Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. JD17888
OPINION
Premo, J.
E. S. seeks writ relief (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 8.452) from the juvenile court’s order terminating family reunification services and setting a hearing pursuant to section 366.26 to consider selection and implementation of a permanent plan for her daughter B. S. (born 2007). We deny the petition.
Further unspecified statutory references are to the Welfare and Institutions Code.
Legal Background and Scope of Review
Once a child has been detained under juvenile court custody, family reunification efforts are required. (§§ 319, 361.5, subd. (a).) Reunification services are time limited. For a child who is three years old or younger on the date of initial removal from the custody of a parent, court-ordered services are not to exceed six months. (§ 361.5, subd. (a)(2).) Services may be extended up to a maximum of 18 months if it can be shown that a substantial probability exists that the child may safely be returned home within an extended six-month period, or if reasonable services had not been provided to the parent. (Id., subd. (a)(3).)
Although this case was scheduled for a 12-month review hearing, E. S. does not dispute that, because of various continuances, the hearing in question occurred two weeks before the 18-month period was to expire and effectively served as a final 18-month review hearing.
“The court shall order the return of the child to the physical custody of his or her parent or legal guardian [at the 18-month review hearing] 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. . . . The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social worker’s report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself of services provided; and shall make appropriate findings pursuant to subdivision (a) of Section 366.” (§ 366.22, subd. (a).)
While “simply complying with the reunification plan by attending the required therapy sessions and visiting the children is to be considered by the court . . . it is not determinative.” (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.) In other words, parental compliance with the reunification plan does not automatically result in a child’s return to parental custody. (Ibid.) Rather, the decision to return the child to parental custody depends on the court’s assessment of the effect that return would have on the physical and emotional well-being of the child. (§ 366.22, subd. (a).) When the juvenile court considers whether to deprive a parent of custody, it is concerned about the parent’s “grasp of the important parenting concepts--things such as a child’s need for security, adequate nutrition and shelter, freedom from violence, proper sanitation, healthcare, and education.” (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 790.) By the time of the section 366.22 hearing, “the Legislature has determined a child’s need for stability and security within a definitive time frame becomes paramount. The cutoff date for fostering family reunification is the 18-month status review. At this hearing, the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children.” (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788.)
The juvenile court has wide discretion in ruling at the 18-month review hearing, and consequently, appellate courts will uphold the court’s finding of detriment if it is supported by substantial evidence. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) If substantial evidence exists, we must affirm the order. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.) The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) To determine whether there is substantial evidence to support the court’s findings, we review the evidence most favorable to the prevailing party and “indulge in all legitimate and reasonable inferences to uphold” the court’s ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
Factual Background
Real party in interest Santa Clara County Department of Family and Children’s Services (Department) filed the within petition on February 15, 2007, pursuant to section 300, subdivision (b) (failure to protect) because B. S. had been born two days previously with methamphetamine and amphetamine in her system and E. S. had admitted smoking methamphetamine during pregnancy and having no prenatal care until January. In March, the juvenile court found jurisdiction and ordered reunification services. At the six-month review hearing in October, the juvenile court ordered six more months of services after the social worker reported that (1) E. S.’s live-in boyfriend had an outstanding arrest warrant for kidnapping, burglary, or murder, (2) E. S. had refused to provide background information on the boyfriend, and (3) E. S. had concealed that her dependent seven-year-old son in kin placement had been babysat together with the kin’s seven-year-old daughter by the kin’s ex-husband who had a criminal history of domestic violence and was subject to an order restraining him from contacting his seven-year-old daughter.
