Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; Petition for extraordinary writ. Stephen Marpet, Commissioner. Los Angeles County Super. Ct. No. CK58888
Los Angeles Dependency Lawyers, Inc., Law Office of Barry Allen Herzog, Ellen L. Bacon and Diane E. Fisher for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Real Party in Interest.
ASHMANN-GERST, JUDGE
Petitioner D.P. seeks extraordinary writ review of a juvenile court order terminating her reunification services with her son, T.P., and setting the matter for a permanency planning hearing. (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) We deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. PROCEDURAL HISTORY AND STATEMENT OF FACTS
Prior Dependency History.
Petitioner and A.C. (father) are the parents of T.P. (born Nov. 2005) and T.P.’s two sisters, N.P. and H.P. Petitioner’s history with the Los Angeles County Department of Children and Family Services (DCFS) includes four prior referrals, two related to petitioner’s homelessness, and the other two for emotional abuse, with one including physical abuse. The later emotional abuse referral was substantiated and prompted the detention of T.P.’s sisters. In June 2005, the juvenile court sustained a section 300 petition on behalf of T.P.’s sisters, finding them at risk in petitioner’s custody based upon ongoing physical conflicts between petitioner and other family members. Petitioner completed a parenting program in September 2005 and began individual counseling with Dr. David Walter in August 2005. In November 2005, Dr. Walter informed DCFS that petitioner had not attended therapy since the beginning of September 2005. In June 2006, a year after the girls were removed from petitioner’s custody, the juvenile court ordered them returned to petitioner.
N.P. and H.P. are not subjects of this petition.
When T.P. was born in November 2005, DCFS entered into a voluntary contract with petitioner, allowing the baby to remain with her.
Dependency Petition.
On September 25, 2006, DCFS filed a section 300 dependency petition on behalf of T.P., who was then 10 months of age. It was alleged that T.P. was unsafe in petitioner’s care due to her violent altercations with family members, which had been ongoing and had resulted in the prior removal of T.P.’s sisters from her custody. It was further alleged petitioner abused drugs and that she had mental and emotional problems, including a diagnosis of schizophrenia and bipolar disorder, for which she failed to take her medication. T.P. and his sisters were placed in the home of the maternal grandmother where petitioner had been residing with the children.
A section 387 supplemental petition was filed on behalf of T.P.’s two sisters.
Detention Hearing.
Petitioner appeared at a detention hearing held on September 25, 2006. In a report prepared for the hearing, DCFS quoted petitioner as stating: “‘I would rather jump off a bridge with my children before I leave them here. . . . I gave birth to these children and I [would] rather have them dead than live in this damn house.’” The maternal grandmother reported that petitioner did not care for the children or do anything to meet their basic needs. She would sleep all day and would not take T.P. outside her room. The grandmother stated that she and the maternal uncle took care of feeding, bathing and taking the girls to school. When the grandmother and uncle would take the girls to school, petitioner would still be asleep, with T.P. crying in petitioner’s room. Petitioner would leave T.P. in the room all day and would come downstairs to get food, but only for herself.
A DCFS social worker observed petitioner and T.P.’s room to be cluttered with clean and dirty clothes “piled up in all four corners.” The worker also found six dirty bottles in the room, four of which contained rotten milk, and one had mildew growing on the bottle’s nipple. The social worker also found what appeared to be marijuana in the room. The grandmother was “‘scared for [her] grandchildren’” and believed petitioner needed an updated mental-health assessment.
Petitioner had an extensive criminal history, dating back to 1997 for battery, spousal abuse, threat with intent to terrorize, etc.
At the conclusion of the detention hearing, the juvenile court directed DCFS to provide petitioner with family reunification services. Petitioner was granted limited, monitored visitation, which DCFS was given the discretion to liberalize.
About a month after the detention hearing, petitioner appeared at the DCFS office and demanded the return of her children. Petitioner told the social worker she would do whatever “it takes” to have the children returned to her, including absconding with them. In a telephone call made four days later, petitioner denied mental health issues, stating she had been diagnosed with severe depression. As a result of petitioner actions, DCFS requested a no contact order between petitioner, the children and DCFS.
First Amended Petition.
On November 1, 2006, DCFS filed a first amended petition, adding allegations of domestic violence between petitioner and the children’s father, and alleging his drug history.
