Opinion
A121499
7-1-2008
In re T. M. et al., Persons Coming Under the Juvenile Court Law. JENNIFER K., Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF CONTRA COSTA, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Real Party in Interest.
Not to be Published
Jennifer K. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, to challenge the juvenile courts order terminating her reunifications services with her children, T.M. and K.K., and setting a hearing pursuant to Welfare and Institutions Code section 366.26. Mother contends that substantial evidence does not support the lower courts order denying her request to extend reunification services for an additional six months. We conclude substantial evidence supported the lower courts ruling and deny mothers petition for an extraordinary writ.
BACKGROUND
On September 18, 2007, the Contra Costa County Children and Family Services Bureau (bureau) filed petitions pursuant to section 300, seeking to have mothers children T.M. and K.K. declared dependent children of the juvenile court. T.M. was five years old at the time and K.K. was just shy of her two-year birthday. The petition concerning T.M. alleged that mother had failed to protect him pursuant to section 300, subdivision (b), because she had left him in the supervision of his father, which violated court orders stating that father was only to have supervised visitation. It further alleged that T.M. had witnessed domestic violence incidents between his father and his fathers current girlfriend and that mother and the father have an ongoing history of domestic violence. With regard to K.K., the petition alleged that pursuant to section 300, subdivision (j), mother had placed K.K. at risk of harm by continuing to engage in incidents of domestic violence in the presence of K.K.s half sibling. On September 25, 2007, at the jurisdiction hearing, mother pleaded no contest to the amended petitions, and the case was set for a disposition hearing.
In the bureaus disposition report dated November 20, 2007, the social worker for the bureau recommended that mother be offered reunification services. The report discussed two previous referrals regarding the care of T.M. One referral on May 6, 2005, resulted in a dependency case with T.M. Mother was arrested for battery and possession of marijuana in a parking lot. T.M. was in the parking lot and witnessed a physical fight involving his mother. Family maintenance was ordered for mother and the case was closed on October 31, 2006, "but not before it was extended for an additional six months as [mother] had a difficult time understanding and following through with her case plan[,] which included a domestic violence program, an outpatient substance abuse program, parent education classes, and individual counseling."
The disposition report noted that mother had a loving bond and relationship with her children. Mother agreed to work with the bureau regarding her case plan, but the social worker pointed out that she "has been slow to follow through with referrals." The social worker recommended reunification services be provided for mother (and T.M.s father).
On November 20, 2007, the court adopted the recommendations of the bureau and ordered reunification services for mother (and T.M.s father).
The social worker for the bureau filed her status review report on April 25, 2008. The social worker stated that mother was employed, although she still had no permanent housing and was staying with a friend. The social worker noted that mother had a loving relationship with her children and seemed to understand their developmental needs. According to the social worker, mother appeared eager to participate in her case plan; she, however, had not participated in drug testing. Mother told the social worker that she had not enrolled at GAADDS (a drug and alcohol rehabilitation program) to have drug testing because she had lost her identification. The report indicated that mother had started parenting classes the week of March 3, 2008, and had thus far attended two classes. The social worker wrote in her report that mother had gone to one STAND (a domestic violence program) meeting on March 12, 2008. Mother had informed the social worker that she was attending two to three Narcotics Anonymous meetings a week. However, mother reported to the social worker that she had not started her individual counseling sessions due to scheduling problems. Mother had completed programs to address the issues of domestic violence and general neglect as part of her case plan in T.M.s previous dependency.
The status review report stated that the children were living together in their maternal great-grandmothers home. Mother visited them at the house almost daily while supervised by the great-grandmother. Mother was permitted unsupervised visitation, which was revoked when mother failed to get T.M. to school on time.
The bureau recommended that reunification services be terminated due to both parents failure to participate in their respective case plans. The social worker observed that neither parent had made the changes necessary to provide a safe and stable home for the children. Mother had not engaged in therapy and treatment to understand and ameliorate her pattern of placing herself and her children in dangerous situations. The bureau recommended that the court establish a permanent plan of adoption for T.M. and K.K. by setting a section 366.26 hearing.
