Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jane A. Cardoza, Judge., Super. Ct. Nos. 92001-1 & 92001-2
Heather A. Wong, for Petitioner.
No appearance for Respondent.
Dennis A. Marshall, County Counsel and William G. Smith, Deputy County Counsel, for Real Party In Interest.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Gomes, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court issued at a contested 18-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughter H. and son R. We will grant the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In March 2006, then eight-year-old H. and five-year-old R. were taken into protective custody by the social services department (department) after R. was found wandering the neighborhood while petitioner lay intoxicated in her bedroom. She was disheveled and appeared not to have showered in days. She could barely stand and needed help walking to the police car after being arrested on an outstanding warrant for domestic violence.
Back in the home, the police found clothes strewn about and knives and cooking utensils on the floor. The rooms were filthy and there was dried feces on the bathroom floor. There were two pots of macaroni and cheese on the stove with mold growing in them. There was also mold growing out of opened food in the refrigerator. H. told the officer that she usually cooked macaroni and cheese for herself and R. when they got hungry and cleaned the dishes whenever they needed to use them. She said petitioner spent her time in bed or on the computer.
The March 2006 incident was not the first time Child Protective Services had to intervene on behalf of petitioner’s children nor the first evidence of petitioner’s alcohol abuse. In 1998, then four-month-old H. was removed from her parents, petitioner and petitioner’s husband Tom, because of petitioner’s drunkenness and domestic violence in the home. In June 1998, the court ordered reunification services, which included substance abuse treatment. Petitioner completed treatment in January 1999, moved back in with the family and the court dismissed the case in May 1999. She remained sober for four years but relapsed in 2004. Despite efforts to abstain, her longest period of abstinence in the year prior to March 2006 was a month and a half. In addition, her marriage was deteriorating and the incidents of domestic violence continued. In 2005, petitioner and Tom separated.
In March 2006, the department filed an original dependency petition on the children’s behalf, alleging petitioner and Tom’s domestic violence and petitioner’s chronic alcohol abuse placed the children at risk of harm. The juvenile court ordered H. and R. detained pursuant to the petition and ordered the department to refer petitioner and Tom for parenting classes, domestic violence counseling and substance abuse treatment as indicated and random drug testing and refer the children for mental health assessments. The children were placed in licensed foster care.
In April 2006, petitioner was admitted to a residential drug treatment program. The same month, the children completed mental health evaluations. Both demonstrated symptoms warranting therapy. H. reported difficulty sleeping, sadness, somatic and peer difficulties associated with emotional distress and grief regarding loss of her family. She was also crying excessively after visits. R. was throwing daily tantrums, was easily distracted and impulsive. As a result, he was functioning poorly at school. In addition, he was wetting his bed nearly every night. Both children were referred for individual therapy.
In May 2006, following a mediated jurisdictional hearing, the juvenile court adjudged both children dependents and set the matter for disposition. In its dispositional report, the department recommended the court offer reunification services to Tom but deny them to petitioner because of her “extensive, abusive, and chronic” history of alcohol abuse. (§ 361.5, subd. (b)(13).) The department based its recommendation on petitioner’s first use of alcohol at age 13, marijuana at age 15, and methamphetamine at age 40 as well as arrests on substance-abuse related charges. However, after petitioner challenged the department’s recommendation, the department reviewed her case a second time and determined that providing petitioner reunification would serve the children’s best interest because they wanted to reunite with her and because she was participating in court-ordered services. Consequently, at the dispositional hearing in August 2006, the court ordered petitioner and Tom to complete a reunification plan consisting of the services previously ordered. The court also ordered unsupervised visitation for petitioner and granted the department discretion to progress to liberal visitation.
By the six-month review hearing in November 2006, petitioner was participating in all aspects of her services. She completed the residential phase of substance abuse treatment and entered the transitional phase. She also completed her parenting class and was participating in weekly mental health therapy. In addition, the children had been placed with her at the residential treatment center and, according to the caseworker, they appeared happy and emotionally stable in her care. In light of petitioner’s progress, the court ordered the children placed with her under a plan of family maintenance in January 2007.
In early February 2007, the juvenile court conducted a family maintenance review. Prior to being placed with petitioner on family maintenance, R.’s behavior at school had been so disruptive that he was only attending half days. However, after being returned to petitioner’s care, his behavior improved and he was allowed to attend full days of school. He began biweekly mental health treatment in February 2007 for his defiant, anxious and hypervigilant behavior. H. was also doing well at school and in petitioner’s care. Consequently, the court continued them under family maintenance and set an interim review for March to assess their housing situation.
In March 2007, the department reported that petitioner and the children were living in emergency housing but that petitioner had put a deposit on an apartment and was awaiting approval to move in. The children continued to do well in petitioner’s custody and the department recommended the court continue family maintenance for petitioner and the children and family reunification services for Tom. The juvenile court adopted the department’s recommendation and set a family maintenance review hearing for late April 2007.