In an information submitted to the juvenile court, Dr. Walter advised that petitioner had reentered therapy in October 2006. Dr. Walter did not believe petitioner suffered from either schizophrenia or bipolar disorder. He indicated that if petitioner had been diagnosed with severe depression, the diagnosis occurred before he began treating petitioner. According to Dr. Walter, petitioner suffered from Impulse Control Disorder. Dr. Walter indicated he was “confident” in petitioner’s ability to parent her children and recommended she be given the opportunity to resume her role as the children’s primary caretaker. DCFS believed petitioner had not been forthcoming with her therapist as to all the circumstances surrounding the children’s detention. The family preservation workers stated that petitioner had a strong bond with T.P. and that the family had begun utilizing the skills they had been learning as part of the family preservation program.
Adjudication Hearing.
On January 22, 2007, an adjudication hearing was held with respect to the first amended petition.
In reports prepared for the hearing, DCFS advised that petitioner, after being provided with referrals, had enrolled in a six-month counseling program that incorporated individual counseling, recovery discussion groups, self-help meetings, anger management and drug testing. In October 2006, petitioner tested positive for marijuana on one occasion and tested negative for drugs on another occasion. In November 2006, petitioner missed one drug test, tested positive for marijuana on one occasion and tested negative on one occasion. In December 2006, petitioner took four drug tests. Three were negative and one was “negative but diluted.” In January 2007, petitioner missed one test, three tests were negative and one test indicated “leaked results.”
Petitioner remained “100% compliant” in individual counseling with Dr. Walter and had enrolled in anger management.
DCFS provided petitioner with a bus pass to facilitate visits, which had been regular. Petitioner had been cooperative with DCFS. However, petitioner refused to abide by a restraining order issued against father in July 2005, which denied him contact with petitioner and T.P.’s sisters. In November 2006, after a criminal court hearing at which petitioner attempted to have the restraining order lifted (which the juvenile court denied), father’s probation officer reported seeing petitioner ‘“‘jump[] on the elevator’”’ with father and leave with him. According to the probation officer, five prior restraining orders were issued against the father based on his repeatedly beating petitioner, including when she was pregnant. DCFS was concerned that Dr. Walter did not have a clear understanding of the parents’ domestic violence relationship or the latest allegations and detainments. DCFS continued to recommend no reunification services be offered to petitioner. On January 22, 2007, petitioner and T.P. were appointed new counsel and the adjudication hearing was continued.
Continued Adjudication Hearing.
The continued adjudication hearing was held on March 21, 2007.
Dr. Walter submitted an additional progress report wherein he reaffirmed his opinion that petitioner could successfully care for her children without supervision. He denied the allegation by DCFS that he was unaware of the reasons petitioner returned to therapy.
DCFS advised that in February 2007 petitioner missed one drug test and tested negative three times. Petitioner was in compliance with the recovery program and continued to have positive visits with the children. However, DCFS did not liberalize petitioner’s visits to unmonitored because past services had failed to correct her problems with violence and threats of violence, including the threats against DCFS social workers and others, which led to the filing of T.P.’s case and re-detention of T.P.’s sisters. Although petitioner had reenrolled in therapy with Dr. Walter and was compliant, the doctor, while indicating petitioner should resume custody, stated that he only counseled her and that she needed other resources to help her build her relationship skills. Petitioner had asked the social worker whether the children could be returned to her if she simply admitted a history of marijuana use and domestic violence with her uncle. DCFS posited that petitioner did not understand the adverse affects of domestic violence.
The juvenile court sustained the amended allegations, finding true that petitioner and the maternal uncle had an altercation in T.P.’s presence; petitioner had a history of altercations with various family members; prior DCFS services and juvenile court involvement failed to resolve these problems as T.P.’s siblings were dependents of the juvenile court due to petitioner’s violent altercations; petitioner and father had a history of domestic violence that occurred in the presence of T.P.’s siblings, including an incident where father broke petitioner’s arm, which required surgery; and father’s drug history.
Over the objection of DCFS, the juvenile court ordered DCFS to provide petitioner with reunification services. The juvenile court declared T.P. a dependent under section 300, subdivisions (a) and (b). Petitioner was ordered to attend domestic violence counseling for victims, parenting education and individual counseling to address anger management. Petitioner was also ordered to submit six clean, consecutive, random drug tests, with the additional provision that any missed or dirty tests would require petitioner to complete a rehabilitation program. Visitation was to remain monitored, with DCFS retaining the discretion to liberalize. Father was denied reunification services.
Progress Hearing.
On April 24, 2007, the juvenile court held a progress hearing, which petition attended.
