Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. Nos. J06-00182, J06-00183
Richman, J.
By way of extraordinary writ review pursuant to California Rules of Court, rule 8.452, petitioner Joy C., the mother of minors S.B. and B.B., seeks to vacate the order of respondent juvenile court terminating reunification services and setting a hearing to terminate her parental rights in accordance with Welfare and Institutions Code section 366.26. In challenging the court’s order, petitioner asserts three errors: (1) that the Contra Costa County Children and Family Services Bureau (Bureau) failed to establish that return of the minors to her would create a substantial risk of detriment; (2) that the court erred in not returning the minors to her and offering six additional months of family maintenance services; and (3) that the court erred in delegating the section 366.26 advisement to county counsel. We conclude that petitioner’s contentions are without merit, and deny the petition accordingly.
Statutory references are to the Welfare and Institutions Code.
I. Background
This dependency proceeding commenced on January 24, 2006 when the Bureau filed section 300 juvenile dependency petitions alleging a failure to protect S.B. and B.B., who were then two and a half years and five months old respectively, within the meaning of section 300, subdivision (b). Specifically, supporting fact b-1 alleged that petitioner had failed to comply with the requirements of a voluntary family maintenance plan of January 18, 2006 by neglecting to take her psychotropic medication for a bipolar disorder, thereby placing the children at risk of harm. Supporting fact b-2 alleged that the children’s father, Anthony B. (Anthony), failed to protect them by allowing them to remain in petitioner’s care despite her instability. Supporting fact b-3 alleged that petitioner and Anthony had a history of domestic violence in the presence of the children, including a recent incident in which “both parents physically and verbally assaulted each other, cursing, pushing and shoving.”
Identical petitions were filed on behalf of S.B. and B.B.
Anthony is not a party to the instant writ proceeding.
Petitioner had a history with the Bureau that preceded the filing of the petition, including seven referrals between May 20, 1991 and August 29, 2005. The first three occurred when petitioner, herself then a minor, was a dependent of the juvenile court. The latter four occurred when petitioner was an adult, the earliest of the four occurring on April 8, 2003, just days after S.B. was born. The concerns leading to the latter four referrals involved petitioner’s inability to care for her children due to her bipolar disorder and her erratic behavior when pregnant and not on medication. Additionally, there were ongoing issues of domestic violence between petitioner and Anthony, who had been in a relationship on and off for the preceding five and a half years but were not married.
Petitioner also suffers from mild retardation.
Following another referral on October 21, 2005, the Bureau held a team decision making meeting (TDM) to assist petitioner and Anthony, offering voluntary family maintenance services, which the parents accepted. The resulting plan called for petitioner and Anthony to address issues related to cooperation between them in co-parenting, for petitioner to take her medication to control her bipolar disorder, and for a referral to family preservation. At that time, the assigned emergency response social worker noted, “Level of risk is moderate but it can escalate to high if mother discontinues her medication suddenly, or if she is suddenly overwhelmed.”
On January 18, 2006, the Bureau held another TDM to address petitioner’s medication noncompliance, which put the children at risk due to the mood swings caused by her bipolar disorder. During this TDM Anthony was “calm and friendly,” while petitioner was volatile, “going from a depressed state to a hypo manic state where she was extremely loud, angry, cursed excessively, had pressured speech, and could not control her children.”
At the TDM, petitioner acknowledged that in the past she had been inconsistent in taking her medications, even with the assistance of voluntary family maintenance services, and admitted that she had been off her medication since mid-November 2005. In addition, the Bureau had learned that petitioner’s therapist had called police near the end of November 2005 to have petitioner “5150’d,” as she had escalated and was upset, angry at Anthony, and possibly suicidal. The police checked on petitioner but declined to commit her. Additionally, although the Bureau was unaware of any physical altercations between petitioner and Anthony in the last six months, there had been loud verbal arguments in the presence of S.B. and B.B.