The social worker assigned to mothers case, Gail Zwetsch, testified at the six-month status review hearing, which started on April 11, 2008. Zwetsch said that in January and, again, in February, she asked mother to do an on-demand drug test. She suspected mother might be using drugs because Zwetsch had received a positive test on T.M.s father and his girlfriend. When mother failed to test in January after promising that she would, Zwetsch suspected that mother might be using drugs. Zwetsch admitted that mother had not appeared to be under the influence of drugs when Zwetsch observed her. The hearing was continued until April 25, 2008.
On April 24, 2008, Zwetsch filed a memorandum reporting that it had come to her attention that mother had engaged in acts of aggression towards the childrens great-grandmother. When visiting, mother had frequently become loud and antagonistic and had shoved the great-grandmother. The police had responded twice, once in September and once in December, 2007; the great-grandmother did not press charges. The children were home during the incidents, but were in another room. Zwetsch requested that the court prohibit mother from visiting the home of the childrens great-grandmother.
At the continued hearing on April 25, 2008, Zwetsch testified that the great-grandmother had just provided her with the information contained in the memorandum filed the previous day. Since she just received this information the day before the hearing, she had not had an opportunity to obtain any corroborating information. The great-grandmother stated that she was taking T.M. to therapy and this information became known to the therapist who told her to tell Zwetsch about the incidents. The great-grandmother had been hesitant to tell Zwetsch because she was afraid the children would be taken away.
Zwetsch acknowledged that mother was loving and nurturing with the children. She had never observed mother to be loud and antagonistic with her children.
Zwetsch testified that, as of the date of the hearing, mother had participated in four sessions at STAND, though she had agreed to participate in six sessions. Zwetsch reported that T.M. told her that he was seeing his father every day after school during the period when mother was taking him to school. T.M. was missing school when mother was supposed to be taking him there; the great-grandmother suspected that mother was taking him to see his father. T. M. had been tardy 16 times and had two unexcused absences between November 13, 2007, and January 24, 2008.
Zwetsch testified that mother told her that she had not taken the drug tests because she had lost her identification. Mother had not participated in any counseling under her case plan. Mother reported that she had participated in parenting classes, but Zwetsch had no verification of this.
Mother also testified at the hearing. She said that she had attended three parenting classes. She confirmed that she had gone to four sessions at STAND and that she was supposed to go to six. She acknowledged that she had attended no parenting or STAND classes prior to March 2008. She admitted that she had not participated in any individual counseling. She asserted that she was working as an assistant to the teacher at the Spectrum Center School, which provides education to children with autism or mental health issues. She had been working there for almost two years. She denied having any unsupervised contact with T.M.s father.
Counsel for the children agreed with the bureau that mothers reunification services should be terminated. Counsel noted that mother only started to "engage in the case plan after March [2008] and [had] done very little on [it]."
Counsel for mother argued that mother did not receive services from November 21, 2007, until December 19, 2007. She acknowledged that mother had been slow in engaging in services, but claimed that "shes almost there." Counsel argued that at the end of six more months mother could "easily complete" her case plan.
At the close of the hearing, the court explained that it had to find "by a substantial probability that there is a likelihood by clear and convincing evidence that [mother was] going to complete [her] case plan." When deciding whether mother could complete her plan if provided an additional six months, the court commented, "Realistically, I cant say that." The court elaborated: "Mother didnt do therapy as requested, didnt do drug testing as requested, didnt necessarily keep the [bureau] advised as to where she was living, no proof of parenting classes until the recent testimony of mother, three STAND sessions in addition to the one that was reported on [March 25]. Essentially for four months mother did nothing." The court concluded that it believed a guardianship was better than an adoption and that a section 366.26 hearing was in the best interest of the children.
Mother filed a writ petition pursuant to California Rules of Court, rule 8.452.
DISCUSSION
Mother challenges the juvenile courts order terminating reunification services and setting the section 366.26 hearing. She asserts that the lower court should have granted her request to extend her reunification services for six months. We review an order terminating services and setting a permanency planning hearing to determine if it is supported by substantial evidence. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020.)
