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Andrea T. v. Superior Court (Los Angeles County Dept. of Children and Family Services)

California Court of Appeals, Second District, Seventh Division
Sep 9, 2008
No. B207214 (Cal. Ct. App. Sep. 9, 2008)

Opinion

NOT TO BE PUBLISHED

Writ petition to review order setting hearing under Welfare and Institutions Code section 366.26. S. Patricia Spear, Judge. Super. Ct. No. CK62409

Law Offices of Barry Allen Herzog and Ellen L. Bacon for petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Timothy M. O’Crowley, Senior Deputy County Counsel for Real Party in Interest Los Angeles County Department of Children and Family Services.

Law Offices of Alex Iglesias, Steven D. Shenfeld and David Alaynick for Real Party in Interest Marcos T.


WOODS, Acting P. J.

Petitioner Andrea T. seeks extraordinary writ relief (Welf. & Inst. Code,§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452) from the juvenile court’s order, made on April 2, 2008 at the conclusion of the statutory limit for reunification (§ 366.22), setting a hearing pursuant to section 366.26 to consider selection and implementation of a permanent plan for her 12-year-old daughter Alexandrea T. We deny the petition, finding no merit in Andrea T.’s contention the court erred in determining Alexandrea would be at risk if returned to Andrea T.’s custody.

All statutory references are to the Welfare and Institutions Code.

Andrea T. does not challenge the juvenile court’s order, also made on April 2, 2008, setting a section 366.26 hearing for her three-year-old daughter Jordan S.

Real party in interest Marcos T., Alexandrea’s father, has filed a “joinder” in Andrea T.’s petition. We consider this document to be a statement of support for the position asserted and relief requested by Andrea T. rather than a separate petition to review the juvenile court’s order setting the section 366.26 hearing. (See Cal. Rules of Court, rules 8.450(e), 8.452(a) [setting forth requirements for a notice of intent and writ petition to review order setting hearing under section 366.26]; cf. Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1391 [although “standard practice” permits parties to join in each other’s arguments, “joining in an argument is different from joining in a motion;” absent compliance with procedural requirements for a properly filed motion, party “joining” other party’s motion lacks standing to seek relief from the court].)

FACTUAL AND PROCEDURAL BACKGROUND

On July 9, 2006 the Los Angeles County Department of Children and Family Services (Department) received a police report advising that Andrea T. had been arrested for shoplifting and possession of drug paraphernalia. The police stated that Andrea T. had left Alexandrea waiting in the car while she went into an Old Navy store to steal merchandise. Alexandrea told the social worker that she had been with Andrea T. several times when Andrea T. would engage in shoplifting.

On February 15, 2006 the Department filed a section 300 petition to declare Alexandrea and 14-month-old Jordan dependent children of the juvenile court. The court ordered the children detained with their maternal grandparents.

In its report for the jurisdiction and disposition hearing the Department indicated Andrea T., who had a history of multiple arrests and convictions for offenses involving alcohol and drugs, had told the social worker that she and Jordan’s father often engaged in physical altercations in the presence of the children. Andrea T. also told the social worker she had an alcohol problem and had been drinking on the date of the shoplifting incident, and she had used various types of drugs but did not have a drug problem. Alexandrea told the social worker she thought Andrea T. was an alcoholic.

On June 6, 2006 Andrea T. pleaded no contest to an amended section 300 petition alleging the children were placed at risk of harm by Andrea T.’s alcohol and substance abuse, her violent altercations with Jordan’s father in the children’s presence, and her leaving Alexandrea alone in the car while committing a theft crime. The court sustained the petition; ordered the Department to provide family reunification services to Andrea T.; and ordered Andrea T. to attend a drug rehabilitation program with random testing, individual counseling to address case issues, and a parent education program. The court ordered the children suitably placed with a relative, granted Andrea T. monitored visitation, and continued the case to October 11, 2006 for the six-month review hearing (§ 366.21 subd. (e)).

