Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review Super. Ct. No. JUV509339. Linda McFadden, Judge.
Nadine Salim, for Petitioner.
No appearance for Respondent.
Michael H. Krausnick, County Counsel, and Linda S. Macy, Deputy County Counsel, for Real Party In Interest.
OPINION
Before Harris, Acting P.J., Cornell, J., and Dawson, J.
Petitioner, through her guardian ad litem, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the order of the juvenile court issued at a contested 12-month review hearing setting a Welfare and Institutions Code section 366.26 hearing as to her daughter M. We will deny 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, petitioner, then 15 years old, was admitted to the hospital for suspected appendicitis and instead delivered M. M.’s birth came as an unpleasant surprise to petitioner’s mother, L., who refused to allow petitioner to return home unless she gave M. up for adoption. The household consisted of L. and her boyfriend S. and petitioner. L. also expressed her hope that M. would die.
Concerned about petitioner and M.’s safety, a mandated reporter contacted the social services agency (agency). L. agreed to let petitioner and M. return to her home and the agency closed out the referral. However, L. reneged, forcing petitioner and M. to first live with petitioner’s boyfriend, M.’s alleged father, at his home. After it became too chaotic at the alleged father’s home, he, petitioner and M. went to live in a shelter where they stayed until approximately July 2006 when petitioner and M. moved into L.’s home.
In mid-July 2006, petitioner took four-month-old M., seizing and crying uncontrollably, to the emergency room where M. was treated for methamphetamine intoxication. A consulting physician stated that, given the level of toxicity, someone intentionally poisoned M. either by putting methamphetamine in her bottle or directly in her mouth.
Petitioner denied knowing how M. ingested methamphetamine. She admitted to prior methamphetamine and marijuana usage, but claimed to have stopped using prior to her pregnancy. She declined, however, to take a drug test, stating she had been in a home where drugs were being smoked and she was concerned that her exposure to the fumes could result in a positive drug screen. She stated she did not know if her mother L. and/or S. used drugs.
The alleged father did not believe petitioner used drugs but stated that L. used methamphetamine and cocaine. He stated L. “never liked the baby” and continuously told petitioner to put M. up for adoption. He denied using drugs and stated that if tested, he would test negative. He also stated that he lived with his aunt, who was not interested in taking custody of M. Besides, he did not believe himself to be M.’s biological father and requested paternity testing.
L. and S. denied using drugs and L. insisted that petitioner had to have been the one using drugs in the home. L. reluctantly consented to a search of her home and declined to be present for the search. After the search turned up marijuana, methamphetamine and paraphernalia in L.’s bedroom, she admitted using drugs. No drugs were found in petitioner’s room.
In an interview with a detective, petitioner admitted she was having problems with L. and M.’s alleged father. When she found methamphetamine in L.’s room, she smoked the drug and accidentally spilled some in the baby’s formula. Laboratory analysis subsequently revealed the presence of methamphetamine in M.’s bottle. No methamphetamine was found in the formula.
The agency took M. into protective custody and filed a dependency petition on her behalf, alleging, in part, that she was intentionally given methamphetamine and that petitioner failed to protect her. The juvenile court appointed counsel as well as a guardian ad litem (GAL) for petitioner and ordered M. detained pursuant to the petition. During the same time, the agency also filed a dependency petition on petitioner’s behalf but did not detain her.
In September 2006, the juvenile court conducted the jurisdictional hearing. How methamphetamine got into M.’s bottle remained unclear. The court exercised dependency jurisdiction, removed M. from petitioner’s custody and ordered her to complete a plan of reunification, which included drug treatment and random drug testing, parenting instruction, individual therapy and joint counseling with L. The court denied services to M.’s alleged father and set the six-month review hearing. In separate dependency proceedings, the court ordered L. and petitioner (as the minor child) to participate in a plan of family maintenance.
Over the next five months, petitioner made good progress in her case plan. She completed substance abuse counseling and consistently tested negative for drugs. She completed all but two parenting classes and was participating in individual therapy. She had not initiated conjoint counseling because L. had not completed an intake assessment. In addition, petitioner was doing well in high school and was even in a position to graduate early.
However, despite petitioner’s progress, she was ambivalent about reunifying with M. and L. was still pressuring her to give M. up for adoption. This ambivalence played out during visitation, which petitioner participated in regularly. It seemed that as long as petitioner believed she had a chance of gaining custody of M., she assumed a motherly role. She held M. on her lap and bottle fed her or gave her a toy. However, petitioner at times expressed resignation that she could not reunify with M. even if she completed her case plan. During such times, she appeared less involved with M. and seemed to be babysitting rather than taking time to build a relationship with M. Meanwhile, M. was in good health and bonding with her foster parents, who were willing to adopt her.
