Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J06-01709
Siggins, J.
Heather H., the mother of Emma H., petitions under California Rules of Court, rule 8.452 to vacate the trial court’s order setting a hearing under Welfare and Institutions Code section 366.26. Mother contends the court abused its discretion by finding that return of Emma to her custody would risk the child’s physical or emotional detriment and that reasonable reunification services were provided. We deny the petition on its merits.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
Jurisdiction and Disposition
Emma was removed from her parents’ custody on September 25, 2006, based on allegations that Mother’s substance abuse significantly impaired her ability to care for and supervise her daughter. The Contra Costa County Children and Family Services Bureau (the Bureau) filed a petition alleging that both of Emma’s parents had substance abuse problems that prevented them from adequately caring for her; that they allowed her, then two years old, to wander alone around the neighborhood with unimpeded access to a swimming pool and a busy road; and that they subjected Emma to an environment of domestic violence.
Mother reported that she had a long history of substance abuse that began at age 13 or 14 with her use of alcohol and marijuana. She experimented with Oxycontin, Vicodin, Soma and cocaine when she was a high school senior and later progressed to using heroin. She began methadone treatment for her addiction before she was pregnant with Emma and continued her treatment throughout her pregnancy. But she relapsed to heroin use a month after Emma was born. When the Concord police conducted a health and safety check at the home on September 13, 2006, Mother had used heroin that morning and admitted she used twice a day. The police officer found Emma naked and holding a pair of scissors. Mother had sores and scabs all over her face.
Mother pled no contest at the jurisdictional hearing to the allegation that her substance abuse problem significantly impaired her ability to supervise and adequately care for Emma. The remaining counts were dismissed.
At the dispositional hearing held on January 16, 2007, the court found by clear and convincing evidence that Emma’s physical health would be in substantial danger if she were returned home and there were no reasonable means to protect her short of removal from Mother’s custody. Mother was granted reunification services.
By the time of the six-month review hearing in May 2007 Mother was doing better. She was in the Ozanam Center residential drug treatment program, exceeding minimum expectations for her visiting with Emma, and she had completed anger management and parenting classes. She had drug tested 11 times with negative results, but had missed five tests. Mother visited with Emma twice each week. Although Father had expressed an interest in reuniting with his family, he did not demonstrate significant progress. He did not participate in his case plan and missed 18 out of 18 drug tests. The court ordered an additional six months of reunification services.
By time of the Bureau’s November 2007 report for the 12-month review, Mother had completed her residential treatment program and moved into a clean and sober residence. However, she relapsed on heroin in late August and was evicted from the clean and sober house. In October she spent a week in a detox program and enrolled in a second residential treatment program, Wollam House. She was using heroin regularly during this time. The report recommended that services be terminated and a hearing be set under section 366.26.
The Bureau submitted a supplemental memo on January 3, 2008, to report Mother’s substantial progress since she entered Wollam House in October. She appeared to be extremely motivated to remain clean and sober, had tested negative and participated in all program activities since she started the program. There had been weekly supervised visits with Emma at Wollam House and their first visit without Emma’s caregivers present was very successful. The Bureau changed its recommendation due to Mother’s progress from termination of services to an offer of extended reunification services for another six months. The court adopted the recommendation.
By the time of the Bureau’s report for the 18-month review hearing, Mother regressed yet again. Once again the Bureau recommended that reunification services be terminated and a section 366.26 hearing be set to establish a permanent plan. Mother had completed the Wollam House residential treatment program on February 20, 2008, and moved to a clean and sober home affiliated with it. But after two weeks in the clean and sober home, she was asked to leave for violating curfew by staying out all night on numerous occasions. Mother moved to a second clean and sober home, but in late March she was expelled from that home as well after she tested positive for narcotics, admitted using Vicodin, stayed out all night on numerous occasions without calling in or calling very late, and went on a three or four night drinking binge. After she was asked to leave this second home, Mother was “basically homeless,” and stayed at the home of a friend from Wollam House while she planned to look for a shelter as a residence. Mother missed three visits with Emma without calling to cancel or reschedule, two of them because she overslept. Emma was very upset by the missed visits.
A contested 18-month status review was held on April 30, 2008. Mother testified that she last used alcohol and methamphetamine 19 days earlier. The morning of the hearing, when the social worker asked Mother whether she was ready to have custody of her child, Mother replied that “it would be a disaster if her child were returned to her at this time because she’s not ready to resume parental responsibilities.” She was attending Narcotics Anonymous and Alcoholic Anonymous meetings at least six times a week and she had a sponsor.
The court followed the Bureau’s recommendation and set a hearing under section 366.26 for August 20, 2008. Mother filed a timely writ petition.