The Department’s report for the six-month review hearing indicated Andrea T. had enrolled in a substance abuse program on July 26, 2006 but was terminated three weeks later for failure to attend any sessions. Andrea T. had failed to appear for drug testing and had not enrolled in individual counseling, but had participated in a parent education program while incarcerated in the Orange County jail for her February 9, 2006 offenses. The Department recommended extension of reunification services for an additional six months. The court found that Andrea T. was in partial compliance with her case plan and continued the case to April 11, 2007 for the 12-month review hearing (§ 366.21, subd. (f)).

In its report for the 12-month review hearing the Department indicated Andrea T. had yet to enroll in individual counseling, alcohol counseling and drug counseling and had not appeared for random drug testing. Although Andrea T. was initially inconsistent in visiting the children, she had recently appeared for all her weekly visits with Alexandrea. On April 11, 2007 the court found that Andrea T. was in partial compliance with her case plan, ordered the Department to continue to provide reunification services and continued the case to September 7, 2007 for the 18-month permanency review hearing (§ 366.22).

In March of 2007 Jordan had open-heart surgery. After she was released from the hospital Jordan was returned to the maternal grandparents and Alexandrea was placed with a maternal uncle and aunt.

On May 17, 2007 the Department submitted a progress report advising that Alexandrea had been removed from the home of the maternal uncle and aunt and temporarily placed with the maternal grandparents because the uncle and aunt were unable to control Alexandrea’s serious misbehavior.

For the permanency review hearing the Department prepared separate reports as to Alexandrea and as to Jordan, whose case had been transferred to the Department’s Medical Placement Unit due to his heart condition and assigned to a new social worker. In the reports the Department indicated Andrea T. had not completed a substance abuse program, having twice been discharged from programs for lack of attendance. Andrea T. was unemployed, did not have stable housing, continued to have contact with Jordan’s father despite their history of domestic violence and had been briefly hospitalized for depression and suicidal ideation. Andrea T. had tested negative for drugs four times and had missed four other tests. She was attending individual counseling and visiting consistently with Alexandrea. The Department recommended termination of reunification services. On September 7, 2007 the juvenile court continued the permanency review hearing to October 5, 2007 for a contest.

In its report for the October 5, 2007 hearing the Department indicated that on October 2, 2007 Andrea T. had been reinstated to an 18-month drug and alcohol abuse program that also required participation in 12-step meetings. Andrea T. was attending weekly individual counseling sessions and a 52-week domestic violence program. She had not progressed beyond monitored visitation due to her failure to participate regularly in substance abuse and domestic violence programs. Andrea T. was currently residing with a sister, sleeping in the living room of the sister’s home.

Following several continuances the contested permanency review hearing commenced on March 10, 2008. In reports for the hearing the Department indicated Andrea T. was making progress in her programs and her visitation with Alexandrea had been liberalized to unmonitored visits, but the earliest date she could complete her substance abuse program was August of 2008. The Department submitted on its reports. Counsel for Andrea T. cross-examined the social worker for Jordan, Jordan’s therapist testified, and Andrea T. began her testimony. The hearing was continued and resumed on March 28, 2008 with cross-examination by Andrea T.’s counsel of the social worker for Alexandrea, Chandra Jackson. Jackson testified Andrea T. had completed various court-ordered programs but was six months away from completing her substance abuse program. Jackson also testified Andrea T. was sleeping in the living room of the home of her sister, who had convictions for driving under the influence and disturbing the peace. Jackson recommended a legal guardianship with the maternal grandmother for Alexandrea.

When the hearing resumed on April 2, 2008 Andrea T. testified she was currently in the third six-month phase of her substance abuse program, had not missed any random drug or alcohol tests in the last six months, had attended Alcoholic Anonymous (AA) meetings approximately once or twice a week over the past four or five months, and was maintaining her sobriety. Andrea T. was visiting consistently with Alexandrea, had obtained employment as a child care provider, and was saving money. On cross-examination Andrea T. testified she had stopped and started drug and alcohol rehabilitation programs five times in the last several years and was currently attending AA programs. When asked what step of her 12-step program she was on, Andrea T. initially testified she believed it was step six. When questioned further about the 12 steps Andrea T. stated, “You know, I don’t know. I’m doing AA’s. I’m not doing 12-step programs.” When asked whether the 12-step program was a part of AA, Andrea T. testified, “Yes. But I do mainly groups as far as women’s groups, topics . . . . Like if there’s a topic and just daily discussion. . . . I’m not actively working the 12-step program. . . . They’re two separate things. 12-step and AA meetings are two separate things.”