For a 12-month review hearing set for March 2008, the social worker reported the following in recommending that reunification services be terminated: “To date [E. S.] has not taken responsibility for her part in the deception that occurred between her and the previous caregiver that caused the need for [her son] to be removed from his kin placement in [October 2007]. When the undersigned spoke to [E. S.] about exposing her child to men who have criminal warrants and histories, her answer was, ‘I am a criminal too.’ Not only was [the son] exposed to his mother’s boyfriend who had an active warrant for felony charges and was hiding out in [E. S.’s] home, but he was also exposed to the previous kin caregiver’s ex-husband who had warrants out for his arrest and was not allowed to be around [the son]. [E. S.] knew about this and kept this a secret and when [her son] started to disclose information, [E. S.] immediately told him to be quiet becoming very angry with him.” She added: “[E. S.’s] temper is also very concerning. [E. S.] agreed in [October 2007] to participate in a 16-Week Anger Management class and to date she has not participated in this service. During a meeting [in January 2008,] she yelled profanities at the undersigned and was asked to lower her voice three times as there were children having visits in adjacent rooms, but she was unable to contain herself. Part of the discussion that caused [E. S.’s] outburst was this worker trying to speak to her about the visit that occurred [in January 2008] where [E. S.] would not allow [her son] to speak about the past. Also [in January 2008,] Blossoms Treatment Counselor, Terri Miller reported that [E. S.] had attended an Anger Management component of their program in a very agitated state and caused disruption in the class. After class, during a one on one with Ms. Miller, [E. S.] was yelling at her and saying that the class exercises were stupid. Ms. Miller expressed concern to the undersigned that after a year of treatment that [E. S.] did not show much progress. . . . [¶] After the last Court hearing in October 2007, [E. S.] was very angry and refused to participate in any services, went off her medication for depression, tested positive for drugs and stayed in her apartment. [E. S.] told the undersigned that when she becomes angry, she isolates herself for long periods of time and that this is the best course for her. The undersigned asked [E. S.] if isolating in her apartment was the best way to cope with anger if her children were placed with her and she replied that her anger didn’t matter if her children were with her because ‘those are my kids.’ [E. S.] has not shown any improvement or insight in recent months in her ability [to] develop new coping skills when she is angry and frustrated. [E. S.’s] prognosis for relapse is high given she has not been successful in demonstrating that she can cope with typical life frustrations in a healthy way. Further, [E. S.] has not developed a support system.” She continued: “It is unfortunate that [E. S.] has not been able to make the progress necessary to safely care for her children. To her credit she has visited her children consistently, attended her treatment program and attempted to address her legal matters. [E. S.] appears to be overwhelmed by the responsibilities of caring for herself. She has not seriously attempted to obtain employment to support herself and her Section 8 housing is expected to end late March 2008 and [E. S.] has not planned for this. Additionally [E. S.] appears to have a very low tolerance for frustration which is displayed in flashes of temper outbursts that she appears to have little insight or control of. During this reporting period [E. S.] has tested positive for drugs once and missed several tests which indicates that she may have been using drugs on other occasions. [¶] If [E. S.] is not able to function in a minimally emotionally healthy manner without her children in her care it is reasonable to speculate that her ability to function would decrease further if she were expected to meet all the needs of her children. After the Court hearing in October 2007, [E. S.] stopped going to therapy and taking her prescribed medication for depression. She also tested positive for drugs during this period. The undersigned and service providers noted a decline in her functioning and mood. In recent months, [E. S.] misled service providers and the undersigned by stating that she was engaged in therapy when she was not and when pressed stated that she could not go due to having her Medi-Cal cut off. Upon investigation the undersigned determined that this was untrue and that her therapist was concerned about her lack of participation issue of [E. S.] going off of her medication without the supervision of a doctor. It is concerning that [E. S.] has stated that she is able to be consistent in taking her prescribed medication if she is incarcerated and not able to when she is free.”
For a continued hearing set for May 2008, the social worker noted that E. S. had missed a drug test on April 10, 2008, given a “questionable” test on April 19, and had given negative tests since then. And she summarized the following in an addendum report: “[E. S.] has shown a pattern of serious declines and then periods of recovery since February 2007, when her daughter was removed from her care. This inconsistency is evidence by her ability to maintain her sobriety from April 2007 until September 2007 and participate in her services, while at the same time secretly involving herself in a relationship with a fugitive who she was harboring in her home. Between October 2007 and early November 2007, when her boyfriend was arrested, [E. S.] stopped most of her case plan services including drug testing, she stopped taking her medication and declined into isolation, anger, depression and she relapsed by using Methamphetamines in November 2007. [E. S.] rebounded in late November 2007, but then faltered again in mid December 2007 missing drug tests and in January 2008 failing her Work Release Program which caused her to be incarcerated from February 2008 until late March 2008. Then in May 2008 [E. S.] requested to be referred for another Advanced Parenting class and requested the undersigned’s approval of an Anger Management Program that she had agreed to begin in November 2007. [E. S.] presently appears to be trying to stabilize her life by seeking employment and complying with some case plan services. She is still in the beginning stages of addressing the issues that caused the need for dependency over a year ago. [E. S.] is not ready to receive her children back into her care at this time, but it is hoped in the future that [E. S.] can stabilize her life and take better care of herself on a consistent basis.”