This refers to section 5150, a provision which authorizes a 72-hour commitment to a mental health facility of a person who, “as a result of mental disorder, is a danger to others, or to himself or herself.”
The TDM resulted in a decision by the Bureau to forward the case to the court for the filing of section 300 petitions, with S.B. and B.B. remaining in the home.
Two days later, however, the parents called the social worker to report that they were engaged in a domestic dispute involving physical and verbal assault. Petitioner, screaming and yelling obscenities, had Anthony in a chokehold and was dragging him across the floor. Anthony called 911, prompting petitioner to release him. He then left the house, and petitioner remained with the children. When an emergency response social worker arrived at the home, the police were there. S.B. and B.B. were placed in foster care and the instant petitions followed on January 24, 2006. The children were formally detained the next day.
Shortly after detention, the children were placed with Anthony. However, a few weeks later, he contacted the social worker and advised that his health was poor—he has a standing diagnosis of major depressive disorder with anxiety, as well as diabetes and blood pressure problems—and he was unable to care for the children at that time. The children were then placed with their maternal great grandmother.
An uncontested jurisdictional hearing was held on March 10, 2006, during which allegation b-1 was amended to allege that petitioner “has mental health issues which affect her ability to appropriately care for her children when she is not taking her psychotropic medications. [She] is presently pregnant and unable to take her medications.” The court sustained allegation b-1 as amended, as well as allegation b-2, and dismissed allegation b-3. After finding the minors to be within the jurisdiction of the juvenile court, the court set a disposition hearing for April 7, 2006.
In a disposition report prepared for the April 7 hearing, social worker Sonia Reveco confirmed that petitioner was six weeks pregnant with her third child and, as reported by Dr. Wagle, petitioner’s psychiatrist, due to her pregnancy, she could not take medication to control her bipolar disorder.
In terms of “assessment/evaluation,” Ms. Reveco recommended family reunification services for both parents, stating, “Both parents need to seriously address and work on their respective health issues. Since the mother is pregnant and cannot be on medication, which she needs to be stable, the Bureau feels that the children’s safety and well being cannot be guaranteed with mother at this time. [¶] . . . [¶] In addition, both parents need to learn parenting skills and ways to communicate with each other in a healthy, respectful manner. The mother appears sincere in her efforts to control her behavior and is progressing with her domestic violence classes. Both parents are cooperative and the family dynamics [sic] appears to have calmed down for now. [¶] It is also important for both parents to continue to attend individual therapy and maintain contact with their psychiatrists. Also the parents need to start couple’s counseling. They have two children and another one on the way.”
The case plan for petitioner included the following objectives: not involving the children in attempts to control or intimidate Anthony, complying with medical or psychological treatment, cooperating with the social workers, attending and demonstrating progress in a domestic violence program, complying with all orders of the court, maintaining a relationship with the children by following the conditions of the visitation plan, and expressing anger appropriately and not acting negatively on impulses. The matter was then continued for a six-month review on September 8, 2006.
In a status review report prepared for the six-month review, social worker Linda Trombettas reported that although petitioner had been unable to take medication in the early stages of her pregnancy, she was now taking Haldol to treat her bipolar disorder, as confirmed by Dr. Wagle. Ms. Trombettas also noted that petitioner had begun individual therapy and was attending and making progress in a domestic violence program, although the relationship between petitioner and Anthony remained “tremulous and unpredictable.” She observed, however, that Anthony’s therapist had contacted her in both May and July 2006 to advise that petitioner had left “numerous, angry, life threatening voicemails” on Anthony’s telephone. Ms. Trombettas opined that both parents needed to continue “to learn parenting skills and ways to communicate with each other in a healthy, respectful manner.” Reiterating that both parents need to address their respective health issues and that petitioner “needs to stabilize her mental health, manager [sic] her anger and complete her domestic violence program,” Ms. Trombettas concluded that “the children’s safety and well being cannot be guaranteed with either parent at this time,” and recommended that both parents continue family reunification services.
