Opinion
F076465
02-02-2018
AMANDA H., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Parties in Interest.
Jennifer O. Trimble, for Petitioner. No appearance for Respondent. John P. Doering, County Counsel, and Maria Elena Ratliff, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 517485)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q. Ameral, Judge. Jennifer O. Trimble, for Petitioner. No appearance for Respondent. John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Party in Interest.
Before Levy, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Petitioner Amanda H. seeks an extraordinary writ directing the juvenile court to vacate its orders issued at a contested 18-month review hearing (Welf. & Inst. Code, § 366.22), terminating her reunification services as to her now 23-month-old daughter, Addison, and setting a section 366.26 hearing to implement a permanent plan of adoption. Amanda contends the juvenile court erred in not returning Addison to her custody. We deny the petition.
All statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL BACKGROUND
In January 2016, the Stanislaus County Community Services Agency (agency) responded to a report that Amanda and newborn Addison tested positive for methamphetamine. Amanda and Steven, Addison's father, smoked methamphetamine daily throughout Amanda's pregnancy. They both had longstanding drug problems and had lost custody of other children.
Amanda told the investigating social worker she and Steven were living in a "drug house" but planned to move in with her grandmother. She first started using drugs approximately 13 years before, at the age of 15. She agreed to family maintenance services twice in the past but did not complete her case plan and lost custody of her children. She denied any mental health or domestic violence problems, although domestic violence was a problem in past relationships.
Steven told the social worker he was released from prison the year before after serving a 12-year sentence for voluntary manslaughter. In 2012, while in prison, he lost custody of a son and was denied reunification services because of his criminal record and substance abuse. He began using marijuana at the age of eight and subsequently used methamphetamine, heroin, cocaine and hallucinogens. He also denied any mental health problems or domestic violence.
The juvenile court exercised its dependency jurisdiction over Addison (§ 300, subd. (b)) and ordered the parents to participate in parenting, mental health, substance abuse services, and weekly supervised visitation. The agency placed Addison in foster care.
By the six-month review hearing, scheduled in August 2016, Amanda was participating in all of her court-ordered services and testing negative for drugs. However, the agency questioned her parenting ability because she was harsh with her and Steven's older children, who accompanied her to visits with Addison, and she was unable to control them. In addition, she appeared distant with Addison and not very interactive. Amanda also appeared to be "enmeshed and co-dependent" with Steven. Steven, meanwhile, tested positive for methamphetamine and was discharged from a substance abuse treatment facility because of his hostile and verbally aggressive behavior.
The agency recommended the juvenile court continue reunification services for Amanda in the hope that she would successfully reunify with Addison if given more time. The agency did not believe Steven could reunify based on his lack of progress and recommended the court terminate his services. The agency also informed the court that Addison was doing exceptionally well and bonding with her foster care parents who wanted to adopt her.
On August 24, 2016, the day before the six-month review hearing, Amanda and Steven married. The hearing was continued to September.
In September 2016, following a contested six-month review hearing, the juvenile court terminated Steven's reunification services and continued Amanda's to the 12-month review hearing in February 2017. The court found that Amanda made good progress, but admonished her that continuing her relationship with Steven could prevent her from reunifying with Addison. The court added codependency to Amanda's counseling requirement, and a mental health assessment to her case plan.
In January 2017, Amanda's attorney filed a modification petition under section 388, asking the juvenile court to return Addison to Amanda's custody. As changed circumstances, her attorney alleged that Amanda's final barrier to reunification, i.e., her relationship with Steven, was overcome when they separated on December 26, 2016, after Steven hit her, causing a black eye. They remained separated and Amanda maintained her sobriety, lived in safe housing, and participated in her services plan.
The juvenile court denied Amanda's section 388 petition, finding her separation from Steven too recent to constitute a change in circumstances. The court explained, "[Amanda] knew her continued relationship could adversely impact reunification ...."