The juvenile court ultimately commenced the hearing on July 30, 2008. It admitted the social worker’s reports into evidence without objection and heard testimony from the social worker and E. S. The social worker testified that E. S. had graduated from a drug treatment program in February 2008 with a status report indicating that E. S. “was very angry and wasn’t able to internalize the consequences for her actions.” She explained: “You know, that’s why when children have parents, that’s why they have parents, because they need somebody to reel them in. And she’s not able to, at times, to reel herself in when she gets angry.” She added that E. S. had not until that very day documented that she was attending a drug program, a program that had only begun in June or July. She clarified that E. S. had gone to only three anger management meetings in the 18-month period. And she reported that E. S., after submitting the questionable drug test in April, had refused to take a test the next day. Afterward, the juvenile court concluded that the “evidence is clear that it is appropriate to make the findings and orders as recommended.”
Discussion
E. S. contends that the Department failed to establish that placing B. S. in her custody would create a substantial risk of detriment to B. S. She asserts that the court’s finding did not meet the standard of detriment expressed by the court in David B. v. Superior Court, supra, 123 Cal.App.4th at page 789 (the standard of detriment “must be construed as a fairly high one”). She urges that she “made substantive progress on her case plan,” “regularly visited [B. S.],” had eight months of sobriety, and “addressed her anger issue.” She claims that the juvenile court and the Department failed to recognize her “accomplishments in dealing with her substance abuse problem,” and overlooked her “advancements surrounding her anger management.”
E. S.’s analysis is erroneous. It is no more than a reargument that, at best, demonstrates that the juvenile court could have decided in her favor. Although the record shows evidence favorable towards E. S.’s position, there is substantial evidence to support the court’s finding that returning B. S. to E. S. would be detrimental to B. S.’s well-being.
E. S. cannot cope with anger and frustration. Yet she did not participate in the anger-management part of her reunification plan until June or July 2008, 15 months after B. S. was taken from her custody. And she stopped her therapy and medication. These lapses support that she failed to participate regularly and make substantive progress in court-ordered treatment programs and constitute prima facie evidence that return of B. S. to her would be detrimental to B. S.
E. S. abuses drugs. She took drugs in November 2007, nine months after B. S. was taken from her custody. She also missed a drug test in April 2008, 14 months after B. S. was taken from her custody--one can reasonably infer from this lapse that E. S. would have tested positively had she taken the test. In the same month, E. S. gave a questionable drug test and refused to redo the test--one can reasonably infer from this lapse that E. S. would have tested positively had she taken the test. This evidence supports that E. S. does not grasp important parenting concepts and cannot control herself. While we applaud E. S. for testing negatively since April, the juvenile court could reasonably have concluded that her progress was too short-lived in light of her history to suggest a permanent prognosis given that the time when the statutory limitation on court-ordered services was imminent.
E. S. repeatedly misled the social worker. She covered up her son’s exposure to criminals and inexcusably stopped her therapy. This supports that E. S. cannot appreciate a child’s need for security and her own need for help in learning to cope. E. S.’s lack of candor also justifies a total disregard of her testimony.
Even though the juvenile court might have reached a different result had it believed other evidence, we conclude that substantial evidence supports the judgment. Despite E. S.’s progress, the juvenile court could reasonably determine that E. S. had not yet demonstrated the ability to ensure B. S.’s safety, protection, or physical or emotional well-being in her care. Again, E. S.’s arguments would require us to view the evidence in the light most favorable to her, and to disagree with the juvenile court’s deductions and resolution of credibility issues. We may not do so. (In re Albert T. (2006) 144 Cal.App.4th 207, 216; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The substantial evidence test is not concerned with whether substantial testimony supports E. S.’s position, or “whether there is substantial conflict, ‘but rather whether there is substantial evidence in favor of the respondent. If this “substantial” evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed.’ ” (In re Stephen W. (1990) 221 Cal.App.3d 629, 644, fn. 12.)
When the juvenile court decided not to return B. S. to E. S.’s custody, its comments were conclusory. However, at the 18-month review hearing, the juvenile court must state a factual basis for its decision to return or not return a dependent child to his or her parent. (§ 366.22, subd. (a).) E. S. complains that the juvenile court erred by failing to do so.
The statutory requirement is clearly designed to insure meaningful review of the juvenile court’s decision. Here, the Department, for its part, made its case principally on the admission in evidence of its reports and social worker’s testimony. Therefore the factual basis of the juvenile court’s decision must have come from the reports and social worker’s testimony. The facts from those reports and testimony relevant to the issue on which the court based its decision are summarized above. We found those facts to be sufficient to support a finding that the return of B. S. to E. S. posed a risk of substantial detriment to B. S.’s safety, protection, and well being. Accordingly, we conclude that the juvenile court’s failure to articulate the specific facts underlying its decision was necessarily harmless error.
Disposition
The petition for writ of mandate is denied. This opinion is final as to this court immediately upon filing. (Cal. Rules of Court, rule 8.264(b)(2).)
WE CONCUR: Rushing, P.J., Elia, J.