At the six-month review, the court adopted the Bureau’s recommendations and continued the matter for a 12-month review on February 23, 2007. In the 12-month status review report, the Bureau recommended “terminating Family Reunification Services to [petitioner] and the father . . . and setting a 366.26 selection and implementation hearing.” The report detailed petitioner’s ongoing and unsuccessful struggles to stabilize her mental health. According to the report, petitioner, who had given birth to A.B. on October 3, 2006, was taking Haldol to control her bipolar disorder but could be in need of a higher dose, which her psychiatrist would not prescribe because petitioner “does not take birth control and ‘gets pregnant easily.’ ” Petitioner was also inconsistent in participating in her individual therapy sessions, missing some office visits due to claimed transportation and childcare problems. Petitioner had also been attending a domestic violence program, but was dropped from the program after she failed to return.
As to the relationship between petitioner and Anthony, Ms. Trombettas described it as “tumultuous and unpredictable.” She expressed concern regarding the inability of the parents to handle crisis when it arises, explaining that they constantly called the Bureau to resolve issues for them. She also explained that a domestic violence restraining order—the protected person being Anthony and the restrained person being petitioner—had been issued on May 5, 2004 and was valid until May 4, 2007. According to Ms. Trombettas, both parents were in continual violation of the order, “enforc[ing] it only when they feel like it.” She concluded: “The [Bureau] is now at the 12-month review and mother and father on [sic] are not able to take on the responsibility of providing stability or security for S.B. and B.B. or complete all components of their Family Reunification Plan. The [Bureau] feels that the children’s safety and well being cannot be guaranteed with either parent at this time. The [Bureau] recommends terminating Family Reunification Services to [petitioner and Anthony] and setting a 366.26 selection and implementation hearing.”
For various reasons, the 12-month review was continued multiple times, and on August 27, 2007, a contested 18-month permanency review hearing was held. In the permanency hearing status report, Ms. Trombettas reiterated the Bureau’s recommendation that family reunification services be terminated and a section 366.26 selection and implementation hearing set. In addition to summarizing petitioner’s history with the Bureau, the salient facts of which we have already described above, the report also detailed new problems that had arisen since the 12-month status report.
Specifically, on June 5, 2007, petitioner repeatedly called the Bureau in tears, distraught over an incident that allegedly occurred when her brother had picked her and A.B. up from a recent therapy appointment. She explained to Ms. Trombettas that her brother, who was unlicensed, was drunk and high when he arrived, and that S.B. was riding in the front seat without a child car seat. Petitioner nevertheless accepted a ride. Ms. Trombettas inquired why, rather than immediately calling the Bureau, petitioner got in the car with the baby, and the only explanation she offered was that she did so because her grandmother was supposed to pick her up. Petitioner’s grandmother denied that the incident took place, and the Bureau was unable to verify petitioner’s story.
The following day, petitioner, again in tears, repeatedly contacted the Bureau, insisting to a clerk that she speak with Ms. Trombettas or her supervisor, both of whom were unavailable. By the end of the day, petitioner, still in tears, told the clerk she “wanted to be 51-50’d.” The clerk located Ms. Trombettas, who contacted the Richmond Police and requested they do a health and safety check. Petitioner was not home when they did so. As a result of petitioner’s behavior, the Bureau became concerned that petitioner was decompensating.
On June 11, 2007, Ms. Trombettas made an unannounced visit to petitioner’s home. She asked to see petitioner’s medications and discovered that two different prescriptions, filled roughly two months prior, were still full, “raising concerns that [petitioner] has not been taking her medications.” Petitioner claimed Dr. Wagle had given her extras, a claim denied by Dr. Wagle. Ms. Trombettas also noticed that petitioner’s home “looked in disarray compared to the previous visits . . . .”
The following day, the Bureau made a decision to remove A.B. from petitioner’s care, “due to mother’s recent behaviors around riding in the car with the baby and her brother who was believed to be high and had no license. In addition, her history of not being medication compliant, erratic messages, 51-50 requests, and unusual behavior was cause for alarm that the infant was at risk.”