By the time set for the six-month review hearing, petitioner appeared ready to build a relationship with M. despite her family’s disapproval. Consequently, the agency recommended the court order another six months of services.
In early February 2007, the juvenile court conducted an uncontested six-month review hearing. The court found petitioner was provided reasonable services and continued services to the 12-month review hearing set for July 2007.
Over the next six months, petitioner continued to vacillate between wanting to reunify with M. and relinquishing M. for adoption. In late February, petitioner contacted the caseworker to cancel her visit with M. She said she had decided to sign the relinquishment papers and did not want to see M. again. When asked how she came to that decision, she said she had made a new friend who had a three-year-old sibling. Petitioner had gone to the friend’s home after school and noticed that the child got up and down a lot and that “it was all about [the child].” She said she did not feel ready for that and wanted to sign the papers. In February, petitioner’s therapist closed out her case after petitioner told her she had decided not to keep M. and refused further counseling.
In March 2007, petitioner changed her mind about relinquishing her parental rights and visitation resumed. Petitioner and L. visited with M. and, at a visit in late March 2007, M. was observed not wanting to get down from petitioner’s lap.
In mid-April 2007, the agency conducted a meeting with petitioner, L., petitioner and L.’s attorneys, caseworkers and the GAL to review petitioner and L.’s progress in their case plans. Petitioner informed the attendees that both she and L. wanted M. returned to their care. Petitioner and L. were encouraged to complete as much of their case plans as possible before the 12-month review hearing.
Over the next several months, petitioner and L. visited M. together. Reportedly, petitioner “demurred” to L., who interacted most frequently with M. However, petitioner fed and cared for M. during visitation and M. played happily on petitioner’s lap, held out her arms for her and interacted lovingly with her. At a visit in late June 2007, M. walked over to a toy, then back to petitioner and laid her head on petitioner’s shoulder. She went back to the toy and then to petitioner again. However, by this time, petitioner had been informed that the caseworker intended to recommend that the court not return M. to her care. At the end of the visit, petitioner was on the floor playing with M. She got up, picked M. up and handed her to L., who hugged and kissed M. good bye and handed her to the caseworker.
In its 12-month status review, the agency reported that petitioner continued to test negative for drugs and completed the in-class phase of her parenting course. She needed to complete four individual sessions followed by three parent/child labs to complete the parenting program. In addition, petitioner and L. began family sessions in April 2007 and participated in six sessions together. However, petitioner’s failure to plausibly explain how methamphetamine got into M.’s bottle and refusal to interact with M. during visitation caused the agency to recommend the court find petitioner’s progress in her case plan minimal and terminate reunification services.
Petitioner challenged the agency’s recommendation and the matter was set for a contested hearing which began in October 2007 and extended over three days. At the hearing, petitioner argued services were not reasonable and asked that the court continue them.
Petitioner testified she believed M. was poisoned by the fumes produced when she smoked methamphetamine the day before M.’s admission to the hospital. She said she smoked methamphetamine that day because her boyfriend, M.’s alleged father, told her he did not want to be with her anymore. She did not know how much she smoked but it kept her awake all night. Sometime between 6:30 and 7:00 a.m. the following morning, L. and her boyfriend S. left for work. M. slept the entire night and awoke around 9:00 a.m. Petitioner did not feed her that morning. Approximately an hour later, around 10:00 a.m., M. started shaking as if having a seizure.
Petitioner further testified she was the only person in the house using methamphetamine and felt responsible for the poisoning. She did not believe L. or S. could have given M. methamphetamine. She acknowledged that her explanation for M.’s poisoning was medically impossible. She also acknowledged that the effects of methamphetamine are immediate.
Petitioner had not discussed the cause of M.’s poisoning with her parenting counselor nor did she want to discuss it. Petitioner and L. had been in joint counseling since March 2007, during which they occasionally discussed M.’s poisoning and how it happened. Petitioner had no concerns about returning M. to the family home because everyone there wanted M. to come home.