In a report prepared for the hearing, DCFS advised that in March 2007, petitioner tested negative on one occasion and on another occasion tested positive for opiates and hydrocodone. In April 2007, she missed a drug test, tested negative on three occasions and on one occasion tested positive for opiates and hydrocodone. In March 2007, petitioner informed the social worker that she had been prescribed medications after suffering injuries to her shoulder in a car accident. Although asked to do so on numerous occasions, petitioner failed to provide proof of the prescription. As a result, the social worker recommended petitioner be required to enroll in a drug program. DCFS verified that petitioner had completed a parenting class, but noted that the certificate of completion was issued in 2005. Dr. Walter advised that he had not seen petitioner since January 29, 2007. Petitioner continued to visit regularly and appropriately. The juvenile court continued petitioner’s reunification services.
Six-Month Status Review Hearing.
On May 25, 2007, a section 366.21, subdivision (e) hearing was conducted. The children remained placed together with their grandmother.
In a report prepared for the hearing, DCFS reported that petitioner had been terminated from her six-month recovery program in November 2006 for failing to comply with program rules. In April 2007 petitioner reenrolled in therapy with Dr. Walter. On April 18, 2007, petitioner enrolled in a domestic violence program through the YWCA. However, she missed three classes, with two of the absences unexcused. Petitioner tested negative for drugs on May 3, and May 10, 2007. DCFS held a family team decision making meeting to address reunification. Petitioner refused to attend. The grandmother and uncle were in attendance and stated they were willing to adopt the children if reunification efforts failed.
DCFS recommended termination of reunification services. Petitioner requested a contested hearing. The juvenile court set the matter for a contested hearing and directed DCFS to submit a supplemental report.
Contested Six-Month Status Review Hearing.
On July 18, 2007, a contested section 366.21, subdivision (e) hearing was conducted.
In a letter dated July 16, 2007, Dr. Walter advised that petitioner was compliant with therapy and was making “good progress” towards unifying with her children. In a letter dated July 18, 2007, the YWCA indicated petitioner was actively participating in domestic violence programs. Since the hearing held in May 2007, petitioner had tested clean for all controlled substances.
At the conclusion of the contested section 366.21, subdivision (e) hearing, over the objection of DCFS, the juvenile court ordered petitioner to receive additional reunification services. The juvenile court lifted petitioner’s drug testing requirement and set a progress hearing.
Progress Hearing.
On September 10, 2007, the juvenile court held a progress hearing.
In a report prepared for the hearing, DCFS reported that petitioner had actively participated in domestic violence counseling until July 2007. Dr. Walter indicated he had not seen petitioner since June 2007. Petitioner claimed that transportation difficulties had kept her from attending her programs. Petitioner told the social worker: ‘“[I]t is too much . . . . [I] cannot do it anymore. . . . [L]et the Court decide whatever they want.”’
Twelve-Month Status Review Hearing.
On December 18, 2007, a section 366.21, subdivision (f), hearing was conducted.
In a report prepared for the hearing, DCFS reported that petitioner had been terminated from the domestic violence program through the YWCA on September 10, 2007. On October 19, 2007, petitioner enrolled in an in-home program for domestic violence and individual counseling and had attended two sessions. Petitioner’s visits with the children remained constant. She visited every other day for eight to 10 hours and helped the grandmother with parental responsibilities. She also called daily.
According to the grandmother, petitioner was having a difficult time taking care of herself and was unable to find employment. The grandmother and uncle helped her to pay her rent. Her temporary job ended and she was unable to keep up with all the juvenile court requirements. Petitioner told the grandmother that she wanted the grandmother to obtain legal guardianship over T.P. According to the grandmother, petitioner wanted to go back to school to better her life and become self-sufficient.
At the conclusion of the 12-month hearing, the juvenile court ordered additional reunification services, over the objection of DCFS. DCFS was ordered to assist petitioner with referrals in order to complete her case plan.
Progress Report.
On February 29, 2008, a progress hearing was conducted.
In a report prepared for the hearing, DCFS submitted an interim report advising that in January 2008 petitioner had reenrolled in the YWCA domestic violence program and had been actively participating. In December 2007, petitioner enrolled in individual counseling with a therapist at Family Service Center and had been consistently participating since her enrollment.
Eighteen-Month Hearing.
On April 30, 2008, a section 366.22 hearing was conducted.