In addition to summarizing petitioner’s history with the Bureau and highlighting these new concerns, the August 27, 2007 status review report also provided Ms. Trombettas’s “assessment/evaluation,” as follows: “[Petitioner] has worked on her case plan inconsistently. There are weeks at a time where she has demonstrated to be dependable and weeks at [a] time where she has been unable to follow-through with appointments. The [Bureau] remains concerned regarding the history of the combative relationship between [petitioner] and [Anthony] and the long history of child welfare involvement. [Petitioner] continues to have the same issues that brought this case to the attention of the [Bureau] in 2003 when S.B. was first born. Even with all of the numerous liaisons involved in her life, [petitioner] continues to struggle with her mental health medication compliance, crisis management, anger/domestic violence issues and continuously making poor decisions that place her children at risk. Although she loves her children, she has not demonstrated an ability to follow through with her case plan or incorporate the teachings into her life. . . . The [Bureau] continues to recommend terminating Family Reunification Services to [petitioner] and to the father . . . and setting a 366.26 Selection and Implementation Hearing to determine the most appropriate permanent plan for the children.”
The contested hearing was held on August 27, 2007 with Ms. Trombettas testifying as the sole witness. On the significant issue of medication compliance, Ms. Trombettas testified that during the time she had been assigned to the case, petitioner had not consistently been in compliance with her medication. She believed that petitioner was off her medications in May of that year, because in two different meetings held to go over petitioner’s case plan, petitioner was anxious and did not comprehend what was said to her, which is consistent with her behavior when she is not on her medications. Ms. Trombettas’s supervisor, who attended one of the meetings, noted in the file that petitioner’s speech was getting “increasingly fast,” “pressured and rapid.” And, she explained, petitioner “[is] perseverating on the same issues and is not able to hear any feedback about what has or not been accomplished on the case. She’s complaining that she’s having chest pains from the stresses and anxiety.” Additionally, in May, Ms. Trombettas received a voicemail message from petitioner’s therapist, who opined that she had been more agitated lately.
Ms. Trombettas also testified to her belief that petitioner was still off her medication at the end of June or beginning of July because she went to petitioner’s home and counted her medications, finding the fully prescribed amount of pills. She reiterated her belief that petitioner presents a moderate risk to the children, but the risk can escalate to higher if petitioner is noncompliant with her medications or is suddenly overwhelmed. When asked about petitioner’s recent medication compliance, Ms. Trombettas acknowledged that on July 17 and again in August, petitioner had received her medication by way of injections.
Ms. Trombettas confirmed that approximately a month prior to the hearing, A.B. was removed from petitioner’s care over concerns about petitioner “decompensating and not being medication compliant.” As Ms. Trombettas summarized it at the hearing, petitioner “had made a couple of calls to the [Bureau] seeking mental health attention, wanting to be 5150’d. But she did state to me when I asked her, it’s not that she wanted to harm herself or her child but she wanted mental health attention.”
On the issue of domestic violence, Ms. Trombettas testified that petitioner was dropped from a group domestic violence program because she was in denial of her anger management issues, but she was currently in individual therapy and was, according to the therapist, benefiting from the domestic violence and anger management therapy. According to the therapist, petitioner was also working on her coping skills. Ms. Trombettas acknowledged that there had been no incidences of domestic violence between petitioner and Anthony for over six months.
Ms. Trombettas also testified that to petitioner’s credit she had looked into daycare and preschool for her children as recommended by the Bureau. She also confirmed that petitioner had appropriate housing, with food and toys available for the children, had obtained car seats to accommodate the children, and was capable of taking the children to their necessary doctor’s appointments without supervision.