However, in early April 2007, the department filed a supplemental petition (§ 387) seeking the children’s removal after petitioner and the children were found living in unacceptable conditions and petitioner was disoriented and appeared to be under the influence of alcohol. There was a strong odor of urine throughout the residence as well as on or about petitioner’s body and clothing. There was molded food on the kitchen counter, trash in the kitchen and clothes strewn throughout the home. Petitioner was removed from the emergency housing because of the condition of the apartment and the children were placed in foster care.
The juvenile court detained the children pursuant to the petition and the department placed them together in foster care. Petitioner promptly entered a 90-day addiction treatment program. In April 2007, the department filed a 12-month status report in which it stated petitioner had made significant progress until she relapsed and the children demonstrated a healthy bond with her. They were openly affectionate with her and communicated appropriately with her. Consequently, the department recommended the court provide an additional six months of services to petitioner and Tom to allow them to complete their reunification plans.
In late April 2007, the juvenile court conducted a combined jurisdictional hearing on the supplemental petition and a 12-month review hearing on the status of dependency proceedings. The court found the allegations in the supplemental petition true. The court also found that petitioner made significant progress in alleviating the cause for the children’s removal and that there was a substantial probability the children would be returned to her custody before October 2007. Consequently, the court continued reunification services for petitioner and Tom and set the 18-month review hearing for August 2007.
By August 2007, petitioner had completed the residential phase of the addiction program and was attending aftercare. In addition, she was regularly testing negative on her drug screens and attending four to five Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings each week and had a sponsor. She was also attending weekly domestic violence group meetings, was employed fulltime and was on a waiting list for governmental housing.
The children were also doing well. H. was discharged from therapy and was both emotionally healthy and functioning well in foster care. R. was in good health and developmentally on track and being treated for adjustment disorder and hyperactivity/inattention at the California Psychological Institute (CPI). The children enjoyed seeing petitioner during unsupervised visitation on Saturdays and Sundays and the foster parent did not notice any adverse behavior after their visits.
Under the circumstances, the department recommended the court find petitioner made significant progress in her court-ordered services and that return of the children to her custody would not create a substantial risk of harm to them. The department also recommended the court return the children to petitioner’s custody under family maintenance and anticipated it would recommend dismissal of the case within the next three months.
Minors’ counsel challenged the department’s recommendation and a contested hearing was set for October 19. Meanwhile, R.’s treating psychiatrist, Dr. Fantone, prescribed R. psychotropic medication, which the juvenile court approved.
In October 2007, the department orally changed its recommendation from providing family maintenance to terminating reunification services and setting a section 366.26 hearing. Petitioner set the matter for trial and the court ordered the department to prepare a supplemental report setting forth its new recommendation. The court also granted the department discretion to begin liberal visitation.
In its supplemental report, the department reported that, while petitioner complied with her court-ordered services and demonstrated the capacity to complete the objectives of her treatment plan, she had not demonstrated the ability to provide for the children’s safety and well-being. The department cited three reasons to support this conclusion. First, petitioner experienced a severe relapse in April 2007, rendering her unable to care for the children. Since then, she had only had unsupervised visitation with the children and the department believed the children would be at risk if returned to petitioner’s care. Secondly, R.’s therapist had only been treating him for a short period of time and would need another several months before she could provide an opinion as to whether returning him to petitioner’s custody would serve his best interest. Finally, petitioner objected to R. receiving psychotropic medication and was ordered to discuss the matter with the psychiatrist at R.’s next appointment. The department needed to know that petitioner would cooperate with R.’s treatment. The department recommended the court terminate reunification services for both parents and set a section 366.26 hearing.
In November 2007, the juvenile court conducted the contested 18-month review hearing. Petitioner argued for return of the children to her custody under family maintenance. She also argued the department failed to provide R. reasonable mental health services.
The caseworker testified that petitioner completed her aftercare program and had only five more domestic violence victim group sessions to complete. She also testified that petitioner and the children were having liberal visitation and that petitioner was living in a sober-living house where the children could reside. In addition, petitioner had identified a school for the children to attend, afterschool care and a means of transportation.
The caseworker believed the children could be safely returned to petitioner’s custody under family maintenance and had planned to transition them back into petitioner’s custody by increasing visitation. However, she was told to recommend termination of services because petitioner had received 18 months of services. Nevertheless, she personally believed the children should be returned to petitioner’s custody. She also stated the foster family was not willing to provide the children a permanent placement.
The caseworker also testified that R. resumed mental health therapy in March 2007 and was supposed to attend weekly sessions. However, not long before the hearing, she discovered that he was only being seen once a month because the foster parents were not taking him to his appointments. She further stated that the prescription for psychotropic medication was not filled pending an appointment petitioner and R. had with psychiatrist Dr. Castillo at CPI to discuss petitioner’s objection to R. taking the medication. The caseworker did not know who made the decision to defer filling the prescription, who made the appointment with Dr. Castillo or why Dr. Castillo was consulted when Dr. Fantone had already prescribed the medication. However, as a result of petitioner’s meeting with Dr. Castillo, it was determined that R. did not need medication.