At the conclusion of testimony counsel for the Department waived argument. Counsel for the children requested the court terminate reunification services, suggesting that, because Andrea T. was making progress and Alexandrea had stated a desire to be returned to Andrea T.’s care, a hearing pursuant to section 366.26 be set six months away to afford Andrea T. to make additional progress and file a petition for modification of the court’s order on a showing of changed circumstances (§ 388). Counsel for Andrea T. argued Alexandrea should be returned to Andrea T.’s custody because the Department had not met its burden to show that it would be detrimental to Alexandrea’s well-being to return her to Andrea T.

After hearing argument, the court announced its decision to terminate reunification services. The court observed that, although Andrea T. had made significant progress in her court-ordered case plan, her testimony at the hearing reflected a profound misunderstanding of AA and the 12-step program, indicating she had not acquired the necessary foundation to live a sober life. The court determined Andrea T. had not made sufficient progress to resolve her severe alcohol problem, and under those circumstances it would be detrimental to Alexandrea’s safety and well-being to return her to Andrea T.’s custody. The court proceeded to set the matter for a hearing pursuant to section 366.26 .

The court encouraged Andrea T. to continue to make progress in her substance abuse programs and suggested she may seek a change in the court’s order, prior to the section 366.26 hearing, by petition for modification (§ 388).

DISCUSSION

At the permanency review hearing the juvenile court must order a child’s return to a parent’s custody unless it finds, by a preponderance of the evidence, that the return of the child will create a substantial risk of detriment to her safety, protection, or physical or emotional well-being (§ 366.22). The record in this case contains substantial evidence to support the juvenile court’s finding of substantial risk of detriment. The record, as we have set forth, shows that Alexandrea was made a court dependent as a result of conduct by Andrea T. that reflected a serious alcohol problem. The record further shows that during the course of more than 24 months of reunification Andrea T. had a pattern of initially attending substance abuse programs for short periods, being discharged for failure to attend, and later seeking reinstatement. When the case reached the statutory limit for reunification Andrea T. was still several months away from completing a substance program, and she lacked an understanding of the nature of the 12-step program she was currently attending. Under these circumstances, there was ample evidence that Andrea T. had not resolved the problems that led to Alexandrea’s dependency and was unable to care for Alexandrea without a substantial risk of detriment to her well-being.

When we review the juvenile’s court’s findings under the substantial evidence standard, we inquire only whether there is any evidence, contradicted or uncontradicted, that supports the court’s determination. We resolve all conflicts in support of the determination, indulge in all legitimate inferences to uphold the findings and may not substitute our deductions for those of the juvenile court. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re John V. (1992) 5 Cal.App.4th 1201, 1212.) Nor is a parent’s compliance with her case plan the sole factor to be taken into account in determining whether there is a risk of detriment. (See In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139-1140; In re Jasmon O. (1994) 8 Cal.4th 398, 418-419.)

DISPOSITION

Because substantial evidence supports the juvenile court’s order to conduct hearing pursuant to section 366.26, the petition is denied on the merits.

We concur: ZELON, J.,JACKSON, J.


Summaries of

Andrea T. v. Superior Court (Los Angeles County Dept. of Children and Family Services)

California Court of Appeals, Second District, Seventh Division
Sep 9, 2008
No. B207214 (Cal. Ct. App. Sep. 9, 2008)
Case details for

Andrea T. v. Superior Court (Los Angeles County Dept. of Children and Family Services)

Case Details

Full title:ANDREA T., Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Sep 9, 2008

Citations

No. B207214 (Cal. Ct. App. Sep. 9, 2008)