Amanda continued to make progress in her services plan. She completed a parenting class, participated in individual counseling to address domestic violence and codependency and consistently tested negative for drugs. However, she did not consistently attend Alcoholics/Narcotics Anonymous (AA/NA) meetings and was required to arrive an hour early for visits because she had a history of not showing up, cancelling, or leaving early. In addition, the agency believed Amanda maintained a relationship with Steven, though she claimed otherwise. Consequently, the agency did not advance Amanda's visitation to community visits, afraid she would include Steven in the visit. The agency opined Amanda's progress was "fair" and recommended the juvenile court continue her services to the 18-month review hearing.
In February 2017, the juvenile court continued Amanda's reunification services to the 18-month review hearing scheduled for July 2017. On June 28, 2017, Amanda filed for divorce. The same day, she had a monitored community visit, which reportedly went well.
By the 18-month review hearing, Amanda had completed her case plan requirements, except outpatient drug treatment through the First Step Perinatal Program (First Step), and the agency reported that she continued to make progress. However, the agency believed that she and Steven maintained a relationship. As evidence, the agency pointed to their intact marriage and constant contact. Amanda referred to Steven as her best friend and wanted to have joint visits with Addison. They also had the same address, even though they denied living together. The agency opined that it would be detrimental to return Addison to Amanda's custody and recommended the court terminate her reunification services.
Addison, meanwhile, had been moved from her foster parents because of allegations of physical abuse and neglect. The neglect allegation was substantiated. The agency placed her in a receiving home, awaiting placement in a new concurrent home.
On July 13, 2017, Amanda requested a contested hearing, which the juvenile court conducted on October 13, 2017. Prior to the hearing, the agency filed additional information with the court, including a police report that Steven was arrested on July 23rd for possession of methamphetamine and failure to register as a sex offender. Amanda was aware of his arrest because she was a passenger in his vehicle when the police pulled him over. She explained they attended the same AA/NA meeting and he gave her a ride home. She wanted to tell her social worker about the arrest but was afraid of how it would be perceived. She subsequently went to different meetings to avoid running into Steven.
On September 21, 2017, Addison, her new foster mother, Amanda, and Steven attended a medical appointment for Addison at Oakland Children's Hospital. The following day, the foster mother contacted the social worker who summarized their conversation in a service log dated September 22, 2017. The foster mother stated Amanda called Steven "babe" throughout the day and they kissed each other goodbye at the end of the day. Amanda also planned to time her divorce hearing so she could withdraw the dissolution petition if she did not reunify with Addison.
Amanda made an offer of proof at the contested 18-month review hearing that she was scheduled to graduate from First Step the following week and planned to attend after care at that facility. She had been sober for 635 days, consistently tested negative for drugs, attended three weekly AA/NA meetings and was on step eight of the 12-step program. She continued to reside with her grandmother, applied for a job, and filed for divorce on June 28, 2017. She denied kissing Steven at the medical appointment or making her divorce contingent on whether she reunified with Addison. She continued to visit Addison twice a week; once at the agency and once at First Step. Her offer of proof was accepted by the parties.
The agency called Amanda as a witness after the juvenile court refused to consider the September 22nd log notes. She denied discussing the divorce with the foster mother and remaining in an intact relationship with Steven. She loved Steven because they had Addison but believed their relationship was "toxic." Asked why she needed to divorce him, she stated "Because CPS says that ... we have to because apparently he's a danger." Amanda, however, did not believe he was a danger. Nor was she concerned about his methamphetamine use or status as a sex offender registrant. She believed Addison was safe around Steven but would protect her by not allowing her around him.
Steven testified he began drug testing before his arrest in July and denied hitting Amanda or Addison. Asked whether he considered himself a danger to them, he answered, "Absolutely not." He received the petition for dissolution but had not filed a response. He did not know he was required to file one.
The juvenile court accepted the September 22, 2017, log notes as impeachment of the parents' testimony.
