Opinion
F080144
12-23-2019
JAMIE H., Petitioner, v. THE SUPERIOR COURT OF TUOLUMNE COUNTY, Respondent; TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Jamie H., in pro. per., for Petitioner. No appearance for Respondent. Sarah Carrillo, County Counsel, and Cody Nesper, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JV7969)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Frank Dougherty, Judge. (Retired judge of the Merced County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Jamie H., in pro. per., for Petitioner. No appearance for Respondent. Sarah Carrillo, County Counsel, and Cody Nesper, Deputy County Counsel, for Real Party in Interest.
Before Poochigian, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
INTRODUCTION
Petitioner Jamie H. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rules 8.452 and 8.456 seeking to vacate the juvenile court's order terminating reunification services with her infant son, B.U., and setting a Welfare and Institutions Code section 366.26 permanent plan hearing. She contends the juvenile court abused its discretion in terminating her reunification services and setting a section 366.26 hearing. We deny the petition.
References to code sections are to the Welfare and Institutions Code. --------
FACTUAL AND PROCEDURAL SUMMARY
The Tuolumne County Department of Social Services (department) received a referral on the day the minor was born that mother admitted to habitual heroin use during her pregnancy. Mother and the minor both tested positive for heroin and methamphetamine at the infant's birth. After his birth, the minor was suffering significant withdrawal symptoms, including stiffness, fever, and blue coloring of the skin, and had to be transferred to an out of county hospital for treatment. The hospital determined the minor was suffering from Neonatal Abstinence Syndrome (NAS).
When interviewed by the social worker, mother admitted to regular use of methamphetamine and heroin, including the day her son was born. Mother had another child who was not in her care due to a prior incarceration; the child was in a probate guardianship. Mother and the minor's father were living together; father also admitted to regular methamphetamine use.
The department filed a section 300 petition alleging the minor came within the provision of section 300, subdivision (b)(1), and was at substantial risk of harm, because of his parents' substance abuse. The juvenile court issued a protective custody warrant and the minor was taken into protective custody and detained on January 10, 2019.
The juvenile court made jurisdictional findings on January 29, 2019, sustaining the section 300 petition. The dispositional hearing was set for March 12, 2019.
The disposition report noted that mother began abusing alcohol in high school and used methamphetamine and heroin. Mother admitted to chronic substance abuse and to having a criminal record. At the disposition hearing, the minor's parents were ordered to sign and comply with the dependency drug court family reunification plan. Mother's plan called for her to submit to random drug and alcohol tests, to refrain from using illegal substances and alcohol, attend substance abuse counseling, and attend three 12-step meetings each week.
On March 18, 2019, the social worker filed an affidavit stating father had failed to comply with his reunification plan.
On March 22, 2019, the social worker filed an affidavit of noncompliance stating mother had failed to comply with her reunification plan. According to the affidavit, mother tested positive for an illicit substance on March 13, 2019, failed to appear for a scheduled drug test on March 15, 2019, failed to attend a scheduled substance abuse counseling session, and failed to turn in a 12-step card establishing her attendance for the week of March 10 through 16, 2019. Mother also failed to turn in a 12-step card verifying attendance for the week of March 17 through 23, 2019.
Mother continued to fail to comply with her reunification plan by failing to drug test on April 2 and 3, failing to appear for substance abuse counseling on April 3, and failing to turn in a 12-step card verifying attendance for the week of March 24 through 30, 2019.
Mother had committed multiple violations of her case plan that began almost immediately after disposition. Mother was ordered to complete a six-month residential drug treatment program on March 26, 2019. She was discharged from the program on April 21, 2019 for noncompliance. Mother, thereafter, was arrested at father's home while under the influence of heroin with needles and a glass pipe in her possession.
Mother was terminated from the dependency drug court on May 7, 2019. The department was ordered to develop a new case plan that provided for reunification services. The revised case plan provided that while mother was incarcerated, she was to submit to drug testing, seek general counseling, participate in the substance abuse and parenting courses available, and participate in the 12-step or Alcoholics Anonymous/Narcotics Anonymous program available to her. Upon release from custody, mother was to remain clean and sober and test negative for all illegal substances, develop a support network of family and friends, attend all scheduled visitation with the minor and be clean and sober during visitation, attend parenting and substance abuse classes, and participate in the 12-step program.
The six-month review hearing was scheduled for August 27, 2019. The review report outlined mother's multiple violations of the dependency drug court case plan, her dismissal from residential treatment for noncompliance, and mother's failure to maintain contact and engage in services when out of custody between mid-June and August 1, 2019. The minor had been placed in a concurrent home with caregivers to whom he appeared to be bonded.
The review report concluded mother had made minimal to no progress in her case plan. Mother failed to maintain consistent contact with the department and missed 10 of 17 scheduled visits with her son. Mother was to participate in a six-month residential treatment program but stayed only one week. She was terminated from dependency drug court and ultimately stopped participating in all services. Mother was facing a four-year sentence on new pending criminal charges.
The minor's current caregiver was willing to provide the minor with permanence and stability. The report opined that mother had not demonstrated a willingness or ability to provide a safe and stable environment for the minor. The department concluded it was not in the best interests of the minor to continue to offer reunification services and asked the juvenile court to terminate reunification services to both parents and set a section 366.26 hearing.