In a report prepared for the hearing, DCFS reported that the in-home counselor had only seen petitioner once or twice since the February 2008 hearing. However, the counselor stated: ‘“I believe she may not need continued [i]ndividual counseling due to her ability to work independently and support herself again and her positive attitude about reunifying with her children.’” The domestic violence counselor reported that petitioner had missed a few sessions and had eight additional sessions to attend to complete the program. The social worker arranged to meet with petitioner and the children in an attempt to see them together, but left after waiting for petitioner for 45 minutes. Petitioner had quit her job, and moved out of her apartment. She was living with a friend, but claimed to be searching for an apartment. On April 2, 2008, DCFS liberalized petitioner’s visits to unmonitored visitation.
In April 2008, petitioner called the social worker upset. She claimed she had been living with the grandmother and uncle for a week and that she would not leave until the children were removed from the home. According to the maternal grandmother, she permitted petitioner to live in the home because she had been evicted. She did not see the harm given the fact that DCFS had liberalized petitioner’s visits to unmonitored. The grandmother reported that she and petitioner had had a disagreement, which was minor, but that petitioner had had a “melt down” when her uncle threw away a marijuana plant petitioner had brought into the grandmother’s home. The grandmother overheard petitioner say to someone on the telephone that the plant was worth $1,000. The children were not present at the time of the confrontation between maternal uncle and petitioner and petitioner peacefully left the home. Petitioner’s volatile temperament made it impossible for her to reside in the grandmother’s and uncle’s home with the children.
Petitioner asked for a contested section 366.22 hearing, which was set for June 9, 2008.
Contested 18-Month Hearing.
The contested section 366.22 hearing was held on June 9, 2008. Petitioner reportedly had to leave the courthouse prior to the case being called or risk being fired from her job, but wrote a statement to the juvenile court.
In a supplemental report prepared for the 366.22 hearing, DCFS reported that petitioner had recently obtained suitable housing and was working for a family member. On June 3, 2008, petitioner completed a 16-week domestic violence program.
When interviewed by the social worker, petitioner, in contrast to her demeanor in April 2008, was calm and rational. She did not deny that her uncle had thrown out a marijuana plant and stated she did not believe using marijuana was a reason for a court to take custody of children away from parents.
In May 2008, DCFS had approved six-hour day visits with the children. On June 3, 2008, at petitioner’s request, the grandmother transported T.P. for his first six-hour visit, but as soon as the grandmother got home, petitioner called to ask that she retrieve the child as he was crying nonstop. Petitioner called three more times before the end of the visit, requesting the grandmother retrieve the child. Petitioner told the grandmother that T.P. cried for three hours during the visit. During another visit, the grandmother transported T.P. and his sisters to petitioner’s home. Two hours later, the oldest sibling called the grandmother and asked to be picked up, stating she was bored. It was later disclosed that the nine-year-old was asked by petitioner to baby-sit the younger siblings. It was unclear whether the children were left alone. Petitioner asked for a third visit, but the grandmother was busy on the day suggested by petitioner and petitioner did not request another day or any visits thereafter.
Petitioner’s counsel argued that there was no detriment in returning T.P. to petitioner’s home, as she had completed the case plan. DCFS, on the other hand, argued that petitioner had failed to comply with the case plan because the 16-session domestic violence program petitioner had completed was inadequate to meet the domestic violence counseling requirement of the case plan. DCFS conceded that petitioner had completed a parenting class in 2005, but argued that the 2005 class could not be used to show compliance with an order issued in 2007. DCFS, noting that in April 2008 petitioner had engaged in angry exchanges with the grandmother and uncle, argued that even if petitioner had partially complied with the case plan, she had failed to learn anything from the classes she had taken.
The juvenile court found that petitioner was not in compliance with the case plan, determined that T.P. could not be returned to petitioner’s care, found reasonable efforts had been made by DCFS, terminated petitioner’s reunification services, and set the matter for a section 366.26 hearing. This petition followed.
II. CONTENTIONS
Petitioner contends substantial evidence does not support the juvenile court’s finding that T.P. would be at substantial risk of detriment if returned to petitioner.
III. DISCUSSION
Petitioner contends the evidence was insufficient to support the juvenile court’s finding that there is a substantial risk of detriment should T.P. be returned to her custody.
“In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. [Citations.] Evidence sufficient to support the court’s finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. [Citation.]” (In re N. S. (2002) 97 Cal.App.4th 167, 172.)