Admitted into evidence at the contested hearing was a June 29, 2007 parenting evaluation report prepared by Beth Smith, a family clinician with Through the Looking Glass, a national resource center for parents with disabilities. The report was based on seven visits Ms. Smith had with petitioner and her children, some at home and some out in the community, in April, May and June 2007. As to petitioner’s parenting strengths, Ms. Smith observed that petitioner eagerly participated in all of the visits and “clearly loves all three of her children very much.” Her home was clean and well organized and she prepared appropriate snacks for the children. Petitioner planned activities for the visits, and maintained a calm demeanor when S.B. presented her with challenging behaviors.
The report was omitted from the record on review. The Bureau filed a motion to augment the record to include the report. There being no objection from petitioner, the request is granted.
On the other hand, Ms. Smith expressed concerns regarding petitioner’s parenting abilities: “Parenting three children four years old and younger would be a formidable challenge for any parent. Even though [petitioner] maintained a gentle, nurturing demeanor with the children during visits I would be concerned at the present time about her capacity to sustain this ability for long periods of time. [Petitioner] exhibited a high level of anxiety and excitability. Even during our visits, sometimes she would began [sic] to talk rapidly about several subjects and appear agitated. With support, she was usually able to calm herself and refocus on her children. She usually called me on the phone each week at least once between visits, asking me in an urgent tone to call her as soon as possible. She talked rapidly for long periods of time, if allowed, usually about conflict with her grandmother, a subject that is extremely upsetting for her. [Petitioner] alleges that her grandmother’s home is not a good place for the children at all, and she worries a great deal about how they are being treated there. It is to her credit that she reaches out for support, but I worry about the level of anxiety she expresses and her potential to become overwhelmed if support is not readily available. I also understand that in recent weeks concerns arose about medication compliance, which is one of the reasons A.B. was removed from her custody. As a result, she may still be vulnerable to crisis states, and therefore needs continued monitoring and parenting support.” Ms. Smith then recommended that petitioner and her children be provided home-based parent-child relationship work with a mental health professional.
Ms. Trombettas testified that she agreed with Ms. Smith’s concern about petitioner’s anxiety level and her potential to become overwhelmed if support is not readily available. She also agreed with Ms. Smith’s evaluation that petitioner “may be vulnerable to crisis states and therefore needs continued monitoring and parenting support.” Ms. Trombettas reiterated the Bureau’s position that, because petitioner’s behavior and medication compliance are inconsistent, there remain concerns about the children’s safety.
In response to questions from petitioner’s counsel, Ms. Trombettas confirmed that she had received communications from several professionals—namely, Pat Marlow (petitioner’s therapist), Ms. Smith, and Jennifer Emerson from Childhood Mental Health—who suggested petitioner be provided hands-on parenting services with the children. She testified, however, that no one has suggested petitioner is able to independently care for the children herself.
After testimony, the court heard argument on the Bureau’s recommendation that reunification services be terminated and a section 366.26 hearing set. Counsel for the Bureau urged the court to follow its written recommendation: “[W]e are at the 18-month hearing. And there is clear substantial risk of danger to S.B. and B.B. if returned home to their mother. Essentially, the past 18 months and even before that, because we had a voluntary family maintenance program as well, the mother has not been in medication compliance. There has been domestic violence. Although she is addressing her domestic violence, I think the evidence shows that mother unfortunately has not been able to really comply with her medications to be able to utilize all the services that Ms. Trombettas had put in place. [¶] Here at the 18-month, the mother is requesting further services in trying to do some home based. However, that was available, some portion of that was available through wrap around or through family preservation, however, the mother was not in compliance with her medication. She could not stabilize. Considering B.B. is two years old, typically family reunification goes to six months and possibly twelve. At this point, we are at 18. And I don’t believe the Court can find that the children are safe in mother’s home.”
Counsel for S.B. and B.B. concurred with the Bureau’s recommendation; “We’re simply out of time here. The mother hasn’t shown the consistency for these minors to be returned to her. She’s had issues in June. She’s had another child removed from her in her care. The Bureau’s been recommending since February that services be terminated, and we’re finally getting around to making a permanent plan for the children, and we need to do that. It’s simply been too long.”