When determining whether substantial evidence is present, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, or determine where the preponderance of the evidence lies. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact. (Ibid.) Substantial evidence is "reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged. . . ." (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) The burden is on the petitioner to show the evidence is insufficient to support the trial courts findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Since K.K. was under the age of three years when removed from mothers custody, reunification services would ordinarily be limited to six months. (§ 361.5, subd. (a)(2).) The purpose of the six-month limitation on services is to provide the juvenile court greater flexibility in meeting the needs of young children where the "parents have made little or no progress in their service plans and the prognosis for overcoming the problems leading to the childs dependency is bleak." (Daria D. v. Superior Court (1988) 61 Cal.App.4th 606, 611-612.) " `[V]ery young children . . . require a more timely resolution of a permanent plan because of their vulnerable stage of development. . . . . [G]iven the unique developmental needs of infants and toddlers, moving to permanency more quickly is critical. " (Id. at p. 612.)
Consequently, on the six-month review date, the juvenile court may schedule a section 366.26 permanency planning hearing if it finds by clear and convincing evidence that the parent or parents failed to participate regularly and make substantive progress in the court-ordered treatment plan. (§ 366.21, subd. (e).) In order to find a substantial probability of return, the court must find the parent regularly visited the child, made significant progress in resolving the problem prompting removal of the child, and demonstrated the capacity and ability to complete the objectives of the case plan and provide for the childs safety, protection, and well-being. (§ 366.21, subd. (g)(1).)
Here, the evidence in the record amply supported the lower courts determination that clear and convincing evidence established that mother failed to participate regularly and make substantive progress in her treatment plan (§ 366.21, subd. (e)). Mother had not complied with the drug testing requirement; she had no drug tests because she claimed to have lost her identification. Further, despite being offered services since November, mother did not start parenting classes until March 3, 2008, and had not attended any sessions at STAND prior to March 2008. As of the date of the hearing, mother had participated in STAND four times, but she had agreed to participate in six sessions. Mother reported that she had participated in parenting classes, but Zwetsch had no verification of this. Mother had not attended any counseling sessions, because she claimed to have scheduling issues.
Nothing in mothers actions or testimony suggests that she would complete her plan if given extra time. As already discussed, mother had not attended any counseling sessions or participated in any drug testing. Further, although the evidence established that mother loves her children and has bonded with them, no evidence indicates that she understood the reasons for her childrens removal. "Since the court-ordered treatment programs are tailored by the court to remedy the circumstances that required removal of the child from parental custody, it is reasonable to conclude that in the absence of contrary evidence the failure to participate in such programs is sufficient to establish that the circumstances [necessitating removal] still exist." (In re Heather B. (1992) 9 Cal.App.4th 535, 561.)
Mother argues that the record establishes that she had a loving relationship with her children and had a strong bond with them. She claims that she was slow getting started in her reunification service plan but, by the time of the six-month review hearing, she was attending domestic violence and parenting classes. The record, however, establishes that mother was not simply slow in starting to meet the requirements of her plan; rather, she did not comply at all with parts of her plan. In particular, she had not participated in any counseling sessions and had not met any of the drug-testing requirements. With regard to the latter, mother claims that there was nothing in her history to suggest that she is a drug user and substance abuse was not a reason for the courts taking jurisdiction. We disagree that nothing in the record suggested that mother had a drug problem. As the lower court found, mothers failure to take a drug test after promising to take one suggested that she might have a drug problem. Further, mothers earlier referral to the bureau dated May 6, 2005, was based on mothers arrest for possession of marijuana and battery.
The record clearly establishes that mother has a loving relationship with her children but, as the lower court commented, that is not the factor the court is to consider under section 366.21, subdivision (e). The court is to consider whether mother had failed to participate regularly and make substantive progress in the treatment plan. (§ 366.21, subd. (e).) Here, the record contains substantial evidence supporting the courts finding by clear and convincing evidence that mother failed to participate regularly and make substantive progress in the court-ordered treatment plan.
DISPOSITION
The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888; § 366.26, subd. (l)(1) [precluding further challenge to these orders by petitioner in any subsequent appeal].) The temporary stay previously imposed is lifted. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur:
Kline, P.J.
Haerle, J. --------------- Notes: All further unspecified code sections refer to the Welfare and Institutions Code.