DISCUSSION
At an 18-month permanency review hearing the juvenile court must return the child to his or her parent unless it finds by a preponderance of the evidence that returning the child would create a substantial risk of detriment to his or her safety, protection, or physical or emotional well-being. (§ 366.22.) Generally, if the child is not returned the court must set a section 366.26 hearing to select a permanent plan of adoption, guardianship or long-term foster care. (§ 366.22, subd. (a).) We review the juvenile court’s ruling for substantial evidence. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
I. Substantial Risk of Detriment
Our review of the record satisfies us that there was substantial evidence from which the juvenile court could find that returning Emma to Mother’s care would create a substantial risk of physical and emotional detriment. It is true, and commendable, that when the 18-month status review report was prepared, Mother made progress toward her case plan goals. But Mother had not then demonstrated that she could remain free from drugs and alcohol—the very vices that necessitated Emma’s removal 19 months earlier. Mother completed the Ozanam Center and Wollam House programs, but she was unable to maintain her sobriety after leaving each of those structured environments. As the court observed, “the child was removed 18 months—19 months ago and mother tells me that she used meth 18 or 19 or 20 days ago. That’s not getting it done. That’s not somebody after six months of services who comes into court to listen and say I relapsed and I’m sorry which is the peak time for relapse between 6 and 12 months. This is 19 months later and we’re still dealing with the same stuff.”
Mother voices concern that the 18-month review report says she has not resolved her issues of domestic violence, because the jurisdictional counts were not sustained for domestic violence. She also points to some uncertainty surrounding visits she missed because she overslept, and points to her own testimony that she did not come home at curfew “which is totally different from staying out all night.” But the critical fact here is Mother’s recurrent inability to stay clean and sober. Emma was removed because Mother’s substance abuse rendered her incapable of caring for her daughter. Despite over 18 months of reunification services, and despite her demonstrated efforts to overcome her drug problems, by the time of the 18-month review hearing Mother still failed to maintain her sobriety.
Mother cites Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322 to argue that “a couple of [missed] drug test[s]” do not justify termination of reunification services. But in Jennifer A. the mother was never diagnosed with a substance abuse problem and there was no evidence that the mother’s infrequent marijuana use affected her ability to care for her children; in fact, the social worker testified that the mother did not have a substance abuse problem affecting her parenting skills. (Id. at pp. 1327, 1344, 1346.) Sadly, this case is materially different. Given Mother’s history of serious substance abuse and neglect of Emma, her repeated relapses, and her admission to the social worker on the day of the contested hearing that she was not ready to resume parental responsibilities, the juvenile court had ample evidence upon which to find that Emma could not be returned to her mother.
II. Reasonable Services
Mother contends the evidence fails to support the juvenile court’s finding that reasonable services were provided because she was not offered adequate psychological counseling. Although Mother attended 32 individual therapy sessions between February 2007 and January 2008, she maintains she should have been referred to a new therapist in January 2008, after almost a year of treatment, when her therapist said it was “too early for me to determine [Mother’s] prognosis” and recommended a psychiatric evaluation “to determine if there are any barriers that I am unqualified to detect or treat that might inhibit her achievement of the goals she has for herself.” Her contention fails for both legal and factual reasons.
First, as Mother herself acknowledges, a reasonable services finding is not required at an 18-month review hearing. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501.) “At the critical juncture of the 18-month hearing, the authority of the juvenile court to set a section 366.26 hearing is not conditioned on a reasonable services finding.” (Id. at p. 1511.) Relying on Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1015-1016, the Denny H. court explained that the language of section 366.22, subdivision (a) “ ‘does not give the juvenile court the option to continue reunification services nor does it specifically prohibit the court from ordering a section 366.26 hearing even if it finds reasonable reunification services have not been provided to a parent.’ ” (Denny H., supra, at p. 1511.)
Moreover, the juvenile court’s finding that reasonable services were provided has ample support in the record. Mother had 32 visits with the therapist. Not once did she voice dissatisfaction with her therapist until March 2008. When Mother asked for a new therapist in March 2008, the social worker gave her the necessary referrals within approximately five days. Any failure by the Bureau to promptly provide a psychiatric evaluation upon her therapist’s request in January 2008 does not equate to a failure to provide reasonable services. The standard is not whether the services provided were perfect, but whether they were reasonable under the circumstances. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) Here, over the course of 19 months Mother completed two residential substance abuse programs and was admitted to two clean and sober homes. She was ejected from each due to her own poor performance. She successfully completed anger management and parenting classes. She participated in individual therapy for almost a year without complaint about its adequacy. The court properly found reasonable reunification services were provided.
DISPOSITION
The order to show cause is discharged, and the petition for extraordinary writ is denied on the merits. (See § 366.26, subd. (l); Cal. Rules of Court, rule 8.452(i); In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) Our decision is final immediately. (Cal. Rules of Court, rule 8.264(b).)
We concur: McGuiness, P.J., Jenkins, J.