Counsel for petitioner urged the court to reject the Bureau’s recommendation and order home based services instead: “The standard [is] the [c]ourt shall order the return of the child unless there’s a substantial risk of detriment. And the social worker bears the burden of that. I don’t think, at this time, the social worker has met her burden. At this point in time, mother is medically compliant, she goes to a therapist weekly; she goes to another therapist weekly to focus simply on [domestic violence] and the anger management. There’s been no domestic violence in over six months. [¶] She is anxious. She does get overwhelmed. But all the professionals say all she needs is in-home base services. . . . [¶] . . . [¶] I would ask that the [c]ourt return her kids. The [Bureau] hasn’t shown detriment.”
At the conclusion of the hearing, the court adopted the Bureau’s recommendation and terminated reunification services, explaining as follows: “I cannot return the kids at this time because I believe the [Bureau] has shown by clear and convincing evidence that return to mother would create a substantial risk of detriment to the safety of the children. Even though mother is medically compliant with her medicine for the last what, maybe two months, there’s still been issues with her apparently feeling overwhelmed and getting anxious. That’s been a consistent theme throughout the life of the case. In fact, the report from Through the Looking Glass indicates that mother has a high level of anxiety and excitability, and she often needs help dealing with the children. And there is a strong recommendation that she would need home based help to take care of the kids. And we are already at 18 months for very young children. So it is not safe to return the children to the mother.”
The court then set a section 366.26 hearing for December 10, 2007. This timely petition followed.
II. Discussion
A. There Was Substantial Evidence To Support The Juvenile Court’s Finding That Returning S.B. and B.B. To Petitioner Would Create A Substantial Risk Of Harm To The Children
As we note above, petitioner asserts three claimed errors, the first two of which are that the Bureau “failed to meet its burden that return of the minors to the mother would create a substantial risk of detriment” and that “the court erred in not returning the minors to the mother and offering six months of family maintenance services.” While framed by petitioner as two separate arguments, these essentially raise a single issue, namely, whether there was substantial evidence supporting the juvenile court’s conclusion that returning S.B. and B.B. to petitioner would create a substantial risk of harm to the children. If so, then it necessarily follows that the court did not err by not returning the children to petitioner and ordering family maintenance services.
Section 366.22, subdivision (a) provides in pertinent part, “When a case has been continued pursuant to paragraph (1) of subdivision (g) of Section 366.21, the permanency review hearing shall occur within 18 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian. The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. . . .”
We review the court’s “substantial risk of detriment” finding pursuant to the same rules that apply to other appeals: “If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court’s order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947. See also In re Katrina C. (1988) 201 Cal.App.3d 540, 547 [“In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.”]; In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
Here, contrary to petitioner’s protestations, there is ample evidence of a substantial risk of detriment to S.B. and B.B. if they were returned to petitioner. A primary concern leading to their removal was petitioner’s failure to take medication to control her bipolar disorder and stabilize her behavior. The permanency hearing occurred on August 27, 2007, more than 18 months after the children were removed. The evidence strongly suggested that at the time of the hearing, petitioner had only been medication compliant since July 17, 2007—a period of less than two months. The court could have readily concluded that this was insufficient to demonstrate petitioner’s ability to maintain medication compliance for the long term, particularly given her lengthy history of mental instability and lack of commitment to taking her psychotropic medications.
There was also substantial evidence in both the status reports and Ms. Trombettas’s testimony concerning petitioner’s extreme anxiety, which was often reflected in repeated telephone calls made to the Bureau. In May and June, a few months before the permanency hearing, petitioner called the Bureau multiple times a day on different days. She was often hysterical and in tears, and on one occasion requested that she be 5150’d. And just days before the permanency hearing, which was after petitioner had begun receiving her medication by way of injections, she again made repeated phone calls to the Bureau. She would often persist with the phone calls, even after she had spoken with someone.