The GAL testified that she asked for the meeting in April 2007 because she had concerns about how petitioner’s case was being handled. She told petitioner’s caseworker in the very beginning that if petitioner were to have a chance at reunifying with M., she needed to be removed from L. because the poisoning occurred in L.’s home. She also stated that she had not realized that petitioner and L. had two separate caseworkers. This caused a problem for petitioner because the court ordered conjoint counseling between petitioner and L. to discuss what happened to M. and how the family dealt with it. By not participating in counseling, L. was impeding petitioner’s ability to complete her case plan.
Petitioner’s caseworker testified that she did not remove petitioner from L.’s custody because she did not believe petitioner was in danger. However, she suggested to petitioner that she might want to live somewhere other than with L.
L.’s caseworker testified that she had just filed a status report recommending the juvenile court dismiss dependency jurisdiction over petitioner because L. successfully completed her case plan requirements, which included drug treatment and parenting instruction. The caseworker stated that L. initially refused to drug test, claiming she was taking marijuana for medicinal purposes. Consequently, the agency asked her to bring in her prescription. It is not clear from the record whether L. produced a prescription. In any case, according to her caseworker, L. began drug testing in March 2007 and consistently tested negative for all drugs thereafter.
L.’s caseworker further testified that, despite knowing the circumstances of M.’s removal, she believed M. would be safe in L. and petitioner’s custody based on her work with them. Nevertheless, the caseworker conceded that, while both petitioner and L. agreed petitioner was responsible for M.’s poisoning, no one had provided a truthful explanation for its occurrence. She believed petitioner and L. had worked out a lot of family issues during their individual and family counseling except the issue of how M. was poisoned.
Following testimony and argument, the juvenile court found M. could not be safely returned to petitioner’s custody given the unexplained cause of M.’s poisoning. The court also found petitioner was provided reasonable services and that there was not a substantial probability M. could be returned to petitioner even if given more time to reunify. Consequently, the court terminated services and set a hearing under section 366.26 to consider a permanent plan of adoption for M. This petition ensued.
DISCUSSION
Petitioner argues she and L. successfully recovered from drug use and resolved their interpersonal issues. Therefore, contrary to the court’s conclusion, it was safe to return M. to their custody. Alternatively, she argues, the court erred in terminating reunification services because the services offered were inadequate and because with increased visitation, she could have reunified with M. after another six months. We conclude her arguments lack merit.
The juvenile court cannot return a child to parental custody as long as the parent poses a “risk of detriment.” (§ 366.21, subd. (f).) On that issue, the evidence compellingly supports the juvenile court’s conclusion M. could not be safely returned to petitioner’s custody. Petitioner was one of three people who had access to M. when she was poisoned and, as of the 12-month review hearing, no reasonable explanation for the poisoning had been provided by any of the three. Even though petitioner took responsibility for the poisoning, she lied to the court, insisting it was accidental despite unrefuted medical evidence that it was intentional. Consequently, the juvenile court’s conclusion was apt. Either petitioner intentionally poisoned M. herself or was protecting someone who did. Since the court could not risk placing M. with the people caring for her when she was poisoned, it had no choice but to find M.’s return would pose a risk of detriment.
Further, the magnitude of the harm in this case (i.e., the intentional poisoning) and the lack of an identifiable perpetrator also underlie the court’s finding petitioner was provided reasonable services. Until petitioner was willing to be honest about how M. was poisoned, no amount of visitation or tailoring of services would create the kind of safe environment to which M. could be returned. Even if, as was suggested at the review hearing and again in the petition, petitioner had been removed from L.’s home, there is no evidence that she would have been able to successfully reunify given her reticence to discuss the poisoning. Though all reasonable efforts must be made to reunify the family, there are circumstances under which no services can eliminate the harmful risk to a child. (See Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) This case presents such circumstances.
Further, in light of the reasonable services offered petitioner and the stage of the proceedings, the law required the court to terminate services and proceed to permanency planning unless petitioner could show a substantial probability M. would be returned to her custody within another six months. (§ 366.21, subd. (g)(1).) To that end, petitioner’s burden included a showing she made significant progress in resolving the problem requiring M.’s removal. Since the situation that necessitated M.’s removal had not changed, the evidence also supported the court’s finding there was not a substantial probability of return. We find no error.
In order to find a substantial probability that the child will be returned to parental custody and maintained in the parent’s care within the extended time, the court must find the parent met the following three requirements: (1) regularly visited the child; (2) made significant progress in resolving the problem prompting removal of the child; and (3) demonstrated the capacity and ability to complete the objectives of the case plan and provide for the child’s safety, protection and well-being. (§ 366.21, subd. (g)(1).)
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.