living situation or employment or demonstrate that she could adequately provide the necessary care for her daughter. Mother still was not financially stable or capable of raising Alexis and being able to meet her daily needs. Meanwhile, Alexis had been residing with her current caretakers since November 2004 and had grown very attached to them.
It would have been detrimental to return Alexis to Mother, who could not provide her with a safe and stable home. (See In re John V., supra, 5 Cal.App.4th at pp. 1212-1213.) Although Mothers efforts improved in the last month or so before the 18-month review hearing, the evidence supports the courts finding that the return of Alexis into Mothers custody would have been detrimental under the current circumstances. We conclude that the trial court properly terminated reunification services and scheduled the section 366.26 hearing.
III
DISPOSITION
The petition for extraordinary writ is DENIED.
We Concur:
GAUT, J.
KING, J.