The juvenile court found it would be detrimental to return Addison to Amanda's custody given Amanda's inability to separate from Steven and the danger he posed to Amanda because of his drug use and propensity for domestic violence. The court terminated Amanda's reunification services and set a section 366.26 hearing for February 13, 2018, to select a permanent plan.
Steven also filed an extraordinary writ petition, challenging the juvenile court's detriment finding as to Amanda (Steven K. v. Superior Court (Jan. 8, 2018, F076466) [nonpub. opn.]). We denied the petition. --------
DISCUSSION
Amanda contends evidence she completed her case plan and maintained sobriety for a substantial period compelled the juvenile court to return Addison to her custody. We disagree.
The juvenile court's decision whether to return a child to parental custody at the 18-month review hearing turns on whether doing so would place the child at a substantial risk of detriment. Section 366.22 governs the 18-month review hearing and provides, as relevant:
"After considering the admissible and relevant evidence, the court shall order the return of the child to the physical custody of ... her parent ... unless the court finds, by a preponderance of the evidence, that the return of the child to ... her parent ... would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.22, subd. (a)(1).)
Section 366.22, subdivision (a)(1) further provides that the failure of the parent to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that the return of the child would be detrimental.
On a challenge to the juvenile court's finding of detriment, we review the record to determine whether it is supported by substantial evidence. "In so doing, we consider the evidence favorably to the prevailing party and resolve all conflicts in support of the [juvenile] court's order." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) We do not inquire whether the evidence supports a contrary finding, but instead whether substantial evidence, contradicted or not, supports the finding actually made. (Adoption of A.B. (2016) 2 Cal.App.5th 912, 925.) We conclude substantial evidence supports the juvenile court's detriment finding.
The juvenile court removed Addison from Amanda's custody because of Amanda's drug use, specifically methamphetamine. Amanda had a longstanding history of drug use and exposed Addison to the drug in utero. It is undisputed that Amanda completed her court-ordered services and maintained her sobriety throughout the reunification period. What that means under the statute is that there was not "prima facie evidence" of detriment. In other words, the court's finding of detriment was not based on her failure to regularly participate and make substantive progress in her services. However, the court may still find other evidence to support a detriment finding.
Here, the juvenile court found it would be detrimental to return Addison to Amanda's custody because of Amanda's ongoing relationship with Steven and inability to understand the danger he posed, i.e. his ongoing methamphetamine use. Just three months before the 18-month review hearing, he was arrested for possession of methamphetamine and Amanda was in the vehicle where the methamphetamine was present. The court could reasonably infer that Steven and Amanda were jeopardizing Amanda's sobriety by placing her in the presence of drugs and ultimately endangering Addison should she be returned to Amanda's custody. The court could also infer from the evidence that Steven and Amanda intended to remain an intact married couple, given the frequency and nature of their contact.
In deciding whether to return a child to parental custody, the juvenile court must determine whether the child would be safe. In this case, the juvenile court decided that Addison would not be safe in Amanda's custody; that it would be detrimental and substantial evidence supports its decision.
Amanda further contends the agency's failure to advance visitation from monitored at the agency visitation center or First Step to community visits was unreasonable. As Amanda correctly points out, "[v]isitation is an essential component of any reunification plan." Consequently, "[v]isitation shall be as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).)
Amanda, in essence, argues the agency abused its responsibility in managing the details of visitation by not exercising its discretion to arrange community visits. However, she never raised the issue at any of the hearings or filed a modification petition asking the juvenile court to change the visitation order. (§ 388.) Further, she fails to show in her petition why the agency's decision not to transition to regular community visits was unreasonable given the possibility she would include Steven in the visits. Under the circumstances, the agency's decision to continue monitoring visitation was not unreasonable.
Finally, the juvenile court, unable to safely return Addison to Amanda's custody despite 18 months of reunification services, the maximum allowed by law, had no choice but to set a section 366.26 hearing to implement a permanent plan. (§ 366.22, subd. (a)(3).)
We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.