Additionally, other professionals also expressed concern about petitioner’s level of anxiety and propensity to become overwhelmed. For example, Ms. Smith of Through the Looking Glass observed that petitioner “exhibited a high level of anxiety and excitability,” and worried “about the level of anxiety she expressed and her potential to become overwhelmed if support is not readily available.” Ms. Smith opined that petitioner “may still be vulnerable to crisis states” and expressed concern as to whether petitioner could sustain a quality level of care over a prolonged period of time. Likewise, in a telephonic report to Ms. Trombettas, Ms. Marlow, petitioner’s therapist, had related telephone calls she had with petitioner in which petitioner was “wild with hysteria.” And just months before the permanency hearing, petitioner’s anger management therapist left Ms. Trombettas a voice mail message in which he stated that petitioner had been “more agitated as of late.” Indeed, in June 2007, petitioner herself recognized her instability, requesting first that she be 5150’d and then that she be admitted to a mental health hospital.
The Bureau also presented evidence that petitioner continued to make decisions that placed her children at risk, a prime example being the June 5 incident with her brother, when petitioner purportedly accepted a ride for herself and A.B. despite her belief that her brother was driving without a license, was drunk and high, and had failed to restrain S.B. in a car seat. The totality of this evidence establishes that petitioner, despite the passage of more than 18 months, had yet to ameliorate the concerns, primarily the lack of medication compliance and her mental instability, that originally led to the removal of S.B. and B.B. from her care. This was substantial evidence that supports the court’s conclusion that returning S.B. and B.B. to petitioner would create a substantial risk of harm to the children.
Despite the above evidence, petitioner claims the Bureau “presented no evidence that returning the children to the mother would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the children.” In claimed support, she relies on the following exchange between petitioner’s counsel and Ms. Trombettas during the contested hearing:
“[Petitioner’s counsel]: If mom continues to be medically compliant, continues to see her therapist who she’s seen for over a year, continues to go to weekly counseling over anger management and domestic violence, and her home remains clear and safe, what would be the detriment to the return of the kids?
“Ms. Trombettas: I don’t feel that I could appropriately answer something that—in the future, I couldn’t foresee what may or may not happen. You’re asking me to take a guess of what might happen if the kids are returned? And I’m not sure having all three kids, what may happen.
“[Petitioner’s counsel]: To clarify, it would be two kids?
“Ms. Trombettas: The two children.
“[Petitioner’s counsel]: But without—I’m not asking you to speculate what may happen. But if those things were in place, what detriment today would you see?
“Ms. Trommbettas: Well, if I can quote what Beth had left me, Through the Looking Glass, which I feel is more probably appropriate because that’s her specialty, ‘She had concerns about mother being able to sustain quality level of care.’ ”
From this, petitioner concludes that Ms. Trombettas “was unable to articulate a substantial risk of detriment to the children if they were returned home. In order for the worker to state a risk she would have to speculate.” We disagree with petitioner’s conclusion for two reasons.
First, while Ms. Trombettas was reluctant—reasonably so—to answer counsel’s hypothetical, she ultimately did respond to the question, explaining that she concurred with Ms. Smith’s concern about petitioner’s ability to sustain an appropriate level of care over the long term.
Second, at a later point in the hearing, she articulated the basis for her conclusion that the children would be at risk if returned to petitioner. In response to the question from counsel for S.B. and B.B., “Do you feel it’s safe to return the two children to the mother at this time,” Ms. Trombettas responded that the Bureau feels the children would be at risk because “there’s been an inconsistency with mother’s behavior and also her immediate compliance, and it may be overwhelming for the children . . . .” She also expressed concern regarding how petitioner “handles herself when she’s overwhelmed.”
In further support of her argument that the Bureau did not establish a substantial risk of detriment to the minors, petitioner details how she has participated in and benefited from court ordered services, such as anger management and domestic violence therapy, claims she is medication compliant, found a head start program for her children, obtained a car and car seats for her children, and has appropriate housing, food, and toys for the children. While these accomplishments are undoubtedly commendable, they do not negate the abundant evidence demonstrating that petitioner has failed to maintain medication compliance for a significant period of time, continues to exhibit episodes of extreme anxiety, makes decisions that put her children at risk, and has a propensity to become overwhelmed and unable to care for her children without support.
