Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. SJ12217 A&B, Garry G. Haehnle, Judge.
BENKE, Acting P. J.
Erika B., the mother of twins P.E. and S.E. (together, the children), appeals the juvenile court's order terminating her reunification services at a 12-month review hearing under Welfare and Institutions Code section 366.21, subdivision (f). Erika contends the court erred by not continuing services to the 18-month review date because she met the requirements of section 366.21, subdivision (g)(1). We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTS
On September 16, 2009, Erika and the children, who were one month shy of their seventh birthday, were passengers in an automobile that was involved in an accident. Erika and P.E. suffered injuries; S.E. did not. Erika was taken to the UCSD hospital for a clavicle injury, and P.E., accompanied by S.E., was taken to Children's Hospital for a laceration to his forehead. After Erika was released from the hospital, she failed to pick up the children at Children's Hospital. A hospital social worker contacted the police, and officers took the children to Polinsky's Children Center. While at Polinsky's, P.E. told a social worker the driver of the automobile was drunk, and he thought the driver was trying to kill them.
Erika contacted the San Diego County Health and Human Services Agency (Agency) the following day and met with a social worker on September 18. Erika admitted being on methadone and said she did not pick up the children because she had no transportation. However, according to a social worker at the UCSD hospital, Erika had been given a taxi voucher when she was discharged so she could pick up the children.
On September 21, Agency filed dependency petitions on behalf of the children under section 300, subdivisions (b) and (g). The children were detained out of the home and began living in a licensed foster home on October 6. The following day, the children were enrolled in school for the first time. P.E. was placed in the first grade. S.E. was initially placed in first grade, but was subsequently moved to a kindergarten class. P.E. was overly aggressive toward other students and sometimes laughed at what "voices" were saying to him. S.E. was overly shy, often cried and sometimes danced in a sexy manner. Sometimes she urinated in the sink. Both children were extremely underweight.
Subsequently, the juvenile court dismissed the section 300, subdivision (g) allegation in both petitions.
Between the time of the detention hearing and the scheduled October 13 jurisdictional hearing, Erika was arrested for possession of methamphetamine and related charges. She also had not visited the children. Erika failed to take a demand drug test for Agency, but nine days later took a drug test and tested negative for drugs. Erika told the social worker that she was taking 150 milligrams a day of methadone, a prescription medicine for anxiety and seizures, and Vicodin for her injuries from the automobile accident. Erika said she had been clean for 10 years and had been on methadone for approximately eight years because she had severe withdrawal symptoms without taking methadone. Questioned about her recent drug arrest, Erika claimed it was her first slip-up.
On October 17, Erika visited the children for the first time, but she appeared to be under the influence according to the visitation supervisor. Erika's other five visits with the children before mid-December went well. At the end of December, Erika told the social worker her daily dose of methadone was 170 milligrams.
On January 5, 2010, the juvenile court sustained the section 300, subdivision (b) petitions for both children and found the children's removal from their parents' custody was necessary. The court made these findings by clear and convincing evidence. The court declared the children dependents of the court and offered family reunification services for both parents. Erika's reunification plan required her to undergo individual counseling, obtain a psychological evaluation, complete a parenting course and participate in the SARMS (Substance Abuse Recovery Management System) program. The objectives of her services were to (1) become able to meet the children's physical, emotional, medical and educational needs, (2) stay law-abiding, (3) obtain and maintain a safe, stable and suitable residence for herself and her children, and (4) comply with her medical and psychological treatment providers.
The children's father, Harold E., lived with Erika and the children in Mexico until earlier in the year when he moved to San Diego and took the children with him without Erika's consent. Harold claimed he put the children in YMCA camp for five weeks and then allowed Erika to have them live with her for a week. Erika, however, did not return the children to Harold and he did not know where they were until when Agency contacted him.
By the six-month review, Erika had not completed any component of her reunification plan. In April, Erika had gone to an appointment for a psychological evaluation, but left the psychologist's office without completing the evaluation. After the aborted evaluation, Erika did not contact Agency or the children for two months. When the social worker found Erika on June 14, Erika said she had "spiraled out of control" while attempting to complete the psychological evaluation because it raised memories of her traumatic childhood. At the end of June, Erika's daily dose of methadone was 150 milligrams.