Following argument, the court found petitioner was provided reasonable services but that her progress was moderate. The court also found it would be detrimental to return the children to petitioner’s custody. Asked to articulate its reasons for this last finding, the court stated that the circumstances of petitioner’s relapse evidenced a failure to remedy the original cause for the children’s removal despite over 18 months of services. The court also stated petitioner had not completed her services and expressed its concern that another psychiatrist was consulted after the court approved the administration of psychotropic medication for R. In light of its findings, the court terminated reunification services as to both parents and set a section 366.26 hearing. This petition ensued.
Tom did not file a writ petition from the juvenile court’s setting order.
DISCUSSION
Section 366.22, which governs the proceedings at the 18-month review hearing, required the juvenile court to return H. and R. to petitioner’s custody unless it found by a preponderance of the evidence that their return would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being. (§ 366.22, subd. (a).) The department bears the burden of establishing that detriment. (Ibid.) Consequently, the court is guided in making its determination by the department’s assessment contained in its status report of parental efforts to utilize the services provided and the resulting progress. (Ibid.) Parental failure to regularly participate and make substantive progress in court-ordered services constitutes prima facie evidence of detriment. (Ibid.)
Petitioner argues there was insufficient evidence of detriment to support the juvenile court’s decision not to return H. and R. to her custody. In reviewing a sufficiency of the evidence challenge, we determine whether there is any evidence to support the juvenile court’s conclusion. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) In so doing, we resolve all conflicts in favor of the court’s determination and indulge in all legitimate inferences to uphold the court’s order. (Ibid.)
In this case, the department failed to establish that returning H. and R. to petitioner’s custody would expose them to a substantial risk of detriment. In fact, the evidence was to the contrary. Petitioner was actively participating in a recovery program. She completed aftercare, had a sponsor and was attending NA/AA meetings most days of the week. The only court-ordered service she had yet to complete was domestic violence counseling. However, according to the caseworker, she only had five sessions left to attend and there was no evidence she had engaged in any incidents of domestic violence subsequent to the children’s removal.
Further, petitioner made substantive progress in her court-ordered services. When H. and R. were removed from petitioner, she was entrenched in her addiction with few apparent skills to cope. However, by the 18-month review hearing, she demonstrated not only the ability to successfully complete treatment and maintain sobriety but also demonstrated the wherewithal to promptly seek recovery following relapse.
Moreover, petitioner was in a position to assume immediate custody of the children. She was working fulltime and living in a sober living environment, which would accommodate them. In addition, she had a plan for getting them to school and to their medical appointments and providing daycare for them while she worked.
In our view, there is simply no evidence from which to conclude H. and R. would be at risk of harm in petitioner’s care. They are strongly bonded to her and do well in her care. There is no evidence they suffered any residual adverse psychological impact from being removed from her custody multiple times or that, if there were, she would not ensure they received treatment. The fact that petitioner objected to psychotropic medication, if anything, speaks to a cautious rather than a neglectful parent. Further, there was no evidence petitioner tried to circumvent the court’s order approving the administration of the medication or that she would not cooperate with a regimen of medication for R. if indicated. Finally, any argument the children could be psychologically harmed by any subsequent relapse petitioner may suffer is, as petitioner argued, speculative. Indeed, there is a risk whenever a child is returned to the custody of a recovering addict. However, this should not be a determining factor unless that risk is so high as to reach probability.
In sum, we conclude substantial evidence does not support the juvenile court’s finding it would be detrimental to return H. and R. to petitioner’s custody. Consequently, the juvenile court was statutorily compelled to return them to petitioner’s custody and therefore erred in not doing so.
That said, however, nothing precluded the juvenile court from returning the children to petitioner’s custody while maintaining supervision and continuing services. Rather, the juvenile court may continue services beyond the 18-month review hearing where, as seems to be the case here, it would serve the children’s best interest. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.) On these facts, a case could be made that the children’s best interest warranted continuing services. After all, the children’s best interest compelled the court to provide services initially even though there was a statutory basis for denial. It was the children’s best interest plus petitioner’s progress that resulted in the court’s order for family maintenance and its order continuing services at the 12-month review hearing. Clearly, the court could have exercised its discretion and ordered reunification efforts to continue at the 18-month review hearing given the strength of the children’s bond to petitioner, petitioner’s progress and the absence of a prospective permanent placement. However, the court’s refusal to exercise its discretion to continue services is not before this court. Nevertheless, we find error in the juvenile court’s conclusion H. and R. could not be safely returned to petitioner’s custody and, on that basis, grant relief.
DISPOSITION
Let an extraordinary writ issue directing respondent court to vacate its order of November 16, 2007, terminating reunification services and setting a section 366.26 hearing. Respondent court is further directed to hold a new hearing under section 366.22 to consider any new evidence of detriment and to consider whether continuing the 18-month review hearing would serve H. and R.’s best interest. The department is directed to prepare and file a supplemental 18-month status review report. In the absence of new evidence of detriment, respondent court is directed to return the children to petitioner’s custody with whatever supervision and services the court deems appropriate. If, on the other hand, the court determines new evidence supports a finding the children cannot be returned to petitioner’s custody without a substantial risk of detriment and if the court declines to exercise its discretion to continue services beyond the 18-month review hearing, the court may reissue its orders terminating reunification services and setting a section 366.26 hearing. This court’s opinion is final forthwith as to this court.