Mother requested a contested hearing, which was held on October 4, 2019. Mother testified she was incarcerated on August 1, 2019, on a probation violation and allegation she brought drugs into the jail. Mother also was incarcerated between April 22 and July 10, 2019. At the time of the hearing, mother claimed to have participated in three weeks of residential drug treatment. Mother also testified she complied with her revised case plan to the extent she was able while incarcerated.
Mother admitted that when out of custody, she quickly relapsed into substance abuse, did not attend all required meetings, did not report for required drug testing, did not maintain contact with the department, and did not regularly visit the minor. She also admitted being dismissed from dependency drug court for noncompliance. Mother currently was in custody and her earliest possible release date was six months in the future. Mother acknowledged the minor's sibling was in a guardianship because of the " 'same problem.' "
The juvenile court found that father had made no progress and mother had made minimal progress. In making the finding of minimal progress, the juvenile court noted that mother had another child that has been in a guardianship for over two years because of mother's substance abuse; mother's failure to complete a residential treatment program; her inconsistent visitation with the minor; her dismissal from dependency drug court; and her current incarceration and length of sentence. The juvenile court noted it had reviewed the dependency file and the six-month review report, and considered mother's testimony and the exhibits she submitted, in reaching its decision.
Mother filed a timely notice of intent to file a writ petition. On October 30, 2019, counsel for mother filed a document with this court stating she saw "no arguably meritorious grounds that may exist for either reversal [or] modification" of the juvenile court's order terminating reunification services and setting a section 366.26 hearing. By order of this court filed on October 30, 2019, mother was given leave to file a petition for extraordinary writ in propria persona. Mother filed a writ petition on November 8, 2019.
DISCUSSION
Mother contends the juvenile court's findings were not supported by substantial evidence and therefore, the juvenile court abused its discretion. We disagree.
Standard of Review
Section 366.21, subdivision (e)(1) governs the proceedings at the six-month review hearing. Section 366.21, subdivision (e)(1) provides that where, as here, the minor who is the subject of the section 300 proceeding is under three years of age on the date of the initial removal from the home of the parent(s), a finding by clear and convincing evidence that the parent failed to "make substantive progress in a court-ordered treatment plan" is a prerequisite to the setting of a section 366.26 hearing. (§ 366.21, subd. (e)(1).)
Here, as indicated above, the court set a section 366.26 hearing after making a finding that mother had failed to make substantive progress in the case in that she made only minimal progress and there was no likelihood the minor would be returned to mother's custody within the reunification period. Mother essentially argues that the evidence was insufficient to support these findings.
"We review the correctness of an order pursuant to section 366.21 to determine if it is supported by substantial evidence." (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) "[T]he substantial evidence test applies to determine the existence of the clear and convincing standard of proof ...." (In re Amos L. (1981) 124 Cal.App.3d 1031, 1038.) In applying the substantial evidence test, we adhere to the following principles: "It is the trial court's role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citation.] Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
Substantial Evidence
Substantial evidence is evidence that is " 'reasonable, credible and of solid value,' " which would allow a reasonable trier of fact to reach the conclusion the juvenile court reached. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) Where there is substantial evidence to support the order, contradicted or not, the appellate court must affirm the decision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) We must "view the evidence in a light most favorable to the respondent," and "indulge in all reasonable and legitimate inferences to uphold the judgment." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1361.)
The review report outlined mother's multiple violations of the dependency drug court case plan, her dismissal from residential treatment for noncompliance, and her failure to maintain contact and engage in services when out of custody between mid-June and August 1, 2019.
Mother had committed multiple violations of her case plan that began almost immediately after disposition. Mother had tested positive for an illicit substance on March 13, 2019, failed to appear for scheduled drug tests on multiple dates, failed to attend scheduled substance abuse counseling sessions, and failed to turn in a 12-step card establishing her attendance for multiple weeks.
On March 26, 2019, mother was ordered to complete a six-month residential drug treatment program. She was discharged from the program on April 21, 2019, for noncompliance. As of the date of the contested six-month review hearing, mother had not completed the program, due to her noncompliance and subsequent incarceration on new charges. After being dismissed from the residential treatment program after one week, mother thereafter was arrested at father's home while under the influence of heroin with needles and a glass pipe in her possession.
Mother claims she participated in services while incarcerated to the extent possible and that the juvenile court failed to consider this information. On the contrary, the juvenile court noted it had reviewed the dependency file and the six-month review report and considered mother's testimony and the exhibits she submitted regarding services while incarcerated, in reaching its decision.
The contested six-month review hearing was held approximately nine months after the section 300 petition was filed. During that time, mother failed to address her substance abuse, continuing to abuse illicit substances leading to additional criminal charges and incarceration. Mother's substance abuse was long standing; and her eldest child had been in a guardianship for over two years because of mother's substance abuse. Mother was anticipating being incarcerated another six months at a minimum, after which there were no assurances mother would not relapse into substance abuse, as she had in the past. The minor's caregiver was committed to providing the minor with a stable and permanent home.
"Childhood is short; many basic attitudes and capacities are developed in the very early years." (In re Rose G. (1976) 57 Cal.App.3d 406, 425.) A minor's need for a permanent and stable home cannot be postponed indefinitely waiting for a parent to address their long-standing substance abuse. "Childhood does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
The juvenile court did not abuse its discretion in terminating reunification services and setting a section 366.26 hearing.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final immediately as to this court.