On August 5, the juvenile court continued reunification services for both parents and found Erika had not made substantive progress with the provisions of her case plan. The court also ordered Erika to participate in dependency drug court.
Over the next six months, Erika was terminated from dependency drug court for the second time. Erika was in out-patient drug treatment at Harmony West where she attended classes five days a week for four hours each day. Erika also attended Narcotics Anonymous meetings, attended group counseling sessions and participated in regular drug testing. The drug tests were negative for all substances other than methadone and her prescription medicines. By November 3, Erika's daily dose of methadone was 140 milligrams. Under the supervision of a physician, Erika's daily dose of methadone was as low as 135 milligrams by the end of December.
In late September, Erika underwent a partial psychological evaluation. Psychologist Daniel O'Roarty, Ph.D., wrote, Erika's "personality and emotional factors have been significantly impaired by her childhood history and subsequent long-term dependence on drugs, both street and prescribed. She shows no ability to be completely drug-free, and her use of drugs has determined the toxic relationship she has been involved with in her immediate family and the peers she chooses to be around." Dr. O'Roarty opined that Erika's risk factors were "too high for reunification any time soon." The psychologist wrote Erika needed long-term therapy to address her personality disorder and should be in a drug treatment program for at least one year, followed by two to three years of job training and independent living to reach a level of stabilization.
On September 27, 2010, Erika spent six hours undergoing the evaluation, but did not return on another day as instructed to complete testing for the evaluation. Nonetheless, the psychologist believed he had sufficient information to submit a written evaluation to the court, and did so.
Agency recommended that reunification services for Erika be terminated at the 12-month review hearing. Agency recommended that Harold be offered six more months of services.
At the contested 12-month review hearing on January 6, 2011, social worker Dawn Hanlon testified that recently Erika had displayed an increase in her level of commitment toward her reunification plan. Nonetheless, Hanlon continued to believe that there was not a substantial likelihood the children would be returned to Erika's care by the 18-month date.
Juanita Price, a substance abuse counselor, testified that Erika had shown improvement in the Harmony West program and was currently in compliance. Erika participated in individual and group sessions as well as relapse prevention classes, a 12-step program and had attended three parenting classes. Price said it would take Erika at least four more months to finish the Harmony West program.
Harmony West's parenting course consists of 10 classes. The next cycle of parenting classes was to begin in mid-February.
The juvenile court found (1) returning the children to the custody of Erika would create a substantial risk of detriment to their safety protection and emotional well-being, (2) reasonable services had been provided to Erika, (3) Erika had not made substantive progress with the provisions of her case plan and (4) there was not a substantial probability that the children would be returned to Erika's care by the 18-month review date. The court followed Agency's recommendation and terminated Erika's reunification services. The court ordered Agency to provide Harold with six more months of reunification services.
DISCUSSION
Erika contends that the juvenile court erred by terminating reunification services at the 12-month review hearing because she complied with the requirements of section 366.21, subdivision (g)(1). The contention is without merit.
Generally, when a child is removed from a parent's custody, the juvenile court must order reunification services. (§ 361.5, subd. (a).) At a 12-month review hearing, the court must order a child returned to the custody of the parent unless, by a preponderance of the evidence, it finds that return of the child would create a substantial risk or detriment to the well-being of the child. (§ 366.21, subd. (f).)
If the court determines that the child should not be returned to the custody of the parent, the court must decide whether to continue working toward reunification or to terminate reunification efforts and consider an alternative permanency plan for the child. (§ 366.21, subd. (g).) For the court to continue the case for additional reunification services, the court must find that there is a substantial probability that the child can safely be returned to the parent's custody by the 18-month date, which is 18 months from the date the child was removed from the parent's custody. (§ 366.21, subd. (g)(1).) Before a juvenile court can conclude that there is a "substantial probability" that a child will be returned to the parent and continue the matter for another six months, the court must find all of the following: the parent has "consistently and regularly contacted and visited with the child"; the parent has made significant progress in resolving the issues that led to the child's removal; and the parent has shown the ability to complete the objectives of his or her case plan and to provide for the child's "safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1)(A)-(C).)