Although the law requires a juvenile court to focus on the reunification of the family until an order terminating parental rights is entered, the law also provides for an 18-month period in which to accomplish reunification. While there is a strong preference for reunification, the safety and well-being of the children is always a primary concern. (In re Marilyn H. (1993) 5 Cal.4th 295, 307-308.) At the end of the 18-month period during which reunification services are provided, the juvenile court must make a decision whether to return the children to the parent or whether their well-being dictates that other placement for the children is in order. (Id. at p. 308.) If the juvenile court finds by a preponderance of the evidence that return of the children to the parent would create a substantial risk of detriment to their physical or emotional well-being, the juvenile court must develop a plan for the child’s placement. (Ibid.) The social services department has the burden of establishing the detriment. (§ 366.22, subd. (a).)
In making its determination, the juvenile court must review and consider reports prepared by the social worker and any child advocate appointed, the efforts or progress, or both, demonstrated by the parent and the extent to which the parent cooperated and availed him or herself of services provided. A parent must do more than simply comply with the technical requirements of the reunification plan. The juvenile court must also consider the progress the parent has made towards eliminating the conditions leading to the out-of-home placement. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1139.) The failure of a parent “to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (§ 366.22, subd. (a).)
The juvenile court must specify the factual basis for its conclusion that return would be detrimental to the child. (§ 366.22, subd. (a).)
At the March 21, 2007 disposition hearing, the juvenile court ordered petitioner to participate in drug testing, domestic violence counseling, parent education and individual counseling to address anger management.
Although petitioner completed a parenting education class after T.P.’s sisters were detained in 2005, petitioner failed to enroll in a parenting class following the 2007 order directing her to do so. Clearly, petitioner did not fulfill the requirements of the case plan.
After T.P.’s detention, petitioner resumed counseling with Dr. Walter, and enrolled in a six-month counseling program that incorporated individual counseling, recovery discussion groups, self-help meetings, anger management and drug testing. Although the doctor was confident in petitioner’s ability to protect and parent the children, Dr. Walter made clear that his role was to counsel petitioner; that petitioner needed other resources to help her build her relationship skills. Participating in a parenting program would have assisted petitioner with this task.
In addition, petitioner’s participation in the other counseling components of the plan was intermittent. By the six-month review hearing, petitioner had been terminated from the six-month recovery program for failing to comply with program rules. Although petitioner had enrolled in a domestic violence program, her participation was inconsistent. By the 12-month review hearing, petitioner had been terminated from the domestic violence program for failing to attend the classes. And, although petitioner had started in-home counseling for domestic violence, she had only attended two sessions.
By the time of the June 9, 2008 section 366.22 hearing, petitioner had completed a 16-week domestic violence education class. However, there was evidence that petitioner had learned little, if anything, from the domestic violence class. In April 2008, petitioner, who had been residing in her mother’s home for about a week, had another altercation with the maternal uncle after he threw away a plant thought to be marijuana that petitioner had brought into her mother’s home. Although she eventually left the home peacefully, petitioner’s volatile temperament made it impossible for her to reside in the home petitioner’s mother and uncle shared with the children.
The record reflects that petitioner had a long history of domestic violence both as a victim and perpetrator. Her daughters were detained from her custody in April 2005 and returned to her care in June 2006, only to be detained again, along with T.P., three months later as a result of yet another incident of violence in the children’s presence. Despite these detentions, petitioner sought to have the restraining order issued against father lifted, even though he had repeatedly beaten her, including while she was pregnant with T.P. Moreover, petitioner engaged in an altercation with a family member as late as April 2008. Clearly, petitioner failed to resolve the issues that brought the children to the attention of the juvenile court, i.e., domestic violence and anger management.
Petitioner’s failure to appreciate the juvenile court’s concern over drug use also supports the court’s order. Although petitioner completed the drug testing portion of the case plan, late in the case she had possession of a plant, which she did not deny was a marijuana plant. Moreover, petitioner advised the social worker that she did not believe that a court should remove children from their parents because of the parent’s marijuana use. Petitioner’s actions and comment to the social worker demonstrate that she has learned little about the role drugs played in the detention of the children.
Clearly, the juvenile court’s finding that return of T.P. to petitioner’s custody would create a substantial risk of detriment to his safety, protection, or physical or emotional well-being is fully supported by the evidence.
The evidence presented to the juvenile court was reasonable in nature, credible and of solid value and thus ‘““substantial proof” of the essentials”’ of the case. (County of Santa Cruz v. City of Watsonville (1985) 177 Cal.App.3d 831, 845.) We therefore conclude that the juvenile court’s order terminating petitioner’s reunification services and setting a section 366.26 hearing is supported by substantial evidence.
IV. DISPOSITION
The order to show cause is discharged and the petition for extraordinary writ is denied.
We concur: BOREN, P. J., CHAVEZ, J.