Alternatively, relying on In re Janet T. (2001) 93 Cal.App.4th 377 (Janet T.), petitioner claims the Bureau has not established that even if she went off her medication there would be a substantial risk to the children. According to petitioner, the Janet T. court held “that there was insufficient evidence to support the claim that mother’s numerous mental and emotional problems created a substantial risk of suffering serious physical harm or illness.” Claiming that Ms. Trombettas based her assessment that petitioner was not medication compliant solely on her observations that petitioner’s home was in “disarray” on one occasion and that she gets anxious, petitioner analogizes this to the situation in Janet T., where the court concluded, “[N]either the petition nor reports allege necessary facts to support the conclusion the children were at a substantial risk of serious physical injury or illness because of mother’s mental and emotional problems.” (Id. at p. 390.)
Janet T., supra, 93 Cal.App.4th 377, is of no assistance to petitioner, for both procedural and substantive reasons. Procedurally, the Janet T. court considered whether the sustained allegations of the section 300 petition were sufficient to establish juvenile court jurisdiction, a question it ultimately answered in the negative. (Id. at p. 380.) Here, we are well beyond the jurisdiction phase and thus are not concerned with the allegations in the petition. Substantively, unlike in Janet T., the status review reports, as well as Ms. Trombettas’s testimony, support the juvenile court’s conclusion that there would be a substantial risk of detriment to S.B. and B.B. if they were returned to petitioner’s care.
Finally, relying on Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, petitioner suggests that the juvenile court had the authority at the 18-month permanency review hearing to return S.B. and B.B. to her care while providing family maintenance services under court supervision. From there, she argues that multiple professionals “agree[d] that home based services would be appropriate in this case.” We do not disagree that Bridget A. recognizes the court’s authority, at the 18-month permanency review, to “order family maintenance services beyond that time for a child who has been returned to the custody of his or her parent.” (Id. at p. 312.) However, the court here did not err in failing to adopt this procedure.
Petitioner erroneously cites the case as In re Marilyn A. (2007) 148 Cal.App.4th 285).
Significantly, this procedure assumes that it is appropriate to return the child to the custody of his or her parent, which can only occur if the court determines there is no substantial risk of detriment to the child in doing so. (§ 366.22, subd. (a).) Here, however, the court found that returning S.B. and B.B. to petitioner raised a substantial risk of detriment to the children—a finding supported by substantial evidence. Additionally, petitioner relies on the various professionals, Ms. Smith, Ms. Emerson, and Ms. Marlow, who recommended that she be provided in-home services. However, as the Bureau correctly notes, not one single professional recommended that the children be returned to petitioner’s care.
B. It Was Harmless Error For The Court To Delegate The Section 366.26 Advisement To County Counsel
At the conclusion of the permanency hearing, the court set the section 366.26 hearing and requested that counsel for the Bureau “give writ rights.” Counsel then advised, “[Petitioner] and [Anthony], if you’re not in agreement with today’s orders, you do have a right to file a notice of intent to file a writ petition with the Superior Court Clerk within seven days of today’s date.” Petitioner now contends that “the court erred in delegating the [section] 366.26 advisement to county counsel,” arguing that “delegating this important notice violates separation of powers” and that counsel failed to advise the parents that if they wished “to preserve any right to review on appeal of the order setting the hearing under section 366.26, the party is required to seek an extraordinary writ.”
Petitioner’s argument fails, however, because even if the court did in fact err, such error was harmless as petitioner timely filed a notice of intent to file a writ petition, as well as the writ petition itself. Petitioner therefore suffered no prejudice.
III. Disposition
The petition is denied on the merits. (Cal. Rules of Court, rule 8.452(i)(1).) Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur: Kline, P.J., Haerle, J.
As is pertinent here, section 300, subdivision (b) provides a child is subject to juvenile court jurisdiction if the “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse. . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.”