In this case the 18-month review date was March 16, 2011.
A court reviewing an order pursuant to section 366.21 determines whether the order is supported by substantial evidence. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) The reviewing court is required to consider "the evidence in the light most favorable to respondent, giving respondent the benefit of every reasonable inference and resolving all conflicts in support of the judgment." (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
It is not disputed that Erika met the first requirement of section 366.21, subdivision (g)(1). Erika consistently and regularly visited the children. (§ 366.21, subd. (g)(1)(A).) However, the record substantiates the court's findings that Erika did not satisfy the second and third requirements of the statute.
Substantial evidence supports a conclusion that Erika has failed to make significant progress in resolving the problems that led to the removal of the children from her custody. (§ 366.21, subd. (g)(1)(B).) The children came to the attention of Agency as a result of an automobile accident in September 2009. Since then, Erika had shown almost no progress toward her reunification goals until just prior to the 12-month review date. Erika had begun actively participating in her drug treatment program at Harmony West, but it would have taken her at least four months to complete the program. Erika had begun taking parenting classes, but she had seven more classes to take before she could complete the parenting course and would have had to wait at least a month before she could begin that task. (See fn. 5, ante.) Erika had begun individual therapy, but had only three sessions. In short, Erika's recent efforts at complying with her reunification plan, while commendable, were too little too late.
Substantial evidence also supports the court's conclusion that Erika has not shown the ability to complete the objectives of the plan and to provide for the children's "safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subd. (g)(1)(C).)
Regarding Erika's ability to provide for the safety, well-being, and special needs of the children, the results of the psychological evaluation are telling. In addition to opining that the risk factors were "too high for reunification any time soon, " psychologist O'Roarty wrote that Erika lacks insight and displays "extreme impulsivity" in her lifestyle choices, including risks to which "she is willing to expose her children." O'Roarty cited the example of the automobile accident that started this dependency case. Rather than realize that she should not have allowed the children to be in a vehicle driven by a person under the influence of alcohol or drugs, Erika "tout[ed] her heroic efforts to save her children from being killed." Another example cited by the psychologist was Erika's attempt to rationalize the children being extremely underweight by suggesting they were small babies and "have remained small." Erika offered this explanation even though she admitted that she and the children were practically starving before they left Mexico.
Simply complying with a case plan is to be considered by the court but it is not necessarily determinative. The court must also consider the parent's progress and ability to meet the objectives of the plan. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.)
The objectives of Erika's services plan, among other things, were: to become able to meet the children's physical, emotional, medical and educational needs; obtain and maintain a safe, stable and suitable residence for herself and the children; and comply with her medical and psychological treatment providers. At the time of the 12-month hearing, Erika had made some progress toward those goals, but there was substantial evidence she was nowhere near meeting them by the 18-month date. As the juvenile court aptly observed: "She has... just recently, within the last month or two, ... demonstrated her desire to complete the objectives of her case plan and to provide... for the children's protection and well-being and safety, but her ability to complete those objectives... has not been demonstrated, because there's so many issues that are untreated with the mother at this time and that... stalls her ability to complete the objectives of her case plan."
Before a juvenile court can conclude that there is a "substantial probability" that a child will be returned to the parent by the 18-month date and continue the matter for another six months, the court must affirmatively find that the parent has satisfied all three requirements of section 366.21, subdivision (g)(1). Although Erika successfully satisfied the first requirement by consistently and regularly visiting the children, she was unable to satisfy the second and third requirements. Substantial evidence supports the juvenile court's determination that the children could not be safely returned to Erika by the 18-month date. The court correctly terminated reunification services for Erika.
DISPOSITION
The order is affirmed.
WE CONCUR: NARES, J.AARON, J.
Harold is not a party to the appeal.